INTERCREDITOR AND MASTER
COLLECTION ACCOUNT AGREEMENT
INTERCREDITOR AND
MASTER COLLECTION ACCOUNT AGREEMENT, dated as of December 7,
2006 (the “ Agreement ”) among,
WELLS FARGO
BANK, NATIONAL ASSOCIATION, in its capacity as the Collateral
Custodian under the Wachovia Warehouse Agreement, the Trust
Collateral Agent under the Existing Securitizations, the Indenture
Trustee under the Existing Indentures and the Master Collection
Account Agent under this Agreement (“ Wells Fargo
”),
WACHOVIA
CAPITAL MARKETS, LLC, in its capacity as the Administrative Agent
under the Wachovia Warehouse Agreement (“ Wachovia
Warehouse Collateral Agent ”),
DRIVE CONSUMER
USA INC. (“ Drive ”),
DRIVE WAREHOUSE
LP (“ Drive Warehouse ”),
DRIVE
RECEIVABLES CORP. 6, DRIVE RECEIVABLES CORP. 7, DRIVE RECEIVABLES
CORP. 8, DRIVE RECEIVABLES CORP. 9, DRIVE RECEIVABLES CORP. 10,
DRIVE RECEIVABLES CORP. 11 and DRIVE RECEIVABLES CORP. 12 (each a
“ Seller ” and collectively the “
Existing Sellers ”),
DRIVE AUTO
RECEIVABLES TRUST 2003-2, DRIVE AUTO RECEIVABLES TRUST 2004-1,
DRIVE AUTO RECEIVABLES TRUST 2005-1, DRIVE AUTO RECEIVABLES TRUST
2005-2, DRIVE AUTO RECEIVABLES TRUST 2005-3, DRIVE AUTO RECEIVABLES
TRUST 2006-1 AND DRIVE AUTO RECEIVABLES TRUST 2006-2, (each a
“ Trust ” or an “ Issuer ”
and collectively the “ Existing Trusts ” or the
“ Existing Issuers ”),
MBIA INSURANCE
CORPORATION, in its capacity as the Class A Insurer under the
MBIA Securitizations (“ MBIA ”), and
FINANCIAL
SECURITY ASSURANCE INC., in its capacity the Class A Insurer
under the FSA Securitizations (“ FSA
”).
WHEREAS, Drive is
primarily engaged in the business of originating and/or servicing
retail installment contracts for new and used motor vehicles
(collectively, the “ Contracts ”);
WHEREAS, Drive has
sold and anticipates selling Contracts to Drive Warehouse pursuant
to the Warehouse Master Purchase Agreement;
WHEREAS, Drive
Warehouse finances under the Wachovia Warehouse Agreement the
purchase of Contracts from Drive pursuant to which Drive Warehouse
has granted to the Wachovia Warehouse Collateral Agent a security
interest in such Contracts and the collections thereon for the
benefit of the Lenders and the Investors under the Wachovia
Warehouse Agreement;
WHEREAS, Drive
Warehouse distributed to Drive, Drive has contributed to the
Sellers and the Sellers have sold portfolios of Contracts to the
Trusts under the Securitizations and the Trusts have granted to the
Indenture Trustee a security interest in such Contracts and the
collections thereon for the benefit of the Class A Insurers,
the Account Party, the Reserve Account Letter of Credit Bank and
the Noteholders (as defined in each Securitization), as their
respective interests may appear;
WHEREAS, payments
with respect to all of the Contracts owned by Drive, Drive
Warehouse and the Trusts (“ Remittances ”) are
deposited into the Master Collection Account and distributed to the
various Collection Accounts;
WHEREAS, the
parties hereto have agreed that the Master Collection Account Agent
shall be appointed as their agent to hold Remittances deposited
into the Master Collection Account pending distribution to the
Collection Account for the Transaction which owns the related
Contract, and the Master Collection Account Agent has agreed to act
as such; and
WHEREAS, the
parties hereto desire to enter into this Agreement to delineate the
rights and obligations of the parties hereto with respect to
Remittances.
NOW, THEREFORE, in
consideration of the recitals set forth above and the mutual
covenants contained herein, the parties hereto hereby agree as
follows:
“
Accession Agreement ” means an Accession Agreement in
the form of Exhibit A attached hereto.
“
Applicable Servicer ” has the meaning set forth in
Section 2.4 hereof.
