Exhibit 4.2
================================================================================
BAS SECURITIZATION LLC
Seller,
[______________________________________]
Servicer
and
[______________________________________]
Trustee
on behalf of the Holders
_____________________________________________________________________
FORM OF POOLING AND SERVICING AGREEMENT
Dated as of ________ __, 200[_]
[______________________] TRUST 200[_]
____% Asset Backed Certificates, Class A
____% Asset Backed Certificates, Class B
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS..........................................................2
Section 1.1
Definitions.................................................2
Section 1.2
Other Interpretative Provisions............................18
Section 1.3
Calculations...............................................18
Section 1.4
References.................................................18
Section 1.5
Action by or Consent of Holders............................19
Section 1.6
Fiscal Year................................................19
ARTICLE II THE TRUST
PROPERTY.................................................19
Section 2.1
Conveyance of Trust Property...............................19
Section 2.2
Representations and Warranties as to Each Receivable.......19
Section 2.3
Representations and Warranties as to the Receivables
in the Aggregate...........................................22
Section 2.4
Repurchase upon Breach.....................................22
Section 2.5
Custodian of Receivable Files..............................23
ARTICLE III ADMINISTRATION AND SERVICING OF TRUST
PROPERTY....................25
Section 3.1
Duties of Servicer.........................................25
Section 3.2
Collection of Receivable Payments..........................26
Section 3.3
Realization upon Receivables...............................27
Section 3.4
Physical Damage Insurance..................................27
Section 3.5
Maintenance of Security Interests in Financed Vehicles.....28
Section 3.6
Covenants of Servicer......................................28
Section 3.7
Purchase by Servicer upon Breach...........................29
Section 3.8
Servicing Compensation.....................................29
Section 3.9
Servicer's Report..........................................29
Section 3.10
Annual Statement as to Compliance..........................30
Section 3.11
Assessments of Servicing Compliance; Registered Public
Accounting Firm Attestation Reports........................31
Section 3.12
Access to Certain Documentation and Information
Regarding Receivables......................................32
Section 3.13
Reports to the Commission..................................33
Section 3.14
Reports to the Rating Agency...............................38
Section 3.15
Servicer Expenses..........................................38
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
ARTICLE IV DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO
HOLDERS..............39
Section 4.1
Establishment of Accounts..................................39
Section 4.2
Collections................................................40
Section 4.3
[Reserved].................................................41
Section 4.4
Additional Deposits; Net Deposits..........................41
Section 4.5
Distributions..............................................41
Section 4.6
Reserve Account............................................43
Section 4.7
Statements to Holders......................................44
ARTICLE V THE
CERTIFICATES....................................................46
Section 5.1
The Certificates...........................................46
Section 5.2
Authentication of Certificates.............................46
Section 5.3
Registration of Transfer and Exchange of Certificates......46
Section 5.4
Mutilated, Destroyed, Lost or Stolen Certificates..........47
Section 5.5
Persons Deemed Owners......................................47
Section 5.6
Access to List of Holders' Names and Addresses.............47
Section 5.7
Maintenance of Office or Agency............................48
Section 5.8
Book Entry Certificates....................................48
Section 5.9
Notices to Clearing Agency.................................49
Section 5.10
Definitive Certificates....................................49
ARTICLE VI
SELLER.............................................................49
Section 6.1
Representations and Warranties of Seller...................49
Section 6.2
[Reserved].................................................51
Section 6.3
Merger or Consolidation of Seller; Assumption of the
Obligations of Seller......................................51
Section 6.4
Limitation on Liability of Seller and Others...............51
Section 6.5
[Reserved].................................................51
ARTICLE VII
SERVICER..........................................................52
Section 7.1
Representations and Warranties of Servicer.................52
Section 7.2
Indemnities of Servicer....................................53
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 7.3
Merger or Consolidation of Servicer; Assumption of the
Obligations of Servicer....................................54
Section 7.4
Limitation on Liability of Servicer and Others.............54
Section 7.5
[______] Not To Resign as Servicer.........................55
Section 7.6
Servicer May Own Certificates..............................55
Section 7.7
Existence..................................................55
Section 7.8
Use of Subservicers........................................55
ARTICLE VIII SERVICING
TERMINATION............................................56
Section 8.1
Servicer Termination Events................................56
Section 8.2
Trustee to Act; Appointment of Successor Servicer..........57
Section 8.3
Effect of Servicing Transfer...............................58
Section 8.4
Notification to Holders....................................59
Section 8.5
Waiver of Past Servicer Termination Events.................59
Section 8.6
Transfer of Accounts.......................................59
ARTICLE IX
TRUSTEE............................................................59
Section 9.1
Acceptance by Trustee......................................59
Section 9.2
Duties of Trustee..........................................59
Section 9.3
Trustee's Certificate......................................61
Section 9.4
Trustee's Assignment of Purchased Receivables..............61
Section 9.5
Certain Matters Affecting Trustee..........................61
Section 9.6
Trustee Not Liable for Certificates or Receivables.........63
Section 9.7
Trustee May Own Certificates...............................64
Section 9.8
Trustee's Fees and Expenses................................64
Section 9.9
Eligibility Requirements for Trustee.......................64
Section 9.10
Resignation or Removal of Trustee..........................64
Section 9.11
Successor Trustee..........................................65
Section 9.12
Merger or Consolidation of Trustee; Assumption of
Obligations of Trustee.....................................66
Section 9.13
Appointment of Co-Trustee or Separate Trustee..............66
Section 9.14
Representations and Warranties of Trustee..................67
Section 9.15
Reports by Trustee.........................................68
-iii-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 9.16
Tax Returns................................................68
Section 9.17
Trustee May Enforce Claims Without Possession of
Certificates...............................................68
ARTICLE X
TERMINATION.........................................................68
Section 10.1
Termination of the Trust...................................68
Section 10.2
Optional Purchase of All Receivables.......................69
ARTICLE XI COMPLIANCE WITH REGULATION
AB......................................69
Section 11.1
Intent of the Parties; Reasonableness......................69
Section 11.2
Additional Representations and Warranties of the
Trustee....................................................70
ARTICLE XII MISCELLANEOUS
PROVISIONS..........................................70
Section 12.1
Amendment..................................................70
Section 12.2
Protection of Title to Trust Property......................72
Section 12.3
Limitation on Rights of Holders............................73
Section 12.4
Governing Law..............................................74
Section 12.5
Notices....................................................74
Section 12.6
Severability of Provisions.................................74
Section 12.7
Assignment.................................................75
Section 12.8
Certificates Nonassessable and Fully Paid..................75
Section 12.9
Intention of Parties.......................................75
Section 12.10
Counterparts...............................................75
Section 12.11
Further Assurances.........................................75
Section 12.12
No Waiver; Cumulative Remedies.............................75
Section 12.13
Insolvency.................................................76
Section 12.14
Regulation AB Compliance; Intent of Parties;
Reasonableness.............................................76
-iv-
SCHEDULE
SCHEDULE A LOCATION OF RECEIVABLE FILES
SCHEDULE B SCHEDULE OF RECEIVABLES
EXHIBITS
EXHIBIT A
FORM OF CLASS A CERTIFICATE
EXHIBIT B
FORM OF CLASS B CERTIFICATE
EXHIBIT C
FORM OF SERVICER'S REPORT
EXHIBIT D
FORM OF SERVICER CERTIFICATION
EXHIBIT E
FORM OF TRUSTEE'S CERTIFICATION
EXHIBIT F
SERVICING CRITERIA
EXHIBIT G-1
ADDITIONAL FORM 10-D INFORMATION
EXHIBIT G-2
ADDITIONAL FORM 10-K INFORMATION
EXHIBIT G-3
FORM 8-K INFORMATION
1
POOLING AND SERVICING AGREEMENT dated as of ____________, 200[_],
between
BAS SECURITIZATION LLC, a Delaware limited liability company, as
Seller,
[_________________________________], a [________], as Servicer, and
__________,
a ______________________ corporation, as Trustee hereunder.
In consideration of the premises and of the mutual agreements
herein
contained, and other good and valuable consideration, the receipt
of which is
acknowledged, the parties hereto, intending to be legally bound,
agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following
capitalized words and phrases, unless the context otherwise
requires, have the
following meanings:
"Accounts" means collectively the Collection Account, the Class A
Distribution Account, the Class B Distribution Account and the
Payahead Account.
"Account Property" means all amounts and investments held from time
to time
in any Account or the Reserve Account, as the case may be (whether
in the form
of deposit accounts, instruments, certificated securities, book
entry
securities, uncertificated securities or otherwise), and all
proceeds of the
foregoing.
"Actuarial Receivable" means a Receivable that provides for (i)
amortization of the loan over a series of fixed level payment
monthly
installments and (ii) each monthly installment, including the
monthly
installment representing the final payment on the Receivable, to
consist of an
amount of interest equal to 1/12 of the Contract Rate of the loan
multiplied by
the unpaid principal balance of the loan, and an amount of
principal equal to
the remainder of the monthly installment.
"Acquired Receivable" means a Receivable acquired by a the
Transferor
through a bulk purchase of Receivables or the acquisition of a
financial
institution that owned the Receivable.
"Additional Form 10-D Information" is defined in Section 3.13(b).
"Additional Form 10-K Information" is defined in Section 3.13(c).
"Additional Servicer" is defined in Section 7.8.
"Additional Servicing" means, for each Distribution Date, an amount
equal
to the lesser of (i) the amount by which (A) the aggregate amount
of the
Servicing Fee for such Distribution Date and all prior Distribution
Dates
exceeds (B) the aggregate amount of Additional Servicing paid to
the Servicer on
all prior Distribution Dates and (ii) the amount, if any, by which
(A) the sum
of Available Interest and Available Principal for such Distribution
Date exceed
(B) the sum, without duplication of (x) the Servicing Fee paid on
such
Distribution Date with respect to the related Collection Period and
any accrued
and unpaid Servicing Fee for prior Collection Periods, (y) all
amounts required
to be distributed to the Holders on such Distribution Date and (z)
the amount,
if any, deposited in the Reserve Account on such Distribution Date.
