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DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION
Seller
MERCEDES-BENZ CREDIT CORPORATION
Servicer and in its individual capacity
and
CITIBANK, N.A.
Trustee, Payahead Agent,
Class A Agent and Class B Agent
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POOLING AND SERVICING AGREEMENT
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Dated as of , 1997
Daimler-Benz Auto Grantor Trust 1997-A
% Asset Backed Certificates, Class A
% Asset Backed Certificates, Class B
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POOLING AND SERVICING AGREEMENT dated as of , 1997 (the
"Agreement"), among DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION, a Delaware
corporation, as Seller, MERCEDES-BENZ CREDIT CORPORATION, a Delaware
corporation, as Servicer and in its individual capacity, and CITIBANK, N.A., a
national banking association, as trustee hereunder (the "Trustee"), as payahead
agent with respect to the Payahead Account (the "Payahead Agent"), as collateral
agent with respect to the Class A Reserve Fund (the "Class A Agent") and, as
collateral agent with respect to the Class B Reserve Fund (the "Class B Agent").
In consideration of the premises and of the mutual agreements
herein contained, and other good and valuable consideration, the receipt of
which is acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, whenever
capitalized shall have the following meanings:
"Accounts" means collectively the Collection Account, the
Certificate Account, the Reserve Funds and the Payahead Account.
"Accredited Investor" means an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3), or (7) under the Act.
"Act" shall mean the Securities Act of 1933, as amended.
"Actuarial Method" means generally the method of allocating a
fixed level payment between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is the product of
one-twelfth of the APR on the Receivable multiplied by the scheduled principal
balance.
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"Advance" means the amount, as of the last day of a Collection
Period, which is required to be advanced by the Servicer with respect to a
Receivable pursuant to Section 4.4(a) hereof. When used as a verb, "Advance"
shall have a correlative meaning.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Amount Financed" in respect of a Receivable means the amount
originally advanced under such Receivable toward the purchase price of the
related Financed Vehicle and related costs.
"APR" of a Receivable means "the annual percentage rate" of
interest stated on such Receivable.
"Authorized Officer" means any officer within the Corporate
Trust Office of the Trustee, the Payahead Agent, the Class A Agent or the Class
B Agent, as the case may be, including any vice president, assistant vice
president, senior trust officer, trust officer, secretary, assistant secretary
or any other officer of the Trustee, the Payahead Agent, the Class A Agent or
the Class B Agent, as the case may be, 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 with respect to the preceding Collection Period: (i)
that portion of all collections on Receivables (including amounts withdrawn from
Payahead Balances pursuant to Section 4.4(a) but excluding amounts added to
Payahead Balances) allocable to interest due on such Receivables during such
Collection Period; (ii) all Liquidation Proceeds to the
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extent allocable to interest due thereon and any Recoveries; (iii) all Advances
made by the Servicer of interest due on Receivables; (iv) the Purchase Amount of
each Receivable that became a Purchased Receivable under an obligation that
arose during the related Collection Period to the extent allocable to accrued
interest thereon; and (v) the portion of the Shortfall Amounts, if any,
allocable to interest received by the Trustee; provided, however, that in
calculating the Available Interest the following will be excluded: (i) amounts
received on Receivables (including Purchase Amounts) to the extent that
unreimbursed Advances of interest had previously been made by the Servicer; (ii)
Recoveries with respect to a particular Receivable to the extent of any
unreimbursed Advances; (iii) Liquidation Proceeds with respect to a particular
Receivable to the extent of any unreimbursed Advances of interest; and (iv) the
Excess Amounts, if any, paid by Obligors during such Collection Period with
respect to Prepaid Receivables.
"Available Principal" means, for any Distribution Date, the
sum of the following amounts with respect to the preceding Collection Period:
(i) that portion of all collections on Receivables (including amounts withdrawn
from Payahead Balances pursuant to Section 4.4(a) but excluding amounts added to
Payahead Balances) allocable to principal; (ii) all Liquidation Proceeds
allocable to principal; (iii) all Advances made by the Servicer of principal due
on Receivables; (iv) to the extent allocable to principal, the Purchase Amount
of each Receivable that became a Purchased Receivable under an obligation that
arose during such Collection Period; and (v) the portion of the Shortfall
Amounts, if any, allocable to principal received by the Trustee; provided,
however, that in calculating the Available Principal the following will be
excluded: (i) amounts received on Receivables (including Purchase Amounts) to
the extent that unreimbursed Advances of principal had previously been made by
the Servicer; (ii) Liquidation Proceeds with respect to a particular Receivable
to the extent of any unreimbursed Advances of principal; and (iii) the Excess
Amounts, if any, paid by Obligors during such Collection Period with respect to
Prepaid Receivables.
"Book Entry Certificates" means beneficial interests in the
Class A Certificates or Class B Certificates as described in Section 6.8, the
ownership of which
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shall be evidenced, and transfers of which shall be made, through book entries
by a Clearing Agency as described in Section 6.8.
"Business Day" means any day other than a Saturday, a Sunday,
or a day on which banking institutions or trust companies in New York, New York
shall be authorized or obligated by law, executive order, or governmental decree
to remain closed.
"Certificate" means any Class A Certificate or Class B
Certificate.
"Certificate Account" means the account or accounts
established and maintained as such pursuant to Section 4.1.
"Certificate Owner" means, with respect to a Book Entry
Certificate, the Person who is the owner of such Book Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules, regulations and procedures of such
Clearing Agency) and with respect to a Definitive Certificate, the
Certificateholder.
"Certificate Register" means the register maintained by the
Certificate Registrar for the registration of Certificates and of transfers and
exchanges of Certificates as provided in Section 6.3.
"Certificate Registrar" means the Trustee or any successor
pursuant to Section 6.3.
"Certificateholder" or "Holder" means the Person in whose name
a Certificate shall be registered in the Certificate Register as well as the
Seller as holder of the Retained Yield, except that, solely for the purpose of
giving any consent, request, demand, vote or waiver pursuant to this Agreement,
the interest evidenced by any Certificate or interest in the Retained Yield
registered in the name of the Seller, the Servicer, or any Person actually known
to an Authorized Officer of the Trustee to be an Affiliate of the Seller or the
Servicer, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such
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consent, request, demand, vote or waiver shall have been obtained.
"Class" means either the Class A Certificates or the Class B
Certificates.
"Class A Agent" has the meaning specified in Section 4.7.
"Class A Certificate" means a certificate executed by the
Trustee on behalf of the Trust and authenticated by the Trustee, substantially
in the form of Exhibit A hereto.
"Class A Certificateholder" or "Class A Holder" means the
Person in whose name a Class A Certificate shall be registered in the
Certificate Register, except that, solely for the purpose of giving any consent,
request, demand or waiver pursuant to this Agreement, the interest evidenced by
any Class A Certificate registered in the name of the Seller, the Servicer, or
any Person actually known to an Authorized Officer of the Trustee to be an
Affiliate of the Seller or the Servicer, shall not be taken into account in
determining whether the requisite percentage necessary to effect any such
consent, request, demand or waiver shall have been obtained.
"Class A Certificate Owner" means, with respect to a Book
Entry Certificate representing a beneficial interest in the Class A
Certificates, the Person who is the owner of such Book Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant in accordance with the rules, regulations and procedures of such
Clearing Agency) and, with respect to a Definitive Certificate, the Class A
Certificateholder.
"Class A Distributable Amount" means, with respect to any
Distribution Date, the sum of Class A Principal and Class A Interest for such
Distribution Date and the Class A Interest Carryover Shortfall and Class A
Principal Carryover Shortfall as of the close of business on the preceding
Distribution Date.
"Class A Interest" means, with respect to any Distribution
Date, an amount equal to thirty (30) days of
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interest at the Pass-Through Rate on the Class A Principal Balance on the first
day of the related Collection Period (reduced by the amount of principal
distributions to be made on the Distribution Date in such Collection Period).
"Class A Interest Carryover Shortfall" means, as of the close
of business on any Distribution Date, the excess, if any, of (x) the Class A
Interest for such Distribution Date plus any outstanding Class A Interest
Carryover Shortfall from the preceding Distribution Date over (y) the amount of
interest that the Class A Certificateholders actually received on such current
Distribution Date (plus thirty (30) days' interest on the amount of such excess,
to the extent permitted by law, at the Pass-Through Rate).
"Class A Percentage" means %.
"Class A Pool Factor" means, as of a Distribution Date, a
seven-digit decimal figure equal to the Class A Principal Balance as of the
close of business on such Distribution Date divided by the Original Class A
Principal Balance.
"Class A Principal" means, with respect to any Distribution
Date, the sum of the Class A Percentage of: (i) the principal portion of all
Scheduled Payments due on the Receivables during the preceding Collection
Period; (ii) the Principal Balance of each Receivable that became a Prepaid
Receivable during the preceding Collection Period (without duplication of
amounts included in clause (i) above or clause (iv) below); (iii) the Principal
Balance of each Receivable that became a Purchased Receivable under an
obligation that arose during the preceding Collection Period (without
duplication of amounts referred to in clause (i)); and (iv) the Principal
Balance of each Receivable which became a Defaulted Receivable during the
preceding Collection Period (without duplication of amounts referred to in
clause (i) or (ii) above). In addition, on the Final Scheduled Distribution
Date, "Class A Principal" will include the lesser of (x) the Class A Percentage
of any payments of principal due and remaining unpaid on each Receivable in the
Trust as of the Final Scheduled Maturity Date (except to the extent previously
Advanced) and (y) the portion of such amount that is necessary (after giving
effect to the
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other amounts to be distributed to the Class A Certificateholders on such
Distribution Date and allocable to principal) to reduce the Class A Principal
Balance to zero.
"Class A Principal Balance" means, initially, the Original
Class A Principal Balance and, thereafter, the Original Class A Principal
Balance, reduced by all amounts distributed to the Class A Certificateholders
and allocable to principal.
"Class A Principal Carryover Shortfall" means, as of the close
of business on any Distribution Date, the excess of (x) the Class A Principal
plus any outstanding Class A Principal Carryover Shortfall from the preceding
Distribution Date over (y) the amount of principal that the Holders of the Class
A Certificates actually received on such current Distribution Date.
"Class A Reserve Fund" means the Class A Reserve Fund,
established and maintained as such pursuant to Section 4.7, for the Class A
Certificates.
"Class A Reserve Fund Property" has the meaning specified in
Section 4.7(a).
"Class A Reserve Initial Deposit" means, with respect to the
Closing Date, $ .
"Class B Agent" has the meaning specified in Section 4.7.
"Class B Certificate" means a certificate executed by the
Trustee on behalf of the Trust and authenticated by the Trustee, substantially
in the form of Exhibit B hereto.
"Class B Certificateholder" or "Class B Holder" means the
Person in whose name a Class B Certificate shall be registered in the
Certificate Register, except that, solely for the purpose of giving any consent,
request, demand or waiver pursuant to this Agreement, the interest evidenced by
any Class B Certificate registered in the name of the Seller, the Servicer, or
any Person actually known to an Authorized Officer of the Trustee to be an
Affiliate of the Seller or the Servicer, shall not be taken into account in
determining whether the requi-
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site percentage necessary to effect any such consent, request, demand or waiver
shall have been obtained.
"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) and, with respect to a Definitive Certificate, the Class B
Certificateholder.
"Class B Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Principal, Class B Interest, Class B
Interest Carryover Shortfall, and Class B Principal Carryover Shortfall.
"Class B Interest" means, with respect to any Distribution
Date, thirty (30) days of interest at the Pass-Through Rate on the Class B
Principal Balance on the first day of the related Collection Period (reduced by
the amount of principal distributions to be made on the Distribution Date in
such Collection Period).
"Class B Interest Carryover Shortfall" means, as of the close
of business on any Distribution Date, the excess, if any, of (x) the Class B
Interest for such Distribution Date plus any outstanding Class B Interest
Carryover Shortfall from the preceding Distribution Date over (y) the amount of
interest that the Class B Certificateholders actually received on such current
Distribution Date (plus thirty (30) days' interest on the amount of such excess,
to the extent permitted by law, at the Pass-Through Rate).
"Class B Percentage" means %.
"Class B Pool Factor" means, as of a Distribution Date, a
seven-digit decimal figure equal to the Class B Principal Balance as of the
close of business on such Distribution Date divided by the Original Class B
Principal Balance.
"Class B Principal" means, with respect to any Distribution
Date, the sum of the Class B Percentage of:
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(i) the principal portion of all Scheduled Payments due on the Receivables
during the preceding Collection Period; (ii) the Principal Balance of each
Receivable that became a Prepaid Receivable during the preceding Collection
Period (without duplication of amounts included in clause (i) above or clause
(iv) below); (iii) the Principal Balance of each Receivable that became a
Purchased Receivable under an obligation that arose during the preceding
Collection Period (without duplication of amounts included in clause (i)); and
(iv) the Principal Balance of each Receivable that became a Defaulted Receivable
during the preceding Collection Period (without duplication of amounts referred
to in clause (i) or (ii) above). In addition, on the Final Scheduled
Distribution Date the "Class B Principal" will include the lesser of (x) the
Class B Percentage of any payments of principal due and remaining unpaid on each
Receivable in the Trust as of the Final Scheduled Maturity Date (except to the
extent previously Advanced) and (y) the portion of such amount that is necessary
(after giving effect to the other amounts to be distributed to the Class B
Certificateholder on such Distribution Date and allocable to principal) to
reduce the Class B Principal Balance to zero, and, in the case of clauses (x)
and (y) above, remaining after any required distribution of the amount described
in clause (x) or (y) of the definition of "Class A Principal".
"Class B Principal Balance" means, initially, the Original
Class B Principal Balance and, thereafter, the Original Class B Principal
Balance, reduced by all amounts distributed to the Class B Certificateholders
and allocable to principal.
"Class B Principal Carryover Shortfall" means, as of the close
of business on any Distribution Date, the excess of (x) the Class B Principal
plus any outstanding Class B Principal Carryover Shortfall from the preceding
Distribution Date over (y) the amount of principal that the Holder of the Class
B Certificate actually received on such current Distribution Date.
"Class B Reserve Fund" means the Class B Reserve Fund,
established and maintained as such pursuant to Section 4.7, for the Class B
Certificateholders.
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"Class B Reserve Fund Property" has the meaning specified in
Section 4.7(a).
"Class B Reserve Initial Deposit" means, with respect to the
Closing Date, $0, which amount may be increased upon sale of the Class B
Certificates and receipt of an Opinion of Counsel to the effect that such
increase would not adversely affect the status of the Trust as a grantor trust
for federal income tax purposes.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The initial Clearing Agency shall be The Depository Trust
Company.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book entry transfers and pledges 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.
"Collection Account" means the account or accounts established
and maintained as such pursuant to Section 4.1.
"Collection Account Property" has the meaning specified in
Section 4.2(a).
"Collection Period" means each calendar month during the term
of this Agreement or, in the case of the initial Collection Period, the period
from the Cutoff Date to and including the last day of the month preceding the
initial Distribution Date.
"Commission" means the Securities and Exchange Commission, or
any successor thereto.
"Computer Tape" means the computer tape generated by MBCC
which provides information relating to the
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Receivables and which was used by MBCC in selecting the Receivables conveyed to
the Trust hereunder.
"Corporate Trust Office" means the principal office of the
Trustee, the Payahead Agent, the Class A Agent or the Class B Agent, as the case
may be, 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
120 Wall Street, New York, New York 10043, Attention: Corporate Trust
Administration, or at such other address as the Trustee, the Payahead Agent, the
Class A Agent or the Class B Agent, as the case may be, may designate from time
to time by notice to the Certificateholders, the Seller and the Servicer, or the
principal corporate trust office of any successor Trustee, Payahead Agent, Class
A Agent or the Class B Agent, as the case may be, (the address of which the
successor Trustee, Payahead Agent, Class A Agent or the Class B Agent, as the
case may be, will notify the Certificateholders, the Seller and the Servicer).
"Cutoff Date" means the opening of business on
, 1997.
"DBNA" means Daimler-Benz North America Corporation, a
Delaware corporation, and its successors and assigns.
"Dealer" means, with respect to a Receivable, the seller of
the related Financed Vehicle, who originated and assigned the Receivable
relating to such Financed Vehicle to MBCC under a Dealer Agreement.
"Dealer Agreement" means an agreement between MBCC and a
Dealer relating to the assignment of Receivables to MBCC and all documents and
instruments relating thereto.
"Defaulted Receivable" means a Receivable which, by its terms,
is in default and as to which the Servicer has determined, in accordance with
its customary servicing procedures, that eventual payment in full is unlikely or
the Servicer has repossessed and disposed of the related Financed Vehicle.
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"Definitive Certificates" means definitive fully registered
Class A Certificates or Class B Certificates as described in Section 6.8.
"Delivery" with respect to Eligible Investments
means:
(a)(i) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations to the extent
constituting "instruments" within the meaning of Section 9-105(1)(i) of the UCC,
transfer thereof to the Investment Agent by physical delivery of such
instruments to the Investment Agent in the State of New York endorsed to, or
registered in the name of, the Investment Agent or endorsed in blank, (ii) with
respect to "money" as defined in Section 1-201(24) of the UCC, delivery thereof
to the Investment Agent in the State of New York, (iii) with respect to a
"certificated security" (as defined in Section 8-102(1)(a) of the UCC) transfer
thereof (A) by physical delivery of such certificated security to the Investment
Agent or its financial intermediary in the State of New York, endorsed to, or
registered in the name of, the Investment Agent or endorsed in blank, (B) when a
financial intermediary (as defined in Section 8-313(4) of the UCC) of the
Investment Agent, which has physical possession of such certificated security
and such certificated security is either endorsed to, or registered in the name
of, such financial intermediary or endorsed in blank, makes entries on its books
and records identifying such certificated security as belonging solely and
exclusively to the Investment Agent and sends a confirmation of the purchase of
such certificated security by the Investment Agent or (C) when a "clearing
corporation" (as defined in Section 8-102(3) of the UCC) or its "custodian bank"
(as defined in Section 8-102(4) of the UCC) has physical possession of such
certificated security and such security is either in bearer form, in registered
form registered to the clearing corporation or to such custodian bank or a
nominee of any of them subject to the clearing corporation's exclusive control,
or endorsed to such clearing corporation or custodian bank or endorsed in blank,
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 the financial intermediary of the Investment
Agent by the amount of such certificated security, the
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identification by the clearing corporation of the certificated securities for
the sole and exclusive account of the financial intermediary, the maintenance in
the State of New York of such certificated securities by such clearing
corporation or such custodian bank or the nominee of either of them subject to
the clearing corporation's exclusive control, the sending of a confirmation to
the Investment Agent by the financial intermediary of the purchase by the
Investment Agent of such securities and the making by such financial
intermediary of entries on its books and records identifying such certificated
securities as belonging solely and exclusively to the Investment Agent (all of
the foregoing, "Physical Property"); and such additional or alternative
procedures as may hereafter become appropriate to effect the complete transfer
of ownership of any such securities to the Investment Agent 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 are book entry securities 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
securities to an appropriate book entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a "depository" pursuant
to applicable Federal regulations and issuance by such financial intermediary of
a deposit advice or other written confirmation of such book entry registration
to the Investment Agent of the purchase by the Investment Agent of such book
entry securities; the making by such financial intermediary of entries in its
books and records identifying such book entry securities held through the
Federal Reserve System pursuant to Federal book entry regulations as belonging
solely and exclusively to the Investment Agent and indicating that such
custodian holds such securities solely as agent for the Investment Agent and the
sending of a confirmation to the Investment Agent by such financial intermediary
of a confirmation of the purchase by the Investment Agent of such book entry
security; and such additional or alternative procedures as may hereafter become
appropriate to effect complete transfer of ownership of any such securities to
the
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Investment Agent consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any securities that are uncertificated
securities under Article 8 of the UCC, registration on the books and records of
the issuer of such securities in the name of the financial intermediary, the
sending of the appropriate transaction statement by the issuer to the financial
intermediary, the sending of a confirmation to the Investment Agent by the
financial intermediary of the purchase by the Investment Agent of such
uncertificated securities, the making by such financial intermediary of entries
on its books and records identifying such uncertificated securities as belonging
solely and exclusively to the Investment Agent; and such additional or
alternative procedures as may hereafter become appropriate to effect complete
transfer of ownership of any such securities to the Investment Agent consistent
with changes in applicable law or regulations or interpretation thereof.
"Depository Agreement" means the agreement among the Seller,
the Servicer, the Trustee and the initial Clearing Agency, dated , 1997,
substantially in the form attached hereto as Exhibit D.
"Determination Date" with respect to any Collection Period,
means the earlier of (i) the sixteenth calendar day of the next succeeding
calendar month and (ii) the second Business Day preceding the next succeeding
Distribution Date.
"Distribution Date" means the 20th day of each month (or, if
the 20th day is not a Business Day, the next following Business Day), commencing
, 1997.
"Due Period" means, with respect to each Receivable, each
monthly period ending on the day preceding the day on which a payment is due on
the Receivable.
"Eligible Bank" means any depository institution with trust
powers (which may be the Trustee), organized under the laws of the United States
of America or any one of the states thereof or the District of Columbia, which
has a net worth in excess of $50,000,000, the deposits of which are insured to
the full extent permitted by law by the Federal Deposit Insurance Corporation,
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which is subject to supervision and examination by Federal or state banking
authorities and which has (i) a rating of P-1 from Moody's and A-1+ from S&P
with respect to short-term deposit obligations, or (ii) if such institution has
issued long-term unsecured debt obligations, a rating of A2 or higher from
Moody's and AAA from S&P with respect to long-term unsecured debt obligations.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Bank or (b) a segregated trust account with the trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having trust powers and acting as
trustee for funds deposited in such account, so long as the long-term unsecured
debt of such depository institution shall have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade
(which, for Moody's, is Baa3 or higher, and for S&P is BBB- or higher).
"Eligible Investments" means (i) obligations issued by the
United States of America or its agencies or instrumentalities and supported by
the full faith and credit of the United States of America as to timely payment
of principal and interest; (ii) demand and time deposits in, bankers'
acceptances issued by, or certificates of deposit of, any depository institution
or trust company incorporated under the laws of the United States of America or
any state thereof and subject to supervision and examination by federal or state
banking or depository institution authorities, or any depository institution or
trust company incorporated under the laws of any foreign jurisdiction that has a
branch or agency located in the United States of America and which depository
institution, trust company or branch is subject to supervision and examination
by federal or state banking or depository institution authorities; provided,
however, that, at the time of the investment or contractual commitment to invest
therein, the commercial paper of such depository institution or trust company
has a credit rating of at least P-1 from Moody's and A-1+ from S&P; (iii)
commercial paper having, at the time of the investment or contractual commitment
to invest therein, a credit rating of at least P-1 from Moody's and A-l+ from
S&P; (iv) investments in money market funds registered
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under the Investment Company Act of 1940, as amended, that, at the time of the
investment or contractual commitment to invest therein, are rated in the highest
investment category of each Rating Agency (AAAm or AAAm-g by S&P and P-1 or Aaa
by Moody's) or otherwise approved in writing by each Rating Agency (including
funds for which the Trustee or any of its Affiliates is investment manager or
advisor); and (v) any other investment otherwise reviewed by each Rating Agency
and which would not result in a lowering of or a withdrawal of the then current
rating of the Class A Certificates and, if rated, the Class B Certificates.
"Eligible Servicer" means (a) any subsidiary of DBNA or (b)
any Person which, at the time of its appointment as Servicer or as subservicer,
(i) has a net worth of not less than $50,000,000, (ii) is servicing a portfolio
of motor vehicle installment contracts and/or motor vehicle loans, (iii) is
legally qualified, and has the capacity, to service the Receivables, (iv) has
demonstrated the ability to service a portfolio of motor vehicle installment
contracts and/or motor vehicle loans similar to the Receivables professionally
and competently in accordance with standards of skill and care that are
consistent with prudent industry standards, and (v) is qualified and entitled to
use, pursuant to a license or other written agreement, and agrees to maintain
the confidentiality of, the software which the Servicer or any subservicer uses
in connection with performing its duties and responsibilities under this
Agreement or the related subservicing agreement or obtains rights to use, or
develops at its own expense, software which is adequate to perform its duties
and responsibilities under this Agreement or the related subservicing agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Event of Servicing Termination" means an event specified in
Section 9.1.
"Excess Amount" means, with respect to any Receivable which
becomes a Prepaid Receivable in any Collection Period, the amount (if positive)
calculated by the Servicer equal to the excess of (i) the amount received from
the related Obligor in connection with such prepayment over (ii)(a) the
Principal Balance of such Re-
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ceivable as of the first day of such Collection Period plus (b) one month's
interest on such Principal Balance at the APR of such Receivable.
"Final Scheduled Distribution Date" means the , 2002
Distribution Date.
"Final Scheduled Maturity Date" means the last day of the
Collection Period immediately preceding the Final Scheduled Distribution Date.
"Financed Vehicle" means a new or used Mercedes-Benz
automobile, together with all accessions thereto, securing an Obligor's
indebtedness under a Receivable.
"Investment Agent" means with respect to Eligible Investments
(i) in the Collection Account, the Trustee, (ii) in the Payahead Account, the
Payahead Agent, (iii) in the Class A Reserve Fund, the Class A Agent, and (iv)
in the Class B Reserve Fund, the Class B Agent.
"Lien" means a security interest, lien, charge, pledge, equity
or encumbrance of any kind, other than tax liens, mechanics' or materialmen's
liens, judicial liens and any liens that may attach to a Financed Vehicle by
operation of law.
"Liquidation Proceeds" means, with respect to a Defaulted
Receivable, the monies collected from whatever source, during the Collection
Period in which such Receivable became a Defaulted Receivable net of the sum of
(i) any expenses incurred by the Servicer in connection with collection of such
Receivable and the disposition of the Financed Vehicle and (ii) any amounts
required by law to be remitted to the Obligor. Liquidation Proceeds shall be
allocated first to accrued and unpaid interest on the Receivable and then to the
unpaid principal balance thereof.
"MBCC" means Mercedes-Benz Credit Corporation, a Delaware
corporation, and its successors and assigns.
"Monthly Remittance Condition" has the meaning specified in
Section 4.1(d).
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"Moody's" means Moody's Investors Service, Inc. or its
successor.
"Obligor" with respect to any Receivable means the purchaser
or co-purchasers of the related Financed Vehicle purchased in part or in whole
by the execution and delivery of such Receivable or any other Person who owes or
may be liable for payments under such Receivable.
"Officer's Certificate" means a certificate signed by the
chairman, the president, any executive vice president, vice president or the
treasurer of the Seller or the Servicer, as the case may be, and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel (who,
in the case of counsel to the Seller or the Servicer, may be an employee of or
outside counsel to the Seller or the Servicer) which counsel shall be acceptable
to the Trustee.
"Optional Purchase Percentage" means 10%.
"Original Class A Principal Balance" means $
.
"Original Class B Principal Balance" means $
.
"Original Pool Balance" means $ .
