333-233850
333-233850-03
|
45-2673519
86-6444999
|
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
2101 W. John Carpenter Freeway, Irving, Texas
|
75063
|
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
[ ] |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
[ ] |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
[ ] |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
[ ] |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Title of each class
|
Trading Symbol(s)
|
Name of each exchange on which registered
|
Not applicable
|
Not applicable
|
Not applicable
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act.
|
☐
|
(a) |
Not applicable.
|
(b) |
Not applicable.
|
(c) |
Not applicable.
|
(d) |
Exhibits:
|
Exhibit No. |
Description
|
1.1 |
4.2 |
4.3 |
4.4 |
4.5 |
10.1 |
10.2 |
10.3 |
10.4 |
10.5 |
10.6 |
36.1 |
EFCAR, LLC
|
|||
By:
|
/s/ Ben Miller
|
||
Name:
|
Ben Miller
|
||
Title:
|
Chief Executive Officer
|
The Representatives: |
Deutsche Bank Securities Inc.
|
The Sponsor: |
Exeter Finance LLC
2101 W. John Carpenter Freeway Irving, Texas 75063 |
The Seller: |
EFCAR, LLC
2101 W. John Carpenter Freeway Irving, Texas 75063 |
(i) |
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section
21 of the Financial Services and Markets Act 2000, as amended (the “FSMA”)) received by it in connection with the issue or sale of the Offered Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust; and
|
(ii) |
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Notes in, from or otherwise involving the United Kingdom.
|
(i) |
the expression “EU retail investor” means a person who is one (or more) of the following: (A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID
II”); or (B) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (C) not a qualified investor as
defined in Regulation (EU) 2017/1129 (as amended, the “EU Prospectus Regulation”); and
|
(ii) |
the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to
decide to purchase or subscribe the Offered Notes.
|
(i) |
the expression “UK retail investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of
UK domestic law by virtue of the EUWA; or (B) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a
professional client, as defined in point
|
(ii) |
the expression an offer includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to
decide to purchase or subscribe for the Offered Notes.
|
Class A-1
|
Class A-2
|
Class A-3
|
Class B
|
Class C
|
Class D
|
|
Deutsche Bank Securities Inc.
|
99.75450%
|
99.72641%
|
99.67137%
|
99.65751%
|
99.57888%
|
99.43238%
|
Citigroup Global Markets Inc.
|
99.75450%
|
99.72641%
|
99.67137%
|
99.65751%
|
99.57888%
|
99.43238%
|
Barclays Capital Inc.
|
99.75450%
|
99.72641%
|
99.67137%
|
99.65751%
|
99.57888%
|
99.43238%
|
Blackstone Advisory Partners L.P.
|
99.75450%
|
99.72641%
|
99.67137%
|
99.65751%
|
99.57888%
|
99.43238%
|
Citizens Capital Markets, Inc.
|
99.75450%
|
99.72641%
|
99.67137%
|
99.65751%
|
99.57888%
|
99.43238%
|
Wells Fargo Securities, LLC
|
99.75450%
|
99.72641%
|
99.67137%
|
99.65751%
|
99.57888%
|
99.43238%
|
Class A-1
|
Class A-2
|
Class A-3
|
Class B
|
Class C
|
Class D
|
|
Deutsche Bank Securities Inc.
|
$30,811,000
|
$96,114,000
|
$40,082,000
|
$86,600,000
|
$93,405,000
|
$98,355,000
|
Citigroup Global Markets Inc.
|
$30,811,000
|
$96,114,000
|
$40,082,000
|
$86,600,000
|
$93,405,000
|
$98,355,000
|
Barclays Capital Inc.
|
$11,042,000
|
$34,443,000
|
$14,364,000
|
-
|
-
|
-
|
Blackstone Advisory Partners L.P.
|
$11,042,000
|
$34,443,000
|
$14,364,000
|
-
|
-
|
-
|
Citizens Capital Markets, Inc.
|
$11,042,000
|
$34,443,000
|
$14,364,000
|
-
|
-
|
-
|
Wells Fargo Securities, LLC
|
$11,042,000
|
$34,443,000
|
$14,364,000
|
-
|
-
|
-
|
Total
|
$105,790,000
|
$330,000,000
|
$137,620,000
|
$173,200,000
|
$186,810,000
|
$196,710,000
|
|
|
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
|
3
|
|
Section 1.1
|
Definitions
|
3
|
Section 1.2
|
Incorporation by Reference of Trust Indenture Act
|
12
|
Section 1.3
|
Rules of Construction
|
12
|
ARTICLE II THE NOTES
|
12
|
|
Section 2.1
|
Form
|
12
|
Section 2.2
|
Execution, Authentication and Delivery
|
13
|
Section 2.3
|
Temporary Notes
|
13
|
Section 2.4
|
Registration; Registration of Transfer and Exchange
|
14
|
Section 2.5
|
Mutilated, Destroyed, Lost or Stolen Notes
|
17
|
Section 2.6
|
Persons Deemed Owner
|
18
|
Section 2.7
|
Payment of Principal and Interest; Defaulted Interest
|
18
|
Section 2.8
|
Cancellation
|
19
|
Section 2.9
|
Release of Collateral
|
20
|
Section 2.10
|
Book-Entry Notes
|
20
|
Section 2.11
|
Notices to Clearing Agency
|
22
|
Section 2.12
|
Definitive Notes
|
22
|
ARTICLE III COVENANTS
|
23
|
|
Section 3.1
|
Payment of Principal and Interest
|
23
|
Section 3.2
|
Maintenance of Office or Agency
|
23
|
Section 3.3
|
Money for Payments to be Held in Trust
|
23
|
Section 3.4
|
Existence
|
25
|
Section 3.5
|
Protection of Trust Estate
|
25
|
Section 3.6
|
Opinions as to Trust Estate
|
26
|
Section 3.7
|
Performance of Obligations; Servicing of Receivables
|
26
|
Section 3.8
|
Negative Covenants
|
27
|
Section 3.9
|
Annual Statement as to Compliance
|
28
|
Section 3.10
|
Issuer May Consolidate, Etc. Only on Certain Terms
|
28
|
Section 3.11
|
Successor or Transferee
|
30
|
Section 3.12
|
No Other Business
|
30
|
Section 3.13
|
No Borrowing
|
30
|
Section 3.14
|
Servicer’s Obligations
|
30
|
Section 3.15
|
Guarantees, Loans, Advances and Other Liabilities
|
30
|
Section 3.16
|
Capital Expenditures
|
31
|
Section 3.17
|
Compliance with Laws
|
31
|
Section 3.18
|
Restricted Payments
|
31
|
Section 3.19
|
Notice of Events of Default
|
31
|
Section 3.20
|
Further Instruments and Acts
|
31
|
Section 3.21
|
Amendments of Sale and Servicing Agreement and Trust Agreement
|
31
|
Section 3.22
|
Income Tax Characterization
|
31
|
ARTICLE IV SATISFACTION AND DISCHARGE
|
32
|
|
Section 4.1
|
Satisfaction and Discharge of Indenture
|
32
|
Section 4.2
|
Application of Trust Money
|
33
|
Section 4.3
|
Repayment of Moneys Held by Note Paying Agent
|
33
|
ARTICLE V REMEDIES
|
34
|
|
Section 5.1
|
Events of Default
|
34
|
Section 5.2
|
Rights Upon Event of Default
|
35
|
Section 5.3
|
Collection of Indebtedness and Suits for Enforcement by Indenture Trustee
|
36
|
Section 5.4
|
Remedies
|
38
|
Section 5.5
|
Optional Preservation of the Trust Estate
|
39
|
Section 5.6
|
Priorities
|
40
|
Section 5.7
|
Limitation of Suits
|
43
|
Section 5.8
|
Unconditional Rights of Noteholders To Receive Principal and Interest
|
44
|
Section 5.9
|
Restoration of Rights and Remedies
|
44
|
Section 5.10
|
Rights and Remedies Cumulative
|
44
|
Section 5.11
|
Delay or Omission Not a Waiver
|
44
|
Section 5.12
|
Control by Noteholders
|
45
|
Section 5.13
|
Waiver of Past Defaults
|
45
|
Section 5.14
|
Undertaking for Costs
|
45
|
Section 5.15
|
Waiver of Stay or Extension Laws
|
46
|
Section 5.16
|
Action on Notes
|
46
|
Section 5.17
|
Performance and Enforcement of Certain Obligations
|
46
|
ARTICLE VI THE INDENTURE TRUSTEE
|
47
|
|
Section 6.1
|
Duties of Indenture Trustee
|
47
|
Section 6.2
|
Rights of Indenture Trustee
|
48
|
Section 6.3
|
Individual Rights of Indenture Trustee
|
51
|
Section 6.4
|
Indenture Trustee’s Disclaimer
|
51
|
Section 6.5
|
Notice of Defaults
|
52
|
Section 6.6
|
Reports by Indenture Trustee to Holders
|
52
|
Section 6.7
|
Compensation and Indemnity
|
52
|
Section 6.8
|
Replacement of Indenture Trustee
|
53
|
Section 6.9
|
Successor Indenture Trustee by Merger
|
54
|
Section 6.10
|
Appointment of Co-Indenture Trustee or Separate Indenture Trustee
|
55
|
Section 6.11
|
Eligibility; Disqualification
|
56
|
Section 6.12
|
Preferential Collection of Claims Against Issuer
|
57
|
Section 6.13
|
Appointment and Powers
|
57
|
Section 6.14
|
Performance of Duties
|
57
|
Section 6.15
|
Limitation on Liability
|
58
|
Section 6.16
|
Reliance Upon Documents
|
58
|
Section 6.17
|
Force Majeure
|
58
|
Section 6.18
|
[Reserved]
|
58
|
Section 6.19
|
Representations and Warranties of the Indenture Trustee and the Issuer and the Holding Trust
|
58
|
Section 6.20
|
Waiver of Setoffs
|
58
|
Section 6.20
|
Waiver of Setoffs
|
60
|
ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS
|
60
|
|
Section 7.1
|
Issuer to Furnish to Indenture Trustee Names and Addresses of Noteholders
|
60
|
Section 7.2
|
Preservation of Information; Communications to Noteholders
|
60
|
Section 7.3
|
Reports by Issuer
|
62
|
Section 7.4
|
Reports by Indenture Trustee
|
63
|
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
|
63
|
|
Section 8.1
|
Collection of Money
|
63
|
Section 8.2
|
Release of Trust Estate
|
63
|
Section 8.3
|
Opinion of Counsel
|
63
|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
64
|
|
Section 9.1
|
Supplemental Indentures Without Consent of Noteholders
|
64
|
Section 9.2
|
Supplemental Indentures with Consent of Noteholders
|
66
|
Section 9.3
|
Execution of Supplemental Indentures
|
67
|
Section 9.4
|
Effect of Supplemental Indenture
|
67
|
Section 9.5
|
Conformity With Trust Indenture Act
|
68
|
Section 9.6
|
Reference in Notes to Supplemental Indentures
|
68
|
ARTICLE X REDEMPTION OF NOTES
|
68
|
|
Section 10.1
|
Redemption
|
68
|
Section 10.2
|
Form of Redemption
|
68
|
Section 10.3
|
Notes Payable on Redemption Date
|
69
|
ARTICLE XI MISCELLANEOUS
|
69
|
|
Section 11.1
|
Compliance Certificates and Opinions, etc.
