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THE FIFTH THIRD BANK
Seller and Servicer
and
HARRIS TRUST AND SAVINGS BANK
Trustee
on behalf of the Holders
_______________________________
POOLING AND SERVICING AGREEMENT
_______________________________
Dated as of September 25, 1996
THE FIFTH THIRD BANK AUTO TRUST 1996-B
6.45% Asset Backed Certificates, Class A
6.70% Asset Backed Certificates, Class B
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POOLING AND SERVICING AGREEMENT dated as of September 25, 1996,
between THE FIFTH THIRD BANK, an Ohio banking corporation, as Seller and
Servicer, and HARRIS TRUST AND SAVINGS BANK, an Illinois banking
corporation, as trustee hereunder.
In consideration of the premises and of the mutual agreements herein
contained, and other good and valuable consideration, the receipt of which
is acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following capitalized words and phrases, unless the context otherwise
requires, have the following meanings:
"Accounts" means collectively the Collection Account, the Class A
Distribution Account and the Class B Distribution Account.
"Account Property" means all amounts and investments held from time to
time in any Account or the Reserve Account, as the case may be (whether in
the form of deposit accounts, instruments, certificated securities, book
entry securities, uncertificated securities or otherwise), and all proceeds
of the foregoing.
"Acquired Receivable" means a Receivable acquired by Seller or a
Seller Affiliate through the acquisition of a financial institution that
owned the Receivable.
"Advances" means, with respect to any Distribution Date, the amount
required to be advanced by Servicer on the related Deposit Date pursuant to
Section 4.3.
"Affiliate" means, with respect to any specified 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 specified 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.
"Aggregate Net Losses" means, for any Collection Period, the aggregate
amount allocable to principal of all Receivables newly designated during
such Collection Period as Defaulted Receivables minus all Liquidation
Proceeds collected during such Collection Period with respect to all
Defaulted Receivables (whether or not newly designated as such).
"Agreement" means this Pooling and Servicing Agreement, including its
schedules and exhibits, as amended, modified or supplemented from time to
time.
"Authorized Officer" means any officer within the Corporate Trust
Office of Trustee, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Available Interest" means, with respect to any Distribution Date, the
excess of (a) the sum of (i) Interest Collections for such Distribution
Date and (ii) all Advances made by Servicer with respect to such
Distribution Date, over (b) the amount of Outstanding Advances to be
reimbursed on or with respect to such Distribution Date.
"Available Principal" for a Distribution Date means the sum of the
following amounts with respect to the preceding Collection Period: (a) that
portion of all Collections on the Receivables received during such
Collection Period and allocable to principal in accordance with Servicer's
customary servicing procedures; and (b) to the extent attributable to
principal, the Purchase Amount received with respect to each Receivable
repurchased by Seller or purchased by Servicer under an obligation which
arose during the related Collection Period. "Available Principal" on any
Distribution Date shall exclude all payments and proceeds of any
Receivables the Purchase Amount of which has been distributed on a prior
Distribution Date.
"Available Reserve Amount" is defined in Section 4.6.
"Average Delinquency Ratio" means, as of any Distribution Date, the
average of the Delinquency Ratios for the preceding three Collection
Periods.
"Average Net Loss Ratio" means, as of any Distribution Date, the
average of the Net Loss Ratios for the preceding three Collection Periods.
"Book Entry Certificate" means beneficial interests in the definitive
Certificates described in Section 5.8, the ownership of which shall be
evidenced, and transfers of which shall be made, through book entries by a
Clearing Agency as described in Section 5.8.
"Business Day" means a day that is not a Saturday or a Sunday and that
in New York City and in the city in which the Corporate Trust Office is
located is neither a legal holiday nor a day on which banking institutions
are authorized by law, regulation or executive order to be closed.
"Certificate" means any Class A Certificate or Class B Certificate.
"Certificate Owner" means, with respect to a Book Entry Certificate,
the Person who is the owner of such Book Entry Certificate, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining
an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules, regulations and procedures of
such Clearing Agency).
"Certificate Register" means the register maintained by Trustee for
the registration of Certificates and of transfers and exchanges of
Certificates as provided in Section 5.3.
"Class A Certificate" means a certificate executed by Trustee on
behalf of the Trust and authenticated by Trustee substantially in the form
of Exhibit A.
"Class A Certificate Balance" means, at any time, the Original Class A
Certificate Balance, as reduced by all amounts allocable to principal on
the Class A Certificates distributed to Class A Holders prior to such time.
"Class A Certificate Rate" means 6.45% per annum, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Class A Distribution Account" means the account established,
maintained and designated as the "Class A Distribution Account" pursuant to
Section 4.1.
"Class A Holder" means the Person in whose name a Class A Certificate
is registered in the Certificate Register, except that, solely for the
purpose of giving any consent, request or waiver pursuant to this
Agreement, the interest evidenced by any Class A Certificate registered in
the name of Seller, Servicer, or any Person actually known to an Authorized
Officer of Trustee to be an Affiliate of Seller or Servicer, shall not be
taken into account in determining whether the requisite percentage
necessary to effect any such consent, request or waiver shall have been
obtained.
"Class A Interest Carryover Shortfall" means, (a) with respect to the
initial Distribution Date, zero, and (b) with respect to any other
Distribution Date, the excess of Class A Monthly Interest for the preceding
Distribution Date and any outstanding Class A Interest Carryover Shortfall
on such preceding Distribution Date, over the amount in respect of interest
that is actually deposited in the Class A Distribution Account on such
preceding Distribution Date, plus 30 days of interest on such excess, to
the extent permitted by law, at the Class A Certificate Rate.
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of Class A Monthly Interest for such
Distribution Date and the Class A Interest Carryover Shortfall for such
Distribution Date.
"Class A Monthly Interest" means, with respect to any Distribution
Date, one-twelfth of the Class A Certificate Rate multiplied by the Class A
Certificate Balance as of the Distribution Date occurring in the preceding
Collection Period (after giving effect to any payments made on such
Distribution Date) or, in the case of the first Distribution Date, as of
the Closing Date.
"Class A Monthly Principal" means, with respect to any Distribution
Date, the Class A Percentage of Available Principal for such Distribution
Date plus the Class A Percentage of Realized Losses with respect to the
related Collection Period.
"Class A Percentage" means 93%.
"Class A Pool Factor" means, with respect to any Distribution Date,
the Class A Certificate Balance as of the close of business on such
Distribution Date (after giving effect to any payments to be made on such
Distribution Date) divided by the Original Class A Certificate Balance,
expressed as a seven-digit decimal.
"Class A Principal Carryover Shortfall" means, as of the close of
business on any Distribution Date, the excess of Class A Monthly Principal
for such Distribution Date and any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date over the amount in respect
of principal that is actually deposited in the Class A Distribution Account
on such Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of Class A Monthly Principal for such
Distribution Date and, in the case of any Distribution Date other than the
initial Distribution Date, the Class A Principal Carryover Shortfall as of
the close of business on the preceding Distribution Date; provided that the
Class A Principal Distributable Amount shall not exceed the outstanding
principal balance of the Class A Certificates prior to such Distribution
Date. In addition, on the Final Scheduled Distribution Date, the Class A
Principal Distributable Amount shall include any additional amount
available to reduce the outstanding principal balance of the Class A
Certificates to zero.
"Class B Certificate" means a certificate executed by Trustee on
behalf of the Trust and authenticated by Trustee substantially in the form
of Exhibit B.
"Class B Certificate Balance" means, at any time, the Original Class B
Certificate Balance, as reduced by all amounts allocable to principal on
the Class B Certificates distributed to Class B Holders prior to such time.
"Class B Certificate Owner" means, with respect to a Book Entry
Certificate representing a beneficial interest in the Class B Certificates,
the Person who is the owner of such Book Entry Certificate, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining
an account with such Clearing Agency (directly or as an indirect
participant in accordance with the rules, regulations and procedures of
such Clearing Agency).
"Class B Certificate Rate" means 6.70% per annum, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Class B Distribution Account" means the account established,
maintained and designated as the "Class B Distribution Account" pursuant to
Section 4.1.
"Class B Holder" means the Person in whose name a Class B Certificate
is registered in the Certificate Register, except that, solely for the
purpose of giving any consent, request or waiver pursuant to this
Agreement, the interest evidenced by any Class B Certificate registered in
the name of Seller, Servicer, or any Person actually known to an Authorized
Officer of Trustee to be an Affiliate of Seller or Servicer, shall not be
taken into account in determining whether the requisite percentage
necessary to effect any such consent, request or waiver shall have been
obtained.
"Class B Interest Carryover Shortfall" means, (a) with respect to the
initial Distribution Date, zero, and (b) with respect to any other
Distribution Date, the excess of Class B Monthly Interest for the preceding
Distribution Date and any outstanding Class B Interest Carryover Shortfall
on such preceding Distribution Date, over the amount in respect of interest
that is actually deposited in the Class B Distribution Account on such
preceding Distribution Date, plus 30 days of interest on such excess, to
the extent permitted by law, at the Class B Certificate Rate.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of Class B Monthly Interest for such
Distribution Date and the Class B Interest Carryover Shortfall for such
Distribution Date.
"Class B Monthly Interest" means, with respect to any Distribution
Date, one-twelfth of the Class B Certificate Rate multiplied by the Class B
Certificate Balance as of the Distribution Date occurring in the preceding
Collection Period (after giving effect to any payments made on such
Distribution Date) or, in the case of the first Distribution Date, as of
the Closing Date.
"Class B Monthly Principal" means, with respect to any Distribution
Date, the Class B Percentage of Available Principal for such Distribution
Date plus the Class B Percentage of Realized Losses with respect to the
related Collection Period.
"Class B Percentage" means 7%.
"Class B Pool Factor" means, with respect to any Distribution Date,
the Class B Certificate Balance as of the close of business on such
Distribution Date (after giving effect to any payments to be made on such
Distribution Date) divided by the Original Class B Certificate Balance,
expressed as a seven-digit decimal.
"Class B Principal Carryover Shortfall" means, as of the close of
business on any Distribution Date, the excess of Class B Monthly Principal
for such Distribution Date and any outstanding Class B Principal Carryover
Shortfall from the preceding Distribution Date over the amount in respect
of principal that is actually deposited in the Class B Distribution Account
on such Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of Class B Monthly Principal for such
Distribution Date and, in the case of any Distribution Date other than the
initial Distribution Date, the Class B Principal Carryover Shortfall as of
the close of business on the preceding Distribution Date; provided that the
Class B Principal Distributable Amount shall not exceed the outstanding
principal balance of the Class B Certificates prior to such Distribution
Date. In addition, on the Final Scheduled Distribution Date, the Class B
Principal Distributable Amount will include any additional amount available
to reduce the outstanding principal balance of the Class B Certificates to
zero.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. 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 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.
"Collection Period" means, (a) the period from (but not including) the
Cutoff Date to and including September 30, 1996 and (b) thereafter, each
calendar month during the term of this Agreement. With respect to any
Determination Date, Deposit Date or Distribution Date, the "related
Collection Period" means the Collection Period preceding the month in which
such Determination Date, Deposit Date or Distribution Date occurs.
"Collection Account" means the segregated account or accounts
established, maintained and designated as the "Collection Account" pursuant
to Section 4.1.
"Collections" means all collections on the Receivables and any
proceeds from Insurance Policies and lender's single interest insurance
policies to the extent not included in Liquidation Proceeds.
"Commission" means the Securities and Exchange Commission.
"Contract Rate" means, with respect to a Receivable, the rate per
annum of interest charged on the outstanding principal balance of such
Receivable.
"Corporate Trust Office" means the principal office of Trustee at
which at any particular time its corporate trust business shall be
administered, which office at date of execution of this Agreement is
located at 311 West Monroe Street, 12th Floor, Chicago, Illinois 60606,
Attention: Indenture Trust Administration, Telephone: (312) 461-2532,
Facsimile: (312) 461-3525 or at such other address as Trustee may designate
from time to time by notice to the Holders, Seller and Servicer, or the
principal corporate trust office of any successor Trustee (the address of
which the successor Trustee will notify the Holders, Seller and Servicer).
"Custodian" means Servicer in its capacity as agent of Trustee, as
custodian of the Receivable Files.
"Cutoff Date" means the close of business on August 30, 1996.
"Cutoff Date Principal Balance" means, with respect to any Receivable,
the Initial Principal Balance of such Receivable minus the sum of the
portion of all payments received under such Receivable from or on behalf of
the related Obligor on or prior to the Cutoff Date and allocable to
principal in accordance with the terms of the Receivable.
"Dealer" means, with respect to any Receivable, the seller of the
related Financed Vehicle.
"Dealer Agreement" means an agreement between Seller or a Seller
Affiliate and a Dealer pursuant to which Seller or such Seller Affiliate
gives such Dealer the right to induce persons to apply to Seller or such
Seller Affiliate for loans in connection with the retail sale of Motor
Vehicles by such Dealer.
"Defaulted Receivable" means, with respect to any Collection Period, a
Receivable (other than a Purchased Receivable) which is 150 days or more
delinquent or which Servicer has determined to charge off during such
Collection Period in accordance with its customary servicing practices;
provided that any Receivable which Seller or Servicer is obligated to
repurchase or purchase shall be deemed to have become a Defaulted
Receivable during a Collection Period if Seller or Servicer fails to
deposit the Purchase Amount on the related Deposit Date when due.
"Definitive Certificates" is defined in Section 5.8.
"Delinquency Ratio" means, for any Collection Period, the ratio,
expressed as a percentage, of (a) the principal amount of all outstanding
Receivables (other than Purchased Receivables and Defaulted Receivables)
which are 60 or more days delinquent as of the end of such Collection
Period, determined in accordance with Servicer's customary practices,
divided by (b) the Pool Balance as of the last day of such Collection
Period.
"Delivery" means with respect to any Account Property that is a
book-entry security held through the Federal Reserve System pursuant to
federal book-entry regulations, the following procedures, all in accordance
with applicable law, including applicable federal regulations and UCC: (i)
book-entry registration of such Account Property to an appropriate
book-entry account containing only customers' assets maintained with a
Federal Reserve Bank by Trustee or by a Securities Intermediary and
issuance to Trustee or to the Securities Intermediary, as the case may be,
of a deposit advice or other written confirmation of such book-entry
registration, (ii) the making by any Securities Intermediary of entries in
its books and records crediting such book-entry security held through the
Federal Reserve System pursuant to federal book-entry regulations to the
Reserve Account, and (iii) such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of
any such Account Property to Trustee, consistent with changes in applicable
law or regulations or the interpretation thereof.
"Deposit Date" means, with respect to any Collection Period, the
Business Day preceding the related Distribution Date.
"Depository Agreement" means the agreement among Seller and Servicer,
Trustee and the initial Clearing Agency, dated the Closing Date.
"Determination Date" with respect to any Collection Period, means the
eighth day of the calendar month following such Collection Period (or, if
the eighth day is not a Business Day, the immediately preceding Business
Day).
"Distribution Date" means the 15th day of each month (or, if the 15th
day is not a Business Day, the next succeeding Business Day), commencing
October 15, 1996.
"Eligible Bank" means any depository institution with trust powers
(which may be Servicer or Trustee), organized under the laws of the United
States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), which 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, which
is subject to supervision and examination by Federal or state banking
authorities and which has (a) a rating of at least P-1 from Moody's and
A-1+ from S&P with respect to short-term deposit obligations, or (b) a
rating of A2 or higher from Moody's and AAA from S&P with respect to
long-term unsecured debt obligations. If such depository institution
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then the
combined capital and surplus of such institution shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
"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. Any such accounts (other than
the Reserve Account) may be maintained with The Fifth Third Bank, or any of
its Affiliates, if such accounts meet the requirements described in the
preceding sentence.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution (including Seller or any Affiliate of
Seller) or trust company incorporated under the laws of the United
States of America or any state thereof or the District of Columbia (or
any domestic branch of a foreign bank) and subject to supervision and
examination by Federal or state banking or depository institution
authorities (including depository receipts issued by any such
institution or trust company as custodian with respect to any
obligation referred to in clause (a) above or portion of such
obligation for the benefit of the holders of such depository
receipts); provided that at the time of the investment or contractual
commitment to invest therein (which shall be deemed to be made again
each time funds are reinvested following each Distribution Date), the
commercial paper or other short-term senior unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or trust
company) of such depository institution or trust company shall have a
credit rating from S&P of A-1+ and from Moody's of P-1;
(c) commercial paper (including commercial paper of Seller or
any Affiliate of Seller) having, at the time of the investment or
contractual commitment to invest therein, a rating from S&P of A-1+
and from Moody's of P-1;
(d) investments in money market funds (including funds for
which Seller or Trustee or any of their respective Affiliates is
investment manager or advisor) having a rating from S&P of AAA-m or
AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b) above;
and
(g) any other investment which would not cause either Rating
Agency to downgrade or withdraw its then current rating of any class
of Certificates.
"Eligible Servicer" means a Person which, at the time of its
appointment as Servicer, (a) has a net worth of not less than $50,000,000,
(b) is servicing a portfolio of motor vehicle retail installment sales
contracts and/or motor vehicle loans, (c) is legally qualified, and has the
capacity, to service the Receivables, (d) has demonstrated the ability to
service a portfolio of motor vehicle loans similar to the Receivables
professionally and competently in accordance with standards of skill and
care that are consistent with prudent industry standards, and (e) is
qualified and entitled to use pursuant to a license or other written
agreement, and agrees to maintain the confidentiality of, the software
which Servicer uses in connection with performing its duties and
responsibilities under this Agreement or obtains rights to use, or develops
at its own expense, software which is adequate to perform its duties and
responsibilities under this Agreement.
"ERISA" means the Employment Retirement Income Security Act of 1974.
"Exchange Act" means the Securities Exchange Act of 1934.
"Expected Interest" means, with respect to any Distribution Date, an
amount equal to the product of (a) one-twelfth of the Weighted Average
Contract Rate for the related Collection Period multiplied by (b) an amount
equal to the result of the Pool Balance as of the beginning of the first
day of the related Collection Period minus the sum of the Principal
Balances of the Non-Advance Receivables for such Distribution Date.
"Final Scheduled Distribution Date" means the March 2002 Distribution
Date.
"Final Scheduled Maturity Date" means the last day of the Collection
Period immediately preceding the Collection Period during which the Final
Scheduled Distribution Date falls.
"Financed Vehicle" means, with respect to a Receivable, the Motor
Vehicle, together with all accessories and accessions thereto, securing or
purporting to secure the indebtedness under such Receivable.
"Holder" means the Person in whose name a Certificate is registered in
the Certificate Register, except that, solely for the purpose of giving any
consent, request or waiver pursuant to this Agreement, the interest
evidenced by any Certificate registered in the name of Seller, Servicer or
any Person actually known to an Authorized Officer of Trustee to be an
Affiliate of Seller or Servicer, shall not be taken into account in
determining whether the requisite percentage necessary to effect any such
consent, request or waiver shall have been obtained.
"Indemnified Person" is defined in Section 11.4.
"Indemnifying Person" is defined in Section 11.4
"Initial Principal Balance" means, in respect of a Receivable, the
amount advanced under the Receivable toward the purchase price of the
Financed Vehicle and related costs, including accessories, service and
warranty contracts, insurance premiums, other items customarily financed as
part of retail motor vehicle loans and other fees charged by Seller or
Seller Affiliate or Dealer and included in the amount to be financed, the
total of which is shown as the initial principal balance in the note and
security agreement evidencing and securing such Receivable.
"Insurance Policies" means, all credit life and disability insurance
policies maintained by the Obligors and all Physical Damage Insurance
Policies.
"Interest Collections" means, for any Distribution Date, the sum of
the following amounts for the related Collection Period: (a) that portion
of the Collections on the Receivables received during the related
Collection Period that is allocable to interest in accordance with
Servicer's customary procedures; (b) all Liquidation Proceeds received
during the related Collection Period; and (c) all Purchase Amounts, to the
extent allocable to accrued interest, of all Receivables that are purchased
by Seller or Servicer under an obligation which arose during the related
Collection Period. "Interest Collections" for any Distribution Date shall
exclude all payments and proceeds of any Receivables the Purchase Amount of
which has been distributed on a prior Distribution Date.
"Interest Shortfall" means, with respect to any Distribution Date, the
lesser of (a) the amount (if any) by which the Expected Interest for such
Distribution Date exceeds the Net Interest Collections for such
Distribution Date and (b) the amount (if any) by which the sum of any
unpaid Servicing Fees for the related Collection Period and prior
Collection Periods and the Class A Interest Distributable Amount and the
Class B Interest Distributable Amount for such Distribution Date exceeds
the Net Interest Collections for such Distribution Date.
"Lien" means a security interest, lien, charge, pledge, preference,
participation interest or encumbrance of any kind, other than tax liens,
mechanics' or materialmen's liens and other liens for work, labor or
materials, judicial liens and any liens that may attach by operation of
law.
"Liquidation Proceeds" means, with respect to any Receivable which has
become a Defaulted Receivable, (a) insurance proceeds received by Servicer
with respect to the Insurance Policies and any proceeds from lender's
single interest insurance policies to the extent not included in
Collections, (b) amounts received by Servicer in connection with such
Defaulted Receivable pursuant to the exercise of rights under the related
note and security agreement, and (c) the monies collected by Servicer (from
whatever source, including proceeds of a sale of a Financed Vehicle or a
deficiency balance recovered after the charge-off of the related Receivable
or as a result of the exercise of any rights against the related Dealer) on
such Defaulted Receivable net of any expenses incurred by Servicer in
connection therewith (or, in the case of proceeds of deficiency claims, net
of expenses incurred by Servicer in connection with deficiency claims on an
aggregate basis) and any payments required by law to be remitted to the
Obligor.
"Majority Holders" means Holders of Certificates evidencing not less
than a majority of the aggregate outstanding principal balance of the Class
A Certificates and the Class B Certificates taken together as a single
class.
"Moody's" means Moody's Investors Service, Inc.
"Motor Vehicle" means a new or used automobile or light duty truck
which is financed by a retail motor vehicle loan originated by Seller, a
Seller Affiliate or another financial institution.
"Motor Vehicle Loan" means a retail motor vehicle loan secured by a
Motor Vehicle originated by Seller or a Seller Affiliate or another
financial institution.
"Net Interest Collections" means, with respect to any Distribution
Date, the greater of (a) zero and (b) Interest Collections for such
Distribution Date minus the Outstanding Advances as of such Distribution
Date.
"Non-Advance Receivables" means, with respect to any Distribution
Date, any Receivables which became Defaulted Receivables during the related
Collection Period or which Servicer, in its sole discretion, believes are
likely to become Defaulted Receivables.
"Net Loss Ratio" means, for any Collection Period, an amount,
expressed as a percentage, equal to (a) the Aggregate Net Losses for such
Collection Period, divided by (b) the average of the Pool Balances on each
of the first day of such Collection Period and the last day of such
Collection Period.
"Obligor" means the borrower or co-borrowers under the related
Receivable, the proceeds of which were applied to purchase in part or in
whole a related Financed Vehicle, and any co-signer of the Receivable or
other Person who owes or may be primarily or secondarily liable for
payments under such Receivable.
"Officer's Certificate" means a certificate signed by the chairman,
the president, any vice president or the treasurer of Seller or Servicer,
as the case may be, and delivered to Trustee.
"Opinion of Counsel" means a written opinion of counsel (who may be an
employee of Seller or Servicer or any of their Affiliates) reasonably
acceptable in form to Trustee.
"Original Certificate Balance" means the sum of the Original Class A
Certificate Balance and the Original Class B Certificate Balance.
"Original Class A Certificate Balance" means $383,843,909.89.
"Original Class B Certificate Balance" means $28,892,000.00.
"Original Pool Balance" means the Pool Balance as of the Cutoff Date.
"Outstanding Advances" means, as of any date, all Advances made by
Servicer with respect to prior Distribution Dates which have not been
reimbursed pursuant to Section 4.3.
"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 Damage Insurance Policy" means a theft and physical damage
insurance policy maintained by the Obligor under a Receivable, providing
coverage against loss or damage to or theft of the related Financed
Vehicle.
"Pool Balance" means, at any time, the sum of the outstanding
Principal Balances of the Receivables (excluding Defaulted Receivables) at
such time.
"Pool Factor" means, with respect to any Collection Period, the Pool
Balance as of the last day of such Collection Period divided by the
Original Pool Balance, expressed as a seven-digit decimal.
"Principal Balance" means, as of any time, for any Receivable, the
Cutoff Date Principal Balance minus the sum of the portions of all payments
received from or on behalf of the related Obligor after the Cutoff Date and
prior to such time that are allocable to principal in accordance with the
terms of the Receivable.
"Purchase Amount" of any Receivable means, with respect to any Deposit
Date, an amount equal to the sum of (a) the outstanding Principal Balance
of such Receivable as of the last day of the preceding Collection Period
and (b) the amount of accrued and unpaid interest on such Principal Balance
at the related Contract Rate from the date a payment was last made by or on
behalf of the Obligor through and including the last day of such preceding
Collection Period, in each case after giving effect to the receipt of
monies collected on such Receivable in such preceding Collection Period.
"Purchased Receivable" means, at any time, a retail motor vehicle loan
included in the Schedule of Receivables as to which payment of the Purchase
Amount has previously been made by Seller or Servicer pursuant to this
Agreement.
"Rating Agencies" means Moody's and S&P.
"Realized Losses" means, for any Collection Period, the aggregate
principal balances of any Receivables that became Defaulted Receivables
during such Collection Period.
