EXECUTION COPY
Exhibit 10.2
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SALE AND SERVICING
AGREEMENT
Among
M&I AUTO LOAN TRUST 2003-1
as
Trust
M&I DEALER AUTO SECURITIZATION, LLC
as
Seller
M&I XXXXXXXX & XXXXXX BANK
as Servicer
and
BNY MIDWEST TRUST CO.
as Indenture Trustee
Dated as of November 13, 2003
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.................................................... 1
SECTION 1.1. Definitions.......................................... 1
SECTION 1.2. Other Interpretive Provisions........................ 1
ARTICLE II. CONVEYANCE OF RECEIVABLES...................................... 2
SECTION 2.1. Conveyance of Receivables on the Closing Date........ 2
SECTION 2.2. Conveyance of Receivables on each Funding Date....... 2
SECTION 2.3. Sale of Receivables.................................. 3
ARTICLE III. THE RECEIVABLES................................................ 4
SECTION 3.1. Representations and Warranties as to Each
Receivable on the Closing Date....................... 4
SECTION 3.2. Representations and Warranties as to Each
Subsequent Receivable on the Related Funding
Date................................................. 8
SECTION 3.3. Purchase by Servicer upon Breach of
Representation or Warranty........................... 8
SECTION 3.4. Custodian of Receivable Files........................ 9
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.................... 11
SECTION 4.1. Duties of Servicer................................... 11
SECTION 4.2. Collection of Receivable Payments.................... 12
SECTION 4.3. Realization upon Receivables......................... 13
SECTION 4.4. Physical Damage Insurance............................ 13
SECTION 4.5. Maintenance of Security Interests in Financed
Vehicles............................................. 14
SECTION 4.6. Covenants of Servicer................................ 14
SECTION 4.7. Purchase by Servicer upon Breach of Covenant......... 15
SECTION 4.8. Servicing Fee........................................ 15
SECTION 4.9. Servicer's Report.................................... 15
SECTION 4.10. Annual Statement as to Compliance; Notice of
Default.............................................. 16
SECTION 4.11. Annual Independent Certified Public Accountants'
Report............................................... 16
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables................................ 17
SECTION 4.13. Reports to the Rating Agencies....................... 17
SECTION 4.14. Servicer Expenses.................................... 17
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TABLE OF CONTENTS
(continued)
Page
ARTICLE V. DISTRIBUTIONS; ACCOUNTS; STATEMENTS TO CERTIFICATEHOLDERS
AND NOTEHOLDERS; ADVANCES...................................... 17
SECTION 5.1. Establishment of Accounts............................ 17
SECTION 5.2. Collections.......................................... 19
SECTION 5.3. Pre-Funding Account.................................. 20
SECTION 5.4. Additional Deposits.................................. 20
SECTION 5.5. Distributions........................................ 20
SECTION 5.6. Statements to Certificateholders and Noteholders..... 21
SECTION 5.7. Net Deposits......................................... 23
SECTION 5.8. Reserve Account...................................... 23
SECTION 5.9. Monthly Advances..................................... 23
ARTICLE VI. SELLER......................................................... 23
SECTION 6.1. Representations of Seller............................ 23
SECTION 6.2. Continued Existence.................................. 25
SECTION 6.3. Liability of Seller; Indemnities..................... 25
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller............................... 26
SECTION 6.5. Limitation on Liability of Seller and Others......... 26
SECTION 6.6. Seller May Own Certificates or Notes................. 27
SECTION 6.7. Security Interest.................................... 27
SECTION 6.8. Purchase of Receivables on a Funding Date............ 27
ARTICLE VII. SERVICER....................................................... 27
SECTION 7.1. Representations of Servicer.......................... 27
SECTION 7.2. Indemnities of Servicer.............................. 28
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer............................. 30
SECTION 7.4. Limitation on Liability of Servicer and Others....... 30
SECTION 7.5. M&I Bank Not To Resign as Servicer................... 31
SECTION 7.6. Existence............................................ 31
SECTION 7.7. Servicer May Own Notes or Certificates............... 31
ARTICLE VIII. SERVICER TERMINATION EVENTS.................................... 31
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TABLE OF CONTENTS
(continued)
Page
SECTION 8.1. Servicer Termination Event........................... 31
SECTION 8.2. Appointment of Successor............................. 33
SECTION 8.3. Payment of Servicing Fee............................. 33
SECTION 8.4. Notification to Noteholders and Certificateholders... 34
SECTION 8.5. Waiver of Past Defaults.............................. 34
ARTICLE IX. TERMINATION.................................................... 34
SECTION 9.1. Optional Purchase of All Receivables;
Termination Notice................................... 34
ARTICLE X. MISCELLANEOUS PROVISIONS....................................... 34
SECTION 10.1. Amendment............................................ 34
SECTION 10.2. Protection of Title to Trust Property................ 36
SECTION 10.3. Notices.............................................. 37
SECTION 10.4. Assignment........................................... 38
SECTION 10.5. Litigation and Indemnities........................... 38
SECTION 10.6. Limitations on Rights of Others...................... 38
SECTION 10.7. Severability......................................... 38
SECTION 10.8. Separate Counterparts................................ 38
SECTION 10.9. Headings............................................. 39
SECTION 10.10. Governing Law........................................ 39
SECTION 10.11. Assignment to Indenture Trustee...................... 39
SECTION 10.12. Nonpetition Covenant................................. 39
SECTION 10.13. Limitation of Liability.............................. 39
SECTION 10.14. Further Assurances................................... 40
SECTION 10.15. No Waiver; Cumulative Remedies....................... 40
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Table of Contents
(continued)
SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Location of Receivables Files
Schedule C - Perfection Representations, Warranties and Covenants
EXHIBITS
Exhibit A - Form of Servicer's Report
Exhibit B - Form of Funding Date Officer's Certificate
APPENDIX
Appendix X - Definitions
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SALE AND SERVICING AGREEMENT dated as of November 13, 2003, (this
"Agreement") among M&I AUTO LOAN TRUST 2003-1, a Delaware statutory trust (the
"Trust"), M&I DEALER AUTO SECURITIZATION, LLC, a Delaware limited liability
company (in its capacity as Seller, "Seller"), M&I XXXXXXXX & ILSLEY BANK, a
banking corporation organized under the laws of the State of Wisconsin ("M&I
Bank" and in its capacity as servicer, "Servicer") and BNY MIDWEST TRUST CO. (in
its capacity as indenture trustee, "Indenture Trustee").
WHEREAS, The Trust desires to purchase from Seller a portfolio of
Receivables arising in connection with Motor Vehicle Loans secured by new and
used automobiles and light trucks purchased from motor vehicle dealers by M&I
Bank or its Affiliates some of which have been sold to Seller by Bank One,
National Association, a national banking association (on behalf of Preferred
Receivables Funding Corporation) ("Bank One"), by M&I Northwoods III LLC, a
Delaware limited liability company ("Northwoods") and by M&I Bank under the
Purchase Agreement;
WHEREAS, Seller is willing to sell such receivables to the Trust; and
WHEREAS, Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.1. Definitions. Capitalized terms are used in this Agreement as
defined in Appendix X to this Agreement.
SECTION 1.2. Other Interpretive Provisions. For purposes of this Agreement,
unless the context otherwise requires: (a) accounting terms not otherwise
defined in this Agreement, and accounting terms partly defined in this Agreement
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles; (b) terms defined in Article 9
of the UCC as in effect in the relevant jurisdiction and not otherwise defined
in this Agreement are used as defined in that Article; (c) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Agreement as
a whole and not to any particular provision of this Agreement; (d) references to
any Article, Section, Schedule, Appendix or Exhibit are references to Articles,
Sections, Schedules, Appendices and Exhibits in or to this Agreement and
references to any paragraph, subsection, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (e) the term "including" means
"including without limitation"; (f) except as otherwise expressly provided
herein, references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; (g)
references to any Person include that Person's successors and assigns; and (h)
headings are for purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
ARTICLE II. CONVEYANCE OF RECEIVABLES.
SECTION 2.1. Conveyance of Receivables on the Closing Date. In
consideration of the Trust's delivery to, or upon the order of, Seller of the
Notes and the Certificates, in aggregate principal amounts equal to the initial
principal amounts of the Notes and the initial Certificate Percentage Interests,
respectively, on the Closing Date, Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Trust, without recourse, subject to the
obligations herein (collectively, the "Initial Trust Property"):
(a) all right, title and interest of Seller in and to the Receivables
identified on the Schedule of Receivables delivered on the Closing Date, and all
moneys received thereon after the Initial Cutoff Date;
(b) all right, title and interest of Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of Seller in the Financed Vehicles and any other property that
shall secure the Receivables;
(c) the interest of Seller in any proceeds with respect to the Receivables
from claims on any Insurance Policies covering Financed Vehicles or the
Obligors;
(d) rebates of premiums relating to Insurance Policies and rebates of
other items such as extended warranties financed under the Receivables, in each
case, to the extent the Servicer would, in accordance with its customary
practices, apply such amounts to the Principal Balance of the related
Receivable;
(e) the interest of Seller in any proceeds from (i) any Receivable
repurchased by a Dealer, pursuant to a Dealer Agreement, as a result of a breach
of representation or warranty in the related Dealer Agreement, (ii) a default by
an Obligor resulting in the repossession of the Financed Vehicle under the
applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other rights
relating to the Receivables under Dealer Agreements;
(f) all right, title and interest in all funds on deposit from time to
time in the Certificate Distribution Account and the Trust Accounts, and in all
investments and proceeds thereof (but excluding all investment income thereon);
(g) all right, title and interest of Seller under the Purchase Agreement;
(h) all right, title and interest of Seller in any instrument or document
relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
SECTION 2.2. Conveyance of Receivables on each Funding Date. In
consideration of the payment of the purchase price of the Subsequent Receivables
from the Pre-Funding Account on any such date pursuant to Section 8.7(h) of the
Indenture, on each Funding Date Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Trust, without recourse, subject to the
obligations herein (collectively, the "Subsequent Trust Property"; and together
with the Initial Trust Property, the "Trust Property"):
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(a) all right, title and interest of Seller in and to the Subsequent
Receivables identified on the Schedule of Receivables delivered on each related
Funding Date, and all moneys received thereon after the related Subsequent
Cutoff Date;
(b) all right, title and interest of Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Subsequent Receivables
and any other interest of Seller in the Financed Vehicles and any other property
that shall secure the Subsequent Receivables;
(c) the interest of Seller in any proceeds with respect to the Subsequent
Receivables from claims on any Insurance Policies covering Financed Vehicles or
the Obligors;
(d) rebates of premiums relating to Insurance Policies and rebates of
other items such as extended warranties financed under the Subsequent
Receivables, in each case, to the extent the Servicer would, in accordance with
its customary practices, apply such amounts to the Principal Balance of the
related Subsequent Receivable;
(e) the interest of Seller in any proceeds from (i) any Subsequent
Receivable repurchased by a Dealer, pursuant to a Dealer Agreement, as a result
of a breach of representation or warranty in the related Dealer Agreement, (ii)
a default by an Obligor resulting in the repossession of the Financed Vehicle
under the applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other
rights relating to the Subsequent Receivables under Dealer Agreements;
(f) all right, title and interest in all funds on deposit from time to
time in the Certificate Distribution Account and the Trust Accounts, and in all
investments and proceeds thereof (but excluding all investment income thereon);
(g) all right, title and interest of Seller under the Purchase Agreement;
(h) all right, title and interest of Seller in any instrument or document
relating to the Subsequent Receivables; and
(i) the proceeds of any and all of the foregoing.
The purchase of the Subsequent Receivables on each Funding Date shall be
made in accordance with the Purchase Agreement and this Agreement. On each
Funding Date (a) M&I Bank will transfer and assign all of its right, title and
interest in and to the Receivables and other Purchased Assets to the Seller, as
purchaser, (b) the Seller will sell all of its right, title and interest in and
to the Receivables and other Trust Property to the Trust, and (c) the Trust will
grant all of its right, title and interest in and to the Receivables and other
Trust Property to the Indenture Trustee for the benefit of the Noteholders. The
Subsequent Receivables transferred on each Funding Date and the Receivables
transferred on the Closing Date are collectively referred to herein as the
"Receivables".
SECTION 2.3. Sale of Receivables. It is the express intention of Seller and
the Trust that:
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(a) the assignment and transfer herein contemplated constitute a sale of
the Receivables and the other Trust Property described above, conveying good
title thereto free an clear of any Liens, encumbrances, security interests or
rights of other Persons, from Seller to the Trust; and
(b) the Receivables and the other Trust Property described above not be a
part of Seller's estate in the event of a bankruptcy or insolvency of Seller.
If, notwithstanding the intention of Seller and the Trust, such conveyance
is deemed to be a pledge in connection with a financing or is otherwise deemed
not to be a sale, Seller hereby grants, and the parties intend that Seller shall
have granted, to the Trust a first priority perfected security interest in all
of Seller's right, title and interest in the items of the Trust Property and all
proceeds of the foregoing, and that this Agreement shall constitute a security
agreement under applicable law and the Trust shall have all of the rights and
remedies of a secured party and creditor under the UCC as in force in the
relevant jurisdictions.
ARTICLE III. THE RECEIVABLES.
SECTION 3.1. Representations and Warranties as to Each Receivable on the
Closing Date. Servicer hereby makes the following representations and warranties
on the Closing Date as to each Receivable conveyed by it to the Seller pursuant
to the Purchase Agreement on which the Trust shall rely in acquiring the
Receivables. Unless otherwise indicated, such representations and warranties
shall speak as of the Closing Date, but shall survive the transfer and
assignment of the Receivables to the Trust and the pledge thereof to Indenture
Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. The Receivable has been fully and
properly executed by the parties thereto and (i) has been originated by a Dealer
in the ordinary course of such Dealer's business to finance the retail sale by a
Dealer of the related Financed Vehicle and has been purchased by M&I Bank,
Dealer Finance or their predecessors in interest in the ordinary course of their
business, (ii) was underwritten in accordance with M&I Bank's underwriting
standards, (iii) is secured by a valid, subsisting, binding and enforceable
first priority perfected security interest in favor of Dealer Finance or M&I
Bank in the Financed Vehicle (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), which security interest is assignable together with
such Receivable, and has been so assigned to Seller, and subsequently assigned
to the Trust pursuant to the Sale and Servicing Agreement, and pledged to
Indenture Trustee pursuant to the Indenture, (iv) contains customary and
enforceable provisions such that the rights and remedies of the holder thereof
are adequate for realization against the collateral of the benefits of the
security, (v) provided, at origination, for level monthly payments (provided
that the amount of the first or last payment may be minimally different and
provided further that the Receivable may contain an introductory period of up to
3 months in which no monthly payment is due), which fully amortize the Initial
Principal Balance over the original term, (vi) provides for interest at the
Contract Rate specified in the Schedule of Receivables, (vii) was originated in
the United States and (viii) constitutes "chattel paper" as defined in the UCC.
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(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Initial Cutoff Date (i) each Receivable is
secured by a Motor Vehicle; (ii) each Receivable has a Contract Rate of no less
than 2.90% and not more than 15.49%; (iii) each Receivable had an original term
to maturity of not more than 75 months and not less than 12 months and each
Receivable has a remaining term to maturity, as of the Initial Cutoff Date, of 6
months or more; (iv) each Receivable had an Initial Principal Balance less than
or equal to $106,657.31; (v) each Receivable has a Cutoff Date Principal Balance
of greater than or equal to $500; (vi) no Receivable has a scheduled maturity
date later than November 20, 2009; (vii) no Receivable was more than 29 days
past due as of the Cutoff Date; (viii) no Financed Vehicle was noted in the
related records of M&I Bank as being the subject of any pending bankruptcy or
insolvency proceeding as of the Initial Cutoff Date; (ix) no Receivable is
subject to a force placed Physical Damage Insurance Policy on the related
Financed Vehicle; (x) each Receivable is a Simple Interest Receivable; and (xi)
the Dealer of the Financed Vehicle has no participation in, or other right to
receive, any proceeds of such Receivable. The Receivables were selected using
selection procedures that were not intended by M&I Bank or Dealer Finance to be
adverse to the Seller.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables delivered on the Closing
Date, including (without limitation) the account number, the Cutoff Date
Principal Balance, the maturity date and the Contract Rate, was true and correct
in all material respects as of the close of business on the Cutoff Date.
(d) Compliance with Law. 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 Reporting Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Fair Debt Collection
Practices Act, Federal Reserve Board Regulations B and Z and any other consumer
credit, consumer protection, equal opportunity and disclosure laws.
(e) Binding Obligation. The Receivable constitutes the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable in
all material respects by the holder thereof in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally, and the
Receivable is not subject to any right of rescission, setoff, counterclaim or
defense, including the defense of usury.
(f) Lien in Force. The Receivable has not been satisfied, subordinated or
rescinded and M&I Bank or Dealer Finance has not taken any action which would
have the effect of releasing the related Financed Vehicle from the Lien granted
by the Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of the Receivable has
been amended, waived, altered or modified in any respect, except such waivers as
would be permitted under the Sale and Servicing Agreement and as are reflected
in the Receivable File, and no
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amendment, waiver, alteration or modification causes such Receivable not to
conform to the other representations or warranties contained in this Section
3.1.
(h) No Liens. There are no Liens or claims, including Liens for work,
labor, materials or unpaid state or federal taxes, relating to the Financed
Vehicle securing the Receivable, that are or may be prior to or equal to the
Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing for a period
of less than 30 days as of the Initial Cutoff Date, no default, breach,
violation or event permitting acceleration under the terms of the 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 the Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure the Financed
Vehicle under a Physical Damage Insurance Policy, pay the premiums for such
insurance and keep such insurance in full force and effect.
(k) Good Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Trust and that the beneficial interest in and title to the
Receivables not be part of the Seller's estate in the event of the filing of a
bankruptcy petition or insolvency proceeding by or against the Seller under any
bankruptcy or insolvency law. No Receivable has been sold, transferred,
assigned, or pledged (i) by M&I Bank to any other Person other than Northwoods
or the Seller, (ii) by Northwoods to any other person other than Bank One (as
agent on behalf of PREFCO) or the Seller, (iii) by Bank One (as agent on behalf
of PREFCO) to any other person other than the Seller, and (iv) by the Seller to
any Person other than the Trust. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good and marketable title to the
Receivable free and clear of any Lien and had full right and power to transfer
and assign the Receivable to the Trust and 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 Lien; and the Trust's
interest in the Receivable resulting from the transfer has been perfected under
the UCC. All filings (including UCC filings) necessary in any jurisdiction, to
give the Trust a first priority perfected ownership interest in the Receivables,
and to give Indenture Trustee a first priority perfected security interest
therein, shall have been filed by the Servicer in the appropriate filing offices
with a copy to the Indenture Trustee of such filing. Upon such filing by the
Servicer, the Indenture Trustee will have a first priority perfected security
interest in the Receivables.
(l) Obligations. M&I Bank has duly fulfilled all material obligations on
its part to be fulfilled under, or in connection with, the Receivable.
(m) Possession. There is only one original executed Receivable, and
immediately prior to the Closing Date, M&I Bank or one of its Affiliates will
have possession of such original executed Receivable.
(n) 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
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subdivision or instrumentality of the United States of America or any state
thereof or any local government.
(o) Marking Records. By the Closing Date, M&I Bank shall have caused the
portions of M&I Bank's electronic master record of Motor Vehicle Loans relating
to the Receivables to be clearly and unambiguously marked to show that the
Receivable is owned by the Trust in accordance with the terms of this Agreement.
(p) No Assignment. As of the Closing Date, neither M&I Bank nor any of its
Affiliates shall 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 or Dealer Agreements, or payments due under the Receivable,
that is senior to, or equal with, that of the Trust.
(q) Lawful Assignment. The Receivable has not been originated in, and is
not subject to the laws of, any jurisdiction under which the sale, transfer or
assignment of such Receivable hereunder or pursuant to transfers of the Notes or
Certificates are unlawful, void or voidable. Neither M&I Bank nor any of its
Affiliates has entered into any agreement with any Obligor that prohibits,
restricts or conditions the assignment of any portion of the Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Receivable is in effect
whereby the Dealer warrants title to the Motor Vehicle and indemnifies Dealer
Finance and its assigns against the unenforceability of each Receivable sold
thereunder, and the rights of Dealer Finance thereunder, with regard to the
Receivable sold hereunder, have been validly assigned to and are enforceable
against the Dealer by the Seller, along with any Dealer Recourse.
(s) Composition of Receivable. No Receivable has a Principal Balance which
includes capitalized interest, late charges or amounts attributable to the
payment of the premium for any Physical Damage Insurance Policy.
(t) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section 4.9(b) of this
Agreement is accurate and complete in all material respects.
(u) No Bankruptcies. No Obligor on any Receivable was noted in the related
Receivable File as having filed for bankruptcy in a proceeding which remained
undischarged as of the Initial Cutoff Date.
(v) Amounts. The Original Pool Balance was $692,552,156.94.