|
69
|
Section 11.2
|
Form of Documents Delivered to Indenture Trustee
|
71
|
Section 11.3
|
Acts of Noteholders
|
72
|
Section 11.4
|
Notices, etc., to Indenture Trustee, Issuer and Rating Agencies
|
72
|
Section 11.5
|
Notices to Noteholders; Waiver
|
73
|
Section 11.6
|
Conflict with Trust Indenture Act
|
74
|
Section 11.7
|
AML Law
|
74
|
Section 11.8
|
Effect of Headings and Table of Contents
|
74
|
Section 11.9
|
Successors and Assigns
|
74
|
Section 11.10
|
Separability
|
74
|
Section 11.11
|
Benefits of Indenture
|
74
|
Section 11.12
|
Legal Holidays
|
74
|
Section 11.13
|
GOVERNING LAW AND SUBMISSION TO JURISDICTION
|
74
|
Section 11.14
|
WAIVER OF JURY TRIAL
|
75
|
Section 11.15
|
Counterparts
|
75
|
Section 11.16
|
Recording of Indenture
|
75
|
Section 11.17
|
Trust Obligation
|
75
|
Section 11.18
|
No Petition
|
76
|
Section 11.19
|
Inspection
|
76
|
Section 11.20
|
No Recourse
|
76
|
EXHIBIT A-1
|
Form of Class A-1 Note
|
|
EXHIBIT A-2
|
Form of Class A-2 Note
|
|
EXHIBIT A-3
|
Form of Class A-3 Note
|
|
EXHIBIT B
|
Form of Class B Note
|
|
EXHIBIT C
|
Form of Class C Note
|
|
EXHIBIT D
|
Form of Class D Note
|
|
EXHIBIT E-1
|
Form of Class E Note (QIB)
|
|
EXHIBIT E-2
|
Form of Class E Note (Institutional Accredited Investor)
|
|
EXHIBIT E-3
|
Form of Class E Note (Regulation S)
|
|
EXHIBIT F-1
|
Form of Transfer Certificate for Transfers from Regulation S Global Note to Global Note
|
|
EXHIBIT F-2
|
Form of Transfer Certificate for Transfers from Global Note to Regulation S Global Note
|
SCHEDULE A
|
Representations and Warranties of the Issuer and the Holding Trust
|
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2, as Issuer
|
|||
By:
|
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee
|
||
By:
|
|
||
Name:
|
|||
Title:
|
|||
EXETER HOLDINGS TRUST 2021-2, as Holding Trust
|
|||
By:
|
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee
|
||
By:
|
|
||
Name:
|
|||
Title:
|
|||
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee
|
|||
By:
|
|
||
Name:
|
|||
Title:
|
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, not
|
|
in its individual capacity but solely as Indenture Trustee
|
||
By:
|
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
|
not in its individual capacity but solely as Indenture Trustee
|
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
|
not in its individual capacity but solely as Indenture Trustee
|
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
REGISTERED
|
UP TO $[_______]
|
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
|
not in its individual capacity but solely as Indenture Trustee
|
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
REGISTERED
|
$0
|
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
|
not in its individual capacity but solely as Indenture Trustee
|
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
REGISTERED
|
UP TO $[_______]
|
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
|
|
By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement
|
|
By:
|
|
Name:
|
|
Title:
|
Date: June 2, 2021
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
|
not in its individual capacity but solely as Indenture Trustee
|
|
By:
|
|
Authorized Signer
|
Dated |
|
1
|
||
Signature Guaranteed:
|
||||
i. |
The Transferee is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act;
|
ii. |
The Transferee is acquiring the Class E Notes for its own account or for an account that is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act. The Transferee
and each such account is acquiring not less than the minimum denomination of the Class E Notes;
|
iii. |
The Transferee (and each such account) is not formed for the purpose of acquiring the Class E Notes;
|
iv. |
The Transferee will notify future transferees of these transfer restrictions;
|
v. |
The Transferee is obtaining the Class E Notes in a transaction pursuant to Rule 144A; and
|
vi. |
The Transferee is obtaining the Class E Notes in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction.
|
vii. |
The Transferee is either (check one):
|
• |
“United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”), other than a foreign branch of a United States person
acting as a qualified intermediary, and a properly completed and signed Internal Revenue Service (“IRS”) Form W-9 (or applicable successor form) is attached hereto; or
|
• |
is not a “United States person” within the meaning of Section 7701(a)(30) of the Code or is a foreign branch of a United States person acting as a qualified intermediary, and a properly
completed and signed IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY (without any IRS Forms W-8ECI attached) or IRS Form W-8EXP (with appropriate attachments to these forms), as applicable (or applicable successor form), is attached
hereto.
|
[Name of Transferee]
|
|
By: _____________________________
|
|
Name:
|
|
Title:
|
|
[Name of Transferor]
|
|
By: _____________________________
|
|
Name:
|
|
Title:
|
• |
a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”), other than a foreign branch of a United States person acting
as a qualified intermediary, and a properly completed and signed Internal Revenue Service (“IRS”) Form W-9 (or applicable successor form) is attached hereto; or
|
• |
is not a “United States person” within the meaning of Section 7701(a)(30) of the Code or is a foreign branch of a United States person acting as a qualified intermediary, and a properly
completed and signed IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY (without any IRS Forms W-8ECI attached) or IRS
|
Form W-8EXP (with appropriate attachments to these forms), as applicable (or applicable successor form), is attached hereto.
|
[Name of Transferee]
|
|
By: _____________________________
|
|
Name:
|
|
Title:
|
|
[Name of Transferor]
|
|
By: _____________________________
|
|
Name:
|
|
Title:
|
ARTICLE I. DEFINITIONS
|
1
|
|
SECTION 1.1.
|
Capitalized Terms.
|
1
|
SECTION 1.2.
|
Other Definitional Provisions.
|
5
|
ARTICLE II. ORGANIZATION
|
5
|
|
SECTION 2.1.
|
Name.
|
5
|
SECTION 2.2.
|
Office.
|
5
|
SECTION 2.3.
|
Purposes and Powers.
|
6
|
SECTION 2.4.
|
Appointment of Owner Trustee.
|
7
|
SECTION 2.5.
|
Initial Capital Contribution of Trust Estate.
|
7
|
SECTION 2.6.
|
Declaration of Trust.
|
7
|
SECTION 2.7.
|
Title to Owner Trust Estate.
|
7
|
SECTION 2.8.
|
Situs of Trust.
|
8
|
SECTION 2.9.
|
Representations and Warranties of the Depositor.
|
8
|
SECTION 2.10.
|
Covenants of the Certificateholders.
|
9
|
SECTION 2.11.
|
U.S. Federal Income Tax Treatment of the Trust.
|
9
|
ARTICLE III. CERTIFICATES AND TRANSFER OF INTEREST
|
11
|
|
SECTION 3.1.
|
Initial Ownership.
|
11
|
SECTION 3.2.
|
The Certificates.
|
11
|
SECTION 3.3.
|
Authentication of Certificates.
|
11
|
SECTION 3.4.
|
Book-Entry Certificates.
|
12
|
SECTION 3.5.
|
Notices to Clearing Agency.
|
13
|
SECTION 3.6.
|
Definitive Certificates.
|
14
|
SECTION 3.7.
|
Registration of Transfer and Exchange of Certificates.
|
14
|
SECTION 3.8.
|
Mutilated, Destroyed, Lost or Stolen Certificates.
|
16
|
SECTION 3.9.
|
Persons Deemed Certificateholders.
|
17
|
SECTION 3.10.
|
Maintenance of Office or Agency.
|
17
|
SECTION 3.11.
|
Tax Treatment of Trust Certificate Register and Transfer Provisions.
|
17
|
SECTION 3.12.
|
ERISA Restrictions.
|
17
|
SECTION 3.13.
|
Appointment of Certificate Paying Agent.
|
17
|
ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS
|
18
|
|
SECTION 4.1.
|
Prior Notice to Holders with Respect to Certain Matters.
|
18
|
SECTION 4.2.
|
[Reserved].
|
19
|
SECTION 4.3.
|
Restrictions on Certificateholders’ Power.
|
19
|
SECTION 4.4.
|
[Reserved].
|
19
|
SECTION 4.5.
|
Action with Respect to Bankruptcy Action.
|
19
|
SECTION 4.6.
|
Covenants and Restrictions on Conduct of Business.
|
20
|
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE
|
22
|
|
SECTION 5.1.
|
General Authority.
|
22
|
SECTION 5.2.
|
General Duties.
|
23
|
SECTION 5.3.
|
Action upon Instruction.
|
23
|
SECTION 5.4.
|
No Duties Except as Specified in this Agreement or in Instructions.
|
24
|
SECTION 5.5.
|
No Action Except under Specified Documents or Instructions.
|
24
|
SECTION 5.6.
|
Restrictions.
|
25
|
ARTICLE VI. CONCERNING THE OWNER TRUSTEE
|
25
|
|
SECTION 6.1.
|
Acceptance of Trusts and Duties.
|
25
|
SECTION 6.2.
|
Furnishing of Documents.
|
27
|
SECTION 6.3.
|
Representations and Warranties.
|
27
|
SECTION 6.4.
|
Reliance; Advice of Counsel.
|
28
|
SECTION 6.5.
|
Not Acting in Individual Capacity.
|
28
|
SECTION 6.6.
|
Owner Trustee Not Liable for Certificates.
|
28
|
SECTION 6.7.
|
Owner Trustee May Own Notes.
|
29
|
SECTION 6.8.
|
Payments from Owner Trust Estate.
|
29
|
SECTION 6.9.
|
Doing Business in Other Jurisdictions.
|
29
|
SECTION 6.10.
|
FATCA Information.
|
29
|
SECTION 6.11.
|
Financial Crimes Enforcement Network’s Customer Due Diligence Requirements.
|
30
|
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE
|
30
|
|
SECTION 7.1.
|
Owner Trustee’s Fees and Expenses.
|
30
|
SECTION 7.2.
|
Indemnification.
|
31
|
SECTION 7.3.
|
Payments to the Owner Trustee.
|
31
|
SECTION 7.4.
|
Non-recourse Obligations.
|
32
|
ARTICLE VIII. TERMINATION OF TRUST AGREEMENT
|
32
|
|
SECTION 8.1.
|
Termination of Trust Agreement.
|
32
|
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
|
33
|
|
SECTION 9.1.
|
Eligibility Requirements for Owner Trustee.
|
33
|
SECTION 9.2.
|
Resignation or Removal of Owner Trustee.
|
33
|
SECTION 9.3.
|
Successor Owner Trustee.
|
34
|
SECTION 9.4.
|
Merger or Consolidation of Owner Trustee.
|
35
|
SECTION 9.5.
|
Appointment of Co-Trustee or Separate Trustee.
|
35
|
ARTICLE X. MISCELLANEOUS
|
36
|
|
SECTION 10.1.
|
Supplements and Amendments.
|
36
|
SECTION 10.2.
|
No Legal Title to Owner Trust Estate in Certificateholders.
|
37
|
SECTION 10.3.
|
Limitations on Rights of Others.
|
38
|
SECTION 10.4.
|
Notices.
|
38
|
SECTION 10.5.
|
Severability.
|
38
|
SECTION 10.6.
|
Separate Counterparts.
|
39
|
SECTION 10.7.
|
Assignments.
|
39
|
SECTION 10.8.
|
No Recourse.
|
39
|
SECTION 10.9.
|
Headings.
|
39
|
SECTION 10.10.
|
GOVERNING LAW.
|
39
|
SECTION 10.11.
|
WAIVER OF JURY TRIAL.
|
39
|
SECTION 10.12.
|
Servicer.
|
39
|
SECTION 10.13.
|
Nonpetition Covenants.
|
40
|
SECTION 10.14.
|
Third-Party Beneficiaries.
|
40
|
SECTION 10.15.
|
Force Majeure.
|
40
|
SECTION 10.16.
|
Regulation AB.
|
41
|
SECTION 10.17.
|
Entire Agreement.
|
41
|
ARTICLE XI. APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
|
41
|
|
SECTION 11.1.
|
Establishment of Trust Accounts.
|
41
|
SECTION 11.2.
|
Application of Trust Funds.
|
42
|
SECTION 11.3.
|
Method of Payment.
|
43
|
EXHIBITS
|
||
Exhibit A
|
Form of Certificates
|
|
Exhibit B
|
Form of Certificate of Trust
|
By: |
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee |
Dated: __________, 20___ |
By:_____________________________
Name:
Title:
|
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Certificate Registrar
By:
Authorized Signatory
|
* |
NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Certificate Registrar, which requirements include membership or participation in STAMP or such other
“signature guarantee program” as may be determined by the Certificate Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
(Holding Trust)
between
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
Seller and
WILMINGTON TRUST COMPANY
Owner Trustee Dated as of April 30, 2021
|
ARTICLE I DEFINITIONS
|
1
|
|
SECTION 1.1.
|
Capitalized Terms.
|
1
|
SECTION 1.2.
|
Other Definitional Provisions.
|
5
|
ARTICLE II ORGANIZATION
|
5
|
|
SECTION 2.1.
|
Name and Amendment of Initial Trust Agreement.
|
5
|
SECTION 2.2.
|
Office.
|
6
|
SECTION 2.3.
|
Purposes and Powers.
|
6
|
SECTION 2.4.
|
Appointment of Owner Trustee.
|
7
|
SECTION 2.5.
|
Initial Capital Contribution of Owner Holding Trust Estate.
|
7
|
SECTION 2.6.
|
Declaration of Trust.
|
7
|
SECTION 2.7.
|
Title to Owner Holding Trust Estate.
|
7
|
SECTION 2.8.
|
Situs of Holding Trust.
|
8
|
SECTION 2.9.
|
Representations and Warranties of the Depositor.
|
8
|
SECTION 2.10.
|
Covenants of the Holding Trust Certificateholder.
|
9
|
SECTION 2.11.
|
U.S. Federal Income Tax Treatment of the Holding Trust.
|
9
|
ARTICLE III HOLDING TRUST CERTIFICATE AND TRANSFER OF INTEREST
|
10
|
|
SECTION 3.1.
|
Initial Ownership.
|
10
|
SECTION 3.2.
|
The Holding Trust Certificate.
|
10
|
SECTION 3.3.
|
Authentication of Holding Trust Certificate.
|
11
|
SECTION 3.4.
|
[Reserved].
|
11
|
SECTION 3.5.
|
[Reserved].
|
11
|
SECTION 3.6.
|
Definitive Holding Trust Certificate.
|
11
|
SECTION 3.7.
|
Registration of Transfer and Exchange of Holding Trust Certificate.