"Receivable" means each fixed rate retail motor vehicle loan described
in the Schedule of Receivables, but excluding Defaulted Receivables to the
extent the Principal Balances thereof have been deposited in the Collection
Account and any Purchased Receivables.
"Receivable File" is defined in Section 2.5.
"Record Date" means, subject to Section 1.4, with respect to any
Distribution Date, the last day of the related Collection Period.
"Related Agreements" means the Certificates, the Depository Agreement
and the underwriting agreement between Seller and the underwriter of the
Certificates. The Related Agreements to be executed by any party are
referred to herein as "such party's Related Agreements", "its Related
Agreements" or by a similar expression.
"Required Rating" means a rating with respect to short term deposit
obligations of at least P-1 by Moody's and at least A-1 by S&P.
"Reserve Account" means the account established, maintained and
designated as the "Reserve Account" pursuant to Section 4.6.
"Reserve Account Initial Deposit" means cash or Eligible Investments
having a value of at least $14,445,756.84.
"Reserve Account Property" is defined in Section 4.6.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"Schedule of Receivables" means, the list identifying the retail motor
vehicle loans to be conveyed to the Trust by Seller delivered to Trustee
and on file at the offices of Seller and Trustee.
"Securities Intermediary" means the institution at which the Reserve
Account is maintained from time to time.
"Seller" means The Fifth Third Bank, in its capacity as seller of the
Receivables to the Trust under this Agreement, or any successor pursuant to
Section 6.3.
"Seller Affiliate" means each Affiliate of the Seller that is
transferring Receivables to Seller for purposes of sale to the Trust.
"Servicer" means The Fifth Third Bank, in its capacity as servicer of
the Receivables under this Agreement, any successor pursuant to Section 7.3
or any successor Servicer appointed and acting pursuant to Section 8.2.
"Servicer Default" means an event specified in Section 8.1.
"Servicer's Report" is defined in Section 3.9.
"Servicing Fee" means, with respect to any Distribution Date, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate,
multiplied by (b) the Pool Balance as of the beginning of the first day of
the preceding Collection Period.
"Servicing Fee Rate" shall be 1.0% per annum, calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"Servicing Officer" means any individual involved in, or responsible
for, the administration and servicing of the Receivables, whose name
appears on a list of servicing officers attached to an Officer's
Certificate furnished to Trustee by Servicer, as such list may be amended
from time to time by Servicer in writing.
"Simple Interest Method" means the method of allocating a fixed level
payment between principal and interest, pursuant to which such payment is
allocated first to accrued and unpaid interest at the Contract Rate on the
unpaid principal balance and the remainder of such payment is allocable to
principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means with respect to any
Distribution Date, 5% of the Pool Balance as of the last day of the
preceding Collection Period, but in any event will not be less than the
lesser of (a) $6,191,038.65 and (b) the sum of (i) such Pool Balance, plus
(ii) an amount equal to the product of the Class A Percentage times such
Pool Balance times the sum of the Class A Certificate Rate and the
Servicing Fee Rate times a fraction the numerator of which is the number of
remaining Distribution Dates through and including the Final Scheduled
Distribution Date and the denominator of which is 12 plus (iii) the product
of the Class B Percentage times such Pool Balance times the sum of the
Class B Certificate Rate and the Servicing Fee Rate times a fraction the
numerator of which is the number of remaining Distribution Dates through
and including the Final Scheduled Distribution Date and the denominator of
which is 12; provided that the Specified Reserve Account Balance will be
calculated using a percentage of 8% for any Distribution Date (beginning
December 16, 1996) on which the Average Net Loss Ratio exceeds 1.50% or the
Average Delinquency Ratio exceeds 1.50%. The Specified Reserve Account
Balance may be reduced to a lesser amount as determined by Seller so long
as Seller and Trustee have received written confirmation from each Rating
Agency that such reduction will not cause such Rating Agency to withdraw or
downgrade its ratings of the Certificates.
"The Fifth Third Bank" means The Fifth Third Bank, an Ohio banking
corporation.
"Trust" means the trust created by this Agreement, which shall be
known as The Fifth Third Bank Auto Trust 1996-B.
"Trustee" means Harris Trust and Savings Bank, an Illinois banking
corporation, as Trustee under this Agreement and any successor Trustee
appointed and acting pursuant to this Agreement.
"Trust Property" means: the Receivables; all monies received under the
Receivables after the Cutoff Date; such amounts as from time to time may be
held in the Collection Account, the Class A Distribution Account and the
Class B Distribution Account (including the Account Property related
thereto); security interests in the Financed Vehicles; Seller's rights (if
any) to receive proceeds from claims on Insurance Policies covering the
Financed Vehicles or the Obligors or from claims under any lender's single
interest insurance policy naming Seller or any Seller Affiliate relating to
any Receivable; proceeds of purchase of any Receivable by a Dealer under
the related Dealer Agreements; Seller's rights to all documents and
information contained in the Receivable Files; the rights of the Trust
under this Agreement; and all proceeds of the foregoing. Notwithstanding
anything to the contrary contained herein, the Trust Property shall not
include, and the Trust shall not have any right to, the Reserve Account or
any funds actually or deemed to be deposited in such account or any
investments therein.
"UCC" means the Uniform Commercial Code as in effect in the State of
Ohio.
"Weighted Average Contract Rate" means, with respect to any Collection
Period, the weighted average of the Contract Rates of the Receivables (but
excluding any Non-Advance Receivable), weighted based on the Principal
Balance of each such Receivable as of the first day of such Collection
Period.
SECTION 1.2. Other Interpretative Provisions. All terms defined in
this Agreement shall have the defined meanings when used in any certificate
or other document delivered pursuant hereto unless otherwise defined
therein. For purposes of this Agreement and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in
this Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (b)
terms defined in Article 9 of the UCC as in effect in the State of Ohio and
not otherwise defined in this Agreement are used as defined in that
Article; (c) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; (d)
the words "hereof," "herein" and "hereunder" and words of similar import
refer to this Agreement (or the certificate or other document in which they
are used) as a whole and not to any particular provision of this Agreement
(or such certificate or document); (e) references to any Section, Schedule
or Exhibit are references to Sections, Schedules and Exhibits in or to this
Agreement (or the certificate or other document in which the reference is
made), and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (f)
the term "including" means "including without limitation"; (g) references
to any law or regulation refer to that law or regulation as amended from
time to time and include any successor law or regulation; (h) references to
any Person include that Person's successors and assigns; and (i) headings
are for purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
SECTION 1.3. Calculations. All calculations of the amount of interest
accrued on the Certificates during any Collection Period and all
calculations of the amount of the Servicing Fee payable with respect to a
Collection Period shall be made on the basis of a 360-day year consisting
of twelve 30-day months.
SECTION 1.4. References. All references to the Record Date prior to
the first Record Date in the life of the Trust shall be to the Closing
Date. All references to the first day of a Collection Period shall refer to
the opening of business on such day. All references to the last day of a
Collection Period shall refer to the close of business on such day. All
references herein to the close of business means the close of business,
Cincinnati, Ohio time.
SECTION 1.5. Action by or Consent of Holders. Whenever any provision
of this Agreement refers to action to be taken, or consented to, by
Holders, such provision shall be deemed to refer to Holders of record as of
the Record Date immediately preceding the date on which such action is to
be taken, or consented to, by Holders.
ARTICLE II. THE TRUST PROPERTY.
SECTION 2.1. Conveyance of Trust Property. In consideration of
Trustee's delivery to Seller or its designee of authenticated Certificates,
in authorized denominations, in an aggregate amount equal to the Original
Certificate Balance, Seller hereby sells, transfers, assigns and conveys to
Trustee, upon the terms and conditions hereof, in trust for the benefit of
the Holders, the Trust Property, without recourse (except to the extent of
Seller's obligations under this Agreement and the Related Agreements). The
sale, transfer, assignment and conveyance made hereunder shall not
constitute and is not intended to result in an assumption by Trustee, any
Holder or any Certificate Owner of any obligation of Seller to the Obligors
or any other Person in connection with the Receivables and the other Trust
Property or any agreement, document or instrument related thereto.
SECTION 2.2. Representations and Warranties as to Each Receivable.
Seller hereby makes the following representations and warranties as to each
Receivable conveyed by it to the Trust hereunder on which Trustee shall
conclusively rely in accepting the Trust Property in trust and
authenticating the Certificates. Unless otherwise indicated, such
representations and warranties shall speak as of the Closing Date, but
shall survive the sale, transfer and assignment of the Receivables and the
other Trust Property to the Trust.
(a) Characteristics of Receivables. The Receivable has been
fully and properly executed by the parties thereto and (i) has been
originated by Seller or a Seller Affiliate through Dealers in the
ordinary course of its business and in accordance with Seller's
underwriting standards to finance the retail sale by a Dealer of the
Financed Vehicle or acquired by Seller or a Seller Affiliate through
the acquisition of a financial institution that owned such Receivable,
(ii) is secured by a valid, subsisting, binding and enforceable first
priority security interest in favor of Seller or a Seller Affiliate in
the Financed Vehicle (subject to administrative delays and clerical
errors on the part of the applicable government agency and to any
statutory or other lien arising by operation of law after the Closing
Date which is prior to such security interest), which security
interest is assignable together with such Receivable, and has been so
assigned, (A) in the case of a security interest in favor of a Seller
Affiliate, to Seller, and subsequently assigned by Seller to Trustee,
and (B) in all other cases, directly by Seller to Trustee, (iii)
contains customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization against
the collateral of the benefits of the security, (iv) provided, at
origination, for level monthly payments (provided that the amount of
the last payment may be different), which fully amortize the Initial
Principal Balance over the original term, (v) provides for interest at
the Contract Rate specified in the Schedule of Receivables (vi) was
originated in the United States and (vii) the Obligor of which is not
a government or a governmental subdivision or agency.
(b) Schedule of Receivables. The information set forth in the
Schedule of Receivables was true and correct as of the close of
business on the Cutoff Date.
(c) Compliance with Law. The Receivable complied at the time it
was originated or made, and will comply as of the Closing Date, in all
material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including, to the extent
applicable, usury laws, the Federal Truth in Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, Federal Reserve
Board Regulations B and Z and any other consumer credit, consumer
protection, equal opportunity and disclosure laws.
(d) Binding Obligation. The Receivable constitutes the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable in all material respects by the holder thereof in
accordance with its terms, and the Receivable is not subject to any
right of rescission, setoff, counterclaim or defense, including the
defense of usury.
(e) Lien in Force. Neither Seller nor any Seller Affiliate has
taken any action which would have the effect of releasing the related
Financed Vehicle from the Lien granted by the Receivable in whole or
in part.
(f) No Amendment or Waiver. No material provision of the
Receivable has been amended, waived, altered or modified in any
respect, except such waivers as would be permitted under this
Agreement, and no amendment, waiver, alteration or modification causes
such Receivable not to conform to the other representations or
warranties contained in this Section.
(g) No Liens. Neither Seller nor any Seller Affiliate has
received notice of any Liens or claims, including Liens for work,
labor, materials or unpaid state or federal taxes, relating to the
Financed Vehicle securing the Receivable, that are or may be prior to
or equal to the Lien granted by the Receivable.
(h) No Default. To the knowledge of Seller, no default, breach,
violation or event permitting acceleration under the terms of the
Receivable exists and no continuing condition that with notice or
lapse of time, or both, would constitute a default, breach, violation
or event permitting acceleration under the terms of the Receivable has
arisen except for payment delinquencies continuing for a period of not
more than 30 days as of the Cutoff Date.
(i) Insurance. The Receivable requires the Obligor to insure
the Financed Vehicle under a Physical Damage Insurance Policy, pay the
premiums for such insurance and keep such insurance in full force and
effect.
(j) Good Title. Immediately prior to the transfer and
assignment herein contemplated, Seller had good and marketable title
to the Receivable free and clear of any Lien and had full right and
power to transfer and assign the Receivable to the Trust and
immediately upon the transfer and assignment of the Receivable to the
Trust, the Trust shall have good and marketable title to the
Receivable, free and clear of any Lien; and the Trust's interest in
the Receivable resulting from the transfer has been perfected under
the UCC.
(k) Obligations. Seller and each Seller Affiliate has duly
fulfilled all obligations on its part to be fulfilled under, or in
connection with, the Receivable.
(l) Possession. There is only one original executed Receivable,
and immediately prior to the Closing Date, Seller will have possession
of such original executed Receivable.
SECTION 2.3. Representations and Warranties as to the Receivables in
the Aggregate and Actions of Seller. Seller hereby makes the following
representations and warranties as to the Receivables conveyed by it to the
Trust hereunder on which Trustee shall rely in accepting the Trust Property
in trust and authenticating the Certificates. Unless otherwise indicated,
such representations and warranties shall speak as of the Closing Date, but
shall survive the sale, transfer and assignment of the Receivables and the
other Trust Property to the Trust.
(a) Amounts. The Original Pool Balance was $412,735,909.89.
(b) Individual Characteristics. The Receivables have the
following individual characteristics as of the Cutoff Date: (i) each
Receivable is secured by either a new or used automobile or light duty
truck; (ii) each Receivable has a Contract Rate of at least 8.00% and
not more than 12.00%; (iii) each Receivable had an original term to
maturity of more than 66 months and a remaining maturity, as of the
Cutoff Date, of not less than 6 months and not more than 60 months;
(iv) each Receivable had an Initial Principal Balance of not more than
$100,098.00 and a Cutoff Date Principal Balance of not less than
$1,003.34 nor more than $98,609.48; (v) no Receivable was more than 30
days past due as of the Cutoff Date; (vi) no Financed Vehicle had been
repossessed as of the Cutoff Date; (vii) no Receivable was subject to
a force-placed physical damage insurance policy on the related
Financed Vehicle; (viii) each Receivable is a Simple Interest
Receivable; (ix) Seller or a Seller Affiliate has received at least
one payment on each Receivable; and (x) the Dealer of the Financed
Vehicle has no participation in, or other right to receive, any
proceeds of the Receivable. The Receivables were selected using
selection procedures that were not intended by Seller to be adverse to
the Holders.
(c) Aggregate Characteristics. The Receivables had the
following characteristics in the aggregate as of the Cutoff Date: (i)
approximately 37.24% of the Original Pool Balance was attributable to
loans for purchases of new Financed Vehicles (it being understood that
Servicer's computer records and data processors record a Financed
Vehicle as new for this purpose if the model year and year of the
related note and security agreement evidencing the Receivable are the
same, which causes some Financed Vehicles that may have had previous
owners to be classified as new), and approximately 62.76% of the
Original Pool Balance was attributable to loans for purchases of used
Financed Vehicles; (ii)approximately 66.45%, 13.48%, 10.05% and 8.07%
of the Original Pool Balance was attributable to Receivables the
mailing addresses of the Obligors with respect to which are located in
the States of Ohio, Kentucky, Indiana and Michigan, respectively, and
no other state accounts for more than 1.0% of the Original Pool
Balance; (iii) the weighted average Contract Rate of the Receivables
was 9.189%; (iv) there are 42,851 Receivables being conveyed by Seller
to the Trust; (v) the average Cutoff Date Principal Balance of the
Receivables was $9,631.89; (vi) the weighted average original term and
weighted average remaining term of the Receivables were 55 months and
46 months, respectively; and (vii) not more than 1.2% of the Original
Principal Balance is attributable to Acquired Receivables.
(d) Marking Records. By the Closing Date, Seller shall have
caused the portions of Seller's and each Seller Affiliate's electronic
master record of retail motor vehicle loans relating to the
Receivables to be clearly and unambiguously marked to show that such
Receivables constitute part of the Trust Property and are owned by the
Trust in accordance with the terms of this Agreement.
(e) No Assignment. As of the Closing Date, Seller shall not
have taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the
Insurance Policies or Dealer Agreements, or payments due under the
Receivables that is senior to, or equal with, that of the Trust.
SECTION 2.4. Repurchase upon Breach. Seller, Servicer or Trustee, as
the case may be, shall inform the other parties promptly, in writing, upon
the discovery of any breach or failure to be true of the warranties made by
Seller pursuant to Section 2.2 or 2.3, provided that (a) the failure to
give such notice shall not affect any obligation of Seller and (b) Trustee
shall not be deemed to have discovered any such breach or failure unless
Trustee has been notified of such breach or failure in accordance with
Section 11.6 or an Authorized Officer of Trustee otherwise has actual
knowledge of such breach or failure. If the breach or failure shall not
have been cured by the last day of the Collection Period which includes the
60th day after the date on which Seller becomes aware of, or receives
written notice from Trustee or Servicer of, such breach or failure and such
breach or failure materially and adversely affects the interests of the
Trust and the Holders in any Receivable, Seller shall repurchase each such
Receivable from the Trust as of such last day of such Collection Period. In
consideration of the purchase of a Receivable hereunder, Seller shall remit
the Purchase Amount of such Receivable, no later than the close of business
on the next Deposit Date, in the manner specified in Section 4.4. Except as
provided in Section 6.2, the sole remedy of the Trust, Trustee or the
Holders with respect to a breach or failure to be true of the warranties
made by Seller pursuant to Section 2.2 or 2.3 shall be to require Seller to
repurchase Receivables pursuant to this Section.
SECTION 2.5. Custodian of Receivable Files. (a) Custody. To assure
uniform quality in servicing the Receivables and to reduce administrative
costs, Trustee, upon the execution and delivery of this Agreement,
revocably appoints the Custodian, as agent, and the Custodian accepts such
appointment, to act as agent on behalf of Trustee to maintain custody of
the following documents or instruments, which are hereby constructively
delivered to Trustee with respect to each Receivable (collectively, a
"Receivable File"):
(i) the fully executed original of the Receivable;
(ii) any documents customarily delivered to or held by Seller
or Servicer evidencing the existence of any Physical Damage Insurance
Policies;
(iii) the original credit application, fully executed by the
Obligor;
(iv) the original certificate of title, or such other documents
as Seller or a Seller Affiliate, as appropriate, keeps on file, in
accordance with its customary procedures, evidencing the security
interest of Seller or such Seller Affiliate in the Financed Vehicle;
(v) electronic entries and originals or true copies of all
documents, instruments or writings relating to extensions, amendments
or waivers of the Receivable; and
(vi) any and all other documents or electronic records that
Seller or Servicer, as the case may be, keeps on file, in accordance
with its customary procedures, relating to the Receivable, the Obligor
or the Financed Vehicle.
(b) Safekeeping. Servicer, in its capacity as Custodian, shall hold
the Receivable Files as agent on behalf of Trustee for the benefit of all
present and future Holders, and maintain such accurate and complete
accounts, records and computer systems pertaining to each Receivable as
shall enable Servicer and Trustee to comply with the terms and provisions
of this Agreement applicable to them. In performing its duties as Custodian
hereunder, the Custodian shall act with reasonable care, exercising the
degree of skill, attention and care that Servicer exercises with respect to
receivable files relating to other similar motor vehicle loans owned and/or
serviced by the Custodian and that is consistent with industry standards.
The Custodian shall maintain the Receivable Files in such a manner as shall
enable Trustee to verify, if Trustee so elects, the accuracy of the record
keeping of Servicer. Servicer shall promptly report to Trustee any failure
on its part to hold the Receivable Files and maintain its accounts, records
and computer systems as herein provided, and promptly take appropriate
action to remedy any such failure. The Custodian hereby acknowledges
receipt of the Receivable File for each Receivable listed on the Schedule
of Receivables.
(c) Maintenance of and Access to Records. The Custodian shall
maintain each Receivable File at the location specified in Schedule A to
this Agreement, or at such other office of the Custodian within the United
States as shall be specified to Trustee by 30 days' prior written notice.
Upon Trustee's reasonable request, the Custodian shall make available to
Trustee or its agents (or, when requested in writing by Trustee, to its
attorneys or auditors) the Receivable Files and the related accounts,
records and computer systems maintained by the Custodian at such times
during the normal business hours of the Custodian for purposes of
inspecting, auditing or making copies or abstracts of the same.
(d) Release of Documents. Upon written instructions from Trustee, the
Custodian shall release any document in the Receivable Files to Trustee,
Trustee's agent or Trustee's designee, as the case may be, at such place or
places as Trustee may designate, as soon thereafter as is practicable. Any
document so released shall be handled by Trustee with due care and returned
to the Custodian for safekeeping as soon as Trustee or its agent or
designee, as the case may be, shall have no further need therefor.
(e) Title to Receivables. The Custodian agrees that, in respect of
any Receivable File held by the Custodian hereunder, the Custodian will not
at any time have or in any way attempt to assert any interest in such
Receivable File or the related Receivable, other than solely for the
purpose of collecting or enforcing the Receivable for the benefit of the
Trust and that the entire equitable interest in such Receivable and the
related Receivable File shall at all times be vested in the Trust.
(f) Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by an Authorized Officer of
Trustee. A certified copy of excerpts of certain resolutions of the Board
of Directors of Trustee shall constitute conclusive evidence of the
authority of any such Authorized Officer to act and shall be considered in
full force and effect until receipt by the Custodian of written notice to
the contrary given by Trustee.
(g) Custodian's Indemnification. The Custodian shall indemnify and
hold harmless Trustee, its officers, directors, employees and agents and
the Holders from and against any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses of any kind whatsoever
that may be imposed on, incurred or asserted against Trustee or the Holders
as the result of the negligence or willful misconduct of the Custodian
relating to the maintenance and custody of the Receivable Files; provided
that the Custodian shall not be liable hereunder to the extent that such
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses result from the willful misfeasance, bad faith or negligence of
Trustee. Indemnification under this Section 2.5(g) shall include reasonable
fees and expenses of counsel and expenses of litigation and shall survive
termination of this Agreement and the resignation or removal of Trustee. If
Custodian shall have made any indemnity payments to Trustee pursuant to
this Section and Trustee thereafter shall collect any of such amounts from
Persons other than Custodian, Trustee shall immediately upon receipt
thereof repay such amounts to Custodian, without interest.
(h) Effective Period and Termination. Servicer's appointment as
Custodian shall become effective as of the Cutoff Date and shall continue
in full force and effect until terminated pursuant to this subsection (h).
If Servicer shall resign as Servicer in accordance with Section 7.5 or if
all of the rights and obligations of Servicer shall have been terminated
under Section 8.1, the appointment of Servicer as Custodian hereunder may
be terminated by Trustee or by the Majority Holders, in the same manner as
Trustee or such Holders may terminate the rights and obligations of
Servicer under Section 8.1. Trustee may terminate Servicer's appointment as
Custodian hereunder at any time with cause, or with 30 days' prior notice
without cause, upon written notification to Servicer. As soon as
practicable after any termination of such appointment Servicer shall
deliver, or cause to be delivered, the Receivable Files to Trustee,
Trustee's agent or Trustee's designee at such place or places as Trustee
may reasonably designate. Notwithstanding any termination of Servicer as
Custodian hereunder (other than in connection with a termination resulting
from the termination of Servicer, as such, pursuant to Section 8.1), from
and after the date of such termination, and for so long as Servicer is
acting as such pursuant to this Agreement, Trustee shall provide, or cause
the successor Custodian to provide, access to the Receivable Files to
Servicer, at such times as Servicer shall reasonably request, for the
purpose of carrying out its duties and responsibilities with respect to the
servicing of the Receivables hereunder.
ARTICLE III. ADMINISTRATION AND SERVICING OF TRUST PROPERTY.
SECTION 3.1. Duties of Servicer. (a) Servicer is hereby authorized
to act as agent for the Trust and in such capacity shall manage, service,
administer and make collections on the Receivables, and perform the other
actions required by Servicer under this Agreement, with reasonable care.
Without limiting the standard set forth in the preceding sentence, Servicer
shall use a degree of skill, attention and care that is not less than
Servicer exercises with respect to comparable motor vehicle loans that it
services for itself or others and that is consistent with prudent industry
standards. Servicer's duties shall include the collection and posting of
all payments, responding to inquiries by Obligors on the Receivables, or by
federal, state or local governmental authorities, investigating
delinquencies, sending payment coupons to Obligors, reporting required tax
information to Obligors, accounting for Collections, monitoring the status
of Physical Damage Insurance Policies with respect to the Financed
Vehicles, furnishing monthly and annual statements to Trustee with respect
to distributions, providing collection and repossession services in the
event of Obligor default and performing the other duties specified herein.
Servicer shall also administer and enforce all rights and responsibilities
of the holder of the Receivables provided for in the Physical Damage
Insurance Policies and the Dealer Agreements. Without limiting the
generality of the foregoing, Servicer is hereby authorized and empowered by
Trustee to execute and deliver, on behalf of itself, the Trust, Trustee and
the Holders, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments,
with respect to the Receivables or to the Financed Vehicles, all in
accordance with this Agreement; provided that notwithstanding the
foregoing, Servicer shall not, except pursuant to an order from a court of
competent jurisdiction, release an Obligor from payment of any unpaid
amount under any Receivable or waive the right to collect the unpaid
balance of any Receivable from the Obligor, except in connection with a de
minimis deficiency which Servicer would not attempt to collect in
accordance with its customary procedures. If Servicer shall commence a
legal proceeding to enforce a Receivable, Trustee shall thereupon be deemed
to have automatically assigned such Receivable to Servicer, which
assignment shall be solely for purposes of collection. Trustee shall
furnish Servicer with any powers of attorney and other documents or
instruments necessary or appropriate to enable Servicer to carry out its
servicing and administrative duties hereunder.