(w) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Initial Cutoff Date: (i)
approximately 49.73% of the Original Pool Balance was attributable to loans for
purchases of new Financed Vehicles, and approximately 50.27% of the Original
Pool Balance was attributable to loans for purchases of used Financed Vehicles;
(ii) approximately 31.5% of the Original Pool Balance was attributable to
Receivables the mailing addresses of the Obligors with respect to which are
located in the State of Minnesota, 46.4% of the Original Pool Balance was
attributable to Receivables the mailing addresses of the Obligors with respect
to which are located in the State of Wisconsin and no other state accounts for
more than 10% of the Original Pool Balance; (iii) the weighted average Contract
Rate of the
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Receivables was 5.482%; (iv) there are 44,193 Receivables being conveyed by M&I
Bank to the Trust; (v) the average Cutoff Date Principal Balance of the
Receivables was $692,552,156.94; (vi) the weighted average original term and
weighted average remaining term of the Receivables were 60.42 months and 54.17
months, respectively; and (vii) 100 % of the Receivables have their next
scheduled payment date in either [October 2003, November 2003, December 2003,
January 2004 or February 2004.] (other than those loans whose last payment was
no more than $20 short of the scheduled payment and that payment, in accordance
with the Servicer's normal procedures, is not considered past due with regards
to that scheduled payment and other than those Receivables that have been paid
ahead as of the Initial Cutoff Date).
(x) Perfection Representations. The Perfection Representations shall be a
part of this Agreement.
SECTION 3.2. Representations and Warranties as to Each Subsequent
Receivable on the Related Funding Date. Servicer shall make the representations
and warranties on each Funding Date as to each Subsequent Receivable conveyed by
it to the Seller pursuant to the Purchase Agreement on which the Trust shall
rely in acquiring the Subsequent Receivables in the form of Exhibit B attached
hereto. Unless otherwise indicated, such representations and warranties shall
speak as of the related Funding Date, but shall survive the transfer and
assignment of the Subsequent Receivables to the Trust and the pledge thereof to
Indenture Trustee pursuant to the Indenture.
SECTION 3.3. Purchase by Servicer upon Breach of Representation or
Warranty. Seller, Servicer, Indenture Trustee or the Trust, as the case may be,
shall inform the other parties to this Agreement promptly, in writing, upon the
discovery (or, with respect to the Indenture Trustee or the Trust, upon actual
knowledge of a Responsible Officer) of any breach or failure to be true of the
representations or warranties made by the Servicer in Section 3.1 and 3.2;
provided that such breach or failure materially and adversely affects the
interests of the Trust and the Holders in any Receivables; and provided further
that the failure to give such notice shall not affect any obligation of the
Servicer. If the breach or failure shall not have been cured by the last day of
the Collection Period which includes the 60th day (or if the Servicer elects,
the 30th day) after the date on which Servicer becomes aware of, or receives
written notice from the Trust or Indenture Trustee of, such breach or failure,
and such breach or failure materially and adversely affects the interests of the
Trust and the Holders in any Receivable, the Servicer shall purchase each such
affected Receivable from the Trust as of such last day of such Collection Period
at a purchase price equal to the Purchase Amount for such Receivable as of such
last day of such Collection Period, which amount shall be deposited in the
Collection Account. Notwithstanding the foregoing, any such breach or failure
with respect to the representations and warranties contained in Section 3.1 will
not be deemed to have such a material and adverse effect with respect to a
Receivable if the facts resulting in such breach or failure do not affect the
ability of the Trust to receive and retain payment in full on such Receivable.
In consideration of the purchase of a Receivable hereunder, the Servicer shall
remit the Purchase Amount of such Receivable, no later than the close of
business on the next Deposit Date, in the manner specified in Section 5.4. The
sole remedy (except as provided in Section 7.2 of this Agreement) of the Trust,
the Indenture Trustee or the Holders with respect to a breach or failure to be
true of the representations or warranties made by Servicer pursuant to Section
3.1 shall be to require the Servicer to purchase Receivables pursuant to this
Section 3.3; provided that this Section 3.3 shall
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not limit the right of the Servicer, the Trust or Indenture Trustee to enforce
(or to cause Seller to enforce) the obligation of M&I Bank pursuant to the
Purchase Agreement.
With respect to all Receivables purchased pursuant to this Section 3.3, the
Trust shall assign to the Servicer without recourse, representation or warranty
all of the Trust's right, title and interest in and to such Receivables and all
security and documents, relating thereto.
SECTION 3.4. Custodian of Receivable Files. (a) Custody. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trust, upon the execution and delivery of this Agreement, revocably appoints
Custodian, as agent, and Custodian accepts such appointment, to act as agent on
behalf of the Trust to maintain custody of the following documents or
instruments, which are hereby constructively delivered to the Trust with respect
to each Receivable (collectively, a "Receivable File"):
(i) the fully executed original Receivable;
(ii) the original credit application, fully executed by the Obligor
or a photocopy thereof, or a record thereof on a computer file, diskette or
on microfiche;
(iii) the original certificate of title or confirmation of security
interest, or such other documents as M&I Bank or its Affiliates keeps on
file, in accordance with its customary procedures, evidencing the security
interest of M&I Bank or Dealer Finance in the Financed Vehicle;
(iv) originals or true copies of all documents, instruments or
writings relating to extensions, amendments or waivers of the Receivable or
a photocopy thereof, or a record thereof on a computer file, diskette or on
microfiche; and
(v) any and all other documents or electronic records that M&I Bank
or its Affiliates, keep on file, in accordance with their customary
procedures, relating to the Receivable, any Insurance Policies, the Obligor
or the Financed Vehicle.
(b) Safekeeping. Servicer, in its capacity as Custodian, shall hold the
Receivable Files as agent on behalf of the Trust and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable as
shall enable Servicer and the Trust to comply with the terms and provisions of
this Agreement applicable to them. In performing its duties as Custodian
hereunder, Custodian shall act with reasonable care, exercising the degree of
skill, attention and care that Custodian exercises with respect to receivable
files relating to other similar motor vehicle loans owned and/or serviced by
Custodian and that is consistent with industry standards. In accordance with its
customary practice with respect to its retail installment sale contracts,
Custodian shall conduct, or cause to be conducted, periodic audits of the
Receivable Files held by it under this Agreement, and of the related accounts,
records, and computer systems, and shall maintain the Receivable Files in such a
manner as shall enable the Trust and the Indenture Trustee to verify, if the
Trust or the Indenture Trustee so elects, the accuracy of the record keeping of
Custodian. Custodian shall promptly report to the Trust 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. Custodian hereby acknowledges receipt of the Receivable File for
each Receivable listed on the
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Schedule of Receivables. Nothing herein shall be deemed to require the Trust,
the Owner Trustee or Indenture Trustee to verify the accuracy of the record
keeping of the Custodian.
(c) Maintenance of and Access to Records. Custodian shall maintain each
Receivable File at the location specified in Schedule B to this Agreement, or at
such other office of Custodian within the United States (or, in the case of any
successor Custodian, within the State in which its principal place of business
is located) as shall be specified to the Trust by 30 days' prior written notice.
Custodian shall make available to the Trust, Indenture Trustee and their
respective agents (or, when requested in writing by the Trust or Indenture
Trustee, their respective attorneys or auditors) the Receivable Files and the
related accounts, records and computer systems maintained by Custodian at such
times as the Trust or Indenture Trustee shall instruct for purposes of
inspecting, auditing or making copies of abstracts of the same, but only upon
reasonable notice and during the normal business hours at the respective offices
of Custodian.
(d) Release of Documents. Upon written instructions from Indenture Trustee
(or, if no Notes are then Outstanding, the Trust), Custodian shall release any
document in the Receivable Files to Indenture Trustee or the Trust or its
respective agent or designee, as the case may be, at such place or places as
Indenture Trustee or the Trust may designate, as soon thereafter as is
practicable. Any document so released shall be handled by Indenture Trustee or
the Trust with due care and returned to Custodian for safekeeping as soon as
Indenture Trustee or the Trust or its respective agent or designee, as the case
may be, shall have no further need therefor.
(e) Title to Receivables. Custodian agrees that, in respect of any
Receivable File held by Custodian hereunder, Custodian will not at any time have
or in any way attempt to assert any interest in such Receivable File or the
related Receivable, 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.
(f) Instructions; Authority to Act. Custodian 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 Indenture
Trustee or the Trust, as applicable. A certified copy of excerpts of certain
resolutions of the Board of Directors of Indenture Trustee or the Trust, as
applicable, 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 Custodian of written notice to the contrary given by Indenture
Trustee or the Trust, as applicable.
(g) Custodian's Indemnification. Subject to Section 10.5, Custodian shall
indemnify and hold harmless the Trust, the Owner Trustee (individually and in
such capacity) and Indenture Trustee (individually and in such capacity), and
each of their respective officers, directors, employees and agents and the
Holders from and against any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses (including reasonable legal
fees and expenses if any) of any kind whatsoever that may be imposed on,
incurred or asserted against the Trust, the Owner Trustee , Indenture Trustee or
the Holders as the result of any act or omission of Custodian relating to the
maintenance and custody of the Receivable Files; provided that
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Custodian shall not be liable hereunder to the Trust, the Owner Trustee or
Indenture Trustee 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 Trust, the Owner Trustee or
Indenture Trustee, as the case may be. Indemnification under this subsection (g)
shall survive termination of this Agreement and the resignation or removal of
Owner Trustee or Indenture Trustee, as the case may be. If Custodian shall have
made any indemnity payments to the Trust or Indenture Trustee pursuant to this
Section 3.4 and the Trust, the Owner Trustee or Indenture Trustee thereafter
shall collect any of such amounts from Persons other than Custodian, the Trust,
the Owner Trustee or Indenture Trustee, as the case may be, shall, as soon as
practicable following such receipt thereof, repay such amounts to Custodian,
without interest.
(h) Effective Period and Termination. 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 subsection (h). If Servicer shall
resign as Servicer in accordance with Section 7.5 or if all of the rights and
obligations of Servicer shall have been terminated under Section 8.1, the
appointment of Servicer as Custodian hereunder may be terminated by the Trust or
Indenture Trustee or by the Holders of Notes evidencing not less than 25% of the
aggregate Outstanding Amount of the Notes of the Controlling Note Class (or, if
no Notes are then Outstanding, the Holders of Certificates representing not less
than 50% of the Certificate Percentage Interests), in each case in the same
manner as the Trust or Indenture Trustee or such Holders may terminate the
rights and obligations of Servicer under Section 8.1. As soon as practicable
after any termination of such appointment Servicer shall deliver, or cause to be
delivered, the Receivable Files to Indenture Trustee or the Trust, as
applicable, or its respective agent or designee at such place or places as
Indenture Trustee or the Trust, as applicable, may reasonably designate.
Notwithstanding any termination of Servicer as Custodian hereunder (other than
in connection with a termination resulting from the termination of Servicer, as
such, pursuant to Section 8.1), from and after the date of such termination, and
for so long as Servicer is acting as such pursuant to this Agreement, Indenture
Trustee shall provide, or cause the successor Custodian to provide, access to
the Receivable Files to Servicer, at such times as Servicer shall reasonably
request, for the purpose of carrying out its duties and responsibilities with
respect to the servicing of the Receivables hereunder.
(i) Delegation. Custodian may, at any time without notice or consent,
delegate any or all of its duties under the Basic Documents to any Affiliate;
provided that no such delegation shall relieve Custodian of its responsibility
with respect to such duties and Custodian shall remain obligated and liable to
the Trust and the Holders for its duties hereunder as if Custodian alone were
performing such duties.
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.
SECTION 4.1. Duties of Servicer. (a) Servicer is hereby authorized to act
as agent for the Trust and in such capacity shall manage, service, administer
and make collections on the Receivables (other than Purchased Receivables), and
perform the other actions required by Servicer under this Agreement, with
reasonable care. Without limiting the standard set forth in the preceding
sentence, Servicer shall use a degree of skill, attention and care that is not
less than Servicer exercises with respect to comparable Motor Vehicle Loans that
it services for itself or others and that is consistent with prudent industry
standards. Servicer's duties shall include the
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collection and posting of all payments, responding to inquiries by Obligors on
the Receivables, or by federal, state or local governmental authorities,
investigating delinquencies, sending payment coupons or monthly invoices to
Obligors, reporting required tax information to Obligors, accounting for
Collections, furnishing monthly and annual statements to the Trust and Indenture
Trustee with respect to distributions, providing collection and repossession
services in the event of Obligor default and performing the other duties
specified herein.
Without limiting the generality of the foregoing, Servicer is hereby
authorized and empowered by the Trust to execute and deliver, on behalf of
itself, Indenture Trustee, the Trust and the Holders, 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 Receivables or to the
Financed Vehicles, all in accordance with this Agreement; provided that
notwithstanding the foregoing, 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 of any Receivable from the Obligor, except in connection with a de
minimis deficiency which Servicer would not attempt to collect in accordance
with its customary procedures. If Servicer shall commence a legal proceeding to
enforce a Receivable, the Trust shall thereupon be deemed to have automatically
assigned such Receivable to Servicer, which assignment shall be solely for
purposes of collection. The Trust shall furnish Servicer with any powers of
attorney and other documents or instruments necessary or appropriate to enable
Servicer to carry out its servicing and administrative duties hereunder.
(b) Servicer may, at any time without notice or consent, delegate (i) any
or all duties under this Agreement to any Person that is an Affiliate of the
Servicer, so long as M&I Bank acts as Servicer, or (ii) specific duties to
sub-contractors who are in the business of performing such duties; provided that
no such delegation shall relieve Servicer of its responsibility with respect to
such duties and Servicer shall remain obligated and liable to the Indenture
Trustee, the Trust and the Holders for servicing and administering the
Receivables in accordance with this Agreement as if Servicer alone were
performing such duties.
(c) The Servicer shall pay the Administrator the fee pursuant to the
Administration Agreement.
(d) To the extent any documents are required to be filed with respect to
the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002, the Seller shall prepare
and execute any such documents and is authorized to file such documents on
behalf of the Trust and the Indenture Trustee shall make such filings on behalf
of the Seller.
SECTION 4.2. Collection of Receivable Payments. (a) 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 Physical Damage Insurance
Policies, the Dealer Agreements and related property in such manner as will, in
the reasonable judgment of Servicer, maximize the amount to be received by the
Trust with respect thereto, in accordance with the standard of care required by
Section 4.1. Servicer shall be entitled to grant extensions, rebates or
adjustments on a Receivable, or amend or modify any Receivable in accordance
with its customary procedures if Servicer believes in good faith that
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such amendment or modification is in the Trust's best interests; provided that
Servicer may not, unless ordered by a court of competent jurisdiction or
otherwise required by applicable law, (i) extend a Receivable beyond February
17, 2011 or (ii) reduce the Principal Balance or Contract Rate of any
Receivable. If Servicer fails to comply with the provisions of the preceding
sentence, Servicer shall be required to purchase the Receivable or Receivables
affected thereby, for the Purchase Amount, in the manner specified in Section
4.7 as of the last day of the Collection Period in which such failure occurs.
Servicer may, in accordance with its customary standards, policies and
procedures, (i) waive any prepayment charge, late payment charge, extension fee
or any other fee that may be collected in the ordinary course of servicing a
Receivable and (ii) treat a partial scheduled payment as being a full scheduled
payment in the ordinary course of servicing a Receivable.
(b) If in the course of collecting payments under the Receivables,
Servicer determines to set off any obligation of Servicer to an Obligor against
an amount payable by the Obligor with respect to such Receivable, Servicer shall
deposit the amount so set off in the Collection Account, no later than the close
of business on the Deposit Date for the Collection Period in which the set-off
occurs. All references herein to payments or Liquidation Proceeds collected by
Servicer shall include amounts set-off by Servicer.
SECTION 4.3. Realization upon Receivables. On behalf of the Trust, Servicer
shall charge off a Receivable in accordance with its customary standards (and,
in no event later than 150 days after a Receivable shall have become delinquent)
and shall use reasonable efforts, consistent with its customary standards, to
repossess and liquidate the Financed Vehicle securing any Defaulted Receivable
as soon as feasible after such Receivable becomes a Defaulted Receivable, in
accordance with the standard of care required by Section 4.1. In taking such
action, Servicer shall follow such customary and usual practices and procedures
as it shall deem necessary or advisable in its servicing of Motor Vehicle Loans,
and as are otherwise consistent with the standard of care required under Section
4.1, which shall include exercising any rights under the Dealer Agreements and
selling the Financed Vehicle at public or private sale. 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 or pursuing
any deficiency claim against the related Obligor, but only out of the cash
proceeds of such Financed Vehicle or any deficiency obtained from the Obligor.
The foregoing shall be subject to the provision that, in any case in which a
Financed Vehicle shall have suffered damage, Servicer, consistent with its
customary servicing procedures, shall not expend funds in connection with the
repair or the repossession of such Financed Vehicle unless it shall determine,
consistent with its customary servicing procedures, that such repair and/or
repossession will increase the Liquidation Proceeds of the related Receivable by
an amount equal to or greater than the amount of such expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic assignment
from the Trust to Servicer of the rights under such Dealer Agreement. If,
however, in any enforcement suit or legal proceeding, it is held that Servicer
may not enforce a Dealer Agreement on the grounds that it is not a real party in
interest or a Person entitled to enforce the Dealer Agreement, the Trust and the
Indenture Trustee, subject to the Indenture, at Servicer's expense, shall take
such steps as Servicer deems necessary to enforce the Dealer Agreement,
including bringing suit in the name of the Trust or Indenture Trustee.
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SECTION 4.4. Physical Damage Insurance. (a) The Receivables require that
each Financed Vehicle be insured under a Physical Damage Insurance Policy. If
Servicer receives notice that an Obligor has failed to obtain or maintain a
Physical Damage Insurance Policy covering the related Financed Vehicle, Servicer
shall use reasonable efforts in accordance with its customary servicing
procedures to enforce the rights of the holder of the Receivable under the
Receivable to require the Obligor to obtain such physical damage insurance,
provided that Servicer shall not be required to take such actions if there is in
place a lender's single interest policy with respect to the related Financed
Vehicle that complies with Servicer's customary requirements. It is understood
that Servicer will not "force-place" any Physical Damage Insurance Policy on any
Financed Vehicle.
(b) Servicer may xxx to enforce or collect upon the Physical Damage
Insurance Policies, in its own name, if possible, or as agent for the Trust. If
Servicer elects to commence a legal proceeding to enforce a Physical Damage
Insurance Policy, the act of commencement shall be deemed to be an automatic
assignment of the rights of the Trust under such Physical Damage Insurance
Policy to Servicer for purposes of collection only. If, however, in any
enforcement suit or legal proceeding it is held that Servicer may not enforce a
Physical Damage Insurance Policy on the grounds that it is not a real party in
interest or a holder entitled to enforce the Physical Damage Insurance Policy,
the Trust and the Indenture Trustee, subject to the Indenture, at Servicer's
expense and written direction, shall take such steps as Servicer deems necessary
to enforce such Physical Damage Insurance Policy, including bringing suit in the
Trust's name or the name of the Indenture Trustee. Servicer shall make all
claims and enforce its rights under any lender's single interest insurance
policy (to the extent such claims or rights relate to Receivables) for the
benefit of the Trust and shall treat as Collections all related proceeds of such
policies.
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section 4.1,
shall take such reasonable steps as are necessary and as are consistent with its
customary business practices to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle for the benefit of
the Trust and the Indenture Trustee. The Trust hereby authorizes Servicer, and
Servicer hereby agrees, to take such reasonable steps as are necessary and as
are consistent with its customary business practices to re-perfect such security
interest on behalf of the Trust in the event Servicer receives notice of the
relocation of a Financed Vehicle.
SECTION 4.6. Covenants of Servicer. Servicer makes the following covenants
on which the Trust relies in acquiring the Receivables:
(a) Security Interest to Remain in Force. Servicer shall not release any
Financed Vehicle from the security interest granted by the related Receivable in
whole or in part, except upon payment in full of the Receivable or as otherwise
contemplated herein.
(b) No Impairment. Servicer shall not impair in any material respect the
rights of the Trust or the Holders in the Receivables, the Dealer Agreements or
the Physical Damage Insurance Policies or, subject to clause (c) below,
otherwise amend or alter the terms thereof if, as a result of such amendment or
alteration, the interests of the Trust and the Holders hereunder would be
materially adversely affected.
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(c) Amendments. Servicer shall not amend or otherwise modify any
Receivable (including the grant of any extension thereunder), except in
accordance with Section 4.2.