"Outstanding Advances" means, with respect to a Receivable,
the sum, as of the close of business on the last day of any Collection Period,
of all Advances pursuant to Section 4.4(a) with respect to such Receivable, as
reduced by repayments to the Servicer of such Advances.
"Pass-Through Rate" means % per annum.
"Payahead" means, with respect to a Receivable, the amount
computed in accordance with Section 4.3 with respect to such Receivable.
"Payahead Account" means the account established and
maintained as such pursuant to Section 4.1(b).
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"Payahead Agent" means Citibank, N.A., a national banking
association, in its capacity as payahead agent with respect to the Payahead
Account.
"Payahead Balance" on a Receivable means the sum, as of the
close of business on the last day of a Collection Period, of all Payaheads made
by or on behalf of the Obligor with respect to such Receivable (including any
amount paid by or on behalf of the Obligor prior to the Cutoff Date that is due
on or after the Cutoff Date and was not used to reduce the principal balance
(calculated on the Actuarial Method) of such Receivable), as reduced by
applications of previous Payaheads with respect to such Receivable, pursuant to
Sections 4.3 and 4.4.
"Person" means a legal person, including any individual,
corporation, estate, partnership, 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 Property" has the meaning assigned to such term in
the definition of "Delivery" above.
"Pool Balance" means, as of any date, the aggregate
outstanding Principal Balance of the Receivables (excluding Defaulted
Receivables) as of the close of business on such date.
"Prepaid Receivable" shall mean each Receivable which during a
Collection Period is prepaid in full or accelerated under certain circumstances,
or with respect to which the related Financed Vehicle is repossessed and sold or
becomes a total loss.
"Principal Balance" means, with respect to any Receivable as
of any date, the Amount Financed minus the sum of the following amounts: (i)
that portion of all Scheduled Payments due on or prior to such date and, with
respect to periods prior to the initial Collection Period, the amount indicated
in such Receivable as required to be paid by the Obligor in each such period,
whether or not paid, allocable to principal in accordance with the Actuarial
Method, and (ii) any prepayment in full applied by the Servicer to reduce the
unpaid principal balance of
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such Receivable. The Principal Balance of any Receivable for any Collection
Period after the Collection Period in which it becomes a Defaulted Receivable
shall be zero.
"Purchase Agreement" means the Purchase Agreement dated as of ,
1997, by and between the Seller and MBCC, as amended, modified or supplemented,
relating to the purchase of the Receivables by the Seller from MBCC.
"Purchase Amount" means, with respect to any Distribution Date and a
Receivable to be repurchased by the Seller or purchased by the Servicer on such
Distribution Date, an amount equal to the sum of (a) the Principal Balance of
such Receivable as of the first day of the Collection Period preceding the
Collection Period in which such Distribution Date occurs, and (b) the amount of
accrued interest on such Principal Balance at the related APR from the date a
payment was last made by or on behalf of the Obligor through the due date for
payment of such Receivable in the Collection Period preceding the Collection
Period in which such Distribution Date occurs and, in the case of clauses (a)
and (b), after giving effect to the receipt of monies collected on such
Receivable in such preceding Collection Period, Payaheads applied to the
Scheduled Payments on such Receivable in such Collection Period and any Payahead
Balance with respect to such Receivable.
"Purchased Receivable" means, on any date of determination, a
Receivable as to which payment of the Purchase Amount has been made by the
Seller pursuant to Section 2.5 hereof or the Servicer pursuant to Section 3.6 or
Section 11.2 hereof.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Rating Agency" means either S&P or Moody's, and together the
"Rating Agencies."
"Receivable" means each retail installment contract for a Financed
Vehicle described in the Schedule of Receivables and all rights and obligations
thereunder, but excluding Purchased Receivables.
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"Receivable File", with respect to a Receivable, means the
electronic entries, documents, instruments and writings specified in Section
2.6.
"Record Date" means, with respect to any Distribution Date, the
nineteenth calendar day of the current month; provided, however, that if
Definitive Certificates are issued to a Person other than the Seller pursuant to
Section 6.10, or if Definitive Certificates are transferred by the Seller, the
Record Date for the related Class of Certificates for any Distribution Date
shall be the last day of the Collection Period immediately preceding the month
in which such Distribution Date occurs.
"Recoveries" with respect to any Collection Period, means all monies
received by the Servicer with respect to any Defaulted Receivable during any
Collection Period following the Collection Period in which such Receivable
became a Defaulted Receivable, net of the sum of (i) any expenses incurred by
the Servicer in connection with the collection of such Receivable and the
disposition of the Financed Vehicle (to the extent not previously reimbursed)
and (ii) any amounts required by law to be remitted to the Obligor.
"Required Rating" means a rating on (i) short-term unsecured debt
obligations of P-1 by Moody's and (ii) short-term unsecured debt obligations of
A-1+ by S&P; and any requirement that short-term unsecured debt obligations have
the "Required Rating" shall mean that such short-term unsecured debt obligations
have the foregoing required ratings from each of such Rating Agencies.
"Reserve Fund" means each of the Class A Reserve Fund and the Class
B Reserve Fund, established and maintained as such pursuant to Section 4.7.
"Residual Certificate" has the meaning specified in Section 6.1.
"Retained Yield" means the portion of the interest accruing on each
Receivable for each Due Period for such Receivable, equal to interest at the
Spread Rate for such Receivable.
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"Rule 144A" means Rule 144A under the Act.
"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, Inc., or its successor.
"Schedule of Receivables" means the list identifying the Receivables
attached hereto as Schedule I as supplemented or amended from time to time.
"Scheduled Payment" means, for any Collection Period for any
Receivable, the amount indicated in such Receivable as required to be paid by
the Obligor in such Collection Period (without giving effect to deferments of
payments pursuant to Section 3.2 or any rescheduling in any insolvency or
similar proceedings or any Payaheads).
"Seller" means Daimler-Benz Vehicle Receivables Corporation, a
Delaware corporation, in its capacity as seller of the Receivables to the Trust
under this Agreement, and each successor thereto (in the same capacity) pursuant
to Section 7.3.
"Servicer" means MBCC, a Delaware corporation, in its capacity as
servicer of the Receivables under this Agreement, each successor thereto (in the
same capacity) pursuant to Section 8.3, and each successor Servicer appointed
and acting pursuant to Section 9.2.
"Servicer's Certificate" has the meaning specified in Section 3.8.
"Servicing Fee" means, with respect to any Distribution Date, the
fee payable to the Servicer for services rendered during the related Collection
Period, determined pursuant to and defined in Section 3.7.
"Servicing Guaranty Agreement" means an agreement, substantially in
the form of Exhibit F hereto, between DBNA and the Trustee.
"Servicing Officer" means any officer of the Servicer involved in,
or responsible for, the administration and servicing of the Receivables, whose
name appears on a list of servicing officers attached to an Officer's
Certificate furnished to the Trustee by the Servicer, as
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such list may be amended from time to time by the Servicer in writing.
"Servicing Rate" means 1.00% per annum.
"Shortfall Amount" means, with respect to any Receivable which
becomes a Prepaid Receivable (excluding any Defaulted Receivable) in any
Collection Period, the amount (if positive) calculated by the Servicer equal to
the excess of (i) the sum of (x) the Principal Balance of such Receivable as of
the first day of such Collection Period plus (y) one month's interest on such
Principal Balance at the APR of such Receivable over (ii) the amount received
from the related Obligor in connection with such prepayment.
"Shortfall Amount Agreement" means the Agreement dated as of ,
1997, by and between the Seller and MBCC, as amended, modified or supplemented
from time to time.
"Specified Class A Reserve Balance" with respect to any Distribution
Date will equal $ ; except where on any Distribution Date (i) the
annualized average for the preceding three Collection Periods (or such shorter
number of Collection Periods as have elapsed since the Cutoff Date) of the
ratios of net losses (i.e., the net balances of all Defaulted Receivables
arising in the applicable Collection Period, less any Liquidation Proceeds or
Recoveries received in such Collection Period) to the Pool Balance as of the
first day of each such Collection Period exceeds % or (ii) the average for
the preceding three Collection Periods (or such shorter number of Collection
Periods as have elapsed since the Cutoff Date) of the ratios of the balance of
Receivables that are delinquent 60 days or more to such outstanding Pool Balance
exceeds %, then the Specified Class A Reserve Balance for such Distribution
Date will equal $ ; provided, however, that the Seller may reduce the
Specified Class A Reserve Balance if the Rating Agencies confirm in writing to
the Class A Agent and the Seller prior to such reduction that such reduction
will not result in a lowering of or a withdrawal of the then current rating of
the Class A Certificates.
"Specified Class B Reserve Balance" with respect to any Distribution
Date means initially zero and
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shall remain zero for so long as the Seller holds the Class B Certificates and
thereafter shall mean an amount determined by the Seller in consultation with
the Rating Agencies in order to achieve the desired rating for the Class B
Certificates.
"Spread Rate" means, with respect to each Receivable, a rate equal
to the excess, if any, of (i) the APR of such Receivable over (ii) the sum of
the Pass-Through Rate plus the Servicing Rate.
"Subsidiary" means any corporation at least a majority of whose
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency) are at all times owned or controlled directly or indirectly by
DBNA.
"Supplemental Servicing Fee" means the fee payable to the Servicer
for services rendered during the related Collection Period, determined pursuant
to and defined in Section 3.7.
"Total Available Amount" means, for any Distribution Date, the sum
of the Available Interest and the Available Principal.
"Trust" means the Daimler-Benz Auto Grantor Trust 1997-A created by
this Agreement.
"Trust Property" means: (i) the Receivables; (ii) all monies due
thereunder on or after the Cutoff Date (including Payaheads attributable to
amounts then due, but excluding Excess Amounts); (iii) all amounts and property
from time to time held in or credited to the Collection Account and the
Certificate Account; (iv) all of the Seller's security interests in the Financed
Vehicles; (v) all of the Seller's rights under the Shortfall Amount Agreement;
(vi) all of the Seller's rights to receive proceeds from claims on physical
damage, credit life and disability insurance policies covering the Financed
Vehicles or the Obligors; (vii) all rights to receive payments under the
circumstances specified herein from the Class A Reserve Fund, the Class B
Reserve Fund; (viii) all of the Seller's rights of recourse against Dealers
arising out of breaches by Dealers with respect to the Receivables; (ix) all of
the Seller's rights to
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all documents contained in the Receivable Files; (x) certain rights under the
Purchase Agreement, including the right of the Seller to cause MBCC to
repurchase Receivables from time to time from the Seller under certain
circumstances specified therein; (xi) all property (including the right to
receive future Liquidation Proceeds and Recoveries) that secures a Receivable
and that shall have been acquired by or on behalf of the Trustee; (xii) the
Servicing Guaranty Agreement; and (xiii) all proceeds (within the meaning of
Section 9-306 of the UCC) of the foregoing.
"Trustee" means Citibank, N.A., a national banking association, as
Trustee under this Agreement, or any successor, and any successor Trustee
appointed and acting pursuant to Section 10.11.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
SECTION 1.2. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
SECTION 1.3. Calculations. All calculations of the amount of
interest accrued on the Certificates during any Collection Period and all
calculations of the amount of the Servicing Fee payable with respect to a
Collection Period shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
SECTION 1.4. References. All references to the first day of a
Collection Period shall refer to the opening of business on such day. All
references to the last day of a Collection Period shall refer to the close of
business on such day. All references herein to the
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close of business shall mean the close of business, New York time.
SECTION 1.5. Section References. All section references shall be to
Sections in this Agreement unless otherwise specified.
SECTION 1.6. Action by or Consent of Certificateholders. Whenever
any provision of this Agreement refers to action to be taken, or consented to,
by Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consented to by Certificateholders.
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ARTICLE II
The Trust and Trust Property
SECTION 2.1. Creation of Trust. Upon the execution of this Agreement
by the parties hereto, there is hereby created the Daimler-Benz Auto Grantor
Trust 1997-A.
SECTION 2.2. Conveyance of Trust Property. In consideration of the
Trustee's delivery to, or upon the written order of, the Seller of authenticated
Certificates, in authorized denominations, in an aggregate amount equal to the
Original Pool Balance, the Seller hereby irrevocably sells, transfers, assigns
and conveys to the Trustee, in trust for the benefit of Certificateholders, upon
the terms and conditions hereof, all right, title and interest of the Seller,
whether now owned or hereafter acquired, in and to and under the Trust Property,
without recourse. The sale, transfer, assignment and conveyance made hereunder
shall not constitute and is not intended to result in an assumption by the
Trustee, any Certificateholder or any Certificate Owner of any obligation of the
Seller to the Obligors, the Dealers or any other Person in connection with the
Receivables and the other Trust Property or any agreement, document or
instrument related thereto.
It is the intention of the Seller and the Trustee that the transfer
of the Trust Property contemplated herein constitute a sale of the Trust
Property, conveying good title to the Trust Property from the Seller to the
Trust. However, in the event that such transfer is deemed to be a pledge to
secure the payment of the Certificates, the Seller hereby grants to the Trustee
on behalf of the Trust for the benefit of the Certificateholders a first
priority security interest in all of the Seller's right, title and interest in
the Trust Property, and all proceeds thereof, to secure the payment of the
Certificates, and in such event, this Agreement shall constitute a security
agreement under applicable law.
SECTION 2.3. Acceptance by Trustee. The Trustee does hereby accept
all consideration conveyed by the Seller pursuant to Section 2.2, and declares
that the Trustee shall hold such consideration upon the trusts
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herein set forth for the benefit of all present and future Certificateholders,
subject to the terms and provisions of this Agreement.
SECTION 2.4. Representations and Warranties of the Seller as to the
Receivables. The Seller makes the following representations and warranties as to
the Receivables on which the Trustee relies in accepting the Receivables in
trust and executing and authenticating the Certificates. Such representations
and warranties speak as of the Closing Date, but shall survive the sale,
transfer, and assignment of the Receivables to the Trustee:
(i) Characteristics of Receivables. Each Receivable (a) was
originated in the United States of America by a Dealer for the retail sale
of a Financed Vehicle in the ordinary course of such Dealer's business,
was fully and properly executed by the parties thereto, has been purchased
by the Seller from MBCC, which in turn purchased such Receivable from such
Dealer under an existing Dealer Agreement with MBCC, has been validly
assigned by such Dealer to MBCC, which in turn has validly assigned such
Receivable to the Seller, (b) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof shall
be adequate for realization against the collateral of the benefits of the
security, (c) provides for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable may be
minimally different from the level payment) that fully amortize the Amount
Financed by maturity and yields interest at the APR of such Receivable,
(d) is a retail installment contract, (e) is secured by a Financed
Vehicle, and (f) except to the extent such Receivable may become a Prepaid
Receivable, provides for allocation of payments in accordance with the
Actuarial Method.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables was true and correct in all material respects as
of the opening of business on the Cutoff Date, and no selection procedures
believed by the Seller to be adverse to the Certificateholders were
utilized in selecting the Receivables.
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(iii) Compliance with Law. Each Receivable and the sale of the
related Financed Vehicle complied at the time it was originated or made,
and complies at the Closing Date, in all material respects with all
requirements of applicable federal, State, and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal Truth
in Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Magnuson Moss Warranty Act, the Federal Reserve
Board's Regulations B and Z, and State adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other consumer
credit laws and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. To the best of the Seller's knowledge
each Receivable represents the legal, valid, and binding payment
obligation in writing of the related Obligor, enforceable by the holder
thereof in accordance with its terms except as enforceability may be
limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
(v) No Government Obligor. Neither the United States of
America nor any State or any agency, department, or instrumentality of the
United States of America or any State is an Obligor.
(vi) Security Interest in Financed Vehicle. To the best of the
Seller's knowledge, immediately prior to the sale, assignment, and
transfer of each Receivable by MBCC to the Seller, such Receivable was
secured by a validly perfected first priority security interest in the
related Financed Vehicle in favor of MBCC as secured party. Such security
interest was validly assigned by MBCC to the Seller and is being assigned
by the Seller to the Trustee pursuant to this Agreement except that no
certificate of title or certificate of ownership with respect to such
Financed Vehicle has been or will be amended to identify the Seller or the
Trustee as a secured party. At such time as enforcement
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of such security interest is sought, there shall exist a valid, subsisting
and enforceable first priority security interest in such Financed Vehicle
for the benefit of the Trustee. The foregoing representations and
warranties with respect to perfection and enforceability of a security
interest in a Financed Vehicle do not cover statutory or other liens
arising after the Closing Date by operation of law or any rights of third
parties arising after the Closing Date as a result of the fraud or forgery
of the vehicle owner or administrative error by state recording officials
which are prior to such security interest.
(vii) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or, to the best of the
Seller's knowledge, threatened with respect to any Receivable.
(viii) No Liens. To the best of the Seller's knowledge, no
liens or claims have been filed for work, labor, or materials relating to
a Financed Vehicle that are liens prior to, or equal or on a parity with,
the security interest in the Financed Vehicle granted by the related
Receivable.
(ix) No Default; Repossession. Except for payment defaults
continuing for a period of not more than thirty days as of the Cutoff
Date, to the best of the Seller's knowledge, no default, breach,
violation, or event permitting acceleration under the terms of any
Receivable, and no event that with notice or the lapse of time would
constitute such a default, breach, violation, or event permitting
acceleration under the terms of any Receivable has occurred; and no
Financed Vehicle was repossessed on or prior to the Cutoff Date.
(x) Insurance. MBCC, in accordance with its customary
procedures, has determined that each Obligor has obtained or agreed to
obtain physical damage insurance covering such Obligor's Financed Vehicle.
(xi) Title. It is the intention of the Seller that the
transfer and assignment of the Receivables herein contemplated constitute
a sale of
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the Receivables from the Seller to the Trust and that the beneficial
interest in and title to the Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person other than
the Trustee. The Seller is transferring title to each Receivable free and
clear of all Liens and rights of others and has perfected such transfer
under the UCC.
(xii) Valid Assignment. No Receivable was originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer,
and assignment of such Receivable under this Agreement is unlawful, void,
or voidable. The Seller has not entered into any agreement with any
Obligor that prohibits, restricts or conditions the assignment of any
portion of the Receivables.
(xiii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Trustee
a first priority perfected security interest in the Receivables have been
made.
(xiv) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(xv) One Original. There is only one original executed copy of
each Receivable.
(xvi) Principal Balance. Each Receivable had a remaining
Principal Balance as of the Cutoff Date of not more than $ and not
less than $ .
(xvii) No Bankrupt Obligors. To the best of the Seller's
knowledge, no Obligor was, as of the Cutoff Date, the subject of a
proceeding under the Bankruptcy Code of the United States or was bank-
rupt.
(xviii) New and Used Vehicles. Approximately % of the
aggregate Principal Balance of the Receivables, constituting % of the
Receiv-
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ables as of the Cutoff Date, relate to new Financed Vehicles, and
approximately % of the aggregate Principal Balance of the Receivables,
constituting % of the Receivables as of the Cutoff Date, relate to used
Financed Vehicles.
(xix) Maturity of Receivables. Each Receivable had a remaining
maturity, as of the Cutoff Date, of not more than ___ months, and an
original maturity of not more than ___ months.
(xx) Annual Percentage Rate. Each Receivable has an APR of at
least % and not more than %.
(xxi) Payments. No Receivable had a payment that was more than
30 days overdue as of the Cutoff Date.
(xxii) Billing Address. The Obligor under each Receivable had
a current billing address in the United States as of the Cutoff Date.
SECTION 2.5. Repurchase upon Breach. The Seller, the Servicer, or
the Trustee, as the case may be, shall inform the other parties to this
Agreement and MBCC promptly, in writing, upon the discovery of any breach or
failure to be true of the representations and warranties made by the Seller
pursuant to Section 2.4 (and, in the case of subsections 2.4(iv), (vi), (vii),
(ix) and (xvii) any breach or failure which would have occurred if such warranty
had not been made to the best knowledge of the Seller). Unless any such breach
or failure shall have been cured by the last day of the Collection Period which
includes the 60th day after the date on which the Seller becomes aware of, or
receives written notice from the Trustee or the Servicer of, such breach or
failure, the Seller shall repurchase from the Trustee any Receivable, the
interests of the Trust and the Certificateholders in which are materially and
adversely affected by the breach or failure, on the Distribution Date
immediately following such Collection Period but with effect from the first day
of the Collection Period in which such Distribution Date occurs. In
consideration of the purchase of a Receivable hereunder, the Seller shall remit
the Purchase Amount of such Receivable in the manner specified in Section 4.5.
The sole remedy of the Trust, the Trustee, and
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the Certificateholders with respect to a breach or failure to be true of the
representations and warranties made by the Seller pursuant to Section 2.4 shall
be to require the Seller to repurchase the relevant Receivable pursuant to this
Section 2.5 or to enforce the obligation of MBCC to the Seller to repurchase
such Receivable pursuant to the Purchase Agreement.
SECTION 2.6. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Trustee,
upon the execution and delivery of this Agreement, revocably appoints the
Servicer, and the Servicer accepts such appointment, to act as custodian on
behalf of the Trustee of the following documents or instruments, which are
hereby constructively delivered to the Trustee with respect to each Receivable
(collectively, a "Receivable File"):
(i) the original of the Receivable;
(ii) the original credit application fully executed by the
related Obligor or a photocopy thereof;
(iii) the original certificate of title or such documents that
the Servicer or MBCC shall keep on file, in accordance with its customary
procedures, evidencing the security interest of MBCC in the Financed
Vehicle; and
(iv) any and all other documents that the Servicer or the
Seller shall keep on file, in accordance with its customary procedures,
relating to a Receivable, an Obligor, or a Financed Vehicle.
On the Closing Date, the Servicer shall provide an Officer's
Certificate to the Trustee confirming that the Servicer has received on behalf
of the Trustee all the documents and instruments necessary for the Servicer to
act as the custodian of the Trustee for the purposes referred to herein, and the
Trustee is hereby authorized to rely on such Officer's Certificate.
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SECTION 2.7. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian, shall
hold the Receivable Files on behalf of the Trustee for the use and benefit of
all present and future Certificateholders and maintain such accurate and
complete accounts, records, and computer systems pertaining to each Receivable
File as shall enable the Servicer and the Trustee to comply with the terms and
provisions of this Agreement. In performing its duties as custodian, the
Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the receivable files
relating to all comparable automobile receivables that the Servicer services for
itself or others. In accordance with its customary practices with respect to its
retail installment contracts, the Servicer 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, in such a
manner as shall enable the Trustee to verify the accuracy of the Servicer's
record keeping. The Servicer shall promptly report to the Trustee any failure on
its part to hold the Receivable Files and maintain its accounts, records, and
computer systems as herein provided and promptly take appropriate action to
remedy any such failure. Nothing herein shall be deemed to require an initial
review or any periodic review by the Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule II to
this Agreement, or at such other office as shall be specified to the Trustee by
written notice not later than 90 days after any change in location. The Servicer
shall make available to the Trustee or its duly authorized representatives,
attorneys, or auditors a list of locations of the Receivable Files, the
Receivable Files, and the related accounts, records, and computer systems
maintained by the Servicer at such times as the Trustee shall instruct.
(c) Release of Documents. Upon written instructions from the
Trustee, the Servicer shall release any document in the Receivable Files to the
Trustee, the Trustee's agent, or the Trustee's designee, as the case may be, at
such place or places as the Trustee may desig-
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nate, as soon thereafter as is practicable and prior to the occurrence of an
Event of Servicing Termination or an event which with the passage of time and
delivery of notice would constitute an Event of Servicing Termination, so long
as doing so will not adversely affect the Servicer's ability to perform its
obligations under this Agreement. Any document so released shall be handled by
the Trustee with due care and returned to the Servicer for safekeeping as soon
as the Trustee or its agent or designee, as the case may be, shall have no
further need therefor and in any event at such time as may be required by the
Servicer to perform its obligations under this Agreement.
(d) Title to Receivables. The Servicer agrees that, in respect of
any Receivable held by the Servicer as custodian hereunder, the Servicer will
not at any time have or in any way attempt to assert any interest in such
Receivable or the related Receivable File, other than solely for the purpose of
collecting or enforcing the Receivable for the benefit of the Trust and that the
entire equitable interest in such Receivable and the related Receivable File
shall at all times be vested in the Trust.
SECTION 2.8. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by an Authorized Officer of the
Trustee. A certified copy of excerpts of certain resolutions of the Board of
Directors of the Trustee shall constitute conclusive evidence of the authority
of any such Authorized Officer to act and shall be considered in full force and
effect until receipt by the Servicer of written notice to the contrary given by
the Trustee.
SECTION 2.9. Custodian's Indemnification. The Servicer, in its
capacity as custodian, shall indemnify and hold harmless the Trustee, its
officers, directors, employees and agents, the Trust and the Certificateholders
from and against any and all liabilities, obligations, losses, compensatory
damages, payments, costs or expenses (including legal fees if any) of any kind
whatsoever that may be imposed on, incurred, or asserted against the Trustee,
the Trust or the Certificateholders as the result of any act or omission by the
Servicer
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relating to the maintenance and custody of the Receivable Files; provided,
however, that the Servicer shall not be liable hereunder to the extent, but only
to the extent, that such liabilities, obligations, losses, compensatory damages,
payments, costs or expenses result from the willful misfeasance, bad faith,
errors in judgment or negligence of the Trustee or from the compliance by the
Servicer with instructions given by the Trustee to the Servicer pursuant hereto;
and provided, further, that such indemnification shall not extend to any credit
losses on any Receivables.
SECTION 2.10. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section
2.10. If the Servicer shall resign as Servicer under Section 8.5 or if all of
the rights and obligations of the Servicer shall have been terminated under
Section 9.1, the appointment of the Servicer as custodian hereunder may be
terminated by the Trustee or by the Holders of Class A Certificates and Class B
Certificates evidencing not less than a majority of the sum of the Class A
Principal Balance and the Class B Principal Balance, in the same manner as the
Trustee or such Holders may terminate the rights and obligations of the Servicer
under Section 9.1 or the Servicer may resign as custodian in the same manner as
it may resign as Servicer under Section 8.5. As soon as practicable after any
termination or resignation of such appointment, the Servicer (at its own
expense) shall deliver, or cause to be delivered, the Receivable Files and the
related accounts and records maintained by the Servicer to the Trustee, the
Trustee's agent or the Trustee's designee at such place or places as the Trustee
may reasonably designate.