“
Business Day ” means any day other than (a) a
Saturday or a Sunday or (b) a day on which a Class A
Insurer is closed or (c) banking institutions or trust
companies located in the states of Delaware, Minnesota, Texas or
the City of New York are authorized or obligated by law, executive
order, or governmental decree to be closed.
“
Class A Insurers ” means FSA, MBIA and any other
insurer designated as a “Class A Insurer” in an
Accession Agreement.
2
“
Collection Account ” means the collateral or
collection account established for each Transaction.
“ Drive
Entities ” means Drive and Drive Warehouse.
“ Drive
2003-2 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of July 1, 2003, among Drive Auto Receivables Trust 2003-2, as
Issuer, Drive Consumer USA Inc. (successor to BoS (USA) Inc.),
as Sponsor, Drive Receivables Corp. 6, as Seller, Drive Consumer
USA Inc. (successor to Drive Financial Services LP), as Master
Servicer, Wells Fargo Bank, National Association (formerly Wells
Fargo Bank Minnesota, National Association), in its capacity as
Indenture Trustee and Trust Collateral Agent, and Wells Fargo
Servicing Solutions, LLC, in its capacity as Back-up Servicer, as
it may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof and the other
transaction documents related thereto.
“ Drive
2003-2 Indenture ” means the Indenture dated as of
July 1, 2003 between Drive Auto Receivables Trust 2003-2, as
Issuer, and Wells Fargo Bank, National Association (formerly Wells
Fargo Bank Minnesota, National Association), in its capacity as
Indenture Trustee.
“ Drive
2004-1 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of June 1, 2004, among Drive Auto Receivables Trust 2005-1, as
Issuer, Drive Consumer USA Inc. (successor to BoS (USA) Inc.),
as Sponsor, Drive Receivables Corp. 7, as Seller, Drive Consumer
USA Inc. (successor to Drive Financial Services LP), as Master
Servicer, Wells Fargo Bank, National Association, in its capacity
as Indenture Trustee and Trust Collateral Agent, and Wells Fargo
Servicing Solutions, LLC, in its capacity as Back-up Servicer, as
it may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof and the other
transaction documents related thereto.
“ Drive
2004-1 Indenture ” means the Indenture dated as of
June 1, 2004 between Drive Auto Receivables Trust 2004-1, as
Issuer, and Wells Fargo Bank, National Association, in its capacity
as Indenture Trustee.
“ Drive
2005-1 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of February 1, 2005, among Drive Auto Receivables Trust
2005-1, as Issuer, Drive Consumer USA Inc. (successor to BoS
(USA) Inc.), as Sponsor, Drive Receivables Corp. 8, as Seller,
Drive Consumer USA Inc. (successor to Drive Financial Services LP),
as Master Servicer, Wells Fargo Bank, National Association, in its
capacity as Indenture Trustee, Trust Collateral Agent and Back-up
Servicer, as it may from time to time be amended, supplemented or
otherwise modified in accordance with the terms thereof and the
other transaction documents related thereto.
“ Drive
2005-1 Indenture ” means the Indenture dated as of
February 1, 2005 between Drive Auto Receivables Trust 2005-1,
as Issuer, and Wells Fargo Bank, National Association, in its
capacity as Indenture Trustee.
3
“ Drive
2005-2 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of June 1, 2005, among Drive Auto Receivables Trust 2005-2, as
Issuer, Drive Consumer USA Inc. (successor to BoS (USA) Inc.),
as Sponsor, Drive Receivables Corp. 9, as Seller, Drive Consumer
USA Inc. (successor to Drive Financial Services LP), as Master
Servicer, Wells Fargo Bank, National Association, in its capacity
as Indenture Trustee, Trust Collateral Agent and Back-up Servicer,
as it may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof and the other
transaction documents related thereto.
“ Drive
2005-2 Indenture ” means the Indenture dated as of
June 1, 2005 between Drive Auto Receivables Trust 2005-2, as
Issuer, and Wells Fargo Bank, National Association, in its capacity
as Indenture Trustee.
“ Drive
2005-3 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of December 1, 2005, among Drive Auto Receivables Trust
2005-3, as Issuer, Drive Receivables Corp. 10, as Seller, Drive
Consumer USA Inc. (successor to Drive Financial Services LP), as
Master Servicer, Wells Fargo Bank, National Association, in its
capacity as Indenture Trustee, Trust Collateral Agent and Back-up
Servicer, as it may from time to time be amended, supplemented or
otherwise modified in accordance with the terms thereof and the
other transaction documents related thereto.