SECTION 4.7. Purchase by Servicer upon Breach of Covenant. Seller,
Servicer, Indenture Trustee or the Trust, as the case may be, shall inform the
other parties promptly, in writing, upon the discovery (or, in the case of the
Indenture Trustee or the Trust, upon actual knowledge of a Responsible Officer)
of any breach by Servicer of its covenants under Section 4.5 or 4.6; provided
that the failure to give such notice shall not affect any obligation of
Servicer. Unless the breach shall have been cured by the last day of the
Collection Period which includes the 60th day (or the 30th day, if Servicer so
elects) after the date on which Servicer becomes aware of, or receives written
notice of, such breach, and such breach materially and adversely affects the
interests of the Trust and the Holders in any Receivable, Servicer shall
purchase such Receivable from the Trust as of the last day of the Collection
Period at a purchase price equal to the Purchase Amount for such Receivable as
of the last day of such Collection Period, which amount shall be deposited in
the Collection Account; provided that in the case of a breach of the covenant
contained in Section 4.6(c), Servicer shall be obligated to purchase the
affected Receivable or Receivables on the Business Day preceding the Deposit
Date immediately succeeding the Collection Period during which Servicer becomes
aware of, or receives written notice of, such breach. In consideration of the
purchase of a Receivable hereunder, Servicer shall remit the Purchase Amount of
such Receivable in the manner specified in Section 5.4. The sole remedy (except
as provided in Section 7.2) of the Trust, Owner Trustee, Indenture Trustee or
the Holders against Servicer with respect to a breach pursuant to Section 4.5 or
4.6 shall be to require Servicer to purchase Receivables pursuant to this
Section 4.7.
With respect to all Receivables purchase pursuant to this Section 4.7, the
Trust shall assign to Servicer, without recourse, representation or warranty,
all of the Trust's right, title and interest in and to such Receivables and all
security and documents relating thereto.
SECTION 4.8. Servicing Fee. The servicing fee for each Payment Date shall
equal the sum of (1) the product of one-twelfth of the Servicing Rate and the
Pool Balance as of the first day of the Collection Period or as of the Initial
Cutoff Date in the case of the initial Collection Period and (2) with respect to
any pool of Subsequent Receivables sold to the Trust on any Funding Date during
the related Collection Period, the product of (x) the aggregate Principal
Balance of the applicable Subsequent Receivables as of the related Subsequent
Cutoff Date, (y) the Servicing Fee Rate, and (z) the actual number of days from
the related Subsequent Cutoff Date to the end of the related Collection Period,
divided by 360 (the "Servicing Fee"). Servicer shall also be entitled to retain
any extension fees and certain non-sufficient funds charges and other
administrative fees or similar charges allowed by applicable law with respect to
Receivables collected (from whatever source) on the Receivables (the
"Supplemental Servicing Fee"). It is understood and agreed that Available
Collections shall not include any amounts retained by Servicer which constitute
Supplemental Servicing Fees. The Servicing Fee in respect of a Collection Period
(together with any portion of the Servicing Fee that remains unpaid from prior
Payment Dates), if the Rating Agency Condition is satisfied, may be paid at the
beginning of such Collection Period out of Collections for such Collection
Period.
SECTION 4.9. Servicer's Report. (a) Before 10:00 a.m. (Central time), on
each Determination Date, Servicer shall deliver to the Trust, Indenture Trustee,
each Paying Agent
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and Seller, with a copy to the Rating Agencies, a Servicer's Report
substantially in the form of Exhibit A, containing all information necessary to
make the transfers and distributions pursuant to Sections 5.4 and 5.5 (including
amounts required to be transferred from the Reserve Account to the Collection
Account) for the Collection Period preceding the date of such Servicer's Report
together with all information necessary for the Trust to send statements to
Certificateholders pursuant to Section 5.6 and Indenture Trustee to send copies
of statements received by the Indenture Trustee to Noteholders pursuant to the
Indenture and Section 5.6 of this Agreement. Receivables to be purchased by the
Servicer shall be identified by Servicer by account number with respect to such
Receivable (as specified in the Schedule of Receivables).
(b) Servicer shall provide Indenture Trustee with a database file for the
Receivables at or prior to the Closing Date and on each Funding Date (but with
information as of the close of business on the Initial Cutoff Date and each
related Subsequent Cutoff Date).
SECTION 4.10. Annual Statement as to Compliance; Notice of Default. (a)
Servicer shall deliver to the Trust, Indenture Trustee and each Rating Agency,
on or before March 31 of each year beginning on March 31, 2004, an Officer's
Certificate, dated as of December 31 of the preceding year, stating that (i) a
review of the activities of Servicer during the preceding 12-month period (or,
in the case of the first such report, during the period from the Closing Date to
December 31, 2003) and of its performance under this Agreement has been made
under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, Servicer has fulfilled all its obligations in
all material respects under this Agreement throughout such year or, if there
exists any uncured default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. A
copy of such certificate and the report referred to in Section 4.11 may be
obtained by any Noteholder by a request in writing to Indenture Trustee
addressed to the Corporate Trust Office.
(b) Servicer shall deliver to the Trust, Indenture Trustee and the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event
later than five (5) Business Days thereafter, written notice in an Officer's
Certificate of any event which constitutes, or with the giving of notice or
lapse of time, or both, would become a Servicer Termination Event under Section
8.1.
SECTION 4.11. Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants (who may
also render other services to the Servicer or Seller and their Affiliates) to
deliver to the Seller, the Trust, Indenture Trustee and each Rating Agency on or
before March 31 of each year beginning on March 31, 2004, a report to the effect
that, as to objectively determinable matters, such firm has examined the
Servicer's assertion that it has fulfilled its obligations in all material
respects under this Agreement for the twelve months ended December 31 of the
preceding year (or, in the case of the first such certificate, from the Closing
Date until December 31, 2003) set forth in the Officer's Certificate delivered
pursuant to Section 4.10(a), and that (1) such examination was made in
accordance with attestation standards established by the American Institute of
Certified Public Accountants and, accordingly, included examining, on a test
basis, evidence about the Servicer's compliance with those requirements and
performing such other procedures as such accountants considered necessary in the
circumstances, (2) except as described in the report, the assertions in the
Officer's Certificate are, as to objectively determinable matters, fairly stated
in
16
all material respects and (3) that the firm is independent of Servicer within
the meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants.
In the event such firm requires the Indenture Trustee or the Trust to agree
to the procedures performed by such firm, Servicer shall direct the Indenture
Trustee or the Trust, as the case may be, in writing to so agree; it being
understood and agreed that the Indenture Trustee or the Trust, as the case may
be, will deliver such letter of agreement in conclusive reliance upon the
direction of Servicer, and the Indenture Trustee or the Trust, as the case may
be, need not make any 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 4.12. Access to Certain Documentation and Information Regarding
Receivables. Servicer shall provide to the Trust, Indenture Trustee,
Certificateholders, Noteholders, Bank Regulatory Authorities, and the
supervisory agents and examiners of Bank Regulatory Authorities access to the
Receivable Files, as to the latter in such cases where the Certificateholders,
Noteholders or Bank Regulatory Authorities shall be required by applicable
statutes or regulations to review such documentation as demonstrated by evidence
satisfactory to Servicer in its reasonable judgment. Access shall be afforded
without charge, but only upon reasonable request and during the normal business
hours at the respective offices of Servicer. Nothing in this Section 4.12 shall
affect the obligation of Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure of Servicer to
provide access to information as a result of such obligation shall not
constitute a breach of this Section 4.12. Any Holder, by its acceptance of a
Certificate or Note, as applicable, shall be deemed to have agreed to keep any
information obtained by it pursuant to this Section 4.12 confidential and not to
use such information for any other purpose, except as required by applicable
law.
SECTION 4.13. Reports to the Rating Agencies. Servicer shall deliver to
each Rating Agency 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 any other information reasonably requested
by such Rating Agency to monitor this transaction.
SECTION 4.14. Servicer Expenses. Except as otherwise provided herein,
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder, including fees and disbursements of the Owner Trustee,
Indenture Trustee, independent accountants, taxes imposed on Servicer and
expenses incurred in connection with distributions and reports to
Certificateholders and Noteholders.
ARTICLE V. DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
AND NOTEHOLDERS; ADVANCES.
SECTION 5.1. Establishment of Accounts. (a) Servicer shall cause to be
established:
(i) For the benefit of the Noteholders and the Certificateholders,
in the name of Indenture Trustee, an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of
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the Noteholders and the Certificateholders, which Eligible Deposit Account
shall be established by and maintained with the Indenture Trustee or its
designee.
(ii) For the benefit of the Noteholders, in the name of Indenture
Trustee, an Eligible Deposit Account (the "Note Distribution Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Noteholders, which Eligible Deposit Account
shall be established by and maintained with the Indenture Trustee or its
designee.
(iii) For the benefit of the Noteholders, in the name of Indenture
Trustee, an Eligible Deposit Account (the "Interest Distribution Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Noteholders, which Eligible Deposit Account
shall be established by and maintained with the Indenture Trustee or its
designee.
(iv) For the benefit of the Noteholders, in the name of Indenture
Trustee, an Eligible Deposit Account (the "Principal Distribution
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders, which
Eligible Deposit Account shall be established by and maintained with the
Indenture Trustee or its designee.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Interest Distribution Account and the Principal Distribution
Account (collectively, the "Trust Accounts") shall be invested by Indenture
Trustee with respect to the Trust Accounts and by the Trust with respect to the
Certificate Distribution Account (or any custodian with respect to funds on
deposit in any such account) in Eligible Investments selected in writing by
Servicer and of which Servicer provides notification (pursuant to standing
instructions or otherwise); provided that it is understood and agreed that
neither Servicer, Indenture Trustee nor Owner Trustee shall be liable for any
loss arising from such investment in Eligible Investments. All such Eligible
Investments shall be held by or on behalf of Indenture Trustee for the benefit
of the Noteholders and the Certificateholders or by the Trust for the benefit of
Certificateholders, as applicable; provided that on each Payment Date all
interest and other investment income (net of losses and investment expenses) on
funds on deposit in the Trust Accounts shall be distributed to Servicer and
shall not be available to pay the distributions provided for in Section 5.5 and
shall not otherwise be subject to any claims or rights of Holders. Funds on
deposit in the Trust Accounts shall be invested in Eligible Investments that
will mature so that such funds will be available at the close of business on the
Business Day prior to the Deposit Date preceding the next Payment Date; provided
that with the approval of the Indenture Trustee, funds on deposit in the Trust
Accounts may be invested in Eligible Investments that mature on such Payment
Date except for investments specified under subparagraph (d) of "Eligible
Investments". No Eligible Investment shall be sold or otherwise disposed of
prior to its scheduled maturity unless a default occurs with respect to such
Eligible Investment and Servicer directs Indenture Trustee in writing to dispose
of such Eligible Investment. Funds deposited in the Trust Accounts or
Certificate Distribution Account by 10:00 a.m. (Central time) on a Deposit Date
shall be invested overnight.
(c) Indenture Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Trust Accounts and in all proceeds
thereof (excluding investment
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income thereon) and all such funds, investments and proceeds shall be part of
the Owner Trust Estate. Except as otherwise provided herein, the Trust Accounts
shall be under the sole dominion and control of Indenture Trustee for the
benefit of the Noteholders and the Certificateholders; provided, however, the
Indenture Trustee shall not be charged with any obligation for the benefit of
the Certificateholders except as provided by the terms of this Agreement. If, at
any time, any of the Trust Accounts or the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Servicer or the Trust, as
applicable, shall within 10 Business Days (or such longer period as to which
each Rating Agency may consent) establish a new Trust Account or Certificate
Distribution Account, as applicable, as an Eligible Deposit Account and shall
transfer any cash and/or any investments to such new Trust Account or new
Certificate Distribution Account, as applicable. In connection with the
foregoing, Servicer agrees that, in the event that the Collection Account is not
an account with Indenture Trustee or its designee, Servicer shall notify
Indenture Trustee in writing promptly upon the Collection Account ceasing to be
an Eligible Deposit Account.
(d) With respect to the Trust Account Property, Servicer and the Indenture
Trustee agree that:
(i) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts and, except as
otherwise provided herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of Indenture Trustee, and,
except as otherwise provided in the Basic Documents, Indenture Trustee and
its designee shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes Physical Property
shall be delivered to Indenture Trustee or its designee, in accordance with
paragraph (a) of the definition of "Delivery" and shall be held, pending
maturity or disposition, solely by Indenture Trustee or such designee;
(iii) any Trust Account Property that is an "uncertificated security"
under Article 8 of the UCC and that is not governed by clause (ii) above
shall be delivered to Indenture Trustee or its designee in accordance with
paragraph (c) of the definition of "Delivery" and shall be maintained by
Indenture Trustee or such designee, pending maturity or disposition,
through continued registration of Indenture Trustee's (or its designee's)
ownership of such security.
(iv) any Trust Account Property that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee or
its designee or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for Indenture Trustee or such
designee, pending maturity or disposition, through continued book-entry
registration of such Trust Account Property as described in such paragraph;
and
Effective upon Delivery of any Trust Account Property, Servicer shall be deemed
to have represented that it has purchased such Trust Account Property for value,
in good faith and without notice of any adverse claim thereto.
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SECTION 5.2. Collections. Servicer shall remit within two Business Days of
receipt thereof to the Collection Account all payments by or on behalf of the
Obligors with respect to the Receivables (other than any amounts constituting
Supplemental Servicing Fees) and all Liquidation Proceeds, both as collected
during the Collection Period. Notwithstanding the foregoing, if M&I Bank is the
Servicer and (i) shall have the Required Rating or (ii) Indenture Trustee
otherwise shall have received written notice from each of the Rating Agencies
that the then outstanding rating on the Notes would not be lowered, qualified or
withdrawn as a result, Servicer may deposit all amounts referred to above for
any Collection Period into the Collection Account not later than 11:00 a.m. (New
York time) on the Deposit Date with respect to such Collection Period; provided
that (i) if a Servicer Termination Event has occurred and is continuing, (ii)
Servicer has been terminated as such pursuant to Section 8.1 or (iii) Servicer
ceases to have the Required Rating, Servicer shall deposit such amounts
(including any amounts then being held by Servicer) into the Collection Account
as provided in the preceding sentence. For purposes of this Article V the phrase
"payments by or on behalf of Obligors" shall mean payments made with respect to
the Receivables by Persons other than Servicer or any Affiliate.
SECTION 5.3. Pre-Funding Account. (a) On or before the Closing Date
pursuant to Section 8.7 of the Indenture, the Trust shall establish or cause to
be established in the name of the Indenture Trustee, as secured party of and
Trustee on behalf of the Noteholders and Certificateholders, an Eligible Deposit
Account (the "Pre-Funding Account"). The Pre-Funding Account and any amounts
therein shall be pledged to the Indenture Trustee and held for the benefit of
the Noteholders and Certificateholders. The Pre-Funding Account shall be
established by and maintained with the Indenture Trustee or its designee (the
"Securities Intermediary").
(b) On the Closing Date, the Seller shall purchase investments meeting the
requirements of subparagraph (c) of the definition of Eligible Investments and
having a principal amount on the Closing Date equal to the Pre-Funding Amount
(the "Initial Pre-Funding Deposit") and shall transfer the Initial Pre-Funding
Deposit to the Trust. Immediately upon receipt of the Initial Pre-Funding
Deposit on the Closing Date, the Trust shall deliver the Initial Pre-Funding
Deposit to the Indenture Trustee and the Indenture Trustee shall deposit the
Initial Pre-Funding Deposit into the Pre-Funding Account.
SECTION 5.4. Additional Deposits. Servicer shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amounts with respect
to Purchased Receivables and Servicer shall deposit therein all amounts, if any,
to be paid under Section 9.1. All such deposits shall be made not later than the
11:00 a.m. (New York time) on the Deposit Date following the end of the related
Collection Period.
SECTION 5.5. Distributions. (a) On or before 11:00 a.m. (New York time) on
the Deposit Date related to each Payment Date, Servicer shall instruct Indenture
Trustee in writing (based solely on the information contained in the Servicer's
Report delivered on the related Determination Date pursuant to Section 4.9) (i)
to withdraw from the Reserve Account and deposit in the Collection Account, and
Indenture Trustee shall so withdraw and deposit in the Collection Account by
11:00 a.m. (New York time) on such Deposit Date, the Reserve Account Excess
Amount, if any, and the Reserve Account Transfer Amount, if any, for such
Payment Date (ii) to withdraw from the Pre-Funding Account and deposit in the
Collection Account, and the Indenture Trustee shall so withdraw and deposit in
the Collection Account by 11:00 (New
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York time) on such Deposit Date, the investment income and earnings accrued on
Funds in the Pre-Funding Account during the related Collection Period..
(b) On or before each Payment Date, the Indenture Trustee shall transfer
from the Collection Account to the Servicer, in immediately available funds,
reimbursement of Outstanding Simple Interest Advances made pursuant to Section
5.9.
(c) Subject to the last paragraph of this Section 5.5(c), on or before
11:00 a.m. (New York time) on the Deposit Date related to each Payment Date,
Servicer shall instruct Indenture Trustee in writing (based solely on the
information contained in the Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9) to make, and Indenture Trustee shall
withdraw from the Collection Account and deposit in the Note Distribution
Account and then make, the following deposits, distributions and payments from
the Note Distribution Account by 11:00 a.m. (New York time) on such Payment
Date, to the extent of the Total Distribution Amount in the following order of
priority:
(i) first, to the Servicer, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods;
(ii) second, to the Interest Distribution Account, the Accrued Class
A Note Interest;
(iii) third, to the Interest Distribution Account, the Accrued Class B
Note Interest;
(iv) fourth, to the Principal Distribution Account, the Principal
Distribution Amount, if any;
(v) fifth, to the Reserve Account, the amount, if any, required to
reinstate the amount in the Reserve Account (other than interest income and
earnings) up to the Specified Reserve Balance; and
(vi) sixth, to the Certificate Distribution Account, the Total
Distribution Amount remaining on deposit in the Collection Account.
Notwithstanding any other provision of this Section 5.5, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.1(b), 5.1(d) or 5.1(e) of the Indenture which has resulted in
an acceleration of the Notes (or following the occurrence of any such event
after an Event of Default specified in Section 5.1(c) of the Indenture has
occurred and the Trust has been liquidated), the Servicer shall instruct the
Indenture Trustee at or before aforesaid time to transfer the funds on deposit
in the Collection Account pursuant to Section 5.4(b) of the Indenture.
In the event that the Collection Account is maintained with an institution
other than Indenture Trustee, Servicer shall instruct and cause such institution
to make all deposits and distributions pursuant to this Section 5.5(c) on the
related Deposit Date.
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(d) Indenture Trustee shall continue to perform its duties under this
Agreement after the Outstanding Amount of the Notes has been reduced to zero and
the Indenture has been discharged in accordance with its terms. The protections,
immunities and standard of care afforded the Indenture Trustee under the
Indenture shall apply to the performance of its duties hereunder.
SECTION 5.6. Statements to Certificateholders and Noteholders. On each
Determination Date, Servicer shall provide to Indenture Trustee (with a copy to
each Rating Agency) written instructions for Indenture Trustee to forward to
each Noteholder of record, to each Paying Agent, if any, and to Owner Trustee
for Owner Trustee to forward on each Payment Date to each Certificateholder of
record, a statement prepared by the Servicer setting forth at least the
following information (based on the information contained in the Servicer's
Report delivered on the related Determination Date pursuant to Section 4.9) as
to the Notes and the Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of each class
of Notes;
(b) the amount of such distribution allocable to interest on or with
respect to each class of Notes;
(c) the Reserve Account Transfer Amount, if any, for such Payment Date,
the Specified Reserve Balance for such Payment Date, the amount deposited into
the Reserve Account on such Payment Date, and the balance of the Reserve Account
(if any) on such Payment Date, after giving effect to changes therein on such
Payment Date;
(d) the amount of the Servicing Fee paid to Servicer with respect to the
related Collection Period and with respect to previously accrued and unpaid
Servicing Fees;
(e) the Class A Noteholders' Interest Carryover Shortfall and Class B
Noteholders' Interest Carryover Shortfall, if any, and the change in such
amounts from the preceding statement;
(f) the amount of any previously due and unpaid payment of principal on
the Notes, and the change in such amount from that of the prior Payment Date;
(g) the aggregate outstanding principal balance of each class of the Notes
and the Note Pool Factor for each such class after giving effect to payments
allocated to principal reported under clause (a) above;
(h) the aggregate Purchase Amounts paid by Servicer with respect to the
related Collection Period;
(i) the Pool Balance as of the close of business on the last day of the
preceding Collection Period;
(j) the number, and aggregate Principal Balance outstanding, of
Receivables past due 30-59, 60-89 and 90 and over days;
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(k) the weighted average Contract Rates of the Receivables, weighted based
on the Principal Balance of each such Receivable as of the last day of the
related Collection Period;
(l) the weighted average remaining term to maturity of the Receivables,
weighted based on the Principal Balance of each such Receivable as of the last
day of the related Collection Period;
(m) the amount of the aggregate Principal Balances of any Receivables that
became Defaulted Receivables, if any, during such Collection Period;
(n) the aggregate net losses on the Receivables incurred during the period
from the Cutoff Date to and including the last day of the related Collection
Period;
(o) the amount distributed to Certificateholders;
(p) the amount of Outstanding Simple Interest Advances on such Payment
Date; and
(q) the amount on deposit in the Pre-Funding Account (until the
termination of the Pre-Funding Period).