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ARTICLE III
Administration and Servicing of the Trust Property
SECTION 3.1. Duties of Servicer. (a) The Servicer, acting alone
and/or through subservicers as provided in this Section, shall administer the
Receivables with reasonable care. The Servicer's duties shall include, but not
be limited to, the collection and posting of all payments, responding to
inquiries by Obligors on the Receivables, or by federal, state, or local
governmental authorities, investigating delinquencies, reporting tax information
to Obligors, furnishing monthly and annual statements to the Trustee with
respect to distributions and providing collection and repossession services in
the event of Obligor default. The Servicer shall also administer and enforce all
rights and responsibilities of the holder of the Receivables provided for in the
Dealer Agreements, to the extent that such Dealer Agreements relate to the
Receivables, the Financed Vehicles or the Obligors. In performing its duties as
Servicer hereunder, the Servicer will exercise that degree of skill and
attention that the Servicer exercises with respect to all comparable automobile
receivables that it services for itself or others. Subject to Section 3.2, the
Servicer shall follow its customary standards, policies and procedures in
performing its duties as Servicer. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered by the Trustee to
execute and deliver, on behalf of itself, the Trust, the Trustee, and the
Certificateholders, any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other comparable instruments,
with respect to the Receivables or to the Financed Vehicles, all in accordance
with this Agreement; provided, however, that notwithstanding the foregoing, the
Servicer shall not, except pursuant to an order from a court of competent
jurisdiction, release an Obligor from payment of any unpaid amount under any
Receivable or waive the right to collect the unpaid balance (including accrued
interest) of any Receivable from the Obligor, except in connection with a de
minimis deficiency which the Servicer would not attempt to collect in accordance
with its customary procedures, in which case the Servicer shall indemnify the
Trust for such deficiency. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Trustee shall
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thereupon be deemed to have automatically assigned such Receivable to the
Servicer, which assignment shall be solely for purposes of collection. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real party in interest
or a holder entitled to enforce the Receivable, the Trustee shall, at the
Servicer's expense and direction, take steps to enforce the Receivable,
including bringing suit in its name or the name of the Certificateholders. The
Trustee shall furnish the Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder. The Servicer, at its
expense, shall obtain on behalf of the Trust or the Trustee all licenses, if
any, required by the laws of any jurisdiction to be held by the Trust or the
Trustee in connection with ownership of the Receivables, and shall make all
filings and pay all fees as may be required in connection therewith during the
term hereof.
The Servicer may enter into subservicing agreements with one or more
subservicers for the servicing and administration of certain of the Receivables;
provided, however, that any such subservicer shall be and shall remain, for so
long as it is acting as subservicer, an Eligible Servicer, and any fees paid to
such subservicer shall be paid by the Servicer and not out of the proceeds of
the Trust, and any such subservicer shall agree to service the Receivables in a
manner consistent with the terms of this Agreement.
(b) References in this Agreement to actions taken, to be taken,
permitted to be taken, or restrictions on actions permitted to be taken by the
Servicer in servicing the Receivables and other actions taken, to be taken,
permitted to be taken, or restrictions on actions to be taken with respect to
the Trust Property shall include actions taken, to be taken, permitted to be
taken, or restrictions on actions permitted to be taken by a subservicer on
behalf of the Servicer and references herein to payments received by the
Servicer shall include payments received by a subservicer, irrespective of
whether such payments are actually deposited in the Collection Account by such
subservicer. Any such subservicing agreement will contain terms and provisions
substantially identical to the terms and provisions of this
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Agreement and such other terms and provisions as are not inconsistent with this
Agreement and as the Servicer and the subservicer have agreed.
(c) The Servicer shall be entitled to terminate any subservicing
agreement in accordance with the terms and conditions of such subservicing
agreement and without any limitation by virtue of this Agreement; provided,
however, that, in the event of termination of any subservicing agreement by the
Servicer, the Servicer shall either act directly as servicer of the related
Receivables or enter into a subservicing agreement with a successor subservicer
which will be bound by the terms of the related subservicing agreement.
(d) As a condition to the appointment of any subservicer, the
Servicer shall notify the Trustee, the Seller and the Rating Agencies in writing
before such assignment becomes effective and such subservicer shall be required
to execute and deliver an instrument in which it agrees that, for so long as it
acts as subservicer of the Receivables and the other Trust Property being
serviced by it, the covenants, conditions, indemnities, duties, obligations and
other terms and provisions of this Agreement applicable to the Servicer
hereunder shall be applicable to it as subservicer, that it shall be required to
perform its obligations as subservicer for the benefit of the Trust as if it
were Servicer hereunder (subject, however, to the right of the Servicer to
direct the performance of such obligations in accordance with this Agreement)
and that, notwithstanding any provision of a subservicing agreement to the
contrary, such subservicer shall be directly liable to the Trustee and the Trust
(notwithstanding any failure by the Servicer to perform its duties and
obligations hereunder) for the failure by such subservicer to perform its
obligations hereunder or under any subservicing agreement, and that
(notwithstanding any failure by the Servicer to perform its duties and
obligations hereunder) the Trustee may enforce the provisions of this Agreement
and any subservicing agreement against the subservicer for the benefit of the
Trust and the Certificateholders, without diminution of such obligations or
liabilities by virtue of any subservicing agreement, by virtue of any
indemnification provided thereunder or by virtue of the fact that the Servicer
is primarily responsible hereunder for the performance of such duties and
obligations, as if a subservicer alone
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were servicing and administering, under this Agreement, the Receivables and the
other Trust Property being serviced by it under the subservicing agreement.
(e) Notwithstanding any subservicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer or a subservicer or reference to actions taken through such Persons or
otherwise, the Servicer shall remain obligated and liable to the Trust, the
Trustee and the Certificateholders for the servicing and administering of the
Receivables and the other Trust Property in accordance with the provisions of
this Agreement (including for the deposit of payments received by a subservicer,
irrespective of whether such payments are actually remitted to the Servicer or
deposited in the Collection Account by such subservicer, provided that if such
amounts are so deposited, the Servicer shall have no further obligation to do
so) without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from a
subservicer, to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Receivables and the
other Trust Property. The Servicer shall be entitled to enter into any agreement
with a subservicer for indemnification of the Servicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
(f) In the event the Servicer shall for any reason no longer be
acting as such (including by reason of the occurrence of an Event of Servicing
Termination), the successor Servicer may, in its discretion, thereupon assume
all of the rights and obligations of the outgoing Servicer under a subservicing
agreement. In such event, the successor Servicer shall be deemed to have assumed
all of the Servicer's interest therein and to have replaced the outgoing
Servicer as a party to such subservicing agreement to the same extent as if such
subservicing agreement had been assigned to the successor Servicer, except that
the outgoing Servicer shall not thereby be relieved of any liability or
obligation on the part of the outgoing Servicer to the subservicer under such
subservicing agreement. The outgoing Servicer shall, upon request of the
Trustee, but at the expense of the outgoing Servicer, deliver to the successor
Servicer all documents and records relating to each such
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subservicing agreement and the Receivables and the other Trust Property then
being serviced thereunder and an accounting of amounts collected and held by it
and otherwise use its best efforts to effect the orderly and efficient transfer
of the subservicing agreement to the successor Servicer. In the event that the
successor Servicer elects not to assume a subservicing agreement, such
subservicing agreement shall be immediately cancelable by the successor Servicer
upon written notice to the subservicer and the outgoing Servicer, at its
expense, shall cause the subservicer to deliver to the successor Servicer all
documents and records relating to the Receivables and the other Trust Property
being serviced thereunder and all amounts held (or thereafter received) by such
subservicer (together with an accounting of such amounts) and shall otherwise
use its best efforts to effect the orderly and efficient transfer of servicing
of the Receivables and the other Trust Property being serviced by such
subservicer to the successor Servicer.
SECTION 3.2. Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all comparable
automobile receivables that it services for itself and others. The Servicer will
not increase or decrease the number or amount of any Scheduled Payment, or the
Amount Financed under a Receivable or the APR of a Receivable, or extend,
rewrite or otherwise modify the payment terms of a Receivable; provided,
however, that the Servicer may extend a Receivable for credit related reasons
that would be acceptable to the Servicer with respect to comparable automobile
receivables that it services for itself and others and in accordance with its
customary standards, policies and procedures if the cumulative extensions with
respect to any Receivable shall not cause the term of such Receivable to extend
beyond the Final Scheduled Maturity Date; provided, further, that such
extensions will not be made if the extensions would modify the terms of such
Receivable in such a manner so as to constitute a cancellation of such
Receivable and the creation of a new Receivable for federal income tax purposes.
In the event that the Servicer fails to comply with the provisions of the
preceding sentence, the Servicer shall be required to purchase the Receivable or
Receivables affected thereby,
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for the Purchase Amount, in the manner specified in Section 3.6 as of the first
day of the Collection Period following the Collection Period in which such
failure occurs.
SECTION 3.3. Realization upon Receivables. On behalf of the Trust,
the Servicer shall charge off a delinquent Receivable in accordance with its
customary standards and shall use its best efforts to repossess and liquidate
the Financed Vehicle securing any Defaulted Receivable as soon as feasible after
default, in accordance with the standard of care required by Section 3.1. In
taking such action, the Servicer shall follow such customary and usual practices
and procedures as it shall deem necessary or advisable in its servicing of
comparable automobile receivables, and as are otherwise consistent with the
standard of care required under Section 3.1, which shall include the exercise of
any rights of recourse to Dealers under the Dealer Agreements. The Servicer
shall be entitled to recover all reasonable expenses incurred by it in the
course of repossessing and liquidating a Financed Vehicle into cash proceeds,
but only out of the cash proceeds of such Financed Vehicle and 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, the 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.
If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement, the act of commencement shall be deemed to be an automatic
assignment from the Trustee to the Servicer of the rights of recourse under such
Dealer Agreement. If, however, in any enforcement suit or legal proceeding, it
is held that the Servicer may not enforce a Dealer Agreement on the grounds that
it is not a real party in interest or a Person entitled to enforce the Dealer
Agreement, the Trustee, at the Servicer's expense, shall take such steps as the
Servicer deems necessary to enforce the Dealer Agreement, including bringing
suit in its name or the names of the Certificateholders.
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SECTION 3.4. Maintenance of Security Interests in Financed Vehicles.
The Servicer, in accordance with the standard of care required under Section
3.1, shall take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Trustee, on behalf of the Trust, hereby authorizes the Servicer, and the
Servicer hereby agrees, to take such steps as are necessary and customary in
accordance with the Servicer's ordinary procedures to re-perfect such security
interest in the event the Servicer receives notice of the relocation of a
Financed Vehicle to a location in the United States of America or Canada or for
any other reason.
SECTION 3.5. Covenants of Servicer. The Servicer makes the following
covenants on which the Trustee relies in accepting the Trust Property in trust
and in executing and authenticating the Certificates:
(i) Security Interest to Remain in Force. The Servicer will not
release the Financed Vehicle securing a Receivable from the security
interest granted by the Receivable in whole or in part, except as
contemplated herein or voluntarily allow an Obligor to relocate outside
the United States of America or Canada.
(ii) No Impairment. The Servicer will not (nor will it permit any
subservicer to) impair in any material respect the rights of the
Certificateholders in the Receivables or, subject to clause (iii) and (iv)
below, otherwise amend or alter the terms thereof if, as a result of such
amendment or alteration, the interests of the Trust and the
Certificateholders hereunder would be materially adversely affected.
(iii) Amendments. The Servicer will not increase or decrease the
number or amount of Scheduled Payments or the Amount Financed under a
Receivable, or extend, rewrite or otherwise modify the payment terms of a
Receivable, except pursuant to Section 3.2.
(iv) Extensions. The Servicer will not extend a Receivable except in
accordance with Section 3.2.
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SECTION 3.6. Purchase by Servicer upon Breach. The Seller, the
Servicer or the Trustee, as the case may be, shall inform the other parties to
this Agreement promptly, in writing, upon the discovery of any breach of Section
3.2, 3.4 or 3.5. Subject to Section 3.2, unless the breach shall have been cured
by the last day of the Collection Period which includes the 60th day after the
date on which the Servicer becomes aware of, or receives written notice of, such
breach or failure, the Servicer shall purchase from the Trustee the Receivable
or Receivables, the interests of the Trust and the Certificateholders in which
are materially and adversely affected by the breach or failure, on the
Distribution Date immediately following such Collection Period but with effect
from the first day of the Collection Period in which such Distribution Date
occurs. In consideration of the purchase of a Receivable hereunder, the Servicer
shall remit the Purchase Amount of such Receivable in the manner specified in
Section 4.5. Except as provided in Section 8.2, the sole remedy of the Trust,
the Trustee, or the Certificateholders against the Servicer with respect to a
breach pursuant to Section 3.2, 3.4 or 3.5 shall be to require the Servicer to
purchase Receivables pursuant to this Section 3.6.
SECTION 3.7. Servicing Compensation. The "Servicing Fee" with
respect to a Collection Period shall be an amount equal to one-twelfth of the
product of the Servicing Rate and the Pool Balance as of the first day of such
Collection Period. If it is acceptable to each Rating Agency without a reduction
in the rating of the Class A Certificates, the Servicing Fee in respect of a
Collection Period (together with any portion of a Servicing Fee that remains
unpaid from prior Collection Periods) at the option of the Servicer may be paid
at or as soon as possible after the beginning of such Collection Period out of
collections for such Collection Period. As additional servicing compensation,
the Servicer shall also be entitled to all administrative fees and charges
(including late fees and charges) collected (from whatever source) on the
Receivables (the "Supplemental Servicing Fee") and, to the extent not required
to be deposited in the Class A Reserve Fund pursuant to subsection 4.7(g),
investment earnings on amounts on deposit in the Collection Account and the
Payahead Account. The Servicer shall be required to pay all expenses incurred by
it in connection with its activities hereunder (in-
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cluding fees and expenses of the Trustee (and any custodian appointed by the
Trustee) and independent accountants, any subservicer, taxes imposed on the
Servicer or any subservicer (to the extent not paid by such subservicer), and
expenses incurred in connection with distributions and reports to the
Certificateholders) except expenses incurred in connection with realizing upon
Receivables under Section 3.3.
SECTION 3.8. Servicer's Certificate. On or before the Determination
Date immediately preceding each Distribution Date, the Servicer shall deliver to
the Trustee, the Payahead Agent, the Class A Agent, the Class B Agent and the
Seller a certificate of a Servicing Officer substantially in the form of Exhibit
C hereto (a "Servicer's Certificate") and attached to a Servicer's report, in
form and substance acceptable to the Trustee, containing all information
necessary to make the transfers and distributions pursuant to Sections 4.3, 4.4,
4.5 and 4.6, and all information necessary for the Trustee to send statements to
Certificateholders pursuant to Section 4.9. The Servicer also shall separately
identify (by account number of the Receivable as it appears in the related
Schedule of Receivables) in a written notice to the Trustee and the Seller the
Receivables to be repurchased by the Seller or to be purchased by the Servicer,
as the case may be, on the related Distribution Date, and each Receivable which
became a Defaulted Receivable during the related Collection Period.
SECTION 3.9. Annual Statement as to Compliance. (a) The Servicer
shall deliver to the Trustee, on or before March 31 of each year, commencing
March 31, 1999, an Officer's Certificate, stating that (i) a review of the
activities of the Servicer during the preceding calendar year (or longer period,
in the case of the first such Officer's Certificate) and of its performance of
its obligations under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year (or longer period, in the case of the first such
certificate), or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by any
Certificateholder by a request in
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writing to the Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and the Seller
promptly upon having knowledge thereof, but in no event later than five Business
Days thereafter, written notice in an Officer's Certificate of any event which
constitutes or, with the giving of notice or lapse of time, or both, would
become, an Event of Servicing Termination under Section 9.1.
SECTION 3.10. Annual Independent Certified Public Accountants'
Reports. The Servicer shall cause a firm of independent certified public
accountants (who may also render other services to the Servicer, the Seller or
MBCC) to deliver to the Trustee on or before March 31 of each year, commencing
March 31, 1999, a report addressed to the Board of Directors of the Servicer and
to the Trustee with respect to the preceding calendar year (or longer period, in
the case of the first such report) to the effect that such firm has audited the
financial statements of the Servicer and issued its report thereon and that such
audit (1) was made in accordance with generally accepted auditing standards, (2)
included tests relating to automobile retail installment contracts serviced for
others in accordance with the requirements of the Uniform Single Audit Program
for Mortgage Bankers (the "Program"), to the extent the procedures in such
Program are applicable to the servicing obligations set forth in this Agreement,
and (3) except as described in the report, disclosed no exceptions or errors in
the records relating to automobile retail installment contracts serviced for
others that, in the firm's opinion, paragraph four of such Program requires such
firm to report. Such report shall also indicate that the firm is independent
with respect to the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants. A
copy of such report may be obtained by any Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
SECTION 3.11. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide the Trustee and the
Certificateholders with access to the Receivable Files (in the case of the
Certificateholders, where the Certificateholder shall be
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required by applicable statutes or regulations to have access to such
documentation). Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer, and, prior to the occurrence of an Event of Servicing Termination or
an event which with the passage of time and delivery of notice would constitute
an Event of Servicing Termination, only to the extent that such access does not
disrupt the Servicer's normal business operations and does not adversely affect
the Servicer's ability to perform its obligations under this Agreement. Nothing
in this Section shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors, and
the failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section. Any Certificateholder,
by its acceptance of a Certificate, shall be deemed to have agreed to keep all
information obtained by it pursuant to this Section confidential except as may
be required by applicable law and not to use any such information except as
permitted by, or to enforce, this Agreement.
SECTION 3.12. Reports to the Commission. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
The Seller shall, at its expense, cooperate in any reasonable request made by
the Servicer in connection with such filings. The Servicer shall provide copies
of any such reports to the Trustee.
SECTION 3.13. Reports to the Rating Agency. The Servicer shall
deliver to each Rating Agency, at such address as each Rating Agency may
request, a copy of all reports or notices furnished or delivered pursuant to
this Article and a copy of any amendments, supplements or modifications to this
Agreement and any subservicing agreement and any other information reasonably
requested by such Rating Agency to monitor this transaction.
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ARTICLE IV
Distributions; Reserve Funds;
Statements to Certificateholders
SECTION 4.1. Accounts. (a) The Trustee shall establish the Collection
Account and the Certificate Account in the name of the Trustee for the benefit
of the Certificateholders. The Collection Account and the Certificate Account
shall at all times each be an Eligible Deposit Account and shall each be
initially established and maintained with the Trustee. If the Servicer is
required to remit collections pursuant to the first sentence of Section 4.2, all
amounts held in the Collection Account shall, to the extent permitted by
applicable law, rules and regulations, be invested, as directed in writing by
the Servicer, by the bank or trust company then maintaining the Collection
Account in Eligible Investments that mature not later than the Distribution Date
for the Collection Period to which such amounts relate, and such Eligible
Investments shall be held to maturity; provided, however, that it is understood
and agreed that neither the Trustee nor the Payahead Agent shall be liable for
any loss arising from investments in Eligible Investments. On each Distribution
Date, all interest and other income (net of losses and investment expenses) on
funds on deposit in the Collection Account during the preceding Collection
Period shall be withdrawn from the Collection Account at the direction of the
Servicer and, so long as MBCC is the Servicer, deposited in the Class A Reserve
Fund in an amount not to exceed the aggregate Shortfall Amount for the related
Collection Period to the extent specified in Section 4.7(g) and any remaining
investment income shall be paid to the Servicer. Amounts in the Certificate
Account shall not be invested.
(b) The Trustee shall establish the Payahead Account in the name of
the Payahead Agent for the benefit of the Obligors. The Payahead Account shall
at all times be an Eligible Deposit Account and shall be initially established
and maintained with the Payahead Agent. All amounts held in the Payahead Account
shall be invested, as directed in writing by the Servicer, by the bank or trust
company then maintaining the Payahead Account in Eligible Investments that
mature not later than the Distribution Date for the Collection Period to which
such amounts relate and such Eligible Investments shall be
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held to maturity; provided, however, that it is understood and agreed that
neither the Trustee nor the Payahead Agent shall be liable for any loss arising
from investments in Eligible Investments. On each Distribution Date, all
interest and other income (net of losses and investment expenses) on funds on
deposit in the Payahead Account during the preceding Collection Period shall be
withdrawn from the Payahead Account at the direction of the Servicer and, so
long as MBCC is the Servicer, deposited in the Class A Reserve Fund in an amount
not to exceed the aggregate Shortfall Amount for the related Collection Period
to the extent specified in Section 4.7(g) and any remaining investment income
shall be paid to the Servicer. In no event shall the Payahead Account be
property of the Trust or security for the Certificates.
(c) Reserved
(d) Notwithstanding the provisions of clause (b) above and of
Section 4.6(a)(ii), for so long as (i) MBCC is the Servicer, (ii) the Servicing
Guaranty Agreement is in full force and effect and the rating of DBNA's
short-term unsecured debt is at least P-1 by Moody's and at least A-1 by S&P,
and (iii) no Event of Servicing Termination shall have occurred (each, a
"Monthly Remittance Condition"), Payaheads need not be remitted to and deposited
in the Payahead Account but instead may be held by the Servicer. So long as such
Monthly Remittance Conditions are met, the Servicer shall not be required to
segregate or otherwise hold separate any Payaheads remitted to the Servicer as
aforesaid but shall be required to remit Payaheads to the Certificate Account in
accordance with Section 4.6(a)(ii). At any time a Monthly Remittance Condition
is not met, the Servicer shall deposit in the Payahead Account, as soon as
practicable but in no event after the close of business on the second Business
Day after such Monthly Remittance Condition ceases to be met or, if later, the
close of business on the second Business Day after receipt thereof the amount of
any Payaheads then held or received by it. Notwithstanding the foregoing, if a
Monthly Remittance Condition is not satisfied the Servicer may utilize, with
respect to Payaheads, an alternative remittance schedule (which may include the
remittance schedule utilized by the Servicer before the Monthly Remittance
Condition became unsatisfied), if the Servicer provides to the Payahead Agent
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written confirmation from the Rating Agencies that such alternative remittance
schedule will not result in the downgrading or withdrawal by the Rating Agencies
of the ratings then assigned to the Class A Certificates. The Payahead Agent
shall not be deemed to have knowledge of any event or circumstance under clause
(iii) of the first sentence of this Section 4.1(d) that would require remittance
of the Payaheads to the Payahead Account unless the Payahead Agent has received
notice of such event or circumstance from the Seller or the Servicer in an
Officer's Certificate or from the Holders of Certificates (excluding from such
calculation any Certificates held by the Seller or its Affiliates) evidencing
not less than 25% of the sum of the Class A Principal Balance and the Class B
Principal Balance (excluding from such calculation any Certificates held by the
Seller or its Affiliates) or unless an Authorized Officer in the Corporate Trust
Office with knowledge hereof and familiarity herewith has actual knowledge of
such event or circumstance.
(e) The Servicer shall be permitted to remit to any Obligor,
upon the request of such Obligor, the Payahead Balance with respect to such
Obligor's Receivable or such lesser amount requested by such Obligor, in
accordance with the Servicer's customary standards, policies and procedures, to
the extent that such amount is not then due on such Receivable. The Payahead
Agent shall remit to any Obligor, upon request of the Servicer following receipt
by the Servicer of such a request by the Obligor, the Payahead Balance with
respect to such Obligor's Receivable, or such lesser amount requested by such
Obligor, or the Servicer, as applicable, to the extent that such amount is not
then due on such Receivable. Upon any such remittance, such Payahead Balance
shall be reduced by the amount of such remittance.
SECTION 4.2. Collections. (a) The Servicer shall remit to the
Collection Account (i) all payments by or on behalf of the Obligors with respect
to the Receivables (excluding amounts received by the Servicer with respect to
Excess Amounts, Payaheads and Supplemental Servicing Fees) and (ii) all
Liquidation Proceeds and Recoveries, received by the Servicer during any
Collection Period (such amounts and the proceeds thereof, "Collection Account
Property"), as soon as practicable, but in no event after the close of business
on the second
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Business Day after receipt thereof. MBCC, so long as it is acting as the
Servicer, may make remittances of collections on a less frequent basis than that
specified in the immediately preceding sentence so long as, and only for so long
as, specific terms and conditions set forth below in this Section 4.2 are
fulfilled. Accordingly, notwithstanding the provisions of the first sentence of
this Section 4.2, the Servicer shall remit collections received during a
Collection Period to the Collection Account in immediately available funds on
the related Distribution Date but only for so long as each Monthly Remittance
Condition is satisfied. Notwithstanding the foregoing, if a Monthly Remittance
Condition is not satisfied the Servicer may utilize an alternative remittance
schedule (which may include the remittance schedule utilized by the Servicer
before the Monthly Remittance Condition became unsatisfied), if the Servicer
provides to the Trustee written confirmation from the Rating Agencies that such
alternative remittance schedule will not result in the downgrading or withdrawal
by the Rating Agencies of the ratings then assigned to the Class A Certificates.
The Trustee shall not be deemed to have knowledge of any event or circumstance
under clause (iii) of the definition of Monthly Remittance Condition that would
require remittance by the Servicer to the Collection Account pursuant to the
first sentence of this Section 4.2(a) unless the Trustee has received notice of
such event or circumstance from the Seller or the Servicer in an Officer's
Certificate or from the Holders of Certificates (excluding from such calculation
any Certificates held by the Seller or its Affiliates) evidencing not less than
25% of the sum of the Class A Principal Balance and the Class B Principal
Balance (excluding from such calculation any Certificates held by the Seller or
its Affiliates) or an Authorized Officer in the Corporate Trust Office with
knowledge hereof or familiarity herewith has actual knowledge of such event or
circumstance.
(b) Notwithstanding the provisions of Section 4.2(a) hereof, the
Servicer may retain, or will be entitled to be reimbursed, from amounts
otherwise payable into, or on deposit in, the Collection Account with respect to
a Collection Period any amounts previously deposited in the Collection Account
but later determined to have resulted from mistaken deposits or postings or
checks returned unpaid for insufficient funds or other reasons, in each case,
with respect to which the Servicer
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has not been previously reimbursed hereunder. The amount to be retained or
reimbursed hereunder shall not be included in collections with respect to the
related Distribution Date.
SECTION 4.3. Application of Collections. For the purposes of this
Agreement, all collections with respect to each Receivable (other than amounts
received by the Servicer with respect to Excess Amounts and the Supplemental
Servicing Fee) in each Collection Period shall be applied by the Servicer as
follows:
Payments by or on behalf of the Obligor with respect to such
Receivable shall be applied first, to reduce Outstanding Advances as
described in Section 4.4(a) below. Next, any excess shall be applied to
the Scheduled Payment for such Collection Period in respect of such
Receivable. Any remaining excess shall be applied to prepay the
Receivable, but only if the sum of such excess and the existing Payahead
Balance in respect of such Receivable shall be sufficient to prepay such
Receivable in full. Otherwise, any such remaining excess shall constitute
a Payahead, and shall increase the Payahead Balance.
SECTION 4.4. Advances. (a) As of the last day of each Collection
Period other than the Collection Period in which a Receivable is paid in full,
if the payments during such Collection Period by or on behalf of the Obligor on
or in respect of a Receivable after application under Section 4.3 shall be less
than the Scheduled Payment in respect of such Receivable, the Payahead Balance
for such Receivable shall be applied to the extent of the shortfall, and such
Payahead Balance shall be reduced accordingly. Next, subject to Section 4.4(b),
an Advance shall be made by the Servicer to the extent of any remaining
shortfall in respect of such Receivable. Outstanding Advances with respect to a
Receivable shall be reduced by subsequent payments by or on behalf of the
related Obligor, collections of Liquidation Proceeds and Recoveries in respect
of the related Receivable, and payment of the Purchase Amount.
