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INTERCREDITOR AND MASTER COLLECTION ACCOUNT AGREEMENT

Account Control Agreement

INTERCREDITOR AND MASTER COLLECTION ACCOUNT AGREEMENT | Document Parties: SANTANDER DRIVE AUTO RECEIVABLES LLC | WACHOVIA CAPITAL MARKETS, LLC | WELLS FARGO BANK, NATIONAL ASSOCIATION | FINANCIAL SECURITY ASSURANCE INC. | MBIA INSURANCE CORPORATION You are currently viewing:
This Account Control Agreement involves

SANTANDER DRIVE AUTO RECEIVABLES LLC | WACHOVIA CAPITAL MARKETS, LLC | WELLS FARGO BANK, NATIONAL ASSOCIATION | FINANCIAL SECURITY ASSURANCE INC. | MBIA INSURANCE CORPORATION

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Title: INTERCREDITOR AND MASTER COLLECTION ACCOUNT AGREEMENT
Governing Law: New York     Date: 4/9/2007

INTERCREDITOR AND MASTER COLLECTION ACCOUNT AGREEMENT, Parties: santander drive auto receivables llc , wachovia capital markets  llc , wells fargo bank  national association , financial security assurance inc. , mbia insurance corporation
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Exhibit 10.11

EXECUTION COPY

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 ”).

RECITALS

     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:

ARTICLE I.

DEFINITIONS

     “ 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.

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     “ 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.

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     “ 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.

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     “ 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.

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     “ 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

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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


 
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