Each amount set forth pursuant to paragraph (a), (b), (e) or (f) above relating
to the Notes shall be expressed as a dollar amount per $1,000 of the initial
principal balance of the Notes (or Class thereof).
SECTION 5.7. Net Deposits. As an administrative convenience, unless
Servicer is required to remit Collections within two Business Days of receipt
thereof, Servicer will be permitted to make the deposit of Collections and
Purchase Amounts for or with respect to the Collection Period net of
distributions to be made to Servicer with respect to the Collection Period.
Servicer, however, will account to the Trust, Indenture Trustee, the Noteholders
and the Certificateholders as if all deposits, distributions and transfers were
made individually.
SECTION 5.8. Reserve Account. (a) On or before the Closing Date pursuant to
Section 8.6 of the Indenture, the Trust shall establish or cause to be
established in the name of the Indenture Trustee, as secured party of and agent
for the Noteholders and Certificateholders, an Eligible Deposit Account (the
"Reserve Account"). The Reserve Account and any amounts therein shall be pledged
to the Indenture Trustee and held for the benefit of the Noteholders and
Certificateholders. The Reserve Account shall be established by and maintained
with the Indenture Trustee or its designee (the "Securities Intermediary").
(b) On the Closing Date, the Seller shall purchase investments meeting the
requirements of subparagraph (c) of the definition of Eligible Investments and
having a principal amount on the Closing Date equal to the Initial Reserve
Account Deposit Amount (the "Initial Reserve Account Deposit") and shall
transfer the Initial Reserve Account Deposit to the Trust. Immediately upon
receipt of the Initial Reserve Account Deposit on the Closing Date, the Trust
shall deliver the Initial Reserve Account Deposit to the Indenture Trustee and
the Indenture Trustee shall deposit the Initial Reserve Account Deposit into the
Reserve Account.
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SECTION 5.9. Monthly Advances. On or before each Deposit Date, the Servicer
shall advance into the Collection Account a Simple Interest Advance. The
Servicer shall not make any advance with respect to principal of any Simple
Interest Receivable and the Servicer shall only make advances of interest with
respect to any Receivable to the extent that the Servicer, in accordance with
its customary servicing procedures, shall determine that such advance shall be
recoverable from subsequent collections or recoveries on such Receivable.
ARTICLE VI. SELLER
SECTION 6.1. Representations of Seller. On the Closing Date and on each
Funding Date, Seller makes the following representations to each of the parties
hereto on which the Trust is deemed to have relied in acquiring the Receivables
and the other properties and rights included in the Owner Trust Estate and the
Indenture Trustee is deemed to have relied in accepting administration of its
trusts. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Trust and the
pledge thereof to Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Seller has been duly organized and is
validly existing as a Delaware limited liability company in good standing under
the laws of the State of Delaware, 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 the Receivables
and the other properties and rights included in the Owner Trust Estate assigned
to the Trust pursuant to Article II.
(b) Due Qualification. Seller is duly qualified to do business as a
limited liability company in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications,
except where the failure to so obtain would not have a material adverse impact
either on Seller, the transactions contemplated in the Basic Documents or the
Receivables.
(c) Power and Authority. Seller has the power, authority and legal right
to execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out their respective terms and to sell and assign the
property to be sold and assigned to and deposited with the Trust as the Owner
Trust Estate; and the execution, delivery and performance of this Agreement and
the Basic Documents to which it is a party have been duly authorized by Seller
by all necessary action.
(d) No Consent Required. No approval, authorization, consent, license or
other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement or the Basic Documents to which it is
a party or the consummation of the transactions contemplated hereby or thereby,
other than (i) as may be required under the blue sky or securities laws of any
State or the Securities Act of 1933, as amended, and (ii) the filing of UCC
financing statements.
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(e) Valid Sale; Binding Obligation. Seller intends this Agreement to
effect a valid sale, transfer, and assignment of the Receivables and the other
properties and rights included in the Owner Trust Estate conveyed by Seller to
the Trust hereunder, enforceable against creditors of and purchasers from
Seller; and each of this Agreement and the Basic Documents to which it is a
party constitutes a legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws affecting
enforcement of the rights of creditors generally and to equitable limitations on
the availability of specific remedies.
(f) No Violation. The execution, delivery and performance by Seller of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material default
under or result in the creation or imposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the limited liability company
agreement of Seller, (ii) any material indenture, contract, lease, mortgage,
deed of trust or other instrument or agreement to which Seller is a party or by
which Seller is bound, or (iii) any law, order, rule or regulation applicable to
Seller of any federal or state regulatory body, any court, administrative
agency, or other governmental instrumentality having jurisdiction over Seller.
(g) No Proceedings. There are no proceedings or investigations pending,
or, to the knowledge of Seller, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over Seller or its properties: (i) asserting the invalidity of this
Agreement, any other Basic Document, the Notes or the Certificates, (ii) seeking
to prevent the issuance of the Notes or Certificates or the consummation of any
of the transactions contemplated by this Agreement or any other Basic Document,
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document, the Notes or the
Certificates, to the extent applicable, or (iv) that may materially and
adversely affect the federal or state income, excise franchise or similar tax
attributes of the Trust, the Notes or the Certificates.
(h) Chief Executive Office. The chief executive office of Seller is 770
North Water Street NW5, Xxxxxxxxx, Xxxxxxxxx 00000.
(i) Good Title. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to the Receivables free
and clear of any lien and had full right and power to transfer and assign the
Receivables to the Trust.
SECTION 6.2. Continued Existence. During the term of this Agreement,
subject to Section 6.4, Seller will keep in full force and effect its existence,
rights and franchises as a limited liability company organized under the laws of
the State of Delaware and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or appropriate
to the proper administration of this Agreement and the transactions contemplated
hereby.
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SECTION 6.3. Liability of Seller; Indemnities. Subject to Section 10.5,
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by Seller under this Agreement.
(a) Seller shall indemnify, defend and hold harmless the Trust, Owner
Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such), the Certificateholders and the
Noteholders and the respective officers, directors, employees and agents of the
Trust, Owner Trustee and Indenture Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities to the extent arising out of,
or imposed upon such Person through or as a result of (i) Seller's wilful
misfeasance, bad faith or gross negligence (other than errors in judgement) in
the performance of its duties under this Agreement, or by reason of breach of
contract or reckless disregard of its obligations and duties under this
Agreement or any other Basic Document and (ii) Seller's violation of Federal or
state securities laws in connection with the offering and sale of the Notes and
the Certificates or in connection with any application relating to the Notes or
Certificates under any state securities laws.
(b) Seller shall pay any and all taxes levied or assessed upon the Trust
or upon all or any part of the Owner Trust Estate.
Indemnification under this Section 6.3 shall survive the resignation or
removal of Owner Trustee or Indenture Trustee and the termination of this
Agreement or any other Basic Document, and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If Seller shall have made
any indemnity payments pursuant to this Section 6.3 and the Person to or on
behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to Seller,
without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations
of, Seller. Any Person (a) into which Seller may be merged or consolidated, (b)
which may result from any merger or consolidation to which Seller shall be a
party or (c) which may succeed to the properties and assets of Seller
substantially as a whole, shall be the successor to Seller without the execution
or filing of any document or any further act by any of the parties to this
Agreement; provided that Seller hereby covenants that it will not consummate any
of the foregoing transactions except upon satisfaction of the following: (i) the
surviving Seller if other than M&I Dealer Auto Securitization, LLC, executes an
agreement of assumption to perform every obligation of Seller under this
Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.1 or 6.1 shall have been
breached, (iii) Seller shall have delivered to the Trust and Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section 6.3 and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and that the
Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Seller shall have a consolidated net worth at
least equal to that of the predecessor Seller, (v) such transaction will not
result in a material adverse federal or state tax consequence to the Trust, the
Noteholders or the Certificateholders and (vi) unless M&I Dealer Auto
Securitization, LLC is the surviving entity, Seller shall have delivered to the
Trust and Indenture Trustee an Opinion of Counsel either (A) stating that, in
the opinion of such counsel, all
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financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Trust and Indenture Trustee, respectively, in the Receivables
and reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests.
SECTION 6.5. Limitation on Liability of Seller and Others. Seller and any
director or officer or employee or agent of Seller may rely in good faith on the
advice of counsel or on any document of any kind, prima facie properly executed
and submitted by any Person respecting any matters arising under any Basic
Document (provided that such reliance shall not limit any way Seller's
obligations under Section 3.3 or Section 6.3). Seller shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its obligations under this Agreement, and that in its opinion may
involve it in any expense or liability.
SECTION 6.6. Seller May Own Certificates or Notes. Seller and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Certificates or Notes with the same rights as it would have if it were not
Seller or an Affiliate thereof, except as expressly provided herein or in any
Basic Document. Except as set forth herein or in the other Basic Documents,
Notes and Certificates so owned by or pledged to Seller or any such Affiliate
shall have an equal and proportionate benefit under the provisions of this
Agreement and the other Basic Documents, without preference, priority, or
distinction as among all of the Notes and Certificates of the same class.
SECTION 6.7. Security Interest. During the term of this Agreement, Seller
will not take any action to assign the security interest in any Financed
Vehicles other than pursuant to the Basic Documents.
SECTION 6.8. Purchase of Receivables on a Funding Date. Seller shall use
its best efforts in good faith to make available for assignment to the Trust, on
each Funding Date, all Receivables acquired by the Seller which meet the
eligibility criteria set forth herein as of such date. This covenant and
agreement shall be for the benefit of the Trust and the Indenture Trustee and
any such Person may enforce its legal or equitable rights, remedies or claims
hereunder.
ARTICLE VII. SERVICER.
SECTION 7.1. Representations of Servicer. Servicer makes the following
representations on which the Trust is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate and the Indenture Trustee and the Trust are deemed to have relied in
accepting administration of their trusts. The representations speak as of the
execution and delivery of the Agreement and shall survive the sale, transfer and
assignment of the Receivables to the Trust and the pledge thereof to Indenture
Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Servicer has been duly organized and
is validly existing as a state banking corporation in good standing under the
laws of the State of Wisconsin, with the power and authority to own its
properties and to conduct its business as such
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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 and the other properties and rights included in the
Owner Trust Estate.
(b) Due Qualification. 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 in which the ownership or lease of property
or the conduct of its business (including the servicing of the Receivables as
required by this Agreement) shall require such qualifications.
(c) Power and Authority. Servicer has the power, authority and legal right
to execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out their respective terms; and the execution, delivery and
performance of this Agreement and the Basic Documents to which it is a party
have been duly authorized by Servicer by all necessary corporate action.
(d) No Consent Required. No approval, authorization, consent, license or
other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement, the Basic Documents to which it is a
party or the consummation of the transactions contemplated hereby or thereby,
other than (i) as may be required under the blue sky or securities laws of any
State or the Securities Act of 1933, as amended, and (ii) the filing of UCC
financing statements.
(e) Binding Obligation. Each of this Agreement and the Basic Documents to
which it is a party constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
(f) No Violation. The execution, delivery and performance by Servicer of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material default
under, or result in the creation or disposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the organizational documents
of Servicer, (ii) any material indenture, contract, lease, mortgage, deed of
trust or other instrument or agreement to which Servicer is a party or by which
Servicer is bound, or (iii) any law, order, rule or regulation applicable to
Servicer of any federal or state regulatory body, any court, administrative
agency, or other governmental instrumentality having jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or investigations pending,
or, to Servicer's knowledge, threatened, before any court, regulatory body,
administrative agency, or tribunal or other governmental instrumentality having
jurisdiction over Servicer or its properties: (i) asserting the invalidity of
this Agreement, any other Basic Document, the Notes or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or any
other Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect
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the performance by Servicer of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document, the Notes or the
Certificates, to the extent applicable, or (iv) that may materially and
adversely affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates.
SECTION 7.2. Indemnities of Servicer. (a) Subject to Section 10.5, Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by Servicer under this Agreement.
(b) Servicer shall indemnify, defend and hold harmless the Trust, Owner
Trustee (individually and in its capacity as such), Bank One (as agent on behalf
of PREFCO), Indenture Trustee (individually and in its capacity as such),
Seller, the Certificateholders and the Noteholders and any of the respective
officers, directors, employees and agents of the Trust, the Owner Trustee,
Indenture Trustee, Bank One (as agent on behalf of PREFCO), Northwoods or Seller
from any and all costs, expenses, losses, claims, damages and liabilities
(including reasonable attorneys' fees and expenses) to the extent arising out
of, or imposed upon any such Person through, the gross negligence, willful
misfeasance, breach of contract or bad faith (other than errors in judgment) of
Servicer in the performance of its obligations and duties under this Agreement
or any other Basic Document or in the performance of the obligations and duties
of any subcustodian or subservicer in the performance of its obligations and
duties under any custody or subservicing agreement. Notwithstanding the
foregoing, if Servicer is rendered unable, in whole or in part, by virtue of an
act of God, act of war, fires, earthquake or other natural disasters, to satisfy
its obligations under this Agreement, Servicer shall not be deemed to have
breached any such obligation upon the sending of written notice of such event to
the other parties hereto, for so long as Servicer remains unable to perform such
obligation as a result of such event. This provision shall not be construed to
limit Servicer's or any other party's rights, obligations, liabilities, claims
or defenses which arise as a matter of law or pursuant to any other provision of
this Agreement.
(c) Servicer shall indemnify, defend and hold harmless the Trust, Owner
Trustee (individually and in its capacity as such), and Indenture Trustee and
their respective officers, directors, employees and agents from and against any
taxes that may at any time be asserted against any such Person with respect to
the transactions contemplated in this Agreement or in the other Basic Documents,
including any sales, gross receipts, general corporation, tangible or intangible
personal property, franchise, privilege, or license taxes, or any taxes of any
kind which may be asserted (not including any federal or other income taxes
arising out of transactions contemplated by this Agreement and the other Basic
Documents) against the Trust, Owner Trustee (individually and in its capacity as
such), and costs and expenses in defending against the same.
(d) Servicer shall indemnify, defend and hold harmless the Trust, Owner
Trustee (individually and in its capacity as such), Bank One (as agent on behalf
of PREFCO), Northwoods, Indenture Trustee (not individually but solely in its
capacity as Indenture Trustee), Seller, Certificateholders and the Noteholders
or any of the respective officers, directors, employees and agents of the Trust,
the Owner Trustee, Indenture Trustee, Bank One (as agent on behalf of PREFCO),
Northwoods or Seller from any and all costs, expenses, losses, claims, damages
and liabilities (including reasonable attorneys' fees and expenses) to the
extent arising
29
out of or imposed upon any such Person as a result of any compensation payable
to any subcustodian or subservicer (including any fees payable in connection
with the release of any Receivable File from the custody of such subservicer or
in connection with the termination of the servicing activities of such
subservicer with respect to any Receivable) whether pursuant to the terms of any
subservicing agreement or otherwise.
(e) Servicer shall indemnify, defend and hold harmless the Trust, Owner
Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such), Seller, the Certificateholders and
the Noteholders or any of the respective directors, officers, employees and
agents of the Trust, the Owner Trustee, Indenture Trustee and Seller 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.
Indemnification under this Section 7.2 shall survive the resignation or removal
of Owner Trustee or Indenture Trustee and the termination of this Agreement and
the other Basic Documents, as applicable, and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If Servicer shall have
made any indemnity payments pursuant to this Section 7.2 and the Person to or on
behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to Servicer,
without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person (a) into which Servicer may be merged or consolidated,
(b) which may result from any merger or consolidation to which Servicer shall be
a party, (c) which may succeed to the properties and assets of Servicer,
substantially as a whole, or (d) 50% of the voting stock of which is owned
directly or indirectly by Xxxxxxxx & Xxxxxx Corporation may become the successor
to Servicer; provided that, unless M&I Bank is the surviving party to such
transaction, Servicer hereby covenants that it will not consummate any of the
foregoing transactions except upon satisfaction of the following: (i) the
surviving Servicer if other than M&I Bank, executes an agreement of assumption
to perform every obligation of Servicer under this Agreement, (ii) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 7.1 shall have been breached and no Servicer Termination
Event, and no event that, after notice or lapse of time, or both, would become a
Servicer Termination Event shall have occurred and be continuing, (iii) Servicer
shall have delivered to the Trust and Indenture Trustee an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 7.3 and
that all conditions precedent, if any, provided for in this Agreement relating
to such transaction have been complied with, and that the Rating Agency
Condition shall have been satisfied with respect to such transaction, (iv) the
surviving Servicer shall have a consolidated net worth at least equal to that of
the predecessor Servicer, and (v) such transaction will not result in a material
adverse federal or state tax consequence to the Trust, the Noteholders or the
Certificateholders.
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither
Servicer nor any of its directors, officers, employees or agents shall be under
any liability to the Trust, Owner
30
Trustee, Indenture Trustee, Bank One (as agent on behalf of PREFCO), Northwoods,
Seller, the Noteholders or the Certificateholders, except as provided under this
Agreement, for any action taken or for refraining from the taking of any action
by Servicer or any subservicer pursuant to this Agreement or for errors in
judgment; provided that this provision shall not protect Servicer or any such
person against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith, breach of contract or gross negligence in the
performance of duties (except for errors in judgment) under this Agreement.
Servicer or any subservicer and any of their respective directors, officers,
employees or agents may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement.
Except as provided in this Agreement, Servicer shall not be under any
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 involve it in any expense or liability;
provided that Servicer may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of the
Basic Documents to protect the interests of the Certificateholders under this
Agreement and the Noteholders under the Indenture. In such event, the legal
expense and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Servicer.
SECTION 7.5. M&I Bank Not To Resign as Servicer. Subject to the provisions
of Section 7.3, M&I Bank hereby agrees not to resign from the obligations and
duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties hereunder shall no longer be
permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of M&I Bank as Servicer shall be communicated to the Trust and
Indenture Trustee at the earliest practicable time (and, if such communication
is not in writing, shall be confirmed in writing at the earliest practicable
time) and any such determination shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trust and Indenture Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until the
earlier of Indenture Trustee or a Successor Servicer having assumed the
responsibilities and obligations of the resigning Servicer in accordance with
Section 8.2 or the date upon which any regulatory authority requires such
resignation.
SECTION 7.6. Existence. Subject to the provisions of Section 7.3, during
the term of this Agreement, M&I Bank will keep in full force and effect and its
existence, rights and franchises as a Wisconsin state banking corporation and as
a foreign corporation in all jurisdictions which the ownership or lease of
property or the conduct of its business (including the servicing of Receivables
as required by this Agreement) shall require such qualifications.
SECTION 7.7. Servicer May Own Notes or Certificates. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner or pledgee of Notes or Certificates with the same rights as it would
have if it were not the Servicer or an Affiliate thereof, except as expressly
provided herein or in any Basic Document. Except as set forth herein or in the
other Basic Documents, Notes and Certificates so owned by or pledged to Servicer
or any such Affiliate shall have an equal and proportionate benefit under the
provisions
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of this Agreement and the other Basic Documents, without preference, priority,
or distinction as among all of the Notes and Certificates of the same class.
ARTICLE VIII. SERVICER TERMINATION EVENTS.
SECTION 8.1. Servicer Termination Event. If any one of the following events
(a "Servicer Termination Event") shall occur and be continuing:
(a) any failure by Servicer to deliver to Indenture Trustee and the Trust
the Servicer's Report in accordance with Section 4.9, or any failure by Servicer
to deliver to Indenture Trustee or the Trust for deposit in any of the Trust
Accounts or the Certificate Distribution Account any required payment or to
direct Indenture Trustee or the Trust to make any required distributions
therefrom that shall continue unremedied for a period of five Business Days
after written notice of such failure is received by Servicer from the Trust or
Indenture Trustee or after discovery of such failure by an Authorized Officer of
Servicer; or
(b) failure on the part of Servicer duly to observe or to perform in any
material respect any other covenants or agreements of Servicer set forth in this
Agreement or any other Basic Document to which it is a party (other than a
breach of the representations and warranties regarding the Receivables set forth
in Section 3.1), which failure shall (i) materially and adversely affect the
rights of either the Certificateholders or Noteholders and (ii) continue
unremedied for a period of 60 days after discovery of such failure by an
Authorized Officer of Servicer or after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to
Servicer or Seller by the Trust or Indenture Trustee or (B) to Servicer or
Seller and to the Trust and Indenture Trustee by the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes of the Controlling Note
Class or, if no Notes are outstanding, Holders of Certificates evidencing not
less than 25% of the outstanding Certificate Percentage Interests, as
applicable; or
(c) an Insolvency Event occurs with respect to Servicer or any of its
respective successors;
then, and in each and every case, so long as any Servicer Termination Event
shall not have been remedied, either Indenture Trustee, or the Holders of Notes
evidencing greater than 50% of the Outstanding Amount of the Notes of the
Controlling Note Class (or, if no Notes are then Outstanding, either the Trust
or the Holders of the Certificates evidencing greater than 50% of the
Certificate Percentage Interests), by notice then given in writing to Servicer
(and to the Trust or Indenture Trustee, as applicable, if given by the Holders,
and the Rating Agencies) may terminate all the rights and obligations (other
than the obligations set forth in Section 7.2) of Servicer under this Agreement
and the rights and obligations of any subcustodian or subservicer pursuant to
the terms of any related custody or subservicing agreement. On or after the
receipt by Servicer of such written notice, all authority and power of Servicer
under this Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall, without further action, pass to and be vested
in Indenture Trustee or such Successor Servicer as may be appointed under
Section 8.2; and, without limitation, Indenture Trustee and Successor Servicer
are hereby authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do
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or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the Successor Servicer, Indenture
Trustee and the Trust in effecting the termination of the responsibilities and
rights of the predecessor Servicer under this Agreement, including the transfer
to the Successor Servicer for administration by it of all cash amounts that
shall at the time be held by the predecessor Servicer for deposit, or shall
thereafter be received by it with respect to a Receivable. Servicer shall
promptly transfer its electronic records relating to the Receivables to the
Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Receivable Files
to the Successor Servicer and amending this Agreement to reflect such succession
as Servicer pursuant to this Section 8.1 shall be paid by the predecessor
Servicer upon presentation of reasonable documentation of such costs and
expenses.