If the Servicer shall determine that an Outstanding Advance with
respect to any Receivable shall not be recoverable as described in the preceding
paragraph,
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the Servicer shall be reimbursed from any collections credited to payments made
on other Receivables in the Trust (including Liquidation Proceeds and
Recoveries), and Outstanding Advances with respect to such Receivable shall be
reduced accordingly.
(b) The Servicer may elect not to make an Advance with respect to a
Receivable to the extent that the Servicer, in its sole discretion, does not
expect to recover such Advance from subsequent payments on such Receivable.
SECTION 4.5. Additional Deposits. Advances pursuant to Section
4.4(a), Purchase Amounts pursuant to Sections 2.5 and 3.6 and amounts to be
deposited by the Servicer pursuant to Section 11.2 with respect to a Collection
Period shall be deposited in the Collection Account in immediately available
funds no later than 10:00 a.m., New York City time, on the Distribution Date
related to such Collection Period. The Trustee shall deposit in the Certificate
Account on such Distribution Date the aggregate of any amounts received from the
Class A Reserve Fund pursuant to Section 4.7(f) and amounts otherwise received
pursuant to the Shortfall Amount Agreement on the date of receipt thereof.
SECTION 4.6. Distributions. (a) On each Distribution Date, the
Trustee shall cause to be made the following transfers and distributions in the
amounts set forth in the Servicer's Certificate for such Distribution Date:
(i) From the Collection Account to the Certificate
Account, in immediately available funds, the Total Available Amount then
on deposit in the Collection Account; provided, however, that in the event
that the Servicer is required to make deposits to the Collection Account
pursuant to the first sentence of Section 4.2(a), the amount of the funds
transferred from the Collection Account to the Certificate Account will
include only those funds that were deposited in the Collection Account for
the Collection Period related to such Distribution Date.
(ii) From the Payahead Account, or from the Servicer
in the event the provisions of
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Section 4.1(d) above are applicable, to the Certificate Account, in
immediately available funds, (x) the aggregate portion of Payaheads
constituting Scheduled Payments or prepayments in full for the Collection
Period related to such Distribution Date, required by Sections 4.3 and
4.4(a), and (y) the Payahead Balance, if any, relating to any Purchased
Receivable.
(iii) From the Collection Account to the Servicer, in
immediately available funds, repayment of Outstanding Advances, made
pursuant to Section 4.4(a), to the extent of amounts available hereunder
for such purpose.
(b) The Servicer shall on each Determination Date calculate the
Total Available Amount, the Available Interest, the Available Principal, the
Shortfall Amount, the Class A Distributable Amount, the Class B Distributable
Amount and the Retained Yield, and, based on the Total Available Amount and the
other distributions to be made on such Distribution Date, determine the amount
distributable to Certificateholders of each Class and to the Seller as Retained
Yield.
(c) On each Distribution Date, the Trustee (based on the information
contained in the Servicer's Certificate delivered on the related Determination
Date pursuant to Section 3.9) shall, subject to Section 4.6(d) hereof, make the
following distributions in the following order of priority:
(i) first, to the Servicer, from the Available
Interest (pro rata from the Class A Percentage and the Class B Percentage
of Available Interest), the Servicing Fee and all unpaid Servicing Fees
from prior Collection Periods;
(ii) second, to the Class A Certificateholders, an
amount equal to the sum of the Class A Interest and any outstanding Class
A Interest Carryover Shortfall as of the close of business on the
preceding Distribution Date, such amount to be paid (A) first, from the
Class A Percentage of Available Interest (as such Available Interest has
been reduced by Servicing Fee payments), (B) second, to the extent such
amount is insufficient, from the
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Class A Reserve Fund; (C) third, to the extent such amounts are
insufficient, from the Class B Percentage of Available Interest (as such
Available Interest has been reduced by Servicing Fee payments) and (D)
fourth, to the extent such amounts are insufficient, from the Class B
Percentage of Available Principal.
(iii) third, to the Class B Certificateholders, an
amount equal to the sum of the Class B Interest and any outstanding Class
B Interest Carryover Shortfall as of the close of business on the
preceding Distribution Date, such amount to be paid (A) first, from
Available Interest (as such Available Interest has been reduced by
payments pursuant to clauses (i) and (ii) above), and (B) second, to the
extent such amount is insufficient, from the Class B Reserve Fund;
(iv) fourth, to the Class A Certificateholders, an
amount equal to the sum of the Class A Principal for such Distribution
Date and any outstanding Class A Principal Carryover Shortfall as of the
close of business on the preceding Distribution Date, such amount to be
paid (A) first, from the Class A Percentage of the Available Principal,
(B) second, to the extent such amount is insufficient, from Available
Interest (as reduced by distributions pursuant to clauses (i), (ii), and
(iii) above), (C) third, to the extent such amounts are insufficient, from
the Class A Reserve Fund, and (D) fourth, to the extent such amounts are
insufficient, from the Class B Percentage of Available Principal;
(v) fifth, to the Class B Certificateholders, an
amount equal to the sum of the Class B Principal and any outstanding Class
B Principal Carryover Shortfall as of the close of business on the
preceding Distribution Date, such amount to be paid (A) first, from the
Class B Percentage of Available Principal, (B) second, to the extent such
amount is insufficient, from remaining Available Interest (as reduced by
distributions pursuant to clauses (i), (ii), (iii) and (iv) above), and
(C) third, to the extent such amounts are insufficient, from the Class B
Reserve Fund; and
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(vi) sixth, to the extent there are remaining funds
consisting of Available Interest, an amount equal to the Retained Yield
for such Distribution Date, plus any Retained Yield remaining unpaid from
prior Distribution Dates, shall be paid:
(A) first, to the Class A Reserve Fund in an
amount equal to the excess of the Specified Class A Reserve Balance
over the amount on deposit therein after giving effect to any
deposit thereto on such Distribution Date pursuant to Section
4.7(g);
(B) second, to the Class B Reserve Fund in
an amount equal to the excess of the Specified Class B Reserve
Balance over the amount on deposit therein; and
(C) third, to the Seller in payment of the
Retained Yield.
(d) The rights of the Class B Certificateholders to receive
distributions in respect of the Class B Certificates shall be and hereby are
subordinated, to the extent set forth in Section 4.6(c), to the rights of the
Class A Certificateholders to receive distributions in respect of the Class A
Certificates and the rights of the Servicer to receive the Servicing Fee (and
any accrued and unpaid Servicing Fee from prior Collection Periods) in the event
of delinquency or defaults on the Receivables. The rights of the Seller to
receive distributions in respect of the Retained Yield shall be and hereby are
subordinated, to the extent set forth in Section 4.6(c), to the rights of the
Class A Certificateholders to receive distributions in respect of the Class A
Certificates, the rights of the Class B Certificateholders to receive
distributions in respect of the Class B Certificates, and the rights of the
Servicer to receive the Servicing Fee (and any accrued and unpaid Servicing Fee
from prior Collection Periods) in the event of delinquency or defaults on the
Receivables. Upon the written instructions of the Servicer included in the
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 3.8, the Class A Agent and the Class B Agent shall release amounts
available in the Class A Reserve Fund and the Class B Reserve Fund,
respectively, as provided in Section 4.6(c) and distribute such amounts
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to the Trustee for application in accordance with Section 4.6(c).
(e) Subject to Section 11.1 with respect to the final payment upon
retirement of each Certificate, the Servicer shall on each Distribution Date
instruct the Trustee to distribute to each Certificateholder of record on the
preceding Record Date either by wire transfer, in immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder is the Seller or a
Clearing Agency that shall have provided to the Servicer appropriate
instructions prior to such Distribution Date, or, if not, by check mailed to
such Certificateholder (such check to be mailed as soon as reasonably
practicable on or after such Distribution Date) at the address of such
Certificateholder appearing in the Certificate Register, the amounts to be
distributed to such Certificateholder pursuant to such Holder's Certificates.
SECTION 4.7. Subordination; Reserve Funds; Priority of
Distributions.
(a) (i) In order to effectuate the subordination provided for
herein and to provide for the payment of Shortfall Amounts, there shall be
established by the Seller and maintained by each of the Class A Agent and
the Class B Agent separate Eligible Deposit Accounts to include the money
and other property deposited and held therein pursuant to this subsection
4.7(a)(i) and subsections 4.7(a)(ii) and 4.7(b) (the "Class A Reserve
Fund" and the "Class B Reserve Fund," respectively). On the date of
issuance of the Certificates, the Seller shall deposit the Class A Reserve
Initial Deposit, if any, into the Class A Reserve Fund, and the Class B
Reserve Initial Deposit, if any, into the Class B Reserve Fund. Neither
the Class A Reserve Fund nor the Class B Reserve Fund shall be part of the
Trust. Each of the Class A Certificateholders, on behalf of itself and its
successors and assigns (including, but not limited to, any future Holder
of a Class A Certificate), hereby appoints Citibank, N.A., acting in its
capacity as agent for the purposes of this Section 4.7 and not as Trustee,
as its agent with respect to the Class A Reserve Fund and the Class A
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Reserve Fund Property (the "Class A Agent"), and the Class A Agent hereby
accepts such appointment. Each of the Class B Certificateholders, on
behalf of itself and its successors and assigns (including, but not
limited to, any future Holder of a Class B Certificate), hereby appoints
Citibank, N.A., acting in its capacity as agent for the purposes of this
Section 4.7 and not as Trustee, as its agent with respect to the Class B
Reserve Fund and the Class B Reserve Fund Property (the "Class B Agent"),
and the Class B Agent hereby accepts such appointment.
(ii) In order to provide for the prompt payment to the
Class A Certificateholders and the Class B Certificateholders, in
accordance with Sections 4.6(c) and 4.6(d), to give effect to the
subordination provided for herein, and to assure availability of the
amounts maintained in the Class A Reserve Fund and the Class B Reserve
Fund:
(A) The Seller, as owner of the Retained Yield, on
behalf of itself and its successors and assigns, hereby collaterally
assigns, conveys, and transfers to the Class A Agent, the Class A
Reserve Initial Deposit and all proceeds thereof (but excluding
investment earnings attributable to Class A Reserve Fund Property
and proceeds attributable thereto), and grants a security interest
to the Class A Agent and its successors and assigns, in the Class A
Reserve Initial Deposit and all proceeds thereof (but excluding
investment earnings attributable to Class A Reserve Fund Property
and proceeds attributable thereto); and
(B) The Seller, as owner of the Retained Yield, on
behalf of itself and its successors and assigns, hereby collaterally
assigns, conveys, and transfers to the Class A Agent, all its right,
title, and interest in and to the Class A Reserve Fund, and all
proceeds of the foregoing, including, without limitation, all other
amounts and Eligible Investments (but excluding investment earnings
attributable to Class A Reserve Fund Property and proceeds
attributable thereto) held from time to time in the Class A Reserve
Fund, and
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grants a security interest to the Class A Agent and its successors
and assigns, in and to the Class A Reserve Fund, and all proceeds of
the foregoing, including without limitation, all other amounts and
Eligible Investments (but excluding investment earnings attributable
to Class A Reserve Fund Property and proceeds attributable thereto)
held from time to time in the Class A Reserve Fund, in each case, to
secure the payment of the Class A Distributable Amount provided for
in Section 4.6 and this Section;
(all of the foregoing non-excluded amounts, subject to the limitations set
forth below, the "Class A Reserve Fund Property"), to have and to hold all
the aforesaid property, rights and privileges unto the Class A Agent, its
successors and assigns, in trust for the uses and purposes, and subject to
the terms and provisions, set forth in this Section 4.7. The Class A Agent
hereby acknowledges such transfer and accepts the trust hereunder and
shall hold and distribute the Class A Reserve Fund Property in accordance
with the terms and provisions of this Section 4.7; and
(C) In the event a Class B Reserve Initial Deposit
is made, the Seller, as owner of the Retained Yield, on behalf of
itself and its successors and assigns, shall collaterally assign,
convey, and transfer to the Class B Agent, the Class B Reserve
Initial Deposit and all proceeds thereof (but excluding investment
earnings attributable to Class B Reserve Fund Property and proceeds
attributable thereto), and grant a security interest to the Class B
Agent and its successors and assigns, in the Class B Reserve Initial
Deposit and all proceeds thereof (but excluding investment earnings
attributable to Class B Reserve Fund Property and proceeds
attributable thereto);
(D) The Seller, as owner of the Retained Yield, on
behalf of itself and its successors and assigns, hereby collaterally
assigns, conveys, and transfers to the Class B Agent, all its right,
title, and interest in
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and to the Class B Reserve Fund, and all proceeds of the foregoing,
including, without limitation, all other amounts and Eligible
Investments (but excluding investment earnings attributable to Class
B Reserve Fund Property and proceeds attributable thereto) held from
time to time in the Class B Reserve Fund, and grants a security
interest to the Class B Agent, in and to the Class B Reserve Fund,
and all proceeds of the foregoing, including without limitation, all
other amounts and Eligible Investments (but excluding investment
earnings attributable to Class B Reserve Fund Property and proceeds
attributable thereto) held from time to time in the Class B Reserve
Fund,in each case, to secure the payment of the Class B
Distributable Amount provided for in Section 4.6 and this Section;
(all of the foregoing non-excluded amounts, subject to the limitations set
forth below, the "Class B Reserve Fund Property"), to have and to hold all
the aforesaid property, rights and privileges unto the Class B Agent, its
successors and assigns, in trust for the uses and purposes, and subject to
the terms and provisions, set forth in this Section 4.7. The Class B Agent
hereby acknowledges such transfer and accepts the trust hereunder and
shall hold and distribute the Class B Reserve Fund Property in accordance
with the terms and provisions of this Section 4.7.
(iii) The trusts established pursuant to this Section
4.7 shall not under any circumstances be deemed to be part of or otherwise
included in the Trust. Any amounts deposited in the Class A Reserve Fund
or the Class B Reserve Fund will be deemed to have been paid to the
Seller. For federal income tax purposes, the Seller shall treat all
amounts deposited in the Class A Reserve Fund or Class B Reserve Fund that
would have been distributed to the Seller as Retained Yield but for the
application of Section 4.6(c)(vi) as having been received by the Seller
and shall treat all the income earned on the Class A Reserve Fund or Class
B Reserve Fund as its income.
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(b) If, on any Distribution Date, the principal amount of
Class A Reserve Fund Property (after taking into account any withdrawals from
and deposits into the Class A Reserve Fund pursuant to Sections 4.6 and 4.7) is
greater than the Specified Class A Reserve Balance for such Distribution Date,
the Class A Agent shall upon the written instruction of the Servicer, release
such excess from the Class A Reserve Fund and (i) if the principal amount of the
Class B Reserve Fund Property (after taking into account any withdrawals from
and deposits in the Class B Reserve Fund pursuant to Section 4.6) is less than
the Specified Class B Reserve Balance for such Distribution Date, deposit such
excess, to the extent of such shortfall, in the Class B Reserve Fund and (ii) to
the extent that the principal amount of the Class B Reserve Fund Property (after
taking into account any withdrawals from and deposits in the Class B Reserve
Fund pursuant to Section 4.6) is equal to or greater than the Specified Class B
Reserve Balance for such Distribution Date, release to the Trustee and the
Trustee, at the instruction of the Servicer, shall distribute to the Seller, the
amount of the excess. Amounts properly released from the Class A Reserve Fund
and deposited in the Class B Reserve Fund or distributed to the Seller pursuant
to Section 4.6(c) or this Section 4.7(b), either directly from the Certificate
Account without deposit in the Class A Reserve Fund and/or the Class B Reserve
Fund or from the Class A Reserve Fund and/or the Class B Reserve Fund, shall be
deemed released from the trust established by this Section 4.7, and neither the
Trustee, the Class A Certificateholders, nor the Class B Certificateholders
shall have any further claim upon any such distributed amounts. The delivery of
the Servicer's Certificate pursuant to Section 3.8 shall, unless otherwise
specified by the Servicer, be deemed an appropriate written instruction for
purposes of this Section 4.7(b).
(c) If, on any Distribution Date, the principal amount of
Class B Reserve Fund Property (after taking into account any withdrawals from
and deposits in the Class B Reserve Fund pursuant to Section 4.6) is greater
than the Class B Specified Reserve Balance for such Distribution Date, the Class
B Agent shall upon the written instruction of the Servicer, release such excess
from the Class B Reserve Fund to the Trustee and the Trustee, at the instruction
of the Servicer, shall dis-
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tribute to the Seller, the amount of the excess. Amounts properly distributed to
the Seller pursuant to Section 4.6(c) or this Section 4.7(c), either directly
from the Certificate Account without deposit in the Class B Reserve Fund or from
the Class B Reserve Fund, shall be deemed released from the trust established by
this Section 4.7, and neither the Trustee, the Class A Certificateholders nor
the Class B Certificateholders shall in any event thereafter have any claim to
any such distributed amounts. The delivery of the Servicer's Certificate
pursuant to Section 3.8 shall, unless otherwise specified by the Servicer, be
deemed an appropriate written instruction for purposes of this Section 4.7(c).
(d) (i) Amounts held in the Class A Reserve Fund and the Class
B Reserve Fund shall be invested in Eligible Investments in the manner
specified in Section 4.1(a), in accordance with written instructions from
the Seller, and such investments shall not be sold or disposed of prior to
their maturity (provided, however, that it is understood and agreed that
the Class A Agent and the Class B Agent shall not be liable for any loss
arising from investments in Eligible Investments) ; provided, however,
that to the extent permitted by the Rating Agencies, funds on deposit in
the Class A Reserve Fund and the Class B Reserve Fund may be invested in
Eligible Investments that mature later than the next succeeding
Distribution Date. All such investments shall be made in the name of the
Class A Agent or the Class B Agent, as applicable, or its nominee and all
income and gain realized thereon shall be solely for the benefit of the
Seller and shall be payable by the Class A Agent or the Class B Agent, as
applicable, to the Seller on each Distribution Date.
(ii) Each of the Seller and the Servicer agrees to
take or cause to be taken such further actions, to execute, deliver and
file or cause to be executed, delivered and filed such further documents
and instruments (including, without limitation, any UCC financing
statements or this Agreement) as may be determined to be necessary, in the
Opinion of Counsel of the Seller delivered to the Class A Agent and/or the
Class B Agent, in order to perfect the security interests created by this
Section 4.7 and otherwise fully to effectuate the
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purposes, terms and conditions of this Section 4.7. The Seller and the
Servicer shall:
(A) promptly execute, deliver and file any
financing statements, amendments, continuation statements,
assignments, certificates and other documents with respect to such
interests and perform all such other acts as may be necessary in
order to perfect or to maintain the perfection of the Trustee's
security interest; and
(B) make the necessary filings of financing
statements or amendments thereto within five days after the
occurrence of any of the following: (1) any change in their
respective corporate names or any trade names, (2) any change in the
location of their respective chief executive offices or principal
places of business and (3) any merger or consolidation or other
change in their respective identities or corporate structures; and
shall promptly notify the Trustee of any such filings.
(iii) Investment earnings attributable to the Class A
Reserve Fund Property and the Class B Reserve Fund Property and proceeds
therefrom shall be held by the Class A Agent and the Class B Agent,
respectively, for the benefit of the Seller. Investment earnings
attributable to the Class A Reserve Fund Property and the Class B Reserve
Fund Property shall not be available to satisfy the subordination
provisions of this Agreement and shall not otherwise be subject to any
claims or rights of the Class A Certificateholders, the Class B
Certificateholders or the Servicer. The Class A Agent and the Class B
Agent shall cause all investment earnings received on or prior to each
Distribution Date and attributable to the Class A Reserve Fund Property
and the Class B Reserve Fund Property, respectively, to be distributed on
such Distribution Date to the Seller. Losses if any, on investments in the
Class A Reserve Fund or the Class B Reserve Fund shall be charged first
against undistributed investment earnings attributable to the Class A
Reserve Fund Property or Class B Reserve Fund Property, as the case may
be, and then against the principal
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amount of the applicable Class A Reserve Fund Property or Class B Reserve
Fund Property.
(iv) The Class A Agent and the Class B Agent shall not
enter into any subordination or intercreditor agreement with respect to
the Class A Reserve Fund Property or the Class B Reserve Fund Property,
respectively.
(e) Upon termination of this Agreement in accordance with Section
11.1 or 11.2, all remaining Class A Reserve Fund Property and Class B Reserve
Fund Property shall, upon written instruction of either the Servicer or the
Seller, be paid to the Seller.
(f) If with respect to any Collection Period there are positive
Shortfall Amounts, the Class A Agent, not later than 12:00 noon, New York City
time, on the related Distribution Date, shall, upon the written direction of the
Servicer, withdraw from the Class A Reserve Fund and deposit into the
Certificate Account, an amount equal to such Shortfall Amounts.
The delivery of the Servicer's Certificate pursuant to Section 3.8
shall, unless otherwise specified by the Servicer, be deemed an appropriate
written instruction for purposes of this Section 4.7(f). MBCC shall retain all
Excess Amounts, which amounts will not be assets of the Trust; provided,
however, that to the extent specified in Section 4.7(g), MBCC shall deposit such
Excess Amounts or the applicable portion thereof in the Class A Reserve Fund.
(g) On each Distribution Date, after giving effect to any
withdrawals from the Class A Reserve Fund pursuant to Section 4.6 and 4.7(f) on
such Distribution Date, MBCC shall deposit into the Class A Reserve Fund an
amount equal to the aggregate Shortfall Amounts for the related Collection
Period. If MBCC shall fail to make such deposit to the Class A Reserve Fund on
any Distribution Date, (i) the Servicer shall deposit all interest and other
income (net of losses and investment expenses) on deposit in the Collection
Account and Payahead Account as specified in Section 4.1(a) and (b) and (ii)
MBCC shall deposit Excess Amounts as specified in Section 4.7(f); provided,
however, that the aggregate amount to be deposited in the Class A Reserve Fund
on any Distribu-
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tion Date pursuant to this Section 4.7(g) shall not exceed the aggregate
Shortfall Amounts for the related Collection Period.
SECTION 4.8. Net Deposits. As an administrative convenience, the
Seller, the Servicer, the Payahead Agent, the Class A Agent and the Class B
Agent may make any remittance pursuant to this Article IV with respect to a
Collection Period net of distributions to be made to the Seller, the Servicer,
the Payahead Agent, the Class A Agent or the Class B Agent with respect to such
Collection Period. Nonetheless, each such party shall account for all of the
above described remittances and distributions as if the amounts were deposited
and/or transferred separately.
SECTION 4.9. Statements to Class A Certificateholders and Class B
Certificateholders. (a) On each Distribution Date, the Trustee shall include
with each distribution to each Class A Certificateholder and Class B
Certificateholder of record, a statement, prepared by the Servicer, based on
information in the Servicer's Certificate furnished pursuant to Section 3.9,
setting forth for the Collection Period relating to such Distribution Date the
following information:
(i) the amount of the distribution to Class A
Certificateholders and Class B Certificateholders, respectively, allocable
to principal;
(ii) the amount of the distribution to Class A
Certificateholders and Class B Certificateholders, respectively, allocable
to interest;
(iii) the amount of the Servicing Fee and Supplemental
Servicing Fee paid to the Servicer with respect to the related Collection
Period and the Certificateholders' Class A Percentage or Class B
Percentage, as applicable, of the Servicing Fee and Supplemental Servicing
Fee;
(iv) the Class A Principal Balance, the Class A Pool
Factor, the Class B Pool Factor, and the Class B Principal Balance as of
such Distribution Date, after giving effect to payments
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allocated to principal reported under clause (i) above;
(v) the Pool Balance as of the close of business on
the last day of the preceding Collection Period;
(vi) the amount of the Class A Interest Carryover
Shortfall, Class A Principal Carryover Shortfall, Class B Interest
Carryover Shortfall, and Class B Principal Carryover Short- fall, if any,
for such Distribution Date;
(vii) the amount, if any, otherwise distributable to
the Seller that is distributed to Class A Certificateholders and/or Class
B Certificateholders on such Distribution Date;
(viii) the balance of the Class A Reserve Fund
Property and Class B Reserve Fund Property on such Distribution Date,
after giving effect to changes therein on such Distribution Date; and
(ix) the aggregate Purchase Amount of Receivables
repurchased by the Seller or purchased by the Servicer.
Each amount set forth pursuant to clauses (i), (ii), (iii) and (vii) above shall
be expressed in the aggregate and as a dollar amount per $1,000 of original
denomination of the Certificates.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to the Servicer a report stating each Person
that shall have been a Class A Certificateholder or Class B Certificateholder
during any portion of the preceding calendar year and the period of such
portion, and within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the Servicer shall
furnish a report or reports to the Trustee and the Trustee shall furnish, or
cause to be furnished, to each Person who at any time during such calendar year
shall have been a Class A Certificateholder or Class B Certificateholder, such
report as to the sum of the amounts determined in clauses (i), (ii), (iii) and
(vii)
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above for such calendar year, or, in the event such Person shall have been a
Class A Certificateholder or Class B Certificateholder during a portion of such
calendar year, for the applicable portion of such year, and such other
information as is available to the Servicer as the Servicer deems necessary or
desirable to enable the Class A Certificateholders and Class B
Certificateholders to prepare their federal income tax returns.
SECTION 4.10. Delivery of Eligible Investments. Each Investment
Agent agrees that with respect to Eligible Investments credited to any Account:
(A) Any Eligible Investment that is held in
deposit accounts shall be held solely in the name of such Investment
Agent at one or more depository institutions having the Required
Rating. Each such deposit account shall be subject to the exclusive
custody and control of such Investment Agent, and such Investment
Agent shall have sole signature authority with respect thereto.
(B) Any Eligible Investment that constitutes
Physical Property shall be delivered to such Investment Agent in
accordance with paragraph (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by such
Investment Agent or a financial intermediary (as such term is
defined in Section 8-313(4) of the UCC) acting solely for such
Investment Agent.
(C) Any Eligible Investment that is a book entry
security held through the Federal Reserve System pursuant to federal
book entry regulations shall be delivered in accordance with
paragraph (b) of the definition of "Delivery" and shall be
maintained by such Investment Agent or its nominee, pending maturity
or disposition, through continued book entry registration of such
Eligible Investment as described in such paragraph.
(D) Any Eligible Investment that is an
"uncertificated security" under Article VIII of the UCC and that is
not gov-
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erned by clause (C) above shall be delivered to such Investment
Agent or its nominee in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by such Investment
Agent or its nominee, pending maturity or disposition, through
continued registration of such Investment Agent's (or its nominee's)
ownership of such security.
(E) Property of a type which is not capable of
being delivered to such Investment Agent in accordance with the
definition of "Delivery" shall not constitute an Eligible
Investment.
Effective upon Delivery of any Eligible Investment in the form of
Physical Property, book entry securities, or uncertificated securities, such
Investment Agent shall be deemed to have represented that it has purchased such
Eligible Investment for value, in good faith, and without notice of any adverse
claim thereto.