"Administration Agreement" means the Administration Agreement dated
as of
_______, 200[ ] by and between the Trust, the Administrator,
[___________], and
the Indenture Trustee as amended, restated and otherwise modified
from time to
time
2
"Administrator" means [__________] in its capacity as administrator
of the
Trust under the Administration Agreement.
"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.
"Agreement" means this Pooling and Servicing Agreement, including
its
schedules and exhibits, as amended, modified or supplemented from
time to time.
"Authorized Officer" means any officer within the Corporate Trust
Office of
Trustee, including any vice president, assistant vice president,
secretary,
assistant secretary or any other officer of 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.
"Available Interest" means, for any Distribution Date, the sum of
the
following amounts for the related Collection Period: (a) that
portion of the
Collections on the Receivables received during the such Collection
Period that
is allocable to interest in accordance with Servicer's customary
servicing
procedures, (b) all Liquidation Proceeds received during the
related Collection
Period and (c) the Purchase Amounts, to the extent allocable to
accrued
interest, of all Receivables that are purchased by Servicer as of
the last day
of the related Collection Period. "Available Interest" for any
Distribution Date
shall exclude all payments and proceeds of any Receivables the
Purchase Amount
of which has been distributed on a prior Distribution Date.
"Available Principal" means, for any Distribution Date the sum of
the
following amounts with respect to the related Collection Period:
(a) that
portion of all Collections on the Receivables received during such
Collection
Period that is allocable to principal in accordance with Servicer's
customary
servicing procedures; and (b) the Purchase Amounts, to the extent
attributable
to principal, of all Receivables purchased by Servicer as of the
last day of the
related Collection Period. "Available Principal" on any
Distribution Date shall
exclude all payments and proceeds of any Receivables the Purchase
Amount of
which has been distributed on a prior Distribution Date.
"Available Reserve Amount" is defined in Section 4.6.
"Book Entry Certificate" means beneficial interests in the
definitive
Certificates described in Section 5.8, the ownership of which shall
be
evidenced, and transfers of which shall be made, through book
entries by a
Clearing Agency as described in Section 5.8.
3
"Business Day" means a day that is not a Saturday or a Sunday and
that in
the State of North Carolina 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 any Class A Certificate or Class B Certificate.
"Certificate Owner" means, with respect to a Book Entry
Certificate, the
Person who is the owner of such Book Entry Certificate, as
reflected on the
books of the Clearing Agency, or on the books of a Person
maintaining an account
with such Clearing Agency (directly or as an indirect participant,
in accordance
with the rules, regulations and procedures of such Clearing
Agency).
"Certificate Register" means the register maintained by Trustee for
the
registration of Certificates and of transfers and exchanges of
Certificates as
provided in Section 5.3.
"Certification" is defined in Section 3.11(d).
"Class A Certificate" means a certificate executed by Trustee on
behalf of
the Trust and authenticated by Trustee substantially in the form of
Exhibit A.
"Class A Certificate Balance" means, at any time, the original
Class A
Certificate Balance, as reduced by all amounts allocable to
principal on the
Class A Certificates distributed to Class A Holders prior to such
time.
"Class A Certificate Rate" means ____% per annum, calculated on the
basis
of a 360-day year consisting of twelve 30-day months.
"Class A Distribution Account" means the account established,
maintained
and designated as the "Class A Distribution Account" pursuant to
Section 4.1.
"Class A Holder" means the Person in whose name a Class A
Certificate is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent, request or waiver pursuant to this Agreement,
the interest
evidenced by any Class A Certificate registered in the name of the
Transferor,
Servicer, or any Person actually known to an Authorized Officer of
Trustee to be
an Affiliate, the Transferor, or Servicer, shall not be taken into
account in
determining whether the requisite percentage necessary to effect
any such
consent, request or waiver shall have been obtained.
"Class A Interest Carryover Shortfall" means (a) with respect to
the
initial Distribution Date, zero, and (b) with respect to any other
Distribution
Date, the excess of Class A Monthly Interest for the preceding
Distribution Date
and any outstanding Class A Interest Carryover Shortfall on such
preceding
Distribution Date, over the amount in respect of interest that is
actually
deposited in the Class A Distribution Account on such preceding
Distribution
Date, plus 30 days of interest on such excess, to the extent
permitted by law,
in an amount equal to the product of one-twelfth multiplied by the
Class A
Certificate Rate multiplied by the amount of such excess.
4
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of (a) the Class A Monthly Interest for
such
Distribution Date and (b) the Class A Interest Carryover Shortfall
for such
Distribution Date.
"Class A Monthly Interest" means, for any Distribution Date, an
amount
equal to one-twelfth (or the actual number of days from and
including the
Closing Date to but excluding _____________, 200_ divided by 360,
for the
initial Distribution Date) of the Class A Certificate Rate
multiplied by the
Class A Certificate Balance as of the close of business on the
immediately
preceding Distribution Date, after giving effect to all payments of
principal to
the Class A Certificates on or prior to such Distribution Date (or,
in the case
of the first Distribution Date, the Original Class A Certificate
Balance).
"Class A Monthly Principal" means, with respect to any Distribution
Date,
the Class A Percentage of Available Principal for such Distribution
Date plus
the Class A Percentage of Realized Losses with respect to the
related Collection
Period.
"Class A Percentage" means _____%.
"Class A Pool Factor" means, with respect to any Distribution Date,
the
Class A Certificate Balance as of the close of business on such
Distribution
Date (after giving effect to any payments to be made on such
Distribution Date)
divided by the Original Class A Certificate Balance, expressed as a
seven-digit
decimal.
"Class A Principal Carryover Shortfall" means, as of the close of
business
on any Distribution Date, the excess of Class A Monthly Principal
for such
Distribution Date and any outstanding Class A Principal Carryover
Shortfall from
the preceding Distribution Date over the amount in respect of
principal that is
actually deposited in the Class A Distribution Account on such
Distribution
Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of Class A Monthly Principal for such
Distribution
Date and, in the case of any Distribution Date other than the
initial
Distribution Date, the Class A Principal Carryover Shortfall as of
the close of
business on the preceding Distribution Date; provided that the
Class A Principal
Distributable Amount shall not exceed the Class A Certificate
Balance prior to
such Distribution Date. In addition, on the Final Scheduled
Distribution Date,
the Class A Principal Distributable Amount shall include, to the
extent not
included under the preceding sentence, the amount that is necessary
(after
giving effect to the other amounts to be deposited in the Class A
Distribution
Account on such Distribution Date and allocable to principal) to
reduce the
Class A Certificate Balance to zero.
"Class B Certificate" means a certificate executed by Trustee on
behalf of
the Trust and authenticated by Trustee substantially in the form of
Exhibit B.
"Class B Certificate Balance" means, at any time, the Original
Class B
Certificate Balance, as reduced by all amounts allocable to
principal on the
Class B Certificates distributed to Class B Holders prior to such
time.
5
"Class B Certificate Owner" means, with respect to a Book Entry
Certificate
representing a beneficial interest in the Class B Certificates, the
Person who
is the owner of such Book Entry Certificate, as reflected on the
books of the
Clearing Agency, or on the books of a Person maintaining an account
with such
Clearing Agency (directly or as an indirect participant in
accordance with the
rules, regulations and procedures of such Clearing Agency).
"Class B Certificate Rate" means ____% per annum, calculated on the
basis
of a 360-day year consisting of twelve 30-day months.
"Class B Distribution Account" means the account established,
maintained
and designated as the "Class B Distribution Account" pursuant to
Section 4.1.
"Class B Holder" means the Person in whose name a Class B
Certificate is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent, request or waiver pursuant to this Agreement,
the interest
evidenced by any Class B Certificate registered in the name of the
Transferor,
Servicer, or any Person actually known to an Authorized Officer of
Trustee to be
an Affiliate of the Transferor or Servicer, shall not be taken into
account in
determining whether the requisite percentage necessary to effect
any such
consent, request or waiver shall have been obtained.
"Class B Interest Carryover Shortfall" means, (a) with respect to
the
initial Distribution Date, zero, and (b) with respect to any other
Distribution
Date, the excess of Class B Monthly Interest for the preceding
Distribution Date
and any outstanding Class B Interest Carryover Shortfall on such
preceding
Distribution Date, over the amount in respect of interest that is
actually
deposited in the Class B Distribution Account on such preceding
Distribution
Date, plus 30 days of interest on such excess, to the extent
permitted by law,
in an amount equal to the product of one-twelfth multiplied by the
Class B
Certificate Rate multiplied by the amount of such excess.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of (a) the Class B Monthly Interest for
such
Distribution Date and (b) the Class B Interest Carryover Shortfall
for such
Distribution Date.
"Class B Monthly Interest" means, for any Distribution Date, an
amount
equal to one-twelfth (or the actual number of days from and
including the
Closing Date to but excluding __________, 200_ divided by 360, for
the initial
Distribution Date) of the Class B Certificate Rate multiplied by
the Class B
Certificate Balance as of the close of business on the immediately
preceding
Distribution Date, after giving effect to all payments of principal
to the Class
B Certificates on or prior to such Distribution Date (or, in the
case of the
first Distribution Date, the Certificate Balance on the Closing
Date).
"Class B Monthly Principal" means, with respect to any Distribution
Date,
the Class B Percentage of Available Principal for such Distribution
Date plus
the Class B Percentage of Realized Losses with respect to the
related Collection
Period.
"Class B Percentage" means __%.
6
"Class B Pool Factor" means, with respect to any Distribution Date,
the
Class B Certificate Balance as of the close of business on such
Distribution
Date (after giving effect to any payments to be made on such
Distribution Date)
divided by the Original Class B Certificate Balance, expressed as a
seven-digit
decimal.