SECTION 8.2. Appointment of Successor. (a) Upon Servicer's receipt of
notice of termination, pursuant to Section 8.1 or Servicer's resignation (if and
to the extent permitted in accordance with the terms of this Agreement), the
predecessor Servicer shall continue to perform its functions as Servicer under
this Agreement, in the case of termination, only until the date specified in
such termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation, until
the earlier of (i) the date 45 days from the delivery to the Trust and Indenture
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (ii) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of Servicer's termination or resignation hereunder, Indenture Trustee
shall appoint a Successor Servicer (which may be the Indenture Trustee), and the
Successor Servicer shall accept its appointment by a written assumption in form
acceptable to the Trust and Indenture Trustee. In the event that a Successor
Servicer has not been appointed at the time when the predecessor Servicer has
ceased to act as Servicer in accordance with this Section 8.2, Indenture Trustee
without further action shall automatically be appointed the Successor Servicer
and Indenture Trustee shall be entitled to the Servicing Fee. Notwithstanding
the above, Indenture Trustee shall, if it shall be unwilling or unable so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than $100,000,000 and
whose regular business shall include the servicing of consumer receivables, as
the successor to Servicer under this Agreement; provided, that the appointment
of any such Successor Servicer will not result in the withdrawal, qualification
or reduction of the outstanding rating assigned to the Certificates or Notes by
any Rating Agency.
(b) Upon appointment, the Successor Servicer (including Indenture Trustee
acting as Successor Servicer) shall be the successor in all respects to the
predecessor Servicer and shall be subject to all the responsibilities, duties
and liabilities arising thereafter relating thereto placed on the predecessor
Servicer and shall be entitled to the Servicing Fee and all the rights granted
to the predecessor Servicer by the terms and provisions of this Agreement. No
Successor Servicer shall be liable for any acts or omissions of any predecessor
Servicer.
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(c) A transfer of servicing hereunder shall not affect the rights and
duties of the parties hereunder (including the obligations and indemnities of
the predecessor Servicer pursuant to Section 4.7, 7.1 or 7.2) other than those
relating to the management, administration, servicing, custody or collection of
the Receivables and the other rights and properties included in the Owner Trust
Estate. The Successor Servicer shall, upon its appointment pursuant to Section
8.2 and as part of its duties and responsibilities under this Agreement,
promptly take all action it deems necessary or appropriate so that the
predecessor Servicer (in whatever capacity) is paid or reimbursed all amounts it
is entitled to receive under this Agreement on each Payment Date subsequent to
the date on which it is terminated as Servicer hereunder.
SECTION 8.3. Payment of Servicing Fee. If Servicer shall be replaced, the
predecessor Servicer shall be entitled to receive any accrued and unpaid
Servicing Fees and any Supplemental Servicing Fees and any Outstanding Simple
Interest Advances accrued and unpaid or received to the effective date of the
termination of the predecessor Servicer, in each case, in accordance with
Section 4.8.
SECTION 8.4. Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, Servicer pursuant to this
Article VIII, the Trust shall give prompt written notice thereof to
Certificateholders and Indenture Trustee shall give prompt written notice
thereof to Noteholders.
SECTION 8.5. Waiver of Past Defaults. The Holders of Notes evidencing not
less than a majority of the Outstanding Amount of the Notes of the Controlling
Note Class (or the Holders of Certificates evidencing not less than a majority
of the outstanding Certificate Percentage Interests, as applicable, in the case
of any default which does not adversely affect Indenture Trustee or the
Noteholders) may, on behalf of all Noteholders and Certificateholders, waive in
writing any default by Servicer in the performance of its obligations hereunder
and its consequences, except a default in making any required deposits to any of
the Trust Accounts in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any Servicer Termination
Event arising therefrom shall be deemed to have been remedied for every purpose
of this Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto.
ARTICLE IX. TERMINATION.
SECTION 9.1. Optional Purchase of All Receivables; Termination Notice. (a)
On the last day of any Collection Period immediately preceding a Determination
Date as of which the then outstanding Pool Balance is 10% or less of the sum of
(i) the Original Pool Balance plus (ii) each of the Funding Date Pool Balances,
Servicer shall have the option to purchase the Owner Trust Estate other than the
Trust Accounts, the Certificate Distribution Account and any funds or
investments therein; provided that the proceeds from the exercise of such option
must be at least sufficient to fully repay all accrued and unpaid interest on
and principal of the Outstanding Notes. To exercise such option, Servicer shall
deposit pursuant to Section 5.4 in the Collection Account an amount which, when
added to the amounts on deposit in the Collection Account for such Payment Date,
equals the sum of (a) the lesser of (i) the fair market value of the Receivables
and (ii) the aggregate Principal Balance of the Receivables plus (b) accrued and
34
unpaid interest on the Outstanding Notes. The Notes and the Certificates will be
redeemed concurrently therewith.
(b) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder.
(c) Notice of any termination of the Trust shall be given by Servicer to
the Trust, Indenture Trustee and the Rating Agencies as soon as practicable
after Servicer has received notice thereof.
ARTICLE X. MISCELLANEOUS PROVISIONS.
SECTION 10.1. Amendment. (a) This Agreement may be amended by Seller,
Servicer, the Trust and Indenture Trustee, but without the consent of any of the
Noteholders or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided that such action shall not adversely
affect in any material respect the interests of any Noteholder or
Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of the Trust to
qualify as, and to permit an election to be made to cause all or a portion
of the Trust to be treated as, a "financial asset securitization investment
trust" under the Code and (B) in connection with any such election, to
modify or eliminate existing provisions set forth in this Agreement
relating to the intended federal income tax treatment of the Notes or
Certificates and the Trust in the absence of the election; it being a
condition to any such amendment that the Rating Agency Condition shall have
been satisfied; and
(iii) to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable (a) the transfer to the Trust of all or any
portion of the Receivables to be recognized as a sale under generally
accepted accounting principles ("GAAP") by Seller to the Trust, (b) the
Trust to avoid becoming a member of M&I Bank's consolidated group under
GAAP or (c) M&I Bank, the Seller or any of their Affiliates to otherwise
comply with or obtain more favorable treatment under any law or regulation
or any accounting rule or principle; it being a condition to any such
amendment that the Rating Agency Condition shall have been satisfied;
provided that any amendment entered into pursuant to this Section 10.1(a) shall
not significantly change the permitted activities of the Trust.
(b) This Agreement may also be amended from time to time by Seller,
Servicer, the Trust and Indenture Trustee, with the consent of the Holders of
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
and the consent of the Holders of Certificates
35
evidencing not less than a majority of the Certificate Percentage Interests for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided that no such amendment
shall (i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Percentage Interests, the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and the Holders of all the outstanding
Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Servicer
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency. Promptly after the execution of any such amendment or
consent, Servicer shall furnish written notification of the substance of such
amendment or consent to each Noteholder and Certificateholder.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section 10.1 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, the Trust
and Indenture Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the execution
and delivery of such amendment have been satisfied has been delivered. The Owner
Trustee and Indenture Trustee may, but shall not, at the cost of the party
requesting such amendment be obligated to, enter into any such amendment which
affects Owner Trustee's or Indenture Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
SECTION 10.2. Protection of Title to Trust Property. (a) Seller 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
Trust and the interests of Indenture Trustee in the Receivables and the proceeds
thereof. Seller shall deliver (or cause to be delivered) to the Trust and
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Neither Seller nor 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 in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-507 of the UCC, unless it
shall have given the Trust and Indenture Trustee at least thirty days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of Seller and Servicer shall have an obligation to give the Trust
and Indenture Trustee at least 60 days' prior written notice of any relocation
of its principal executive
36
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement. 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) Servicer shall maintain (or shall cause its subservicer to maintain)
accounts and records as to each Receivable accurately and in sufficient detail
to permit (i) the reader thereof to know at any time the status of such
Receivable, including payments and recoveries made and payments owing (and the
nature of each) and (ii) reconciliation between payments or recoveries on (or
with respect to) each Receivable and the amounts from time to time deposited in
the Collection Account in respect of such Receivable.
(e) Servicer shall maintain (or shall cause its subservicer to maintain)
its computer systems so that, from and after the time of sale under this
Agreement of the Receivables, Servicer's and its subservicer's master computer
records (including any backup archives) that refer to a Receivable shall
indicate clearly the interest of the Trust and Indenture Trustee in such
Receivable and that such Receivable is owned by the Trust and has been pledged
to Indenture Trustee pursuant to the Indenture. Indication of the Trust's and
Indenture Trustee's interest in a Receivable shall be deleted from or modified
on Servicer's and its subservicer's computer systems when, and only when, the
related Receivable shall have been paid in full or purchased by Servicer.
(f) If at any time Servicer shall propose to sell, grant a security
interest in or otherwise transfer any interest in automotive receivables to any
prospective purchaser, lender or other transferee, Servicer shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Trust and has been pledged to
Indenture Trustee.
(g) Servicer, upon receipt of reasonable prior notice, shall permit
Indenture Trustee, the Trust and their respective agents at any time during
normal business hours to inspect, audit and make copies of and abstracts from
Servicer's and its subservicer's records regarding any Receivable.
(h) Upon request at any time the Trust or Indenture Trustee shall have
reasonable grounds to believe that such request is necessary in connection with
the performance of its duties under this Agreement or any of the Basic
Documents, Servicer shall furnish to the Trust or to Indenture Trustee, within
thirty Business Days, a list of all Receivables (by contract number and name of
Obligor) then owned by the Trust, together with a reconciliation of such list to
the Schedule of Receivables and to each of Servicer's Reports furnished before
such request indicating removal of Receivables from the Trust.
SECTION 10.3. Notices. All demands, notices and communications upon or to
Seller, Servicer, the Trust, Indenture Trustee or the Rating Agencies under this
Agreement shall be sent by telecopy or by any other means acceptable to the
parties hereto or be in writing, personally delivered, sent by overnight courier
or mailed by certified mail, return receipt requested, and
37
shall be deemed to have been duly given upon receipt (a) in the case of Seller,
to M&I Dealer Auto Securitization, LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, (b) in the case of Servicer, to M&I
Xxxxxxxx & Ilsley Bank, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx XX0, Xxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxx (c) in the case of the Trust, at the Corporate Trust
Office with a copy to Deutsche Bank Trust Company Americas at 00 Xxxx Xxxxxx,
00/xx/ Xxxxx, XXXXX-00-0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust B Agency Services, fax no. (000) 000-0000, (d) in the case of Indenture
Trustee, at the Corporate Trust Office with a copy to BNY Midwest Trust Co., 0
X. XxXxxxx Xxxxxx, Xxx. 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Structured
Finance Group, fax no. (000) 000-0000, (e) in the case of Moody's, to Xxxxx'x
Investors Service, Inc., to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Asset Backed Securities Group, and (f) in the case of Standard &
Poor's, to Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention of
Asset Backed Surveillance Department. Any notice required or permitted to be
mailed to a Noteholder or Certificateholder shall be given by first-class mail,
postage prepaid, at the address of such Person as shown in the Note Register or
the Certificate Register, as applicable. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder or Certificateholder shall receive such
notice.
SECTION 10.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 4.1, 6.4 and 7.3 and as
provided in the provisions of this Agreement concerning the resignation of
Servicer, this Agreement may not be assigned by Seller or Servicer without the
prior written consent of the Trust, Indenture Trustee, the Noteholders
evidencing not less than 66 2/3% of the Outstanding Amount of the Notes and the
Certificateholders evidencing not less than 66 2/3% of the outstanding
Certificate Percentage Interests.
SECTION 10.5. Litigation and Indemnities. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any Person in respect of which indemnity may be
sought pursuant to Section 7.2, such Person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. The
Indemnifying Person shall not be liable for any settlement of any claim or
proceeding effected without written consent, but if settled with such consent of
if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
38
SECTION 10.6. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Seller, Bank One (as agent on behalf of
PREFCO), Northwoods, Servicer, the Trust, the Owner Trustee (individually and in
its capacity as such) and Indenture Trustee (not individually but solely in its
capacity as Indenture Trustee) and for the benefit of the Certificateholders and
the Noteholders, as third-party beneficiaries, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 10.7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not create or render unenforceable
such provision in any other jurisdiction.
SECTION 10.8. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.9. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.10. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.11. Assignment to Indenture Trustee. Seller hereby acknowledges
and consents to any pledge, assignment and grant of a security interest by the
Trust to Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders of all right, title and interest of the Trust in, to and under the
Receivables and/or the assignment of any or all of the Trust's rights and
obligations hereunder to Indenture Trustee.
SECTION 10.12. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, the Trust, Indenture Trustee, Servicer and Seller (except as
provided in the Amended and Restated Limited Liability Company Agreement of the
Seller, dated as of November 29, 2001, as amended from time to time, the "LLC
Agreement") shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Trust or the Seller, except as
provided in the LLC Agreement, acquiesce, petition or otherwise invoke or cause
the Trust to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Trust or the Seller,
except as provided in the LLC Agreement, under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or the
Seller, except as provided in the LLC Agreement, or any substantial part of its
property, or
39
ordering the winding up or liquidation of the affairs of the Trust or the
Seller, except as provided for in the LLC Agreement. This Section 10.2 shall
survive the termination of this Agreement.
SECTION 10.13. Limitation of Liability. (a) It is expressly understood and
agreed by and between the parties hereto (i) that this Agreement is executed and
delivered by Deutsche Bank Trust Company Delaware, not in its individual
capacity but solely as Owner Trustee of the Trust under the Trust Agreement
dated as of November 13, 2003 between M&I Dealer Auto Securitization, LLC and
M&I Xxxxxxxx & Xxxxxx Bank (the "Trust Agreement") in the exercise of the power
and authority conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Trust are not
personal representations, undertaking and agreements of Deutsche Bank Trust
Company Delaware, but are binding only on the Trust, (iii) nothing contained
herein shall be construed as creating any liability on Deutsche Bank Trust
Company Delaware, individually or personally, to perform any covenant of the
Trust either expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties hereto and by any person claiming by,
through or under any such party, and (iv) under no circumstances shall Deutsche
Bank Trust Company Delaware be personally liable for the payment of any
indebtedness or expense of the Trust or be liable for the reach of failure of
any obligations, representation, warranty or covenant made or undertaken by the
Trust under this Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by BNY Midwest Trust Company, not in its individual
capacity but solely as Indenture Trustee, and in no event shall it have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Trust 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 Trust. For the purposes of this Agreement, in the
performance of its duties or obligations hereunder, Indenture Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Indenture.
SECTION 10.14. Further Assurances. Seller and the Servicer agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Trust or Indenture Trustee
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 10.15. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Trust, Indenture Trustee, the
Noteholders or the Certificateholders, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges therein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and year first above written.
M&I AUTO LOAN TRUST 2003-1
By: Deutsche Bank Trust Company
Delaware, not in its individual
capacity, but solely in its capacity
as Owner Trustee
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
S-1
M&I DEALER AUTO SECURITIZATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
S-2
M&I XXXXXXXX & XXXXXX BANK, Servicer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
S-3
Acknowledged and Agreed to:
BNY Midwest Trust Company,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
S-4
SCHEDULE A
SCHEDULE OF RECEIVABLES
On File with the Servicer
Schedule A-1
SCHEDULE B
Location of Receivables Files
-----------------------------
The Receivables sold by M&I Xxxxxxxx & Ilsley Bank, M&I Northwoods III LLC and
Preferred Receivables Funding Corporation to Seller and sold by Seller to the
Trust are located at the offices of M&I Xxxxxxxx & Xxxxxx Bank listed below:
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Schedule B-1
SCHEDULE C
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the Sale and Servicing Agreement, the Servicer hereby represents, warrants, and
covenants to the Seller and the Trust as to itself as follows on the Closing
Date and on each Funding Date and on each Payment Date thereafter:
1. The Sale and Servicing Agreement creates a valid and continuing
security interest (as defined in UCC Section 9-102) in the Receivables in favor
of the Trust, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from the Seller.
2. The Receivables constitute "tangible chattel paper" within the meaning
of UCC Section 9-102.
3. M&I Bank has taken all steps necessary to perfect its security interest
against the Obligor in the property securing the Receivables that constitute
chattel paper.
4. The Seller owns and has good and marketable title to the Receivables
free and clear of any Lien, claim or encumbrance of any Person, excepting only
Liens for taxes, assessments or similar governmental charges or levies incurred
in the ordinary course of business that are not yet due and payable or as to
which any applicable grace period shall not have expired, or that are being
contested in good faith by proper proceedings and for which adequate reserves
have been established, but only so long as foreclosure with respect to such a
Lien is not imminent and the use and value of the property to which the Lien
attaches is not impaired during the pendency of such proceeding.
5. The Servicer has caused or will have caused, within ten days after the
effective date of the Indenture, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the sale of the Receivables from M&I Bank,
M&I Northwoods III LLC and Bank One, National Association (as agent on behalf of
Preferred Receivables Funding Corporation) ("Bank One") to the Seller, the
transfer and sale of the Receivables from the Seller to the Trust, and the
security interest in the Receivables granted to the Indenture Trustee hereunder.
6. With respect to Receivables that constitute tangible chattel paper,
such tangible chattel paper is in the possession of the Custodian and the
Indenture Trustee has received a written acknowledgment from the Custodian that
the Custodian is holding such tangible chattel paper solely on behalf and for
the benefit of the Indenture Trustee.
7. The Servicer has not authorized the filing of, or is aware of any
financing statements against Bank One (as agent on behalf of PREFCO), M&I Bank,
the Seller or the Servicer that include a description of collateral covering the
Receivables, the Trust Estate and proceeds related thereto other than any
financing statement (i) relating to the sale of Receivables
Schedule C-1
by M&I Bank and Bank One (as agent on behalf of PREFCO) to the Seller under the
Purchase Agreement, (ii) relating to the sale of Receivables by the Seller to
the Trust under the Sale and Servicing Agreement, (iii) relating to the security
interest granted to the Indenture Trustee hereunder, or (iv) that has been
terminated.
8. The Servicer is not aware of any judgment, ERISA or tax Lien filings
against either Bank One (as agent on behalf of PREFCO), M&I Northwoods III LLC,
M&I Bank, the Seller or the Servicer.
9. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
10. Survival of Perfection Representations. Notwithstanding any other
provision of the Purchase Agreement, the Sale and Servicing Agreement, the
Indenture or any other Basic Document, the Perfection Representations contained
in this Schedule shall be continuing, and remain in full force and effect
(notwithstanding any replacement of the Servicer or termination of Servicer's
rights to act as such) until such time as all obligations under the Purchase
Agreement, Sale and Servicing Agreement and the Indenture have been finally and
fully paid and performed.
11. No Waiver. The parties hereto: (i) shall not, without obtaining a
confirmation of the then-current rating of the Notes, waive any of the
Perfection Representations; (ii) shall provide the Ratings Agencies with prompt
written notice of any breach of the Perfection Representations, and shall not,
without obtaining a confirmation of the then-current rating of the Notes (as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the Perfection Representations.