“ Drive
2005-3 Indenture ” means the Indenture dated as of
December 1, 2005 between Drive Auto Receivables Trust 2005-3,
as Issuer, and Wells Fargo Bank, National Association, in its
capacity as Indenture Trustee.
“ Drive
2006-1 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of June 21, 2006, among Drive Auto Receivables Trust 2006-1,
as Issuer, Drive Receivables Corp. 11, as Seller, Drive Consumer
USA Inc. (successor to Drive Financial Services LP), as Master
Servicer, Wells Fargo Bank, National Association, in its capacity
as Indenture Trustee, Trust Collateral Agent and Back-up Servicer,
as it may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof and the other
transaction documents related thereto.
“ Drive
2006-1 Indenture ” means the Indenture dated as of
June 21, 2006 between Drive Auto Receivables Trust 2006-1, as
Issuer, and Wells Fargo Bank, National Association, in its capacity
as Indenture Trustee.
“ Drive
2006-2 Securitization ” means the securitization
transaction described in the Sale and Servicing Agreement, dated as
of October 25, 2006, among Drive Auto Receivables Trust
2006-2, as Issuer, Drive Receivables Corp. 12, as Seller, Drive
Consumer USA Inc. (successor to Drive Financial Services LP), as
Master Servicer, Wells Fargo Bank, National Association, in its
capacity as Indenture Trustee, Trust Collateral Agent and Back-up
Servicer, as it may from time to time be amended, supplemented or
otherwise modified in accordance with the terms thereof and the
other transaction documents related thereto.
4
“ Drive
2006-2 Indenture ” means the Indenture dated as of
October 25, 23006 between Drive Auto Receivables Trust 200-2,
as Issuer, and Wells Fargo Bank, National Association, in its
capacity as Indenture Trustee.
“
Eligible Account ” shall mean either (A) a
segregated trust account or accounts maintained with an institution
whose deposits are insured by Federal Deposit Insurance Corporation
(“ FDIC ”), the unsecured and uncollateralized
long term debt obligations of which institution shall be rated AA-
or higher by S&P and Aa2 or higher by Moody’s and in the
highest short term rating category by each of the Rating Agencies,
and that is (i) a federal savings and loan association duly
organized, validly existing and in good standing under the federal
banking laws, (ii) an institution duly organized, validly
existing and in good standing under the applicable banking laws of
any state, (iii) a national banking association duly
organized, validly existing and in good standing under the federal
banking laws, (iv) a principal subsidiary of a bank holding
company, or (v) approved in writing by FSA and MBIA and each
of the Rating Agencies or (B) a chartered depository institution
acceptable to each Rating Agency, MBIA and FSA, having capital and
surplus of not less than $100,000,000, acting in its fiduciary
capacity.
“
Existing Indentures ” means the (a) the Drive
2003-2 Indenture, (b) the Drive 2004-1 Indenture, (c) the
Drive 2005-1 Indenture, (d) the Drive 2005-2 Indenture,
(e) the Drive 2005-3 Indenture, (f) the Drive 2006-1
Indenture and (g) the Drive 2006-2 Indenture.
“
Existing Sellers ” means (a) Drive Receivables
Corp. 6, (b) Drive Receivables Corp. 7, (c) Drive
Receivables Corp. 8, (d) Drive Receivables Corp. 9,
(e) Drive Receivables Corp. 10, (f) Drive Receivables Corp. 11
and (g) Drive Receivables Corp. 12.
“
Existing Securitizations ” means the (a) the
Drive 2003-2 Securitization, (b) the Drive 2004-1
Securitization, (c) the Drive 2005-1 Securitization,
(d) the Drive 2005-2 Securitization, (e) the Drive 2005-3
Securitization, (f) the Drive 2006-1 Securitization and (g)
the Drive 2006-2 Securitization.
“
Existing Trusts ” means (a) Drive Auto
Receivables Trust 2003-2, (b) Drive Auto Receivables Trust
2004-1, (c) Drive Auto Receivables Trust 2005-1,
(d) Drive Auto Receivables Trust 2005-2, and (e) Drive
Auto Receivables Trust 2005-3, (f) Drive Auto Receivables
Trust 2006-1 and (g) Drive Auto Receivables Trust
2006-2.