|
11
|
SECTION 3.8.
|
Mutilated, Destroyed, Lost or Stolen Holding Trust Certificate.
|
13
|
SECTION 3.9.
|
Persons Deemed Holding Trust Certificateholder.
|
13
|
SECTION 3.10.
|
Maintenance of Office or Agency.
|
14
|
SECTION 3.11.
|
[Reserved].
|
14
|
SECTION 3.12.
|
ERISA Restrictions.
|
14
|
SECTION 3.13.
|
Appointment of Holding Trust Certificate Paying Agent.
|
14
|
ARTICLE IV VOTING RIGHTS AND OTHER ACTIONS
|
15
|
|
SECTION 4.1.
|
Prior Notice to Holder with Respect to Certain Matters.
|
15
|
SECTION 4.2.
|
Action by Holding Trust Certificateholder with Respect to Certain Matters.
|
16
|
SECTION 4.3.
|
Restrictions on Holding Trust Certificateholder’s Power.
|
16
|
SECTION 4.4.
|
[Reserved].
|
16
|
SECTION 4.5.
|
Action with Respect to Bankruptcy Action.
|
16
|
SECTION 4.6.
|
Covenants and Restrictions on Conduct of Business.
|
17
|
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE
|
19
|
|
SECTION 5.1.
|
General Authority.
|
19
|
SECTION 5.2.
|
General Duties.
|
19
|
SECTION 5.3.
|
Action upon Instruction.
|
20
|
SECTION 5.4.
|
No Duties Except as Specified in this Agreement or in Instructions.
|
21
|
SECTION 5.5.
|
No Action Except under Specified Documents or Instructions.
|
21
|
SECTION 5.6.
|
Restrictions.
|
21
|
SECTION 5.7.
|
Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties.
|
22
|
ARTICLE VI CONCERNING THE OWNER TRUSTEE
|
22
|
|
SECTION 6.1.
|
Acceptance of Trusts and Duties.
|
22
|
SECTION 6.2.
|
Furnishing of Documents.
|
24
|
SECTION 6.3.
|
Representations and Warranties.
|
24
|
SECTION 6.4.
|
Reliance; Advice of Counsel.
|
25
|
SECTION 6.5.
|
Not Acting in Individual Capacity.
|
25
|
SECTION 6.6.
|
Owner Trustee Not Liable for Holding Trust Certificate or Receivables.
|
25
|
SECTION 6.7.
|
Owner Trustee May Own Notes.
|
26
|
SECTION 6.8.
|
Payments from Owner Holding Trust Estate.
|
26
|
SECTION 6.9.
|
Doing Business in Other Jurisdictions.
|
26
|
SECTION 6.10.
|
FATCA Information.
|
27
|
SECTION 6.11.
|
Financial Crimes Enforcement Network’s Customer Due Diligence Requirements.
|
27
|
ARTICLE VII COMPENSATION OF OWNER TRUSTEE
|
28
|
|
SECTION 7.1.
|
Owner Trustee’s Fees and Expenses.
|
28
|
SECTION 7.2.
|
Indemnification.
|
28
|
SECTION 7.3.
|
Payments to the Owner Trustee.
|
29
|
SECTION 7.4.
|
Non-recourse Obligations.
|
29
|
ARTICLE VIII TERMINATION OF TRUST AGREEMENT
|
29
|
|
SECTION 8.1.
|
Termination of Trust Agreement.
|
29
|
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
|
31
|
|
SECTION 9.1.
|
Eligibility Requirements for Owner Trustee.
|
31
|
SECTION 9.2.
|
Resignation or Removal of Owner Trustee.
|
31
|
SECTION 9.3.
|
Successor Owner Trustee.
|
32
|
SECTION 9.4.
|
Merger or Consolidation of Owner Trustee.
|
32
|
SECTION 9.5.
|
Appointment of Co-Trustee or Separate Trustee.
|
32
|
ARTICLE X MISCELLANEOUS
|
34
|
|
SECTION 10.1.
|
Supplements and Amendments.
|
34
|
SECTION 10.2.
|
No Legal Title to Owner Holding Trust Estate in Holding Trust Certificateholder.
|
35
|
SECTION 10.3.
|
Limitations on Rights of Others.
|
35
|
SECTION 10.4.
|
Notices.
|
35
|
SECTION 10.5.
|
Severability.
|
36
|
SECTION 10.6.
|
Separate Counterparts.
|
36
|
SECTION 10.7.
|
Assignments.
|
36
|
SECTION 10.8.
|
No Recourse.
|
36
|
SECTION 10.9.
|
Headings.
|
37
|
SECTION 10.10.
|
GOVERNING LAW.
|
37
|
SECTION 10.11.
|
WAIVER OF JURY TRIAL.
|
37
|
SECTION 10.12.
|
Servicer.
|
37
|
SECTION 10.13.
|
Nonpetition Covenants.
|
37
|
SECTION 10.14.
|
Third-Party Beneficiaries.
|
38
|
SECTION 10.15.
|
Force Majeure.
|
38
|
SECTION 10.16.
|
Regulation AB.
|
38
|
SECTION 10.17.
|
Entire Agreement.
|
39
|
ARTICLE XI APPLICATION OF HOLDING TRUST FUNDS; CERTAIN DUTIES
|
39
|
|
SECTION 11.1.
|
[Reserved].
|
39
|
SECTION 11.2.
|
Application of Holding Trust Funds.
|
39
|
SECTION 11.3.
|
Method of Payment.
|
40
|
WILMINGTON TRUST COMPANY,
|
||
as Owner Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
EXETER AUTOMOBILE RECEIVABLES
|
||
TRUST 2021-2, as Seller
|
||
By:
|
EXETER FINANCE LLC, as Servicer
|
|
By:
|
|
|
Name:
|
||
Title:
|
EXETER HOLDINGS TRUST 2021-2
|
||
By:
|
WILMINGTON TRUST COMPANY,
|
|
not in its individual capacity but
|
||
solely as Owner Trustee
|
||
Dated: _______, 20___
|
||
By:
|
|
|
Name:
|
||
Title:
|
Dated:
|
|
*
|
Signature
|
||
Guaranteed:
|
*
|
WILMINGTON TRUST COMPANY, not in its
|
||
individual capacity but solely as trustee of the
|
||
Holding Trust
|
||
By:
|
|
|
Name:
|
||
Title:
|
Agreement
|
Date of Request
|
Number of Receivables Subject to Request
|
Aggregate Principal Balance of Receivables Subject to Request
|
WILMINGTON TRUST COMPANY, not in its
|
||
individual capacity but solely as Owner Trustee of
|
||
the Holding Trust
|
||
By:
|
|
|
Name:
|
||
Title:
|
ARTICLE 1
|
DEFINITIONS
|
1
|
Section 1.1
|
Definitions
|
1
|
Section 1.2
|
Other Definitional Provisions
|
20
|
ARTICLE 2
|
CONVEYANCE OF RECEIVABLES
|
21
|
Section 2.1
|
Conveyance of Receivables
|
21
|
Section 2.2
|
[Reserved]
|
22
|
Section 2.3
|
Further Encumbrance of Issuer Property
|
22
|
Section 2.4
|
Intention of the Parties
|
23
|
ARTICLE 3
|
THE RECEIVABLES
|
24
|
Section 3.1
|
Representations and Warranties of Seller
|
24
|
Section 3.2
|
Repurchase upon Breach
|
24
|
Section 3.3
|
Custody of Receivable Files
|
25
|
Section 3.4
|
Dispute Resolution
|
26
|
ARTICLE 4
|
ADMINISTRATION AND SERVICING OF RECEIVABLES
|
29
|
Section 4.1
|
Duties of the Servicer and the Backup Servicer
|
29
|
Section 4.2
|
Collection of Receivable Payments; Modifications of Receivables; Lockbox Account Agreement
|
30
|
Section 4.3
|
Realization upon Receivables
|
33
|
Section 4.4
|
Insurance
|
34
|
Section 4.5
|
Maintenance of Security Interests in Vehicles
|
35
|
Section 4.6
|
Covenants, Representations, and Warranties of Servicer
|
36
|
Section 4.7
|
Purchase of Receivables Upon Breach of Covenant
|
37
|
Section 4.8
|
Total Servicing Fee; Payment of Certain Expenses by Servicer
|
38
|
Section 4.9
|
Servicer’s Certificate
|
38
|
Section 4.10
|
Annual Statement as to Compliance, Notice of Servicer Termination Event
|
39
|
Section 4.11
|
Annual Independent Public Accountants’ Reports
|
40
|
Section 4.12
|
Access to Certain Documentation and Information Regarding Receivables
|
41
|
Section 4.13
|
Monthly Tape
|
41
|
ARTICLE 5
|
TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS
|
42
|
Section 5.1
|
Establishment of Trust Accounts
|
42
|
Section 5.2
|
[Reserved]
|
45
|
Section 5.3
|
Certain Reimbursements to the Servicer
|
45
|
Section 5.4
|
Application of Collections
|
45
|
Section 5.5
|
[Reserved]
|
45
|
Section 5.6
|
Additional Deposits
|
46
|
Section 5.7
|
Distributions
|
46
|
Section 5.8
|
Reserve Account
|
50
|
Section 5.9
|
Statements to Noteholders
|
51
|
ARTICLE 6
|
[RESERVED]
|
52
|
ARTICLE 7
|
THE SELLER
|
52
|
Section 7.1
|
Representations of Seller
|
52
|
Section 7.2
|
Corporate Existence
|
56
|
Section 7.3
|
Liability of Seller; Indemnities
|
56
|
Section 7.4
|
Merger or Consolidation of, or Assumption of the Obligations of, Seller
|
57
|
Section 7.5
|
Limitation on Liability of Seller and Others
|
57
|
Section 7.6
|
Ownership of the Certificate or Notes
|
57
|
ARTICLE 8
|
THE SERVICER AND THE BACKUP SERVICER
|
58
|
Section 8.1
|
Representations of Initial Servicer
|
58
|
Section 8.2
|
Representations of Backup Servicer
|
59
|
Section 8.3
|
Liability of Servicer and Backup Servicer; Indemnities
|
60
|
Section 8.4
|
Merger or Consolidation of, or Assumption of the Obligations of, the Servicer or the Backup Servicer
|
63
|
Section 8.5
|
Limitation on Liability of Servicer, Backup Servicer and Others
|
64
|
Section 8.6
|
Delegation of Duties
|
65
|
Section 8.7
|
Servicer and Backup Servicer Not to Resign
|
65
|
Section 8.8
|
Rights of the Backup Servicer
|
65
|
ARTICLE 9
|
DEFAULT
|
66
|
Section 9.1
|
Servicer Termination Event
|
66
|
Section 9.2
|
Consequences of a Servicer Termination Event
|
67
|
Section 9.3
|
Appointment of Successor
|
68
|
Section 9.4
|
Notification to Noteholders
|
70
|
Section 9.5
|
Waiver of Past Defaults
|
70
|
Section 9.6
|
Backup Servicer Termination
|
71
|
ARTICLE 10
|
TERMINATION
|
71
|
Section 10.1
|
Optional Purchase of All Receivables
|
71
|
ARTICLE 11
|
ADMINISTRATIVE DUTIES OF THE SERVICER
|
72
|
Section 11.1
|
Administrative Duties
|
72
|
Section 11.2
|
Records
|
75
|
Section 11.3
|
Additional Information to be Furnished to the Issuer and the Holding Trust
|
75
|
ARTICLE 12
|
MISCELLANEOUS PROVISIONS
|
75
|
Section 12.1
|
Amendment
|
75
|
Section 12.2
|
Protection of Title to Trust
|
76
|
Section 12.3
|
Notices
|
78
|
Section 12.4
|
Assignment
|
79
|
Section 12.5
|
Limitations on Rights of Others
|
79
|
Section 12.6
|
Severability
|
79
|
Section 12.7
|
Separate Counterparts
|
79
|
Section 12.8
|
Headings
|
80
|
Section 12.9
|
Governing Law and Submission to Jurisdiction
|
80
|
Section 12.10
|
Waiver of Jury Trial
|
80
|
Section 12.11
|
Assignment to Indenture Trustee
|
80
|
Section 12.12
|
Nonpetition Covenants
|
80
|
Section 12.13
|
Limitation of Liability of Owner Trustee and Indenture Trustee
|
81
|
Section 12.14
|
Indenture Trustee to Report Repurchase Demands due to Breaches of Representations and Warranties
|
82
|
Section 12.15
|
Independence of the Servicer
|
82
|
Section 12.16
|
No Joint Venture
|
82
|
Section 12.17
|
State Business Licenses
|
83
|
Section 12.18
|
AML Law
|
83
|
Section 12.19
|
Indemnification
|
83
|
SCHEDULES
|
||
Schedule A
|
Schedule of Receivables
|
|
Schedule B
|
Representations and Warranties of the Seller and the Initial Servicer
|
|
EXHIBITS
|
||
Exhibit A
|
Form of Servicer’s Certificate
|
|
Exhibit B
|
Servicing Criteria to be Addressed in Servicer’s and Indenture Trustee’s Assessments of Compliance
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exeter Automobile Receivables Trust [YYYY-S]
|
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class [] [%] Asset Backed Notes
|
||||||||||||||
Class [] [%] Asset Backed Notes
|
||||||||||||||
Class [] [%] Asset Backed Notes
|
||||||||||||||
Class [] [%] Asset Backed Notes
|
||||||||||||||
Class [] [%] Asset Backed Notes
|
||||||||||||||
Class [] [%] Asset Backed Notes
|
||||||||||||||
Class [] [%] Asset Backed Notes
|
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Servicer's Certificate
|
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
This Servicer's Certificate has been prepared pursuant to Section [] of the [] among [], dated as of []. Defined terms have the meanings assigned to them in the [] or in other Transaction
Documents.