(b) Servicer may, at any time without notice or consent, delegate (i)
any or all duties under this Agreement to any Person more than 50% of the
voting securities of which are owned, directly or indirectly, by Fifth
Third Bancorp, an Ohio corporation, so long as The Fifth Third Bank acts as
Servicer, or (ii) specific duties to sub-contractors who are in the
business of performing such duties; provided that no such delegation shall
relieve Servicer of its responsibility with respect to such duties and
Servicer shall remain obligated and liable to Trustee and the Holders for
servicing and administering the Receivables in accordance with this
Agreement as if Servicer alone were performing such duties.
SECTION 3.2. Collection of Receivable Payments. (a) Servicer shall
make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due,
and otherwise act with respect to the Receivables, the Physical Damage
Insurance Policies, the Dealer Agreements and the other Trust Property in
such manner as will, in the reasonable judgment of Servicer, maximize the
amount to be received by the Trust with respect thereto, in accordance with
the standard of care required by Section 3.1. Servicer shall be entitled to
amend or modify any Receivable in accordance with its customary procedures
if Servicer believes in good faith that such amendment or modification is
in the best interests of the Trust and may also permit extensions not more
than once per year; provided that Servicer may not, unless ordered by a
court of competent jurisdiction or otherwise required by applicable law,
(i) extend a Receivable beyond the Final Scheduled Maturity Date, (ii)
amend or modify the Principal Balance or Contract Rate of any Receivable,
or (iii) amend or otherwise modify any Receivable if such amendment or
modification would result in a deemed exchange of such Receivable under
Section 1001 of the Code. In the event that Servicer fails to comply with
the provisions of the preceding sentence, Servicer shall be required to
purchase the Receivable or Receivables affected thereby, for the Purchase
Amount, in the manner specified in Section 3.7 as of the close of business
for the Collection Period in which such failure occurs. Servicer may, in
its discretion (in accordance with its customary standards, policies and
procedures), waive any prepayment charge, late payment charge, extension
fee or any other fee that may be collected in the ordinary course of
servicing a Receivable.
(b) If in the course of collecting payments under the Receivables,
Servicer determines to set off any obligation of Servicer to an Obligor
against an amount payable by the Obligor with respect to such Receivable,
Servicer shall deposit the amount so set off in the Collection Account, no
later than the close of business on the Deposit Date for the Collection
Period in which the set-off occurs. All references herein to payments or
Liquidation Proceeds collected by Servicer shall include amounts set-off by
Servicer.
SECTION 3.3. Realization upon Receivables. On behalf of the Trust,
Servicer shall charge off a Receivable as a Defaulted Receivable in
accordance with its customary standards (and, in no event later than 150
days after a Receivable shall have become delinquent) 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,
Servicer shall follow such customary and usual practices and procedures as
it shall deem necessary or advisable in its servicing of motor vehicle
loans, and as are otherwise consistent with the standard of care required
under Section 3.1, which shall include exercising any rights under the
Dealer Agreements and selling the Financed Vehicle at public or private
sale. Servicer shall be entitled to recover all reasonable expenses
incurred by it in the course of repossessing and liquidating a Financed
Vehicle into cash proceeds and pursuing any deficiency claim against the
related Obligor, but only out of the cash proceeds of such Financed Vehicle
or any deficiency obtained from the Obligor (except that the expenses of
pursuing deficiency claims may be deducted on a ratable basis from amounts
obtained from deficiency claims on an aggregate basis), which amounts may
be retained by Servicer (and shall not be required to be deposited in the
Collection Account) to the extent of such expenses. The foregoing shall be
subject to the provision that, in any case in which a Financed Vehicle
shall have suffered damage, Servicer shall not expend funds in connection
with the repair or the repossession of such Financed Vehicle unless it
shall determine in its discretion that such repair and/or repossession will
increase the Liquidation Proceeds of the related Receivable by an amount
equal to or greater than the amount of such expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic
assignment from Trustee to Servicer of the rights under such Dealer
Agreement. If, however, in any enforcement suit or legal proceeding, it is
held that Servicer may not enforce a Dealer Agreement on the grounds that
it is not a real party in interest or a Person entitled to enforce the
Dealer Agreement, Trustee, at Servicer's expense, or Seller, at Seller's
expense, shall take such steps as Servicer deems necessary to enforce the
Dealer Agreement, including bringing suit in its name or the names of the
Holders.
SECTION 3.4. Physical Damage Insurance. (a) The Receivables require
that each Financed Vehicle be insured under a Physical Damage Insurance
Policy. Servicer shall monitor the status of such physical damage insurance
coverage to the extent consistent with its customary servicing procedures.
If Servicer shall determine that an Obligor has failed to obtain or
maintain a Physical Damage Insurance Policy covering the related Financed
Vehicle, Servicer shall use its best efforts to enforce the rights of the
holder of the Receivable under the Receivable to require the Obligor to
obtain such physical damage insurance, provided that Servicer shall not be
required to take such actions if there is in place a lender's single
interest policy with respect to the related Financed Vehicle that complies
with Servicer's customary requirements or if the Obligor resides in the
State of Michigan. It is understood that Servicer will not "force-place"
any Physical Damage Insurance Policy on any Financed Vehicle.
(b) Servicer may sue to enforce or collect upon the Physical Damage
Insurance Policies, in its own name, if possible, or as agent for the
Trust. If Servicer elects to commence a legal proceeding to enforce a
Physical Damage Insurance Policy, the act of commencement shall be deemed
to be an automatic assignment of the rights of the Trust under such
Physical Damage Insurance Policy to Servicer for purposes of collection
only. If, however, in any enforcement suit or legal proceeding it is held
that Servicer may not enforce a Physical Damage Insurance Policy on the
grounds that it is not a real party in interest or a holder entitled to
enforce the Physical Damage Insurance Policy, Trustee, on behalf of the
Trust, at Servicer's expense, or Seller, at Servicer's expense, shall take
such steps as Servicer shall direct in writing to enforce such Physical
Damage Insurance Policy, including bringing suit in its name or the name of
Trustee for the benefit of the Holders. Servicer shall make all claims and
enforce its rights under any lender's single interest insurance policy (to
the extent such claims or rights related to Receivables) for the benefit of
the Trust and shall treat as Collections all related proceeds of such
policies.
SECTION 3.5. Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section
3.1, shall take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed
Vehicle for the benefit of the Trust. Trustee, on behalf of the Trust,
hereby authorizes Servicer, and Servicer hereby agrees, to take such steps
as are necessary to re-perfect such security interest on behalf of the
Trust in the event Servicer receives notice of the relocation of a Financed
Vehicle. If there has been a Servicer Default, upon the request of Trustee,
Seller and Servicer, at their expense, shall promptly and duly execute and
deliver such documents and instruments, and take such other actions as may
be necessary, as evidenced by an Opinion of Counsel delivered to Trustee,
to perfect the Trust's interest in the Trust Property against all other
Persons, including the delivery of the Receivables and the Receivable Files
to Trustee, its agent, or its designee, the endorsement and delivery of the
Physical Damage Insurance Policies or the notification of the insurers
thereunder, the execution of transfer instruments, and the endorsement to
Trustee and the delivery of the certificates of title to the Financed
Vehicles to the appropriate department or departments of motor vehicles (or
other appropriate governmental agency).
SECTION 3.6. Covenants of Servicer. Servicer makes the following
covenants on which Trustee relies in accepting the Trust Property in trust
and in executing and authenticating the Certificates:
(a) Security Interest to Remain in Force. Servicer shall not
release any Financed Vehicle from the security interest granted by the
related Receivable in whole or in part, except upon payment in full of
the Receivable or as otherwise contemplated herein.
(b) No Impairment. Servicer shall not impair in any material
respect the rights of the Holders in the Receivables, the Dealer
Agreements or the Physical Damage Insurance Policies or, subject to
clause (c), otherwise amend or alter the terms thereof if, as a result
of such amendment or alteration, the interests of the Trust and the
Holders hereunder would be materially adversely affected.
(c) Amendments. Servicer shall not amend or otherwise modify
any Receivable (including the grant of any extension thereunder),
except in accordance with Section 3.2.
SECTION 3.7. Purchase by Servicer upon Breach. Seller, Servicer or
Trustee, as the case may be, shall inform the other parties promptly, in
writing, upon the discovery of any breach by Servicer of its covenants
under Sections 3.5 or 3.6; provided that (a) the failure to give such
notice shall not affect any obligation of Servicer and (b) Trustee shall
not be deemed to have discovered any such breach or failure unless Trustee
has been notified of such breach or failure in accordance with Section 11.6
or an Authorized Officer of Trustee otherwise has actual knowledge of such
breach or failure. Unless the breach shall have been cured by the last day
of the Collection Period which includes the 60th day (or, if Servicer
elects, the 30th day) after the date on which Servicer becomes aware of, or
receives written notice of, such breach, Servicer shall purchase the
Receivable or Receivables materially and adversely affected thereby on the
immediately succeeding Deposit Date; provided that in the case of a breach
of the covenant contained in Section 3.6(c), Servicer shall be obligated to
purchase the affected Receivable or Receivables on the Deposit Date
immediately succeeding the Collection Period during which Servicer becomes
aware of, or receives written notice of, such breach. In consideration of
the purchase of a Receivable hereunder, Servicer shall remit the Purchase
Amount of such Receivable in the manner specified in Section 4.4. Except as
provided in Section 7.2, the sole remedy of the Trust, Trustee, or the
Holders against Servicer with respect to a breach pursuant to Section 3.6
shall be to require Servicer to repurchase Receivables pursuant to this
Section.
SECTION 3.8. Servicing Compensation. On each Distribution Date
Servicer shall be paid the Servicing Fee for such Distribution Date and any
unpaid Servicing Fees from prior Distribution Dates to the extent of funds
available therefor in accordance with the provisions of Section 4.5. If it
would not cause either Rating Agency to downgrade or withdraw its rating of
the Certificates, the Servicing Fee in respect of a Collection Period
(together with any portion of a Servicing Fee that remains unpaid from
prior Distribution Dates) at the option of Servicer may be paid at or as
soon as possible after the beginning of such Collection Period out of the
first collections of interest received on the Receivables for such
Collection Period. In addition, Servicer shall retain any late fees,
prepayment charges, extension fees or other fees and charges collected
during the Collection Period and shall be paid any interest earned during
the Collection Period on deposits in the Accounts. Any late fees,
prepayment charges, extension fees or other fees and charges collected
during the Collection Period and any interest earned during the Collection
Period on deposits in the Accounts shall not constitute Interest
Collections or Available Principal. Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder
(including fees and expenses of Trustee (and any custodian appointed by
Trustee) and independent accountants, any subservicer, taxes imposed on
Servicer or any subservicer, and expenses incurred in connection with
distributions and reports to Holders) except expenses incurred in
connection with realizing upon Receivables under Section 3.3.
SECTION 3.9. Servicer's Report. (a) On or before the Determination
Date immediately preceding each Distribution Date, Servicer shall deliver
to Trustee a certificate of a Servicing Officer substantially in the form
of Exhibit C (a "Servicer's Report") and attached to a Servicer's report
containing, among other things, (i) all information necessary to make the
deposits, transfers and distributions required by Sections 4.5 and 4.6,
(ii) all information necessary for sending statements to Holders pursuant
to Section 4.7, (iii) all information necessary to prepare the certificate
described in Section 9.3, (iv) all information necessary to determine if
there has been a Servicer Default under Section 8.1, and (v) all
information necessary to reconcile all deposits to, and withdrawals from,
the Collection Account for such Distribution Date and the related
Collection Period. Servicer also shall separately identify (by account
number of the Receivable as it appears in the Schedule of Receivables) to
Trustee in a written notice or a list in computer readable form the
Receivables to be repurchased by Seller or to be purchased by Servicer, as
the case may be, on the related Deposit Date, and each Receivable which
became a Defaulted Receivable during the related Collection Period.
Notwithstanding the foregoing, it is understood and agreed that Trustee has
agreed to act as Servicer's agent for the purpose of preparing and
delivering Servicer's Reports, and so long as Trustee timely prepares and
delivers Servicer's Report, Servicer shall not be required to do so. Any
failure by Trustee to prepare and deliver a Servicer's Report, or
inaccuracy in any Servicer's Report so prepared and delivered, shall (so
long as Servicer shall also not timely prepare and deliver such Servicer's
Report or correct any such inaccuracy) have the same consequences as would
such a failure by Servicer or inaccuracy in a Servicer's Report prepared
and filed by Servicer.
(b) Servicer shall provide Trustee with a magnetic tape containing
the database file for each Receivable (i) at or prior to closing (but with
information as of the Cutoff Date) and (ii) thereafter, as of the last day
of the preceding Monthly Period not later than the third Business Day
preceding each Determination Date. Servicer hereby represents, as of the
date of each such delivery, that such information is accurate and complete
in all material respects.
(c) Trustee shall not be responsible for delays attributable to
Servicer's failure to deliver information, defects in the information
supplied by Servicer or other circumstances beyond Trustee's control.
SECTION 3.10. Annual Statement as to Compliance. (a) Servicer shall
deliver to Trustee, on or before March 31 of each year, commencing March
31, 1997, an Officer's Certificate, stating that (i) a review of the
activities of Servicer during the preceding calendar year (or the period
from the Closing Date to and including the end of the preceding calendar
year, 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, 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.
(b) Servicer shall deliver to Trustee and each Rating Agency,
promptly upon having knowledge thereof, but in no event later then 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, a Servicer Default under Section 8.1.
SECTION 3.11. Independent Certified Public Accountants' Report.
Servicer shall cause a firm of independent certified public accountants
(who may also render other services to Servicer and Seller) to deliver to
Trustee on or before March 31 of each year, commencing March 31, 1997, a
report of examination addressed to the Board of Directors of Servicer and
to Trustee to the effect that such firm has examined the Motor Vehicle Loan
servicing functions of Servicer over the previous calendar year (or the
period from the Closing Date to and including the end of the preceding
calendar year, in the case of the first such report) and that such
examination (i) included tests relating to Motor Vehicle Loans serviced for
others in accordance with the requirements of the Uniform Single Audit
Program for Mortgage Bankers, to the extent the procedures in such Program
are applicable to the servicing obligations set forth in this Agreement and
(ii) except as described in the report, disclosed no exceptions or errors
in the records relating to Motor Vehicle Loans serviced for others that, in
the firm's opinion, paragraph four of such Program requires such firm to
report; provided that Servicer shall not be required to cause the delivery
of such a report with respect to any period for which each Rating Agency
shall have waived such requirement in a written notice to Servicer and
Trustee.
SECTION 3.12. Access to Certain Documentation and Information
Regarding Receivables. Servicer shall provide Trustee and the Holders with
access to the Receivable Files (in the case of the Holders, where it shall
be required by applicable statutes or regulations to give 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
Servicer. Nothing in this Section shall affect the obligation of Servicer
to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of Servicer to provide access to
information as a result of such obligation shall not constitute a breach of
this Section. Any Holder, by its acceptance of a Certificate, shall be
deemed to have agreed to keep any information obtained by it pursuant to
this Section confidential and not to use such information for any other
purpose, except as required by applicable law.
SECTION 3.13. Reports to the Commission. 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 Exchange Act, and the
rules and regulations of the Commission thereunder. Seller (if it is
otherwise not Servicer) shall, at its expense, cooperate in any reasonable
request made by Servicer in connection with such filings.
SECTION 3.14. Reports to the Rating Agency. Servicer shall deliver to
each Rating Agency a copy of all reports or notices furnished or delivered
pursuant to this Article and a copy of any amendments, supplements or
modifications to this Agreement and any other information reasonably
requested by such Rating Agency to monitor this transaction.
ARTICLE IV. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO HOLDERS.
SECTION 4.1. Establishment of Accounts. (a) Trustee, on behalf of
the Trust and for the benefit of the Holders, shall establish and maintain
in the name of Trustee one or more segregated Eligible Deposit Accounts
(collectively, the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Holders. Trustee, on behalf of the Trust and for the benefit of the Class A
Holders, shall establish and maintain in the name of Trustee an Eligible
Deposit Account (the "Class A Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Class A Holders. Trustee, on behalf of the Trust and for the
benefit of the Class B Holders, shall establish and maintain in the name of
Trustee an Eligible Deposit Account (the "Class B Distribution Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Class B Holders. The Collection Account,
the Class A Distribution Account and the Class B Distribution Account shall
be initially established and maintained with the trust department of
Trustee.
(b) Funds on deposit in the Collection Account, the Class A
Distribution Account and the Class B Distribution Account (collectively,
the "Accounts") shall be invested by Trustee in Eligible Investments
selected by Servicer and confirmed in writing by Servicer to Trustee;
provided that, it is understood and agreed that Trustee shall not be liable
for any loss arising from such investment in Eligible Investments. All such
Eligible Investments shall be held by Trustee for the benefit of the
beneficiaries of the applicable Account; provided that on each Distribution
Date all interest and other investment income (net of losses and investment
expenses) on funds on deposit therein shall be withdrawn from the Accounts
at the written direction of Servicer and shall be paid to Servicer and
shall not be available to the Holders. Other than as permitted by each
Rating Agency, funds on deposit in the Accounts with respect to any
Collection Period or Distribution Date shall be invested only in Eligible
Investments that, except for money market funds, will mature so that such
funds will be available at the close of business on the related Deposit
Date. Funds deposited in an Account on a Deposit Date which immediately
precedes a Distribution Date upon the maturity of any Eligible Investments
are not required to be (but may be) invested overnight. No Eligible
Investment with a stated maturity shall be disposed of prior to that
maturity unless a default occurs with respect to that Eligible Investment
and Servicer directs Trustee in writing to dispose of it.
(c) Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Accounts and in all proceeds thereof
(excluding all income thereon) and all such funds, investments and proceeds
shall be part of the Trust Property. The Accounts shall be under the sole
dominion and the exclusive custody and control of Trustee, and Trustee
shall have sole signature authority with respect thereto. If, at any time,
any of the Accounts ceases to be an Eligible Deposit Account, Trustee (or
Servicer on its behalf) shall within ten Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments that are in the existing Account
which is no longer an Eligible Deposit Account to such new Account.
SECTION 4.2. Collections. (a) Subject to the provisions of the
succeeding sentence and of subsections (b) and (c), Servicer shall remit to
the Collection Account all payments by or on behalf of the Obligors on the
Receivables, including all Liquidation Proceeds received by Servicer during
any Collection Period, as soon as practicable, but in no event after the
close of business on the second Business Day, after receipt thereof.
Subject to the provisions of subsections (b) and (c), on the Closing Date,
Servicer shall deposit in the Collection Account all payments by or on
behalf of the Obligors on the Receivables received by Servicer after the
Cutoff Date and on or prior to the second Business Day immediately
preceding the Closing Date.
(b) Notwithstanding the provisions of subsection (a), if (i) Servicer
shall have the Required Rating or (ii) Trustee otherwise shall have
received written notice from each of the Rating Agencies that the then
outstanding rating on the Class A Certificates and the Class B Certificates
would not be lowered or withdrawn as a result, Servicer may deposit all
amounts referred to in subsection (a) for any Collection Period into the
Collection Account not later than the close of business on the Deposit Date
with respect to such Collection Period; provided that (x) if a Servicer
Default has occurred and is continuing, (y) Servicer has been terminated as
such pursuant to Section 8.1 or (z) Servicer ceases to have the Required
Rating, Servicer shall deposit such amounts (including any amounts then
being held by Servicer) into the Collection Account as provided in Section
4.2(a). Notwithstanding the foregoing, the provisions of the proviso to the
preceding sentence shall not be applicable to a successor Servicer solely
by reason of the occurrence of an event specified in clauses (x), (y) and
(z) of such proviso with respect to the outgoing Servicer. Pending the
deposit of the amounts referred to in subsection (a) into the Collection
Account, such amounts may be employed by Servicer at its own risk and for
its own benefit and need not be segregated from Servicer's own funds. Any
losses resulting from Servicer's actions shall be borne exclusively by the
Servicer. Servicer shall promptly notify Trustee in writing if it shall
obtain or lose the Required Rating.
(c) Notwithstanding the provisions of subsections (a) and (b),
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 for insufficient funds, in each
case, with respect to which Servicer 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. Advances. (a) On or prior to each Deposit Date,
Servicer shall advance any Interest Shortfall with respect to the related
Distribution Date by depositing the amount of such Interest Shortfall into
the Collection Account. Servicer shall be obligated to make such an Advance
except to the extent that Servicer shall reasonably determine that the
Advance is unlikely to be recoverable pursuant to subsection (b).
(b) On each Distribution Date, prior to making any of the
distributions set forth in Section 4.5, Servicer shall be reimbursed for
all Outstanding Advances with respect to prior Distribution Dates, to the
extent of the Interest Collections for such Distribution Date and, to the
extent such Interest Collections are insufficient, to the extent of the
funds in the Reserve Account. If it is acceptable to each Rating Agency
without a reduction in the rating of the Certificates, the Outstanding
Advances at the option of Servicer may be paid at or as soon as possible
after the beginning of the related Collection Period out of the first
collections of interest received on the Receivables for such Collection
Period.
SECTION 4.4. Additional Deposits; Net Deposits. (a) On or prior to
each Deposit Date, Seller or Servicer, as the case may be, shall remit to
the Collection Account, in next-day or immediately available funds, the
aggregate Purchase Amount of the Receivables to be purchased by it under an
obligation that arose during the preceding Collection Period pursuant to
Section 2.4, 3.7 or 10.2, respectively.
(b) Servicer may make the remittances to be made by it pursuant to
this Article IV net of amounts to be distributed to it pursuant to Section
4.5 (but subject to the priorities set forth therein), for so long as (i)
no Servicer Default has occurred and is continuing and (ii) Servicer has
not been terminated as such pursuant to Section 8.1; provided that Servicer
shall account for all of such amounts in the related Servicer's Report as
if such amounts were deposited and distributed separately; and provided
that, if an error is made by Servicer in calculating the amount to be
deposited or retained by it and a shortfall in the amount deposited in the
Collection Account results, Servicer shall make a payment of the deficiency
to the Collection Account, immediately upon becoming aware, or receiving
notice from Trustee, of such error.
SECTION 4.5. Distributions. (a) On or before each Determination
Date, Servicer shall calculate all amounts to be deposited in the Class A
Distribution Account and the Class B Distribution Account, which
calculations shall be set forth in the Servicer's Report delivered to
Trustee on or before such Determination Date.
(b) On each Distribution Date, after making the reimbursements to
Servicer of Outstanding Advances pursuant to Section 4.3(b), based on the
related Servicer's Report, Trustee will make the following deposits and
distributions from the Collection Account by 11:00 a.m. (Cincinnati, Ohio
time), to the extent of the sum of Available Interest and any Available
Reserve Amount remaining after such reimbursements (and, in the case of
shortfalls occurring under clause (ii) in the Class A Interest
Distributable Amount, the Class B Percentage of Available Principal to the
extent of such shortfalls), in the following priority:
(i) to Servicer, any unpaid Servicing Fee for the related
Collection Period and all unpaid Servicing Fees from prior Collection
Periods;
(ii) to the Class A Distribution Account, the Class A Interest
Distributable Amount for such Distribution Date; and
(iii) to the Class B Distribution Account, the Class B Interest
Distributable Amount for such Distribution Date.
On each Distribution Date, based on the related Servicer's Report, Trustee
will make the following deposits and distributions, to the extent of the
portion of Available Principal, Available Interest and Available Reserve
Amount remaining after the application of clauses (i), (ii) and (iii), in
the following priority:
(iv) to the Class A Distribution Account, the Class A Principal
Distributable Amount for such Distribution Date;
(v) to the Class B Distribution Account, the Class B Principal
Distributable Amount for such Distribution Date;
(vi) to the Reserve Account, any amounts remaining, until the
amount on deposit in the Reserve Account equals the Specified Reserve
Account Balance; and
(vii) to Seller, any amounts remaining.
(c) On each Distribution Date, all amounts on deposit in the Class A
Distribution Account will be distributed to the Class A Holders (determined
as of the related Record Date) by Trustee and all amounts on deposit in the
Class B Distribution Account will be distributed to the Class B Holders
(determined as of the related Record Date) by Trustee. Except as provided
in Section 10.1, payments under this paragraph shall be made to the Holders
by check mailed by Trustee to each Holder's respective address of record
(or, in the case of Certificates registered in the name of a Clearing
Agency, or its nominee, by wire transfer of immediately available funds).
To the extent that Trustee is required to wire funds to the Holders from
the Class A Distribution Account or the Class B Distribution Account, as
applicable, it shall request the bank maintaining the Class A Distribution
Account or the Class B Distribution Account, as applicable, to make a wire
transfer of the amount to be distributed and the bank maintaining the Class
A Distribution Account or the Class B Distribution Account, as applicable,
shall promptly deliver to Trustee a confirmation of such wire transfer. To
the extent that Trustee is required to make payments to Holders by check
hereunder, it shall request the bank maintaining the Class A Distribution
Account or the Class B Distribution Account, as applicable, to provide it
with a supply of checks to make such payments. The bank shall, if a request
is made by Trustee for a wire transfer by 9:00 A.M. (Cincinnati, Ohio time)
on any Distribution Date, wire such funds in accordance with such
instructions by 10:00 A.M. (Cincinnati, Ohio time) on such Distribution
Date, and it will otherwise act in compliance with the provisions of this
paragraph and the other provisions of this Agreement applicable to it as
the bank maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable. Servicer shall take all necessary
action (including requiring an agreement to such effect) to ensure that any
bank maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable, agrees to comply, and complies, with
the provisions of this paragraph and the other provisions of this Agreement
applicable to it as the bank maintaining the Class A Distribution Account
or the Class B Distribution Account, as applicable.