Schedule C-2
EXHIBIT A
Form of Servicer's Report
-------------------------
M&I Auto Loan Trust 2003-1 Page 1
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
--------------------------------------------------------------------------------
A. Initial Bond Cutoff Accrual Legal Final
Characteristics Balance Coupon Calendar Maturity CUSIP
--------------------------------------------------------------------------------
I. Class A-1 Notes
ii Class A-2 Notes
iii Class A-3 Notes
iv Class A-4 Notes
v Class B Notes
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Balance % of Original Unpaid Unpaid
X. Xxxx Balances as of Balance Interest Interest
--------------------------------------------------------------------------------
I. Class A-1 Notes
ii Class A-2 Notes
iii Class A-3 Notes
iv Class A-4 Notes
v Class B Notes
--------------------------------------------------------------------------------
M&I Auto Loan Trust 2003-1 Page 2
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
--------------------------------------------------------------------------------
C. Reserve Account
--------------------------------------------------------------------------------
I. Initial Reserve Deposit
ii Reserve Account Deposits for Prefunding
iii Beginning of Period Reserve
Balance (Including Prefunding Deposits)
iv Specified Reserve Account Percent Of Aggregate Loans Purchased
v Specified Reserve Account Floor
vi Specified Reserve Account Balance
vii Reserve Account Release
viii Reserve Account Draws
ix Reserve Account Deposits
x End of Period Reserve Balance
xi Outstanding Simple Interest Advances
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
D. Pre-Funding Account
--------------------------------------------------------------------------------
I Pre-Funding Amount %
ii Pre-Funding Transfer Amount
iii Pre-Funding Account Balance
iv Investment Earnings and Income on funds in deposit in the Pre-Funding
Account during the collection period
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
E. Servicing
--------------------------------------------------------------------------------
I Servicing Fee Percentage
ii Beginning of Period Servicing Shortfall
iii End of Period Servicing Shortfall
--------------------------------------------------------------------------------
M&I Auto Loan Trust 2003-1 Page 3
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
------------------------------------------------------------------------------------------------------------------------
% of Adjusted
Initial Agg. Subsequent Adjusted Initial Balance Initial Balances
F. Portfolio Characteristics Balance Fundings Balance as of as of
------------------------------------------------------------------------------------------------------------------------
I Principal Balance
ii Number of Contracts
iii Weighted Average Coupon (WAC)
iv Weighted Average Original Term
v Weighted Average Remaining Term
vi Weighted Average Seasoning
------------------------------------------------------------------------------------------------------------------------
M&I Auto Loan Trust 2003-1 Page 4
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
--------------------------------------------------------------------------------------------
# of % of # of Principal % of Principal
G.1 Portfolio Performance Contracts Contracts Balance Balance
--------------------------------------------------------------------------------------------
I 30-59 Days Delinquent
ii 60-89 Days Delinquent
iii 90-119 Days Delinquent
iv 120+ Days Delinquent
v Repo in Inventory (Charged-Off)
vi Repo in Inventory (Not
Charged-Off)
vii Gross Charge-Offs in Period
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
G.2 Ratios Ratio 3 Month Average
--------------------------------------------------------------------------------
I Net Loss Ratio
ii Delinquency Ratio
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
% of Original
H. Portfolio Charge-Offs Dollar Amount Balance
--------------------------------------------------------------------------------
I Gross Charge-Offs in Period
ii Cumulative Gross Charge-Offs
iii Net Losses in Period
iv Cumulative Net Losses
--------------------------------------------------------------------------------
M&I Auto Loan Trust 2003-1 Page 5
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
--------------------------------------------------------------------------------
I. Pool Collections
--------------------------------------------------------------------------------
I. Borrower Interest Collections
ii Borrower Principal Collections & Liquidation Proceeds
iii Recoveries
iv. Simple Interest Advance
v. Repurchase Amounts (Interest)
vi. Repurchase Amounts (Principal)
vii. Total Interest Collections
viii. Total Principal Collections
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
J. Pool Balance Reconciliation
--------------------------------------------------------------------------------
I. Beginning Pool Balance
ii Additional Fundings
iii Pool Balance Reductions from Principal Collections
iv Gross Charge-Offs in Period
v Ending Pool Balance
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
K. Total Available
--------------------------------------------------------------------------------
I. Total Pool Collections
ii Pre-Funding Account Income
iii Pre-Funding Account Release
Reserve Account
Balance
Specified Reserve
Account Amount
iv Reserve Account Release
v Reserve Account Draw
vi Collected Funds
--------------------------------------------------------------------------------
M&I Auto Loan Trust 2003-1 Page 6
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
-------------------------------------------------------------------------------------------
Amount
Available
Calculation Amount for Amount
L. Waterfall Steps Due Distribution Paid
-------------------------------------------------------------------------------------------
I Reimbursement of Outstanding
Simple Interest Advances
Servicing Fee
Previous Servicing
Fee Shortfall =========
ii Total Servicing Fee
iii Class A Notes Interest
Distribution
iv Class B Notes Interest
Distribution
a) Previous Class A-1 Notes
b) Previous Note
Balance - Pool Balance
X.) MAX of a) and b)
v Principal Distribution
vii Reserve Fund Deposit
vii Release to Seller
-------------------------------------------------------------------------------------------
M&I Auto Loan Trust 2003-1 Page 7
Monthly Servicing Report
Distribution Date Closing Date:
Collection Period Begin Date: Previous Distribution Date:
Collection Period End Date: Previous Collection Period End Date:
--------------------------------------------------------------------------------------------------------------------------------
Accrued
Previous Interest Total Bond Total Bond
X. Xxxx Interest Number of Days Current Interest on Interest Interest Interest Interest
Distributions Coupon in Pay Period Interest Shortfall Shortfall Due Paid Shortfall
--------------------------------------------------------------------------------------------------------------------------------
Total Class A Notes
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
X. Xxxx Principal Distributions
------------------------------------------------
Total Principal Distribution
Class A-1 Notes Principal Distribution
Class A-2 Notes Principal Distribution
Class A-3 Notes Principal Distribution
Class A-4 Notes Principal Distribution
Class B Notes Principal Distribution
--------------------------------------------------------------------------------
MONTHLY NOTEHOLDERS STATEMENT
M&I AUTO LOAN TRUST 2003-1
Class A1 Asset Backed Notes
Class A2 Asset Backed Notes
Class A3 Asset Backed Notes
Class A4 Asset Backed Notes
Class B Asset Backed Notes
DISTRIBUTION DATE:
MONTHLY PERIOD:
Under the Sales and Servicing Agreement dated as of XXX among Xxxxxxxx & Xxxxxx
Bank as servicer and Xxxxxxxx & Ilsley Auto Receivables LLC, as seller, Xxxxxxxx
& Xxxxxx Auto Trust 2003-1 as issuer and the Bank One, National Association as
indenture trustee, the Servicer is required to prepare certain information each
month regarding current distributions to Noteholders and the performance of the
Trust during the previous month. The information that is required to be prepared
with respect to the Distribution Date and Monthly Period listed above is set
forth below. Certain of the information is presented on the basis of an original
principal amount of $1,000 per Note, and certain other information is presented
upon the aggregate amounts for the Trust as a whole.
A. Information Regarding the Current Monthly Distribution
1. Notes
(A) The aggregate amount of the distribution
with respect to:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
(B) The amount of the distribution set forth in
paragraph A.1 (A) above in respect of
interest on:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
(C) The amount of the distribution set forth in
paragraph A.1 (A) above in respect of
principal on:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
MONTHLY NOTEHOLDERS STATEMENT
M&I AUTO LOAN TRUST 2003-1
Class A1 Asset Backed Notes
Class A2 Asset Backed Notes
Class A3 Asset Backed Notes
Class A4 Asset Backed Notes
Class B Asset Backed Notes
DISTRIBUTION DATE:
MONTHLY PERIOD:
(D) The amount of the distribution set forth in
paragraph A.1 (A) above per $1,000 interest
in:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
(E) The amount of the distribution set forth in
paragraph A.1 (B) above per $1,000 interest
in:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
(F) The amount of the distribution set forth in
paragraph A.1 (C) above per $1,000 interest
in:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
B. INFORMATION REGARDING THE PERFORMANCE OF THE TRUST
1. Pool Balance and Note Principal Balance
(A) The Pool Balance at the close of business on
the last day of the Monthly Period:
MONTHLY NOTEHOLDERS STATEMENT
M&I AUTO LOAN TRUST 2003-1
Class A1 Asset Backed Notes
Class A2 Asset Backed Notes
Class A3 Asset Backed Notes
Class A4 Asset Backed Notes
Class B Asset Backed Notes
DISTRIBUTION DATE:
MONTHLY PERIOD:
(B) The aggregate outstanding principal amount
of each Class of Notes after giving effect
to payments allocated to principal as set
forth in paragraph A.1 (C) above with
respect to:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
(C) The Note Pool Factor for each Class of Notes
after giving affect to the payments set
forth in paragraph A.1 (C) above with
respect to:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
(D) The amount of aggregate Realized Losses for
the preceding Monthly Period:
(E) The aggregate Purchase Amount for all
Receivables that were repurchased in the
Monthly Period:
2. Servicing Fee
The aggregate amount of the Servicing
Fee paid to the Servicer with respect to the
preceding Monthly Period
3. Payment Shortfalls
(A) The amount of the Noteholders' Interest
Carryover Shortfall after giving effect to
the payments set forth in paragraph A.1 (B)
above with respect to:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
MONTHLY NOTEHOLDERS STATEMENT
M&I AUTO LOAN TRUST 2003-1
Class A1 Asset Backed Notes
Class A2 Asset Backed Notes
Class A3 Asset Backed Notes
Class A4 Asset Backed Notes
Class B Asset Backed Notes
DISTRIBUTION DATE:
MONTHLY PERIOD:
(B) The amount of the Noteholders' Interest
Carryover Shortfall set forth in paragraph
3(A) above per $1,000 interest with respect
to:
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
4
(A) The aggregate amount of collections by the
Servicer during the preceding Monthly
Period:
(B) The aggregate amount which was received by
the Trust from the Servicer during the
Monthly Period:
(C) The number of Receivables that are
delinquent for:
30-59 days
60-89 days
90 or more days
Repossessed Autos in Inventory
EXHIBIT B
Form of Funding Date Officer's Certificate
I, Xxxxxx X. Xxxxxx, Senior Vice President of M&I Xxxxxxxx & Xxxxxx Bank, a
banking corporation organized under the laws of the State of Wisconsin (the
"Corporation"), as Servicer pursuant to the Sale and Servicing Agreement, dated
as of November 13, 2003, among the Corporation, M&I Auto Loan Trust 2003-1 (the
"Trust"), M&I Dealer Auto Securitization, LLC, a Delaware limited liability
company, as seller, and BNY Midwest Trust Co., as indenture trustee (the
"Indenture Trustee") hereby certify that the Funding Date shall be [______, ___]
(which [is][is not] the final Funding Date, the Subsequent Cutoff Date shall be
[______, ___]) and that as of the date hereof no Event of Servicing Termination
has occurred and is continuing under the Sale and Servicing Agreement and no
Event of Default has occurred and is continuing under the Indenture.
Unless otherwise indicated, all capitalized terms used herein have the
meanings assigned to them in Appendix X to the Sale and Servicing Agreement.
In addition to the above, I also certify as to the following as of the
Funding Date:
(a) Characteristics of Subsequent Receivables. The Subsequent Receivable
has been fully and properly executed by the parties thereto and (i) has been
originated by a Dealer in the ordinary course of such Dealer's business to
finance the retail sale by a Dealer of the related Financed Vehicle and has been
purchased by M&I Bank, Dealer Finance or their predecessors in interest in the
ordinary course of their business, (ii) was underwritten in accordance with M&I
Bank's underwriting standards, (iii) is secured by a valid, subsisting, binding
and enforceable first priority perfected security interest in favor of Dealer
Finance or M&I Bank in the Financed Vehicle (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 Funding Date which
is prior to such security interest), which security interest is assignable
together with such Subsequent Receivable, and has been so assigned to Seller,
and subsequently assigned to the Trust pursuant to the Sale and Servicing
Agreement, and pledged to Indenture Trustee pursuant to the Indenture, (iv)
contains customary and enforceable provisions such that the rights and remedies
of the holder thereof are adequate for realization against the collateral of the
benefits of the security, (v) provided, at origination, for level monthly
payments (provided that the amount of the first or last payment may be minimally
different and provided further that the Receivable may contain an introductory
period of up to 3 months in which no monthly payment is due), which fully
amortize the Initial Principal Balance over the original term, (vi) provides for
interest at the Contract Rate specified in the Schedule of Receivables delivered
on the Funding Date, (vii) was originated in the United States and (viii)
constitutes "chattel paper" as defined in the UCC.
(b) Individual Characteristics. The Subsequent Receivables have the
following individual characteristics as of the Subsequent Cutoff Date (i) each
Subsequent Receivable is secured by a Motor Vehicle; (ii) each Subsequent
Receivable has a Contract Rate of no less than 2.50% and not more than [ ]%;
(iii) each Subsequent Receivable had an original term to maturity of not more
than 75 months and not less than 12 months and each Subsequent Receivable has a
remaining term to maturity, as of the Subsequent Cutoff Date, of six months or
EXHIBIT B-1
more; (iv) each Subsequent Receivable had an Initial Principal Balance less than
or equal to $[ ]; (v) each Subsequent Receivable has a Cutoff Date Principal
Balance of greater than or equal to $[ ]; (vi) no Subsequent Receivable has
a scheduled maturity date later than February 17, 2011; (vii) no Subsequent
Receivable was more than 29 days past due as of the Subsequent Cutoff Date;
(viii) no Financed Vehicle was noted in the related records of M&I Bank as being
the subject of any pending bankruptcy or insolvency proceeding as of the
Subsequent Cutoff Date; (ix) no Subsequent Receivable is subject to a force
placed Physical Damage Insurance Policy on the related Financed Vehicle; (x)
each Subsequent Receivable is a Simple Interest Receivable; and (xi) the Dealer
of the Financed Vehicle has no participation in, or other right to receive, any
proceeds of such Subsequent Receivable. The Subsequent Receivables were selected
using selection procedures that were not intended by M&I Bank or Dealer Finance
to be adverse to the Seller.
(c) Schedule of Subsequent Receivables. The information with respect to
each Receivable set forth in the Schedule of Receivables delivered on the
Funding Date, including (without limitation) the account number, the Cutoff Date
Principal Balance, the maturity date and the Contract Rate, was true and correct
in all material respects as of the close of business on the Subsequent Cutoff
Date.
(d) Compliance with Law. The Subsequent Receivable and the sale of the
related Financed Vehicle complied at the time it was originated or made, and
will comply as of the Funding 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 Reporting Act,
the Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Fair Debt
Collection Practices Act, Federal Reserve Board Regulations B and Z and any
other consumer credit, consumer protection, equal opportunity and disclosure
laws.
(e) Binding Obligation. The Subsequent Receivable constitutes the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable in all material respects by the holder thereof in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally, and
the Subsequent Receivable is not subject to any right of rescission, setoff,
counterclaim or defense, including the defense of usury.
(f) Lien in Force. The Subsequent Receivable has not been satisfied,
subordinated or rescinded and M&I Bank or Dealer Finance has not taken any
action which would have the effect of releasing the related Financed Vehicle
from the Lien granted by the Subsequent Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of the Subsequent
Receivable has been amended, waived, altered or modified in any respect, except
such waivers as would be permitted under the Sale and Servicing Agreement and as
are reflected in the Receivable File, and no amendment, waiver, alteration or
modification causes such Subsequent Receivable not to conform to the other
representations or warranties contained in this Section.
EXHIBIT B-2
(h) No Liens. There are no Liens or claims, including Liens for work,
labor, materials or unpaid state or federal taxes, relating to the Financed
Vehicle securing the Subsequent Receivable, that are or may be prior to or equal
to the Lien granted by the Subsequent Receivable.
(i) No Default. Except for payment delinquencies continuing for a period
of less than 30 days as of the Subsequent Cutoff Date, no default, breach,
violation or event permitting acceleration under the terms of the Subsequent
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 the Subsequent Receivable has arisen.
(j) Insurance. The Subsequent Receivable requires the Obligor to insure
the Financed Vehicle under a Physical and Damage Insurance Policy, pay the
premiums for such insurance and keep such insurance in full force and effect.
(k) Good Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Subsequent Receivables
from the Seller to the Trust and that the beneficial interest in and title to
the Subsequent Receivables not be part of the Seller's estate in the event of
the filing of a bankruptcy petition or insolvency proceeding by or against the
Seller under any bankruptcy or insolvency law. No Subsequent Receivable has been
sold, transferred, assigned, or pledged (i) by M&I Bank to any other Person
other than the Seller, and (ii) by the Seller to any Person other than the
Trust. Immediately prior to the transfer and assignment herein contemplated, the
Seller had good and marketable title to the Subsequent Receivable free and clear
of any Lien and had full right and power to transfer and assign the Subsequent
Receivable to the Trust and immediately upon the transfer and assignment of the
Subsequent Receivable to the Trust, the Trust shall have good and marketable
title to the Subsequent Receivable, free and clear of any Lien; and the Trust's
interest in the Subsequent Receivable resulting from the transfer has been
perfected under the UCC. All filings (including UCC filings) necessary in any
jurisdiction, to give the Trust a first priority perfected ownership interest in
the Subsequent Receivables, and to give Indenture Trustee a first priority
perfected security interest therein, shall have been presented to Indenture
Trustee for filing in the appropriate filing offices. Upon such filing by the
Indenture Trustee, the Indenture Trustee will have a first priority perfected
security interest in the Subsequent Receivables.
(l) Obligations. M&I Bank has duly fulfilled all material obligations on
its part to be fulfilled under, or in connection with, the Subsequent
Receivable.
(m) Possession. There is only one original executed Subsequent Receivable,
and immediately prior to the Funding Date, M&I Bank or one of its Affiliates
will have possession of such original executed Subsequent Receivable.
(n) No Government Obligor. The Obligor on the Subsequent 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.
EXHIBIT B-3
(o) Marking Records. By the Funding Date, M&I Bank shall have caused the
portions of M&I Bank's electronic master record of Motor Vehicle Loans relating
to the Subsequent Receivables to be clearly and unambiguously marked to show
that the Subsequent Receivable is owned by the Trust in accordance with the
terms of this Agreement.
(p) No Assignment. As of the Funding Date, neither M&I Bank nor any of its
Affiliates shall 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 or Dealer Agreements, or payments due under the Subsequent
Receivable, that is senior to, or equal with, that of the Trust.
(q) Lawful Assignment. The Subsequent Receivable has not been originated
in, and is not subject to the laws of, any jurisdiction under which the sale,
transfer or assignment of such Subsequent Receivable hereunder or pursuant to
transfers of the Notes or Certificates are unlawful, void or voidable. Neither
M&I Bank nor any of its Affiliates has entered into any agreement with any
Obligor that prohibits, restricts or conditions the assignment of any portion of
the Subsequent Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Subsequent Receivable
is in effect whereby the Dealer warrants title to the Motor Vehicle and
indemnifies Dealer Finance and its assigns against the unenforceability of each
Subsequent Receivable sold thereunder, and the rights of Dealer Finance
thereunder, with regard to the Subsequent Receivable sold hereunder, have been
validly assigned to and are enforceable against the Dealer by the Seller, along
with any Dealer Recourse.
(s) Composition of Subsequent Receivable. No Subsequent Receivable has a
Principal Balance which includes capitalized interest, late charges or amounts
attributable to the payment of the premium for any Physical Damage Insurance
Policy.
(t) Database File. The information included with respect to each
Subsequent Receivable in the database file delivered pursuant to Section 4.9(b)
of the Sale and Servicing Agreement is accurate and complete in all material
respects.
(u) No Bankruptcies. No Obligor on any Subsequent Receivable was noted in
the related Subsequent Receivable File as having filed for bankruptcy in a
proceeding which remained undischarged as of the Subsequent Cutoff Date.
(v) Amounts. The Funding Date Pool Balance was $[ ].
(w) Aggregate Characteristics. The Subsequent Receivables had the
following characteristics in the aggregate as of the Subsequent Cutoff Date: (i)
approximately [ ]% of the Funding Date Pool Balance was attributable to loans
for purchases of new Financed Vehicles, and approximately [ ]% of the Funding
Date Pool Balance was attributable to loans for purchases of used Financed
Vehicles; (ii) approximately [ ]% of the Funding Date Pool Balance was
attributable to Subsequent Receivables the mailing addresses of the Obligors
with respect to which are located in the State of Minnesota, [ ]% of the Funding
Date Pool Balance was attributable to Subsequent Receivables the mailing
addresses of the Obligors with respect to which are located in the State of
Wisconsin and no other state accounts for more than 10% of the
EXHIBIT B-4
Funding Date Pool Balance; (iii) the weighted average Contract Rate of the
Subsequent Receivables was [ ]%; (iv) there are [ ] Subsequent Receivables being
conveyed by the Seller to the Trust; (v) the average Cutoff Date Principal
Balance of the Subsequent Receivables was $[ ]; (vi) the weighted average
original term and weighted average remaining term of the Subsequent Receivables
were [ ] months and [ ] months, respectively; and (vii) 100 % of the Subsequent
Receivables (other than those Subsequent Receivables that have been paid ahead
as of the Subsequent Cutoff Date) have their next scheduled payment date in
either [ ] or [ ] 200[_].
(x) Perfection Representations. The Perfection Representations shall be a
part of this Certificate.
EXHIBIT B-5
APPENDIX X
DEFINITIONS
"Accrued Class A Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class A Noteholders' Monthly Accrued Interest for such
Payment Date and the Class A Noteholders' Interest Carryover Shortfall for such
Payment Date.
"Accrued Class B Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class B Noteholders' Monthly Accrued Interest for such
Payment Date and the Class B Noteholders' Interest Carryover Shortfall for such
Payment Date.