"Class B Principal Carryover Shortfall" means, as of the close of
business
on any Distribution Date, the excess of Class B Monthly Principal
for such
Distribution Date and any outstanding Class B Principal Carryover
Shortfall from
the preceding Distribution Date over the amount in respect of
principal that is
actually deposited in the Class B Distribution Account on such
Distribution
Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of Class B Monthly Principal for such
Distribution
Date and, in the case of any Distribution Date other than the
initial
Distribution Date, the Class B Principal Carryover Shortfall as of
the close of
business on the preceding Distribution Date; provided that the
Class B Principal
Distributable Amount shall not exceed the Class B Certificate
Balance prior to
such Distribution Date. In addition, on the Final Scheduled
Distribution Date,
the Class B Principal Distributable Amount shall include, to the
extent not
included under the preceding sentence, the amount that is necessary
(after
giving effect to the other amounts to be deposited in the Class B
Distribution
Account on such Distribution Date and allocable to principal) to
reduce the
Class B Certificate Balance to zero.
"Clearing Agency" means an organization registered as a "clearing
agency"
pursuant to Section 17A of the Exchange Act, as amended.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial
institution or other Person for whom from time to time a Clearing
Agency effects
book-entry transfers of securities deposited with the Clearing
Agency.
"Closing Date" means the date of the initial issuance of the
Certificates
hereunder.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Collection Account" means the segregated account or accounts
established,
maintained and designated as the "Collection Account" pursuant to
Section 4.1.
"Collection Period" means, (a) in the case of the initial
Collection
Period, the period from [but not including] the Cutoff Date to and
including
___________ __, 200[_] and (b) thereafter, each calendar month
during the term
of this Pooling and Servicing Agreement. With respect to any
Determination Date,
Deposit Date or Distribution Date, the "related Collection Period"
means the
Collection Period preceding the month in which such Determination
Date, Deposit
Date or Distribution Date occurs.
"Collections" means all collections on the Receivables and any
proceeds
from Insurance Policies and lender's single interest insurance
policies.
"Commission" means the Securities and Exchange Commission.
7
"Contract Rate" means, with respect to a Receivable, the rate per
annum of
interest charged on the outstanding principal balance of such
Receivable.
"Corporate Trust Office" means the principal office of Trustee at
which at
any particular time its corporate trust business shall be
administered, which
office at date of execution of this Agreement is located at
____________,
Attention: ______________, Telephone: _______________, Facsimile:
________________ or at such other address as Trustee may designate
from time to
time by notice to the Holders, the Transferor, Seller and Servicer,
or the
principal corporate trust office of any successor Trustee (the
address of which
the successor Trustee will notify the Holders, the Transferor,
Seller and
Servicer).
"Custodian" means Servicer in its capacity as agent of the Trustee,
as
custodian of the Receivable Files and the Transferor acting as
agent for
Servicer for the purpose of maintaining custody of the Receivables
Files.
"Cutoff Date" means the [opening] of business on ___________ __,
200__.
"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 the Receivable.
"Dealer" means, with respect to any Receivable, the seller of the
related
Financed Vehicle.
"Dealer Agreement" means an agreement between an Originator and a
Dealer
pursuant to which such Originator acquires Motor Vehicle Loans from
the Dealer
or gives such Dealer the right to induce persons to apply to such
Originator for
loans in connection with the retail sale of Motor Vehicles by such
Dealer.
"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.
"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; provided that any Receivable which Servicer is
obligated to
repurchase or purchase shall be deemed to have become a Defaulted
Receivable
during a Collection Period if Servicer fails to deposit the related
Purchase
Amount on the related Deposit Date when due.
"Definitive Certificates" is defined in Section 5.8.
"Delivery" when used with respect to Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable
certificates of deposit and other obligations that constitute
"instruments"
within the meaning of
8
Section 9-102(a)(47) of the UCC and are susceptible of physical
delivery,
transfer thereof to Trustee or its nominee or custodian by physical
delivery to
Trustee or its nominee or custodian endorsed to, or registered in
the name of,
Trustee or its nominee or custodian or endorsed in blank, and, with
respect to a
"certificated security" (as defined in Section 8-102(4) of the UCC)
transfer
thereof (i) by delivery of such certificated security endorsed to,
or registered
in the name of, Trustee or its nominee or custodian or endorsed in
blank to a
"securities intermediary" (as defined in Section 8-102(4) of the
UCC) and the
making by such financial intermediary of entries on its books and
records
identifying such certificated securities as belonging to Trustee or
its nominee
or custodian and the sending by such financial intermediary of a
confirmation of
the purchase of such certificated security by Trustee or its
nominee or
custodian, or (ii) by delivery thereof to a "clearing corporation"
(as defined
in Section 8-102(5) of the UCC) and the making by such clearing
corporation of
appropriate entries on its books reducing the appropriate
securities account of
the transferor and increasing the appropriate securities account of
a financial
intermediary by the amount of such certificated security, the
identification by
the clearing corporation of the certificated securities for the
sole and
exclusive account of the financial intermediary, the maintenance of
such
certificated securities by such clearing corporation or its nominee
subject to
its exclusive control, the sending of a confirmation by the
financial
intermediary of the purchase by Trustee or its nominee or custodian
of such
securities and the making by such financial intermediary of entries
on its books
and records identifying such certificated securities as belonging
to Trustee or
its nominee or custodian (all of the foregoing, "Physical
Property"), and, in
any event, any such Physical Property in registered form shall be
in the name of
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 Account Property to 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
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 Trustee
or its nominee or custodian of the purchase by 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 Trustee or its nominee or custodian and
indicating
that such custodian holds such Account Property solely as agent for
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 Account Property to 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 Account Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by
clause (b) above, registration on the books and records of the
issuer thereof in
the name of the financial intermediary, the sending
9
of a confirmation by the financial intermediary of the purchase by
Trustee or
its nominee or custodian of such uncertificated security, the
making by such
financial intermediary of entries on its books and records
identifying such
uncertificated certificates as belonging to Trustee or its nominee
or custodian.
"Deposit Date" means, with respect to any Collection Period, the
Business
Day preceding the related Distribution Date.
"Depository Agreement" means the agreement among Seller, Servicer,
Trustee
and the initial Clearing Agency, dated the Closing Date.
"Determination Date" with respect to any Collection Period, means
the tenth
day of the calendar month following such Collection Period (or, if
the tenth day
is not a Business Day, the next succeeding Business Day).
"Direct Loan" means motor vehicle promissory notes and security
agreements
executed by an Obligor in favor of a motor vehicle lender.
"Distribution Date" means the _____ day of each month (or, if the
___ day
is not a Business Day, the next succeeding Business Day),
commencing _______ __,
200[_]_.
"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 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 accounts (other than the Reserve
Account) may be
maintained with [____________], or any of its Affiliates, if such
accounts meet
the requirements described in clause (a) of the preceding sentence.
"Eligible Institution" means a depository institution (which may be
Servicer or any Affiliate of Servicer or Trustee) 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), which (a) 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 S&P
and (ii) (A) a
short-term senior unsecured debt rating of A-1 or better by S&P
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 or
Trustee may be considered an Eligible Institution.
"Eligible Investments" shall mean any one or more of the following
types of
investments:
(d) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
10
(e) demand deposits, time deposits or certificates of deposit of
any
depository institution (including any Affiliate of the Transferor,
Seller,
Trustee or any Affiliate of the 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 Distribution 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 S&P of A-1+ and from
Moody's of P-1;
(f) commercial paper (including commercial paper of any Affiliate
of
the Transferor or Seller) having, at the time of the investment or
contractual
commitment to invest therein, a rating from S&P of A-1+ and
from Moody's of P-1;
(g) investments in money market funds (including funds for which
Trustee or any of its Affiliates or any of Seller's or Transferor's
Affiliates
is investment manager or advisor) having a rating from S&P of
AAA-m or AAAm-G
and from Moody's of Aaa;
(h) bankers' acceptances issued by any depository institution or
trust
company referred to in clause (b) above;
(i) 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
(j) 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 or withdraw its then current rating on the Class A
Certificates or
the Class B Certificates.
"Eligible Servicer" means a Person which, at the time of its
appointment as
Servicer, (a) has a net worth of not less than $50,000,000, (b) is
servicing a
portfolio of motor vehicle retail installment sales contracts
and/or motor
vehicle loans, (c) is legally qualified, and has the capacity, to
service the
Receivables, (d) has demonstrated the ability to service a
portfolio of motor
vehicle loans similar to the Receivables professionally and
competently in
accordance with standards of skill and care that are consistent
with prudent
industry standards, and (e) is qualified and entitled to use
pursuant to a
license or other written agreement, and agrees to maintain the
confidentiality
of, the software which Servicer uses in connection with performing
its duties
and responsibilities under this Agreement or obtains rights to use,
or develops
at its own expense, software which is adequate to perform its
duties and
responsibilities under this Agreement.
11
"ERISA" means the Employment Retirement Income Security Act of
1974.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Final Scheduled Distribution Date" means the _______ __
Distribution Date.
"Final Scheduled Maturity Date" means the last day of the
Collection Period
immediately preceding the Collection Period during which the Final
Scheduled
Distribution Date falls.
"Financed Vehicle" means, with respect to a Receivable, the Motor
Vehicle,
together with all accessories and accessions thereto, securing or
purporting to
secure the indebtedness under such Receivable.
"Fitch" means Fitch, Inc., or its successor.
"Form 8-K" is defined in Section 3.13(a).
"Form 8-K Information" is defined in Section 3.13(e).
"Form 10-D" is defined in Section 3.13.
"Form 10-K" is defined in Section 3.13.
"GAAP" is defined in Section 11.1(c).