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ARTICLE V
Reserved
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ARTICLE VI
The Certificates
SECTION 6.1. The Certificates. The Trustee shall, upon written order
or request signed in the name of the Seller by one of its officers authorized to
do so and delivered to an Authorized Officer of the Trustee, execute on behalf
of the Trust, authenticate and deliver the Certificates to or upon the order of
the Seller in the aggregate principal amount and denominations as set forth in
such written order or request. The Class A Certificates and Class B Certificates
(if sold pursuant to an effective registration statement under the Act) shall be
issuable in minimum denominations of $1,000 and integral multiples thereof and
the Class B Certificates shall (unless issued in minimum denominations of $1,000
as set forth above) be issuable in minimum denominations of $100,000 or in any
amount in excess thereof; provided, however, that one Class A Certificate and
one Class B Certificate may be issued in a denomination that represents the
residual amount of the Original Class A Principal Balance and the Original Class
B Principal Balance, respectively (each, a "Residual Certificate"). Upon initial
issuance, the Class A Certificates and the Class B Certificates shall be
substantially in the form of Exhibit A and Exhibit B, respectively, in an
aggregate amount equal to the Original Class A Principal Balance and the
Original Class B Principal Balance, respectively. The Certificates shall be
executed by the Trustee on behalf of the Trust by manual or facsimile signature
of an Authorized Officer of the Trustee under the Trustee's seal imprinted
thereon and attested by the manual or facsimile signature of an Authorized
Officer of the Trustee. Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be valid and binding
obligations of the Trustee, notwithstanding that such individuals shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
SECTION 6.2. Authentication of Certificates. No Certificate shall
entitle the Holder thereof to any benefit under this Agreement, or shall be
valid for any purpose, unless there shall appear on such Certificate a
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certificate of authentication, substantially in the form set forth in the forms
of Certificates attached hereto as Exhibit A and Exhibit B, executed by the
Trustee by manual signature. Such authentication shall constitute conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
SECTION 6.3. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 6.7, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee shall be the
initial Certificate Registrar.
(b) The Class B Certificates shall initially be retained by the
Seller. No transfer of a Class B Certificate shall be made unless the
registration requirements of the Act and any applicable state securities laws
are complied with, or such transfer is exempt from the registration requirements
under said Act and laws. Neither the Seller nor the Trustee is under an
obligation to register any of the Class B Certificates under the Act or any
other securities law.
(c) No registration of transfer of a Class B Certificate shall be
made (i) unless the registration requirements of the Act and any applicable
state securities laws are complied with; (ii) unless such transfer is made
pursuant to an exemption from the registration requirements of the Act and any
applicable state securities laws and the Class B Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee each
certifies in writing to the Seller and the Trustee the facts surrounding such
transfer and provides both the Seller and the Trustee with a written Opinion of
Counsel in form and substance satisfactory to the Seller and the Trustee that
such transfer may be made pursuant to an exemption from said Act or laws, which
Opinion of Counsel shall not be an expense of the Seller or the Trustee; or
(iii) until the Certificate Registrar shall have received a transfer certificate
in the form of Exhibit G-1 hereto signed by the transferor
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of such Certificate and either (x) if the transfer is being made to a QIB in
reliance on Rule 144A, a representation letter in the form of Exhibit G-2 hereto
signed by the purchaser of such Certificate, (y) if the transfer is being made
to an Accredited Investor, a representation letter in the form of Exhibit G-3
hereto signed by the purchaser of such Certificate or (z) if the transfer is
being made pursuant to Regulation S, a representation letter in the form of
Exhibit G-4 hereto signed by the purchaser of such Certificate, and such
certifications, legal opinions and other information as the Certificate
Registrar may reasonably require to confirm that the proposed transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act, in each case acceptable to and in form
satisfactory to the Certificate Registrar and upon which it may conclusively
rely. Each Class B Certificate issued in connection with a registration of
transfer or exchange of such Certificate on or after the date of this Agreement
shall bear a legend in the form of Exhibit G-5 hereto.
(d) Notwithstanding anything to the contrary contained herein, in no
event shall a Class B Certificate or any interest therein be transferred to a
U.S. Person (within the meaning of Regulation S under the Act) unless the
prospective transferee shall have provided to the Seller and the Certificate
Registrar either (i) a certification in the form of Exhibit G-2 or Exhibit G-3,
as applicable, hereto, or (ii) an Opinion of Counsel (which may be internal
counsel), reasonably satisfactory to the Certificate Registrar, from the
prospective transferee of such Class B Certificate that either no "prohibited
transaction" under ERISA or the Code will occur in connection with such
prospective transferee's acquisition and holding of the Class B Certificate or
that the acquisition and holding of the Class B Certificate by such prospective
transferee is subject to a statutory or administrative exemption, specified in
such Opinion of Counsel, from the "prohibited transaction" provisions of ERISA
and the Code. The Certificate Registrar shall have no responsibility for
monitoring compliance with the preceding sentence at any time when the Class B
Certificates are evidenced by Book Entry Certificates. Any such Opinion of
Counsel shall be obtained at the expense of the prospective transferor or
transferee, and not at the expense of the Seller, the Trustee, the Servicer or
the
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Certificate Registrar, and shall be delivered to the Seller and the Certificate
Registrar prior to or contemporaneously with any such transfer. In addition, no
transfer of a Class B Certificate will be permitted if the Certificate Registrar
makes a good faith determination that, as a result of such transfer, 25% or more
in principal amount of the Class B Certificates would be held by benefit plan
investors, and such restriction on transfer may be included as an assumption on
which an Opinion of Counsel relating to "prohibited transactions" is based. For
purposes of the immediately preceding sentence, in determining the total
principal amount of Class B Certificates, any Class B Certificates held by a
Person (other than a benefit plan investor) who has discretionary authority or
control with respect to the assets of the Trust or any Person who provides
investment advice for a fee (direct or indirect) with respect to such assets, or
an affiliate of such a Person, shall be disregarded.
(e) The initial transfer of any Class B Certificate shall not be
made unless the Seller shall have given the Rating Agencies and the Trustee
prior written notice of such proposed transfer, and the Rating Agencies shall
have notified the Seller and the Trustee, in writing, that such proposed
transfer will not result in the qualification, downgrading or withdrawal of the
ratings then assigned to the Class A Certificates by the Rating Agencies.
(f) Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee shall execute, authenticate, and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Trustee. At the option of a Holder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged at
the Corporate Trust Office.
(g) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder thereof or his attorney duly
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authorized in writing. Each Certificate surrendered for registration of transfer
and exchange shall be cancelled and subsequently disposed of by the Trustee.
(h) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
SECTION 6.4. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss, or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Trustee such security or
indemnity as may be required to save each of them harmless, then in the absence
of notice that such Certificate shall have been acquired by a bona fide
purchaser, the Trustee on behalf of the Trust shall execute, and the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost, or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 6.4, the Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
herewith. Any replacement Certificate issued pursuant to this Section 6.4 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen, or destroyed Certificate shall be found
at any time.
SECTION 6.5. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Certificate Registrar
and any of their respective agents may treat the Person in whose name any
Certificate shall be registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 4.6 and for all other purposes
whatsoever, and the Trustee, the Certificate Registrar and any of their
respective agents shall not be bound by any notice to the contrary.
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SECTION 6.6. Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the Servicer,
within fifteen days after receipt by the Trustee of a request therefor from the
Servicer in writing, in such form as the Servicer may reasonably require, a list
of the names and addresses of the Certificateholders as of the most recent
Record Date. If three or more Certificateholders of either Class, or one or more
Holders of Class A Certificates aggregating not less than 25% of the Class A
Principal Balance, or Holders of Class B Certificates aggregating not less than
25% of the Class B Principal Balance, apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other
Certificateholders of such Class with respect to their rights under this
Agreement or under the Certificates and such application shall be accompanied by
a copy of the communication that such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such application,
request from the Clearing Agency and make available to such Certificateholders
when received from the Clearing Agency and during normal business hours, access
to the current list of Certificateholders and Clearing Agency Participants with
respect to such Class. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed to hold neither the Seller, the
Servicer nor the Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 6.7. Maintenance of Office or Agency. The Trustee shall
maintain, or cause to be maintained, at its expense, in New York, New York, an
office or agency where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Certificates and this Agreement may be served. The Trustee
initially designates the Corporate Trust Office as its office for such purposes.
The Trustee shall give prompt written notice to the Servicer and to
Certificateholders of any change in the location of any such office or agency.
SECTION 6.8. Book Entry Certificates. The Class A Certificates will,
upon original issuance, be issued in book entry form. The Class B Certificates
will, upon original issuance, be issued to the Seller in
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the form of a single Definitive Certificate. Such Definitive Certificate may be
exchanged for Book Entry Certificates if the Class B Certificates are issued (x)
publicly, (y) in reliance on Rule 144A, or (z) otherwise, at the option of the
Seller in accordance with the rules of the applicable Clearing Agency; provided,
however, that the Residual Certificate of each Class will be issued as a
Definitive Certificate. Such Book Entry Certificates will be issued in the form
of typewritten Class A Certificates and Class B Certificates representing the
Book Entry Certificates of such Class, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Seller. The Class
A Certificates and Class B Certificates delivered to The Depository Trust
Company shall initially be registered on the Certificate Register in the name of
Cede & Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a definitive certificate representing such Certificate Owner's
interest in the Class A Certificates and/or Class B Certificates, except as
provided in Section 6.10. Unless and until definitive, fully registered Class A
Certificates have been issued to Class A Certificate Owners and following the
issuance of Book Entry Certificates representing the Class B Certificates,
unless and until definitive, fully registered Class B Certificates have been
issued to Class B Certificate Owners pursuant to Section 6.10:
(i) the provisions of this Section 6.8 shall be in
full force and effect;
(ii) the Seller, the Servicer, the Certificate
Registrar, and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the relevant
Certificates) as the authorized representative of such Certificate Owners;
(iii) to the extent that the provisions of this
Section 6.8 conflict with any other provisions of this Agreement, the
provisions of this Section 6.8 shall control;
(iv) the rights of such Certificate Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certifi-
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cate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.10, the initial
Clearing Agency will make book entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the relevant Certificates to such Clearing Agency
Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of Holders of
Class A Certificates and/or Class B Certificates evidencing a specified
percentage of the Class A Principal Balance and the Class B Principal
Balance, respectively, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in Class A Certificates and/or Class B Certificates,
as relevant, and has delivered such instructions to the Trustee.
SECTION 6.9. Notices to Clearing Agency. Whenever notice or other
communication to the Class A Certificateholders or, following the issuance of
Book Entry Certificates representing the Class B Certificates, the Class B
Certificateholders is required under this Agreement, other than to the Holder of
the Residual Certificate, unless and until Definitive Certificates shall have
been issued to Certificate Owners pursuant to Section 6.10, the Trustee and the
Servicer shall give such notice or other communication to the Clearing Agency.
SECTION 6.10. Definitive Certificates. If (i)(A) the Seller advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the Depository Agreement and (B)
the Trustee or the Seller is unable to locate a qualified successor, (ii) the
Seller at its option, advises the Trustee in writing that it elects to terminate
the book entry system through the Clearing Agency, or (iii) after the occurrence
of an Event of
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Servicing Termination, Certificate Owners representing beneficial interests
aggregating not less than a majority of the aggregate outstanding Class A
Principal Balance with respect to the Class A Certificates or, if the Class B
Certificates are then Book Entry Certificates, Certificates Owners representing
beneficial interests aggregating not less than a majority of the aggregate
outstanding Class B Principal Balance with respect to the Class B Certificates,
advise the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book entry system through the
Clearing Agency is no longer in the best interests of such Certificate Owners,
then the Trustee shall notify the Clearing Agency and request that the Clearing
Agency notify all Certificate Owners of the relevant Class of the occurrence of
any such event and of the availability of Definitive Certificates to Certificate
Owners of such Class requesting the same and that the Record Date for such
Definitive Certificates for any Distribution Date subsequent to the issuance of
such Definitive Certificates will be the last day of the Collection Period
immediately preceding the month in which such Distribution Date occurs. Upon
surrender to the Trustee of the Class A Certificates or the Class B Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Trustee shall issue the Definitive
Certificates and deliver such Definitive Certificates in accordance with the
instructions of the Clearing Agency. Neither the Seller, the Certificate
Registrar nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Trustee
shall recognize the registered Holders of the Definitive Certificates as
Certificateholders hereunder. Neither the Trustee nor the Seller shall be liable
if the Trustee or the Seller is unable to locate a qualified successor Clearing
Agency. None of the Seller, the Servicer or the Trustee will have any liability
for any aspect of the records relating to or payment made on account of
beneficial ownership interests of the Class A Certificates or Class B
Certificates held by Cede & Co., as nominee of The Depository Trust Company, or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
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ARTICLE VII
The Seller
SECTION 7.1. Representations and Warranties of Seller. The Seller
makes the following representations and warranties on which the Trustee is
relying in accepting the Receivables and the other Trust Property in trust and
in executing and authenticating the Certificates. The representations and
warranties speak as of the execution and delivery of this Agreement and shall
survive the sale of the Receivables and the other Trust Property to the Trustee:
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties shall be
currently owned and such business is currently conducted, and had at all
relevant times, and has, power, authority, and legal right to acquire and
own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications, except where the failure of the Seller to so qualify or
obtain such licenses or approvals would not have a material adverse effect
on the Seller, the Trust or any Receivable.
(iii) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms. The Seller
has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust as Trust Property and has
duly authorized such sale and assignment to the Trust by all necessary
corporate action; and the execution, delivery, and performance of this
Agreement have been duly authorized by the Seller by all necessary
corporate action.
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(iv) Valid Sale; Binding Obligation. This Agreement effects a valid
sale, transfer, and assignment of the Receivables and the other Trust
Property conveyed by the Seller to the Trust hereunder, enforceable
against creditors of and purchasers from the Seller; and this Agreement
constitutes a legal, valid, and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles.
(v) No Violation. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or bylaws of the Seller, or conflict
with, or breach any of the terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which the Seller
is a party or by which the Seller is bound or any of its properties are
subject, or result in the creation or imposition of any lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than this Agreement),
or violate any law, order, rule, or regulation, applicable to the Seller
or its properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of the Seller, threatened, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties: (a)
asserting the invalidity of this Agreement or the Certificates, (b)
seeking to prevent the issuance of the
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Certificates or the consummation of any of the transactions contemplated
by this Agreement, (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement or
the Certificates, or (d) that may adversely affect the federal or state
income, excise franchise or similar tax attributes of the Certificates.
SECTION 7.2. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(i) The Seller shall indemnify and hold harmless the Trustee
and the Trust from and against any taxes that may at any time be asserted
against the Trustee or the Trust with respect to, and as of the date of,
the sale of the Receivables to the Trust or the issuance and original sale
of the Certificates, including any sales, gross receipts, general
corporation, tangible personal property, privilege, or license taxes (but,
in the case of the Trust, not including any taxes asserted with respect to
ownership of the Receivables or income, franchise or other taxes measured
by net income, arising out of distributions on the Certificates or any
other transactions contemplated by this Agreement) and costs and expenses
in defending against the same.
(ii) The Seller shall indemnify and hold harmless the Trustee
from and against any loss, liability, or expense incurred by reason of (a)
the Seller's willful misfeasance, bad faith, or negligence (other than
errors in judgment) in the performance of its duties under this Agreement,
and (b) the Seller's violation of federal or state securities laws in
connection with the registration or the sale of the Certificates.
Notwithstanding the foregoing, such indemnification shall not extend
to any credit losses on any Receivables.
Indemnification under this Section 7.2 shall survive the termination
of this Agreement and shall
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include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Seller shall have made any indemnity payment to
the Trustee pursuant to this Section and the Trustee thereafter shall collect
any of such amounts from others, the Trustee shall repay such amounts to the
Seller, without interest (except to the extent such amounts from others include
interest).
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Seller shall be a party or (iii) that may succeed by purchase and
assumption to all or substantially all of the business of the Seller, which
Person in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement, will be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement; provided, however, that (x) the Seller shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such merger, conversion, consolidation or succession and such agreement of
assumption comply with this Section 7.3, and (y) the Seller shall have delivered
to the Trustee an Opinion of Counsel either (A) stating that, in the opinion of
such Counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary to fully
preserve and protect the interest of the Trustee in the Receivables and the
other Trust Property, and reciting the details of such filings, or (B) stating
that, in the opinion of such Counsel, no such action shall be necessary to fully
preserve and protect such interest. The Seller shall provide notice of any
merger, conversion, consolidation, or succession pursuant to this Section 7.3,
any amendment to the Articles of Incorporation of the Seller or of the issuance
of any other securities by the Seller to the Rating Agencies. Notwithstanding
anything herein to the contrary, the execution of the foregoing agreement of
assumption and compliance with clauses (x) or (y) above shall be conditions to
the consummation of the transactions referred to in clauses (i), (ii), or (iii)
above.
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SECTION 7.4. Limitation on Liability of Seller. The Seller may rely
and shall be protected in acting or refraining from acting upon any resolution,
certificate of auditors or accountants or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, note or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties. The Seller
shall not be under any obligation to appear in, prosecute, or defend any legal
action that shall not be incidental to its obligations under this Agreement, and
that in its reasonable judgment may involve it in any expense or liability.
SECTION 7.5. Seller May Own Certificates. The Seller, and any
Affiliate of the Seller, may in its individual or any other capacity become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Seller or an Affiliate thereof, except as otherwise provided in the
definition of "Certificateholder", "Class A Certificateholder" and "Class B
Certificateholder" in Section 1.1. Except as set forth herein, Certificates so
owned by or pledged to the Seller or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates.
SECTION 7.6. Limitation on Incurrence of Indebtedness. The Seller
shall not incur any indebtedness in accordance with Section 8(ii)(D) of the
Seller's Certificate of Incorporation unless the Seller shall have received
confirmation in writing from the Rating Agencies prior to the incurrence of such
debt that the incurrence of such debt will not result in a lowering of or a
withdrawal of the then current rating of the Class A Certificates and, if then
rated, the Class B Certificates.
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ARTICLE VIII
The Servicer
SECTION 8.1. Representations and Warranties of Servicer. The
Servicer makes the following representations and warranties on which the Trustee
is relying in accepting the Receivables and the other Trust Property in trust
and in executing and authenticating the Certificates. The representations and
warranties speak as of the execution and delivery of this Agreement and shall
survive the sale of the Receivables and the other Trust Property to the Trustee:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation in good standing under
the laws of the state of its incorporation, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and has, power, authority, and legal right to service the
Receivables and to hold the Receivable Files as custodian on behalf of the
Trustee.
(ii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including
the servicing of the Receivables as required by this Agreement) shall
require such qualifications, except where the failure of the Servicer so
to qualify or obtain such licenses or approvals would not have a material
adverse effect on the Servicer, the Trust or any Receivable.
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this Agreement have
been duly authorized by the Servicer by all necessary corporate action.
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(iv) Binding Obligation. This Agreement constitutes a legal,
valid, and binding obligation of the Servicer, enforceable against the
Servicer in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
(v) No Violation. The execution, delivery and performance by
the Servicer of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or bylaws of the Servicer, or conflict
with, or breach any of the terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which the Servicer is bound or to which any of
its properties are subject, or result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement), or violate any law, order, rule, or regulation
applicable to the Servicer or its properties of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or any of its
properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Servicer's knowledge, threatened,
before any court, regulatory body, administrative agency, or tribunal or
other governmental instrumentality having jurisdiction over the Servicer
or its properties: (a) asserting the invalidity of this Agreement or the
Certificates, (b) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this
Agreement, (c) seeking any determination or ruling that might
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materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement or
the Certificates, or (d) that may adversely affect the federal or state
income, excise, franchise or similar tax attributes of the Certificates.
SECTION 8.2. Liability of Servicer; Indemnities. The Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement.
(i) The Servicer shall defend, indemnify and hold harmless the
Trustee, the Trust, and the Certificateholders from and against any and
all costs, expenses, losses, damages, claims, and liabilities, arising out
of or resulting from the use, ownership, or operation by the Servicer or
any Affiliate thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend and hold harmless
the Trustee and the Trust from and against any taxes that may at any time
be asserted against the Trustee or the Trust with respect to the
transactions contemplated herein including, without limitation, any sales,
gross receipts, general corporation, tangible personal property,
privilege, or license taxes (but, in the case of the Trust, not including
any taxes asserted with respect to, and as of the date of, the sale of the
Receivables to the Trust or the issuance and original sale of the
Certificates, or asserted with respect to ownership of the Receivables,
and in the case of the Trust and the Trustee, not including income,
franchise or other taxes measured by net income, arising out of
distributions on the Certificates, payment of any fees or any other
transactions contemplated by this Agreement) and costs and expenses in
defending against the same.
(iii) The Servicer shall indemnify, defend and hold harmless
the Trustee, the Trust, and the Certificateholders from and against any
and all costs, expenses, losses, claims, damages, and liabilities to the
extent that such cost, expense, loss, claim, damage, or liability arose
out of, or was imposed upon the Trustee, the Trust, or the Cer-
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tificateholders through, the negligence, willful misfeasance, or bad faith
of the Servicer in the performance of its duties under this Agreement.
(iv) The Servicer shall indemnify, defend, and hold harmless
the Trustee from and against all costs, expenses, losses, claims, damages,
and liabilities arising out of or incurred in connection with the
acceptance or performance of the trusts and duties contained herein except
to the extent that such cost, expense, loss, claim, damage, or liability:
(a) shall be due to the willful misfeasance, bad faith, or negligence of
the Trustee; (b) relates to any tax other than the taxes with respect to
which the Servicer shall be required to indemnify the Trustee; (c) shall
arise from the Trustee's breach of any of its representations or
warranties set forth in Section 10.14; (d) shall be one as to which the
Seller is required to indemnify the Trustee; or (e) shall arise out of or
be incurred in connection with the performance by the Trustee of the
duties of successor Servicer hereunder.
Notwithstanding the foregoing, such indemnification shall not extend
to any credit losses on any Receivables.
Indemnification under this Section 8.2 by any Person, with respect
to the period such Person was (or was deemed to be) the Servicer, shall survive
the termination of such Person as Servicer or a resignation by such Person as
Servicer as well as the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts to the Servicer, without interest (except to
the extent such amounts from others include interest).
SECTION 8.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Servicer shall be a party, or (iii) that may succeed by purchase and
assumption to all
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or substantially all of the business of the Servicer, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Servicer under this Agreement, will be the successor to the Servicer
under this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties to this Agreement; provided, however, that
(x) the Servicer shall have delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel each stating that such merger, conversion,
consolidation or succession and such agreement of assumption comply with this
Section 8.3, and (y) the Servicer shall have delivered to the Trustee an Opinion
of Counsel either (A) stating that, in the opinion of such Counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Trustee in the Receivables, and reciting the details of such
filings, or (B) stating that, in the opinion of such Counsel, no such action
shall be necessary to fully preserve and protect such interest. The Servicer
shall provide notice of any merger, conversion, consolidation or succession
pursuant to this Section 8.3 to the Rating Agencies. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement or assumption
and compliance with clauses (x) or (y) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), or (iii)
above.
SECTION 8.4. Limitation on Liability of Servicer. (a) The Servicer
may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate of auditors or accountants or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, appraisal, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute, or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect
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of this Agreement and the rights and duties of the parties to this Agreement and
the interests of the Certificateholders under this Agreement. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs, and liabilities of the Servicer.
SECTION 8.5. Servicer Not to Resign. Subject to the provisions of
Section 8.3, the Servicer shall not resign from its obligations and duties under
this Agreement except upon a determination that the performance of its duties is
no longer permissible under applicable law. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee.
SECTION 8.6. Servicer May Own Certificates. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner or pledgee of Certificates with the same rights as it would have if it
were not the Servicer or an Affiliate thereof, except as otherwise provided in
the definition of "Certificateholder", "Class A Certificateholder" and "Class B
Certificateholder" in Section 1.1. Except as set forth herein, Certificates so
owned by or pledged to the Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates.
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ARTICLE IX
Servicing Termination
SECTION 9.1. Events of Servicing Termination. (a) If any one of the
following events ("Events of Servicing Termination") shall occur and be
continuing:
(i) Any failure by the Servicer to deliver to the Trustee the
Servicer's Certificate for any Collection Period, which shall continue
beyond the earlier of three Business Days from the date such Servicer's
Certificate was due to be delivered and the related Distribution Date, or
any failure by the Servicer (or, for so long as the Servicer is an
Affiliate of the Seller, the Seller) to deliver to any of the Accounts any
proceeds or payment required to be so delivered under the terms of the
Certificates, the Shortfall Amount Agreement (so long as MBCC is the
Servicer) and this Agreement, which shall continue unremedied for a period
of five Business Days following the due date therefor (or, in the case of
a payment or deposit to be made no later than a Distribution Date, the
failure to make such payment or deposit by such Distribution Date); or
(ii) Any failure on the part of the Servicer (or, for so long as the
Servicer is an Affiliate of the Seller, the Seller) duly to observe or to
perform in any material respect any other covenants or agreements set
forth in the Certificates or in this Agreement, which failure shall (A)
materially and adversely affect the rights of Certificateholders and (B)
continue unremedied for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given (1) to the Servicer (or, for so long as the Servicer is an
affiliate of the Seller, the Seller) by the Trustee, or (2) to the Trustee
and the Servicer by the Holders of Certificates (excluding any
Certificates held by the Seller or any Affiliate of the Seller) evidencing
not less than 25% of the sum of the Class A Principal Balance and the
Class B Principal Balance (excluding any Certificates held by the Seller
or any Affiliate of the Seller); or
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(iii) The entry of a decree or order by a court or agency or
supervisory authority of competent jurisdiction for the appointment of a
conservator, receiver, liquidator or trustee for the Servicer in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings, or for the winding up or liquidation
of its affairs, and any such decree or order continues unstayed and in
effect for a period of 60 consecutive days; or
(iv) The consent by the Servicer to the appointment of a
conservator, receiver, liquidator or trustee in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the Servicer or relating to
substantially all of its property, the admission in writing by the
Servicer of its inability to pay its debts generally as they become due,
the filing by the Servicer of a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, the making by
the Servicer of an assignment for the benefit of its creditors or the
voluntary suspension by the Servicer of payment of its obligations; or
(v) The failure by the Servicer to be an Eligible Servicer;
then, and in each and every case and so long as such Event of Servicing
Termination shall not have been remedied, either the Trustee, or the Holders of
Certificates (excluding any Certificates held by the Seller or any Affiliate of
the Seller) evidencing not less than a majority of the sum of the Class A
Principal Balance and the Class B Principal Balance (excluding any Certificates
held by the Seller or any Affiliate of the Seller), by notice then given in
writing to the Servicer (with a copy to the Trustee if given by the
Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates or the Trust Property or otherwise,
shall pass to and be vested in the Trustee or a successor Servicer appointed
under Section 9.2; and without limitation the Trustee shall be authorized and
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empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivable Files, the certificates of title to the Financed
Vehicles, or otherwise. The Servicer shall cooperate with the Trustee or such
successor Servicer in effecting the termination of its responsibilities and
rights as Servicer under this Agreement, including the transfer to the Trustee
or such successor Servicer for administration of all cash amounts that are at
the time held by the Servicer for deposit, or thereafter shall be received with
respect to a Receivable, all Receivable Files and all information or documents
that the Trustee or such successor Servicer may require. In addition, the
Servicer shall transfer its electronic records relating to the Receivables to
the successor Servicer in such electronic form as the successor Servicer may
reasonably request and shall cooperate with the successor servicer in the
enforcement of the Dealer Agreements. All reasonable costs and expenses incurred
by the successor Servicer, including allowable compensation of employees and
overhead costs, in connection with the transfer of servicing shall be paid by
the outgoing Servicer upon presentation of reasonable documentation of such
costs and expenses.