"Act" is defined in Section 11.3(a) of the Indenture.
"Administration Agreement" means the Administration Agreement among M&I
Xxxxxxxx & Xxxxxx Bank, as Administrator, M&I Auto Loan Trust 2003-1, as Trust,
and BNY Midwest Trust Co., as Indenture Trustee, dated November 13, 2003, as the
same may be amended and supplemented from time to time.
"Administration Fee" is defined in Section 4 of the Administration
Agreement.
"Administrator" means M&I Xxxxxxxx & Ilsley Bank, in its capacity as
administrator under the Administration Agreement, and each successor
Administrator.
"Affiliate" means, with respect to any specified Person, any other
Person controlling, controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any specified Person solely because such other
Person has the contractual right or obligation to manage such specified Person
or act as servicer with respect to the financial assets of such specified Person
unless such other Person controls the specified Person through equity ownership
or otherwise.
"Authenticating Agent" is defined in Section 2.13 of the Indenture.
"Authorized Officer" means, with respect to the Trust, Indenture
Trustee and Servicer, any officer of Owner Trustee, Indenture Trustee or
Servicer, as applicable, who is authorized to act for Owner Trustee, Indenture
Trustee or Servicer, as applicable, in matters relating to the Trust, Indenture
Trustee or Servicer and who is identified on the list of Authorized Officers
delivered by each of the Trust, Indenture Trustee and Servicer to Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
"Available Collections" shall mean, for any Payment Date, the sum of
the following amounts with respect to the Collection Period preceding such
Payment Date: (i) all funds, including Liquidation Proceeds, collected with
respect to the Receivables other than Defaulted Receivables; (ii) all Recoveries
in respect of Defaulted Receivables (iii) all Simple Interest
2003-1 Definitions
Advances with respect to the Receivables, (iv) the Purchase Amount received with
respect to each Receivable that became a Purchased Receivable during such
Collection Period; and (v) partial prepayments of any refunded item included in
the principal balance of a Receivable, such as extended warranty protection plan
costs, or physical damage, credit life, disability insurance premiums; provided,
however, that in calculating the Available Collections the following will be
excluded: (1) amounts paid to the Servicer to reimburse Outstanding Simple
Interest Advances, (2) all payments and proceeds (including Liquidation
Proceeds) of any Receivables the Purchase Amount of which has been included in
the Available Funds in a prior Collection Period, (3) amounts consisting of the
Supplemental Servicing Fee and (4) amounts representing reimbursement for
certain Liquidation Expenses.
"Available Funds" shall mean, for any Payment Date, the sum of (i) the
Available Collections for such Payment Date, (ii) the Reserve Account Excess
Amount for such Payment Date and (iii) the interest and other investment income
on funds on deposit in the Pre-Funding Account.
"Bank One" means Bank One, National Association, a national banking
association (as agent on behalf of PREFCO), as a transferor under the Purchase
Agreement.
"Bank Regulatory Authorities" means the Federal Reserve Board, the
Federal Deposit Insurance Corporation, Office of the Comptroller of Currency and
the Wisconsin Department of Financial Institutions.
"Basic Documents" means the Purchase Agreement, the Indenture, the Note
Depository Agreement, the Sale and Servicing Agreement, the Trust Agreement, the
Administration Agreement, the Notes, the Certificates and other documents and
certificates delivered in connection therewith.
"Benefit Plan" is defined in Section 3.12 of the Trust Agreement.
"Book-Entry Note" means a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10 of the Indenture.
"Business Day" means a day that is not a Saturday or a Sunday and that
in the States of New York, Wisconsin and the State in which the Corporate Trust
Office is located is neither a legal holiday nor a day on which banking
institutions are authorized by law, regulation or executive order to be closed.
"Certificate" means a certificate evidencing the beneficial interest of
a Certificateholder in the Trust, substantially in the form of Exhibit A to the
Trust Agreement.
"Certificate Account Property" means the Certificate Distribution
Account, all amounts and investments held from time to time therein (whether in
the form of deposit account, Physical Property, book entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Certificate Distribution Account" is defined in Section 5.1 of the
Trust Agreement.
Appendix X-2 2003-1 Definitions
"Certificate Paying Agent" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.9 of the Trust Agreement and shall
initially be the Owner Trustee.
"Certificate Percentage Interest" shall mean with respect to any
Certificate, the percentage interest of ownership in the Trust represented
thereby as set forth on the face thereof.
"Certificate Register" and "Certificate Registrar" means the register
mentioned and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered on the Certificate Register.
"Class" shall mean a class of Notes, which may be the Class A-1 Notes,
the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes or the Class B
Notes.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the excess of the Class A Noteholders' Monthly
Accrued Interest for the preceding Payment Date and any outstanding Class A
Noteholders' Interest Carryover Shortfall on such preceding Payment Date, over
the amount in respect of interest that is actually paid to Noteholders of Class
A Notes on such preceding Payment Date, plus interest on the amount of interest
due but not paid to Noteholders of Class A Notes on the preceding Payment Date,
to the extent permitted by law, at the respective Interest Rates borne by such
Class A Notes for the related Interest Period.
"Class A Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, the aggregate interest accrued for the related
Interest Period on the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes at the respective Interest Rate for such Class and on
the outstanding principal amount of the Notes of each such Class on the
immediately preceding Payment Date or the Closing Date, as the case may be,
after giving effect to all payments of principal to the Noteholders of the Notes
of such Class on or prior to such preceding Payment Date.
"Class A-1 Final Scheduled Payment Date" shall mean November 22, 2004.
"Class A-1 Interest Rate" means 1.1475% per annum. Interest with
respect to the Class A-1 Notes shall be computed on the basis of actual days
elapsed and a 360-day year for all purposes of the Basic Documents.
"Class A-1 Noteholder" shall mean the Person in whose name a Class A-1
Note is registered on the Note Register.
"Class A-1 Notes" means the Class A-1 1.1475% Asset Backed Notes,
substantially in the form of Exhibit A-1 to the Indenture.
"Class A-2 Final Scheduled Payment Date" shall mean the July 20, 2006
Payment Date.
Appendix X-3 2003-1 Definitions
"Class A-2 Interest Rate" means 1.60% per annum. Interest with respect
to the Class A-2 Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Class A-2 Noteholder" shall mean the Person in whose name a Class A-2
Note is registered on the Note Register.
"Class A-2 Notes" means the Class A-2 1.60% Asset Backed Notes,
substantially in the form of Exhibit A-2 to the Indenture.
"Class A-3 Final Scheduled Payment Date" shall mean the February 20,
2008 Payment Date.
"Class A-3 Interest Rate" means 2.31% per annum. Interest with respect
to the Class A-3 Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Class A-3 Noteholder" shall mean the Person in whose name a Class A-3
Note is registered on the Note Register.
"Class A-3 Notes" means the Class A-3 2.31% Asset Backed Notes,
substantially in the form of Exhibit A-3 to the Indenture.
"Class A-4 Final Scheduled Payment Date" shall mean the April 20, 2009
Payment Date.
"Class A-4 Interest Rate" means 2.97% per annum. Interest with respect
to the Class A-4 Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Class A-4 Noteholder" shall mean the Person in whose name a Class A-4
Note is registered on the Note Register.
"Class A-4 Notes" means the Class A-4 2.97% Asset Backed Notes,
substantially in the form of Exhibit A-4 to the Indenture.
"Class B Final Scheduled Payment Date" shall mean the February 21, 2011
Payment Date.
"Class B Noteholder" shall mean the Person in whose name a Class B Note
is registered on the Note Register.
"Class B Interest Rate" means 3.45% per annum. Interest with respect to
the Class B Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months for all purposes of the Basic Documents.
"Class B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the excess of the Class B Noteholders' Monthly
Accrued Interest for the
Appendix X-4 2003-1 Definitions
preceding Payment Date and any outstanding Class B Noteholders' Interest
Carryover Shortfall on such preceding Payment Date, over the amount in respect
of interest that is actually paid to Noteholders of Class B Notes on such
preceding Payment Date, plus interest on the amount of interest due but not paid
to Noteholders of Class B Notes on the preceding Payment Date, to the extent
permitted by law, at the Class B Rate for the related Interest Period.
"Class B Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, the aggregate interest accrued for the related
Interest Period on the Class B Notes at the Class B Rate on the outstanding
principal amount of the Class B Notes on the immediately preceding Payment Date
or the Closing Date, as the case may be, after giving effect to all payments of
principal to the Noteholders of the Class B Notes on or prior to such preceding
Payment Date.
"Class B Noteholder" shall mean the Person in whose name a Class B Note
is registered on the Note Register.
"Class B Notes" means the Class B 3.45% Asset Backed Notes,
substantially in the form of Exhibit B to the Indenture.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means November 13, 2003.
"Code" means the Internal Revenue Code of 1986 and Treasury Regulations
promulgated thereunder.
"Collateral" is defined in the Granting Clause of the Indenture.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the Sale and Servicing Agreement.
"Collection Period" means, (a) in the case of the initial Collection
Period, the period from but not including the Initial Cutoff Date to and
including November 30, 2003 and (b) thereafter, each calendar month during the
term of the Sale and Servicing Agreement. With respect to any Determination
Date, Deposit Date or Payment Date, the "related Collection Period" means the
Collection Period preceding the month in which such Determination Date, Deposit
Date or Payment Date occurs.
"Collections" means all collections on the Receivables and any proceeds
from Insurance Policies.
"Commission" means the Securities and Exchange Commission.
Appendix X-5 2003-1 Definitions
"Contract Rate" means, with respect to a Receivable, the rate per annum
of interest charged on the outstanding principal balance of such Receivable.
"Controlling Note Class" shall mean, with respect to any Notes
Outstanding, the Class A Notes (voting together as a single class) as long as
any Class A Notes are Outstanding, and thereafter the Class B Notes as long as
any Class B Notes are Outstanding (excluding Notes held by M&I Bank, the
Servicer or their Affiliates).
"Corporate Trust Office" means:
(a) as used in the Indenture, or otherwise with respect to
Indenture Trustee, the principal office of Indenture Trustee at which
at any particular time its corporate trust business shall be
administered which office at date of the execution of the Indenture is
located at 0 X. XxXxxxx Xxxxxx, Xxx. 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Structured Finance Group or at such other address as
Indenture Trustee may designate from time to time by notice to the
Noteholders, Servicer and Trust, or the principal corporate trust
office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and the Trust);
and
(b) as used in the Trust Agreement, or otherwise with respect
to the Trust, the principal corporate trust office of Owner Trustee
located at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxxxx Xxxxx or at such other address as Owner Trustee
may designate by notice to the Certificateholders and Seller, or the
principal corporate trust office of any successor Owner Trustee (the
address of which the successor owner trustee will notify the
Certificateholders and Seller).
"Custodian" means Servicer in its capacity as agent of the Trust, as
custodian of the Receivable Files.
"Cutoff Date" means, the Initial Cutoff Date and any Subsequent Cutoff
Date, as applicable.
"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 Cutoff Date and allocable to principal in accordance
with the terms of such Receivable.
"Dealer" means, with respect to any Receivable, the seller of the
related Financed Vehicle.
"Dealer Agreement" means an agreement between Dealer Finance and a
Dealer pursuant to which Dealer Finance acquires Motor Vehicle Loans from the
Dealer or gives such Dealer the right to induce persons to apply to Dealer
Finance for loans in connection with the retail sale of Motor Vehicles by such
Dealer.
"Dealer Finance" means M&I Dealer Finance, Inc., a Wisconsin
corporation.
Appendix X-6 2003-1 Definitions
"Dealer Recourse" means, with respect to any Dealer, any rights and
remedies against such Dealer under the related Dealer Agreement (other than with
respect to any breach of representation or warranty thereunder) with respect to
credit losses on a Receivable secured by a Financed Vehicle sold by such Dealer.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Receivable" means, with respect to any Collection Period, a
Receivable (other than a Purchased Receivable) which Servicer has determined to
charge off during such Collection Period in accordance with its customary
servicing practices (and, in no event later than 150 days after a Receivable
shall have become delinquent).
"Definitive Notes" is defined in Section 2.1 of the Indenture.
Delinquency Ratio" means, for any Collection Period, the ratio,
expressed as a percentage, of (a) the aggregate Principal Balance of all
Receivables that are 60 or more days delinquent as of the last date of such
Collection Period to (b) the aggregate Principal Balance of the Receivables as
of the last day of such Collection Period.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" as defined in Section 9-102(47) of the UCC and
are susceptible of physical delivery, transfer thereof to the Indenture
Trustee or its nominee or custodian by physical delivery to the
Indenture Trustee or its nominee or custodian endorsed to, or
registered in the name of, the Indenture Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a "certificated
security" (as defined in Section 8-102 of the UCC) transfer thereof (i)
by delivery of such certificated security endorsed to, or registered in
the transfer thereof (i) by delivery of such certificated security
endorsed to, or registered in the name of, the Indenture Trustee or its
nominee or custodian to the Indenture Trustee or its nominee or
custodian, or to another person, other than a "securities intermediary"
(as defined in Section 8-102(14) of the UCC), who acquires possession
of the certificated security on behalf of the Indenture Trustee or its
nominee or custodian or, having previously acquired possession of the
certificate, acknowledges that it holds for the Indenture Trustee or
its nominee or custodian or (ii) by delivery thereof to a "securities
intermediary", endorsed to the Indenture Trustee or its nominee or
custodian, and the making by such "securities intermediary" of entries
on its books and records identifying such certificated securities as
belonging to the Indenture Trustee or its nominee or custodian and the
sending by such "securities intermediary" of a confirmation of the
purchase of such certificated security by the Indenture Trustee or its
nominee or custodian, or (iii) by delivery thereof to a "clearing
corporation" (all of the foregoing, "Physical Property"), and, in any
event, any such Physical Property in registered form shall be in the
name of the Indenture Trustee or its nominee or custodian; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust
Appendix X-7 2003-1 Definitions
Account Property to the Indenture Trustee or its nominee or custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal
National Mortgage Association that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations, the following procedures, all in accordance with
applicable law, including applicable Federal regulations and Articles 8
and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a "depository"
pursuant to applicable Federal regulations and issuance by such
financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Indenture Trustee
or its nominee or custodian of the purchase by the Indenture Trustee or
its nominee or custodian of such book-entry securities; the making by
such financial intermediary of entries in its books and records
identifying such book entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such
custodian holds such Trust Account Property solely as agent for the
Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the interpretation thereof;
and
(c) with respect to any item of Trust Account Property that is
an uncertificated security (as defined in Section 8-102(18) of the UCC)
and that is not governed by clause (b) above, (i) registration on the
books and records of the issuer thereof in the name of the Indenture
Trustee or its nominee or custodian, or (ii) registration on the books
and records of the issuer thereof in the name of another person, other
than a securities intermediary, who acknowledges that is holds such
uncertificated security for the benefit of the Indenture Trustee or its
nominee or custodian.
"Deposit Date" means, with respect to any Collection Period, two
Business Days preceding the related Payment Date.
"Determination Date" means with respect to any Collection Period, the
Business Day preceding the related Payment Date by two Business Days.
"Dollar" and the sign "$" mean lawful money of the United States.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution acting in its fiduciary capacity
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as the long-term unsecured debt of such depository
institution shall have a credit rating from each Rating Agency in one of its
generic rating categories which signifies investment grade. Any such trust
account may be maintained with the Owner Trustee, Indenture Trustee or
Appendix X-8 2003-1 Definitions
any of their respective Affiliates and any such trust account (other than the
Reserve Account and the Pre-Funding Account) may be maintained with M&I Xxxxxxxx
& Xxxxxx Bank, or any of its Affiliates, if such accounts meet the requirements
described in clause (b) of the preceding sentence.
"Eligible Institution" means a depository institution (which may be
Servicer, Owner Trustee or Indenture Trustee, or any of their respective
Affiliates) 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), (a) which has (i) either a long-term senior unsecured debt rating
of AA- or a short-term senior unsecured debt or certificate of deposit rating of
A-1 or better by Standard & Poor's and (ii)(A) a short-term senior unsecured
debt rating of A-l or better by Standard & Poor's and (B) a short-term senior
unsecured debt rating of P-1 or better by Moody's, or any other long-term,
short-term or certificate of deposit rating acceptable to the Rating Agencies
and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.
If so qualified, Servicer, any Affiliate of Servicer, Owner Trustee or Indenture
Trustee may be considered an Eligible Institution.
"Eligible Investments" shall mean any one or more of the following types of
investments:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution (including any Affiliate of Seller, Servicer,
Indenture Trustee or Owner Trustee) or trust company incorporated under the
laws of the United States of America or any state thereof or the District
of Columbia (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or state banking or depository
institution authorities (including depository receipts issued by any such
institution or trust company as custodian with respect to any obligation
referred to in clause (a) above or a portion of such obligation for the
benefit of the holders of such depository receipts); provided that at the
time of the investment or contractual commitment to invest therein (which
shall be deemed to be made again each time funds are reinvested following
each Payment Date), the commercial paper or other short-term senior
unsecured debt obligations (other than such obligations the rating of which
is based on the credit of a Person other than such depository institution
or trust company) of such depository institution or trust company shall
have a credit rating from Standard & Poor's of A-1 and from Moody's of P-1;
(c) commercial paper (including commercial paper of any Seller,
Servicer and the Indenture Trustee, Owner Trustee or any of their
Affiliates) having, at the time of the investment or contractual commitment
to invest therein, a rating from Standard & Poor's of A-1 and from Moody's
of P-1;
(d) investments in money market funds (including funds for which
Indenture Trustee or Owner Trustee or any of their respective Affiliates or
any of Seller's Affiliates
Appendix X-9 2003-1 Definitions
is investment manager or advisor) having a rating from Standard & Poor's of
AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) referred to in clause (b) above; and
(g) any other investment with respect to which each Rating Agency has
provided written notice that such investment would not cause such Rating
Agency to downgrade, qualify or withdraw its then current rating of any
class of Notes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 5.1 of the Indenture.
"Excess Interest" means, for any Payment Date, (a) the sum of funds
available to pay interest on any Payment Date over (b) the amount necessary to
pay Servicing Fees and to make interest payments on the Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, Chief
Accounting Officer, President, Executive Vice President, any Vice President, the
Secretary or the Treasurer of such corporation; and with respect to any limited
liability company or partnership, a similar official with respect to any direct
or indirect member or general partner thereof.
"Final Scheduled Payment Date," for each Class of Notes, means the
respective Class A-1 Final Scheduled Payment Date, Class A-2 Final Scheduled
Payment Date, Class A-3 Final Scheduled Payment Date, Class A-4 Final Scheduled
Payment Date and Class B Final Scheduled Payment Date or, if such date is not a
Business Day, the next succeeding Business Day.
"Financed Vehicle" means a new or used automobile or light duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Funding Date" means each date (not more than once per week) during the
Pre-Funding Period on which Subsequent Receivables are purchased by the Trust.
"Funding Date Pool Balance" means the Pool Balance of the Subsequent
Receivables transferred on a Funding Date as of the related Subsequent Cutoff
Date.
"GAAP" is defined in Section 10.1 of the Sale and Servicing Agreement.
Appendix X-10 2003-1 Definitions
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, xxxxx x Xxxx upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto. Other forms of the verb "to Grant"
shall have correlative meanings.
"Holder" means, as the context may require, a Certificateholder or a
Noteholder or both.
"Indemnified Parties" is defined in Section 8.2 of the Trust Agreement.
"Indenture" means the Indenture dated as of November 13, 2003, among M&I
Bank, the Trust and Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means BNY Midwest Trust Co., an Illinois trust company,
not in its individual capacity but as indenture trustee under the Indenture, or
any successor trustee under the Indenture.
"Independent" means, when used with respect to any specified Person, that
the person (a) is in fact independent of the Trust, any other obligor upon the
Notes, Sellers and any Affiliate of any of the foregoing persons, (b) does not
have any direct financial interest or any material indirect financial interest
(other than less than 5% of the outstanding amount of any publicly traded
security) in the Trust, any such other obligor, Servicer or any Affiliate of any
of the foregoing Persons and (c) is not connected with the Trust, any such other
obligor, Servicer or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
Indenture Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1 of the Indenture, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Administrator in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in the Indenture and that the signer is Independent within the meaning thereof.
"Initial Cutoff Date" means, with respect to the Receivables transferred on
the Closing Date, the close of business on November 7, 2003.
"Initial Pre-Funding Deposit" is defined in Section 5.3(b) of the Sale and
Servicing Agreement.
"Initial Principal Balance" means, in respect of a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and related costs, including accessories, service and warranty contracts,
insurance premiums, other items
Appendix X-11 2003-1 Definitions
customarily financed as part of retail motor vehicle loans and/or retail
installment sales contracts and other fees charged by M&I Xxxxxxxx & Xxxxxx
Bank, its Affiliates or the applicable Dealer and included in the amount to be
financed, the total of which is shown as the initial principal balance in the
note and security agreement or retail installment sale contract evidencing and
securing such Receivable.