"Holder" means the Person in whose name a Certificate is registered
in the
Certificate Register, except that, solely for the purpose of giving
any consent,
request or waiver pursuant to this Agreement, the interest
evidenced by any
Certificate registered in the name of the Transferor, Servicer or
any Person
actually known to an Authorized Officer of Trustee to be an
Affiliate of the
Transferor or Servicer, shall not be taken into account in
determining whether
11 the requisite percentage necessary to effect any such consent,
request or
waiver shall have been obtained.
"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 customarily financed as part of
retail motor
vehicle loans and/or retail installment sales contracts and other
fees charged
by the Transferor or 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.
"Insurance Policies" means, all credit life and disability
insurance
policies maintained by the Obligors and all Physical Damage
Insurance Policies.
"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 which
has
become a Defaulted Receivable, (a) insurance proceeds received by
Servicer with
respect to the Insurance Policies, (b) amounts received by Servicer
in
connection with such Defaulted Receivable
12
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 a deficiency balance recovered after the
charge-off of the
related Receivable or as a result of any Dealer Recourse) on such
Defaulted
Receivable net of any expenses incurred by Servicer in connection
therewith and
any payments required by law to be remitted to the Obligor.
"Majority Holders" means Holders of Certificates evidencing [not
less than
a majority] of the aggregate outstanding principal balance of the
Class A
Certificates and the Class B Certificates taken together as a
single class.
"Minimum Specified Reserve Balance" with respect to any
Distribution Date
means the lesser of (i) $______ and (ii) the aggregate outstanding
Class A
Certificate Balance and Class B Certificate Balance (after giving
effect to any
distributions on the Certificates on such Distribution Date).
"Moody's" means Moody's Investors Service, Inc.
"Motor Vehicle" means a new or used automobile or light duty truck.
"Motor Vehicle Loan" means a Direct Loan or retail installment
sales
contract secured by a Motor Vehicle originated by the Transferor or
another
financial institution.
"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 certificate signed by the chairman,
the
president, any vice president or the treasurer of the Transferor or
Servicer, as
the case may be, and delivered to Trustee.
"Opinion of Counsel" means a written opinion of counsel (who may be
an
employee of the Transferor or Servicer or any of their Affiliates)
reasonably
acceptable in form to Trustee.
"Original Certificate Balance" means the sum of the Original Class
A
Certificate Balance and the Original Class B Certificate Balance.
"Original Class A Certificate Balance" means $_________.
"Original Class B Certificate Balance" means $_________.
"Original Pool Balance" means the Pool Balance as of the Cutoff
Date.
"Originator" means, with respect to any Direct Loan or retail
installment
sales contract, the Transferor that was the lender with respect to
such Direct
Loan or that acquired such Direct Loan or retail installment sales
contract from
a Dealer or other Person.
"Payaheads" means early payments by or on behalf of Obligors on
Precomputed
Receivables which, in accordance with the Servicer's customary
practices, do not
constitute
13
scheduled payments or full prepayments and are applied to principal
and interest
in a subsequent period.
"Payahead Account" means the account designated as such,
established and
maintained pursuant to Section 4.1.
"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 paragraph (a) of the definition
of
"Delivery".
"Pool Balance" means, at any time, the aggregate Principal Balance
of the
Receivables (excluding Defaulted Receivables) at such time.
"Pool Factor" means, with respect to any Collection Period, the
Pool
Balance as of the last day of such Collection Period divided by the
Original
Pool Balance, expressed as a seven-digit decimal.
"Precomputed Receivable" means (i) an Actuarial Receivable, (ii) a
Rule of
78's Receivable or (iii) a Sum of Periodic Balances Receivable.
"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.
"Purchase Agreement" means each Purchase Agreement dated as of
________ __,
200__ by and between the Transferor and the Seller, as amended,
restated or
otherwise modified from time to time.
"Purchase Amount" of any Receivable means, with respect to any
Deposit
Date, an amount equal to the sum of (a) the outstanding Principal
Balance of
such Receivable as of the last day of the preceding 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 preceding
Collection
Period, in each case after giving effect to the receipt of monies
collected on
such Receivable in such preceding Collection Period.
"Purchased Receivable" means, at any time, a Motor Vehicle Loan
included in
the Schedule of Receivables as to which payment of the Purchase
Amount has
previously been made by the Transferor or Servicer pursuant to this
Agreement.
"Rating Agencies" means Moody's, S&P and Fitch.
14
"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 the Transferor Seller,
Servicer or
Trustee in writing that such action will, in and of itself, result
in a
reduction or withdrawal of the then current rating on the Class A
Certificates
or the Class B Certificates.
"Realized Losses" means, for any Collection Period, the aggregate
Principal
Balances of any Receivables that became Defaulted Receivables
during such
Collection Period.
"Receivable" means each Motor Vehicle Loan described in the
Schedule of
Receivables, 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 File" is defined in Section 2.5.
"Record Date" means, subject to Section 1.4, with respect to any
Distribution Date, the last day of the related Collection Period.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed
Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may
be amended
from time to time, and subject to such clarification and
interpretation as have
been provided by the Commission in the adopting release
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,
1,531
(January 7, 2005)) or by the staff of the Commission, or as may be
provided by
the Commission or its staff from time to time.
"Related Agreements" means the Certificates, the Depository
Agreement, the
Purchase Agreement and the underwriting agreement between Seller
and the
underwriter(s) of the Certificates. The Related Agreements to be
executed by any
party are referred to herein as "such party's Related Agreements",
"its Related
Agreements" or by a similar expression.
"Relevant Servicing Criteria" is the Servicing Criteria applicable
to the
various parties, as set forth on Exhibit F attached hereto. For
clarification
purposes, multiple parties can have responsibility for the same
Relevant
Servicing Criteria. With respect to a Servicing Function
Participant engaged by
the Trustee or the Servicer, the term "Relevant Servicing Criteria"
may refer to
a portion of the Relevant Servicing Criteria applicable to the
Trustee or the
Servicer.
"Reportable Event" is defined in Section 3.13(e).
"Required Rating" means a rating with respect to short term deposit
obligations of at least P-1 by Moody's and at least A-1 by S&P.
"Reserve Account" means the account established, maintained and
designated
as the "Reserve Account" pursuant to Section 4.6.
"Reserve Account Initial Deposit" means cash or Eligible
Investments having
a value of at least $____________.
"Reserve Account Property" means the Reserve Account, the Reserve
Account
Initial Deposit and all proceeds of the Reserve Account and the
Reserve Account
Initial 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.
"Rule of 78's Receivable" means a Receivable that provides for the
payment
by the Obligor of a specified total amount of payments, payable in
equal monthly
installments on each due date, which total represents the principal
amount
financed and add-on interest in an amount calculated at the stated
Contract Rate
for the term of the Receivable and allocated to each
15
monthly payment based upon a fraction, the numerator of which is
the number of
payments scheduled to have been made prior to the due date for such
monthly
payments on such Receivable and the denominator of which is the sum
of all such
numbers of payments to be made until the maturity of such
Receivable.
"S&P" means Standard & Poor's Ratings Services, a division
of The
McGraw-Hill Companies, Inc., or its successor.
"Schedule of Receivables" means, with respect to the Motor Vehicle
Loans to
be conveyed to Seller by the Transferor and to Trustee by Seller,
the list
identifying such retail Motor Vehicle Loans delivered to Trustee on
the Closing
Date.
"Securities Intermediary" is defined in Section 4.6 of this
Agreement.
"Seller" means BAS Securitization LLC, in its capacity as seller of
the
Receivables to the Trust under this Agreement, or any successor
pursuant to
Section 6.3.
"Servicer" means [___________________], in its capacity as servicer
of the
Receivables under this Agreement, any successor pursuant to Section
7.3 or any
successor Servicer appointed and acting pursuant to Section 8.2.
"Servicer Termination Event" means an event specified in Section
8.1.
"Servicer's Report" is defined in Section 3.9.
"Servicing Criteria" means the "servicing criteria" set forth in
Item
1122(d) of Regulation AB, as such may be amended from time to time,
which as of
the Closing Date are listed on Exhibit F hereto.
"Servicing Fee" is defined in Section 3.8.
"Servicing Fee Rate" shall be ___% per annum, calculated on the
basis of a
360-day year consisting of twelve 30-day months.
"Servicing Officer" means any individual involved in, or
responsible for,
the administration and servicing of the Receivables, whose name
appears on a
list of servicing officers attached to an Officer's Certificate
furnished to
Trustee by Servicer, as such list may be amended from time to time
by Servicer
in writing.
"Simple Interest Method" means the method of allocating a fixed
level
payment monthly installments between principal and interest,
pursuant to which
such installment is allocated first to accrued and unpaid interest
at the
Contract Rate on the unpaid principal balance and the remainder of
such
installment 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.
16
"Specified Reserve Account Balance" means, for any Distribution
Date, the
greater of (a) ___% of the sum of the Class A Certificate Balance
plus the Class
B Certificate Balance on such Distribution Date (after giving
effect to all
payments on the Certificates to be made on or prior to such
Distribution Date),
and (b) the Minimum Specified Reserve Balance as of such
Distribution Date.
"Sum of Periodic Balances Receivable" means a Receivable that
provides for
the payment by the obligor of a specified total amount of payments,
payable in
equal monthly installments on each due date, which total represents
the
principal amount financed and add-on interest in an amount
calculated at the
stated Contract Rate for the term of the Receivable and allocated
to each
monthly payment based upon a fraction, the numerator of which is
the principal
balance of such Receivable immediately prior to the due date for
such monthly
payment and the denominator of which is the sum of all principal
balances for
each monthly payment to be made until the maturity of such
Receivable.
"Supplemental Servicing Fee" is defined in Section 3.8.
"Transferor" means [________________________________].
"Trust" means the trust created by this Agreement which shall be
known as
[_________].
"Trustee" means _________, a ___________, as Trustee under this
Agreement
and any successor Trustee appointed and acting pursuant to this
Agreement.