|
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Collection Period Beginning:
|
|
|
|
|
|
|
|
|
|
|
|
|
Original
|
|
Collection Period Ending:
|
|
|
|
|
|
|
|
|
Purchases
|
Units
|
Cutoff Date
|
Closing Date
|
Pool Balance
|
|
Prev. Distribution Date (or Closing Date):
|
|
|
|
|
|
|
|
|
Initial Purchase
|
|
|
|
|
|
Distribution Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Days of Interest for Period:
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
||
Days in Collection Period:
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Months Seasoned:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
I.
|
RECEIVABLES PRINCIPAL BALANCE CALCULATION:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{1}
|
Beginning of period Aggregate Principal Balance
|
|
|
|
|
|
|
|
|
|
{1}
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Collection Period principal amounts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{2}
|
Collections on Receivables
|
|
|
|
|
|
|
|
|
{2}
|
|
|
|
|
{3}
|
Less amounts allocable to interest and fees
|
|
|
|
|
|
|
|
|
{3}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{4}
|
Total cash principal amounts
|
|
|
|
|
|
|
|
|
|
{4}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{5}
|
Receivables becoming Liquidated Receivables during period (including Cram Down Losses)
|
|
|
|
|
|
|
|
|
{5}
|
|
|
|
|
{6}
|
Receivables becoming Purchased Receivables during period
|
|
|
|
|
|
|
|
|
{6}
|
|
|
|
|
{7}
|
Other Receivables adjustments
|
|
|
|
|
|
|
|
|
{7}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{8}
|
Total non-cash principal amounts
|
|
|
|
|
|
|
|
|
|
{8}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{9}
|
End of period Aggregate Principal Balance
|
|
|
|
|
|
|
|
|
|
|
{9}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{10}
|
Pool factor ({9} / Original Pool Balance)
|
|
|
|
|
|
|
|
|
|
|
{10}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
II.
|
NOTE BALANCE CALCULATION:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class []
|
Class []
|
Class []
|
Class []
|
Class []
|
Class []
|
Class []
|
Total
|
|
{11}
|
Original Note Balance
|
|
|
{11}
|
|
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{12}
|
Beginning of period Notes Balance
|
|
|
|
{12}
|
|
|
|
|
|
|
|
|
|
{13}
|
First Allocation of Principal
|
|
|
|
{13}
|
|
|
|
|
|
|
|
|
|
{14}
|
Second Allocation of Principal
|
|
|
|
{14}
|
|
|
|
|
|
|
|
|
|
{15}
|
Third Allocation of Principal
|
|
|
|
{15}
|
|
|
|
|
|
|
|
|
|
{16}
|
Fourth Allocation of Principal
|
|
|
|
{16}
|
|
|
|
|
|
|
|
|
|
{17}
|
Fifth Allocation of Principal
|
|
|
|
{17}
|
|
|
|
|
|
|
|
|
|
{18}
|
Regular Allocation of Principal
|
|
|
|
{18}
|
|
|
|
|
|
|
|
|
|
{19}
|
Optional Purchase payment amount
|
|
|
|
{19}
|
|
|
|
|
|
|
|
|
|
{20}
|
End of period Note Balance
|
|
|
|
{20}
|
|
|
|
|
|
|
|
|
|
{21}
|
Note Pool Factor
|
|
|
|
{21}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
III.
|
CALCULATION OF INTEREST DISTRIBUTABLE AMOUNTS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning
|
Interest
|
Interest
|
|
|
Calculated
|
|
|
|
|
|
|
|
|
Class
|
Note Balance
|
Carryover
|
Rate
|
Days
|
Days Basis
|
Interest
|
|
|
|
|
|
|
|
{22}
|
Class []
|
|
|
|
|
|
|
0.13
|
44607
|
|
|
|
|
|
{23}
|
Class []
|
|
|
|
|
|
|
0.50
|
45092
|
|
|
|
|
|
{24}
|
Class []
|
|
|
|
|
|
|
1.13
|
45366
|
|
|
|
|
|
{25}
|
Class []
|
|
|
|
|
|
|
1.70
|
45706
|
|
|
|
|
|
{26}
|
Class []
|
|
|
|
|
|
|
2.53
|
46037
|
|
|
|
|
|
{27}
|
Class []
|
|
|
|
|
|
|
3.45
|
46342
|
|
|
|
|
|
{28}
|
Class []
|
|
|
|
|
|
|
4.03
|
46798
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IV.
|
RECONCILIATION OF COLLECTION ACCOUNT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available Funds:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{29}
|
Collections during period (excluding Liquidation Proceeds and Fees)
|
|
|
|
|
|
|
|
|
|
{29}
|
|
|
|
{30}
|
Liquidation Proceeds collected during period
|
|
|
|
|
|
|
|
|
|
{30}
|
|
|
|
{31}
|
Purchase Amounts or amounts from Servicer deposited in Collection Account
|
|
|
|
|
|
|
|
|
|
{31}
|
|
|
|
{32}
|
Investment Earnings - Collection Account
|
|
|
|
|
|
|
|
|
|
{32}
|
|
|
|
{33}
|
Investment Earnings - Transfer From Reserve Account
|
|
|
|
|
|
|
|
|
|
{33}
|
|
|
|
{34}
|
Fees collected during period
|
|
|
|
|
|
|
|
|
|
{34}
|
|
|
|
{35}
|
Other Amounts Received
|
|
|
|
|
|
|
|
|
|
{35}
|
|
|
|
{36}
|
Reserve Account Withdrawal Amount
|
|
|
|
|
|
|
|
|
{36}
|
|
|
||
{37}
|
Total Available Funds
|
|
|
|
|
|
|
|
|
|
|
{37}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Distributions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{38}
|
Base Servicing Fee
|
|
|
|
|
|
|
|
|
|
{38}
|
|
|
|
{39}
|
Recovery fees reimbursed to Servicer as Supplemental Servicing Fees
|
|
|
|
|
|
|
|
|
|
{39}
|
|
|
|
{40}
|
Fee collections (excluding extension fees) reimbursed to Servicer as Supplemental Servicing Fees
|
|
|
|
|
|
|
|
|
|
{40}
|
|
|
|
{41}
|
Other amounts due to Servicer
|
|
|
|
|
|
|
|
|
{41}
|
|
|
||
{42}
|
Transition Fees to the successor Servicer
|
|
|
|
|
|
|
|
|
{42}
|
|
|
||
{43}
|
Indenture Trustee Fees
|
|
|
|
|
|
|
|
|
|
{43}
|
|
|
|
{44}
|
Backup Servicing Fees
|
|
|
|
|
|
|
|
|
|
{44}
|
|
|
|
{45}
|
Custodian Fees
|
|
|
|
|
|
|
|
|
|
{45}
|
|
|
|
{46}
|
Asset Representations Reviewer Fees
|
|
|
|
|
|
|
|
|
|
{46}
|
|
|
|
{47}
|
Lockbox Bank Fees
|
|
|
|
|
|
|
|
|
|
{47}
|
|
|
|
{48}
|
Owner Trustee Fees
|
|
|
|
|
|
|
|
|
|
{48}
|
|
|
|
{49}
|
Class [] Noteholders' Monthly Interest Distributable Amount
|
|
|
|
|
|
|
|
|
|
{49}
|
|
|
|
{50}
|
Class [] Parity & Class [] on Legal Final
|
|
|
|
|
|
|
|
|
|
{50}
|
|
|
|
{51}
|
Class [] Noteholders' Monthly Interest Distributable Amount
|
|
|
|
|
|
|
|
|
|
{51}
|
|
|
|
{52}
|
Class [] and [] Parity & Class [] on Legal Final
|
|
|
|
|
|
|
|
|
|
{52}
|
|
|
|
{53}
|
Class [] Noteholders' Monthly Interest Distributable Amount
|
|
|
|
|
|
|
|
|
|
{53}
|
|
|
|
{54}
|
Class [], [] and [] Parity & Class [] on Legal Final
|
|
|
|
|
|
|
|
|
|
{54}
|
|
|
|
{55}
|
Class [] Noteholders' Monthly Interest Distributable Amount
|
|
|
|
|
|
|
|
|
|
{55}
|
|
|
|
{56}
|
Class [], [], [] and [] Parity & Class [] on Legal Final
|
|
|
|
|
|
|
|
|
|
{56}
|
|
|
|
{57}
|
Class [] Noteholders' Monthly Interest Distributable Amount
|
|
|
|
|
|
|
|
|
|
{57}
|
|
|
|
{58}
|
Class [], [], [], [] and [] Parity & Class [] on Legal Final
|
|
|
|
|
|
|
|
|
|
{58}
|
|
|
|
{59}
|
To the Reserve Account, the Reserve Account Deposit
|
|
|
|
|
|
|
|
|
{59}
|
|
|
||
{60}
|
Principal Payment Amount
|
|
|
|
|
|
|
|
|
|
{60}
|
|
|
|
{61}
|
Additional fees due to parties in excess of related limits
|
|
|
|
|
|
|
|
|
|
{61}
|
|
|
|
{62}
|
To the Certificateholders, the aggregate amount remaining
|
|
|
|
|
|
|
|
|
|
{62}
|
|
|
|
{63}
|
Total Distributions
|
|
|
|
|
|
|
|
|
|
|
{63}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
V.
|
CALCULATION OF PRINCIPAL PARITY AMOUNT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(X)
|
(Y)
|
|
(I)
|
(II)
|
|
|
|
|
|
|
|
|
|
|
Cumulative
|
Pool
|
|
Excess of
|
Available Funds
|
Lesser of
|
|
|
|
|
|
|
|
|
Class
|
Note Balance
|
Balance
|
|
(X) - (Y)
|
in Waterfall
|
(I) or (II)
|
|
|
|
|
|
|
|
{64}
|
Class []
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{65}
|
Class []
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{66}
|
Class []
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{67}
|
Class []
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{68}
|
Class []
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{69}
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VI.
|
RECONCILIATION OF RESERVE ACCOUNT:
|
|
|
|
|
|
|
|
|
|
|
|
Initial
|
|
{70}
|
Specified Reserve Balance ([]% of the Pool Balance as of the Cutoff Date)
|
|
|
|
|
|
|
|
|
|
|
{70}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{71}
|
Beginning of period Reserve Account balance
|
|
|
|
|
|
|
|
|
|
|
{71}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{72}
|
Reserve Account Deposit from Collection Account
|
|
|
|
|
|
|
|
|
|
{72}
|
|
|
|
{73}
|
Investment Earnings - Reserve Account
|
|
|
|
|
|
|
|
|
|
{73}
|
|
|
|
{74}
|
Investment Earnings - transferred to Collection Account Available Funds
|
|
|
|
|
|
|
|
|
|
{74}
|
|
|
|
{75}
|
Reserve Account Withdrawal Amount
|
|
|
|
|
|
|
|
|
|
{75}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{76}
|
End of period Reserve Account balance
|
|
|
|
|
|
|
|
|
|
|
{76}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{77}
|
Reserve Account deficiency
|
|
|
|
|
|
|
|
|
|
|
{77}
|
|
|
{78}
|
Reserve Account draw amount
|
|
|
|
|
|
|
|
|
|
|
{78}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VII.
|
OVERCOLLATERALIZATION:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{79}
|
Target Overcollateralization Amount: (greater of)
|
|
|
|
|
|
|
|
|
|
|
{79}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{80}
|
(i)
|
[]% of the Pool Balance as of the end of the Collection Period
|
|
|
|
|
|
|
|
|
{80}
|
|
|
|
|
and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{81}
|
(ii)
|
[]% of the Pool Balance as of the Cutoff Date
|
|
|
|
|
|
|
|
{81}
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{82}
|
End of period Pool Balance of the Receivables
|
|
|
|
|
|
|
|
|
{82}
|
|
|
||
{83}
|
End of period Note Balance
|
|
|
|
|
|
|
|
|
{83}
|
|
|
||
{84}
|
Overcollateralization amount
|
|
|
|
|
|
|
|
|
|
{84}
|
|
||
{85}
|
Overcollateralization percentage
|
|
|
|
|
|
|
|
|
|
{85}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VIII.