"Initial Purchase Price" is defined in Section 2.3 of the Purchase
Agreement.
"Initial Purchased Assets" is defined in Section 2.1 of the Purchase
Agreement.
"Initial Reserve Account Deposit" is defined in Section 5.8(b) of the Sale
and Servicing Agreement.
"Initial Reserve Account Deposit Amount" means an amount equal to
$4,789,606.17 which is (i) 0.50% of the aggregate Principal Balance of the
Receivables as of the Initial Cutoff Date plus (ii) $1,326,845.39 which is the
amount expected to cover the negative arbitrage with respect to funds deposited
in the Pre-Funding Account after the Closing Date.
"Initial Trust Property" is defined in Section 2.1 of the Sale and
Servicing Agreement.
"Insolvency Event" means, for a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an involuntary
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver (including any
receiver appointed under the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended), liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such Person to
the entry of an order for relief in an involuntary case under any such law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the foregoing.
"Insurance Policies" means, all credit life and disability insurance
policies maintained by the Obligors and all Physical Damage Insurance Policies.
"Interest Distribution Account" shall mean the account designated as such,
established and maintained as such pursuant to the Sale and Servicing Agreement.
"Interest Period" shall mean, with respect to any Payment Date (i) with
respect to the Class A-1 Notes from and including the Closing Date (in the case
of the first Payment Date) or from and including the most recent Payment Date on
which interest has been paid to but excluding the following Payment Date and
(ii) with respect to each Class of Notes other than the Class A-1 Notes from and
including the Closing Date (in the case of the first Payment Date) or
Appendix X-12 2003-1 Definitions
from and including the twentieth day of the calendar month preceding each
Payment Date to but excluding the twentieth day of the following calendar month.
"Interest Rate" means, with respect to the (a) Class A-1 Notes, the Class
A-1 Interest Rate, (b) Class A-2 Notes, the Class A-2 Interest Rate, (c) Class
A-3 Notes, the Class A-3 Interest Rate, (d) Class A-4 Notes, the Class A-4
Interest Rate and (e) Class B Notes, the Class B Interest Rate.
"IRS" shall mean the Internal Revenue Service.
"Issuer Order" and "Issuer Request" means a written order or request signed
in the name of the Trust by any one of the Authorized Officers of the Owner
Trustee and delivered to Indenture Trustee.
"Lien" means a security interest, lien, charge, pledge, preference,
participation interest or encumbrance of any kind, other than liens for taxes
not yet due and payable, mechanics' or materialmen's liens and other liens for
work, labor or materials, and any other liens that may attach by operation of
law.
"Liquidation Proceeds" means, with respect to any Receivable that is not a
Defaulted Receivable, (a) insurance proceeds received by Servicer with respect
to the Insurance Policies, (b) amounts received by Servicer in connection with
such Receivable pursuant to the exercise of rights under that Receivable and (c)
the monies collected by Servicer (from whatever source, including proceeds of a
sale of a Financed Vehicle or as a result of any Dealer Recourse) on such
Receivable net of any expenses incurred by Servicer in connection therewith and
any payments required by law to be remitted to the Obligor.
"M&I Bank" means M&I Xxxxxxxx & Ilsley Bank, a banking corporation
organized under the laws of the State of Wisconsin.
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Motor Vehicle" means a new or used automobile or light duty truck.
"Motor Vehicle Loan" means retail installment sales contract secured by a
Motor Vehicle originated by a Dealer and purchased by M&I Xxxxxxxx & Xxxxxx Bank
or its Affiliates.
"Net Loss Ratio" means, for any Collection Period, the ratio, expressed as
an annualized percentage, of (a) Realized Losses minus Recoveries for such
Collection Period, to (b) the average of the aggregate Principal Balance of the
Receivables as of the last day of the immediately preceding Collection Period
and the last day of such Collection Period.
"Northwoods" means M&I Northwoods III LLC, a Delaware limited liability
company, as a transferor under the Purchase Agreement.
"Note" means a Class A Note or Class B Note.
Appendix X-13 2003-1 Definitions
"Note Distribution Account" means the account designated as such,
established and maintained as such pursuant to Section 5.1 of the Sale and
Servicing Agreement.
"Note Depository Agreement" means the letter of representations among the
Trust, the Note Paying Agent and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Notes, as the
same may be amended or supplemented from time to time.
"Note Owner" means, with respect to a Book-Entry Note, the person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Indenture Trustee to make
payments to and distributions from the Trust Accounts, including payment of
principal of or interest on the Notes on behalf of the Trust.
"Note Pool Factor" for each class of Notes as of the close of business on a
Payment Date means a seven-digit decimal figure equal to the outstanding
principal balance of such class of Notes divided by the original outstanding
principal balance of such class of Notes. The Note Pool Factor for each class of
Notes will be 1.0000000 as of the Cutoff Date; thereafter, the Note Pool Factor
for each class of Notes will decline to reflect reductions in the outstanding
principal balance of such class of Notes.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register.
"Note Register" and "Note Registrar" are defined in Section 2.4 of the
Indenture.
"Obligor" means, with respect to a Receivable, the borrower or co-borrowers
under the related Receivable and any co-signer of the Receivable or other Person
who owes or may be primarily or secondarily liable for payments under such
Receivable.
"Officer's Certificate" means: (a) for purposes of the Indenture, a
certificate signed by any Authorized Officer of the Trust, under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.1 and TIA ss. 314, and delivered to Indenture
Trustee; and (b) otherwise, a certificate signed by the chairman, the president,
any vice president or the treasurer of Seller or Servicer, as the case may be,
and delivered to Indenture Trustee. Unless otherwise specified, any reference in
the Indenture to an Officer's Certificate shall be to an Officer's Certificate
of any Authorized Officer of the Owner Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who may,
except as otherwise expressly provided in the Indenture, be employees of or
counsel to the Owner Trustee and who shall be satisfactory to Owner Trustee or
Indenture Trustee, as applicable, and which opinion or opinions shall be
addressed to Owner Trustee, or Indenture Trustee, as applicable and shall be in
form and substance satisfactory to the Owner Trustee, and Indenture Trustee, as
applicable.
Appendix X-14 2003-1 Definitions
"Original Pool Balance" means the Pool Balance as of the Initial Cutoff
Date, which is $692,552,156.94.
"Originator" means M&I Dealer Finance, Inc., a Wisconsin corporation.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture except:
(a) Notes theretofore canceled by Note Registrar or delivered to Note
Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes (provided that if
such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to the Indenture or provision therefor, satisfactory to
Indenture Trustee); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to Indenture Trustee is presented that any such Notes are held
by a bona fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned by
the Trust, any other obligor upon the Notes, Seller or any Affiliate of any of
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes that a Responsible Officer of Indenture Trustee either
actually knows to be so owned or has received written notice thereof shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Trust, any other obligor upon the Notes, Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes, or
class of Notes, as applicable, Outstanding at the date of determination.
"Outstanding Simple Interest Advances" as of the last day of a Collection
Period, the sum of all Simple Interest Advances made as of or prior to such date
minus the sum of all payments to the Servicer as of or prior to such date
pursuant to Section 5.5(b) of the Sale and Servicing Agreement; provided,
however, that Outstanding Simple Interest Advances shall never be deemed to be
less than zero.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and all other property
of the Trust from time to time, including any rights of the Trust pursuant to
the Sale and Servicing Agreement.
Appendix X-15 2003-1 Definitions
"Owner Trustee" means Deutsche Bank Trust Company Delaware, a banking
corporation incorporated in the State of Delaware, not in its individual
capacity but solely as owner trustee under the Trust Agreement, and any
successor Owner Trustee hereunder.
"Paying Agent" means: (a) when used in the Indenture or otherwise with
respect to the Notes, Indenture Trustee or any other Person that meets the
eligibility standards for Indenture Trustee specified in Section 6.11 of the
Indenture and is authorized by the Owner Trustee to make the payments to and
distributions from the Collection Account and the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of the
Owner Trustee; and (b) when used in the Trust Agreement or otherwise with
respect to the Certificates, Owner Trustee or any other paying agent or
co-paying agent appointed pursuant to Section 3.9 of the Trust Agreement.
"Payment Date" means the 20th day of each month (or, if the 20th day is not
a Business Day, the next succeeding Business Day), commencing December 22, 2003.
"Perfection Representation" means the representations attached as Schedule
C to the Sale and Servicing Agreement or Schedule A to the Purchase Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Physical Damage Insurance Policy" means a theft and physical damage
insurance policy maintained by the Obligor under a Receivable, providing
coverage against loss or damage to or theft of the related Financed Vehicle.
"Physical Property" is defined in the definition of "Delivery" above.
"Pool Balance" means, at any time, the aggregate Principal Balance of the
Receivables at the end of the preceding Collection Period, after giving effect
to all payments received from Obligors, Liquidation Proceeds and Purchased
Amounts to be remitted by the Servicer, all for such Collection Period, and all
Realized Losses during such Collection Period.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"PREFCO" means Preferred Receivables Funding Corporation, a Delaware
corporation.
"Pre-Funding Account" means the account by that name established and
maintained pursuant to Section 5.3 of the Sale and Servicing Agreement.
"Pre-Funding Account Property" is defined in Section 8.7(c) of the
Indenture.
Appendix X-16 2003-1 Definitions
"Pre-Funding Amount" means the amount which shall be deposited to the
Pre-Funding Account on the Closing Date, which amount is equal to
$157,447,843.06.
"Pre-Funding Period" means the period beginning on the Closing Date and
ending upon the earliest to occur of (i) the sixth full calendar month following
the Closing Date, (ii) the date upon which an Event of Default has occurred and
is continuing and (iii) the date on which the amount on deposit in the
Pre-Funding Account has been reduced to $10,000 or less.
"Principal Balance" means, as of any time, for any Receivable, the
principal balance of such Receivable under the terms of the Receivable
determined in accordance with the Servicer's customary practices.
"Principal Distribution Account" shall mean the account designated as such,
established and maintained as such pursuant to the Sale and Servicing Agreement.
"Principal Distribution Amount" shall mean, with respect to any Payment
Date, an amount not less than zero equal to the greater of (i) the outstanding
Principal Balance of the Class A-1 Notes as of the preceding Payment Date (after
giving effect to any principal payments made on the Class A-1 Notes on such
preceding Payment Date) or the Closing Date, as the case may be; and (ii) the
excess, if any, of (a) the sum of the outstanding Principal Balance of all the
Notes as of the preceding Payment Date (after giving effect to any principal
payments made on the Notes on such preceding Payment Date) or the Closing Date,
as the case may be, over (b) the Pool Balance at the end of the Collection
Period preceding such Payment Date and the funds on deposit in the Pre-Funding
Account (other than interest and investment income); provided, however, that the
Principal Distribution Amount shall not exceed the sum of the outstanding
Principal Balance of all of the Notes on such Payment Date; and provided,
further, that the Principal Distribution Amount on and after the Final Scheduled
Payment Date of a Class of Notes shall not be less than the amount that is
necessary to reduce the outstanding Principal Balance of such Class of Notes and
all earlier maturing Classes of Notes and all Classes of Notes maturing on the
same date to zero.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Agreement" means the agreement dated as of November 13, 2003
among M&I Bank, Northwoods, Bank One (as agent on behalf of PREFCO) and Seller
under which M&I Bank, Northwoods and Bank One (as agent on behalf of PREFCO)
sold the Receivables to Seller and M&I Bank and Northwoods sold any right, title
and interest it owned in the Receivables to Seller.
"Purchase Amount" of any Receivable means, with respect to any Deposit Date
and the last day of the related Collection Period, an amount equal to the sum of
(a) the outstanding Principal Balance of such Receivable as of the last day of
such Collection Period and (b) the amount of accrued and unpaid interest on such
Principal Balance at the related Contract Rate from the date a payment was last
made by or on behalf of the Obligor through and including the last day of such
Collection Period, in each case after giving effect to the receipt of monies
collected on such Receivable in such Collection Period.
Appendix X-17 2003-1 Definitions
"Purchased Assets" is defined is Section 2.2 of the Purchase Agreement.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by Servicer pursuant to Section
4.7 or Section 3.3 of the Sale and Servicing Agreement.
"Rating Agencies" means Moody's and Standard & Poor's.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable to the Rating Agencies) and that none of
the Rating Agencies shall have notified Seller, Servicer, Owner Trustee or
Indenture Trustee in writing that such action will, in and of itself, result in
a reduction, qualification or withdrawal of the then current rating of any class
of Notes, or the Certificates.
"Realized Losses" means, for any Collection Period and for each Receivable
that became a Defaulted Receivable during such Collection Period, the aggregate
Principal Balance of each such Receivable when such Receivable became a
Defaulted Receivable.
"Receivable" means each Motor Vehicle Loan described in the Schedule of
Receivables on the Closing Date and each Motor Vehicle Loan described in the
Schedule of Receivables on each Funding Date, but excluding (i) Defaulted
Receivables to the extent the Principal Balances thereof have been deposited in
the Collection Account and (ii) any Purchased Receivables.
"Receivable Files" is defined in Section 3.4 of the Sale and Servicing
Agreement.
"Record Date" means, with respect to any Payment Date or Redemption Date,
the close of business on the day immediately preceding such Payment Date or
Redemption Date; or, if Definitive Notes or Definitive Certificates have been
issued, the last day of the month preceding such Payment Date or Redemption
Date.
"Recoveries" mean, with respect to any Collection Period, all monies
received by the Servicer with respect to any Defaulted Receivable after such
Receivable became a Defaulted Receivable, net of any fees, costs and expenses
incurred by the Servicer in connection with the collection of such Receivable
and any payments required by law to be remitted to the Obligor.
"Redemption Date" means in the case of a redemption of the Notes pursuant
to Section 10.1 of the Indenture, the Payment Date specified by Servicer or the
Owner Trustee pursuant to such Section 10.1.
"Redemption Price" means, in the case of a redemption of the Notes pursuant
to Section 10.1 of the Indenture, an amount equal to the unpaid principal amount
of the then outstanding Notes plus accrued and unpaid interest thereon to but
excluding the Redemption Date.
"Related Agreements" shall have the meaning specified in the recitals to
the Administration Agreement.
Appendix X-18 2003-1 Definitions
"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 Standard & Poor's.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 8.6 of the Indenture.
"Reserve Account Deposit" means (a) on the Closing Date, the Initial
Reserve Account Deposit and (b) on each Funding Date, the Subsequent Reserve
Account Deposit.
"Reserve Account Excess Amount" means, with respect to any Payment Date,
and after the end of the Pre-Funding Period, an amount equal to the excess, if
any, of (a) the amount of cash or other immediately available funds in the
Reserve Account on that Payment Date (other than interest income and earnings),
prior to giving effect to any withdrawals from the Reserve Account relating to
that Payment Date, over (b) the Specified Reserve Balance with respect to that
Payment Date.
"Reserve Account Property" means the Reserve Account, the Reserve Account
Deposit and all proceeds of the Reserve Account and the Reserve Account Deposit,
including all securities, investments, general intangibles, financial assets and
investment property from time to time credited to and any security entitlement
to the Reserve Account.
"Reserve Account Transfer Amount" means, with respect to any Payment Date,
an amount equal to the lesser of (a) the amount of cash or other immediately
available funds on deposit in the Reserve Account on such Payment Date (other
than interest income and earnings) (after giving effect to any withdrawal of the
Reserve Account Excess Amount on such Payment Date) and (b) the amount, if any,
by which (i) the Total Required Payments for such Payment Date exceeds (ii) the
Available Funds for such Payment Date.
"Responsible Officer" means, with respect to Indenture Trustee, any officer
within the Corporate Trust Office of Indenture Trustee and having responsibility
with respect to the Notes and the other Basic Documents, and, with respect to
the Owner Trustee, any officer within the Corporate Trust Office of the Owner
Trustee and having direct responsibility for the administration of the Trust,
including any Vice President, Assistant Vice President, Assistant Treasurer,
Assistant Secretary, or any other officer of Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement among
the Trust, Indenture Trustee, M&I Bank, as Servicer, and M&I Dealer Auto
Securitization, LLC, as Seller, dated as of November 13, 2003, as the same may
be amended and supplemented from time to time.
"Schedule of Receivables" means, with respect to the Motor Vehicle Loans to
be conveyed to Seller by M&I Bank, Northwoods and Bank One (as agent on behalf
of PREFCO) and to the Trust by Seller, the list identifying such Motor Vehicle
Loans delivered to Indenture Trustee on the Closing Date and on each Funding
Date.
Appendix X-19 2003-1 Definitions
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Intermediary" is defined in Section 5.8 of the Sale and
Servicing Agreement.
"Seller" means M&I Dealer Auto Securitization, LLC, a Delaware limited
liability company, and any Successors pursuant to Section 6.4 of the Sale and
Servicing Agreement.
"Servicer" means M&I Bank and each Successor Servicer.
"Servicer Termination Event" means an event specified in Section 8.1 of the
Sale and Servicing Agreement.
"Servicer's Report" means a report of Servicer delivered pursuant to
Section 4.9 of the Sale and Servicing Agreement, substantially in the form of
Exhibit A to that agreement.
"Servicing Fee" is defined in Section 4.8 of the Sale and Servicing
Agreement.
"Servicing Rate" means, if M&I Bank or its Affiliate is the Servicer, 0.50%
per annum, otherwise 1.00% per annum.
"Simple Interest Advances" means the amount advanced into the Collection
Account on or before each Payment Date which is equal to the amount of interest
that would have been received during the related Collection Period on all
delinquent Receivables assuming that the payment on each such delinquent
Receivable would have been received on its respective due date during such
Collection Period.
"Simple Interest Method" means the method of allocating fixed level payment
monthly installments between principal and interest, pursuant to which such
payment is allocated first to accrued and unpaid interest at the Contract Rate
on the unpaid principal balance 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 Balance" for a Payment Date will be equal to 0.50% of
the sum of the aggregate Principal Balance of the Receivables as of the Initial
Cutoff Date and the aggregate Principal Balance of all Subsequent Receivables as
of the related Subsequent Cutoff Date. In no event will the Specified Reserve
Balance exceed the aggregate Principal Balance of the Receivables as of the last
day of the related Collection Period.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of America or
the District of Columbia.
Appendix X-20 2003-1 Definitions
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, as
amended from time to time.
"Subsequent Cutoff Date" means, with respect to the Subsequent Receivables
transferred to the Trust on any Funding Date, the close of business on the
Business Day two Business Days prior to such Funding Date.
"Subsequent Purchase Price" is defined in Section 2.4 of the Purchase
Agreement.
"Subsequent Purchased Assets" is defined in Section 2.2 of the Purchase
Agreement.
"Subsequent Receivables" means the Receivables originated by the
Originator, purchased by the Seller and transferred to the Trust on each Funding
Date.
"Subsequent Reserve Account Deposit" means, with respect to a Funding Date,
an amount equal to 0.50% of the aggregate Principal Balance as of the related
Subsequent Cutoff Date of the Subsequent Receivables being transferred to the
Trust on such Funding Date.
"Subsequent Trust Property" is defined in Section 2.2 of the Sale and
Servicing Agreement.
"Successor Servicer" is defined in Section 3.7(e) of the Indenture.
"Supplemental Servicing Fee" is defined in Section 4.8 of the Sale and
Servicing Agreement.
"Total Distribution Amount" means, for each Payment Date, the sum of (a)
the Available Funds, and (b) the Reserve Account Transfer Amount, in each case
in respect of such Payment Date.
"Total Required Payment" shall mean, with respect to any Payment Date, the
sum of the Servicing Fee and all unpaid Servicing Fees from prior Collection
Periods, the Accrued Class A Note Interest, the Accrued Class B Note Interest
and the Principal Distribution Amount (without giving effect to clause (i) of
such definition); provided, however, that following the occurrence and during
the continuation of an Event of Default which has resulted in an acceleration of
the Notes, on any Payment Date until the Payment Date on which the outstanding
principal amount of all the Notes has been paid in full, the Total Required
Payment shall mean the sum of the Servicing Fee and all unpaid Servicing Fees
from prior Collection Periods, the Accrued Class A Note Interest, the Accrued
Class B Note Interest and the amount necessary to reduce the outstanding
Principal Balance of all the Notes to zero.
"Transferors" means M&I Bank, Northwoods and Bank One (as agent on behalf
of PREFCO), collectively.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code.
Appendix X-21 2003-1 Definitions
"Trust" shall mean M&I Auto Loan Trust 2003-1, a Delaware statutory trust
established pursuant to the Trust Agreement.
"Trust Accounts" is defined in Section 5.1 of the Sale and Servicing
Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of November 13, 2003, among the Administrator, the Seller and Owner Trustee, as
the same may be amended and supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other property that
are subject or intended to be subject to the Lien and security interest of the
Indenture for the benefit of the Noteholders (including all property and
interests Granted to Indenture Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder, as in force on
the date hereof, unless otherwise specifically provided.
"Trust Property" shall have the meaning set forth in Section 2.2 of the
Sale and Servicing Agreement.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
Appendix X-22 2003-1 Definitions