SECTION 4.6. Reserve Account. (a) Seller shall establish and
maintain in the name of Trustee an Eligible Deposit Account (the "Reserve
Account"). The Reserve Account and any amounts therein shall not be
property of the Trust, but shall be pledged to and held for the benefit of
Trustee, as secured party. The Reserve Account shall be initially
established and maintained with the trust department of Trustee.
(b) In order to provide for the prompt payment to the Holders and
Servicer in accordance with Section 4.5, to assure availability of the
amounts maintained in the Reserve Account and as security for the
performance by Seller of its obligations hereunder:
(i) Seller, on behalf of itself and its successors and assigns,
and solely for the purpose of providing for payment of the
distributions provided for in Section 4.5, hereby grants a security
interest in and pledges to Trustee and its successors and assigns, all
its right, title and interest in and to the Reserve Account, subject,
however, to the limitations set forth in this Agreement, and all
proceeds of the foregoing, including all securities, investments,
general intangibles, financial assets and investment property from
time to time credited to and any security entitlement to the Reserve
Account; and
(ii) Seller hereby grants a security interest and pledges to
Trustee and its successors and assigns the Reserve Account Initial
Deposit and all proceeds thereof, subject, however, to the limitations
set forth below, and solely for the purpose of providing for payment
of the distributions provided for in Section 4.5, (all of the
foregoing, subject to the limitations set forth in this Section, the
"Reserve Account Property"),
to have and to hold all the aforesaid property, rights and privileges unto
Trustee, its successors and assigns, in trust for the uses and purposes,
and subject to the terms and provisions, set forth in this Section. Trustee
hereby acknowledges such transfer and accepts the trust hereunder and shall
hold and distribute the Reserve Account Property in accordance with the
terms and provisions of this Section.
(c) Trustee shall direct the Securities Intermediary to invest funds
on deposit in the Reserve Account in Eligible Investments selected by
Seller and confirmed in writing by Seller to Trustee; provided that it is
understood and agreed that Trustee shall not be liable for any loss arising
from such investment in Eligible Investments. Funds on deposit in the
Reserve Account shall be invested in Eligible Investments that will mature
so that all such funds will be available at the close of business on each
Deposit Date; provided that to the extent permitted by the Rating Agencies,
funds on deposit in the Reserve Account may be invested in Eligible
Investments that mature later than the next Deposit Date. Funds deposited
in the Reserve Account on a Deposit Date upon the maturity of any Eligible
Investments are not required to be (but may be) invested overnight. Seller
will treat the funds, Eligible Investments and other assets in the Reserve
Account as its own for Federal, state and local income tax and franchise
tax purposes and will report on its tax returns all income, gain and loss
from the Reserve Account.
(d) On each Distribution Date, any amounts on deposit in the
Collection Account with respect to the preceding Collection Period after
payments to Servicer, the Class A Distribution Account and the Class B
Distribution Account have been made will be deposited into the Reserve
Account until the amount of the Reserve Account is equal to the Specified
Reserve Account Balance.
(e) The Reserve Account shall be under the sole custody and control
of Trustee. If, at any time, the Reserve Account ceases to be an Eligible
Deposit Account, Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Reserve Account as an Eligible Deposit Account and
shall transfer any cash and/or any investments that are in the existing
Account which is no longer an Eligible Deposit Account to such new Reserve
Account.
(f) On each Distribution Date, the amount available in the Reserve
Account (the "Available Reserve Amount") will equal the lesser of (i) the
amount on deposit in the Reserve Account (exclusive of investment earnings)
and (ii) the Specified Reserve Account Balance. On each Deposit Date,
Trustee will withdraw funds from the Reserve Account (i) to the extent
required pursuant to Section 4.3(b) and (ii) to the extent that (A) the sum
of the amounts required to be distributed to Holders and the accrued and
unpaid Servicing Fees payable to Servicer on such Distribution Date exceeds
(B) the amount on deposit in the Collection Account with respect to the
preceding Collection Period (net of net investment income). The aggregate
amount to be withdrawn from the Reserve Account on any Deposit Date shall
not exceed the Available Reserve Amount with respect to the related
Distribution Date. Trustee will deposit the proceeds of such withdrawal
into the Collection Account on or before such Distribution Date with
respect to which such withdrawal was made.
(g) Amounts on deposit in the Reserve Account will be released to
Seller on each Distribution Date to the extent that the amount credited to
the Reserve Account would exceed the Specified Reserve Account Balance.
Upon any distribution to Seller of amounts from the Reserve Account, the
Holders will not have any rights in, or claims to, such amounts. Amounts
properly distributed to Seller from the Reserve Account or otherwise shall
not be available under any circumstances to the Trust, Trustee or the
Holders and Seller shall in no event thereafter be required to refund any
such distributed amounts.
(h) With respect to the Reserve Account Property, Seller and Trustee
agree that the Reserve Account Initial Deposit and all other funds and
Account Property shall be delivered to Securities Intermediary for credit
to the Reserve Account. In addition, any Reserve Account Property that is a
book-entry security held through a Federal Reserve Bank pursuant to federal
book-entry regulations shall be delivered in accordance with the definition
of "Delivery" and shall be maintained by Trustee, pending maturity or
disposition, through continued book-entry registration of such Reserve
Account Property as described in such paragraph. Effective upon the
crediting of any Reserve Account Property to the Reserve Account, Trustee
shall be deemed to have represented that it has purchased such Reserve
Account Property for value, in good faith and without notice of any adverse
claim thereto.
(i) Seller (and any successor to Seller in accordance with Section
6.3) and Servicer agree 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 any UCC financing
statements or this Agreement) as may be determined to be necessary, in an
Opinion of Counsel to Seller delivered to Trustee, in order to perfect the
interests created by this Section 4.6 and otherwise fully to effectuate the
purposes, terms and conditions of this Section 4.6. Seller (and any
successor to Seller in accordance with Section 6.3) and 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 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 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 Trustee of any such
filings.
(j) Investment earnings attributable to the Reserve Account Property
and proceeds therefrom shall be held by Trustee for the benefit of Seller.
Investment earnings attributable to the Reserve Account Property shall not
be available to pay the distributions provided for in Section 4.5 and shall
not otherwise be subject to any claims or rights of the Holders or
Servicer. Trustee shall cause all investment earnings attributable to the
Reserve Account to be distributed on each Distribution Date to Seller.
SECTION 4.7. Statements to Holders. (a) On each Distribution Date,
Servicer shall provide to Trustee (with a copy to each Rating Agency) with
written instructions for Trustee to forward to each Holder of record a
statement setting forth at least the following information as to the
Certificates to the extent applicable:
(i) the amount of the distribution allocable to principal on
the Class A Certificates and the Class B Certificates;
(ii) the amount of the distribution allocable to interest on
the Class A Certificates and the Class B Certificates;
(iii) the amount of the Servicing Fee paid to Servicer with
respect to the related Collection Period;
(iv) the Class A Certificate Balance, the Class A Pool Factor,
the Class B Certificate Balance and the Class B Pool Factor as of such
Distribution Date, after giving effect to payments allocated to
principal reported under clause (i);
(v) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(vi) the amount of the Aggregate Net Losses, Defaulted
Receivables and Liquidation Proceeds, if any, for such Collection
Period;
(vii) the aggregate Purchase Amount of Receivables repurchased
by Seller or purchased by Servicer;
(viii) the Class A Interest Carryover Shortfall, the Class B
Interest Carryover Shortfall, the Class A Principal Carryover
Shortfall and the Class B Principal Carryover Shortfall;
(ix) the balance of the Reserve Account on such Distribution
Date, after giving effect to changes therein on such Distribution
Date; and
(x) the Specified Reserve Account Balance as of the close of
business on such Distribution Date.
Each amount set forth pursuant to clauses (i), (ii) and (iii) shall be
expressed in the aggregate and as a dollar amount per $1,000 of original
denomination of a Certificate.
Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, Servicer shall
furnish a report to the Trust and Trustee shall furnish, or cause to be
furnished, to each Person who at any time during such calendar year shall
have been a Holder, a statement based upon such report as to the sum of the
amounts determined in clauses (i) and (ii) above for such calendar year,
or, in the event such Person shall have been a Holder during a portion of
such calendar year, for the applicable portion of such year, and such other
information as is available to Servicer as Servicer deems necessary or
desirable to enable the Holders to prepare their federal income tax
returns. The obligation of the Trustee set forth in this paragraph shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided pursuant to any requirement of the Code.
ARTICLE V. THE CERTIFICATES.
SECTION 5.1. The Certificates. Trustee shall, upon written order or
request signed in the name of Seller by one of its officers authorized to
do so and delivered to an Authorized Officer of Trustee, execute on behalf
of the Trust, authenticate and deliver the Certificates to or upon the
order of Seller in the aggregate principal amount and denominations as set
forth in such written order or request. The Certificates shall be issuable
in denominations of $1,000 and integral multiples thereof; provided 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
Certificate Balance and the Original Class B Certificate Balance,
respectively. Upon initial issuance, the Class A Certificates and the Class
B Certificates shall be in the form of Exhibit A and Exhibit B,
respectively, which are incorporated by reference herein, and shall be
issued as provided in Section 5.8, in an aggregate amount equal to the
Original Class A Certificate Balance and the Original Class B Certificate
Balance, respectively. The Certificates shall be executed by Trustee on
behalf of the Trust by manual or facsimile signature of an Authorized
Officer of Trustee under Trustee's seal imprinted thereon and attested by
the manual or facsimile signature of an Authorized Officer of 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 Trust, 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 5.2. 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
certificate of authentication, substantially in the form set forth in the
form of Certificates attached hereto as Exhibit A and Exhibit B, executed
by 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 5.3. Registration of Transfer and Exchange of Certificates.
Trustee shall maintain, or cause to be maintained, at the office or agency
to be maintained by it in accordance with Section 5.7, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, Trustee shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Class A Certificate or Class
B Certificate at such office or agency, Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one
or more new Class A Certificates or Class B Certificates, as the case may
be, in authorized denominations of a like aggregate amount. At the option
of a Holder, Class A Certificates or Class B Certificates may be exchanged
for other Class A Certificates or Class B Certificates, as the case may be,
of authorized denominations of a like aggregate amount at the office or
agency maintained by Trustee in accordance with Section 5.7. Every
Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer duly
executed by the Holder and in a form satisfactory to Trustee. No service
charge shall be made for any registration of transfer or exchange of
Certificates, but 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. All Certificates surrendered for
registration of transfer or exchange shall be cancelled and disposed of in
accordance with the customary procedures of Trustee.
The Class B Certificates and any beneficial interest in such Class B
Certificates may not be acquired (a) with the assets of an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (b) by a plan described in Section
4975(e)(1) of the Code or (c) by any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity. By accepting
and holding a Class B Certificate or interest therein, the Holder thereof
or Class B Certificate Owner thereof shall be deemed to have represented
and warranted that it is not subject to the foregoing limitation.
SECTION 5.4. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Class A Certificate or Class B Certificate shall be
surrendered to Trustee, or if Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of any Class A Certificate
or Class B Certificate and (b) there shall be delivered to Trustee such
security or indemnity as may be required to save Trustee harmless, then in
the absence of notice that such Class A Certificate or Class B Certificate
shall have been acquired by a bona fide purchaser, Trustee shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Class A Certificate or Class B Certificate, a new
Class A Certificate or Class B Certificate of like tenor and denomination.
In connection with the issuance of any new Certificate under this Section
5.4, 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 5.4 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 5.5. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, Trustee 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
4.5 and for all other purposes, and Trustee shall not be bound by any
notice to the contrary.
SECTION 5.6. Access to List of Holders' Names and Addresses. Trustee
shall furnish or cause to be furnished to Servicer, within fifteen days
after receipt by Trustee of a request therefor from Servicer in writing, in
such form as Servicer may reasonably require, a list of the names and
addresses of the Holders as of the most recent Record Date. If Definitive
Certificates have been issued, Trustee, upon written request of (a) three
or more Holders or (b) one or more Holders evidencing not less than 25% of
the aggregate outstanding principal balance of the Certificates, will,
within five Business Days after the receipt of such request, afford such
Holders access during normal business hours to the most current list of
Holders for purposes of communicating with other Holders with respect to
their rights under the Agreement. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold Seller, Servicer or
Trustee accountable by reason of the disclosure of such Holder's name and
address, regardless of the source from which such information was derived.
SECTION 5.7. Maintenance of Office or Agency. 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 Trustee in
respect of the Certificates and this Agreement may be served. Trustee
initially designates its office located at 77 Water Street, 4th Floor, New
York, New York 10005 for such purposes. Trustee shall give prompt written
notice to Servicer and to Holders of any change in the location of any such
office or agency.
SECTION 5.8. Book Entry Certificates. Upon original issuance, the
Class A Certificates and the Class B Certificates, other than the Class A
Certificate representing the residual amount of the Original Class A
Certificate Balance and the Class B Certificate representing the residual
amount of the Original Class B Certificate Balance, which shall be issued
upon the written order of Seller, shall be issued in the form of one or
more typewritten Certificates representing the Book Entry Certificates, to
be delivered to the initial Clearing Agency, by, or on behalf of, Seller.
Such Certificates 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 or the Class
B Certificates, as the case may be, except as provided in Section 5.10.
Unless and until definitive, fully registered Certificates ("Definitive
Certificates") have been issued to the Holders pursuant to Section 5.10:
(a) the provisions of this Section 5.8 shall be in full force
and effect;
(b) Seller, Servicer and Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on the
Certificates and the taking of actions by the Holders) as the
authorized representative of the Certificate Owners;
(c) to the extent that the provisions of this Section 5.8
conflict with any other provisions of this Agreement, the provisions
of this Section 5.8 shall control;
(d) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law, the rules, regulations and procedures of the Clearing Agency
and agreements between such Certificate Owners and the Clearing Agency
and all references in this Agreement to actions by Holders shall refer
to actions taken by the Clearing Agency upon instructions from the
Clearing Agency Participants, and all references in this Agreement to
distributions, notices, reports and statements to Holders shall refer
to distributions, notices, reports and statements to the Clearing
Agency or its nominee, as registered holder of the Certificates, as
the case may be, for distribution to Certificate Owners in accordance
with the rules, regulations and procedures of the Clearing Agency; and
(e) pursuant to the Depository Agreement, 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 Certificates to the Clearing Agency Participants, for
distribution by such Clearing Agency Participants to the Certificate
Owners or their nominees.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Certificates evidencing specified percentages of the aggregate outstanding
principal balance of such Certificates, such direction or consent may be
given by Certificate Owners having interests in the requisite percentage,
acting through the Clearing Agency.
SECTION 5.9. Notices to Clearing Agency. Whenever notice or other
communication to the Holders is required under this Agreement unless and
until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 5.10, Trustee shall give all such notices and
communications specified herein to be given to Holders to the Clearing
Agency.
SECTION 5.10. Definitive Certificates. If (a) (i) Seller advises
Trustee in writing that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities under the Depository Agreement
and (ii) Trustee or Seller is unable to locate a qualified successor, (b)
Seller, at its option, advises Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) after
the occurrence of a Servicer Default, Certificate Owners representing in
the aggregate not less than a majority of the aggregate outstanding
principal balance of the Certificates, advise 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 Certificate Owners' best interests, Trustee shall notify the
Clearing Agency which shall be responsible to notify the Certificate Owners
of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to
Trustee by the Clearing Agency of the Certificates registered in the name
of the nominee of the Clearing Agency, accompanied by re-registration
instructions from the Clearing Agency for registration, Trustee shall
execute, on behalf of the Trust, authenticate and deliver Definitive
Certificates in accordance with such instructions. Seller shall arrange
for, and will bear all costs of, the printing and issuance of such
Definitive Certificates. Neither Seller, Servicer nor 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, Trustee shall recognize the Holders of
the Definitive Certificates as Holders hereunder.
ARTICLE VI. SELLER.
SECTION 6.1. Representations and Warranties of Seller. Seller makes
the following representations and warranties, on which Trustee relies in
accepting the Receivables and the other Trust Property in trust and
executing and authenticating the Certificates. Such representations are
made as of the execution and delivery of this Agreement, but shall survive
the sale, transfer and assignment of the Receivables and the other Trust
Property to the Trust.
(a) Organization and Good Standing. Seller has been duly
organized and is validly existing as an Ohio banking corporation in
good standing under the laws of the State of Ohio, with the power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently
conducted and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell the Receivables and
the other Trust Property.
(b) Power and Authority. Seller has the power, authority and
legal right to execute and deliver this Agreement and the Related
Agreements and to carry out their respective terms and to sell and
assign the property to be sold and assigned to and deposited with
Trustee as Trust Property; and the execution, delivery and performance
of this Agreement and the Related Agreements have been duly authorized
by Seller by all necessary corporate action.
(c) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement or the
Related Agreements or the consummation of the transactions
contemplated hereby or thereby, other than (i) as may be required
under the blue sky or securities laws of any State or the Securities
Act of 1933, and (ii) the filing of UCC financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this
Agreement to effect a valid sale, transfer, and assignment of the
Receivables and the other Trust Property conveyed by Seller to the
Trust hereunder, enforceable against creditors of and purchasers from
Seller; and each of this Agreement and the Related Agreements
constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws affecting enforcement of the rights of creditors of banks
generally and to equitable limitations on the availability of specific
remedies.
(e) No Violation. The execution, delivery and performance by
Seller of this Agreement and the Related Agreements and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, result in any material breach of any of the terms
and provisions of, constitute (with or without notice or lapse of
time) a material default under or result in the creation or imposition
of any Lien upon any of its material properties pursuant to the terms
of, (i) the articles of incorporation or code of regulations of
Seller, (ii) any material indenture, contract, lease, mortgage, deed
of trust or other instrument or agreement to which Seller is a party
or by which Seller is bound, or (iii) any law, order, rule or
regulation applicable to Seller of any federal or state regulatory
body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over Seller.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Seller, threatened, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties: (i) asserting the invalidity of this Agreement or the
Certificates, (ii) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this
Agreement or the Certificates, or (iv) that may materially and
adversely affect the federal or state income, excise franchise or
similar tax attributes of the Certificates.
(g) Chief Executive Office. The chief executive office of
Seller is at 38 Fountain Square Plaza, Cincinnati, Ohio 45263.
SECTION 6.2. Liability of Seller; Indemnities. (a) Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by Seller under this Agreement and shall have no
other obligations or liabilities hereunder.
(b) Subject to Section 11.4, Seller shall indemnify, defend and hold
harmless Trustee, the Trust and the Holders from and against any taxes that
may at any time be asserted against Trustee, its directors, officers,
employees and agents, the Trust or a Holder with respect to, and as of the
date of, the sale, transfer and assignment of the Trust Property to the
Trust or the issuance and original sale of the Certificates, including any
sales, gross receipts, general corporation, tangible or intangible,
personal property, privilege, or license taxes (but not including any taxes
asserted with respect to distributions made hereunder to Holders, ownership
of the Trust Property or federal or other income taxes, including franchise
taxes measured by net income, arising out of the transactions contemplated
by this Agreement or transfer taxes arising in connection with the transfer
of the Certificates), and reasonable costs and expenses in defending
against the same. The exclusion of any tax from this indemnity is not
intended to obligate Trustee to pay such tax if Trustee would not otherwise
be required to do so.
(c) Subject to Section 11.4, Seller shall indemnify, defend and hold
harmless Trustee, its directors, officers, employees and agents, the Trust
and the Holders from and against any loss, liability or expense incurred by
reason of the willful misfeasance, bad faith or negligence of Seller in the
performance of its duties hereunder.
(d) Subject to Section 11.4, Seller shall indemnify, defend and hold
harmless Trustee, its directors, officers, employees and agents, the Trust
and the Holders from and against any loss, liability or expense incurred by
reason of the violation by Seller of federal or state securities laws in
connection with the registration or the sale of the Certificates.
(e) Subject to Section 11.4, Seller shall indemnify, defend and hold
harmless Trustee, its directors, officers, employees and agents, the Trust
and the Holders from and against any loss, liability or expense imposed
upon, or incurred by, Trustee, the Trust or the Holders as the result of
the failure of any Receivable conveyed by it to the Trust hereunder, or the
sale of the related Financed Vehicle, to comply with all requirements of
applicable law.
(f) Indemnification under this Section 6.2 shall include reasonable
fees and expenses of counsel and expenses of litigation and shall survive
termination of this Agreement and the resignation or removal of Trustee. If
Seller shall have made any indemnity payments to Trustee pursuant to this
Section and Trustee thereafter shall collect any of such amounts from
Persons other than Seller, Trustee shall immediately upon receipt thereof
repay such amounts to Seller, without interest.
(g) Notwithstanding the foregoing provisions of this Section, Seller
shall have no obligation to indemnify, defend or hold harmless Trustee (in
its individual capacity) or its directors, officers, employees or agents
with respect to any matter, to the extent such matter (i) is due to the
willful misfeasance, bad faith or negligence of Trustee or reckless
disregard of Trustee's obligations and duties hereunder, or (ii) arises
from Trustee's breach of any of its representations or warranties set forth
in Section 9.14, or (iii) shall arise out of or be incurred in connection
with the performance by Trustee of the duties of successor Servicer
hereunder (and, in the case of this clause (iii), was not caused by any act
or omission of Seller).
SECTION 6.3. Merger or Consolidation of Seller. Any corporation or
other entity (a) into which Seller may be merged or consolidated, (b) that
may result from any merger, conversion or consolidation to which Seller is
a party, or (c) that may succeed by purchase and assumption to all or
substantially all of the business of Seller, where Seller in any of the
foregoing cases is not the surviving entity, which corporation or other
entity shall execute an agreement of assumption to perform every obligation
of Seller under this Agreement, shall be the successor to Seller hereunder
without the execution or filing of any document or any further act by any
of the parties to this Agreement; provided that (x) Servicer shall have
delivered to 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, and (y) Servicer
shall have delivered to 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 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. Seller shall promptly inform
Trustee and each Rating Agency of any such merger, conversion,
consolidation or purchase and assumption, where Seller is not the surviving
entity.
SECTION 6.4. Limitation on Liability of Seller and Others. Neither
Seller nor any of its directors, officers, employees or agents shall be
under any liability to the Trust or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from
the taking of any action by Seller or any subservicer pursuant to this
Agreement or for errors in judgment; provided that this provision shall not
protect Seller or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties under this Agreement. Seller, and any of its
directors, officers, employees or agents may rely in good faith on any
document of any kind, believed by it to be genuine and properly executed
and submitted by any Person respecting any matters arising hereunder.
Seller shall be under no obligation under this Agreement to appear in,
prosecute or defend any legal action that shall be unrelated to its
obligations under this Agreement and that in its opinion may involve it in
any expense or liability.
SECTION 6.5. Seller May Own Certificates. Seller, and any Affiliate
of 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 Seller or an Affiliate thereof, except as otherwise provided in the
definition of "Holder", "Class A Holder" and "Class B Holder" in Section
1.1. Certificates so owned by or pledged to Seller or such controlling,
controlled or commonly controlled Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates,
except as otherwise provided in the definitions of "Class A Holder" and
"Class B Holder".
ARTICLE VII. SERVICER.
SECTION 7.1. Representations and Warranties of Servicer. Servicer
makes the following representations and warranties on which Trustee relies
in accepting the Receivables and the other Trust Property in trust and in
authenticating the Certificates. These representations are made as of the
Closing Date, but shall survive the sale of the Receivables and the other
Trust Property to the Trust.
(a) Organization and Good Standing. Servicer has been duly
organized and is validly existing as an Ohio banking corporation in
good standing under the laws of the State of Ohio, with the power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently
conducted, and had at all relevant times, and shall have, the power,
authority and legal right to service the Receivables and the other
Trust Property.
(b) Power and Authority. Servicer has the power, authority and
legal right to execute and deliver this Agreement and the Related
Agreements and to carry out their respective terms; and the execution,
delivery and performance of this Agreement and the Related Agreements
has been duly authorized by Servicer by all necessary corporate
action.
(c) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement, the
Related Agreements or the consummation of the transactions
contemplated hereby or thereby.
(d) Binding Obligation. Each of this Agreement and the Related
Agreements constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its
respective terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the rights
of creditors of banks generally and to equitable limitations on the
availability of specific remedies.
(e) No Violation. The execution, delivery and performance by
Servicer of this Agreement and the Related Agreements and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, result in any material breach of any of the terms
and provisions of, constitute (with or without notice or lapse of
time) a material default under, or result in the creation or
disposition of any Lien upon any of its material properties pursuant
to the terms of, (i) the articles of incorporation or code of
regulations of Servicer, (ii) any material indenture, contract, lease,
mortgage, deed of trust or other instrument or agreement to which
Servicer is a party or by which Servicer is bound, or (iii) any law,
order, rule or regulation applicable to Servicer of any federal or
state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over Servicer.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to Servicer's knowledge, threatened, before any court,
regulatory body, administrative agency, or tribunal or other
governmental instrumentality having jurisdiction over Servicer or its
properties: (i) asserting the invalidity of this Agreement or the
Certificates, (ii) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Servicer of its
obligations under, or the validity or enforceability of, this
Agreement or the Certificates, or (iv) that may materially and
adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Certificates.
SECTION 7.2. Liability of Servicer; Indemnities. (a) Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by Servicer under this Agreement and shall have no
other obligations or liabilities hereunder.
(b) Subject to Section 11.4, Servicer shall indemnify, defend and
hold harmless Trustee, its directors, officers, employees and agents, the
Trust, and the Holders from and against any and all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising out of or resulting
from the use, ownership, or operation by Servicer or any Affiliate thereof
of any Financed Vehicle.