"Trust Property" means:
(a) all right, title and interest of Seller in and to the
Receivables,
and all moneys received thereon [on or] after the 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 or from claims under any lender's single interest
insurance policy
naming the Transferor as an insured;
(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;
17
(f) all right, title and interest in all funds on deposit from time
to
time in the Collection Account, the Payahead Account, the Class A
Distribution
Account and the Class B Distribution Account (including the Account
Property
related thereto) and in all investments and proceeds thereof (but
excluding all
investment income thereon);
(g) all right, title and interest of Seller under each Purchase
Agreement, including the right of Seller to cause the Transferor to
repurchase
Receivables from Seller;
(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. Notwithstanding
anything to the contrary contained herein, the Trust Property shall
not include,
and the Trust shall not have any right to, the Reserve Account or
any funds
actually or deemed to be deposited in such account or any
investments therein.
"UCC" means the Uniform Commercial Code as in effect in the
relevant
jurisdiction.
Section 1.2 Other Interpretative 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.
Section 1.3 Calculations. All calculations of the amount of
interest
accrued on the Certificates during any Collection Period and all
calculations of
the amount of the Servicing Fee payable with respect to a
Collection Period
shall be made on the basis of a 360-day year consisting of twelve
30-day months.
Section 1.4 References. All references to the Record Date prior to
the
first Record Date in the life of the Trust shall be to the Closing
Date. All
references to the first day of a Collection Period shall refer to
the opening of
business on such day. All references to the last day of a
Collection Period
shall refer to the close of business on such day. All references
herein to the
close of business means the close of business, [__________] time.
18
Section 1.5 Action by or Consent of Holders. Whenever any provision
of this
Agreement refers to action to be taken, or consented to, by
Holders, such
provision shall be deemed to refer to Holders of record as of the
Record Date
immediately preceding the date on which such action is to be taken,
or consented
to, by Holders.
Section 1.6. Fiscal Year. The fiscal year of the Trust will be the
calendar
year.
ARTICLE II
THE TRUST PROPERTY
Section 2.1 Conveyance of Trust Property. In consideration of
Trustee's
delivery to Seller or its designee of authenticated Certificates,
in authorized
denominations, in an aggregate amount equal to the Original
Certificate Balance,
Seller hereby sells, transfers, assigns and conveys to Trustee,
upon the terms
and conditions hereof, in trust for the benefit of the Holders, the
Trust
Property, without recourse (except to the extent of the Servicer's
obligations
under this Agreement and the Related Agreements). The sale,
transfer,
assignment, setting over and conveyance made hereunder shall not
constitute and
is not intended to result in an assumption by Trustee, any Holder
or any
Certificate Owner of any obligation of the Transferor to the
Obligors, the
Dealers or any other Person in connection with the Receivables and
the other
Trust Property or any agreement, document or instrument related
thereto.
Section 2.2 Representations and Warranties as to Each Receivable.
The
Seller hereby makes the following representations and warranties as
to each
Receivable on which Trustee shall rely in accepting the Trust
Property in trust
and authenticating the Certificates. Unless otherwise indicated,
such
representations and warranties shall speak as of the Closing Date,
but shall
survive the sale, transfer and assignment of the Receivables and
the other Trust
Property to the Trust.
(a) Characteristics of Receivables. The Receivable has been fully
and
properly executed by the parties thereto and (i) is a Direct Loan
made by an
Originator or has been originated by a Dealer in the ordinary
course of such
Dealer's business and has been purchased by an Originator, in
either case, in
the ordinary course of such Originator's business and in accordance
with such
Originator's underwriting standards to finance the retail sale by a
Dealer of
the related Financed Vehicle or has otherwise been acquired by the
Transferor,
(ii) the Originator of which has underwriting standards that
require physical
damage insurance to be maintained on the related Financed Vehicle,
(iii) is
secured by a valid, subsisting, binding and enforceable first
priority security
interest in favor of the Transferor 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 by Seller to Trustee, (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 last payment may be
different), 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.
19
(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Cutoff Date: (i) each
Receivable is secured
by a Motor Vehicle; (ii) each Receivable has a Contract Rate of at
least ____%
and not more than ___%; (iii) each Receivable had a remaining
number of
scheduled payments, as of the Cutoff Date, of not less than ______
and not more
than _____; (iv) each Receivable had an initial Principal Balance
of not less
than $_______ and not more than $_____; (v) no Receivable was more
than 30 days
past due as of the Cutoff Date; (vi) no Financed Vehicle had been
repossessed as
of the Cutoff Date; (vii) no Receivable is subject to a force
placed Physical
Damage Insurance Policy on the related Financed Vehicle; [(viii)
each Receivable
is a Simple Interest Receivable;] and (ix) the Dealer of the
Financed Vehicle
has no participation in, or other right to receive, any proceeds of
the
Receivable. The Receivables were selected using selection
procedures that were
not intended by the Transferor or Seller to be adverse to the
Holders.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including
(without
limitation) the identity and address of the Obligor, account
number, the Initial
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 complied at the time it was
originated or made, and will comply as of the Closing Date, in all
material
respects with all requirements of applicable federal, state and
local laws, and
regulations thereunder, including, to the extent applicable, usury
laws, the
Federal Truth in Lending Act, the Equal Credit Opportunity Act, the
Fair Credit
Billing Act, the Fair Credit Reporting Act, the Federal Trade
Commission Act,
the Magnuson-Moss 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. Neither Seller nor the Transferor has 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 this Agreement, and no
amendment, waiver,
alteration or modification causes such Receivable not to conform to
the other
representations or warranties contained in this Section.
(h) No Liens. Neither Seller nor the Transferor has received notice
of
any Liens or claims, including Liens for work, labor, materials or
unpaid state
or federal taxes,
20
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 not more than 30 days as of the Cutoff Date, to the
knowledge of
Seller, 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. No Receivable has been sold, transferred, assigned,
or
pledged by Seller to any Person other than the Trust. Immediately
prior to the
transfer and assignment herein contemplated, 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.
(l) Obligations. The Transferor has duly fulfilled all 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, the Transferor 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 subdivision or instrumentality of the
United
States of America or any state thereof or any local government.
(o) Marking Records. By the Closing Date, Seller shall have caused
the
portions of Seller's and the Transferor'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 Trustee in accordance with
the terms of
this Agreement.
(p) No Assignment. As of the Closing Date, Seller shall not have
taken
any action to convey any right to any Person that would result in
such Person
having a right to payments received under the Insurance Policies or
Dealer
Agreements, or payments due under the Receivable, that is senior
to, or equal
with, that of Trustee.
(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
Certificates are unlawful, void or voidable. Neither Seller nor the
Transferor
has entered into any agreement with any obligor that prohibits,
restricts or
conditions the assignment of any portion of the Receivables.
21
(r) Dealer Agreements. A Dealer Agreement for each Receivable is in
effect whereby the Dealer warrants title to the Motor Vehicle and
indemnifies
the Transferor against the unenforceability of each Receivable sold
thereunder,
and the rights of such Seller Affiliate thereunder, with regard to
the
Receivable sold hereunder, have been validly assigned to and are
enforceable
against the Dealer by the Seller and then to and by the Trustee,
along with any
Dealer Recourse.
(s) Composition of Receivable. No Receivable has a Principal
Balance
which includes capitalized interest or late charges.
(t) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section
3.9(b) is accurate
and complete in all material respects.
Section 2.3 Representations and Warranties as to the Receivables in
the
Aggregate. The Seller hereby makes the following representations
and warranties
as to the Receivables on which Trustee shall rely in accepting the
Trust
Property in trust and authenticating the Certificates. Unless
otherwise
indicated, such representations and warranties shall speak as of
the Closing
Date, but shall survive the sale, transfer and assignment of the
Receivables and
the other Trust Property to the Trust.
(a) Amounts. The Original Pool Balance was $___________.
(b) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Cutoff Date:
(i) approximately ___% of the Original Pool Balance was
attributable to loans for purchases of new Financed Vehicles, and
approximately ___% of the Original Pool Balance was attributable to
loans
for purchases of used Financed Vehicles; approximately ___%, ___%,
___% and
____% of the Original Pool Balance was attributable to Receivables
the
mailing addresses of the Obligors with respect to which are located
in the
States of __________, __________, __________, and ___________,
respectively, and no other state accounts for more than 5% of the
Original
Pool Balance; (iii) the weighted average Contract Rate of the
Receivables
was ____%; (iv) there are Receivables being conveyed by Seller to
the
Trust; (v) the average Cutoff Date Principal Balance of the
Receivables was
$________; and (vi) the weighted average original term and weighted
average
remaining term of the Receivables were ______ months and ___
months,
respectively.
Section 2.4 Repurchase upon Breach. Seller, Servicer or Trustee, as
the
case may be, shall inform the other parties to this Agreement
promptly, in
writing, upon the discovery of any breach or failure to be true of
the
representations or warranties made by Seller in Section 2.2,
provided that the
failure to give such notice shall not affect any obligation of
Seller. 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 Seller elects, the 30th
day) after the
date on which Seller becomes aware of, or receives written notice
from Trustee
or Servicer of, such breach or failure, and such breach or failure
materially
and adversely affects the interests of Trustee and the Holders in
any
22
Receivable, Seller shall purchase each such affected Receivable
from Trustee 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. Notwithstanding the foregoing, any such breach or failure
with respect
to the representations and warranties contained in Section 2.2 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 repurchase of a Receivable hereunder, Seller
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 4.4. The
sole remedy
of the Trust, Trustee or the Holders with respect to a breach or
failure to be
true of the representations or warranties made by Seller pursuant
to Section 2.2
shall be to require Seller to purchase Receivables pursuant to this
Section 2.4.