“ FSA
Indenture ” means the Drive 2005-3 Indenture and the
Drive 2006-1 Indenture and any other indenture designated as a
“FSA Indenture” in an Accession Agreement.
“ FSA
Securitization ” means the Drive 2005-3 Securitization
and the Drive 2006-1 Securitization and any other securitization
transaction designated as a “FSA Securitization” in an
Accession Agreement.
“
Improper Remittances ” has the meaning set forth in
Section 2.2 hereof.
“
Indenture Trustee ” means Wells Fargo in its capacity
as Indenture Trustee under the Indentures.
5
“
Indentures ” means (a) the Drive 2003-2
Indenture, (b) the Drive 2004-1 Indenture, (c) the Drive
2005-1 Indenture, (d) the Drive 2005-2 Indenture, (e) the
Drive 2005-3 Indenture, (f) the Drive 2006-1 Indenture,
(g) the Drive 2006-2 Indenture and (h) any other
indenture designated as an “Indenture” in an Accession
Agreement.
“ Master
Collection Account ” means Account No. 0291118693 at
Wells Fargo Bank, National Association, titled “Drive Master
Collection Account –Wells Fargo Bank, National Association,
as Master Collection Account Agent for the Secured
Parties”.
“ Master
Collection Account Agent ” means Wells Fargo Bank,
National Association.
“ MBIA
Indentures ” means (a) the Drive 2003-2 Indenture,
(b) the Drive 2004-1 Indenture, (c) the Drive 2005-1
Indenture, (d) the Drive 2005-2 Indenture, (e) the Drive
2006-2 Indenture and (f) any other indenture designated as a
“MBIA Indenture” in an Accession Agreement.
“ MBIA
Securitizations ” means (a) the Drive 2003-2
Securitization, (b) the Drive 2004-1 Securitization,
(c) the Drive 2005-1 Securitization, (d) the Drive 2005-2
Securitization, (e) the Drive 2006-2 Securitization and
(f) any other securitization transaction designated as a
“MBIA Securitization” in an Accession
Agreement.
“
Moody’s ” means Moody’s Investors Service,
Inc.
“ Other
Party ” means (a) any Other Secured Party and
(b) any other Seller, Trust or Class A Insurer designated
as such in an Accession Agreement and who becomes a party to this
Agreement by executing an Accession Agreement.
“ Other
Secured Party ” means any other secured party designated
as a “Secured Party” in an Accession Agreement and who
becomes a party to this Agreement by executing an Accession
Agreement.
“ Rating
Agencies ” means, collectively, Moody’s, S&P
and any successors thereof. If such organization or successor is no
longer in existence, “Rating Agency” shall be such
nationally recognized statistical rating organization or other
comparable Person designated by FSA and MBIA, notice of which shall
be given to Drive, the Master Collection Account Agent and the
Trustee.
“
Remittances ” has the meaning set forth in the
Recitals hereto.
“
S&P ” means Standard & Poor’s Ratings
Services, a division of The McGraw-Hill Companies, Inc.
“ Secured
Parties ” means the Indenture Trustee, the Wachovia
Warehouse Collateral Agent, the Class A Insurers and any Other
Secured Party.
“
Securitizations ” means (a) the Drive 2003-2
Securitization, (b) the Drive 2004-1 Securitization,
(c) the Drive 2005-1 Securitization, (d) the Drive 2005-2
Securitization, (e) the
6
Drive 2005-3
Securitization, (f) the Drive 2006-1 Securitization,
(g) the Drive 2006-2 Securitization and (h) any other
securitization transaction designated as a
“Securitization” in an Accession Agreement.
“
Sellers ” means (a) Drive Receivables Corp. 6,
(b) Drive Receivables Corp. 7, (c) Drive Receivables Corp. 8,
(d) Drive Receivables Corp. 9, (e) Drive Receivables
Corp. 10, (f) Drive Receivables Corp. 11, (g) Drive
Receivables Corp. 12 and (h) any other entity designated as a
“Seller” in an Accession Agreement.
“
Successor Servicer ” has the meaning set forth in
Section 2.4 hereof.
“
Transactions ” means the Wachovia Warehouse Agreement,
the Securitizations and any ot
|