(c) Subject to Section 11.4, Servicer shall indemnify, defend and
hold harmless the Trustee, its directors, officers, employees and agents,
the Trust and the Holders from and against any taxes that may at any time
be asserted against Trustee, the Trust or the Holders with respect to the
transactions contemplated hereby, including any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege,
or license taxes (but not including any taxes asserted with respect to, and
as of the date of, the sale, transfer and assignment of the Trust Property
to the Trust or the issuance and original sale of the Certificates, or
asserted with respect to distributions made hereunder to Holders, ownership
of the Receivables or other Trust Property, federal or other income taxes,
including franchise taxes measured by net income, arising out of
distributions on the Certificates or any other transactions contemplated by
this Agreement or transfer taxes arising in connection with transfers of
the Certificates) and reasonable costs and expenses in defending against
the same. The exclusion of any tax from this indemnity is not intended to
obligate Trustee to pay such tax if Trustee would not otherwise be required
to do so.
(d) Subject to Section 11.4, Servicer shall indemnify, defend and
hold harmless the Trustee, its directors, officers, employees and agents,
the Trust and the Holders 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, or incurred by, the Trust, Trustee or the Holders as a result of the
willful misfeasance, negligence or bad faith of Servicer (or a Person to
whom any duties were delegated pursuant to Section 3.1) in the performance
of its duties under this Agreement.
(e) Indemnification under this Section shall include reasonable fees
and expenses of counsel and expenses of litigation. The indemnity
obligations of Servicer hereunder shall survive any termination of Servicer
pursuant to Section 8.1, but only with respect to obligations arising prior
thereto, and any payment of the amount owing under, or the Purchase Amount
with respect to, any Receivable. If Servicer shall have made any indemnity
payments pursuant to this Section 7.2 and Trustee thereafter collects any
of such amounts from others, Trustee shall immediately upon receipt thereof
repay such amounts to Servicer, without interest.
(f) Notwithstanding the foregoing provisions of this Section,
Servicer shall have no obligation to indemnify, defend or hold harmless
Trustee (in its individual capacity) or its directors, officers, employees
or agents with respect to any matter, to the extent that such matter (i) is
due to the willful misfeasance, negligence or bad faith of Trustee or
reckless disregard of Trustee's obligations and duties hereunder; (ii)
arises from Trustee's breach of any of its representations or warranties
set forth in Section 9.14; or (iii) shall arise out of, or be incurred in
connection with, the acceptance or performance by Trustee of its duties as
successor Servicer hereunder (and, in the case of this clause (iii), was
not caused by any act or omission of Servicer).
SECTION 7.3. Merger or Consolidation of Servicer. Any corporation or
other entity (a) into which Servicer may be merged or consolidated, (b)
that may result from any merger, conversion, or consolidation to which
Servicer is a party, (c) that may succeed by purchase and assumption to all
or substantially all of the business of Servicer or (d) 50% of the voting
stock of which is owned directly or indirectly by Fifth Third Bancorp,
where, in the case of clauses (a), (b) and (c), Servicer is not the
surviving entity, which corporation or other entity in any of the foregoing
cases shall execute an agreement of assumption to perform every obligation
of Servicer under this Agreement, shall be the successor to Servicer under
this Agreement without any further act on the part of any of the parties to
this Agreement; provided that (x) Servicer shall have delivered to 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, and (y) Servicer shall have delivered
to 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 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. Servicer shall promptly inform Trustee and each
Rating Agency of any such merger, conversion, consolidation or purchase and
assumption where Servicer is not the surviving entity.
SECTION 7.4. Limitation on Liability of Servicer and Others. (a)
Neither Servicer nor any of its directors, officers, employees or agents
shall be under any liability to the Trust or the Certificateholders, except
as provided under this Agreement, for any action taken or for refraining
from the taking of any action by Servicer or any subservicer pursuant to
this Agreement or for errors in judgment; provided that this provision
shall not protect Servicer or any such person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties under this Agreement. Except as provided in this
Agreement, Servicer shall be under no 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 cause it to incur any expense or liability; provided that
Servicer may undertake, at its expense, any reasonable action that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties to this Agreement and the interests of the Holders
under this Agreement.
(b) Servicer and any director or officer or employee or agent of
Servicer may rely in good faith on any document of any kind, believed by it
to be genuine and properly executed and submitted by any Person respecting
any matters arising hereunder.
SECTION 7.5. Servicer Not to Resign. 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
Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to Trustee. No such resignation shall become effective until
Trustee or a successor Servicer shall have assumed the responsibilities and
obligations of Servicer in accordance with Section 8.2.
SECTION 7.6. Servicer May Own Certificates. Servicer, and any
Affiliate of 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 Servicer or an Affiliate thereof, except as otherwise
provided in the definition of "Holder", "Class A Holder" and "Class B
Holder" in Section 1.1. Certificates so owned by or pledged to 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, except as otherwise provided in the
definitions of "Class A Holder" and "Class B Holder".
ARTICLE VIII. SERVICING TERMINATION.
SECTION 8.1. Servicer Defaults. (a) Any one of the following events
shall constitute a "Servicer Default":
(i) any failure by Servicer to deliver to Trustee a Servicer's
Report for any Collection Period, which failure shall continue beyond
the related Deposit Date;
(ii) any failure by Servicer (or, for so long as Servicer is an
Affiliate of Seller, Seller) to deliver to any Account or the Reserve
Account any payment or deposit required to be so delivered or paid
under the terms of the Certificates and this Agreement, or to direct
Trustee to make any required distribution from any Account or the
Reserve Account, which failure shall continue unremedied for a period
of five Business Days after written notice is received from the
Trustee by Servicer or after discovery of such failure by Servicer
(or, in the case of a payment or deposit to be made no later than a
Deposit Date immediately preceding a Distribution Date, the failure to
make such payment or deposit by such Distribution Date);
(iii) any failure on the part of Servicer (or, for so long as
Servicer is an Affiliate of Seller, 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 Holders (which
determination shall be made without regard to whether funds are
available to the Holders pursuant to the Reserve Account) and (B)
continue unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given (1) to Servicer (or, for so long as Servicer is
an affiliate of Seller, Seller) by Trustee, or (2) to Trustee and
Servicer by the Holders of Certificates representing not less than 25%
of the outstanding principal amount of the Certificates (or for such
longer period, not in excess of 120 days, as may be reasonably
necessary to remedy such default; provided that such default is
capable of remedy within 120 days and Servicer delivers an Officers'
Certificate to Trustee to such effect and to the effect that Servicer
has commenced or will promptly commence, and will diligently pursue,
all reasonable efforts to remedy such default);
(iv) 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 Servicer in any
bankruptcy, receivership, conservatorship, insolvency 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
(v) the consent by Servicer to the appointment of a
conservator, receiver, liquidator or trustee in any bankruptcy,
receivership, conservatorship, insolvency or similar proceedings of or
relating to Servicer or relating to substantially all of its property,
the admission in writing by Servicer of its inability to pay its debts
generally as they become due, the filing by Servicer of a petition to
take advantage of any applicable bankruptcy, receivership,
conservatorship, insolvency or similar statute, the making by Servicer
of an assignment for the benefit of its creditors or the voluntary
suspension by Servicer of payment of its obligations.
Upon the occurrence of any Servicer Default, and so long as a Servicer
Default shall not have been remedied, either Trustee, or the Majority
Holders, by notice then given in writing to Servicer, may terminate all of
the rights and obligations of Servicer under this Agreement. On or after
the receipt by Servicer of such written notice, all authority and power of
Servicer under this Agreement, whether with respect to the Certificates or
the Trust Property or otherwise, shall pass to and be vested in Trustee
pursuant to this Section 8.1; and thereupon Trustee shall be authorized and
empowered to execute and deliver, on behalf of 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 or the Physical Damage
Insurance Policies, the certificates of title to the Financed Vehicles, or
otherwise. Servicer shall cooperate with Trustee or any successor Servicer
in effecting the termination of its responsibilities and rights as Servicer
under this Agreement, including the transfer to Trustee or any successor
Servicer for administration of all cash amounts that are at the time held
by Servicer for deposit, shall have been deposited by Servicer in the
Collection Account, or thereafter shall be received with respect to a
Receivable, all Receivable Files and all information or documents that
Trustee or such successor Servicer may require. In addition, 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. All reasonable out-of-pocket costs and expenses
incurred by the successor Servicer 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 Servicer Defaults occur, Trustee shall
have no obligation to notify Holders or any other Person of such occurrence
prior to the continuance of such event through the end of any cure period
specified in Section 8.1(a).
SECTION 8.2. Trustee to Act; Appointment of Successor Servicer. Upon
Servicer's resignation pursuant to Section 7.5 or upon Servicer's receipt
of notice of termination as Servicer pursuant to Section 8.1, Trustee shall
be the successor in all respects to Servicer in its capacity as Servicer
under this Agreement, and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on Servicer by the terms and
provisions of this Agreement, except that Trustee, when acting as successor
Servicer, shall not be obligated to purchase Receivables pursuant to
Section 3.7 unless the obligation to repurchase arose after the date of the
notice of termination given to Servicer pursuant to Section 8.1, and
Trustee shall not be liable for any acts or omissions of the terminated
Servicer or for any breach by such Servicer of any of its representations
or warranties contained herein or in any related documents or agreements.
As compensation therefor, Trustee shall be entitled to the same Servicing
Fees (whether payable out of the Collection Account or otherwise) and
Supplemental Servicing Fees as Servicer would have been entitled to under
this Agreement if no such notice of termination or resignation had been
given. Notwithstanding the above, Trustee may appoint, or petition a court
of competent jurisdiction to appoint, an Eligible Servicer as the successor
to the terminated Servicer under this Agreement; provided that Trustee
shall continue to be the successor to Servicer until another successor
Servicer shall have assumed the responsibilities and obligations of
Servicer. In connection with such appointment, 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 shall
in no event be greater than the Servicing Fees and Supplemental Servicing
Fees payable to The Fifth Third Bank as Servicer hereunder. Trustee and
such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. No Servicer shall
resign or be relieved of its duties under this Agreement until a newly
appointed Servicer shall have assumed the responsibilities and obligations
of the terminated Servicer under this Agreement.
SECTION 8.3. Effect of Servicing Transfer. (a) After the transfer of
servicing hereunder, 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 Sections 7.2 and 9.8 after the transfer of
servicing hereunder, the outgoing Servicer shall have no further
obligations with respect 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 will
transmit or cause to be transmitted directly to the successor Servicer for
its own account, promptly on receipt and in the same form in which
received, any amounts held by the outgoing Servicer (properly endorsed
where required for the successor Servicer to collect any such items)
received as payments upon or otherwise in connection with the Receivables
and the outgoing Servicer shall continue to cooperate with the successor
Servicer by providing information and in the enforcement of the Dealer
Agreements and the Physical Damage Insurance Policies.
(c) A transfer of servicing hereunder shall not affect the rights and
duties of the parties hereunder (including the obligations and indemnities
of Seller pursuant to Sections 2.4, 3.3, 6.1 and 6.2 or, with respect to
obligations and indemnities arising prior to, or concurrently with, a
transfer of servicing hereunder, the outgoing Servicer pursuant to Section
3.8, 7.1 or 7.2) other than those relating to the management,
administration, servicing, custody or collection of the Receivables and the
other Trust Property. The successor Servicer shall, upon its appointment
pursuant to Section 8.2 and as part of its duties and responsibilities
under this Agreement, promptly take all action it deems necessary or
appropriate so that the outgoing Servicer (in whatever capacity) is paid or
reimbursed all amounts it is entitled to receive under this Agreement on
each Distribution Date subsequent to the date on which it is terminated as
Servicer hereunder. Without limiting the generality of the foregoing, the
outgoing Servicer will be entitled to receive all accrued and unpaid
Servicing Fees and Supplemental Servicing Fees through and including, and
to be reimbursed for all Outstanding Advances as of, the effective date of
the termination of the outgoing Servicer.
(d) Any successor Servicer shall provide 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 Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section.
SECTION 8.4. Notification to Holders. Upon any notice of a Servicer
Default or upon any termination of, or appointment of a successor to,
Servicer pursuant to this Article VIII, Trustee shall give prompt written
notice thereof to Holders at their respective addresses of record, and to
each Rating Agency.
SECTION 8.5. Waiver of Past Servicer Defaults. The Majority Holders
may, on behalf of all Holders of Certificates, waive any Servicer Default
hereunder and its consequences, except an event resulting from the failure
to make any required deposits or payments to the Collection Account in
accordance with this Agreement. Upon any such waiver of a past Servicer
Default, 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.
SECTION 8.6. Transfer of Accounts. Notwithstanding the provisions of
Section 8.1, if any of the Accounts or the Reserve Account is maintained
with Servicer or an Affiliate of Servicer and a Servicer Default shall
occur and be continuing, Servicer shall promptly, and in any event within
five Business Days, give notice to Trustee of such Servicer Default, and
Trustee, within five days after the receipt of such notice, shall establish
new Eligible Deposit Accounts conforming with the requirements of this
Agreement and promptly shall transfer all funds in any such Accounts or the
Reserve Account to such new Eligible Deposit Accounts.
ARTICLE IX. TRUSTEE.
SECTION 9.1. Acceptance by Trustee. Trustee hereby acknowledges its
acceptance of all right, title and interest in and to the Receivables and
the other Trust Property conveyed by Seller pursuant to this Agreement and
hereby declares that Trustee holds and shall hold such right, title and
interest, upon the trust set forth in this Agreement.
SECTION 9.2. Duties of Trustee. (a) Trustee, both prior to and after
the curing of a Servicer Default, 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 Trustee. If a
Servicer Default, of which an Authorized Officer of Trustee has actual
knowledge, shall have occurred and shall not have been cured (the
appointment of a successor Servicer (including Trustee) to constitute a
cure for the purposes of this Article), 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
that if Trustee assumes the duties of Servicer pursuant to Section 8.2,
Trustee in performing such duties shall use the degree of skill and
attention required by Section 3.1.
(b) Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments
furnished to 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
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own bad faith; provided that:
(i) Prior to the occurrence of a Servicer Default, and after
the curing of all such Servicer Defaults that may have occurred, the
duties and obligations of Trustee shall be determined solely by the
express provisions of this Agreement, 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 Trustee, the
permissible right of Trustee (solely in its capacity as such) to do
things enumerated in this Agreement shall not be construed as a duty
and, in the absence of bad faith on the part of Trustee, or manifest
error, Trustee (solely in its capacity as such) may conclusively rely
on the truth of the statements and the correctness of the opinions
expressed upon any certificates or opinions furnished to Trustee and
conforming to the requirements of this Agreement;
(ii) Trustee shall not be personally liable for an error of
judgment made in good faith by an officer of Trustee, unless it shall
be proved that Trustee shall have been negligent in performing its
duties in accordance with the terms of this Agreement; and
(iii) 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 Majority Holders, as set forth in
Section 8.1, relating to the time, method and place of conducting any
proceeding or any remedy available to Trustee, or exercising any trust
or power conferred upon Trustee, under this Agreement.
(d) Except for the willful misfeasance, bad faith or negligence of
Trustee, 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 indemnity satisfactory to it 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 Trustee to perform, or be
responsible for the manner of performance of, any of the obligations of
Servicer under this Agreement except during such time, if any, as Trustee
shall be the successor to, and be vested with the rights, duties, powers
and privileges of, Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
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) Trustee shall have no power to vary the corpus of the Trust
including (i) accepting any substitute obligation for a Receivable
initially assigned to Trustee under this Agreement, (ii) adding any other
investment, obligation or security, or (iii) withdrawing any Receivable,
except for a withdrawal permitted under this Agreement.
SECTION 9.3. Trustee's Certificate. As soon as practicable after each
Deposit Date on which Receivables shall be assigned to Seller pursuant to
Section 2.4 or 10.2 or to Servicer pursuant to Section 3.7, as applicable,
Trustee shall execute a certificate, prepared by Servicer, including its
date and the date of the Agreement, and accompanied by a copy of Servicer's
Report for the related Collection Period. Trustee's certificate shall
operate, as of such Deposit Date, as an assignment pursuant to Section 9.4.
SECTION 9.4. Trustee's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by Seller pursuant to Section 2.4 or
10.2, or purchased by Servicer pursuant to Section 3.7, Trustee shall
assign, without recourse, representation or warranty, to Seller or
Servicer, as the case may be, all 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 2.1 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
Seller or Servicer, as the case may be, may not enforce any such Receivable
on the ground that it shall not be a real party in interest or a holder
entitled to enforce the Receivable, Trustee shall, at the expense of Seller
or Servicer, as the case may be, take such steps as Seller or Servicer, as
the case may be, deems necessary to enforce the Receivable, including
bringing suit in Trustee's name or the names of the Holders.
SECTION 9.5. Certain Matters Affecting Trustee. Except as otherwise
provided in Section 9.2:
(a) Trustee may conclusively 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) Trustee may consult with counsel knowledgeable in the area
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 in good faith and in accordance with such
written Opinion of Counsel a copy of which shall be provided to Seller
and Servicer.
(c) 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
Holders pursuant to the provisions of this Agreement, unless such
Holders shall have offered to Trustee security or indemnity
satisfactory to Trustee against the costs, expenses, and liabilities
that may be incurred therein or thereby. Nothing contained in this
Agreement, however, shall relieve Trustee of the obligations, upon the
occurrence of a Servicer Default that is not timely cured or waived
pursuant to Section 8.5, 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 use under
the circumstances in the conduct of his own affairs.
(d) 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.
(e) Prior to the occurrence of a Servicer Default and after the
curing of all Servicer Defaults that may have occurred, 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 the Majority Holders; provided that if the payment within a
reasonable time to Trustee of the costs, expenses, or liabilities
likely to be incurred by it in the making of an investigation
requested by the Holders is, in the opinion of Trustee, not reasonably
assured to Trustee by the security afforded to it by the terms of this
Agreement, Trustee may require indemnity satisfactory to it against
such cost, expense, or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by
Servicer, or, if paid by Trustee, shall be reimbursed by Servicer upon
demand. Nothing in this clause (e) shall affect the obligation of
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors; provided further, that Trustee
shall be entitled to make such further inquiry or investigation into
such facts or matter as it may reasonably see fit, and if Trustee
shall determine to make such further inquiry or investigation it shall
be entitled to examine the books and records of Servicer or Seller,
personally or by agent or attorney, at the sole cost and expense of
Servicer or Seller, as the case may be.
(f) 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
except for (i) acts of First Security Investor Reporting or any
successor agent carrying out Trustee's obligations with respect to the
preparation of Servicer Reports and (ii) acts of any other agent,
attorney, nominee or custodian if (A) Trustee has not acted with due
care in their appointment or (B) Seller has not consented to their
appointment.
(g) 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 Seller with its
representations and warranties or for any other purpose.
(h) Trustee shall not be construed to be a guarantor of the
performance of Servicer, nor shall Trustee have any duty to monitor
the performance of Servicer other than as expressly stated in this
Agreement.
(i) Trustee shall not be required to take notice or be deemed
to have notice of any Servicer Default hereunder, except a Servicer
Default under Section 8.1(a)(i) or (ii), unless Trustee shall be
specifically notified in writing of such Servicer Default by Servicer,
Seller or any Certificateholder. All notices or other instruments
required by this Agreement to be delivered to Trustee shall be
delivered at the Corporate Trust Office and, in the absence of such
notice so delivered, Trustee may conclusively assume there is no
Servicer Default except as aforesaid.
SECTION 9.6. Trustee Not Liable for Certificates or Receivables.
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as expressly provided herein,
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than Trustee's execution of, and
the certificate of authentication on, the Certificates), or of any
Receivable or related document, or for the validity of the execution by
Seller and Servicer of this Agreement or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the Trust
Property hereunder, and Trustee shall not be bound to ascertain or inquire
as to the performance or observance of any covenants, conditions or
agreements on the part of Seller or Servicer under this Agreement except as
herein set forth; but Trustee may require Seller or Servicer to provide
full information and advice as to the performance of the aforesaid
covenants, condition and agreements. Trustee (solely in its capacity as
such) shall have no obligation to perform any of the duties of Seller or
Servicer, except as explicitly set forth in this Agreement. Trustee shall
have no liability in connection with compliance of Servicer or Seller with
statutory or regulatory requirements to the Receivables. Trustee shall not
make or be deemed to have made any representations or warranties with
respect to the Receivables or the validity or sufficiency of any assignment
of the Receivables to the Trust or Trustee. Trustee (solely in its capacity
as such) shall at no time have any responsibility or liability for, or with
respect to, the legality, validity or enforceability of any security
interest in any Financed Vehicle or (prior to the time, if any, that
Servicer is terminated as custodian hereunder) any Receivable, or the
perfection and priority of such a security interest or the maintenance of
any such perfection and priority, the efficacy of the Trust or its ability
to generate funds sufficient to provide for the payments to be distributed
to Holders under this Agreement, the existence, condition, location, and
ownership of any Financed Vehicle, the existence and enforceability of the
Insurance Policies, 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 Seller with any warranty or representation made under this
Agreement or in any related document and the accuracy, of any such warranty
or representation, prior to Trustee's receipt of notice or other discovery
of any noncompliance therewith or any breach thereof, any investment of
monies by Servicer or any loss resulting therefrom (it being understood
that Trustee shall remain responsible for any Trust Property that it may
hold), the acts or omissions of Seller, Servicer, or any Obligor, any
action of Servicer taken in the name of Trustee, or any action by Trustee
taken at the instruction, of Servicer (provided that such instruction is
not in express violation of the terms and provisions of this Agreement);
provided that the foregoing shall not relieve Trustee of its obligation to
perform its duties under this Agreement. Except with respect to a claim
based on the failure of Trustee to perform its duties under this Agreement
(whether in its capacity as Trustee or as successor Servicer) or based on
Trustee's willful misconduct, negligence, or bad faith, or based on
Trustee's breach of a representation and warranty contained in Section
9.14, no recourse shall be had to Trustee (whether in its individual
capacity or as Trustee) for any claim based on any provision of this
Agreement, the Certificates, or any Receivable or assignment thereof
against Trustee in its individual capacity; Trustee shall not have any
personal obligation, liability, or duty whatsoever to any Holder or any
other Person with respect to any such claim. Trustee shall not be
accountable for the use or application by Seller of the proceeds of such
Certificates, or for the use or application of any funds paid to Servicer
in respect of the Receivables prior to the time such amounts are deposited
in the Collection Account (whether or not the Collection Account is
maintained with Trustee). Trustee shall have no liability for any losses
from the investment or reinvestment in Eligible Investments made in
accordance with Section 4.1.
SECTION 9.7. Trustee May Own Certificates. 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 9.8. Trustee's Fees and Expenses. Servicer agrees to pay to
Trustee, and Trustee shall be entitled to, reasonable compensation (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
Trustee, and Servicer shall pay or reimburse Trustee upon its request for
all reasonable expenses (including expenses incurred in connection with
notices or other communications to Holders), disbursements and advances
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its
employ) incurred or made by Trustee in accordance with any of the
provisions of this Agreement (including the reasonable fees and expenses of
its agents, any co-trustee and counsel) or in defense of any action brought
against it in connection with this Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful
misfeasance, or bad faith. Servicer's covenant to pay the expenses,
disbursements and advances provided for in the preceding sentence shall
survive the termination of this Agreement.
Servicer shall indemnify and hold harmless Trustee and its directors,
officers, employees, and agents from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of the activities of
Trustee pursuant to this Agreement, including any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred
in connection with the defense of any actual or threatened action,
proceeding or claim; provided, that Servicer shall not indemnify Trustee or
its directors, officers, employees or agents for any loss, liability,
expense, damage or injury arising from Trustee's negligence, willful
misconduct, or bad faith. The indemnity provided herein shall survive the
termination of this Agreement and the resignation and removal of the
Trustee. If Servicer shall have made any indemnity payments pursuant to
this Section 9.8 and Trustee thereafter collects any of such amounts from
others, Trustee shall immediately upon receipt thereof repay such amounts
to Servicer, without interest.
SECTION 9.9. Eligibility Requirements for Trustee. Trustee shall at
all times be organized and doing business under the banking laws of the
United States or of any state thereof, shall be authorized under such laws
to exercise corporate trust powers, shall have a consolidated net worth of
at least $50,000,000 and shall be subject to supervision or examination by
federal or state banking authorities. If Trustee shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 9.9, the consolidated net worth of such Trustee shall be deemed to
be its consolidated capital and surplus as set forth in its most recent
consolidated report of condition so published. In case at any time Trustee
shall cease to be eligible in accordance with the provisions of this
Section 9.9, Trustee shall resign immediately in the manner and with the
effect specified in Section 9.10.
SECTION 9.10. Resignation or Removal of Trustee. (a) Trustee may at
any time resign and be discharged from the trusts hereby created by giving
30 days' prior written notice thereof to Servicer. Upon receiving such
notice of resignation, 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 Trustee shall cease to be eligible in accordance
with the provisions of Section 9.9 and shall fail to resign after written
request therefor by Servicer, or if at any time Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver,
conservator or liquidator of Trustee or of its property shall be appointed,
or any public officer shall take charge or control of Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then Servicer may remove Trustee. If Trustee is removed under
the authority of the immediately preceding sentence, Servicer shall
promptly appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to Trustee so removed, the
successor Trustee, the Holders at their respective addresses of record and
the Rating Agency.
(c) Any resignation or removal of Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.10
shall not become effective until acceptance of appointment by the successor
Trustee pursuant to Section 9.11.