(b) If any of the foregoing Events of Servicing Termination occurs,
the Trustee shall have no obligation to notify Certificateholders or any other
Person of such occurrence prior to the continuance of such event through the end
of any cure period specified in Section 9.1(a).
SECTION 9.2. Trustee to Act; Appointment of Successor Servicer. Upon
the Servicer's resignation pursuant to Section 8.5 or upon the Servicer's
receipt of notice of termination as Servicer pursuant to Section 9.1, the
Trustee shall be the successor in all respects to the Servicer in its capacity
as Servicer under this Agreement, and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of this Agreement. In the ordinary course of
business, the Trustee and any other Person, in either case acting as successor
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Servicer, may at any time delegate any of its duties hereunder to any Person,
including any of its affiliates, who agrees to conduct such duties in accordance
with standards comparable to those that the Servicer executes pursuant to
Section 3.1 hereof. Such delegation shall not relieve the Trustee and any other
Person, in either case acting as successor Servicer, of its liabilities and
responsibilities with respect to such duties and shall not constitute a
resignation within the meaning of Article VIII of the Agreement. The Trustee and
any other Person, in either case acting as successor Servicer, shall provide
each Rating Agency and the Trustee with written notice prior to the delegation
of any of its duties to any Person. As compensation therefor, the Trustee shall
be entitled to such compensation (whether payable out of the Collection Account
or otherwise) as the Servicer would have been entitled to under this Agreement
if no such notice of termination or resignation had been given. Notwithstanding
the above, the Trustee may, if it shall be unwilling so to act or shall, if it
is legally unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, an Eligible Servicer as the successor to the terminated
Servicer under this Agreement. In connection with such appointment, the Trustee
may make such arrangements for the compensation of such successor Servicer out
of payments on Receivables as it and such successor shall agree, which, in no
event, shall be greater than that payable to MBCC as Servicer hereunder. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. The Trustee
shall not be relieved of its duties as successor Servicer under this Section
until a newly appointed Servicer shall have assumed the responsibilities and
obligations of the terminated Servicer under this Agreement.
SECTION 9.3. Effect of Servicing Transfer. (a) After the transfer of
servicing hereunder, the Trustee or successor Servicer shall notify Obligors to
make directly to the successor Servicer payments that are due under the
Receivables after the effective date of such transfer.
(b) Except as provided in Section 8.2, after the transfer of
servicing hereunder, the outgoing Servicer shall have no further obligations
with respect
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to the management, administration, servicing, custody or collection of the
Receivables and the successor Servicer shall have all of such obligations,
except that the outgoing Servicer shall continue to cooperate with the successor
Servicer as provided in Section 9.1(a).
(c) Any successor Servicer shall provide the Seller with access to
the Receivable Files and to the successor Servicer's records (whether written or
automated) with respect to the Receivable Files. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the successor Servicer. Nothing in this Section shall
affect the obligation of the successor Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors, and the failure of
the Servicer to provide access to information as a result of such obligation
shall not constitute a breach of this Section.
SECTION 9.4. Notification to Certificateholders. Upon any notice of
an Event of Servicing Termination or upon any termination of, or appointment of
a successor to, the Servicer pursuant to this Article IX, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses of record, and to the Rating Agencies.
SECTION 9.5. Waiver of Past Events of Servicing Termination. The
Holders of Certificates evidencing not less than a majority of the sum of the
Class A Principal Balance and the Class B Principal Balance may, on behalf of
all Holders of Certificates, waive any Event of Servicing Termination hereunder
and its consequences, except an event resulting from the failure to make any
required deposits to, or payments from, any of the Accounts in accordance with
this Agreement. Upon any such waiver of a past Event of Servicing Termination,
such event shall cease to exist, and shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other event or impair any right arising therefrom, except to the extent
expressly so waived.
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ARTICLE X
The Trustee
SECTION 10.1. Duties of Trustee. (a) The Trustee, both prior to and
after the curing of an Event of Servicing Termination, undertakes to perform
only such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee.
If an Event of Servicing Termination shall have occurred and shall not have been
cured, the Trustee shall exercise such of the rights and powers vested in it by
this Agreement, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs; provided, however, that if the Trustee assumes the
duties of the Servicer pursuant to Section 9.2, the Trustee in performing such
duties shall use the degree of skill and attention required by Section 3.1.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments furnished
to the Trustee that are required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Servicing Termination,
and after the curing of all such Events of Servicing Termination that may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee, the permissible right of the Trustee (solely in its capacity as
such) to do things enumerated in this Agreement shall not be construed as
a duty and, in
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the absence of bad faith on the part of the Trustee, or manifest error,
the Trustee (solely in its capacity as such) may conclusively rely on the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by an officer of the Trustee, unless it shall
be proved that the Trustee shall have been negligent in performing its
duties in accordance with the terms of this Agreement; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered, or omitted to be taken in good faith in accordance
with the direction of the Holders of Class A Certificates and Class B
Certificates (excluding any Certificates held by the Seller or any
Affiliate of the Seller) evidencing not less than a majority of the sum of
the Class A Principal Balance and the Class B Principal Balance (excluding
any Certificates held by the Seller or any Affiliate of the Seller),
relating to the time, method and place of conducting any proceeding or any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that the repayment of such funds or
adequate indemnity against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Agreement
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement.
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(e) Except for actions expressly authorized by this Agreement, the
Trustee shall take no action reasonably likely to impair the security interests
created or existing under any Receivable or Financed Vehicle or to impair the
value of any Receivable or Financed Vehicle.
(f) All information obtained by the Trustee pursuant hereto, whether
upon the exercise of its rights under this Agreement or otherwise, shall be
maintained by the Trustee in confidence and shall not be disclosed to any other
Person or used, unless such disclosure or use is required by this Agreement or
any applicable law or regulation.
(g) The Trustee shall sign the federal and other income tax returns
of the Trust in accordance with Section 10.16.
SECTION 10.2. Trustee's Certificate. As soon as practicable after
each Distribution Date on which Receivables shall be assigned to the Seller
pursuant to Section 2.5 or to the Servicer pursuant to Section 3.2, 3.6 or 11.2,
as applicable, the Trustee shall execute a certificate, prepared by the
Servicer, including its date and the date of this Agreement, which shall be
accompanied by (i) a copy of the Servicer's certificate for the related
Collection Period and (ii) a certificate from the Servicer specifying each
Receivable so assigned on such Distribution Date. The Trustee's certificate
shall operate, as of such Distribution Date, as an assignment pursuant to
Section 10.3.
SECTION 10.3. Trustee's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to Section 2.5, or
purchased by the Servicer pursuant to Section 3.2, 3.6 or 11.2, the Trustee
shall assign, without recourse, representation, or warranty, to the Seller or
Servicer, as the case may be, all the Trustee's right, title, and interest in
and to such Receivables, and all security and documents and all other Trust
Property conveyed pursuant to Section 2.2 with respect to such Receivables. Such
assignment shall be a sale and assignment outright, and not for security. If, in
any enforcement suit or legal proceeding, it is held that the Seller or the
Servicer, as the case may be, may not enforce any such Purchased Receivable on
the ground that it shall not be a real party
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in interest or a holder entitled to enforce the Purchased Receivable, the
Trustee shall, at the expense of the Seller or the Servicer, as the case may be,
take such steps as the Seller or the Servicer, as the case may be, deems
necessary to enforce the Purchased Receivable, including bringing suit in the
Trustee's name or the names of the Certificateholders.
SECTION 10.4. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 10.1:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate of auditors or
accountants or any other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, appraisal, bond, note
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it under this Agreement, the
Shortfall Amount Agreement or the Servicing Guaranty Agreement, if any, in
good faith and in accordance with such Opinion of Counsel.
(iii) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or in relation to
this Agreement, at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses, and liabilities that
may be incurred therein or thereby. Nothing contained in this Agreement,
however, shall relieve the Trustee of the obligations, upon the occurrence
of an Event of Servicing Termination that is not timely cured or waived
pursuant to Section 9.5, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or
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use under the circumstances in the conduct of his own affairs.
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by
this Agreement.
(v) Prior to the occurrence of an Event of Servicing Termination and
after the curing of all Events of Servicing Termination that may have
occurred, the Trustee shall not be bound to make any investigation into
the facts of any matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, direction, order,
approval, bond, note or other paper or document, unless requested in
writing so to do by Holders of Class A Certificates and Class B
Certificates evidencing not less than a majority of the sum of the Class A
Principal Balance and the Class B Principal Balance; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses, or liabilities likely to be incurred by it in the making of an
investigation requested by the Certificateholders is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense, or liability as a
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Servicer, or, if paid by the Trustee,
shall be reimbursed by the Servicer upon demand. Nothing in this clause
(v) shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors.
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties under this Agreement either directly or by or
through agents, attorneys, nominees or a custodian, and shall not be
liable for the acts of such agents, attorneys, nominees or custodians
provided that they have been appointed with due care.
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(vii) The Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the
Receivables or Financed Vehicles for the purpose of establishing the
presence or absence of defects, the compliance by the Seller with its
representations and warranties or for any other purpose.
SECTION 10.5. Trustee Not Liable for Certificates or Receivables.
The Trustee shall make no representations as to the validity or sufficiency of
this Agreement or of the Certificates (other than the execution by the Trustee
on behalf of the Trust of, or the certificate of authentication on, the
Certificates), or of any Receivable or related documents. The Trustee shall have
no obligation to perform any of the duties of the Seller or the Servicer unless
explicitly set forth in this Agreement. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or any
Receivable, or the perfection and priority of such a security interest or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including without limitation, the
existence, condition, location and ownership of any Financed Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any Receivable or any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the compliance
by the Seller or the Servicer with any covenant or the breach by the Seller or
the Servicer of any representation or warranty made under this Agreement or in
any related document and the accuracy of any such representation or warranty
prior to the Trustee's receipt of notice or other discovery of any noncompliance
therewith or any breach thereof; any investment of monies by the Servicer or the
Seller or any loss resulting therefrom (it being understood that the Trustee
shall remain responsible for any Trust Property that it may hold); the acts or
omissions of the Seller, the Servicer or any Obligor; any action of the Servicer
taken in the name of or as the agent of the Trustee; or
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any action by the Trustee taken at the instruction of the Servicer; provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under this Agreement. Except with respect to a claim based on
the failure of the Trustee to perform its duties under this Agreement or based
on the Trustee's negligence or willful misconduct or bad faith, no recourse
shall be had for any claim based on any provision of this Agreement, the
Certificates or any Receivable or assignment thereof against the institution
serving as Trustee in its individual capacity. The Trustee shall not have any
personal obligation, liability or duty whatsoever to any Certificateholder or
any other Person with respect to any such claim, and any such claim shall be
asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided in this Agreement. The Trustee shall not be accountable for the use
or application by the Seller of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Servicer or any subservicer in respect of the Receivables. The Trustee shall
have no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder (unless the Trustee shall
have become the successor Servicer) or to prepare or file any Securities and
Exchange Commission filing for the Trust or to record this Agreement.
SECTION 10.6. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not Trustee.
SECTION 10.7. Trustee's Fees and Expenses. The Servicer agrees to
pay (or cause to be paid) to the Trustee, and the Trustee shall be entitled to,
compensation in an amount as separately agreed by the Trustee and the Servicer
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts created by this Agreement and in the exercise and
performance of any of the powers and duties under this Agreement as the Trustee,
and the Servicer shall pay or reimburse (or cause to be paid or reimbursed) the
Trustee upon its request for all reasonable expenses (including, without
limitation,
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expenses incurred in connection with notices or other communications to
Certificateholders) and disbursements (including the reasonable fees and the
reasonable expenses and disbursements of its outside counsel and of all persons
not regularly in its employ but excluding general overhead expenses) incurred or
made by the Trustee in accordance with any of the provisions of this Agreement,
the Shortfall Amount Agreement or the Servicing Guaranty Agreement, if any, or
in defense of any action brought against it in connection with this Agreement,
the Shortfall Amount Agreement or the Servicing Guaranty Agreement, if any,
except any such expense, disbursement, or advance as may arise from its
negligence, willful misfeasance, or bad faith. The provisions of this Section
10.7 shall survive the termination of this Agreement.
SECTION 10.8. Indemnity of Class A Agent, Class B Agent and Payahead
Agent. The Class A Agent, Class B Agent and the Payahead Agent shall be
indemnified by the Servicer and held harmless against any loss, liability, fee,
disbursement, or expense arising out of or incurred in connection with the
acceptance or performance of its duties contained in this Agreement except to
the extent that such loss, liability, fee, disbursement, or expense shall have
been incurred by reason of the Class A Agent's, Class B Agent's or Payahead
Agent's willful misfeasance, bad faith or negligence; provided, however, that
notwithstanding the foregoing, the Class A Agent, the Class B Agent and the
Payahead Agent shall be entitled to indemnification pursuant to this Section
10.8 with respect to any actions of the Class A Agent, Class B Agent and the
Payahead Agent taken in accordance with the written instructions of the Servicer
or of the Trustee.
SECTION 10.9. Eligibility Requirements for Trustee. The Trustee
under this Agreement shall at all times have an office in the same state as the
Corporate Trust Office is located on the date of this Agreement. The Trustee
shall be duly organized, validly existing and doing business under the banking
laws of such state or of the United States of America, shall be authorized under
such laws to exercise corporate trust powers, shall have a combined capital and
surplus of at least $50,000,000, and shall be subject to supervision or
examination by federal or state banking authorities. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the afore-
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said supervising or examining authority, then for the purpose of this Section
10.9, the combined capital and surplus of such corporation shall be deemed to be
its combined consolidated capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 10.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
10.10.
SECTION 10.10. Resignation or Removal of Trustee. (a) The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving 30 days' prior written notice thereof to the Servicer. Upon receiving
such notice of resignation, the Servicer shall promptly appoint a successor
Trustee, by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.9 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver, conservator or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Servicer may remove the Trustee. If the Trustee is removed
under the authority of the immediately preceding sentence, the Servicer shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee and shall promptly pay all fees owed to the
outgoing Trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 10.10 shall
not become effective until acceptance of appointment by the succes-
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sor Trustee pursuant to Section 10.11 and payment of all fees and expenses owed
and any other amounts due hereunder to the outgoing Trustee. The Servicer shall
provide notice of such resignation or removal of the Trustee to the Rating
Agencies.
SECTION 10.11. Successor Trustee. (a) Any successor Trustee
appointed pursuant to Section 10.10 shall execute, acknowledge, and deliver to
the Servicer and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
rights, powers, duties, and obligations of its predecessor under this Agreement,
with like effect as if originally named as Trustee. The predecessor Trustee
shall, upon payment of its fees and expenses and any other amounts due it
hereunder, deliver to the successor Trustee all documents and statements held by
it under this Agreement, and the Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Trustee all such rights, powers, duties, and obligations.
(b) No successor Trustee shall accept appointment as provided in
this Section 10.11 unless at the time of such acceptance such successor Trustee
shall be eligible pursuant to Section 10.9.
(c) Upon acceptance of appointment by a successor Trustee pursuant
to this Section 10.11, the Servicer shall mail notice of such acceptance by the
successor Trustee under this Agreement to all Certificateholders at their
respective addresses as shown in the Certificate Register. If the Servicer shall
fail to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
SECTION 10.12. Merger or Consolidation of Trustee. Any corporation
or banking association which is eligible to be a successor Trustee under Section
10.9 (i) into which the Trustee may be merged or consolidated,
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(ii) that may result from any merger, conversion, or consolidation to which the
Trustee shall be a party, or (iii) that may succeed to all or substantially all
of the corporate trust business of the Trustee, which corporation or banking
association executes an agreement of assumption to perform every obligation of
the Trustee under this Agreement, shall be the successor of the Trustee
hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee shall promptly notify the Servicer and the Rating
Agencies of any such merger, conversion, consolidation or succession.
SECTION 10.13. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property or any Financed Vehicle may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Certificateholders, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section 10.13, such powers, duties, obligations, rights, and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Servicing Termination shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 10.9 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.11.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
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(i) All rights, powers, duties, and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee, is not authorized to
act separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee under this Agreement or as
successor to the Servicer under this Agreement), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties, and obligations (including the holding of
title to the Trust Property or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee.
(ii) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement.
(iii) The Servicer and the Trustee acting jointly (or during the
continuation of an Event of Servicing Termination, the Trustee alone) may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
in particular to the provisions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Each such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer.
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(d) Any separate trustee or co-trustee may, at any time, appoint the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 10.14. Representations and Warranties of Trustee. The
Trustee makes the following representations and warranties on which the Seller
and Certificateholders may rely:
(i) Organization and Good Standing. The Trustee is duly organized,
validly existing, and in good standing under the laws of the jurisdiction
of its incorporation;
(ii) Power and Authority. The Trustee has full power, authority and
legal right to execute, deliver, and perform this Agreement and has taken
all necessary action to authorize the execution, delivery, and performance
by it of this Agreement; and
(iii) Enforceability. This Agreement has been duly executed and
delivered by the Trustee and this Agreement constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
SECTION 10.15. Reports by Trustee. The Trustee shall provide to
any Certificateholder or Certificate Owner who so requests in writing (addressed
to the Corporate Trust Office) a copy of any Servicer's Certificate, the
annual statement described in Section 3.10, and the
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annual accountant's examination described in Section 3.11. The Trustee may
require any Certificateholder or Certificate Owner requesting such report to pay
a reasonable sum to cover the cost of the Trustee's complying with such request.
SECTION 10.16. Tax Returns. The Servicer shall prepare or shall
cause to be prepared any tax returns required to be filed by the Trust and shall
remit such returns to the Trustee for signature at least five days before such
returns are due to be filed. The Trustee, upon request, will furnish the
Servicer with all such information known to the Trustee as may be reasonably
required in connection with the preparation of all tax returns of the Trust, and
shall, upon request, execute such returns.
SECTION 10.17. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
SECTION 10.18. Suits for Enforcement. If an Event of Servicing
Termination shall occur and be continuing, the Trustee may, subject to the
provisions of Section 10.01, proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement by a suit, action, or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable, or other remedy as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Trustee or the Certificateholders.
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SECTION 10.19. Rights of Certificateholders to Direct Trustee.
Holders of Class A Certificates and Class B Certificates (excluding any
Certificates held by the Seller or any Affiliate of the Seller) evidencing not
less than a majority of the sum of the Class A Principal Balance and the Class B
Principal Balance (excluding any Certificates held by the Seller or any
Affiliate of the Seller) shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however, that,
subject to Section 10.1, the Trustee shall have the right to decline to follow
any such direction if the Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Trustee in good faith
shall, by an Authorized Officer, determine that the proceedings so directed
would be illegal or subject it to personal liability or be unduly prejudicial to
the rights of Certificateholders not parties to such direction; and provided
further that nothing in this Agreement shall impair the right of the Trustee to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction by the Certificateholders.
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ARTICLE XI
Termination
SECTION 11.1. Termination of the Trust. (a) The Trust and the
respective obligations and responsibilities of the Seller, the Servicer, the
Trustee, the Payahead Agent, the Class A Agent and the Class B Agent hereunder
shall terminate upon the earliest of: (i) the Distribution Date next succeeding
the purchase by the Servicer at its option, pursuant to Section 11.2, of the
Receivables remaining in the Trust, (ii) the payment to Certificateholders of
all amounts required to be paid to them pursuant to this Agreement and (iii) the
Distribution Date next succeeding the month which is six months after the
maturity or the liquidation of the last Receivable held in the Trust and the
distribution of all amounts received upon liquidation of any property remaining
in the Trust; provided, however, that in no event shall the Trust created by
this Agreement continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador to
the Court of St. James, living on the date of this Agreement. The Servicer shall
promptly notify the Trustee of any prospective termination pursuant to this
Section 11.1.
(b) Notice of any termination, specifying the Distribution Date upon
which the Certificateholders may surrender the Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders and the Rating Agencies mailed not
earlier than the 20th day and not later than the 25th day of the month next
preceding the specified Distribution Date (or, if such payment is to be made
from Scheduled Payments and the Trustee shall not have had prior actual
knowledge, promptly upon receipt of the Servicer's Certificate but in no event
later than three Business Days following receipt of such Servicer's Certificate
specifying that the final payment of principal with respect to the Certificates
will be made on the related Distribution Date) stating (i) the Distribution Date
upon which final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Trustee therein designated,
(ii) the amount of any such final payment, and (iii) if applicable, that the
Record
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Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office of the Trustee therein specified. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 4.6.
(c) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Servicer may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies and any other remedies required by law shall be distributed by the
Trustee to The Julliard Association, or a similar charitable organization
located or operating in the New York metropolitan area as specified by the
Servicer, whereupon the rights of the Certificateholders in any such funds shall
cease.
SECTION 11.2. Optional Purchase of All Receivables. (a) On each
Distribution Date following the last day of a Collection Period as to which the
Pool Balance shall be equal to or less than the Optional Purchase Percentage
multiplied by the Original Pool Balance, the Servicer shall have the option to
purchase the corpus of the Trust. To exercise such option, the Servicer shall
notify the Trustee no later than the twentieth day of the month immediately
preceding the month in which such repurchase is to be effected and shall deposit
an amount equal to the aggregate Purchase Amount for the Receivables into the
Collection Account on the Distribution Date occurring in the month in which such
repurchase is to be effected. Upon such payment the Servicer shall succeed to
and own all interests in and to the Trust and the Trust Property. The Purchase
Amount and any Short-
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fall Amounts for such Distribution Date, plus to the extent necessary all
amounts in the Reserve Funds, shall be used to make payments in full to
Certificateholders in the manner set forth in Article IV, except that following
distribution of all amounts payable to Class A Certificateholders and Class B
Certificateholders as provided in Article IV, all remaining available amounts
(including the amounts remaining in the Class A Reserve Fund and the Class B
Reserve Fund) shall be distributed to the Seller in payment of the Retained
Yield.
(b) Unless waived by Moody's, if at the time the Servicer exercises
its purchase option hereunder the Servicer's long-term unsecured debt has a
rating lower than Baa3 by Moody's, the Servicer shall deliver to the Trustee on
such Distribution Date an Opinion of Counsel to the effect that, based upon
certain assumptions with respect to the value of the Receivables and as to the
solvency of the Servicer, the purchase of the Receivables would not be
considered a fraudulent conveyance under applicable law.
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ARTICLE XII
Miscellaneous Provisions
SECTION 12.1. Amendment. (a) This Agreement may be amended by the
Seller, the Servicer, MBCC, the Trustee, the Class A Agent, the Class B Agent
and the Payahead Agent, and the Purchase Agreement may be amended by the Seller
and MBCC, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or the
Purchase Agreement, as applicable, which may be inconsistent with any other
provisions in this Agreement or the Purchase Agreement, as applicable, or to
add, change or eliminate any other provisions with respect to matters or
questions arising under this Agreement or the Purchase Agreement, as applicable,
that shall not be inconsistent with the provisions of this Agreement or the
Purchase Agreement, as applicable; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, materially and adversely affect the
interests of any Certificateholder. This Agreement and the Purchase Agreement
also may be amended by the Seller, the Servicer, the Trustee, the Class A Agent,
the Class B Agent and the Payahead Agent, and the Purchase Agreement may be
amended by the Seller and MBCC without the consent of any of the
Certificateholders, to provide for the transfer of the Class B Certificate;
provided, however, that the conditions specified in Section 6.3 shall be
satisfied prior to such transfer; provided, further, that such amendment shall
not change the timing of, or the amount of, any distributions that the Class A
Certificateholders are entitled to receive hereunder.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer, MBCC, the Trustee, the Class A Agent, the Class B Agent
and the Payahead Agent, and the Purchase Agreement may be amended by the Seller
and MBCC, with the consent of the Holders of Class A Certificates and Class B
Certificates, each voting as a Class (which consent of any Holder of a
Certificate given pursuant to this Section or pursuant to any other provision of
this Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate and of any Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon
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the Certificate), evidencing not less than a majority of the Class A and Class B
Principal Balance, respectively, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
the Purchase Agreement, as applicable, or of modifying in any manner the rights
of the Holders of Certificates; provided, however, that no such amendment shall
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Certificate or change the Pass-Through Rate or the
Specified Class A Reserve Balance, without the consent of the Holders of all
Certificates then outstanding, or change the Specified Class B Reserve Balance
without the consent of the Holders of all Class B Certificates then outstanding,
(b) reduce the aforesaid percentage required to consent to any such amendment,
without the consent of the Holders of all Certificates then outstanding or (c)
adversely affect the rating of the Class A Certificates by the Rating Agencies,
without the consent of Class A Certificateholders evidencing not less than
66 2/3% of the Class A Principal Balance or the rating, if any, of the Class B
Certificates by any rating agency then rating the Class B Certificates, without
the consent of Class B Certificateholders evidencing not less than 66 2/3% of
the Class B Principal Balance.
(c) Prior to the execution of any such amendment or consent, the
Servicer shall provide and the Trustee shall distribute written notification of
the substance of such amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders pursuant to this Section 12.1 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
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(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and will not cause the Trust to be classified as a partnership or as
an association taxable as a corporation for federal, Connecticut, Texas, and New
York tax purposes. The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement or otherwise.
SECTION 12.2. Protection of Title to Trust. (a) The Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the interest of the
Certificateholders and the Trustee in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee at least 60
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Trustee at least 60
days' prior written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement. The Servicer shall at all times
maintain each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
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(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
and Payahead Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the Trust,
the Servicer's master computer records (including any back-up archives) that
refer to a Receivable shall indicate clearly the interest of Daimler-Benz Auto
Grantor Trust 1997-A in such Receivable and that such Receivable is owned by the
Trust. Indication of the Trust's ownership of a Receivable shall be deleted from
or modified on the Servicer's computer systems when, and only when, the
Receivable shall have been paid in full or repurchased by the Seller or
purchased by the Servicer.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in any
automobile receivable to any prospective purchaser, lender, or other transferee,
the Servicer shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored from
back-up archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Trust unless such Receivable has been paid in full or repurchased
by the Seller or purchased by the Servicer.