Section 2.5 Custodian of Receivable Files. (a) Custody. To assure
uniform
quality in servicing the Receivables and to reduce administrative
costs,
Trustee, upon the execution and delivery of this Agreement,
revocably appoints
the Custodian, as agent, and the Custodian accepts such
appointment, to act as
agent on behalf of Trustee to maintain custody of the following
documents or
instruments, which are hereby constructively delivered to Trustee
with respect
to each Receivable (collectively, a "Receivable File"):
(i) the fully executed original of the Receivable;
(ii) any documents customarily delivered to or held by Servicer
evidencing the existence of any Physical Damage Insurance Policies;
(iii) the original credit application, fully executed by the
Obligor;
(iv) the original certificate of title, or such other documents
as the Transferor, as appropriate, keeps on file, in accordance
with its
customary procedures, evidencing the security interest of the
Transferor in
the Financed Vehicle;
(v) originals or true copies of all documents, instruments or
writings relating to extensions, amendments or waivers of the
Receivable;
and
(vi) any and all other documents or electronic records that the
Transferor or Servicer, as the case may be, keeps on file, in
accordance
with its 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 Trustee for the benefit
of all
present and future Holders, and maintain such accurate and complete
accounts,
records and computer systems pertaining to each Receivable as shall
enable
Servicer and Trustee to comply with the terms and provisions of
this Agreement
applicable to them. In performing its duties as Custodian
hereunder, the
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 the
Custodian and that is consistent with industry standards. In
accordance with its
customary practice with respect to its retail installment sale
contracts,
23
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 Trustee to verify, if Trustee so elects, the
accuracy of
the record keeping of Custodian. Custodian shall promptly report to
Trustee any
failure on its part to hold the Receivable Files and maintain its
accounts,
records and computer systems as herein provided, and promptly take
appropriate
action to remedy any such failure. The Custodian hereby
acknowledges receipt of
the Receivable File for each Receivable listed on the Schedule of
Receivables.
Nothing herein shall be deemed to require Trustee to verify the
accuracy of the
record keeping of the Custodian.
(c) Maintenance of and Access to Records. The Custodian shall
maintain
each Receivable File at the location specified in Schedule A to
this Agreement,
or at such other office of the 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 Trustee by 30
days' prior
written notice. Upon Trustee's reasonable request, the Custodian
shall make
available to Trustee or its agents (or, when requested in writing
by Trustee, to
its attorneys or auditors) the Receivable Files and the related
accounts,
records and computer systems maintained by the Custodian at such
times during
the normal business hours of the Custodian for purposes of
inspecting, auditing
or making copies or abstracts of the same.
(d) Release of Documents. Upon written instructions from Trustee,
Custodian shall release any document in the Receivable Files to
Trustee or its
agent or designee, as the case may be, at such place or places as
Trustee may
designate, as soon thereafter as is practicable. Any document so
released shall
be handled by Trustee with due care and returned to the Custodian
for
safekeeping as soon as Trustee or its agent or designee, as the
case may be,
shall have no further need therefor.
(e) Title to Receivables. The Custodian agrees that, in respect of
any
Receivable File held by the Custodian hereunder, the 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. The 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
Trustee. A
certified copy of excerpts of certain resolutions of the Board of
Directors of
Trustee shall constitute conclusive evidence of the authority of
any such
Authorized Officer to act and shall be considered in full force and
effect until
receipt by the Custodian of written notice to the contrary given by
Trustee.
(g) Custodian's Indemnification. Custodian shall indemnify and hold
harmless Trustee, its officers, directors, employees and agents and
the Holders
from and against any and all liabilities, obligations, losses,
compensatory
damages, payments, costs or expenses (including legal fees if any)
of any kind
whatsoever that may be imposed on, incurred or asserted against
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 the
Custodian
shall not be liable
24
hereunder to the extent that such liabilities, obligations, losses,
compensatory
damages, payments, costs or expenses result from the willful
misfeasance, bad
faith or negligence of Trustee. Indemnification under this Section
2.5(g) shall
include reasonable fees and expenses of counsel and expenses of
litigation and
shall survive termination of this Agreement and the resignation or
removal of
Trustee. If Custodian shall have made any indemnity payments to
Trustee pursuant
to this Section and Trustee thereafter shall collect any of such
amounts from
Persons other than Custodian, Trustee shall immediately upon
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
Trustee or by the Majority Holders, in the same manner as Trustee
or such
Holders may terminate the rights and obligations of Servicer under
Section 8.1.
Trustee may terminate Servicer's appointment as Custodian hereunder
at any time
with cause, or with 30 days' prior written notice without cause,
upon written
notification to Servicer. As soon as practicable after any
termination of such
appointment Servicer shall deliver, or cause to be delivered, the
Receivable
Files to Trustee, Trustee's agent or Trustee's designee at such
place or places
as Trustee 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, 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 to the Transferor; provided that
no such
delegation shall relieve Custodian of its responsibility with
respect to such
duties and Custodian shall remain obligated and liable to Trustee
and the
Holders for its duties hereunder as if Custodian alone were
performing such
duties.
ARTICLE III
ADMINISTRATION AND SERVICING OF TRUST PROPERTY
Section 3.1 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 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
25
payment coupons or monthly invoices to Obligors, reporting required
tax
information to Obligors, accounting for Collections, monitoring the
status of
Physical Damage Insurance Policies with respect to the Financed
Vehicles as
provided in Section 3.4(a), furnishing monthly and annual
statements to Trustee
with respect to distributions, providing collection and
repossession services in
the event of Obligor default and performing the other duties
specified herein.
Servicer shall also administer and enforce all rights and
responsibilities of
the holder of the Receivables provided for in the Physical Damage
Insurance
Policies as provided in Section 3.4(b) and the Dealer Agreements.
Without
limiting the generality of the foregoing, Servicer is hereby
authorized and
empowered by Trustee to execute and deliver, on behalf of itself,
the Trust,
Trustee 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, Trustee shall thereupon be deemed to have automatically
assigned
such Receivable to Servicer, which assignment shall be solely for
purposes of
collection. Trustee 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 (except that Servicer
shall give written notice to each Rating Agency of any delegation
outside the
ordinary course of business of the substantial portion of its
servicing
business) or consent, delegate specific duties to subcontractors
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 Trustee and the Holders for
servicing and
administering the Receivables in accordance with this Agreement as
if Servicer
alone were performing such duties.
Section 3.2 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 the other Trust 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 3.1. Servicer shall be entitled to amend or
modify any
Receivable in accordance with its customary procedures if Servicer
believes in
good faith that such amendment or modification is in the best
interests of the
Trust; provided that Servicer may not, unless ordered by a court of
competent
jurisdiction or otherwise required by applicable law, (i) extend a
Receivable
beyond the Final Scheduled Maturity Date, 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 3.7 as of the close of business for the
Collection
Period in which such failure occurs. Servicer may, in its
discretion (in
accordance with its customary standards, policies and procedures),
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.
26
(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 3.3 Realization upon Receivables. (a) On behalf of the
Trust,
Servicer shall charge off a Receivable as a Defaulted Receivable in
accordance
with its customary standards (and, in no event later than ___ days
after a
Receivable shall have become delinquent) and shall use reasonable
efforts to
repossess and liquidate the Financed Vehicle securing any Defaulted
Receivable
as soon as feasible after default, in accordance with the standard
of care
required by Section 3.1. In taking such action, 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 3.1,
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 shall not expend funds in
connection with
the repair or the repossession of such Financed Vehicle unless it
shall
determine in its discretion that such repair and/or repossession
will increase
the Liquidation Proceeds of the related Receivable by an amount
equal to or
greater than the amount of such expenses.
(b) 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 Trustee 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, Trustee,
on behalf of the Trust, at Servicer's expense, shall take such
steps as Servicer
deems necessary to enforce the Dealer Agreement, including bringing
suit in its
name or the names of the Holders.
Section 3.4 Physical Damage Insurance. (a) The Receivables require
that
each Financed Vehicle be insured under a Physical Damage Insurance
Policy.
Servicer shall monitor or cause to be monitored, the status of such
physical
damage insurance coverage to the extent consistent with its
customary servicing
procedures. If Servicer shall determine that an Obligor has failed
to obtain or
maintain a Physical Damage Insurance Policy covering the related
Financed
Vehicle, Servicer shall use its reasonable efforts 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.
27
(b) Servicer may sue 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,
Trustee, on behalf of the Trust, at Servicer's expense, shall take
such steps as
Servicer deems necessary to enforce such Physical Damage Insurance
Policy,
including bringing suit in its name or the name of Trustee for the
benefit of
the Holders. 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 3.5 Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under
Section 3.1,
shall take such reasonable steps as are necessary to maintain
perfection of the
security interest created by each Receivable in the related
Financed Vehicle for
the benefit of the Trust. Trustee, on behalf of the Trust, hereby
authorizes
Servicer, and Servicer hereby agrees, to take such reasonable steps
as are
necessary to re-perfect such security interest on behalf of the
Trust in the
event Servicer receives notice of the relocation of a Financed
Vehicle. If there
has been a Servicer Termination Event, upon the request of Trustee,
Servicer, at
its expense, shall promptly and duly execute and deliver such
documents and
instruments, and take such other reasonable actions as may be
necessary, as
evidenced by an Opinion of Counsel delivered to Trustee to perfect
the Trust's
interest in the Trust Property against all other Persons, including
the delivery
of the Receivables and the Receivable Files to Trustee, its agent,
or its
designee, the endorsement and delivery of the Physical Damage
Insurance Policies
or the notification of the insurers thereunder, the execution of
transfer
instruments, and the endorsement to Trustee and the delivery of the
certificates
of title to the Financed Vehicles to the appropriate department or
departments
of motor vehicles (or other appropriate governmental agency).
Section 3.6 Covenants of Servicer. Servicer makes the following
covenants
on which Trustee relies in accepting the Trust Property in trust
and in
executing and authenticating the Certificates:
(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 Holders in the Receivables, the Dealer Agreements
or the
Physical Damage Insurance Policies or, subject to clause (c),
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.
28
(c) Amendments. Servicer shall not amend or otherwise modify any
Receivable (including the grant of any extension thereunder),
except in
accordance with Section 3.2.