(d) The respective obligations of Seller and Servicer described in
this Agreement shall survive the removal or resignation of Trustee as
provided in this Agreement.
SECTION 9.11. Successor Trustee. (a) Any successor Trustee appointed
pursuant to Section 9.10 shall execute, acknowledge, and deliver to
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 deliver to the successor Trustee all
documents and statements held by it under this Agreement, and 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 9.11 unless at the time of such acceptance such successor Trustee
shall be eligible pursuant to Section 9.9.
(c) Upon acceptance of appointment by a successor Trustee pursuant to
this Section 9.11, Servicer shall mail notice of such acceptance by the
successor Trustee under this Agreement to all Holders at their respective
addresses of record and to the Rating Agency. If 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 Servicer.
(d) No predecessor Trustee shall be liable for the acts or omissions
of any successor Trustee.
SECTION 9.12. Merger or Consolidation of Trustee. Any corporation or
banking association which is eligible to be a successor Trustee under
Section 9.9 (a) into which Trustee may be merged or consolidated, (b) that
may result from any merger, conversion or consolidation to which Trustee
shall be a party, or (c) that may succeed by purchase and assumption to the
business of Trustee, where Trustee is not the surviving entity, which
corporation or banking association executes an agreement of assumption to
perform every obligation of Trustee under this Agreement, shall be the
successor of 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. Trustee shall promptly
notify Servicer and each Rating Agency of any such merger, conversion,
consolidation or purchase and assumption where Trustee is not the surviving
entity.
SECTION 9.13. 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, Servicer and Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved
by Trustee to act as co-trustee, jointly with Trustee, or separate trustee
or separate trustees, of all or any part of the Trust, and to vest in such
Person, in such capacity and for the benefit of the Holders, such title to
the Trust, or any part thereof, and, subject to the other provisions of
this Section 9.13, such powers, duties, obligations, rights, and trusts as
Servicer and Trustee may consider necessary or desirable. If 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 a Servicer Default shall have occurred
and be continuing, 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 9.9 and no notice to Holders of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.11.
Notwithstanding the appointment of a co-trustee or separate trustee
hereunder, Trustee shall not be relieved of any of its obligations under
this Agreement.
(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:
(i) All rights, powers, duties, and obligations conferred or
imposed upon Trustee shall be conferred upon and exercised or
performed by 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 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 Servicer under this
Agreement), 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 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) Servicer and Trustee acting jointly 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 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 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, Trustee. Each such
instrument shall be filed with Trustee and a copy thereof given to
Servicer.
(d) Any separate trustee or co-trustee may, at any time, appoint
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 Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Trustee shall promptly notify
Servicer and each Rating Agency of any appointment made pursuant to this
Section 9.13.
SECTION 9.14. Representations and Warranties of Trustee. Trustee makes
the following representations and warranties on which Seller, Servicer, and
Holders may rely:
(a) Organization and Good Standing. Trustee is a banking
corporation duly organized, validly existing, and in good standing
under the laws of the State of Illinois.
(b) Power and Authority. Trustee has full power, authority and
legal right to execute, deliver, and perform this Agreement and the
Related Agreements and has taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement and the
Related Agreements to which it is a party.
(c) Enforceability. This Agreement and the Related Agreements to
which it is a party have been duly executed and delivered by Trustee
and this Agreement and such Related Agreements constitute legal, valid
and binding obligations of Trustee enforceable against Trustee in
accordance with their respective 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 generally and except as such
enforceability may be limited by equitable limitations on the
availability of specific remedies.
(d) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance by Trustee of this
Agreement, the Related Agreements or the consummation of the
transactions contemplated hereby or thereby.
(e) No Violation. The execution, delivery and performance by
Trustee of this Agreement and the Related Agreements and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, result in any breach of the terms and provisions
of, constitute (with or without notice or lapse of time) a default
under, or result in the creation or disposition of any Lien upon any
of its properties pursuant to the terms of, (i) the articles of
association or by-laws of Trustee, (ii) any indenture, contract,
lease, mortgage, deed of trust or other instrument or agreement to
which Trustee is a party or by which Trustee is bound or to which any
of its properties are subject, or (iii) any law, order, rule or
regulation applicable to Trustee or its properties of any federal or
state regulatory body, any court, administrative agency or other
governmental instrumentality having jurisdiction over Trustee or any
of its properties.
SECTION 9.15. Reports by Trustee. Trustee shall provide to any Holder
or Certificate Owner who so requests in writing (addressed to the Corporate
Trust Office) a copy of any Servicer's Report, the annual statement
described in Section 3.10, and the annual accountant's examination
described in Section 3.11. Trustee may require any Holder or Certificate
Owner requesting such report to pay a reasonable sum to cover the cost of
Trustee's complying with such request.
SECTION 9.16. Tax Returns. Servicer shall prepare or shall cause to be
prepared any tax returns on Form 1041 (or other applicable form) required
to be filed by the Trust and shall remit such returns to Trustee for
signature at least five days before such returns are due to be filed.
Trustee, upon request, will furnish Servicer with all such information
actually known to an Authorized Officer of 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. Servicer shall
prepare the tax returns of the Trust in accordance with the Code and any
regulations (including, to the extent applicable by their terms, proposed
regulations) thereunder. Notwithstanding the foregoing, it is understood
and agreed that Trustee has agreed to act as Servicer's agent for the
purpose of preparing and filing any tax returns required to be filed by the
Trust, and so long as Trustee timely prepares and files any such tax
returns, Servicer shall not be required to do so. Any failure by Trustee
to prepare and file any such tax returns, or inaccuracy in any tax return
so prepared and filed, shall (so long as Servicer shall also not timely
prepare and file such tax return or correct any such inaccuracy) have the
same consequences with respect to the Servicer as would such a failure by
Servicer or inaccuracy in a tax return prepared and filed by Servicer.
SECTION 9.17. 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 Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by 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 Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of which such judgment
has been obtained.
ARTICLE X. TERMINATION.
SECTION 10.1. Termination of the Trust. (a) The Trust, and the
respective obligations and responsibilities of Seller, Servicer and Trustee
hereunder, shall terminate (except as otherwise expressly provided herein)
upon the earliest of: (i) the Distribution Date next succeeding the
purchase by Seller at its option, pursuant to Section 10.2, of the
Receivables (other than Defaulted Receivables) remaining in the Trust, (ii)
the payment to Holders of all amounts required to be paid to them pursuant
to this Agreement or (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 disposition of any amounts received
upon liquidation of any property remaining in the Trust; provided 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 living on the date of this Agreement of Rose Kennedy of the
Commonwealth of Massachusetts. Servicer shall promptly notify Trustee of
any prospective termination pursuant to this Section 10.1.
(b) Notice of any termination, specifying the Distribution Date upon
which the Holders may surrender the Certificates to Trustee for payment of
the final distribution and cancellation, shall be given promptly by Trustee
by letter to Holders of record and the Rating Agencies mailed not earlier
than the 15th day and not later than the 25th day of the month next
preceding the specified Distribution Date stating the amount of any such
final payment and that the Record 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 Trustee
therein specified. Upon presentation and surrender of the Certificates,
Trustee shall cause to be distributed to Holders amounts distributable on
such Distribution Date pursuant to Section 4.5. Amounts remaining in the
Trust after distribution, or after setting aside all funds required for
distribution, to the Holders shall be distributed to Seller.
(c) In the event that all of the Holders shall not surrender their
Certificates for cancellation within six months after the date specified in
the above-mentioned written notice, Trustee shall give a second written
notice to the remaining Holders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto.
Trustee shall after giving such notice to deliver or cause to be delivered
to Servicer the Certificate Register. If within one year after the second
notice all the Certificates shall not have been surrendered for
cancellation, Servicer may take appropriate steps, or may appoint an agent
to take appropriate steps, to contact the remaining Holders 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 shall be
distributed by Trustee to Seller.
SECTION 10.2. Optional Purchase of All Receivables. If the Pool
Factor shall be .0500000 or less as of the last day of any Collection
Period, Seller shall have the option to purchase the remaining Trust
Property on any Distribution Date occurring in a subsequent Collection
Period. To exercise such option, Seller shall deposit the aggregate
Purchase Amount for the remaining Receivables (other than Defaulted
Receivables) into the Collection Account on the Deposit Date occurring in
the month in which such repurchase is to be effected. The payment shall be
made in the manner specified in Section 4.4, and shall be distributed
pursuant to Section 4.5. Upon such payment Seller shall succeed to and own
all interests in and to the Trust Property (subject to the rights of the
Holders to receive a final distribution on the related Distribution Date).
ARTICLE XI. MISCELLANEOUS PROVISIONS.
SECTION 11.1. Amendment. (a) This Agreement may be amended by
Seller, Servicer and Trustee, without the consent of any of the Holders,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any
manner the rights of the Holders; provided that such action shall not, as
evidenced by an Opinion of Counsel to Seller delivered to Trustee,
materially and adversely affect the interests of any Holder.
(b) This Agreement may also be amended from time to time by Seller,
Servicer and Trustee, with the consent of the Majority Holders, for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Holders; provided that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that are required to be made on any
Certificate without the consent of all adversely affected Holders, (ii)
reduce the percentage of the aggregate outstanding principal balance of the
Certificates, the holders of which are required to consent to any such
amendment, without the consent of all Holders, (iii) materially and
adversely affect the interests of either the Class A Holders or the Class B
Holders without the consent of the Holders of Class A Certificates or Class
B Certificates, as the case may be, evidencing not less than a majority of
the aggregate outstanding principal balance of the Class A Certificates or
the Class B Certificates, as the case may be, or (iv) cause either Rating
Agency to downgrade or withdraw its rating of the Class A Certificates or
the Class B Certificates without the consent of holders of Class A
Certificates or Class B Certificates, as the case may be, evidencing more
than 66 2/3% of the aggregate outstanding principal balance of the Class A
Certificates or the Class B Certificates, as the case may be. Promptly
after the execution of any such amendment or consent, Trustee shall furnish
written notification of the substance of such amendment or consent to each
Holder.
(c) It shall not be necessary for the consent of Holders pursuant to
this Section 11.1 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 of evidencing
the authorization of the execution thereof by Holders shall be subject to
such reasonable requirements as Trustee may prescribe.
(d) Notice of any amendment of this Agreement shall be sent by
Servicer to each Rating Agency, at such address as such Rating Agency may
from time to time specify in writing.
(e) In connection with any amendment pursuant to this Section 11.1
Trustee shall be entitled to receive an Opinion of Counsel to the effect
that such amendment is authorized or permitted by the Agreement.
SECTION 11.2. Protection of Title to Trust. (a) Servicer 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 Holders and Trustee under this Agreement in the Trust
Property and in the proceeds thereof. Servicer shall deliver (or cause to
be delivered) to Trustee file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing. If Servicer fails to perform its obligations under this subsection,
Trustee may (but shall not be obligated to) do so, at the expense of
Servicer.
(b) Neither Seller nor Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by Servicer in
accordance with subsection (a) misleading within the meaning of the UCC,
unless it shall have given Trustee at least 60 days' prior written notice
thereof.
(c) Seller and Servicer shall give 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. Seller and
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, other than in the States of Louisiana, Maryland or
Tennessee.
(d) 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 in respect of such Receivable.
(e) Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to Trustee,
Servicer's master computer records (including archives) that shall refer to
a Receivable indicate clearly that such Receivable is owned by the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from
or modified on Servicer's computer systems when, and only when, the
Receivable shall be paid or shall become a Purchased Receivable.
(f) If at any time Seller, any Seller Affiliate or Servicer shall
propose to sell, grant a security interest in or otherwise transfer any
interest in motor vehicle loans to any prospective purchaser, lender or
other transferee, Seller or Servicer, as the case may be, shall give to
such prospective purchaser, lender or other transferee computer tapes,
records or print-outs (including any restored from 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.
(g) Upon request, Servicer, at its expense, shall furnish to Trustee,
within thirty days, a list of all Receivables then held as part of the
Trust, together with a reconciliation of such list to each Schedule of
Receivables and to each of Servicer's Reports furnished pursuant to Section
3.9 indicating removal of Receivables from the Trust.
(h) Servicer shall deliver to Trustee upon the Closing Date, and upon
the execution and delivery of each amendment, if any, of this Agreement an
Opinion of Counsel to Servicer either (i) stating that, in the opinion of
such counsel, no filings or other action, other than the filings required
in the appropriate filing offices as described in such opinion, are
necessary to perfect and maintain (A) the security interest of Trustee in
the Financed Vehicles, subject to the exceptions stated therein, and (B)
the interest of Trustee in the Receivables and the proceeds thereof against
third parties, subject to the exceptions stated therein, and reciting the
details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (ii) stating that, in the opinion of such
counsel, no such action shall be necessary to perfect or complete the
perfected status of such interest.
(i) Servicer shall permit Trustee and its agents, at the expense of
Trustee (except after a Servicer Default, in which case such cost will be
at the expense of Servicer), at any time to inspect, audit and make copies
of and abstracts from Servicer's records regarding any Receivables then or
previously included in the Trust.
SECTION 11.3. Limitation on Rights of Holders. (a) The death or
incapacity of any Holder shall not operate to terminate this Agreement or
the Trust, or entitle the Holder'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, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of
them.
(b) No Holder shall have any right to vote (except as expressly
provided herein) 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 set forth in this Agreement, or contained in
the terms of the Certificates, be construed so as to constitute the Holders
as partners or members of an association; nor shall any Holder be under any
liability to any third party by reason of any action taken pursuant to any
provision of this Agreement.
(c) No Holder 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 Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless, with respect to the Class A Certificates, Class A
Holders evidencing not less than a majority of the aggregate outstanding
principal balance of the Class A Certificates or, with respect to the Class
B Certificates, Class B Holders evidencing not less than a majority of the
aggregate outstanding principal balance of the Class B Certificates, shall
have made written request upon Trustee to institute such action, suit or
proceeding in its own name as Trustee under the Agreement and shall have
offered to Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and
Trustee, for 30 days after its receipt of such notice, request and offer of
indemnity satisfactory to it, shall have neglected or refused to institute
any such action, suit or proceeding; 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 of the 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 Class A Holders or Class B Holders, as the case may be. For the
protection and enforcement of the provisions of this Section 11.3, each
Holder and Trustee shall be entitled to such relief as can be given either
at law or in equity.
SECTION 11.4. Litigation and Indemnities. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to Sections 6.2 or 7.2, such Person
(the "Indemnified Person") shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Person") in writing, and
the Indemnifying Person, upon request of the Indemnified Person, shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the reasonable fees and expenses
of such counsel related to such proceeding. The Indemnifying Person shall
not be liable for any settlement of any claim or proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
SECTION 11.5. 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; provided that the grant of the security
interest in the Reserve Account and other property contained in Section
4.6, and the perfection, effect of perfection or non-perfection, and
priority of such security interest shall be governed by the laws of the
State of Illinois.
SECTION 11.6. Notices. All demands, notices, and communications under
this Agreement shall be in writing, personally delivered, or sent by
telecopier, overnight mail or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in
the case of a Seller or Servicer, to the agent for service at the address
specified in Section 11.12, or at such other address as shall be designated
by Seller or Servicer in a written notice to Trustee, (b) in the case of
Trustee, at the Corporate Trust Office, facsimile number: (312) 461-3525,
(c) in the case of Moody's Investors Service, Inc., at the following
address: Moody's Investors Service, Inc., ABS Monitoring Department, 99
Church Street, New York, New York 10007, facsimile number: (212) 553-3850
and (d) in the case of Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., at the following address: Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., 25
Broadway, 20th Floor, New York, New York 10004, Attention: Asset Backed
Surveillance Department, facsimile number: (212) 208-0030. Any notice
required or permitted to be mailed to a Holder shall be given by first
class mail, postage prepaid, at the address of record of such Holder. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder
shall receive such notice.
SECTION 11.7. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, 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 11.8. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 6.3 and Section 7.3, this
Agreement may not be assigned by Seller or Servicer. This Agreement may not
be assigned by Trustee except as provided by Sections 9.10 through 9.13.
SECTION 11.9. Certificates Nonassessable and Fully Paid. 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 Trustee pursuant to Section 5.1, each Certificate
shall be deemed fully paid.
SECTION 11.10. Intention of Parties. (a) The execution and delivery
of this Agreement shall constitute an acknowledgment by Seller and Trustee,
on behalf of the Holders, that it is intended that the assignment and
transfer herein contemplated constitute a sale and assignment outright, and
not for security, of the Receivables and the other Trust Property,
conveying good title thereto free and clear of any liens, from Seller to
the Trust, and that the Receivables and the other Trust Property shall not
be a part of Seller's estate in the event of the insolvency, receivership,
conservatorship or the occurrence of another similar event, of, or with
respect to, Seller. In the event that such conveyance is determined to be
made as security for a loan made by the Trust or the Holders to a Seller,
the parties intend that Seller shall have granted to Trustee a security
interest in all of Seller's right, title and interest in and to the Trust
Property conveyed to the Trust pursuant to Section 2.1, and that this
Agreement shall constitute a security agreement under applicable law.
(b) The execution and delivery of this Agreement shall constitute an
acknowledgment by Seller and Trustee on behalf of the Holders that they
intend that the Trust be classified (for Federal tax purposes) as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code
of which the Holders are owners, rather than as an association taxable as a
corporation. The powers granted and obligations undertaken in this
Agreement shall be construed so as to further such intent.
SECTION 11.11. 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
counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the
day and year first above written.
THE FIFTH THIRD BANK,
Seller and Servicer
By:___________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
Trustee
By:___________________________
Name:
Title:
In consideration of the Reserve Account being placed with it, the
undersigned Securities Intermediary acknowledges and agrees as follows, all
as of the day and year first above written (capitalized terms having the
meanings assigned thereto in the foregoing Pooling and Servicing
Agreement):
1. The Reserve Account has been established in Illinois as a
"securities account" (as defined in Section 8-501(a) of the Uniform
Commercial Code in effect in the State of Illinois (the "ILUCC")) in the
name of the Trustee, and the Securities Intermediary shall comply solely
with entitlement orders originated by the Trustee.
2. All cash and investments of the types described in clauses (a)-(f)
of the definition of Eligible Investments shall be treated as "Financial
Assets" under Article 8 of the ILUCC for purposes of the Reserve Account
(clause (g) investments, if any, being subject to our future approval).
3. The Trustee shall be the only person identified in the Securities
Intermediary's records as having a security entitlement against the
Securities Intermediary in respect of the Reserve Account, and the Trustee
shall be the only person authorized to originate entitlement orders in
respect of such security entitlement. The Securities Intermediary further
acknowledges that it has not been granted any security interest in such
security entitlement.
4. The Securities Intermediary waives and agrees not to assert, claim
or endeavor to exercise any right of set-off, banker's lien or other form
of claim with respect to the Reserve Account.
5. The foregoing acknowledgements and agreements (a) are governed by
the laws of the State of Illinois and (b) may not be terminated or amended
without the Trustee's prior written consent.
HARRIS TRUST AND SAVINGS BANK,
in its individual capacity
By:________________________________
Title:_____________________________
SCHEDULE A
LOCATION OF RECEIVABLE FILES
The Fifth Third Bank
FORM OF CLASS A CERTIFICATE
---------------------------
EXHIBIT A
THE FIFTH THIRD BANK AUTO TRUST 1996-B
6.45% ASSET BACKED CERTIFICATE, CLASS A
Evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of fixed rate simple interest retail
motor vehicle loans (the "Receivables") secured by the new and used
automobiles and light duty trucks financed thereby (the "Financed
Vehicles") and sold to the Trust by The Fifth Third Bank.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST
AND DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE FIFTH THIRD BANK
OR ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE RECEIVABLES ARE NOT
DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), 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.
NUMBER CUSIP 31677MAA6
_________________
$__________________________
Original Certificate Amount
THIS CERTIFIES THAT ____________________ is the registered owner of a
______________ dollars, nonassessable, fully paid, fractional undivided
interest in The Fifth Third Bank Auto Trust 1996-B (the "Trust") formed by
The Fifth Third Bank, an Ohio banking corporation (the "Seller" and the
"Servicer"). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of September 25, 1996 (the "Agreement") among Seller,
Servicer and Harris Trust and Savings Bank, an Illinois banking
corporation, as trustee (the "Trustee").
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 "6.45%
Asset Backed Certificates, Class A" (herein called the "Class A
Certificates"). Also issued under the Agreement are Certificates designated
as "6.70% Asset Backed Certificates, Class B (the "Class B Certificates").
The Class A Certificates and the Class B Certificates are hereinafter
collectively called the "Certificates." This Certificate is issued under
and is subject to the terms, provisions, and conditions of the Agreement,
to which the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The Trust Property includes (as
more fully described in the Agreement) a pool of Receivables, certain
monies received under the Receivables after August 30, 1996 (the "Cutoff
Date"), security interests in the Financed Vehicles, and proceeds of the
foregoing.
Subject to the terms and conditions of the Agreement (including the
availability of funds for distributions) and until the obligations created
by the Agreement shall have terminated in accordance therewith, there will
be distributed, but only from funds on deposit in the Class A Distribution
Account, on the 15th day of each month or, if such 15th day is not a
Business Day, the next succeeding Business Day (each such date, a
"Distribution Date"), commencing October 15, 1996, to the Person in whose
name this Certificate is registered at the close of business on the last
day of the preceding Collection Period (the "Record Date"), such Holder's
fractional undivided interest in the amounts to be distributed to Class A
Holders pursuant to the Agreement on such Distribution Date.
Distributions on this Certificate will be made by Trustee by check
mailed to the Holder of record at its address as it appears in the
Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon, except that with respect
to a Certificate registered in the name of a Clearing Agency or its
nominee, distributions will be made by wire transfer of immediately
available funds. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will
be made after due notice by Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office
or agency maintained for that purpose by Trustee.
This Certificate does not purport to summarize the Agreement and
reference is hereby made to the Agreement for information with respect to
the rights, benefits, obligations and duties evidenced thereby.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
Each Holder, by its acceptance of a Certificate or a beneficial
interest in a Certificate, acknowledges and agrees that they intend that
the Trust be classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Internal Revenue Code of which the
Holders are owners, rather than as an association taxable as a corporation.
IN WITNESS WHEREOF, Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
THE FIFTH THIRD BANK AUTO
TRUST 1996-B
By: HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:_________________________________
Authorized Officer
DATED:
[SEAL]
ATTEST:
_____________________________________
Authorized Officer
Trustee's Certificate of
Authentication:
This is one of the Class A Certificates referred
to in the within-mentioned Agreement.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:_____________________________
Authorized Officer
FORM OF CLASS B CERTIFICATE
---------------------------
EXHIBIT B
THE FIFTH THIRD BANK AUTO TRUST 1996-B
6.70% ASSET BACKED CERTIFICATE, CLASS B
Evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of fixed rate simple interest retail
motor vehicle loans (the "Receivables") secured by the new and used
automobiles and light duty trucks financed thereby (the "Financed
Vehicles") and sold to the Trust by The Fifth Third Bank.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST
AND DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE FIFTH THIRD BANK
OR ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE RECEIVABLES ARE NOT
DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), 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.
NUMBER CUSIP 31677MAB4
_________________
$__________________________
Original Certificate Amount
THIS CERTIFIES THAT ____________________ is the registered owner of a
______________ dollars, nonassessable, fully paid, fractional undivided
interest in the Fifth Third Bank Auto Trust 1996-B (the "Trust") formed by
The Fifth Third Bank, an Ohio banking corporation (the "Seller" and the
"Servicer). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of September 25, 1996 (the "Agreement") among Seller,
Servicer and Harris Trust and Savings Bank, an Illinois banking
corporation, as trustee (the "Trustee").
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 "6.70%
Asset Backed Certificates, Class B" (herein called the "Class B
Certificates"). Also issued under the Agreement are Certificates designated
as 6.45% Asset Backed Certificates, Class A (the "Class A Certificates").
The Class A Certificates and the Class B Certificates are hereinafter
collectively called the "Certificates." This Certificate is issued under
and is subject to the terms, provisions, and conditions of the Agreement,
to which the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The Trust Property includes (as
more fully described in the Agreement) a pool of Receivables, certain
monies received under the Receivables after August 30, 1996 (the "Cutoff
Date"), security interests in the Financed Vehicles, and proceeds of the
foregoing. The rights of the Holder 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.
Subject to the terms and conditions of the Agreement (including the
availability of funds for distributions and the subordination of the Class
B Certificates) and until the obligations created by the Agreement shall
have terminated in accordance therewith, there will be distributed, but
only from funds on deposit in the Class B Distribution Account, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (each such date, a "Distribution Date"), commencing
October 15, 1996, to the Person in whose name this Certificate is
registered at the close of business on the last day of the preceding
Collection Period (the "Record Date"), such Holder's fractional undivided
interest in the amounts to be distributed to Class B Holders pursuant to
the Agreement on such Distribution Date.
Distributions on this Certificate will be made by Trustee by check
mailed to the Holder of record at its address as it appears in the
Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon, except that with respect
to a Certificate registered in the name of a Clearing Agency or its
nominee, distributions will be made by wire transfer of immediately
available funds. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will
be made after due notice by Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office
or agency maintained for that purpose by Trustee.
This Certificate does not purport to summarize the Agreement and
reference is hereby made to the Agreement for information with respect to
the rights, benefits, obligations and duties evidenced thereby.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
Each Holder, by its acceptance of a Certificate or a beneficial
interest in a Certificate, acknowledges and agrees that they intend that
the Trust be classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Internal Revenue Code of which the
Holders are owners, rather than as an association taxable as a corporation.