|
STATISTICAL DATA:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original
|
Previous
|
Current
|
|
{86}
|
Average Principal Balance of the Receivables
|
|
|
|
|
|
|
|
|
{86}
|
|
|
|
|
{87}
|
Weighted average APR of the Receivables
|
|
|
|
|
|
|
|
|
{87}
|
|
|
|
|
{88}
|
Weighted average original term of the Receivables
|
|
|
|
|
|
|
|
|
{88}
|
|
|
|
|
{89}
|
Weighted average remaining term of the Receivables
|
|
|
|
|
|
|
|
|
{89}
|
|
|
|
|
{90}
|
Number of Receivables
|
|
|
|
|
|
|
|
|
{90}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IX.
|
CUMULATIVE NET LOSS RATIO:
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{91}
|
Receivables becoming Liquidated Receivables during period (including Cram Down Losses)
|
|
|
|
|
|
|
{91}
|
|
|
||||
{92}
|
Net Liquidation Proceeds collected during period
|
|
|
|
|
|
|
|
|
{92}
|
|
|
||
{93}
|
Net losses during period
|
|
|
|
|
|
|
|
|
|
{93}
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{94}
|
Net losses since Cutoff Date (end of period)
|
|
|
|
|
|
|
|
|
|
{94}
|
|
||
{95}
|
Cumulative net loss ratio
|
|
|
|
|
|
|
|
|
|
{95}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
X.
|
DELINQUENCY:
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receivables with scheduled payment delinquent
|
|
|
|
|
|
|
|
|
|
|
Units
|
Dollars
|
Percentage
|
|
{96}
|
31-60 days
|
|
|
|
|
|
|
|
|
{96}
|
|
|
|
|
{97}
|
61-90 days
|
|
|
|
|
|
|
|
|
{97}
|
|
|
|
|
{98}
|
over 90 days
|
|
|
|
|
|
|
|
|
{98}
|
|
|
|
|
{99}
|
Total
|
|
|
|
|
|
|
|
|
{99}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{100}
|
Aggregate Principal Balance of all Receivables that are more than 60 days delinquent
|
|
|
|
|
|
|
|
|
|
|
{100}
|
|
|
{101}
|
Delinquency Rate as of the end of the Collection Period
|
|
|
|
|
|
|
|
|
|
|
{101}
|
|
|
{102}
|
Delinquency Trigger
|
|
|
|
|
|
|
|
|
|
|
{102}
|
|
|
{103}
|
Delinquency Trigger occurred
|
|
|
|
|
|
|
|
|
|
|
{103}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
XI.
|
EXTENSIONS:
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
{104}
|
Principal Balance of Receivables extended during current period
|
|
|
|
|
|
|
|
|
|
{104}
|
|
|
|
{105}
|
Beginning of Period Aggregate Principal Balance
|
|
|
|
|
|
|
|
|
|
{105}
|
|
|
|
{106}
|
Extension Rate
|
|
|
|
|
|
|
|
|
|
|
{106}
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
____________________________________
|
|
|
|
|
|
|
|
|
|
|
|
||
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reference
|
Servicing Criteria
|
Applicable Servicing Criteria (Servicer)
|
Applicable Servicing Criteria (Indenture Trustee)
|
General Servicing Considerations
|
|||
1122(d)(1)(i)
|
Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.
|
X
|
N/A
|
1122(d)(1)(ii)
|
If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.
|
X
|
N/A
|
1122(d)(1)(iii)
|
Any requirements in the transaction agreements to maintain a back-up servicer for the pool assets are maintained.
|
X
|
N/A
|
1122(d)(1)(iv)
|
A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise
in accordance with the terms of the transaction agreements.
|
N/A
|
N/A
|
1122(d)(1)(v)
|
Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.
|
X
|
N/A
|
Cash Collection and Administration
|
|||
1122(d)(2)(i)
|
Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days of receipt, or such other number of days specified
in the transaction agreements.
|
X
|
N/A
|
1122(d)(2)(ii)
|
Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.
|
X
|
X
|
1122(d)(2)(iii)
|
Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the
transaction agreements.
|
N/A
|
N/A
|
Reference
|
Servicing Criteria
|
Applicable Servicing Criteria (Servicer)
|
Applicable Servicing Criteria (Indenture Trustee)
|
1122(d)(2)(iv)
|
The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
|
X
|
X
|
1122(d)(2)(v)
|
Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository
institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of § 240.13k-1(b)(1) of the Securities Exchange Act.
|
X
|
N/A
|
1122(d)(2)(vi)
|
Unissued checks are safeguarded so as to prevent unauthorized access.
|
N/A
|
N/A
|
1122(d)(2)(vii)
|
Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations: (A) are
mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction
agreements.
|
X
|
N/A
|
Investor Remittances and Reporting
|
|||
1122(d)(3)(i)
|
Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports
(A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of pool assets serviced by the servicer.
|
X
|
N/A
|
Reference
|
Servicing Criteria
|
Applicable Servicing Criteria (Servicer)
|
Applicable Servicing Criteria (Indenture Trustee)
|
1122(d)(3)(ii)
|
Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.
|
X
|
X1
|
1122(d)(3)(iii)
|
Disbursements made to an investor are posted within two business days to the servicer’s investor records, or such other number of days specified in the transaction agreements.
|
X
|
X
|
1122(d)(3)(iv)
|
Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
Pool Asset Administration
|
|||
1122(d)(4)(i)
|
Collateral or security on pool assets is maintained as required by the transaction agreements or related pool asset documents.
|
X
|
N/A
|
1122(d)(4)(ii)
|
Pool assets and related documents are safeguarded as required by the transaction agreements.
|
X
|
N/A
|
1122(d)(4)(iii)
|
Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.
|
X
|
N/A
|
1122(d)(4)(iv)
|
Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the applicable servicer’s obligor records maintained no more than two business
days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related pool asset documents.
|
X
|
N/A
|
1122(d)(4)(v)
|
The servicer’s records regarding the pool assets agree with the servicer’s records with respect to an obligor’s unpaid principal balance.
|
X
|
N/A
|
1122(d)(4)(vi)
|
Changes with respect to the terms or status of an obligor’s pool asset (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the
transaction agreements and related pool asset documents.
|
X
|
N/A
|
Reference
|
Servicing Criteria
|
Applicable Servicing Criteria (Servicer)
|
Applicable Servicing Criteria (Indenture Trustee)
|
1122(d)(4)(vii)
|
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the transaction agreements.
|
X
|
N/A
|
1122(d)(4)(viii)
|
Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly
basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent pool assets including, for example, phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
N/A
|
1122(d)(4)(ix)
|
Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents.
|
N/A
|
N/A
|
1122(d)(4)(x)
|
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s pool asset documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable pool asset documents and state laws; and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related pool asset, or such other number of days specified in the transaction agreements.
|
N/A
|
N/A
|
1122(d)(4)(xi)
|
Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.
|
N/A
|
N/A
|
1122(d)(4)(xii)
|
Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the
obligor’s error or omission.
|
N/A
|
N/A
|
Reference
|
Servicing Criteria
|
Applicable Servicing Criteria (Servicer)
|
Applicable Servicing Criteria (Indenture Trustee)
|
1122(d)(4)(xiii)
|
Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction
agreements.
|
N/A
|
N/A
|
1122(d)(4)(xiv)
|
Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.
|
X
|
N/A
|
1122(d)(4)(xv)
|
Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
|
N/A
|
N/A
|
ARTICLE I.
|
DEFINITIONS
|
1
|
SECTION 1.1
|
General
|
1
|
SECTION 1.2
|
Specific Terms
|
1
|
SECTION 1.3
|
Usage of Terms
|
2
|
SECTION 1.4
|
[Reserved]
|
2
|
SECTION 1.5
|
No Recourse
|
2
|
SECTION 1.6
|
Action by or Consent of Noteholders and Certificateholders
|
3
|
ARTICLE II.
|
CONVEYANCE OF THE EFLLC RECEIVABLES AND THE EFLLC OTHER CONVEYED PROPERTY
|
3
|
SECTION 2.1
|
Conveyance of the EFLLC Receivables and the EFLLC Other Conveyed Property
|
3
|
ARTICLE III.
|
REPRESENTATIONS AND WARRANTIES
|
4
|
SECTION 3.1
|
Representations and Warranties of Seller
|
4
|
SECTION 3.2
|
Representations and Warranties of Purchaser
|
8
|
SECTION 3.3
|
Representations and Warranties of Seller as to each EFLLC Receivable
|
10
|
ARTICLE IV.
|
COVENANTS OF SELLER
|
10
|
SECTION 4.1
|
Protection of Title of Purchaser
|
10
|
SECTION 4.2
|
Other Liens or Interests
|
12
|
SECTION 4.3
|
Costs and Expenses
|
12
|
ARTICLE V.
|
REPURCHASES
|
12
|
SECTION 5.1
|
Repurchase of EFLLC Receivables Upon Breach of Warranty
|
12
|
SECTION 5.2
|
Reassignment of Purchased EFLLC Receivables
|
13
|
SECTION 5.3
|
Waivers
|
13
|
ARTICLE VI.
|
MISCELLANEOUS
|
13
|
SECTION 6.1
|
Liability of Seller
|
13
|
SECTION 6.2
|
Merger or Consolidation of Seller or Purchaser
|
13
|
SECTION 6.3
|
Limitation on Liability of Seller and Others
|
14
|
SECTION 6.4
|
Seller May Own Notes or Certificates
|
14
|
SECTION 6.5
|
Amendment
|
14
|
SECTION 6.6
|
Notices
|
15
|
SECTION 6.7
|
Merger and Integration
|
16
|
SECTION 6.8
|
Severability of Provisions
|
16
|
SECTION 6.9
|
Intention of the Parties
|
16
|
SECTION 6.10
|
Governing Law; Jurisdiction
|
17
|
SECTION 6.11
|
Waiver of Jury Trial
|
17
|
SECTION 6.12
|
Counterparts
|
17
|
SECTION 6.13
|
Subsequent Conveyance of the EFLLC Receivables and the EFLLC Other Conveyed Property
|
18
|
SECTION 6.14
|
Nonpetition Covenant
|
18
|
SCHEDULES
|
||
Schedule A —
|
Schedule of EFLLC Receivables
|
|
Schedule B —
|
Representations and Warranties from the Seller as to the EFLLC Receivables
|
ARTICLE 1.
|
DEFINITIONS
|
1
|
SECTION 1.1
|
General
|
1
|
SECTION 1.2
|
Specific Terms
|
1
|
SECTION 1.3
|
Usage of Terms
|
2
|
SECTION 1.4
|
[Reserved]
|
3
|
SECTION 1.5
|
No Recourse
|
3
|
SECTION 1.6
|
Action by or Consent of Noteholders and Certificateholders
|
3
|
ARTICLE 2.
|
CONVEYANCE OF THE EFIT RECEIVABLES AND THE EFIT OTHER CONVEYED PROPERTY
|
3
|
SECTION 2.1
|
Conveyance of the EFIT Receivables and the EFIT Other Conveyed Property
|
3
|
ARTICLE 3.
|
REPRESENTATIONS AND WARRANTIES
|
4
|
SECTION 3.1
|
Representations and Warranties of Seller
|
4
|
SECTION 3.2
|
Representations and Warranties of Purchaser
|
6
|
SECTION 3.3
|
Representations and Warranties of Representation Provider
|
8
|
ARTICLE 4.
|
COVENANTS OF SELLER
|
12
|
SECTION 4.1
|
Protection of Title of Purchaser
|
12
|
SECTION 4.2
|
Other Liens or Interests
|
13
|
SECTION 4.3
|
Costs and Expenses
|
13
|
ARTICLE 5.
|
REPURCHASES
|
14
|
SECTION 5.1
|
Repurchase of EFIT Receivables Upon Breach of Warranty
|
14
|
SECTION 5.2
|
Reassignment of Purchased EFIT Receivables
|
14
|
SECTION 5.3
|
Waivers
|
15
|
ARTICLE 6.