Section 3.7 Purchase by Servicer upon Breach. Seller, Servicer or
Trustee,
as the case may be, shall inform the other parties promptly, in
writing, upon
the discovery of any breach by Servicer of its covenants under
Section 3.5 or
3.6; 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 or failure
materially
and adversely affects the interests of Trustee and the Holders in
any
Receivable, Servicer shall purchase such Receivable from Trustee 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;
provided that
in the case of a breach of the covenant contained in Section
3.6(c), Servicer
shall be obligated to purchase the affected Receivable or
Receivables on 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 4.4.
The sole
remedy of the Trust, Trustee or the Holders against Servicer with
respect to a
breach pursuant to Section 3.5 or 3.6 shall be to require Servicer
to repurchase
Receivables pursuant to this Section.
Section 3.8 Servicing Compensation. The servicing fee for (a) the
_____
200[_] Distribution Date shall equal $________ and (b) for each
Distribution
Date thereafter shall equal the product of (i) one-twelfth, (ii)
the Servicing
Fee Rate and (iii) the Pool Balance as of the opening of business
on the first
day of the related Collection Period (the "Servicing Fee").
Servicer shall also
be entitled to retain any late fees, extension fees, prepayment
charges
(including, in the case of any Rule of 78's Receivable or Sum of
Periodic
Balances Receivable that is prepaid in full, amounts received in
excess of the
outstanding Principal Balance of such Receivable and accrued
interest thereon
calculated as if such Receivable were an Actuarial Receivable) 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 and shall be paid any interest earned on
deposits in
the Accounts (the "Supplemental Servicing Fee"). It is understood
and agreed
that Available Interest or Available Principal 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 Distribution 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. As provided
in Section
4.5, as additional compensation, Servicer shall be entitled to
receive on each
Distribution Date, any Additional Servicing for such Distribution
Date.
Section 3.9 Servicer's Report. (a) On each Determination Date,
Servicer
shall deliver to Trustee and Seller, with a copy to the Rating
Agencies, a
Servicer's Report substantially in the form of Exhibit C (a
"Servicer's Report")
containing, among other things, (i) all information necessary to
make the
deposits, transfers and distributions required by Sections 4.4, 4.5
and 4.6,
(ii) all information necessary for sending statements to Holders
pursuant to
Section 4.7, (iii) all
29
information necessary to prepare the certificate described in
Section 9.3, (iv)
all information necessary to determine if there has been a Servicer
Termination
Event under Section 8.1, and (v) all information necessary to
reconcile all
deposits to, and withdrawals from, the Collection Account for such
Distribution
Date and the related Collection Period. Servicer also shall
separately identify
(by account number of the Receivable as it appears in the Schedule
of
Receivables) to Trustee in a written notice or a list in computer
readable form
the Receivables to be purchased by Servicer, as the case may be, on
the related
Deposit Date, and each Receivable which became a Defaulted
Receivable during the
related Collection Period.
(b) Servicer shall provide Trustee with a database file for the
Receivables at or prior to the Closing Date (but with information
as of the
close of business on the Cutoff Date).
Section 3.10 Annual Statement as to Compliance. The Trustee and
Servicer
shall deliver, and the Servicer shall cause each Additional
Servicer engaged by
it to deliver, in electronic form, to the Seller, the Trustee and
each Rating
Agency on or before March 5th of each year, or if such day is not a
Business Day
the next Business Day (with a ten calendar day cure period, but in
no event
later than March 15th), followed by a hard copy within ten calendar
days,
commencing March 20__, a certificate in the form required by Item
1123 of
Regulation AB, to the effect that (i) an authorized officer of the
Trustee,
Servicer or Additional Servicer, as the case may be, has reviewed
(or a review
has been made under his or her supervision of) such party's
activities under
this Agreement, or such other applicable agreement in the case of
an Additional
Servicer, during the prior calendar year or a portion thereof and
(ii) to the
best of such officer's knowledge, based on such review, such party
has fulfilled
all of its obligations under this Agreement, or such other
applicable agreement
in the case of an Additional Servicer, in all material respects
throughout the
prior calendar year or portion thereof or, if there has been a
failure to
fulfill any such obligation in any material respect, specifying
each such
failure known to such officer and the nature and status thereof.
Promptly after
receipt of such certificate, the Seller shall review such
certificate and, if
applicable, consult with the Servicer and Trustee as to the nature
of any
failure to fulfill any obligation under the Agreement, or such
other applicable
agreement in the case of an Additional Servicer, in any material
respect.
30
Section 3.11 Assessments of Servicing Compliance; Registered Public
Accounting Firm Attestation Reports.
(a) Each of the Servicer and the Trustee shall furnish, and shall
cause any
Servicing Function Participant engaged by it to furnish, at such
party's
expense, to the Seller and the Trustee in electronic form, not
later than March
5th of each year, or if such day is not a Business Day the next
Business Day
(with a ten calendar day cure period, but in no event later than
March 15th),
followed by a hard copy within ten calendar days, commencing in
March 20___, a
report on an assessment of compliance with the Servicing Criteria
applicable to
it that contains (A) a statement by such party of its
responsibility for
assessing compliance with the Servicing Criteria applicable to it,
(B) a
statement that such party used the Servicing Criteria to assess
compliance with
the Servicing Criteria applicable to it, (C) such party's
assessment of
compliance with the Servicing Criteria applicable to it as of an
for the fiscal
year covered by the Form 10-K required to be filed pursuant to
Section 3.13,
including, if there has been any material instance of noncompliance
with the
Servicing Criteria applicable to it, a discussion of each such
failure and the
nature and status thereof, and (D) a statement that a registered
public
accounting firm has issued an attestation report on such party's
assessment of
compliance with the Servicing Criteria applicable to such party as
of an for
such period.
Each such assessment of compliance report shall be addressed to the
Seller
and the Trustee and signed by an authorized officer of the
applicable party, and
shall address each of the Relevant Servicing Criteria set forth on
Exhibit F
hereto, or as set forth in the notification furnished to the Seller
and the
Trustee pursuant to Section 3.10(c). The Servicer and the Trustee
hereby
acknowledge and agree that their respective assessments of
compliance will cover
the items identified on Exhibit F hereto as being covered by such
party. The
parties to this Agreement acknowledge that where a particular
Servicing
Criterion has multiple components, each party's assessment of
compliance (and
related attestation of compliance) will relate only to those
components that are
applicable to such party. Promptly after receipt of each such
report on
assessment of compliance, the Seller shall review each such report
and, if
applicable, consult with the Servicer or the Trustee as to the
nature of any
material instance of noncompliance with the Servicing Criteria
applicable to it
(or any Servicing Function Participant engaged or utilized by the
Servicer or
the Trustee, as applicable).
(b) Each of the Servicer and the Trustee, at its own expense, shall
cause,
and shall cause any Servicing Function Participant engaged by it,
at such
party's expense, to cause, not later than March 5th of each year or
if such day
is not a Business Day, the next Business Day (with a ten calendar
day cure
period), commencing in March 2__, a registered public accounting
firm (which may
also render other services to the Servicer, the Trustee, or such
other Servicing
Function Participants, as the case may be) and that is a member of
the American
Institute of Certified Public Accountants to furnish electronically
a report to
the Trustee and the Seller (with a hard copy to follow within ten
calendar
days), to the effect that (i) it has obtained a representation
regarding certain
matters from the management of such party, which includes an
assertion that such
party has complied with the Servicing Criteria applicable to it,
and (ii) on the
basis of an examination conducted by such firm in accordance with
standards for
attestation engagements issued or adopted by the Public Company
Accounting
Oversight Board, it is
31
expressing an opinion as to whether such party's assessment of
compliance with
the Servicing Criteria was fairly stated in all material respects,
or it cannot
express an overall opinion regarding such party's assessment of
compliance with
the Servicing Criteria. In the event that an overall opinion cannot
be
expressed, such registered public accounting firm shall state in
such report why
it was unable to express such an opinion. Such report must be
available for
general use and not contain restricted use language.
Promptly after receipt of each such accountants' attestation
report, the Seller
shall review the report and, if applicable, consult with the
Servicer or the
Trustee if such report (i) states that a party's assessment of
compliance was
not fairly stated in any material respect or (ii) is unable to
state an overall
opinion.
(c) No later than 30 days following the end of each fiscal year for
the
Trust for which a Form 10-K is required to be filed, (i) the
Servicer shall
forward to the Trustee and the Seller the name of each Servicing
Function
Participant engaged by it and what Servicing Criteria will be
addressed in the
report on assessment of compliance prepared by such Servicing
Function
Participant and (ii) the Trustee shall forward to the Seller the
name of each
Servicing Function Participant engaged by it and what Servicing
Criteria will be
addressed in the report on assessment of compliance prepared by
such Servicing
Function Participant, in each case to the extent of any change from
the prior
year's notice, if any.
(d) Beginning with fiscal year 20__ and thereafter, none of the
Servicer,
the Trustee or any Servicing Function Participant engaged by such
parties shall
be required to deliver or cause the delivery of any such
assessments or
attestation reports until April 15th unless such party has received
written
notice from the Seller that a Form 10-K is required to be filed in
respect of
the Trust for the preceding fiscal year.
Section 3.12 Access to Certain Documentation and Information
Regarding
Receivables. Servicer shall provide Trustee and the Holders with
access to the
Receivable Files (in the case of the Holders, only in such cases
where it shall
be required by applicable statutes or regulations to give access to
such
documentation as demonstrated by evidence satisfactory to Servicer
in its
reasonable judgment). Such access shall be afforded without charge,
but only
upon reasonable request and during normal business hours at the
offices of
Servicer. Nothing in this Section 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. Any
Holder, by its acceptance of a Certificate, shall be deemed to have
agreed to
keep any information obtained by it pursuant to this Section
confidential and
not to use such information for any other purpose, except as
required by
applicable law.