IN WITNESS WHEREOF, Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
THE FIFTH THIRD BANK AUTO
TRUST 1996-B
By: HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:____________________________
Authorized Officer
DATED:
[SEAL]
ATTEST:
_______________________________
Authorized Officer
Trustee's Certificate of
Authentication:
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:_____________________________
Authorized Officer
EXHIBIT C
[TO COME]
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I. DEFINITIONS.................................. 1
SECTION 1.1. Definitions........................... 1
SECTION 1.2. Other Interpretative Provisions....... 18
SECTION 1.3. Calculations.......................... 19
SECTION 1.4. References............................ 19
SECTION 1.5. Action by or Consent of Holders....... 19
ARTICLE II. THE TRUST PROPERTY.......................... 19
SECTION 2.1. Conveyance of Trust Property.......... 19
SECTION 2.2. Representations and Warranties as to
Each Receivable..................... 19
SECTION 2.3. Representations and Warranties as to
the Receivables in the Aggregate
and Actions of Seller............... 22
SECTION 2.4. Repurchase upon Breach................ 23
SECTION 2.5. Custodian of Receivable Files......... 24
ARTICLE III. ADMINISTRATION AND SERVICING OF TRUST
PROPERTY................................. 27
SECTION 3.1. Duties of Servicer.................... 27
SECTION 3.2. Collection of Receivable Payments..... 28
SECTION 3.3. Realization upon Receivables.......... 28
SECTION 3.4. Physical Damage Insurance............. 29
SECTION 3.5. Maintenance of Security Interests in
Financed Vehicles................... 30
SECTION 3.6. Covenants of Servicer................. 30
SECTION 3.7. Purchase by Servicer upon Breach...... 31
SECTION 3.8. Servicing Compensation................ 31
SECTION 3.9. Servicer's Report..................... 32
SECTION 3.10. Annual Statement as to Compliance..... 33
SECTION 3.11. Independent Certified Public
Accountants' Report................. 33
SECTION 3.12. Access to Certain Documentation and
Information Regarding Receivables... 34
SECTION 3.13. Reports to the Commission............. 34
SECTION 3.14. Reports to the Rating Agency.......... 34
ARTICLE IV. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS
TO HOLDERS............................... 34
SECTION 4.1. Establishment of Accounts............. 34
SECTION 4.2. Collections........................... 35
SECTION 4.3. Advances.............................. 36
SECTION 4.4. Additional Deposits; Net Deposits..... 37
SECTION 4.5. Distributions......................... 37
SECTION 4.6. Reserve Account....................... 39
SECTION 4.7. Statements to Holders................. 42
ARTICLE V. THE CERTIFICATES............................. 43
SECTION 5.1. The Certificates...................... 43
SECTION 5.2. Authentication of Certificates........ 44
SECTION 5.3. Registration of Transfer and Exchange
of Certificates..................... 44
SECTION 5.4. Mutilated, Destroyed, Lost or Stolen
Certificates........................ 45
SECTION 5.5. Persons Deemed Owners................. 45
SECTION 5.6. Access to List of Holders' Names
and Addresses....................... 45
SECTION 5.7. Maintenance of Office or Agency....... 46
SECTION 5.8. Book Entry Certificates............... 46
SECTION 5.9. Notices to Clearing Agency............ 47
SECTION 5.10. Definitive Certificates............... 47
ARTICLE VI. SELLER...................................... 48
SECTION 6.1. Representations and Warranties of
Seller.............................. 48
SECTION 6.2. Liability of Seller; Indemnities...... 49
SECTION 6.3. Merger or Consolidation of Seller..... 51
SECTION 6.4. Limitation on Liability of Seller
and Others...........................51
SECTION 6.5. Seller May Own Certificates........... 52
ARTICLE VII. SERVICER................................... 52
SECTION 7.1. Representations and Warranties of
Servicer............................ 52
SECTION 7.2. Liability of Servicer; Indemnities.... 53
SECTION 7.3. Merger or Consolidation of Servicer... 55
SECTION 7.4. Limitation on Liability of Servicer
and Others.......................... 55
SECTION 7.5. Servicer Not to Resign................ 56
SECTION 7.6. Servicer May Own Certificates......... 56
ARTICLE VIII. SERVICING TERMINATION..................... 56
SECTION 8.1. Servicer Defaults..................... 56
SECTION 8.2. Trustee to Act; Appointment of
Successor Servicer.................. 58
SECTION 8.3. Effect of Servicing Transfer.......... 59
SECTION 8.4. Notification to Holders............... 60
SECTION 8.5. Waiver of Past Servicer Defaults...... 60
SECTION 8.6. Transfer of Accounts.................. 60
ARTICLE IX. TRUSTEE..................................... 61
SECTION 9.1. Acceptance by Trustee................. 61
SECTION 9.2. Duties of Trustee..................... 61
SECTION 9.3. Trustee's Certificate................. 62
SECTION 9.4. Trustee's Assignment of Purchased
Receivables......................... 63
SECTION 9.5. Certain Matters Affecting Trustee..... 63
SECTION 9.6. Trustee Not Liable for Certificates
or Receivables...................... 65
SECTION 9.7. Trustee May Own Certificates.......... 66
SECTION 9.8. Trustee's Fees and Expenses........... 66
SECTION 9.9. Eligibility Requirements for Trustee.. 67
SECTION 9.10. Resignation or Removal of Trustee..... 67
SECTION 9.11. Successor Trustee..................... 68
SECTION 9.12. Merger or Consolidation of Trustee.... 69
SECTION 9.13. Appointment of Co-Trustee or Separate
Trustee............................. 69
SECTION 9.14. Representations and Warranties of
Trustee............................. 71
SECTION 9.15. Reports by Trustee.................... 72
SECTION 9.16. Tax Returns........................... 72
SECTION 9.17. Trustee May Enforce Claims Without
Possession of Certificates.......... 72
ARTICLE X. TERMINATION.................................. 73
SECTION 10.1. Termination of the Trust............. 73
SECTION 10.2. Optional Purchase of All Receivables. 74
ARTICLE XI. MISCELLANEOUS PROVISIONS.................... 74
SECTION 11.1. Amendment............................ 74
SECTION 11.2. Protection of Title to Trust......... 75
SECTION 11.3. Limitation on Rights of Holders...... 77
SECTION 11.4. Litigation and Indemnities........... 78
SECTION 11.6. Notices.............................. 78
SECTION 11.7. Severability of Provisions........... 79
SECTION 11.8. Assignment........................... 79
SECTION 11.9. Certificates Nonassessable and Fully
Paid............................... 79
SECTION 11.10. Intention of Parties................ 79
SECTION 11.11. Counterparts........................ 80
SCHEDULE
SCHEDULE A LOCATION OF RECEIVABLE FILES
EXHIBITS
EXHIBIT A FORM OF CLASS A CERTIFICATE
EXHIBIT B FORM OF CLASS B CERTIFICATE
EXHIBIT C FORM OF SERVICER'S REPORT
||
THE FIFTH THIRD BANK AUTO TRUST 1996-B
6.45% ASSET BACKED CERTIFICATES, CLASS A
6.70% ASSET BACKED CERTIFICATES, CLASS B
THE FIFTH THIRD BANK
(Seller and Servicer)
UNDERWRITING AGREEMENT
September 18, 1996
J.P. Morgan Securities Inc.
As Representative of the
Underwriters Listed in Schedule I
(the "Representative")
60 Wall Street
New York, New York 10260-0060
Ladies/Gentlemen:
The Fifth Third Bank, a banking corporation organized under the laws
of the State of Ohio (in its individual capacity or as Seller or Servicer
under the Pooling and Servicing Agreement (as hereinafter defined)
("Bank")) and a wholly-owned subsidiary of Fifth Third Bancorp, an Ohio
corporation ("Bancorp"), proposes to sell to the Underwriters listed on
Schedule I hereto ("Underwriters") $367,843,000.00 aggregate principal
amount of 6.45% Asset Backed Certificates, Class A (the "Class A
Certificates") and $18,892,000.00 aggregate principal amount of 6.70% Asset
Backed Certificates, Class B (the "Class B Certificates" and together with
Class A Certificates, the "Certificates") as set forth in Section 1 hereof.
The Certificates are issued by the Fifth Third Bank Auto Trust 1996-B
("Trust"). Each Certificate will represent a fractional undivided interest
in the Trust. The assets of the Trust include, among other things, a pool
of fixed rate retail motor vehicle loans secured by new and used
automobiles and light duty trucks (the "Receivables") and certain monies
received under the Receivables after August 30, 1996 (the "Cutoff Date"),
such Receivables to be sold to the Trust by Bank and to be serviced for the
Trust by Servicer. The Class A Certificates and Class B Certificates will
be issued in an aggregate principal amount of $383,843,909.89 and
$28,892,000.00 respectively, which is approximately equal to 93% and 7% of
the aggregate principal balance of the Receivables as of the Cutoff Date.
$16,000,000.00 aggregate principal amount of the Class A Certificates and
$10,000,000.00 aggregate principal amount of the Class B Certificates will
be sold by Bank directly, and $909.89 aggregate principal amount of the
Class A Certificates will initially be retained by Bank. Payments in
respect of the Class B Certificates are, to the extent specified in the
Pooling Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of September 25, 1996 (the "Pooling
Agreement"), among Bank, as seller (in such capacity, "Seller") and as
servicer (in such capacity, "Servicer") and in its individual capacity, and
Harris Trust and Savings Bank, an Illinois banking corporation, as trustee
("Trustee").
Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations of the Commission thereunder (the "Rules and Regulations"), a
registration statement, including a prospectus and prospectus supplement,
relating to the Certificates. The registration statement, as amended at the
time it became effective, including information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is referred to in this Agreement as the "Registration
Statement," and the final form of prospectus (the "Basic Prospectus") and
the final form of the prospectus supplement to the Basic Prospectus
describing the Certificates and offering thereof (the "Prospectus
Supplement") filed in accordance with Rule 424(b) are referred to
collectively in this Agreement as the "Prospectus".
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Rule 424" and "Rule 430A" refer to such rules under the Act.
"Basic Documents" shall mean the Master Assignment Agreement dated as of
March 26, 1996 among each Affiliate Bank and Bank (the "Master Assignment
Agreement"), the Affiliate Bank Security Agreement, the Pooling Agreement,
this Agreement, the Certificates, and the Certificate Depository Agreement.
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Pooling Agreement.
Bank agrees with Underwriters as follows:
1. Bank agrees to sell and deliver the Certificates to Underwriters
as hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase severally, and not
jointly, from Bank, the respective aggregate principal amount of Class A
Certificates and the Class B Certificates set forth opposite such
Underwriter's name in Schedule I hereto. Bank will offer $16,000,000.00
aggregate principal amount of the Class A Certificates and $10,000,000.00
aggregate principal amount of the Class B Certificates. The Class A
Certificates and the Class B Certificates are to be purchased by
Underwriters at the respective purchase price of 99.7359375% and
99.6546875% of the aggregate principal amount thereof plus, in each case,
accrued interest, if any, on the principal amount thereof at the Class A
Certificate Rate or Class B Certificate Rate, as applicable calculated from
(but excluding) September 15, 1996 to (and including) the Closing Date.
2. Bank understands that Underwriters intend (i) to make a public
offering of the Certificates purchased by the Underwriters hereunder as
soon after this Agreement has become effective as in the judgment of Bank
and the Representative is advisable and (ii) initially to offer the
Certificates purchased by the Underwriters hereunder upon the terms set
forth in the Prospectus.
3. Payment for the Certificates purchased by the Underwriters
hereunder shall be made to Bank or to its order by wire transfer of same
day funds at the office of Mayer, Brown & Platt at 9:00 A.M. Chicago time
on September 25, 1996 or at such other time on the same or such other date,
not later than the fifth Business Day thereafter, as the Representative and
Bank may agree upon in writing (the "Closing Date"). As used herein, the
term "Business Day" means any day other than a day on which banks generally
are permitted or required to be closed in New York, New York or Cincinnati,
Ohio.
Payment for the Certificates purchased by the Underwriters hereunder
shall be made against delivery to the Representative for the respective
accounts of the Underwriters on the Closing Date of such Certificates in
definitive form registered in the name of Cede & Co. as nominee of The
Depositary Trust Company and in such denominations, as permitted by the
Pooling Agreement, as the Representative shall request in writing not later
than two full Business Days prior to the Closing Date, with any transfer
taxes payable in connection with the transfer to Underwriters of the
Certificates duly paid by Bank. Bank shall make such definitive
certificates representing the Certificates available for inspection by the
Representative at the office of J.P. Morgan Securities, Inc., 60 Wall
Street, New York, New York 10260-0060 not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date.
4. Bank represents and warrants to and agrees with each Underwriter
that:
(a) The Registration Statement on Form S-3 (No. 333-856),
including the Prospectus and such amendments thereto as may have been
required on or prior to the date hereof, relating to the Certificates,
has been filed with the Commission and such Registration Statement as
amended has become effective.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of Bank, threatened
by the Commission, and on the Effective Date of the Registration
Statement, the Registration Statement and the Prospectus conformed in
all material respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein,
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and on the
Closing Date the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished to Bank in writing by any
Underwriter expressly for use therein. Bank hereby agrees with
Underwriters that, for all purposes of this Agreement, the only
information furnished to Bank by the Underwriters through the
Representative expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, are the statements
with respect to the terms of the offering in the sentence preceding
the sentence regarding the expected delivery date on the cover page
of, the statements with respect to stabilizing transactions in
secondary markets in the Certificates on the third page of, and the
statements (other than the first two sentences which follow the table)
under the caption "Underwriting" in, the Prospectus Supplement.
(c) The computer tape with respect to the Receivables to be
sold to the Trust created as of the Cutoff Date, and made available to
the Representative by Bank, was complete and accurate in all material
respects as of the date thereof.
(d) Bank has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio, with
power and authority to own its properties and conduct its business and
had at all relevant times, and has, full power, authority and legal
right to acquire, own, sell and service the Receivables and the other
Trust Property to establish the Trust and to sell the Certificates as
contemplated by this Agreement and the Pooling Agreement. Bank has the
power, authority and legal right to execute, deliver and perform this
Agreement and the Basic Documents and to carry out their respective
terms and to sell and assign the property to be sold and assigned to
and deposited with the Trustee as the Trust Property.
(e) The Certificates have been duly authorized, and, when
issued and delivered pursuant to the Pooling Agreement and duly
authenticated by Trustee, will be duly and validly issued,
authenticated and delivered and entitled to the benefits provided by
the Pooling Agreement. The execution, delivery and performance by Bank
of each of this Agreement and the Basic Documents to which it is a
party and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by Bank by all necessary corporate
action. This Agreement and the Basic Documents to which Bank is a
party have been duly executed and delivered by Bank and, when executed
and delivered by Bank and the other parties thereto, each of this
Agreement and such Basic Documents will constitute a legal, valid and
binding obligation of Bank, enforceable against Bank in accordance
with its respective terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws
affecting enforcement of the rights of creditors of state banks
generally and to equitable limitations on the availability of specific
remedies. The Certificates, this Agreement and the Basic Documents
each conforms to the descriptions thereof in the Prospectus in all
material respects.
(f) No consent, approval, authorization, license or other order
or action of, or filing or registration with, any court or
governmental authority, bureau or agency is required in connection
with the execution, delivery or performance by Bank of this Agreement
or any of the Basic Documents to which Bank is a party or the
consummation of the transactions contemplated hereby or thereby except
such as have been obtained and made under the Act and the Rules and
Regulations or state securities laws and any filings of UCC financing
statements.
(g) Bank is not in violation of its articles of incorporation
or code or regulations or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any agreement or instrument to which it is a party or by which it
is bound which violation or default would have a material adverse
effect on the transactions contemplated herein or in the Pooling
Agreement. The execution, delivery and performance by Bank of this
Agreement and the Basic Documents to which Bank is a party, the
consummation of the transactions contemplated hereby and thereby and
the compliance with the terms and provisions hereof and thereof will
not conflict with or result in a material breach or violation of any
of the terms and provisions of, constitute (with or without notice or
lapse of time or both) a material default under or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of, (A) the articles of incorporation or code of
regulations of Bank, (B) any indenture, contract, lease, mortgage,
deed of trust or other instrument or agreement to which Bank is a
party or by which Bank is bound, or (C) any law, order, rule or
regulation applicable to Bank of any regulatory body, any court,
administrative agency or other governmental instrumentality having
jurisdiction over Bank.
(h) There are no proceedings or investigations pending, or, to
the knowledge of Bank, threatened, to which Bank is a party before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) that are required to be disclosed in
the Registration Statement or the Prospectus, (ii) asserting the
invalidity of this Agreement or any of the Basic Documents, (iii)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents, (iv) seeking any determination or
ruling that might materially and adversely affect the performance by
Bank of its obligations under, or the validity or enforceability of,
this Agreement or any of the Basic Documents, (v) that may adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates, or (vi) which, if determined adversely
to Bank, could individually or in the aggregate reasonably be expected
to materially adversely affect the interests of the holders of the
Certificates or the marketability of the Certificates.
(i) There are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
(j) The representations and warranties of Bank contained in the
Basic Documents are true and correct in all material respects.
(k) By assignment and delivery of each of the Receivables to
the Trust as of the Closing Date, Bank will transfer title in the
Receivables to the Trust, subject to no prior or equal Lien (other
than Liens under the Basic Documents).
(l) Deloitte & Touche LLP are independent public accountants
with respect to Bank within the meaning of the Act and the Rules and
Regulations.
5. Bank covenants and agrees with Underwriters that:
(a) Prior to the termination of the offering of the
Certificates, Bank will not file or cause to be filed any amendment of
the Registration Statement or the Prospectus Supplement (x) without
first furnishing to the Representative a copy of the proposed
amendment or Prospectus Supplement and giving the Representative a
reasonable opportunity to review the same or (y) to which the
Representative reasonably objects. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under
Rule 424(b), Bank will cause the Prospectus, properly completed, to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to Underwriters of such timely filing. Bank will promptly
advise Underwriters (i) when the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b), (ii) when any amendment to the
Registration Statement shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (iv) of the receipt by Bank of notification with respect
to the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and (v) of the receipt
by Bank of notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Bank
will use its reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof. The consent of the Representative to any amendment
or supplement to the Registration Statement or Prospectus shall not be
deemed a waiver of any condition set forth in Section 7 hereof.
(b) Bank will deliver, at its expense, to the Representative,
two signed copies of the Registration Statement (as originally filed)
and each amendment thereto, in each case including exhibits, and,
during the period mentioned in paragraph (e) below, to each
Underwriter as many copies of the Prospectus (including all amendments
and supplements thereto) as the Representative may reasonably request.
Bank will furnish or cause to be furnished to the Representative
copies of all reports on Form SR required by Rule 463 under the Act.
(c) If during such period of time after the first date of the
public offering of the Certificates as in the opinion of counsel for
Underwriters a prospectus relating to the Certificates is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or it is necessary to amend
or supplement the Prospectus to comply with applicable law, Bank will
forthwith prepare and furnish, at the expense of Bank, to Underwriters
and to the dealers (whose names and addresses the Representative will
furnish to Bank) to which Certificates may have been sold by the
Representative on behalf of Underwriters and upon request by the
Representative to any other dealers identified by the Representative,
such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with applicable law.
(d) Bank will endeavor to qualify the Certificates for offer
and sale under the securities or Blue Sky laws of such jurisdictions
as the Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for
distribution of the Certificates and will pay all reasonable fees and
expenses (including fees and disbursements of counsel to the
Representative) incurred in connection with such qualification and in
connection with the determination of the eligibility of the
Certificates for investment under the laws of such jurisdictions as
the Representative may designate; provided, that Bank shall not be
obligated to qualify to do business in any jurisdiction in which it is
not currently so qualified; and provided further that Bank shall not
be required to file a general consent to service of process in any
jurisdiction.
(e) On or before April 1, 1997, Bank will cause the Trust to
make generally available to Certificateholders and to the
Representative all financial information required to be sent to
Certificateholders pursuant to the Pooling Agreement.
(f) For the period from the date of this Agreement until the
retirement of all of the Certificates, Servicer will furnish to the
Representative (i) copies of each Servicer's Report and the annual
statements of compliance delivered to the Trustee pursuant to Article
III of the Pooling Agreement and the annual independent certified
public accountant's servicing reports furnished to Trustee pursuant to
Article III of the Pooling Agreement, by first-class mail at the same
time such statements and reports are furnished to the Trustee, (ii)
copies of each amendment to any of the Basic Documents, (iii) copies
of all other reports and communications to any Certificateholders or
Certificate Owners, or to or from the Trustee, the Clearing Agency,
any Rating Agency or the Commission relating to the Trust or the
Certificates, (iv) copies of each Opinion of Counsel and Officer's
Certificate delivered pursuant to the Pooling Agreement, as soon as
available, and (v) from time to time, such other information
concerning the Trust or Bank as the Representative may reasonably
request.
(g) If required, Bank will register the Certificates pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to April 29, 1997.
(h) To the extent, if any, that the ratings provided with
respect to the Certificates by the Rating Agencies are conditional
upon the furnishing of documents or the taking of any other action by
Bank, Bank shall furnish such documents and use reasonable efforts to
take any such other action.
6. Bank will pay all costs and expenses incident to the performance
of its obligations under this Agreement, including, without limiting the
generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Certificates, (ii) incident to the preparation, printing (or otherwise
reproducing), filing and delivery under the Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Certificates under the laws of such
jurisdictions as the Representative may designate (including fees and
disbursements of counsel for Underwriters with respect thereto, (iv)
related to any filing with the National Association of Securities Dealers,
Inc., (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Basic Documents and
any Blue Sky Memorandum and the furnishing to Underwriters and dealers of
copies of the Registration Statement, any preliminary prospectus and the
Prospectus (including exhibits, amendments and supplements thereto) as
herein provided, (vi) the fees and disbursements of Bank's counsel and
accountants, (vii) any fees and expenses payable to the Clearing Agency,
(viii) any fees and expenses payable to the Rating Agencies in connection
with the rating of the Certificates and (ix) any fees and expenses of
Trustee.
7. The obligations of Underwriters to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of Bank herein, to the accuracy of the statements of
officers of Bank made in any writing delivered at the closing pursuant to
the provisions hereof, to the performance by Bank of its obligations
hereunder and to the following additional conditions precedent:
(a) At each of the time this Agreement is executed and
delivered by Bank and at the Closing Date, Deloitte & Touche LLP shall
have furnished to the Representative letters dated, respectively, as
of the date of this Agreement and as of the Closing Date,
substantially in the forms of the drafts to which the Representative
previously agreed and otherwise in form and substance satisfactory to
the Representative.
(b) The form of prospectus used to confirm sales of
Certificates shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section
5(a) of this Agreement; no stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or, to the knowledge of Bank,
contemplated by the Commission; and all requests for additional
information from the Commission with respect to the Registration
Statement shall have been complied with to the reasonable satisfaction
of the Representative.
(c) The Representative shall have received an officer's
certificate, dated the Closing Date, signed by any Vice President or
more senior officer of Bank, individually and as Servicer,
representing and warranting that, as of the Closing Date, the
representations and warranties of Bank or Servicer, as applicable, in
this Agreement and the Basic Documents are true and correct, that Bank
or Servicer, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder or under the Basic Documents at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of such officer's
knowledge, contemplated by the Commission, and that since December 31,
1995, there has been no material adverse change, or any development
involving a prospective material adverse change, in or affecting
particularly Seller's portfolio of Motor Vehicle Loans or the business
or properties of the Trust, Bancorp, Bank or any Affiliate of Bank
(each, an "Affiliate Bank") selling Receivables to Bank pursuant to
the Master Assignment Agreement.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the affairs, business, operations, financial condition,
prospects or properties of the Trust, Bancorp, Bank or any Affiliate
Bank which, in the reasonable judgment of the Representative,
materially impairs the investment quality of the Certificates or makes
it impractical or inadvisable to proceed with completion of the sale
of and payment for the Certificates, (ii) any downgrading in the
rating of any rated debt securities of Bank or any Affiliate Bank or
any of Bank's direct or indirect subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with no implication
of a possible downgrading, of such rating).
(e) The Representative shall have received an opinion of Fred
L. Darlington, Esq., Counsel of Bank, addressed to the Representative
and the Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) Each Affiliate Bank and Bank is a "bank" as such term
is defined in Title 12 U.S.C. Section 371c(b)(5).
(ii) Each of Bank and each Affiliate Bank has been duly
organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its organization
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Basic Documents to
which it is a party and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would render any Receivable
unenforceable by Bank or the Trustee.
(iii) The execution, delivery and performance by each of
Bank and each Affiliate Bank of the Basic Documents to which
such Person is a party and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, the articles of incorporation or code of regulations or
similar documents of such Person, or any material agreement or
instrument known to such counsel to which such member is a party
or by which such member is bound or to which any of the
properties of such member is subject.
(iv) The execution, delivery and performance by Bank and
each Affiliate Bank of the Basic Documents to which such Person
is a party and the consummation of the transactions contemplated
thereby, will not violate any statute, rule or regulation or, to
such counsel's knowledge, any order of any governmental agency
or body or any court having jurisdiction over such Person or any
of their respective properties.
(v) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation by Bank and each Affiliate Bank of
the transactions contemplated by the Basic Documents, except
such as are required and have been obtained and made under the
Securities Act, such as may be required under state securities
laws and any financing statement filings that are being made to
perfect sales or security interests in connection with such
transactions (it being understood that this opinion will be
given only with respect to such consents, approvals,
authorizations, orders and filings that, in such counsel's
experience, are customarily applicable in transactions of the
type contemplated by the Basic Documents).