|
MISCELLANEOUS
|
15
|
SECTION 6.1
|
Liabilities of Seller and Representation Provider
|
15
|
SECTION 6.2
|
Merger or Consolidation of Seller, Representation Provider or Purchaser
|
15
|
SECTION 6.3
|
Limitation on Liability of Seller, Representation Provider and Others
|
16
|
SECTION 6.4
|
Seller and Representation Provider May Own Notes or Certificates
|
16
|
SECTION 6.5
|
Amendment
|
16
|
SECTION 6.6
|
Notices
|
17
|
SECTION 6.7
|
Severability of Provisions
|
18
|
SECTION 6.8
|
Intention of the Parties
|
18
|
SECTION 6.9
|
Governing Law; Jurisdiction
|
19
|
SECTION 6.10
|
Waiver of Jury Trial
|
19
|
SECTION 6.11
|
Counterparts
|
19
|
SECTION 6.12
|
Subsequent Conveyance of the EFIT Receivables and the EFIT Other Conveyed Property
|
19
|
SECTION 6.13
|
Nonpetition Covenant
|
20
|
SCHEDULES
|
||
Schedule A —
|
Schedule of EFIT Receivables
|
|
Schedule B —
|
Representations and Warranties from the Representation Provider as to the EFIT Receivables
|
By: |
EXETER FINANCE LLC, not in its individual capacity but solely as administrator for the Seller
|
ARTICLE I
|
DEFINITIONS
|
1
|
SECTION 1.1
|
General
|
1
|
SECTION 1.2
|
Specific Terms
|
1
|
SECTION 1.3
|
Usage of Terms
|
2
|
SECTION 1.4
|
[Reserved]
|
2
|
SECTION 1.5
|
No Recourse
|
2
|
SECTION 1.6
|
Action by or Consent of Noteholders and Certificateholders
|
3
|
ARTICLE II
|
TRANSFER OF THE CONVEYED ASSETS
|
3
|
SECTION 2.1
|
Transfer of the Conveyed Assets
|
3
|
ARTICLE III
|
REPRESENTATIONS AND WARRANTIES
|
4
|
SECTION 3.1
|
Representations and Warranties of Transferor
|
4
|
SECTION 3.2
|
Representations and Warranties of Transferee
|
6
|
ARTICLE IV
|
COVENANTS OF SELLER
|
8
|
SECTION 4.1
|
Protection of Title of Transferee
|
8
|
SECTION 4.2
|
Other Liens or Interests
|
9
|
SECTION 4.3
|
Costs and Expenses
|
9
|
ARTICLE V
|
MISCELLANEOUS
|
9
|
SECTION 5.1
|
Liability of Transferor
|
9
|
SECTION 5.2
|
Merger or Consolidation of Transferor or Transferee
|
9
|
SECTION 5.3
|
Limitation on Liability of Transferor and Others
|
10
|
SECTION 5.4
|
[Reserved]
|
10
|
SECTION 5.5
|
Amendment
|
10
|
SECTION 5.6
|
Notices
|
11
|
SECTION 5.7
|
Merger and Integration
|
11
|
SECTION 5.8
|
Severability of Provisions
|
11
|
SECTION 5.9
|
Intention of the Parties
|
12
|
SECTION 5.10
|
Governing Law; Jurisdiction
|
13
|
SECTION 5.11
|
Waiver of Jury Trial
|
13
|
SECTION 5.12
|
Counterparts
|
13
|
SECTION 5.13
|
Subsequent Conveyance of the Conveyed Assets
|
13
|
SECTION 5.14
|
Nonpetition Covenant
|
14
|
SECTION 5.15
|
Limitation of Liability of Owner Trustee
|
14
|
Schedule A — |
Representations and Warranties from the Transferor as to Perfection of Receivables
|
1. |
Secured Party’s Interest in Collateral Accounts. Secured Party represents that it is either (i) a lender who has extended credit to Company and has been
granted a security interest in the Collateral Accounts or (ii) a trustee for a lender or noteholders and has been granted a security interest in the Collateral Accounts. Company hereby confirms the security interest granted by Company to
Secured Party in all of Company’s right, title and interest in and to the Collateral Accounts and all sums now or hereafter on deposit in or payable or withdrawable from the Collateral Accounts (the “Collateral Account Funds”). In
furtherance of the intentions of the parties hereto, this Agreement constitutes written notice by Secured Party to Bank of Secured Party’s security interest in the Collateral Accounts.
|
2. |
Secured Party Control. Bank, Secured Party, Servicer and Company each agree that Bank will comply with instructions given to Bank by Secured Party
directing disposition of funds in the Collateral Accounts (“Disposition Instructions”) without further consent by Company or Servicer. Except as otherwise required by law, Bank will not agree with any third party to comply with
instructions for disposition of funds in the Collateral Accounts originated by such third party.
|
3. |
No Company Access to Collateral Accounts. Unless separately agreed to in writing by Secured Party, Company and Servicer each agrees that it will not be
able to make debits or withdrawals from or otherwise have access to the Collateral Accounts or any Collateral Account Funds, and that Secured Party will have exclusive access to the Collateral Accounts and Collateral Account Funds.
|
4. |
Transfers in Response to Disposition Instructions. Notwithstanding the provisions of the “Secured Party Control” section of this Agreement, unless
Bank separately agrees in writing to
|
the contrary, Bank will have no obligation to disburse funds in response to Disposition Instructions other than by the appropriate disbursement method expressly set forth in this Section 4. If
at the time this Agreement is originally executed, Secured Party has fully completed wire transfer instructions for a transfer destination account (“Destination Account”) on the initial signature page of this Agreement, including the
Destination Account number and the name and ABA number of the financial institution at which the Destination Account is maintained, then Bank agrees, on each day on which Bank is open to conduct its regular banking business, other than a
Saturday, Sunday or public holiday (each a “Business Day”) during the term of this Agreement, to transfer to the Destination Account by standing wire (or alternative funds transfer method acceptable to Bank in its sole discretion)
the full amount of the collected and available balance in the Collateral Accounts at the beginning of such Business Day. Secured Party may at any time instruct Bank to discontinue transferring funds to the original Destination Account and
begin transferring funds to a new Destination Account, in accordance with the notice provisions of this Agreement. Bank will comply with such notice within a reasonable period of time not to exceed two (2) Business Days. Except as
otherwise expressly set forth in this Section 4, Bank will have no obligation to disburse funds in response to Disposition Instructions other than by cashier’s check payable to Secured Party. Any disposition of funds which Bank makes under
this Section 4 or otherwise in response to Disposition Instructions is subject to Bank’s standard policies, procedures and documentation governing the type of disposition made; provided, however, that in no circumstances will any such
disposition require Company’s consent. To the extent any Collateral Account is a certificate of deposit or time deposit, Bank will be entitled to deduct any applicable early withdrawal penalty prior to disbursing funds from such account in
response to Disposition Instructions. To the extent Secured Party requests that funds be transferred from any Collateral Account in a currency different from the currency denomination of the Collateral Account, the funds transfer will be
made after currency conversion at Bank’s then current buying rate for exchange applicable to the new currency.
|
5. |
Lockboxes. To the extent items deposited to a Collateral Account have been received in one or more post office lockboxes maintained for Company by Bank
(each a “Lockbox”) and processed by Bank for deposit, Company acknowledges that Company has granted Secured Party a security interest in all such items (the “Remittances”). During the term of this Agreement, neither Company
nor Servicer will have any right or ability to instruct Bank regarding the receipt, processing or deposit of Remittances, and Secured Party alone will have the right and ability to so instruct Bank. Company, Servicer and Secured Party
acknowledge and agree that Bank’s operation of each Lockbox, and the receipt, retrieval, processing and deposit of Remittances, will at all times be governed by Bank’s Master Agreement for Treasury Management Services or other applicable
treasury management services agreement, and by Bank’s applicable standard lockbox Service Description.
|
6. |
Balance Reports and Bank Statements. Bank agrees, at the request of Secured Party on any Business Day, to make available to Secured Party a report (“Balance
Report”) showing the opening available balance in the Collateral Accounts as of the beginning of such Business Day, by a transmission method determined by Bank, in Bank’s sole discretion. Company expressly consents to this
transmission of information. Bank will, on receiving a written request from Secured Party, send to Secured Party by United States mail, at the address indicated for Secured Party after its signature to this Agreement, duplicate copies of
all periodic statements on the Collateral Accounts which are subsequently sent to Company.
|
7. |
Returned Items. Secured Party, Servicer and Company understand and agree that the face amount (“Returned Item Amount”) of each
Returned Item will be paid by Bank debiting the Collateral Account to which the Returned Item was originally credited, without prior notice to Secured Party, Company, or Servicer. As used in this Agreement, the term “Returned Item”
|
means (i) any item deposited to a Collateral Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to timeliness of the return or the
occurrence or timeliness of any drawee’s notice of non-payment; (ii) any item subject to a claim against Bank of breach of transfer or presentment warranty under the Uniform Commercial Code (as adopted in the applicable state) or Regulation
CC (12 C.F.R. §229), as in effect from time to time; (iii) any automated clearing house (“ACH”) entry credited to a Collateral Account and returned unpaid or subject to an adjustment entry under applicable clearing house rules,
whether for insufficient funds or for any other reason, and without regard to timeliness of the return or adjustment; (iv) any credit to a Collateral Account from a merchant card transaction, against which a contractual demand for
chargeback has been made; and (v) any credit to a Collateral Account made in error. Company and Servicer agree to pay all Returned Item Amounts immediately on demand, without setoff or counterclaim, to the extent there are not sufficient
funds in the applicable Collateral Account to cover the Returned Item Amounts on the day Bank attempts to debit them from the Collateral Account. Secured Party agrees to pay all Returned Item Amounts within fifteen (15) calendar days after
demand, without setoff or counterclaim, to the extent that (i) the Returned Item Amounts are not paid in full by Company or Servicer within five (5) calendar days after demand on Company and Servicer by Bank, and (ii) Secured Party has
received proceeds from the corresponding Returned Items under this Agreement.
|
8. |
[Reserved.]
|
9. |
Bank Fees. Company and Servicer agree to pay all Bank’s fees and charges for the maintenance and administration of the Collateral Accounts and for the
treasury management and other account services provided with respect to the Collateral Accounts and any Lockboxes (collectively “Bank Fees”), including, but not limited to, the fees for (a) Balance Reports provided on the Collateral
Accounts, (b) funds transfer services received with respect to the Collateral Accounts, (c) lockbox processing services, (d) Returned Items, (e) funds advanced to cover overdrafts in the Collateral Accounts (but without Bank being in any
way obligated to make any such advances), and (f) duplicate bank statements. The Bank Fees will be paid by Bank debiting Servicer’s deposit account No. 4122039233 with Bank (the “Servicing Account”) on the Business Day that the Bank
Fees are due, without notice to Secured Party, Servicer or Company. To the extent there are not sufficient funds in the Servicing Account to pay in full all Bank Fees, the Bank Fees will be paid by Bank debiting one or more of the
Collateral Accounts on the Business Day that the Bank Fees are due, without notice to Secured Party, Servicer or Company. If there are not sufficient funds in the Servicing Account or the Collateral Accounts to cover fully the Bank Fees on
the Business Day Bank attempts to debit such Bank Fees from the Servicing Account or the Collateral Accounts, such shortfall or the amount of such Bank Fees will be paid by Company or Servicer to Bank, without setoff or counterclaim, within
five (5) calendar days after demand from Bank. Secured Party agrees to pay any Bank Fees within fifteen (15) calendar days after demand, without setoff or counterclaim, to the extent such Bank Fees are not paid in full by Company or
Servicer within five (5) calendar days after demand on Company and Servicer by Bank.
|
10. |
Account Documentation. Except as specifically provided in this Agreement, Secured Party and Company agree that the Collateral Accounts will be subject
to, and Bank’s operation of the Collateral Accounts will be in accordance with, the terms of Bank’s applicable deposit account agreement governing the Collateral Accounts (“Account Agreement”). All documentation referenced in this
Agreement as governing any Collateral Account or the processing of any Remittances is hereinafter collectively referred to as the “Account Documentation”.
|
11. |
Partial Subordination of Bank’s Rights. Bank hereby subordinates to the security interest of Secured Party in the Collateral Accounts (i) any security
interest which Bank may have or acquire in the Collateral Accounts, and (ii) any right which Bank may have or acquire to set off or otherwise apply any Collateral Account Funds against the payment of any indebtedness from
|
time to time owing to Bank from Company, except for debits to the Collateral Accounts permitted under this Agreement for the payment of Returned Item Amounts or Bank Fees.
|
12. |
Bankruptcy Notice; Effect of Filing. If Bank at any time receives notice of the commencement of a bankruptcy case or other insolvency or liquidation
proceeding by or against Company or Servicer, Bank will continue to comply with its obligations under this Agreement, except to the extent that any action required of Bank under this Agreement is prohibited under applicable bankruptcy laws
or regulations or is stayed pursuant to the automatic stay imposed under the United States Bankruptcy Code or by order of any court or agency. With respect to any obligation of Secured Party hereunder which requires prior demand on Company
or Servicer, the commencement of a bankruptcy case or other insolvency or liquidation proceeding by or against Company or Servicer will automatically eliminate the necessity of such demand on Company and Servicer by Bank, and will
immediately entitle Bank to make demand on Secured Party with the same effect as if demand had been made on Company or Servicer and the time for Company’s or Servicer’s performance had expired.
|
13. |
Legal Process, Legal Notices and Court Orders. Bank will comply with any legal process, legal notice or court order it receives in relation to a
Collateral Account if Bank determines in its sole discretion that the legal process, legal notice or court order is legally binding on it.