(g) The Servicer shall permit the Trustee and its agents at any time
during normal business hours to inspect, audit, and make copies of and abstracts
from the Servicer's records regarding any Receivable, but, prior to the
occurrence of an Event of Servicing Termination or an event that with the
passage of time and delivery of notice would constitute an Event of Servicing
Termination, only to the extent that such activities do not disrupt the
Servicer's normal business operations and do
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not adversely affect the Servicer's ability to perform its obligations under
this Agreement.
(h) Upon request, the Servicer shall furnish to the Trustee, within
ten Business Days, a list of all Receivables (by contract number, vehicle
number, name and address of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee:
(1) promptly after the execution and delivery of
each amendment to any financing statement, an Opinion of Counsel either
(A) stating that, in the opinion of such Counsel, all financing statements
and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are given, or (B) stating
that, in the opinion of such Counsel, no such action shall be necessary to
preserve and protect such interest; and
(2) within 90 days after the beginning of each
calendar year beginning with the first calendar year beginning more than
three months after the Cutoff Date, an Opinion of Counsel, dated as of a
date during such 90-day period, either (A) stating that, in the opinion of
such Counsel, all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and protect
the interest of the Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such Counsel, no
such action shall be necessary to preserve and protect such interest.
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Each Opinion of Counsel referred to in clause (i)(1) or (i)(2) above
shall specify any action necessary (as of the date of such opinion) to be taken
in the following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934, as amended, within the time periods specified in such sections.
SECTION 12.3. Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties to
this Agreement or any of them.
(b) No Certificateholder shall have any right to vote (except as
specifically provided in this Agreement) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties to this
Agreement, nor shall anything in this Agreement set forth, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken pursuant to any provision of this Agreement.
(c) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, and unless also the
Holders of Certificates evidencing not less than a majority of the sum of the
Class A Principal Balance and the Class B Principal Balance shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee under this Agreement and shall have offered to the
Trustee such reasonable indemnity as
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it may require against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Trustee, for 30 days after its receipt of such
notice, request, and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and during such 30-day period, no
request or waiver inconsistent with such written request has been given to the
Trustee pursuant to this Section or Section 9.5; no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right, under this Agreement except in the manner provided in
this Agreement and for the equal, ratable, and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.3, each Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 12.4. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 12.5. Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, sent by courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller or the Servicer, to the agent for service as specified in
Section 12.14 hereof, or at such other address or facsimile number as shall be
designated by the Seller or the Servicer in a written notice to the Trustee, (b)
in the case of the Trustee, the Class A Agent, the Class B Agent or the Payahead
Agent at the Corporate Trust Office, facsimile number: (212) 480-1615; (c) in
the case of Moody's, at the following address: Moody's Investors Service,
Inc., ABS Monitoring Department, 99 Church Street, New York, New York 10007,
facsimile number: (212) 553-0355 and (d) in the case of S&P, at the following
address: Standard & Poor's Ratings Services, A Division of The McGraw-Hill
Companies, Inc., 25 Broadway, 20th Floor, New York, New
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York 10004, Attention: Asset Backed Surveillance Department, facsimile number:
(212) 412-0323. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder shall
receive such notice. Any notice to be delivered to the Rating Agencies hereunder
shall also be delivered to the Seller.
SECTION 12.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
SECTION 12.7. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.3 and 8.3 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Seller or the Servicer without the
prior written consent of the Trustee and the Holders of Class A and Class B
Certificates evidencing not less than 66-2/3% of the sum of the Class A
Principal Balance and the Class B Principal Balance.
SECTION 12.8. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Trustee pursuant to Section 6.2 or Section 6.3,
Certificates shall be deemed fully paid.
SECTION 12.9. Further Assurances. The Seller and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the
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Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 12.10. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
Certificateholders, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges therein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 12.11. Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the
Certificateholders, and their respective successors and permitted assigns.
Except as otherwise provided in this Article, no other person will have any
right or obligation hereunder.
SECTION 12.12. Actions by Certificateholders. (a) Wherever in this
Agreement a provision is made that an action may be taken or a notice, demand,
or instruction given by Certificateholders, such action, notice, or instruction
may be taken or given by any Certificateholder, unless such provision requires a
specific percentage of Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent,
waiver, or other act by a Certificateholder shall bind such Certificateholder
and every subsequent holder of such Certificate issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Trustee or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
SECTION 12.13. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
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counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 12.14. Agent for Service. The agent for service of the
Seller and the Servicer in respect of this Agreement shall be c/o Harvey S.
Traison, Daimler-Benz North America Corporation, 375 Park Avenue, Suite 3001,
New York, New York 10152.
SECTION 12.15. No Bankruptcy Petition. The Trustee and the Servicer
each covenants and agrees that prior to the date which is one year and one day
after the payment in full of all securities issued by the Seller or by a trust
for which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization it will not institute
against, or join any other Person in instituting against, the Seller any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law. This
Section shall survive termination of the Trust under this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Pooling and
Servicing Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
DAIMLER-BENZ VEHICLE
RECEIVABLES CORPORATION,
as Seller
By: ______________________________________
Name: Harvey S. Traison
Title: President
MERCEDES-BENZ CREDIT
CORPORATION, as Servicer and
in its individual capacity
By: ______________________________________
Name: David A. Klanica
Title: Director,
Accounting
Services
CITIBANK, N.A.,
as Trustee, as Payahead
Agent, as Class A Agent and
as Class B Agent
By: ______________________________________
Name:
Title:
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SCHEDULE I
SCHEDULE OF RECEIVABLES WAS DELIVERED TO TRUSTEE AT CLOSING.
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SCHEDULE II
LOCATION OF RECEIVABLE FILES
Mercedes-Benz Credit Corporation
Seven Village Circle
Suite 300
P.O. Box 685
Roanoke, Texas 76262-0685
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EXHIBIT A
FORM OF CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DAIMLER-BENZ AUTO GRANTOR TRUST 1997-A
% ASSET BACKED CERTIFICATE
CLASS A
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes, among other things, a pool of retail installment
contracts secured by new and used Mercedes-Benz automobiles and sold to the
Trust by Daimler-Benz Vehicle Receivables Corporation.
(This Certificate represents an interest in the Trust and does not represent an
interest in or obligation of Daimler-Benz Vehicle Receivables Corporation or
Mercedes-Benz Credit Corporation or any of their respective affiliates, except
to the extent described below.)
NUMBER: ________ CUSIP ___________
FINAL SCHEDULED
DISTRIBUTION DATE: , 2002 $____________
THIS CERTIFIES THAT ____________ is the registered owner of a
________________________________________________ dollar nonassessable,
fully-paid, fractional undivided interest in the Daimler-Benz Auto Grantor Trust
1997-A (the "Trust") formed by Daimler-Benz Vehicle Receivables Corporation, a
Delaware corporation (the "Seller"). The Trust was created pursuant to a Pooling
and Servicing Agreement, dated as of , 1997 (the "Agreement"), among the
Seller, Mercedes-Benz Credit Corporation, in its individual capacity and as
Servicer (the "Servicer"), and Citibank,
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N.A., as Trustee (the "Trustee"), Payahead Agent, Class A Agent and Class B
Agent, a summary of certain of the pertinent provisions of which is set forth
below. To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate is
one of the duly authorized Certificates designated as " % Asset Backed
Certificates, Class A" (herein called the "Class A Certificates"). Also issued
under the Agreement are Certificates designated as " % Asset Backed
Certificates, Class B" (the "Class B Certificates"). The Class B Certificates
and the Class A Certificates are herein collectively called the "Certificates."
The aggregate undivided interest in the principal amount of Receivables held by
the Trust evidenced by all Class A Certificates is %. This Class A Certificate
is issued under and is subject to the terms, provisions, and conditions of the
Agreement, to which Agreement the Holder of this Class A Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound. The property
of the Trust includes (as more fully described in the Agreement) a pool of
retail installment contracts (the "Receivables") for new and used Mercedes-Benz
automobiles together with all accessions thereto, securing the Receivables (the
"Financed Vehicles"), all monies due under the Receivables on or after
, 1997 (but excluding Excess Amounts), all of the Seller's security
interests in the Financed Vehicles, all rights to receive payments under certain
circumstances from the Reserve Funds, all of the Seller's rights under the
Shortfall Amount Agreement, the Seller's rights to receive proceeds from claims
on physical damage, credit, life and disability insurance policies relating to
the Financed Vehicles or the obligors under the Receivables, certain rights
under the Purchase Agreement, the Servicing Guaranty Agreement and certain other
property.
Under the Agreement, there will be distributed on the 20th day of each
month or, if such 20th day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on , 1997, to the person in whose
name this Class A Certificate is registered at either the close of business on
the 19th day of the current calendar month or, after the issuance of Definitive
Certificates pursuant to the Agreement, the last day of the Collection Period
immediately preceding the month in which such Distribution Date occurs (the
"Record Date"), an amount equal to interest at the Pass-Through Rate for a
period of 30 days on the Class A Principal Balance as of the first day of such
Collection Period (reduced by the amount of principal distributions to be made
on the Distribution Date in such Collection Period) plus the Class A Interest
Carryover Shortfall generally to the extent of funds available from (i) the
Available Interest remaining
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after payment of the Servicing Fee, (ii) the Class A Reserve Fund and (iii) the
Class B Percentage of Available Principal. The "Class A Principal Balance" shall
equal, initially, the Original Class A Principal Balance and thereafter will
equal the Original Class A Principal Balance, reduced by all amounts previously
distributed to Class A Certificateholders and allocable to principal. On each
Distribution Date, the Trustee will distribute to Class A Certificateholders as
of the related Record Date Class A Principal plus any Class A Principal
Carryover Shortfall generally to the extent of funds available from (i)
Available Principal, (ii) the Class A Reserve Fund and (iii) Available Interest
remaining after payment of the Servicing Fee, Class A Interest, Class A Interest
Carryover Shortfall, Class B Interest and Class B Interest Carryover Shortfall.
"Class A Principal" shall consist of the Class A Percentage of (a) the principal
portion of all scheduled payments due on Receivables during the preceding
Collection Period; (b) the Principal Balance of each Receivable that became a
Prepaid Receivable during the preceding Collection Period, except to the extent
included in (a) or (d); (c) the Principal Balance of each Receivable that was
purchased by the Servicer or repurchased by the Seller, in each case, under an
obligation that arose during the preceding Collection Period, except to the
extent included in (a); and (d) the Principal Balance of each Receivable
liquidated during the preceding Collection Period, except to the extent included
in (a) or (b). A "Collection Period" with respect to a Distribution Date will be
the calendar month preceding the month in which such Distribution Date occurs.
The "Class A Interest Carryover Shortfall" as of the close of any Distribution
Date means the excess, if any, of the Class A Interest for such Distribution
Date plus any outstanding Class A Interest Carryover Shortfall from the
preceding Distribution Date, over the amount of interest that the Holders of the
Class A Certificates actually received on such current Distribution Date (plus
thirty (30) days' interest on the amount of such excess, to the extent permitted
by law, at the Pass-Through Rate). The "Class A Principal Carryover Shortfall"
as of the close of any Distribution Date means the excess of Class A Principal
plus any outstanding Class A Principal Carryover Shortfall from the preceding
Distribution Date over the amount of principal that the Holders of the Class A
Certificates actually received on such current Distribution Date.
Distributions on this Class A Certificate will be made by the Trustee
by wire transfer or check mailed to the Class A Certificateholder of record in
the Certificate Register without the presentation or surrender of this Class A
Certificate or the making of any notation hereon except that with
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respect to Class A Certificates registered in the name of Cede & Co., the
nominee for the Clearing Agency, distributions will be made in the form of
immediately available funds. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Class A Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A
Certificate at the office or agency maintained for that purpose by the Trustee
in the Borough of Manhattan, The City of New York. The Record Date otherwise
applicable to such distribution shall not be applicable.
Reference is hereby made to the further provisions of this Class A
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class A Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class A Certificate to be duly executed.
DAIMLER-BENZ AUTO GRANTOR
TRUST 1997-A
By: CITIBANK, N.A.,
as Trustee
By: ______________________________________
Name:
Title:
DATED: _________
[SEAL]
ATTEST:
_________________________
Authorized Officer
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This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
CITIBANK, N.A., as Trustee
By: _______________________
Authorized Officer
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REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables, all as more specifically set forth in the
Agreement. A copy of the Agreement may be examined during normal business hours
at the principal office of the Trustee, and at such other places, if any,
designated by the Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement at any time
by the Seller and the Trustee with the consent of the Holders of Class A
Certificates and Class B Certificates, each voting as a class, evidencing not
less than a majority of the Class A Principal Balance and Class B Principal
Balance, respectively. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity as
Certificate Registrar, or by any successor Certificate Registrar, in the Borough
of Manhattan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class A Certificates are issuable only as registered Certificates
without coupons in denominations
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of $1,000 and integral multiples thereof; however, one Certificate may be issued
in a denomination equal to the residual amount. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Class A
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Servicer of the
Receivables may at its option purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates; however,
such right of purchase is exercisable only following the last day of any
Collection Period as of which the Pool Balance is equal to or less than 10% of
the Original Pool Balance.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Certificate (other than the certificate of authentication
herein), or of any Receivable or related document.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
______________________________________________________________________________
(Please print or typewrite name and address, including
postal zip code, of assignee)
______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_______________________________________________________________________Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
__________________________*
Signature Guaranteed
__________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed and the guarantor of the signature must be acceptable to the transfer
agent.
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EXHIBIT B
FORM OF CLASS B CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT
TO THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED OR SOLD
UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED AND THE SATISFACTION OF CERTAIN OTHER
REQUIREMENTS SPECIFIED IN THE AGREEMENT (AS DEFINED HEREIN).
DAIMLER-BENZ AUTO GRANTOR TRUST 1997-A
% ASSET BACKED CERTIFICATE
CLASS B
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes, among other things, a pool of retail
installment contracts secured by new and used Mercedes-Benz automobiles
and sold to the Trust by Daimler-Benz Vehicle Receivables Corporation.
(This Certificate represents an interest in the Trust and does not
represent an interest in or obligation of Daimler-Benz Vehicle Receivables
Corporation or Mercedes-Benz Credit Corporation or any of their respective
affiliates, except to the extent described below.)
NUMBER: ________
FINAL SCHEDULED
DISTRIBUTION DATE: , 2002 $___________________
THIS CERTIFIES THAT ______________________________ is the registered owner
of a _____________________ dollar nonassessable, fully-paid, fractional
undivided interest in the Daimler-Benz Auto Grantor Trust 1997-A (the "Trust")
formed by Daimler-Benz Vehicle Receivables Corporation, a Delaware corporation
(the "Seller"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated as of ____________________________, 1997 (the "Agreement"),
among the Seller, Mercedes-Benz Credit Corporation, in its individual capacity
and as Servicer (the "Servicer"), and Citibank, N.A., as Trustee
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(the "Trustee") and as Payahead Agent, Class A Agent and Class B Agent, a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement. This Certificate is one of the
duly authorized Certificates designated as " % Asset Backed Certificates,
Class B" (herein called the "Class B Certificates"). Also issued under the
Agreement are Certificates designated as " % Asset Backed Certificates, Class
A" (the "Class A Certificates"). The Class B Certificates and the Class A
Certificates are herein collectively called the "Certificates." The aggregate
undivided interest in the Principal Balance of the Receivables held by the Trust
evidenced by the Class B Certificate is %. This Class B Certificate is
issued under and is subject to the terms, provisions, and conditions of the
Agreement, to which Agreement the Holder of this Class B Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound. The property
of the Trust includes (as more fully described in the Agreement) a pool of
retail installment contracts (the "Receivables") for new and used Mercedes-Benz
automobiles together with all accessions thereto, securing the Receivables (the
"Financed Vehicles"), all monies due under the Receivables on or after ,
1997 (but excluding Excess Amounts), all of the Seller's security interests in
the "Financed Vehicles", all rights to receive payments under certain
circumstances from the Reserve Funds, all of the Seller's rights under the
Shortfall Amount Agreement, all of the Seller's rights to receive proceeds from
claims on physical damage, credit, life and disability insurance policies
relating to the Financed Vehicles and the obligors under the Receivables,
certain rights under the Purchase Agreement, the Servicing Guaranty Agreement
and certain other property. The rights of the Holders of the Class B
Certificates are subordinated to the rights of the Holders of the Class A
Certificates, to the extent set forth in the Agreement.
Under the Agreement, there will be distributed on the 20th day of
each month or, if such 20th day is not a Business Day, the next Business Day
(the "Distribution Date"), commencing on , 1997, to the person in
whose name this Class B Certificate is registered at either the close of
business on the 19th day of the current calendar month or, after the issuance of
Definitive Certificates pursuant to the Agreement, the last day of the
Collection Period immediately preceding the month in which such Distribution
Date occurs (the "Record Date"), interest at the Pass-
B-2
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Through Rate for a period of 30 days on the Class B Principal Balance as of the
first day of such Collection Period (reduced by the amount of principal
distributions to be made on the Distribution Date in such Collection Period)
plus the Class B Interest Carryover Shortfall generally to the extent of funds
available from the Available Interest remaining after payments of Servicing Fee
and Class A Interest and Class A Interest Carryover Shortfall to the Class A
Certificateholders. The "Class B Principal Balance" shall equal, initially, the
Original Class B Principal Balance and thereafter will equal the Original Class
B Principal Balance, reduced by all amounts previously distributed to the Class
B Certificateholder and allocable to principal. On each Distribution Date, the
Trustee will distribute to the Class B Certificateholders as of the related
Record Date Class B Principal plus any Class B Principal Carryover Shortfall,
generally to the extent of funds available from the Class B Percentage of
Available Principal, from the Class B Reserve Fund, if any, and from Available
Interest remaining after payment of all prior amounts, subject to the
subordination of the Class B Certificate as provided in the Agreement. "Class B
Principal" shall consist of the Class B Percentage, respectively, of (a) the
principal portion of all scheduled payments due on Receivables during the
preceding Collection Period; (b) the Principal Balance of each Receivable that
became a Prepaid Receivable during the preceding Collection Period except to the
extent included in (a) or (d); (c) the Principal Balance of each Receivable that
was purchased by the Servicer or repurchased by the Seller, in each case, under
an obligation that arose during the preceding Collection Period, except to the
extent included in (a); and (d) the principal balance of each Receivable
liquidated during the preceding Collection Period, except to the extent included
in (a) or (b). A "Collection Period" with respect to a Distribution Date will be
the calendar month preceding the month in which such Distribution Date occurs.
The "Class B Interest Carryover Shortfall" as of the close of any Distribution
Date means the excess, if any, of the Class B Interest for such Distribution
Date plus any outstanding Class B Interest Carryover Shortfall from the
preceding Distribution Date, over the amount of interest that the Holders of the
Class B Certificates actually received on such current Distribution Date (plus
thirty (30) days' interest on the amount of such excess, to the extent permitted
by law, at the Pass-Through Rate). The "Class B Principal Carryover Shortfall"
as of the close of any Distribution Date means the excess of Class B Principal
plus any outstanding Class B
B-3
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Principal Carryover Shortfall from the preceding Distribution Date over the
amount of principal that the Holders of the Class B Certificates actually
received on such current Distribution Date.
The Holder of this Class B Certificate by virtue of the acceptance
hereof assents to the appointment, pursuant to Section 4.7 of the Agreement, of
Citibank, N.A. acting solely as agent, and not as Trustee, for such Holder with
respect to the Class B Reserve Fund and the Class B Reserve Fund Property.
Each Holder of this Class B Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Class B Certificate are
subordinated to the extent set forth in the Agreement to the rights of the Class
A Certificateholders to receive distributions in respect of the Class A
Certificates and the rights of the Servicer to receive the Servicing Fee (and
any unpaid Servicing Fees from prior Collection Periods) in the event of
delinquency or defaults on the Receivables.
Distributions on this Class B Certificate will be made by the
Trustee by wire transfer or check mailed to the Class B Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class B Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Class B Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class B Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Class B
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class B Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in
its individual capacity has caused this Class B Certificate to be duly executed.
DAIMLER-BENZ AUTO GRANTOR
TRUST 1997-A
By: CITIBANK, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
DATED:
-----------------------
[SEAL]
ATTEST:
- ------------------
Authorized Officer
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This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
CITIBANK, N.A., as Trustee
By:
------------------------------
Authorized Officer
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REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables, all as more specifically set forth in the
Agreement. A copy of the Agreement may be examined during normal business hours
at the principal office of the Trustee, and at such other places, if any,
designated by the Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement at any time
by the Seller and the Trustee with the consent of the Holders of Class A
Certificates and Class B Certificates, each voting as a class, evidencing not
less than a majority of the Class A Principal Balance and Class B Principal
Balance, respectively. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity as
Certificate Registrar, or by any successor Certificate Registrar, in the Borough
of Manhattan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $1000 and integral multiples thereof. As
provided in the Agreement
B-7
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and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee
or the Certificate Registrar may treat the person in whose name this Class B
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Servicer of the
Receivables may at its option purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates; however,
such right of purchase is exercisable only following the last day of any
Collection Period as of which the Pool Balance is equal to or less than 10% of
the Original Pool Balance of the Receivables.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Certificate (other than the certificate of authentication
herein), or of any Receivable or related document.
B-8
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -----------------------------------------------------------------------
(Please print or typewrite name and address, including postal
zip code, of assignee)
- -----------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
- ----------------------------------------------------------------------- Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
*
-----------------------
Signature Guaranteed:
*
-----------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed and the guarantor of the signature must be acceptable to the transfer
agent.
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EXHIBIT C
FORM OF SERVICER'S CERTIFICATE
The undersigned certifies that he is a [title] of Mercedes-Benz
Credit Corporation, a corporation in good standing under the laws of the state
of its incorporation (the "Company"), and that as such he is duly authorized to
execute and deliver this certificate on behalf of the Company pursuant to
Section 3.8 of the Pooling and Servicing Agreement, dated as of ,
1997, among the Company, in its individual capacity and as Servicer,
Daimler-Benz Vehicle Receivables Corporation, as Seller, and Citibank, N.A., as
Trustee, Payahead Agent, Class A Agent and Class B Agent, of the Daimler-Benz
Auto Grantor Trust 1997-A (the "Pooling and Servicing Agreement") (all
capitalized terms used herein without definition have the respective meanings
specified in the Pooling and Servicing Agreement), and further certifies that:
1. The Servicer's report for the period from __________ to
____________ attached to this certificate is complete and accurate and
contains all information required by Section 3.8 of the Pooling and
Servicing Agreement; and
2. As of the date hereof, no Event of Servicing Termination
or event that with notice or lapse of time or both would become an
Event of Servicing Termination has occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature and the
corporate seal of the Company this ______ day of ____________, 19__.
_________________, for and on
behalf of
MERCEDES-BENZ CREDIT
CORPORATION
By: _________________________
Name:
Title:
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EXHIBIT E
Dated as of
, 1997
SHORTFALL AMOUNT AGREEMENT
Daimler-Benz Vehicle Receivables Corporation
1201 North Market Street, Suite 1406
Wilmington, Delaware 19801
Ladies and Gentlemen:
We (the "Seller") hereby confirm arrangements made as of the date
hereof with you (the "Purchaser") to be effective upon (i) receipt by the Seller
of the enclosed copy of this letter agreement (the "Shortfall Amount
Agreement"), executed by the Purchaser, and (ii) execution of the Purchase
Agreement dated as of , 1997 (the "Purchase Agreement"), between
the Seller and the Purchaser, and payment of the purchase price thereunder.
1. On or prior to the Determination Date preceding each Distribution
Date, the Servicer shall notify the Purchaser and the Seller of the Shortfall
Amounts for such Distribution Date.
2. In consideration of the purchase price paid under the Purchase
Agreement, the Seller agrees to establish the Class A Reserve Fund pursuant to
the Pooling and Servicing Agreement, dated as of , 1997 (the
"Pooling and Servicing Agreement") among the Seller in its individual capacity
and as Servicer, the Purchaser, and Citibank, N.A., as Trustee, Payahead Agent,
Class A Agent and Class B Agent and make a payment of the Shortfall Amounts to
the Purchaser, or to any assignee of the Purchaser referred to in Section 5
hereof, on each Distribution Date if and to the extent that such amounts shall
not have been paid at or prior to 12:00 noon, New York City time, pursuant to
subsection 4.7(f) of the Pooling and Servicing Agreement because of the insuf-
E-1
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Daimler-Benz Vehicle
Receivables Corporation
, 1997
Page 2
ficiency of amounts on deposit in the Class A Reserve Fund.
3. All payments pursuant hereto shall be made by federal wire
transfer (same day) funds or in immediately available funds, to such account as
the Purchaser, or any assignee of the Purchaser referred to in Section 5 hereof,
may designate in writing to the Seller prior to the relevant Distribution Date.
4. Our agreements set forth in this Shortfall Amount Agreement are
our primary obligations and such obligations are irrevocable, absolute and
unconditional, shall not be subject to any counterclaim, setoff or defense
(other than full and strict compliance by us with our obligations hereunder) and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, any circumstances or condition
whatsoever.
5. The Purchaser will sell, transfer, assign and convey its interest
in this Shortfall Amount Agreement to the Daimler-Benz Auto Grantor Trust 1997-A
(the "Trust"), and the Seller hereby acknowledges and consents to such sale,
transfer, assignment and conveyance. In addition, the Seller hereby agrees, for
the benefit of the Trust, that following such sale, transfer, assignment and
conveyance this Shortfall Amount Agreement shall not be amended, modified or
terminated without the consent of the Trustee.
6. THIS SHORTFALL AMOUNT AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
7. Except as otherwise provided herein, all demands, notices and
communications under this Shortfall Amount Agreement shall be in writing,
personally delivered, sent by facsimile, sent by courier or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt by the Pur-
E-2
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Daimler-Benz Vehicle
Receivables Corporation
, 1997
Page 3
chaser or the Seller. All notices shall be directed as set forth below, or to
such other address or to the attention of such other person as the relevant
party shall have designated for such purpose in a written notice.
The Purchaser:
Daimler-Benz Vehicle Receivables Corporation
1201 North Market Street
Suite 1406
Wilmington, Delaware 19801
Attention: Harvey S. Traison
Facsimile #: (302) 426-6520
The Seller:
Mercedes-Benz Credit Corporation
201 Merritt 7, Suite 700
Norwalk, Connecticut 06856-5425
Attention: David A. Klanica
Facsimile #: (203) 845-7542
8. This Shortfall Amount Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, all
of which shall be deemed to be one and the same document.
9. Capitalized terms used herein but not otherwise defined shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
E-3
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Daimler-Benz Vehicle
Receivables Corporation
, 1997
Page 4
If the foregoing satisfactorily sets forth the terms and conditions
of our agreement, please indicate your acceptance thereof by signing in the
space provided below and returning to us the enclosed duplicate original of this
letter.
Very truly yours,
MERCEDES-BENZ CREDIT
CORPORATION
By: _______________________
Name: _________________
Title: ________________
Agreed and accepted as of , 1997.