(vi) The Basic Documents to which each of Bank and each
Affiliate Bank is a party have been duly authorized, executed
and delivered by such Person and the Master Assignment Agreement
and the Affiliate Bank Security Agreement are legal, valid and
binding obligations of each Affiliate Bank, enforceable against
such Affiliate Bank in accordance with their terms, subject to
the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally or the rights of creditors of institutions the
deposits of which are insured by the Federal Deposit Insurance
Corporation (the "FDIC") and to the effect of general principles
of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(vii) The Receivables of each Affiliate Bank and Bank are
chattel paper as defined in the UCC.
(viii) Assuming that the standard procedures of each
Affiliate Bank and Bank with respect to the perfection of a
security interest in new or used automobiles or light duty
trucks financed by such Affiliate Bank or Bank pursuant to note
and security agreements in the ordinary course of business of
such Affiliate Bank or Bank, as applicable, have been followed
with respect to the perfection of security interests in the
Financed Vehicles, such Affiliate Bank and Bank, as applicable,
have acquired or will acquire a perfected security interest in
the Financed Vehicles.
(ix) The transfer of the Receivables from each Affiliate
Bank to Bank either (x) is a true sale of the Receivables to
Bank such that in the event of an appointment of a conservator
or receiver of such Affiliate Bank the Receivables and proceeds
thereof would not constitute assets of such Affiliate Bank or
(y) creates a valid and enforceable security interest in the
Receivables in favor of Bank.
(x) If a court concludes that the transfer of the
Receivables from each Affiliate Bank to Bank is a sale pursuant
to the Master Assignment Agreement, the interest of Bank in the
Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the filing of a UCC financing
statement with the Secretary of State of the State of Ohio and
appropriate county filing office and (subject only to the Lien
under the Affiliate Security Agreement) will constitute a first
priority perfected interest therein. If a court concludes that
the transfer of Receivables from each Affiliate Bank to Bank is
not a sale, the Master Assignment Agreement constitutes a grant
by such Affiliate Bank to Bank of a valid security interest in
the Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing, which security interest will be perfected upon the
filing of the UCC financing statement with the Secretary of
State of the State of Ohio and appropriate county filing office
and (subject only to the Liens under the Basic Documents) will
constitute a first priority perfected security interest therein.
No filing or other action, other than the filing of the UCC
financing statement with the Secretary of State of the State of
Ohio and appropriate county filing office, is necessary to
perfect and maintain the interest or the security interest of
Bank in the Receivables, the security interests in the Financed
Vehicles securing the Receivables and the proceeds of each of
the foregoing against third parties.
(xi) The Affiliate Bank Security Agreement to which each
Affiliate Bank is a party constitutes a grant by such Affiliate
Bank to the Trustee of a valid security interest in the
Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing, which security interest will be perfected upon the
filing of the UCC financing statement with each of the filing
offices listed on Schedule I and (subject only to the Lien under
the Master Assignment Agreement) will constitute a first
priority perfected security interest therein. No filing or other
action, other than the filing of the UCC financing statement
with each of the filing offices listed on Schedule I, is
necessary to perfect and maintain the interest or the security
interest of the Trustee in the Receivables, the security
interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing against third parties.
(xii) The statements in the Basic Prospectus under the
headings "Summary of Terms--Certain Legal Aspects of the
Receivables; Repurchase Obligations," "Risk Factors--Certain
Legal Aspects" to the extent they constitute matters of Ohio law
or legal conclusions with respect thereto, are correct in all
material respects.
(xiii) Such counsel has examined various documents and
participated in conferences with representatives of Bank, its
counsel and its accountants and with representatives of
Underwriters, at which time the contents of the Registration
Statement and the Prospectus and related matters were discussed.
However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and the Prospectus. Subject to the foregoing, such
counsel shall advise that no facts have come to his attention
that cause him to believe that the Registration Statement or the
Prospectus, at the Closing Date, contains any untrue statement
of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration
Statement (insofar as such statements relate to the Affiliate
Banks, the Bank and matters related to the motor vehicle loan
business of the Affiliate Banks and Bank) not misleading and (y)
the statements in the Prospectus (insofar as such statements
relate to the Affiliate Banks, the Bank and matters related to
the motor vehicle loan business of the Affiliate Banks and Bank)
not misleading in the light of the circumstances under which
they were made (in each case except for the financial statements
and related schedules or other financial or statistical data
included or incorporated by reference therein, as to which such
counsel will not be called upon to express a belief).
(xiv) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge, threatened
before any court, administrative agency, or other tribunal (1)
asserting the invalidity of any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents or the execution and
delivery thereof, or (3) that could reasonably be expected to
materially and adversely affect the performance by any Affiliate
Bank or Bank, as applicable, of its obligations under, or the
validity or enforceability of, any of the Basic Documents.
(xi) To the best of such counsel's knowledge, there are no
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which
are not filed or described as required.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(f) The Representative shall have received an opinion or
opinions of Mayer, Brown & Platt, counsel to Bank and the
Representative addressed to the Representative and Bank, dated the
Closing Date and satisfactory in form and substance to the
Representative, Bank and their respective counsel, to the effect that:
(i) When duly executed and delivered by Bank, the Basic
Documents to which Bank is a party are legal, valid and binding
obligations of Bank, enforceable against Bank in accordance with
their terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally or the rights of creditors of
institutions the deposits of which are insured by the FDIC and
to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
(ii) When the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with
the Pooling Agreement and delivered and paid for pursuant to
this Agreement, the Certificates will be legally issued, fully
paid and non-assessable and entitled to the benefits of the
Pooling Agreement, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(iii) The Affiliate Bank Security Agreement constitutes a
grant by each Affiliate Bank to the Trust of a valid security
interest in the Affiliate Receivables Assets of such Affiliate
Bank.
(iv) With respect to each Affiliate Bank with its chief
executive office located in the States of Ohio, Indiana or
Kentucky, the security interest in its Receivables, the security
interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing (the "Affiliate
Receivables Assets") granted by such Affiliate Bank to the
Trustee pursuant to the Affiliate Security Agreement will be
perfected upon the filing of a UCC financing statement with the
applicable filing offices of the Secretary of State of the State
of Ohio and any local filing office, the Secretary of State of
the State of Indiana and the Secretary of State of the State of
Kentucky and, based solely upon on our review of the Affiliate
Bank Lien Search Reports, will constitute a perfected security
interest prior to any other security interest that may be
perfected solely by the filing of a financing statement under
the Uniform Commercial Code in effect in the states of Ohio,
Indiana and Kentucky. Based solely upon the Affiliate Bank Lien
Search Reports, no filing or other action, other than the filing
of the UCC financing statement with the Secretary of State of
the State of Ohio and any local filing office and the Secretary
of State of the State of Indiana and the Secretary of State of
the State of Kentucky, is necessary to perfect and maintain the
interest or the security interest of Bank in the Receivables,
the security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing against
third parties.
(v) With respect to each Affiliate Bank with its chief
executive office located in the States of Indiana or Kentucky,
the right, title and interest of the Bank in the Receivables
Assets acquired under the Master Assignment Agreement will be
perfected upon the filing of a UCC financing statement with the
applicable filing offices of the Secretary of State of the State
of Ohio and any local filing office and Secretary of State of
the State of Indiana and the Secretary of State of the State of
Kentucky and, based solely upon on our review of the Affiliate
Bank Lien Search Reports, will constitute a perfected security
interest prior to any other security interest that may be
perfected solely by the filing of a financing statement under
the Uniform Commercial Code in effect in the states of Ohio,
Indiana and Kentucky. Based solely upon the Affiliate Bank Lien
Search Reports, no filing or other action, other than the filing
of the UCC financing statement with the Secretary of State of
the State of Ohio and any local filing office and the Secretary
of State of the State of Indiana and the Secretary of State of
the State of Kentucky, is necessary to perfect and maintain the
interest or the security interest of Bank in the Receivables,
the security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing against
third parties.
(vi) In the event that the FDIC were to be appointed as
conservator or receiver for any Affiliate Bank pursuant to
Section 11(c) of the Federal Deposit Insurance Act, as amended
(the "FDIA"), the security interest granted by such Affiliate
Bank to Trustee pursuant to the Affiliate Bank Security
Agreement would be enforceable against such Affiliate Bank
notwithstanding the appointment of the FDIC as conservator or
receiver for such Affiliate.
(vii) The transfer of the Receivables from Bank to the
Trustee pursuant to the Pooling Agreement is either (x) a true
sale of the Receivables to the Trustee such that in the event of
an appointment of a conservator or receiver of Bank the
Receivables and proceeds thereof would not constitute assets of
Bank or (y) creates a valid and enforceable security interest in
the Receivables in favor of the Trust.
(viii) In the event that the FDIC were to be appointed as
conservator or receiver for Bank pursuant to Section 11(c) of
the FDIA, and a court were to recharacterize the transfer to
Trustee pursuant to the Pooling Agreement of Bank's right,
title, and interest in and to the Receivables and other Trust
Property as a borrowing secured by a security interest of
Trustee in such assets for the benefit of Holders, rather than
as an absolute sale of such assets by Bank to the Trust,
such security interest would be enforceable against Bank
notwithstanding the appointment of the FDIC as conservator or
receiver for Bank.
(ix) For New York and Illinois income and franchise tax
purposes, the Trust will not be classified as a separate entity
subject to taxation, and, accordingly, will not be subject to
tax in such states.
(x) Certificateholders who are not residents of or
domiciled in or that would not otherwise be subject to tax in
New York and Illinois will not be subject to New York and
Illinois income or franchise taxes with respect to interest or
other amounts received from the Certificates or with respect to
any of the Receivables.
(xi) The Trust created by the Pooling Agreement will not
be classified as an association taxable as a corporation for
federal income tax purposes and, instead, under subpart E, part
I of subchapter J of the Internal Revenue Code of 1986, as
amended, the Trust will be treated as a grantor trust and,
subject to possible recharacterization of certain fees or
payments paid by the Trust to the Bank or the Servicer, each
Certificateholder will be treated as the owner of an undivided
pro rata interest in the income and corpus attributable to the
Trust.
(xii) The Reserve Account will not be treated as an
association taxable as a corporation or other separate taxable
entity for federal or applicable Illinois or New York state tax
purposes; rather, the Bank will be treated as the owner of the
Reserve Account and the funds therein for such purposes.
(xiii) The Pooling Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not
required to be registered under the Investment Company Act of
1940, as amended.
(xiv) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any
preliminary Basic Prospectus, any preliminary Prospectus
Supplement and the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule
424(b), and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; and the
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of the Closing Date (in the case of the
Registration Statement) and as of their respective issue dates
(in the case of the Prospectus), complied as to form in all
material respects with the requirements of the Act and the Rules
and Regulations.
(xv) The statements in the Basic Prospectus under the
headings "Summary of Terms--Certain Legal Aspects of the
Receivables; Repurchase Obligations," "Risk Factors--Certain
Legal Aspects" to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all
material respects.
(xvi) The statements contained in the Basic Prospectus and
the Prospectus Supplement under the headings "Description of the
Certificates" and "Description of the Transfer and Servicing
Agreements," insofar as such statements constitute a summary of
the Certificates and the Pooling Agreement, fairly represent the
matters referred to therein.
The opinion of Mayer, Brown & Platt shall also state that such counsel
has examined various documents and participated in conferences with
representatives of Bank, its counsel and its accountants and with
representatives of the Representative, at which time the contents of the
Registration Statement and the Prospectus and related matters were
discussed. However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus.
Subject to the foregoing, such counsel shall advise that no facts have come
to their attention that cause them to believe that the Registration
Statement or the Prospectus, at the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration Statement (insofar
as such statements relate to a description of the Basic Documents and the
transactions contemplated thereby) not misleading and (y) the statements in
the Prospectus (insofar as such statements relate to a description of the
Basic Documents and the transactions contemplated thereby) not misleading
in the light of the circumstances under which they were made (in each case
except for the financial statements and related schedules or other
financial or statistical data included or incorporated by reference
therein, as to which such counsel will not be called upon to express a
belief).
The opinion of Mayer, Brown & Platt shall also state that, in its
capacity as Federal tax and ERISA counsel for Bank, the statements in the
Basic Prospectus under the headings "Summary of Terms--Tax Status" (to the
extent relating to Federal income tax consequences) and "Certain Federal
Income Tax Consequences" and in the Prospectus Supplement under the
headings "Summary of Terms--Tax Status" (to the extent relating to Federal
income tax consequences) accurately describe the material Federal income
tax consequences to holders of the Certificates, and the statements in the
Basic Prospectus under the headings "Summary of Terms--ERISA
Considerations" and "ERISA Considerations," and in the Prospectus
Supplement under the headings "Summary of Terms--ERISA Considerations" and
"ERISA Considerations" to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately describe the material
consequences to holders of the Certificates under ERISA.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(g) The Representative shall have received an opinion or opinions of
Squire, Sanders & Dempsey, Ohio counsel to Bank addressed to the
Representative and Bank, dated the Closing Date and satisfactory in form
and substance to the Representative, Bank and their counsel, to the effect
that:
(i) If a court concludes that the transfer of the
Receivables from Bank to the Trust is a sale, the interest of
the Trust in the Receivables, the security interests in the
Financed Vehicles securing the Receivables and the proceeds of
each of the foregoing will be perfected upon the filing of a UCC
financing statement with the Secretary of State of the State of
Ohio and with Hamilton County and will constitute a first
priority perfected interest therein.
(ii) If a court concludes that the transfer of Receivables
from Bank to the Trust is not a sale, the security interest
granted by Bank to the Trust under the Pooling Agreement in the
Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the filing of UCC financing
statements with the Secretary of State of Ohio and with Hamilton
County and will constitute a first priority perfected security
interest therein. No filing or other action, other than the
filing of UCC financing statements with the Secretary of State
of the State of Ohio and with Hamilton County referred to above,
is necessary to perfect and maintain the interest or the
security interest of the Trust in the Receivables, the security
interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing against third parties.
(iii) The Master Assignment Agreement is effective to
assign the security interest of the Affiliate Bank party thereto
in Financed Vehicles titled in Ohio to Bank notwithstanding the
fact that the certificates of title relating to such Financed
Vehicles will not be endorsed or otherwise amended to identify
Bank as the new secured party.
(iv) The Pooling Agreement is effective to assign Bank's
security interest in Financed Vehicles titled in Ohio to the
Trustee, notwithstanding the fact that the certificates of title
relating to such Financed Vehicles will not be endorsed or
otherwise amended to identify as the new secured party.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(h) The Representative shall have received an opinion or opinions of
Squire, Sanders & Dempsey, Ohio counsel to Bank addressed to the
Representative and Bank, dated the Closing Date and satisfactory in form
and substance to the Representative, Bank and their counsel, to the effect
that:
(i) For purposes of the application of Ohio tax laws, the
Trust will not be classified as a separate entity subject to
taxation, and, accordingly, will not be subject to tax in Ohio.
(ii) Certificateholders who are not residents of or
domiciled in or that would not otherwise be subject to tax in
Ohio will not be subject to Ohio income, franchise or other
taxes with respect to interest or other amounts received from
the Certificates or with respect to any of the Receivables.
(iii) The Reserve Account will not be treated as an
association taxable as a corporation or other separate taxable
entity for Ohio state tax purposes; rather, the Bank will be
treated as the owner of the Reserve Account and the funds
therein for such purposes.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(i) The Representative shall have received opinions addressed to the
Representative and Bank of internal counsel to the Trustee and Seward &
Kissell, special counsel to the Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative, Bank and their
respective counsel, collectively to the effect that:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the
State of Illinois.
(ii) The Trustee has power and authority to execute,
deliver and perform the Pooling Agreement and to consummate the
transactions contemplated thereby.
(iii) The Pooling Agreement has been duly authorized,
executed and delivered by the Trustee. Each of the Certificates
has been duly authorized, executed and delivered by the Trustee,
as trustee and authenticating agent.
(iv) The Pooling Agreement constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trust
in accordance with its respective terms, subject to the effect
of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
or the rights of creditors of institutions the deposits of which
are secured by the FDIC, and to the effect of general principles
of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(v) Neither the execution, delivery or performance by the
Trustee of the Pooling Agreement nor the compliance with the
terms and provisions thereof, nor the performance of its
obligations thereunder, conflicts or results in a breach of or
constitutes a default under any of the terms, conditions or
provisions of any law, government rule or regulation of the
United States or the State of Illinois or New York governing the
banking or trust powers of the Trustee or the charter or bylaws
of the Trustee or, to our knowledge, any order, writ, injunction
or decree of any court or governmental authority against the
Trustee or by which it or any of its properties is bound or, to
our knowledge, any indenture, mortgage or contract or other
agreement or instrument to which the Trustee is a party or by
which it or any of its properties is bound, or results in the
creation or imposition of any Lien, charge or encumbrance upon
any of its properties pursuant to any agreement or instrument,
except encumbrances and security interests contemplated by the
Pooling Agreement.
(vi) No authorizations, consents or approvals of, notice
to or filing with, or the taking of any other action in respect
of, any governmental authority or agency of the United States or
the State of Delaware is required for the execution, delivery or
performance by the Trustee of each of the Pooling Agreement and
the Certificates.
(vii) There are no actions, suits or proceedings pending
or, to the best of our knowledge, threatened against the Trustee
before any court, or by or before any federal, state, municipal
or other governmental department, commission, board, bureau or
governmental agency or instrumentality, or arbitrator which
would, if adversely determined, affect in any material respect
the consummation, validity or enforceability against the Trustee
of any of the Pooling Agreement or the Certificates.
(viii) If the Trustee were acting as Servicer under the
Pooling Agreement as of the date of this Agreement, the Trustee
would have the corporate power and authority to perform the
obligations of Servicer as provided in the Pooling Agreement.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(j) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing Underwriters to rely on such opinion
as if it were addressed to Underwriters.
(k) The Class A Certificates shall have been rated in the highest
investment rating category by Moody's Investors Service, Inc. ("Moody's")
and Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc. ("S&P"), and the Class B Certificates shall have been rated
"A" by S&P and "Baa1" by Moody's.
(l) On the Closing Date, the representations and warranties of Bank
in the Pooling Agreement will be true and correct in all material respects.
(m) Any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of this
Agreement and the Basic Documents shall have been paid by Bank at or prior
to the Closing Date.
(n) The Bank shall have made or caused to be made a deposit in the
Reserve Account in the amount of the Reserve Account Initial Deposit.
8. Bank agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in
connection with investigating, preparing or defending any suit, action or
proceeding or any claim asserted), caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if Bank shall have
furnished such amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with information furnished to Bank in writing by any Underwriter
through the Representative expressly for use therein; provided that the
foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any losses,
claims or damages purchased Certificates if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if Bank shall have furnished any amendments or supplements
thereto) and a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written
confirmation of the sale of such Certificates to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Bank, each director and officer of Bank who signed the
Registration Statement and each person who controls Bank within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from Bank to each Underwriter, but only
with reference to information furnished to Bank in writing by such
Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for Underwriters and such control persons of
Underwriters shall be designated in writing by the Representative and any
such separate firm for Bank, its directors, its officers who sign the
Registration Statement or control persons shall be designated in writing by
Bank. The Indemnifying Person shall not be liable for any settlement of any
claim or proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 8 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by Bank on the one hand and Underwriters on
the other hand from the offering of the Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
Bank on the one hand and Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by Bank on the one hand and Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by Bank and
the total underwriting discounts and the commissions received by
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the
Certificates. The relative fault of Bank on the one hand and Underwriters
on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by Bank or by any of the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Bank and Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, in no
event shall an Underwriter be required to contribute any amount in excess
of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective
aggregate principal amount of Certificates set forth opposite their names
in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of Bank set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of Bank, or any of their officers or directors or any other person
controlling Bank and (iii) acceptance of and payment for any of the
Certificates.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice
given to Bank, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, the New York Stock
Exchange or the American Stock Exchange, or there shall have been any
setting of minimum prices for trading on either such exchange; (ii) trading
of any securities of or guaranteed by Fifth Third Bancorp or Bank shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a moratorium on commercial banking activities in New York or Ohio
shall have been declared by either federal, New York or Ohio authorities;
or (iv) there shall have occurred any outbreak or escalation of hostilities
or any change in financial markets or any calamity or crisis that, in the
judgment of the Representative is material and adverse and which, in the
judgment of the Representative, makes it impracticable to market the
Certificates on the terms and in the manner contemplated in the Prospectus.
10. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
11. If on the Closing Date (i) any Underwriter shall fail or refuse
to purchase any Certificates which it has agreed to purchase hereunder on
such date, (ii) such failure or refusal shall constitute a default in the
performance of such Underwriter's obligations hereunder, and (iii) the
aggregate principal amount of Certificates which such defaulting
Underwriter agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Certificates to be
purchased by Underwriters on such date, the other Underwriters shall be
obligated to purchase the Certificates which such defaulting Underwriter
agreed but failed or refused to purchase on such date in the respective
proportions that the portion of the Certificates set forth opposite their
names in Schedule I hereto bears to the aggregate principal amount of
Certificates to be purchased by the remaining Underwriters. If on the
Closing Date (i) any Underwriter shall fail or refuse to purchase
Certificates which it has agreed to purchase hereunder on such date, (ii)
such failure or refusal shall constitute a default in the performance of
such Underwriter's obligations hereunder, (iii) the aggregate principal
amount of Certificates with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Certificates to be
purchased by the Underwriters on such date, and (iv) arrangements
satisfactory to the non-defaulting Underwriters and the Bank for the
purchase of such Certificates are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Bank. In any such case either the
Representative or the Bank shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
12. If this Agreement shall be terminated by the Underwriters or any
one of them because of any failure or refusal on the part of Bank to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason Bank shall be unable to perform its obligations under this
Agreement or any condition precedent to Underwriters' obligations cannot be
fulfilled, Bank agrees to reimburse the Underwriters severally, or such
Underwriter which has so terminated this Agreement with respect to itself,
for all out-of-pocket expenses (including the fees and expenses of their
outside counsel) reasonably incurred by such Underwriter(s) in connection
with this Agreement or the offering contemplated thereunder.
13. Any action by Underwriters hereunder may be taken by the
Representative alone on behalf of Underwriters, and any such action taken
by the Representative alone shall be binding upon Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed, delivered by hand or transmitted by any
standard form of telecommunication. Notices to Underwriters shall be given
to the Representative, c/o J.P. Morgan Securities Inc., 60 Wall Street, New
York, New York 10260 (Facsimile No.: 212-648-5909), Attention: Syndicate
Desk. Notices to Bank shall be given to it at The Fifth Third Bank, 38
Fountain Square Plaza, Cincinnati, Ohio 45263, Attention: Fred Darlington.
14. This Agreement shall inure to the benefit of and be binding upon
Bank, Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser
of Certificates from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among Bank and Underwriters in
accordance with its terms.
Very truly yours,
THE FIFTH THIRD BANK
By:___________________________________
Name:______________________________
Title:_____________________________
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
J.P. MORGAN SECURITIES INC.
As Representative of the Underwriters
By:______________________________
Name: ________________________
Title:________________________
SCHEDULE I
UNDERWRITERS
Aggregate Principal Amount
Name of Certificates to be Purchased
---- -------------------------------
Class A Class B
Certificates Certificates
------------ ------------
J.P. Morgan $91,993,000.00 $4,792,000.00
Securities Inc.
Donaldson, Lufkin & 91,950,000.00 4,700,000.00
Jenrette Securities
Corporation
Goldman Sachs & Co. 91,950,000.00 4,700,000.00
Salomon Brothers Inc 91,950,000.00 4,700,000.00
------------- ------------
Total $367,843,000.00 $18,892,000.00
=============== ==============
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) September 25, 1996
-------------------------
THE FIFTH THIRD BANK as seller to THE FIFTH THIRD BANK AUTO TRUST 1996-B
- -------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Ohio
- -------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
333-856 31-0854433
- --------------------------------- --------------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
38 Fountain Square Plaza, Cincinnati, Ohio 45263
- -------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(513) 579-5300
- -------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
Not Applicable
- -------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
===============================================================================
Item 5.Other Events.
The Registrant is filing final forms of the exhibits listed in Item
7(c) below.
Item 7.Financial Statements and Exhibits.
(c) Exhibits.
Exhibit
No. Document Description
- ------- --------------------
1.1 Underwriting Agreement between The Fifth Third Bank and J.P.
Morgan Securities, Inc., as Representative of the several
underwriters, dated September 18, 1996.
4.3 Pooling and Servicing Agreement between The Fifth Third Bank, as
seller and servicer, and Harris Trust and Savings Bank, as
trustee, dated as of September 25, 1996.
8.1 Tax opinion of Mayer, Brown & Platt, dated as of September 25,
1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
THE FIFTH THIRD BANK
(Registrant)
Dated: October 1, 1996 By: /s/ John S. Fleshood
---------------------------------------
Name: John S. Fleshood
-------------------------------------
Title: Vice President
------------------------------------
INDEX TO EXHIBITS
Exhibit Sequential
No. Document Description Page No.
- ------- -------------------- -----------
1.1 Underwriting Agreement between The Fifth Third Bank and J.P.
Morgan Securities, Inc., as Representative of the several
underwriters, dated September 18, 1996.
4.3 Pooling and Servicing Agreement between The Fifth Third Bank, as
seller and servicer, and Harris Trust and Savings Bank, as
trustee, dated as of September 25, 1996.
8.1 Tax opinion of Mayer, Brown & Platt, dated as of September 25,
1996.