|
14. |
Indemnification. Company and Servicer will indemnify, defend and hold harmless Bank, its officers, directors, employees, and agents (collectively, the “Indemnified
Parties”) from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses and Liabilities”) Bank may suffer or incur as a result of or
in connection with (a) Bank complying with any binding legal process, legal notice or court order referred to in the immediately preceding section of this Agreement, (b) Bank following any instruction or request of Secured Party, including
but not limited to any Disposition Instructions, or (c) Bank complying with its obligations under this Agreement, except to the extent such Losses and Liabilities are caused by Bank’s gross negligence or willful misconduct. To the extent
such obligations of indemnity are not satisfied by Company or Servicer within five (5) days after demand on Company and Servicer by Bank, Secured Party will indemnify, defend and hold harmless Bank and the other Indemnified Parties against
any and all Losses and Liabilities Bank may suffer or incur as a result of or in connection with Bank following any instruction or request of Secured Party, except to the extent such Losses and Liabilities are caused by Bank’s gross
negligence or willful misconduct.
|
15. |
Bank’s Responsibility. This Agreement does not create any obligations of Bank, and Bank makes no express or implied representations or warranties with
respect to its obligations under this Agreement, except for those expressly set forth herein. In particular, Bank need not investigate whether Secured Party is entitled under Secured Party’s agreements with Company or Servicer to give
Disposition Instructions. Bank may rely on any and all notices and communications it believes are given by the appropriate party. Bank will not be liable to Company, Servicer, Secured Party or any other party for any Losses and
Liabilities caused by (i) circumstances beyond Bank’s reasonable control (including, without limitation, computer malfunctions, interruptions of communication facilities, labor difficulties, acts of God, wars, or terrorist attacks) or (ii)
any other circumstances, except to the extent such Losses and Liabilities are directly caused by Bank’s gross negligence or willful misconduct. In no event will Bank be liable for any indirect,
special, consequential or punitive damages, whether or not the likelihood of such damages was known to Bank, and regardless of the form of the claim or action, or the legal theory on which it is based. Any action against Bank by Company,
Servicer or Secured Party under or related to this Agreement must be brought within twelve (12) months after the cause of action accrues.
|
16. |
Termination. This Agreement may be terminated by Secured Party or Bank at any time by either of them giving thirty (30) calendar days prior written
notice of such termination to the other parties to this Agreement at their contact addresses specified after their signatures to this Agreement; provided, however, that this Agreement may be terminated immediately upon written notice (i)
from Bank to Company, Servicer and Secured Party should Company, Servicer or Secured Party fail to make any payment when due to Bank from Company, Servicer or Secured Party under the terms of this Agreement, or (ii) from Secured Party to
Bank on termination or release of Secured Party’s security interest in the Collateral Accounts; provided that any notice from Secured Party under clause (ii) of this sentence must contain Secured Party’s acknowledgement of the termination
or release of its security interest in the Collateral Accounts. Company’s, Servicer’s and Secured Party’s respective obligations to report errors in funds transfers and bank statements and to pay Returned Item Amounts and Bank Fees, as
well as the indemnifications made, and the limitations on the liability of Bank accepted, by Company, Servicer and Secured Party under this Agreement will continue after the termination of this Agreement with respect to all the
circumstances to which they are applicable, existing or occurring before such termination, and any liability of any party to this Agreement, as determined under the provisions of this Agreement, with respect to acts or omissions of such
party prior to such termination will also survive such termination. Upon any termination of this Agreement, (i) Bank will transfer all collected and available balances in the Collateral Accounts on the date of such termination in
accordance with Secured Party’s written instructions, and (ii) Bank will close any Lockbox and forward any mail received at the Lockbox unopened to such address as is communicated to Bank by Secured Party under the notice provisions of this
Agreement for a period of three (3) months after the effective termination date, unless otherwise arranged between Secured Party and Bank, provided that Bank’s fees with respect to such disposition must be prepaid directly to Bank at the
time of termination by cashier’s check payable to Bank or other payment method acceptable to Bank in its sole discretion.
|
17. |
Modifications, Amendments, and Waivers. This Agreement may not be modified or amended, or any provision thereof waived, except in a writing signed by
all the parties to this Agreement.
|
18. |
Notices. All notices from one party to another must be in writing, must be delivered to Company, Servicer, Secured Party and/or Bank at their contact
addresses specified after their signatures to this Agreement, or any other address of any party communicated to the other parties in writing, and will be effective on receipt. Any notice sent by a party to this Agreement to another party
must also be sent to all other parties to this Agreement. Bank is authorized by Company, Servicer and Secured Party to act on any instructions or notices received by Bank if (a) such instructions or notices purport to be made in the name
of Secured Party, (b) Bank reasonably believes that they are so made, and (c) they do not conflict with the terms of this Agreement as such terms may be amended from time to time, unless such conflicting instructions or notices are
supported by a court order.
|
19. |
Successors and Assigns. Neither Company, Servicer or Secured Party may assign or transfer its rights or obligations under this Agreement to any person
or entity without the prior written consent of Bank, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, Secured Party may transfer its rights and duties under this Agreement to (i) a transferee to
which, by contract or operation of law, Secured Party transfers substantially all of its rights and duties under the financing or other arrangements between Secured Party and Company, or (ii) if Secured Party is acting as a representative
in whose favor a security interest is created or provided for, a transferee that is a successor representative; provided that as between Bank and Secured Party, Secured Party will not be released from its obligations under this Agreement
unless and until Bank receives any such transferee’s binding
|
written agreement to assume all of Secured Party’s obligations hereunder. Bank may not assign or transfer its rights or obligations under this Agreement to any person or entity without the
prior written consent of Secured Party, which consent will not be unreasonably withheld or delayed; provided, however, that no such consent will be required if such assignment or transfer takes place as part of a merger, acquisition or
corporate reorganization affecting Bank.
|
20. |
Governing Law. This Agreement will be governed by and be construed in accordance with the laws of the state of New York,
without regard to conflict of laws principles. The state of New York will also be deemed to be Bank’s jurisdiction, for purposes of Article 9 of the Uniform Commercial Code as it applies to this Agreement.
|
21. |
Severability. To the extent that the terms of this Agreement are inconsistent with, or prohibited or unenforceable under, any applicable law or
regulation, they will be deemed ineffective only to the extent of such prohibition or unenforceability, and will be deemed modified and applied in a manner consistent with such law or regulation. Any provision of this Agreement which is
deemed unenforceable or invalid in any jurisdiction will not affect the enforceability or validity of the remaining provisions of this Agreement or the same provision in any other jurisdiction.
|
22. |
Counterparts. This Agreement and any notices delivered under this Agreement may be executed by means of (a) an electronic signature that complies with
the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a
faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual
signature. Bank reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Agreement or on any notice delivered to Bank under this Agreement. This Agreement and any notices
delivered under this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a
signature page of this Agreement and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of the Agreement or notice.
|
23. |
Entire Agreement. This Agreement, together with the Account Documentation, contains the entire and only agreement among all the parties to this
Agreement and between Bank and Company and Servicer, on the one hand, and Bank and Secured Party, on the other hand, with respect to (a) the interest of Secured Party in the Collateral Accounts and Collateral Account Funds, and (b) Bank’s
obligations to Secured Party in connection with the Collateral Accounts and Collateral Account Funds. The liability of Company and Servicer under this Agreement is joint and several.
|
24. |
Limitation of Liability of Wilmington Trust Company. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company not individually or personally but solely as trustee of Company, in the exercise of the powers and authority conferred and vested in it under the Amended and Restated Trust Agreement of Exeter
Automobile Receivables Trust 2021-2 dated as of April 30, 2021, between EFCAR, LLC, as seller, and Wilmington Trust Company, as owner trustee, (b) each of the representations, undertakings and agreements herein made on the part of Company
is made and intended not as personal representations, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only Company, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein,
|
all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (d) Wilmington Trust Company has made no
investigation as to the accuracy or completeness of any representations or warranties made by Company in this Agreement, and (e) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness
or expenses of Company or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Company under this agreement or any other related documents.
|
Date: ___________________, 2021
|
|
Collateral Account Numbers:
|
4942550658
|
Destination Account Number:
|
0001038377
|
Bank of Destination Account:
ABA #
Account name:
Reference Data:
Frequency (Daily or Weekly):
Balance (Intraday or Start of Day):
|
Wells Fargo Bank, N.A.
121000248
Wells Fargo Bank, N.A.
Acct #92314801 EART 2021-2 Collection Acct
Attn: Nick Nelson 612-667-3028
Daily
Start of Day
|
EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
By: Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee
|
EXETER FINANCE LLC, as Servicer
|
|
By:
|
By:
|
|
Name: Erwin Soriano
|
Name: Ben Miller
|
|
Title: Vice President
|
Title: Executive Vice President and Treasurer
|
Address for Notices:
|
Address for Notices:
|
|
Exeter Automobile Receivables Trust 2021-2
|
Exeter Finance LLC
|
|
2101 W. John Carpenter Freeway
|
2101 W. John Carpenter Freeway
|
|
Irving, Texas 75063
|
Irving, Texas 75063
|
|
Attn: Brett Bradley
|
Attn: Brett Bradley
|
|
Fax: 214.572.6798
|
Fax: 214.572.6798
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Bank
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee, as Secured Party
|
|
By:
|
By:
|
|
Name: Matt Bolding
|
Name: Marianna Stershic
|
|
Title: Senior Vice President
|
Title: Vice President
|
Address for Notices:
|
Address for Notices:
|
|
Wells Fargo Bank, National Association
|
Wells Fargo Bank, National Association
|
|
Mail Address Code: D1129-072
|
Mail Address Code: N9300-061
|
|
301 South Tryon Street, 7th Floor
|
600 S 4th St. 6th Floor
|
|
Charlotte, North Carolina 28282-1915
|
Minneapolis, MN 55415
|
|
Attn: DACA Team
|
Attn: Marianna Stershic
|
|
Fax: 844.879.6857
|
Fax: 612.667.3464
|
|
with copy to:
|
||
Wells Fargo Bank, National Association
|
||
Mail Address Code: MAC T9110-031
|
||
4975 Preston Park Blvd, Floor 03, 300
|
||
Plano, Texas 75093
|
||
Attn: Matt Bolding
|
||
Fax: 972.867.5674
|
Exhibit 10.5
ARTICLE I DEFINITIONS
|
1
|
|
Section 1.1.
|
Definitions
|
1
|
Section 1.2.
|
Additional Definitions
|
1
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ARTICLE II ENGAGEMENT OF ASSET REPRESENTATIONS REVIEWER
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2
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Section 2.1.
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Engagement; Acceptance
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2
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Section 2.2.
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Confirmation of Status
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2
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ARTICLE III ASSET REPRESENTATIONS REVIEW PROCESS
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3
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Section 3.1.
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Asset Review Notices
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3
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Section 3.2.
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Identification of Asset Review Receivables
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3
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Section 3.3.
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Asset Review Materials.
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3
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Section 3.4.
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Performance of Asset Reviews.
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4
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Section 3.5.
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Asset Review Reports
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4
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Section 3.6.
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Asset Review Representatives.
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5
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Section 3.7.
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Dispute Resolution
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5
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Section 3.8.
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Limitations on Asset Review Obligations.
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5
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ARTICLE IV ASSET REPRESENTATIONS REVIEWER
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6
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Section 4.1.
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Representations and Warranties.
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6
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Section 4.2.
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Covenants
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7
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Section 4.3.
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Fees and Expenses.
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8
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Section 4.4.
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Limitation on Liability
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9
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Section 4.5.
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Indemnification.
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9
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Section 4.6.
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Right to Audit
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11
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Section 4.7.
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Delegation of Obligations
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11
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Section 4.8.
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Confidential Information.
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11
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Section 4.9.
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Security and Safeguarding Information.
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13
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ARTICLE V RESIGNATION AND REMOVAL
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15
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Section 5.1.
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Resignation and Removal of Asset Representations Reviewer.
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15
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Section 5.2.
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Engagement of Successor.
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16
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Section 5.3.
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Merger, Consolidation or Succession
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16
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ARTICLE VI OTHER AGREEMENTS
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17
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Section 6.1.
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Independence of Asset Representations Reviewer
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17
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Section 6.2.
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No Petition
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17
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Section 6.3.
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Limitation of Liability of Owner Trustee
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17
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Section 6.4.
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Termination of Agreement
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17
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ARTICLE VII MISCELLANEOUS PROVISIONS
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18
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Section 7.1.
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Amendments.
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18
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Section 7.2.
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Assignment; Benefit of Agreement; Third Party Beneficiaries.
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19
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Section 7.3.
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Notices.
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19
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Section 7.4.
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GOVERNING LAW
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19
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Section 7.5.
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Submission to Jurisdiction
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20
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Section 7.6.
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No Waiver; Remedies
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20
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Section 7.7.
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Severability
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20
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Section 7.8.
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Headings
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20
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Section 7.9.