32
Section 3.13 Reports to the Commission. (a) The Trustee and the
Servicer
shall reasonably cooperate with the Seller to enable the Seller to
satisfy its
reporting requirements under the Exchange Act and the parties
hereto shall
reasonably cooperate to enable the Commission requirements with
respect to the
Seller to be met in the event that the Commission issues additional
interpretive
guidelines or promulgates rules or regulations, or in the event of
any other
change of law that would require reporting arrangements or the
allocation of
responsibilities with respect thereto, as described in this Section
3.13, to be
conducted or allocated in a different manner. Without limiting the
generality of
the foregoing, the Trustee shall prepare on behalf of the Seller
any Current
Reports on Form 8-K (each, a "Form 8-K"), Distribution Reports on
Form 10-D
(each, a "Form 10-D") and Annual Reports on Form 10-K (each, a
"Form 10-K") as
required by the Exchange Act and the rules and regulations of the
Commission
thereunder, the Servicer shall sign and the Trustee shall file (via
the
Commission's Electronic Data Gathering and Retrieval System) such
forms on
behalf of the Seller. Notwithstanding the foregoing, the Seller
shall file the
Form 8-Ks in connection with the issuance of the Certificates.
(b) Each Form 10-D shall be filed by the Trustee within 15 days
after each
Distribution Date and will include a copy of the monthly statement
to
Certificateholders delivered pursuant to Section 5.04(b) (each, a
"Distribution
Date Statement") for such Distribution Date as an exhibit thereto.
In addition,
the Trustee shall include under Item 1 of each Form 10-D any
information
required by Item 1121 of Regulation AB to the extent relevant that
is not
included on the Distribution Date Statement. Any disclosure in
addition to the
Distribution Date Statement and any other information required by
Item 1121 of
Regulation AB ("Additional Form 10-D Information") shall be
determined by the
party preparing such information as set forth on Exhibit G-1 hereto
and the
Trustee shall compile such disclosure pursuant to the following
paragraph. The
Trustee will have no duty or liability for any failure hereunder to
determine or
prepare any Additional Form 10-D Information, except to the extent
of its
obligations as set forth in the next paragraph.
As set forth on Exhibit G-1 hereto, within five calendar days after
the
related Distribution Date, certain parties hereto shall be required
to provide
to the Seller and the Trustee, to the extent known by such parties,
any
Additional Form 10-D Information, if applicable. The Seller will be
responsible
for all reasonable fees and expenses assessed or incurred by the
Trustee in
connection with including any Additional Form 10-D Information on
Form 10-D
pursuant to this paragraph, including converting any such
disclosure to an
EDGAR-compatible format.
After preparing the Form 10-D, the Trustee shall forward
electronically a
draft copy of the Form 10-D to the Seller and the Servicer for
review. No later
than two Business Days prior to the 15th calendar day after the
related
Distribution Date, the Seller and Servicer shall each indicate to
the Trustee
their consent to the form and substance of the draft Form 10-D
(which consent
may be in electronic form). If a Form 10-D cannot be filed on time
or if a
previously filed Form 10-D needs to be amended, the Trustee will
follow the
procedures set forth in Section
33
3.13(e). Promptly (but no later than one Business Day) after filing
with the
Commission, the Trustee will make available on its internet website
a final
executed copy of each Form 10-D. The Trustee shall have no
liability for any
loss, expense, damage or claim arising out of or with respect to
any failure to
properly prepare and/or timely file such Form 10-D, where such
failure results
from the Trustee's inability or failure to obtain or receive, on a
timely basis,
any information from any party hereto (other than the Trustee or
any Servicing
Function Participant utilized by the Trustee) needed to prepare,
arrange for
execution or file such Form 10-D, not resulting from its own
negligence, bad
faith or willful misconduct.
(c) On or before 90 days after the end of each fiscal year of the
Trust (or
such earlier date as may be required by the Exchange Act and the
rules and
regulations of the Commission), commencing in 20___, the Trustee
shall file a
Form 10-K, in form and substance as required by applicable law or
applicable
Commission staff interpretations. Each such Form 10-K shall include
the
following items, in each case to the extent they have been
delivered to the
Trustee within the applicable time frames set forth in this
Agreement: (i) an
annual compliance statement for the Trustee, the Servicer and each
Additional
Servicer, as described under Section 3.10, (ii)(A) the annual
reports on
assessment of compliance with Servicing Criteria for the Servicer,
the Trustee
and each Servicing Function Participant, as described under Section
3.11, and
(B) if the Servicer's, the Trustee's or each Servicing Function
Participant's
report on assessment of compliance with Servicing Criteria
described under
Section 3.11 identifies any material instance of noncompliance or
is not
included, disclosure identifying such instance of noncompliance or
disclosure
that such report is not included and an explanation thereof, as the
case may be,
(iii)(A) the registered public accounting firm attestation report
for the
Servicer, the Trustee and each Servicing Function Participant, as
described
under Section 3.11, and (B) if any registered public accounting
firm attestation
report described under Section 3.11 identifies any material
instance of
noncompliance or is not included, disclosure identifying such
instance of
noncompliance or disclosure that such report is not included and an
explanation
thereof, as the case may be, and (iv) a Certification as described
in this
Section 3.13(c). Any disclosure or information in addition to (i)
through (iv)
above that is required to be included on Form 10-K ("Additional
Form 10-K
Information") shall be prepared by the party responsible for
preparing such
disclosure as set forth on Exhibit G-2 hereto and the Trustee shall
compile such
disclosure pursuant to the following paragraph. The Trustee will
have no duty or
liability for any failure hereunder to determine or prepare any
Additional Form
10-K Information, except to the extent of its obligations as set
forth in the
next paragraph.
As set forth on Exhibit G-2 hereto, no later than March 1st of each
year
that the Trust is subject to the Exchange Act reporting
requirements, commencing
in 20___, certain parties to this Agreement shall be required to
provide to the
Trustee and the Seller, to the extent known by such applicable
parties, any
Additional Form 10-K Information, if applicable. The Seller will be
responsible
for all reasonable fees and expenses assessed or incurred by the
Trustee in
connection with including any Additional Form 10-K Information on
Form 10-K
pursuant to this paragraph, including converting any such
disclosure to an
EDGAR-compatible format.
After preparing the Form 10-K, the Trustee shall forward
electronically a
draft copy of the Form 10-K to the Seller and the Servicer for
review. No later
than the close of business on
34
the third Business Day prior to the 10-K filing deadline, a senior
officer of
the Servicer in charge of the master servicing function shall sign
the Form 10-K
and return an electronic or fax copy of such signed Form 10-K,
together with a
signed copy of the certification (the "Certification") attached
hereto as
Exhibit D and required to be included with each Form 10-K pursuant
to the
Sarbanes-Oxley Act of 2002, as amended (with an original executed
hard copy of
each to follow by overnight mail) to the Trustee. If a Form 10-K
cannot be filed
on time or if a previously filed Form 10-K needs to be amended, the
Trustee will
follow the procedures set forth in Section 3.13(e). Promptly (but
no later than
one Business Day) after filing with the Commission, the Trustee
will make
available on its internet website a final executed copy of each
Form 10-K. The
parties to this Agreement acknowledge that the performance by the
Trustee of its
duties under this Section 3.13(c) related to the timely preparation
and filing
of Form 10-K is contingent upon such parties (and any Additional
Servicer or
Servicing Function Participant) strictly observing all applicable
deadlines in
the performance of their duties under this Section 3.13, Section
3.10 and
Section 3.11. The Trustee shall have no liability for any loss,
expense, damage,
claim arising out of or with respect to any failure to properly
prepare and/or
timely file such Form 10-K, where such failure results from the
Trustee's
inability or failure to obtain or receive, on a timely basis, any
information
from any party hereto (other than the Trustee or any Servicing
Function
Participant utilized by the Trustee) needed to prepare, arrange for
execution or
file such Form 10-K, not resulting from its own negligence, bad
faith or willful
misconduct.
For so long as the Trust is subject to the reporting requirements
of the
Exchange Act, the Trustee shall provide to the Servicer, on or
before March 5th
of each year, or if such day is not a Business Day the next
Business Day (with a
ten calendar day cure period), followed by a hard copy within ten
days,
commencing in March 20___, and otherwise within a reasonable period
of time upon
request, a certification in the form attached hereto as Exhibit E.
In the event
the Trustee is terminated or resigns pursuant to the terms of this
Agreement,
such Trustee shall provide a certification in the form attached
hereto as
Exhibit E with respect to the period of time it was subject to this
Agreement.
In addition, the Trustee shall indemnify and hold harmless the
Seller, the
Servicer, the Trustee and their officers, directors and affiliates
from and
against any losses, damages, penalties, fines, forfeitures,
reasonable and
necessary legal fees and related costs, judgments and other costs
and expenses
arising out of or based upon any inaccuracy in (i) the assessment
of compliance
with the Servicing Criteria pursuant to Section 3.11 provided by
the Trustee or
any Servicing Function Participant appointed by the Trustee and
(ii) the
certification provided by the Trustee pursuant to this Section
3.13(c), any
breach of the obligations under Sections 3.10 and 3.13(c) of the
Trustee or any
Servicing Function Participant appointed by the Trustee or the
Trustee's or such
Servicing Function Participant's negligence, bad faith or willful
misconduct in
connection therewith. If the indemnification provided for herein is
unavailable
or insufficient to hold harmless the Seller, the Servicer, the
Trustee and their
officers, directors and affiliates in such proportion as is
appropriate to
reflect the relative fault of the Seller, the Servicer, the Trustee
and each of
their officers, directors and affiliates on the one hand and the
Trustee on the
other in connection with a breach of the Trustee's obligations
under this
Section 3.13(c) or the Trustee's negligence, bad faith or willful
misconduct in
connection therewith.
35
(d) Prior to the latest date on which the Form 10-K may be timely
filed
each year, the Servicer shall enforce the obligation of the
Servicer to provide
the certification required pur