DAIMLER-BENZ VEHICLE
RECEIVABLES CORPORATION
By: _______________________
Name: _________________
Title: ________________
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EXHIBIT F
SERVICING GUARANTY AGREEMENT
This SERVICING GUARANTY AGREEMENT ("Guaranty Agreement") is executed
as of the ____ day of , 1997 by DAIMLER-BENZ NORTH AMERICA
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (the "Guarantor"), in favor of CITIBANK, N.A., as trustee (the
"Trustee") of Daimler-Benz Auto Grantor Trust 1997-A.
PRELIMINARY STATEMENTS
Daimler-Benz Vehicle Receivables Corporation, as seller (the
"Seller"), Mercedes-Benz Credit Corporation ("MBCC"), in its individual capacity
and as servicer (the "Servicer"), Citibank, N.A., as Payahead Agent, Class A
Agent, Class B Agent and as the Trustee are entering into a Pooling and
Servicing Agreement (the "Servicing Agreement") dated as of , 1997,
pursuant to which up to $ of % Asset Backed Certificates, Class A and
Class B (the "Certificates") will be issued;
The Guarantor is the owner of 100% of the capital stock of MBCC; and
It is a condition precedent to the Servicer's right to retain
collections on the Receivables for its personal use prior to each Distribution
Date that the Guarantor execute this Guaranty Agreement and deliver it to the
Trustee.
In consideration of the execution of the Servicing Agreement by the
Trustee and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Guarantor, the Guarantor
agrees as follows:
1. Definitions. Unless otherwise defined in this Guaranty Agreement,
all defined terms used in this Guaranty Agreement, including the Preliminary
Statements
F-1
151
hereof, shall have the meanings ascribed to such terms in the Servicing
Agreement.
2. Guaranty of Obligations. The Guarantor unconditionally guarantees
the full and timely performance of all of the obligations of MBCC as Servicer to
make required remittances on each Distribution Date pursuant to subsections
4.1(d) and 4.2(a) of the Servicing Agreement (the "Obligations").
3. Validity of Obligations; Irrevocability. The Guarantor agrees
that its obligations under this Guaranty Agreement shall be unconditional,
irrespective of (i) the validity, enforceability, discharge, disaffirmance,
settlement or compromise (by any Person other than the Trustee, including a
trustee in bankruptcy or other similar official) of the Obligations or of the
Servicing Agreement, (ii) the absence of any attempt to collect the Obligations
from MBCC or any guarantor, (iii) the waiver or consent by the Trustee with
respect to any provision of any instrument evidencing the Obligations, (iv) any
change of the time, manner or place of payment or performance, or any other term
of any of the Obligations, (v) any law, regulation or order of any jurisdiction
affecting any term of any of the Obligations or rights of the Trustee with
respect thereto, (vi) the failure by the Trustee to take any steps to perfect
and maintain perfected its interest in the Receivables or other property
acquired by the Trustee from the Seller or any security or collateral related to
the Obligations, or (vii) any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor agrees that the Trustee shall be under no obligation to marshall any
assets in favor of or against or in payment of any or all of the Obligations.
The Guarantor further agrees that, to the extent that MBCC makes a payment or
payments to the Trustee, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to MBCC, its estate, trustee, receiver or any other
party, including without limitation, the Guarantor, under any bankruptcy,
insolvency or similar state or federal law, common law or equitable cause, then
to the extent of such payment or repayment, the Obligation or part thereof which
has been paid, reduced or satisfied by such amount shall be reinstated and
continued in full force and effect as of the
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date such initial payment, reduction or satisfaction occurred. The Guarantor
waives all presentments, demands for performance, notices of dishonor and
notices of acceptance of this Guaranty. The Guarantor agrees that its
obligations under this Guaranty shall be irrevocable.
4. Representations and Warranties. The Guarantor hereby represents
and warrants to the Trustee, as of the date hereof, as follows:
(a) Organization, etc. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power, authority and legal right to own or lease
all of its properties and assets, to carry on its business as it is now being
conducted and to execute, deliver and perform this Guaranty Agreement. The
Guarantor is duly qualified as a foreign corporation in good standing under the
laws of each other jurisdiction in which the nature of its business requires
such qualification and in which failure to so qualify would render this Guaranty
Agreement unenforceable or would have a material adverse effect on the
Guarantor's ability to perform its obligations under this Guaranty Agreement.
(b) Authorization; Valid Agreement. The execution, delivery
and performance of this Guaranty Agreement has been duly authorized by all
required corporate or other action on the part of the Guarantor, and this
Guaranty Agreement constitutes the legal, valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(c) No Conflicts. The execution, delivery and performance by
the Guarantor of this Guaranty Agreement does not and will not (a) contravene
its charter or by-laws, (b) in any material respect, violate any provision of,
or require any filing, registration, consent or approval under, any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Guarantor, (c) result in a
material breach of or constitute a material default or require any consent under
any
F-3
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material indenture or loan or credit agreement or any other material agreement,
lease or instrument to which the Guarantor is a party or by which it or its
properties may be bound or affected or (d) result in, or require, the creation
or imposition of any material lien upon or with respect to any of the properties
now owned or hereafter acquired by the Guarantor.
(d) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Guarantor, threatened against the
Guarantor before any governmental authority (a) asserting the invalidity of this
Guaranty Agreement, (b) seeking to prevent the consummation of the transactions
contemplated by this Guaranty Agreement, (c) seeking any determination or ruling
that would materially adversely affect the performance by the Guarantor of its
obligations under this Guaranty Agreement or (d) seeking any determination or
ruling that would materially adversely affect the validity or enforceability of
this Guaranty Agreement.
IN WITNESS WHEREOF, this Guaranty Agreement has been duly executed
by the Guarantor as of the ____ day of , 1997.
DAIMLER-BENZ NORTH AMERICA
CORPORATION
By______________________________
Name:
Title:
By______________________________
Name:
Title:
Acknowledged and accepted
as of the ____ day of
, 1997
CITIBANK, N.A.
as Trustee
By________________________
Name:
Title:
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154
EXHIBIT G-1
TRANSFER CERTIFICATE
In connection with a transfer of Class B Certificates (the "Certificates")
issued under the Pooling and Servicing Agreement dated as of , 1997 (the
"Agreement"), among Daimler-Benz Vehicle Receivables Corporation, as Seller,
Mercedes-Benz Credit Corporation, as Servicer and in its individual capacity,
and Citibank, N.A., as Trustee, Class A Agent, Class B Agent and Payahead Agent,
the undersigned confirms that, without utilizing any general solicitation or
general advertising, the Certificates are being transferred:
CHECK ONE BOX BELOW
(1) / / to a person that the undersigned reasonably believes is a
"qualified institutional buyer" within the meaning of Rule
144A under the Securities Act of 1933, as amended (the
"Securities Act"), that is purchasing for its own account or
for the account of a "qualified institutional buyer", that is
aware that the transfer is being made in reliance on Rule 144A
and that is delivering to the Certificate Registrar a
Representation Letter in the form of Exhibit G-2 to the
Agreement;
(2) / / to an institutional investor that is an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act that is delivering to the Certificate
Registrar a Representation Letter in the form of Exhibit G-3
to the Agreement; or
(3) / / to a person that the undersigned reasonably believes is not
a "U.S. person" within the meaning of Regulation S under the
Securities Act that is delivering to the Certificate Registrar
a Representation Letter in the form of Exhibit G-4 to the
Agreement.
G-1-1
155
Unless one of the boxes is checked, the Certificate Registrar will refuse to
register any of the Certificates in the name of any person other than the
registered holder thereof; provided, however, that if box (2) is checked, the
Seller may require, prior to registering any such transfer of the Certificates,
in its sole discretion, such legal opinions, certifications and other
information as the Seller may reasonably request to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
Capitalized terms used herein which are not defined herein shall
have the meanings used in the Agreement.
Date: ______________
Signature: ____________________
NAME OF TRANSFEROR
By:___________________________
Name:_________________________
Title:________________________
G-1-2
156
EXHIBIT G-2
Form of Purchaser's Letter for
Qualified Institutional Buyers
Under Rule 144A
Daimler-Benz Vehicle
Receivables Corporation
1201 North Market Street
Suite 1406
Wilmington, Delaware 19801
Citibank, N.A.,
as Certificate Registrar
Re: Daimler-Benz Auto Grantor Trust 1997-A
Ladies and Gentlemen:
In connection with our proposed purchase of Class B Certificates (the
"Certificates") issued under the Pooling and Servicing Agreement dated as
of , 1997 (the "Agreement"), among Daimler-Benz Vehicle Receivables
Corporation, as Seller, Mercedes-Benz Credit Corporation, as Servicer and in
its individual capacity, and Citibank, N.A., as Trustee, Class A Agent, Class B
Agent and Payahead Agent, the undersigned (the "Purchaser") represents, warrants
and agrees that:
1. The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act"); it is purchasing the Certificates for its own account or for
the account of a "qualified institutional buyer" and not with a view to any
resale, distribution or other disposition of the Certificates in violation of
the United States securities laws; it is aware that the sale to it is being made
in reliance on Rule 144A; it has received such information regarding the
Certificates, the Agreement and the Trust (as defined in the Agreement) as it
has requested pursuant to Rule 144A or has determined not to request such
information; and it is aware that the transferor of the Certificates is relying
upon the Purchaser's foregoing representations in
G-2-1
157
order to claim the exemption from registration provided by Rule 144A.
2. The Purchaser agrees, on its own behalf and on behalf of any
account for which it is acting, that should it sell, pledge or otherwise
transfer any Certificates, it will do so only (a) to a "qualified institutional
buyer" in accordance with Rule 144A that delivers to the Certificate Registrar a
representation letter in the form of this letter, (b) to an institutional
investor that is an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that delivers to the Certificate
Registrar a representation letter in the form of Exhibit G-3 to the Agreement,
or (c) to a person that is not a "U.S. person" in accordance with Regulation S
that delivers to the Certificate Registrar a representation letter in the form
of Exhibit G-4 to the Agreement.
3. Either (a) the Purchaser is not (i) an employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), whether or not it is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), or (iii) an entity
that is using "plan assets" (as defined in Title 29 C.F.R. Section 2510.3-101)
by reason of a plan's investment in such entity, or (b) the Purchaser is
described in any of clause (3)(a)(i), (ii) or (iii), and represents that
(assuming less than 25% of the principal amount of the Class B Certificates is
held by entities described in clause (3)(a)(i), (ii) or (iii)) the purchase and
holding of the Certificates will either not constitute a "prohibited
transaction" within the meaning of section 406 of ERISA or section 4975 of the
Code, or there is a regulatory or administrative exemption available for such
prohibited transaction. If the Purchaser is making the representation contained
in clause (3)(b) of the preceding sentence, the Purchaser has so informed the
Seller, the Trustee and the Certificate Registrar prior to the date hereof.
4. The Purchaser [is/is not] described in any of clause (3)(a)(i),
(ii) or (iii) above.
G-2-2
158
5. The Purchaser is purchasing the Certificates through ___________
as its nominee if applicable.
6. The Purchaser [is/is not] a Person (other than a benefit plan
investor) who has discretionary authority or control with respect to the assets
of the Trust or a Person who provides investment advice for a fee (direct or
indirect) with respect to such assets, or an affiliate of such a Person.
Capitalized terms used herein which are not defined herein shall
have the meanings used in the Agreement.
Dated:_______________
Very truly yours,
---------------------------
NAME OF PURCHASER
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
NOTE: To be executed by
an executive officer
G-2-3
159
EXHIBIT G-3
Form of Purchaser's Letter for
Institutional Accredited Investors
Daimler-Benz Vehicle
Receivables Corporation
1201 North Market Street
Wilmington, Delaware 19801
Citibank, N.A.,
as Certificate Registrar
Re: Daimler-Benz Auto Grantor Trust 1997-A
Ladies and Gentlemen:
In connection with our proposed purchase of Class B Certificates (the
"Certificates") issued under the Pooling and Servicing Agreement dated as
of , 1997 (the "Agreement"), among Daimler-Benz Vehicle Receivables
Corporation, as Seller, Mercedes-Benz Credit Corporation, as Servicer and in its
individual capacity, and Citibank, N.A., as Trustee, Class A Agent, Class B
Agent and Payahead Agent, the undersigned (the "Purchaser") represents, warrants
and agrees that:
1. The Purchaser understands that the Certificates have not been, and
will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws and may not be sold except as
permitted in the following sentence. The Purchaser agrees that should it sell,
pledge or otherwise transfer any Certificates, it will do so only (a) to a
"qualified institutional buyer" in accordance with Rule 144A under the
Securities Act that delivers to the Certificate Registrar a representation
letter in the form of Exhibit G-2 to the Agreement, (b) to an institutional
investor that is an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that delivers to the Certificate
Registrar a representation letter in the form of this letter or (c) to a person
that is not a "U.S. person" in accordance with Regulation S that delivers to the
Certif-
G-3-1
160
icate Registrar a representation letter in the form of Exhibit G-4 to the
Agreement. The Purchaser further agrees, in the capacities stated above, that it
will provide to any person purchasing any of the Certificates from the Purchaser
a notice advising such person that resales of the Certificates are restricted as
stated herein, and that it will not make any general solicitation or
advertisement in connection with any resale of the Certificates.
2. The Purchaser understands that, on any proposed resale of any
Certificates, the Purchaser will be required to furnish to the Certificate
Registrar such certifications, legal opinions and other information as the
Certificate Registrar may reasonably require to confirm that the proposed sale
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. The Purchaser further
understands that the Certificates purchased by the Purchaser will bear a legend
to the foregoing effect.
3. The Purchaser is an institutional investor and an "accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act). The Purchaser has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment in the Certificates and the Purchaser is able to bear the economic
risk of its investment.
4. The Purchaser is acquiring the Certificates for its own account
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act.
[5. The Purchaser has received the Private Placement Memorandum
dated _______ relating to the private placement of the Certificates and the
Purchaser has received such other information as it deems necessary in order to
make its investment decision.]
6. Either (a) the Purchaser is not (i) an employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), whether or not it is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), or (iii) an entity
that is using "plan assets"
G-3-2
161
(as defined in Title 29 C.F.R. Section 2510.3-101) by reason of a plan's
investment in such entity, or (b) the Purchaser is described in any of clause
(6)(a)(i), (ii) or (iii), and represents that (assuming less than 25% of the
principal amount of the Class B Certificates is held by entities described in
clause (6)(a)(i), (ii) or (iii)) the purchase and holding of the Certificates
will either not constitute a "prohibited transaction" within the meaning of
section 406 of ERISA or section 4975 of the Code, or there is a regulatory or
administrative exemption available for such prohibited transaction. If the
Purchaser is making the representation contained in clause (6)(b) of the
preceding sentence, the Purchaser has so informed the Seller, the Trustee and
the Certificate Registrar prior to the date hereof.
7. The Purchaser [is/is not] described in any of clause (6)(a)(i),
(ii) or (iii) above.
8. The Purchaser is purchasing the Certificates through ___________
as its nominee if applicable.
9. The Purchaser [is/is not] a Person (other than a benefit plan
investor) who has discretionary authority or control with respect to the assets
of the Trust or a Person who provides investment advice for a fee (direct or
indirect) with respect to such assets, or an affiliate of such a Person.
Capitalized terms used herein which are not defined herein shall
have the meanings used in the Agreement.
Dated:__________________
Very truly yours,
NAME OF PURCHASER
---------------------------
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
G-3-3
162
EXHIBIT G-4
Form of Purchaser's Letter for
Non-U.S. Persons
Under Regulation S
Daimler-Benz Vehicle
Receivables Corporation
1201 North Market Street
Suite 1406
Wilmington, Delaware 19801
Citibank, N.A.,
as Certificate Registrar
Re: Daimler-Benz Auto Grantor Trust 1997-A
Ladies and Gentlemen:
In connection with our proposed purchase of Class B Certificates (the
"Certificates") issued under the Pooling and Servicing Agreement dated as
of , 1997 (the "Agreement"), among Daimler-Benz Vehicle Receivables
Corporation, as Seller, Mercedes-Benz Credit Corporation, as Servicer and in its
individual capacity, and Citibank, N.A., as Trustee, Class A Agent, Class B
Agent and Payahead Agent, the undersigned (the "Purchaser") represents, warrants
and agrees that:
1. The Purchaser is not a "U.S. person" within the meaning of
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act").
2. The Purchaser agrees, on its own behalf and on behalf of any
account for which it is acting, that should it sell, pledge or otherwise
transfer any Certificates, it will do so only (a) to a "qualified institutional
buyer" in accordance with Rule 144A that delivers to the Certificate Registrar a
representation letter in the form of Exhibit G-2 to the Agreement, (b) to an
institutional investor that is an "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act that delivers to the
Certificate Registrar a representation
G-4-1
163
letter in the form of Exhibit G-3 to the Agreement, or (c) to a person that is
not a "U.S. person" in accordance with Regulation S that delivers to the
Certificate Registrar a representation letter in the form of this letter.
3. The Purchaser is purchasing the Certificates through ___________
as its nominee if applicable.
Capitalized terms used herein which are not defined herein shall
have the meanings used in the Agreement.
Dated:_______________
Very truly yours,
NAME OF PURCHASER
---------------------------
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
NOTE: To be executed by
an executive officer
G-4-2
164
EXHIBIT G-5
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO A PERSON THAT THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A "QUALIFIED INSTITUTIONAL BUYER", THAT IS AWARE THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND THAT
DELIVERS TO THE CERTIFICATE REGISTRAR UNDER THE POOLING AND SERVICING AGREEMENT
DATED AS OF , 1997 AMONG DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION, AS
SELLER, MERCEDES-BENZ CREDIT CORPORATION, AS SERVICER AND IN ITS INDIVIDUAL
CAPACITY, AND CITIBANK, N.A., AS TRUSTEE, CLASS A AGENT, CLASS B AGENT, AND
PAYAHEAD AGENT, (THE "AGREEMENT"), A REPRESENTATION LETTER IN THE FORM OF
EXHIBIT G-2 TO THE AGREEMENT, (2) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) or (7)
UNDER THE SECURITIES ACT THAT DELIVERS TO THE CERTIFICATE REGISTRAR A
REPRESENTATION LETTER IN THE FORM OF EXHIBIT G-3 TO THE AGREEMENT, OR (3) TO A
PERSON THAT IS NOT A U.S. PERSON WITHIN THE MEANING OF REGULATION S THAT
DELIVERS TO THE CERTIFICATE REGISTRAR A REPRESENTATION LETTER IN THE FORM OF
EXHIBIT G-4 TO THE AGREEMENT. THE HOLDER MUST, PRIOR TO ANY TRANSFER PURSUANT TO
CLAUSE (2) ABOVE, FURNISH TO THE CERTIFICATE REGISTRAR SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE SELLER MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
G-5-1
165
TABLE OF CONTENTS
ARTICLE I
Definitions.......................................................... 1
SECTION 1.1. Definitions............................................ 1
SECTION 1.2. Usage of Terms......................................... 25
SECTION 1.3. Calculations........................................... 25
SECTION 1.4. References............................................. 25
SECTION 1.5. Section References..................................... 26
SECTION 1.6. Action by or Consent of Certificateholders............. 26
ARTICLE II
The Trust and Trust Property......................................... 27
SECTION 2.1. Creation of Trust...................................... 27
SECTION 2.2. Conveyance of Trust Property........................... 27
SECTION 2.3. Acceptance by Trustee.................................. 27
SECTION 2.4. Representations and Warranties of the Seller
as to the Receivables.......................................... 28
SECTION 2.5. Repurchase upon Breach................................. 32
SECTION 2.6. Custody of Receivable Files............................ 33
SECTION 2.7. Duties of Servicer as Custodian........................ 34
SECTION 2.8. Instructions; Authority to Act......................... 35
SECTION 2.9. Custodian's Indemnification............................ 35
SECTION 2.10. Effective Period and Termination...................... 36
ARTICLE III
Administration and Servicing of the Trust Property................... 37
SECTION 3.1. Duties of Servicer..................................... 37
SECTION 3.2. Collection of Receivable Payments...................... 41
SECTION 3.3. Realization upon Receivables........................... 42
SECTION 3.4. Maintenance of Security Interests in Financed
Vehicles....................................................... 43
SECTION 3.5. Covenants of Servicer.................................. 43
SECTION 3.6. Purchase by Servicer upon Breach....................... 44
SECTION 3.7. Servicing Compensation................................. 44
SECTION 3.8. Servicer's Certificate................................. 45
SECTION 3.9. Annual Statement as to Compliance...................... 45
SECTION 3.10. Annual Independent Certified Public
Accountants' Reports........................................... 46
SECTION 3.11. Access to Certain Documentation and
Information Regarding Receivables.............................. 46
SECTION 3.12. Reports to the Commission............................. 47
SECTION 3.13. Reports to the Rating Agency.......................... 47
i
166
ARTICLE IV
Distributions; Reserve Funds; Statements to Certificateholders....... 48
SECTION 4.1. Accounts............................................... 48
SECTION 4.2. Collections............................................ 50
SECTION 4.3. Application of Collections............................. 52
SECTION 4.4. Advances............................................... 52
SECTION 4.5. Additional Deposits.................................... 53
SECTION 4.6. Distributions.......................................... 53
SECTION 4.7. Subordination; Reserve Funds; Priority of
Distributions.................................................. 57
SECTION 4.8. Net Deposits........................................... 65
SECTION 4.9. Statements to Class A Certificateholders and
Class B Certificateholders..................................... 65
SECTION 4.10. Delivery of Eligible Investments................... 67
ARTICLE V
Reserved
..................................................................... 69
ARTICLE VI
The Certificates..................................................... 70
SECTION 6.1. The Certificates....................................... 70
SECTION 6.2. Authentication of Certificates......................... 70
SECTION 6.3. Registration of Transfer and Exchange of
Certificates................................................... 71
SECTION 6.4. Mutilated, Destroyed, Lost or Stolen Certificates...... 74
SECTION 6.5. Persons Deemed Owners.................................. 74
SECTION 6.6. Access to List of Certificateholders' Names
and Addresses.................................................. 75
SECTION 6.7. Maintenance of Office or Agency........................ 75
SECTION 6.8. Book Entry Certificates................................ 75
SECTION 6.9. Notices to Clearing Agency............................. 77
SECTION 6.10. Definitive Certificates............................... 77
ARTICLE VII
The Seller........................................................... 79
SECTION 7.1. Representations and Warranties of Seller............... 79
SECTION 7.2. Liability of Seller; Indemnities....................... 81
SECTION 7.3. Merger or Consolidation of, or Assumption of
the Obligations of, Seller..................................... 82
SECTION 7.4. Limitation on Liability of Seller...................... 83
SECTION 7.5. Seller May Own Certificates............................ 83
SECTION 7.6. Limitation on Incurrence of Indebtedness............... 83
ii
167
ARTICLE VIII
The Servicer......................................................... 84
SECTION 8.1. Representations and Warranties of Servicer............. 84
SECTION 8.2. Liability of Servicer; Indemnities..................... 86
SECTION 8.3. Merger or Consolidation of, or Assumption of
the Obligations of, Servicer................................... 87
SECTION 8.4. Limitation on Liability of Servicer.................... 88
SECTION 8.5. Servicer Not to Resign................................. 89
SECTION 8.6. Servicer May Own Certificates.......................... 89
ARTICLE IX
Servicing Termination................................................ 90
SECTION 9.1. Events of Servicing Termination........................ 90
SECTION 9.2. Trustee to Act; Appointment of Successor
Servicer....................................................... 92
SECTION 9.3. Effect of Servicing Transfer........................... 93
SECTION 9.4. Notification to Certificateholders..................... 94
SECTION 9.5. Waiver of Past Events of Servicing Termination......... 94
ARTICLE X
The Trustee.......................................................... 95
SECTION 10.1. Duties of Trustee..................................... 95
SECTION 10.2. Trustee's Certificate................................. 97
SECTION 10.3. Trustee's Assignment of Purchased Receivables......... 97
SECTION 10.4. Certain Matters Affecting the Trustee................. 98
SECTION 10.5. Trustee Not Liable for Certificates or Receivables....100
SECTION 10.6. Trustee May Own Certificates..........................101
SECTION 10.7. Trustee's Fees and Expenses...........................101
SECTION 10.8. Indemnity of Class A Agent, Class B Agent and
Payahead Agent.................................................102
SECTION 10.9. Eligibility Requirements for Trustee..................102
SECTION 10.10. Resignation or Removal of Trustee....................103
SECTION 10.11. Successor Trustee....................................104
SECTION 10.12. Merger or Consolidation of Trustee...................104
SECTION 10.13. Appointment of Co-Trustee or Separate Trustee........105
SECTION 10.14. Representations and Warranties of Trustee............107
SECTION 10.15. Reports by Trustee...................................107
SECTION 10.16. Tax Returns..........................................108
SECTION 10.17. Trustee May Enforce Claims Without
Possession of Certificates.....................................108
SECTION 10.18. Suits for Enforcement................................108
iii
168
SECTION 10.19. Rights of Certificateholders to Direct
Trustee........................................................109
ARTICLE XI
Termination..........................................................110
SECTION 11.1. Termination of the Trust..............................110
SECTION 11.2. Optional Purchase of All Receivables..................111
ARTICLE XII
Miscellaneous Provisions.............................................113
SECTION 12.1. Amendment.............................................113
SECTION 12.2. Protection of Title to Trust..........................115
SECTION 12.3. Limitation on Rights of Certificateholders............118
SECTION 12.4. GOVERNING LAW.........................................119
SECTION 12.5. Notices...............................................119
SECTION 12.6. Severability of Provisions............................120
SECTION 12.7. Assignment............................................120
SECTION 12.8. Certificates Nonassessable and Fully Paid.............120
SECTION 12.9. Further Assurances....................................120
SECTION 12.10. No Waiver; Cumulative Remedies.......................121
SECTION 12.11. Third-Party Beneficiaries............................121
SECTION 12.12. Actions by Certificateholders........................121
SECTION 12.13. Counterparts.........................................121
SECTION 12.14. Agent for Service....................................122
SECTION 12.15. No Bankruptcy Petition...............................122
SCHEDULES
Schedule I - Schedule Of Receivables..............................I-1
Schedule II - Location Of Receivable Files........................II-1
EXHIBITS
Exhibit A - Form of Class A Certificate......................... A-1
Exhibit B - Form of Class B Certificate......................... B-1
Exhibit C - Form of Servicer's Certificate...................... C-1
Exhibit D - Form of Depository Agreement........................ D-1
Exhibit E - Form of Shortfall Amount Agreement.................. E-1
Exhibit F - Form of Servicing Guaranty Agreement................ F-1
Exhibit G-1 - Form of Transfer Certificate...................... G-1-1
Exhibit G-2 - Form of Purchaser's Letter for
Qualified Institutional Buyers
Under Rule 144A................................... G-2-1
Exhibit G-3 - Form of Purchaser's Letter for
Institutional Accredited
Investors......................................... G-3-1
iv
169
Exhibit G-4 - Form of Purchaser's Letter for
Non-U.S. Persons Under Regulation S............. G-4-1
Exhibit G-5 - Form of Legend for Class B
Certificates.................................... G-5-1
v