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Counterparts
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20
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Schedule A |
Representations and Warranties and Procedures to be Performed
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EXETER AUTOMOBILE RECEIVABLES TRUST 2021-2
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By: Wilmington
Trust Company, not in its individual capacity but solely as Owner Trustee on behalf of the Issuer
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By:
Name: Title: |
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EXETER FINANCE LLC,
Servicer |
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By:
Name:
Title: |
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CLAYTON FIXED INCOME SERVICES LLC,
Asset Representations Reviewer |
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By:
Name: Title: |
Representation
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Documents
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Procedures to be Performed
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1. Each Receivable (A) was originated by a Dealer and purchased by Exeter from such Dealer under an existing Dealer Agreement or pursuant to a Dealer Assignment with Exeter and was validly assigned by
such Dealer to Exeter pursuant to a Dealer Assignment, (B) was originated by such Dealer for the retail sale of a Financed Vehicle in the ordinary course of such Dealer’s business, was originated in accordance with Exeter’s credit policies and
was fully and properly executed by the parties thereto, (C) contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for realization against the collateral security and (D) is a
Receivable which provides for level monthly payments (provided that the period in the first Collection Period and the payment in the final Collection Period of the Receivable may be minimally different from the normal period and level payment)
which, if made when due, shall fully amortize the Amount Financed over the original term.
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Receivable File
Exeter’s Policies
Data tape
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A. Origination Entity of Each Automobile Loan Contract
i. Verify that the Contract was originated by a Dealer and purchased by Exeter.
ii. Verify the Contract contains a valid Dealer Agreement between the Dealer and Exeter.
iii. Verify the Contract was validly assigned by such Dealer to Exeter.
B. Automobile Loan Contract originated for Retail Sale of a Financed Vehicle
i. Confirm that the Contract is a retail installment sale contract or promissory note relating to the sale of a motor vehicle.
ii. Review the Contract and verify it was originated in accordance with Exeter's credit policies.
iii. Observe the Contract and confirm it was executed by the Buyer, Co-Buyer (if applicable) and the Dealer.
C. Contract contains customary and enforceable provisions
i. Review the Contract and verify it contains clauses to render the rights and remedies of the holder adequate for realization against the collateral security.
D. Original Automobile Loan Terms
i. Review the Contract and Servicer’s system to ensure that the level monthly payments, if made when due, will fully amortize the amount financed over the original term.
E. If steps A through D are confirmed, then Test Passes
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Representation | Documents |
Procedures to be Performed
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2. Each Receivable complied at the time it was originated or made in all material respects with all requirements of applicable federal, state and local laws, and regulations thereunder.
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Receivable File
Retail Sale Contract
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A. Confirm the following sections are present on the Contract and filled out:
i. APR
ii. Finance Charge
iii. Amount Financed
iv. Total of Payments
v. Total Sale Price
B. Confirm a Payment Schedule is present and complete
C. Confirm there is an itemization of the Amount Financed
D. Confirm the following disclosure are included in the contract
i. Prepayment disclosure
ii. Late Payment Policy including the late charge amount or calculation
iii. Insurance Requirements
E. If steps A through D are confirmed, then Test Passes
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3. Each Receivable was originated in the United States.
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Receivable File
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Review the Contract and confirm that the Receivable was originated in the United States.
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4. Each Receivable represents the genuine, legal, valid and binding payment obligation of the Obligor thereon, enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights generally and by equitable limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B) as such Receivable may be modified by the application after the Cutoff Date of the Servicemembers Civil Relief Act, as amended.
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Retail Sale Contract
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Observe the Contract and confirm it was signed by the Obligor.
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5. No Obligor is the United States of America or any State or any agency, department, subdivision or instrumentality thereof.
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Receivable File
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Review the Contract and confirm that the Obligor is not reported as the United States of America or any State, agency, department or subdivision of the government.
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6. At the Cutoff Date no Obligor had been identified on the records of Exeter as being the subject of a current bankruptcy proceeding.
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Data tape
Receivable File
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Review the Data tape and to confirm that no Obligor was involved in active bankruptcy as of the Cutoff Date.
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Representation | Documents |
Procedures to be Performed
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7. No Receivable has been satisfied, subordinated or rescinded, and the Financed Vehicle securing each such Receivable has not been released from the lien of the related Receivable in whole or in
part. No terms of any Receivable have been waived, altered or modified in any respect since its origination, except by instruments or documents identified in the Receivable File or the Servicer’s electronic records.
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Receivable File
Assignment
Data Tape
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A) Confirm the automobile loan contract has not been satisfied, subordinated or rescinded
i) Review the Contract and confirm there is no indication it was subordinated or rescinded.
ii) Confirm there is no indication the Contract was satisfied prior to the Cutoff Date.
B) Confirm there is no evidence the Financed Vehicle has been released from the lien in whole or in part as of the Cutoff Date
C) Confirm there is no indication the terms of the Contract have been waived, altered or modified since origination, except by instruments or documents identified in the Receivable File or the
Servicer’s electronic records.
D) If steps (A), (B) and (C) are confirmed, then Test Passes
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8. No Receivable was originated in, or is subject to the laws of, any jurisdiction the laws of which would make unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement.
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Retail Sale Contract
Receivable File Servicing System |
i) Confirm the Contract was completed on a contract form included in the Approved Contract Form List
ii) If step i is confirmed, then Test Passes |
Representation | Documents |
Procedures to be Performed
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9. Each Receivable created or shall create a valid, binding and enforceable first priority security interest in favor of Exeter in the Financed Vehicle. The Lien Certificate for each Financed Vehicle
shows, or if a new or replacement Lien Certificate is being applied for with respect to such Financed Vehicle the Lien Certificate will be received within 180 days of the Closing Date and will show, Exeter named as the original secured party
under each Receivable as the holder of a first priority security interest in such Financed Vehicle. With respect to each Receivable for which the Lien Certificate has not yet been returned from the Registrar of Titles, Exeter has applied for
or received written evidence from the related Dealer that such Lien Certificate showing Exeter or the Holding Trust, as applicable, as first lienholder has been applied for.
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Receivable File
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A) Confirm first priority for Exeter
i) Verify that the title application has an existing first priority security interest in favor of Exeter.
ii) Verify the lien certificate shows that Exeter has commenced procedures that will result in such lien certificate which will show Exeter as the original secured party under the
Receivable.
B) Confirm lien certificate is received within the allowable timeframe after the closing date
i) Verify Exeter named as the original secured party under each automobile loan contract as the holder of a first priority security interest in such financed vehicle.
ii) If the lien certificate has not yet been returned, verify Exeter has applied for or received written evidence from the related dealer that such lien certificate showing Exeter
or the Holding Trust, as applicable, as first lienholder has been applied for and Exeter’s security interest (assigned by Exeter to the Depositor pursuant to the Purchase Agreement) and EFIT’s security interest (assigned by EFIT to the
Depositor pursuant to the Sale Agreement) have been validly assigned by the Depositor to the Issuer pursuant to the Sale and Servicing Agreement.
iii) As of the Cutoff Date, verify that no other Liens or Claims exist affecting the Financed Vehicle that are or may be prior or equal to the Liens of the Receivable.
C) If steps (A) and (B) are confirmed, then Test Passes
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Representation | Documents |
Procedures to be Performed
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10. The records of the Servicer do not reflect any facts which would give rise to any right of rescission, setoff, counterclaim or defense, including the defense of usury, with respect to any
Receivable, or the same being asserted or threatened with respect to such Receivable.
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Receivable File
Dealer Agreement
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A) Confirm the Receivable Files and documents do NOT have any indication that it is subject to rescission, setoff, counterclaim, or defense that could cause the Receivable to become invalid.
i) Confirm there is no indication of non-routine litigation or attorney involvement in the Receivable File or servicing system.
B) If step A is confirmed, then Test Passes
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11. The records of the Servicer did not disclose that any default, breach, violation or event permitting acceleration under the terms of any Receivable existed as of the Cutoff Date (other than payment
delinquencies of not more than 30 days) or that any condition exists or event has occurred and is continuing that with notice, the lapse of time or both would constitute a default, breach, violation or event permitting acceleration under the
terms of any Receivable (other than payment delinquencies of not more than 30 days), and the Seller has not waived any of the foregoing.
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Receivable File
Date Tape
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A) Confirm that no default status existed or was pending on the Contract as of the Cutoff Date.
i) Verify the loan did not have a default, breach, violation or event permitting acceleration under the terms of the Contract.
ii) Verify that no conditions existed that would permit acceleration of notice that was provided.
iii) If a condition did exist as specified in part ii, verify that the Receivable had a waiver preventing acceleration from one of the aforementioned reasons.
B) If step A is confirmed, then Test Passes
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12. At the time of an origination of a Receivable by a Dealer, each Financed Vehicle is required to be covered by a comprehensive and collision insurance policy insuring against loss and damage due to
fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage. No Financed Vehicle is insured under a policy of Force-Placed Insurance on the Cutoff Date.
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Receivable File
Evidence of Insurance in the form of:
i. Declaration/Binder Page;
ii. Insurance Card; or
iii. Agreement to Provide Insurance with Direct Verification is Active
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A) Insurance Coverage
i. Verify at the origination of the automobile loan contract each Financed Vehicle is covered by a comprehensive and collision insurance policy insuring against loss and damage
due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage.
ii. Verify that no Financed Vehicle is insured under a policy of force-placed insurance on the Cutoff Date.
B) If parts (A)(i) and (ii) are confirmed, then Test Passes
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Representation | Documents |
Procedures to be Performed
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13(A). Each Receivable had a remaining maturity, as of the Cutoff Date, of not less than 3 months and not more than 72 months.
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Data Tape
Receivable File
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Review the Data Tape and confirm that the remaining maturity date is within the allowable timeframe from the Cutoff Date.
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13(B). Each Receivable had an original maturity, as of the Cutoff Date, of not less than 36 months and not more than 72 months.
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Data Tape
Receivable File
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Review the Data Tape and confirm that the original maturity date is within the allowable timeframe from the Cutoff Date.
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13(C). Each Receivable had a remaining Principal Balance, as of the Cutoff Date, of at least $450 and not more than $60,000.
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Data Tape
Receivable File
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Review the Data Tape and confirm that the remaining principal balance is within the allowable balance.
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13(D). No Receivable was more than 30 days past due as of the Cutoff Date.
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Data Tape
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Review the Data Tape and confirm that the next payment due date was not more than 30 days from the Cutoff Date.
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13(E). Each Receivable is denominated in, and each Contract provides for payment in, United States dollars.
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Retail Sale Contract
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Review the Contract and confirm that the payment schedule details are reported in US dollars.
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13(F). Each Receivable had an APR of at least 6.00%.
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Retail Sale Contract
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i) Confirm the Contract has an APR of at least 6.00%
ii) If step i is confirmed, then Test Passes |
14. Each Contract provides for the calculation of interest payable thereunder under the “simple interest” method.
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Retail Sale Contract
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Review the Contract and confirm that it is a simple interest Contract.
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15. Each Receivable allows for prepayment and partial prepayments without penalty and requires that a prepayment by the related Obligor will fully pay the principal balance and accrued interest through
the date of prepayment based on the Receivable’s Annual Percentage Rate.
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Retail Sale Contract
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A) Confirm that no prepayment or partial prepayment penalty exists in the Contract.
B) Confirm the Contract contains language requiring the Obligor to pay the entire Principal Balance and all accrued but unpaid interest through the date of repayment in the event the Receivable is
prepaid.
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16. Each Receivable constitutes “tangible chattel paper” or “electronic chattel paper” within the meaning of the UCC as in effect in the States of New York and Delaware.
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Retail Sale Contract
Title Documents |
i) Confirm the Contract form number is on the Approved Contract Form List
ii) Confirm the Amount Financed as reported on the Contract is greater than zero iii) Confirm there is documentation of a lien against the Financed Vehicle iv) If steps (i) through (iii) are confirmed, then Test Passes |
Representation | Documents |
Procedures to be Performed
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17. There is only one original executed copy (or with respect to “electronic chattel paper”, one authoritative copy) of each Contract. With respect to Contracts that are “electronic chattel paper”,
each authoritative copy (a) is unique, identifiable and unalterable (other than with the participation of the Custodian in the case of an addition or amendment of an identified assignee and other than a revision that is readily identifiable as
an authorized or unauthorized revision and (b) has been communicated to and is maintained by or on behalf of the Custodian, solely for the benefit of the Indenture Trustee.
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Retail Sale Contract
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i) Confirm there is a final version of the Contract available for review
ii) Confirm the Contract was signed by the buyer(s) and the Dealer iii) If steps (i) and (ii) are confirmed, then Test Passes |
18. Immediately prior to the conveyance of the Receivables, Exeter or the Depositor, as applicable, was the sole owner of such Receivable and had good title thereto, free of any Liens not permitted by
the Basic Documents.
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Title Documents
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i) Confirm the title documents show Exeter or another Approved Party as the first lienholder
ii) Review the servicing system and confirm the Pool ID in the system matches the Pool ID for the transaction related to the deal iii) If steps (i) and (ii) are confirmed, then Test Passes |
EXETER FINANCE LLC, as Custodian
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By:
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Name:
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Title:
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee
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By:
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Name:
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Title:
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EXETER FINANCE LLC, as Servicer
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By:
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Name:
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Title:
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EXETER FINANCE LLC,
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as Custodian
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By:
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Name:
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Title:
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EXETER FINANCE LLC,
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as Servicer
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By:
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Name:
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Title:
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