Exhibit 10.2



 




Exhibit
10.2


SALE AND SERVICING AGREEMENT




by and between




DRIVE AUTO RECEIVABLES TRUST 20[  ]-[  ],

as Issuer




DRIVE AUTO RECEIVABLES LLC,

as Seller




DRIVE CONSUMER USA INC.,

as Servicer




[                     ],

as Backup Servicer




and




[                     ]

as Indenture Trustee




Dated as of [            ], 20[   ]




 









 






TABLE OF CONTENTS



	 	 	 	 	 
	ARTICLE I DEFINITIONS AND USAGE
	 	 	1	 
	SECTION 1.1 Definitions
	 	 	1	 
	SECTION 1.2 Other Interpretive Provisions
	 	 	1	 
	ARTICLE II CONVEYANCE OF TRANSFERRED ASSETS
	 	 	1	 
	SECTION 2.1 Conveyance of Transferred Assets
	 	 	1	 
	SECTION 2.2 Representations and Warranties of the Seller as to each Contract
	 	 	3	 
	SECTION 2.3 Repurchase upon Breach
	 	 	4	 
	SECTION 2.4 Custody of Contract Files
	 	 	4	 
	SECTION 2.5 Funding Events
	 	 	5	 
	ARTICLE III ADMINISTRATION AND SERVICING OF CONTRACTS AND TRUST PROPERTY
	 	 	6	 
	SECTION 3.1 Duties of Servicer
	 	 	6	 
	SECTION 3.2 Collection and Application of Contract Payments
	 	 	7	 
	SECTION 3.3 Realization Upon Contracts
	 	 	7	 
	SECTION 3.4 Maintenance of Security Interests in Financed Vehicles
	 	 	7	 
	SECTION 3.5 Covenants of Servicer
	 	 	8	 
	SECTION 3.6 Purchase of Contracts Upon Breach
	 	 	8	 
	SECTION 3.7 Servicing Fee
	 	 	9	 
	SECTION 3.8 Servicer’s Certificate
	 	 	9	 
	SECTION 3.9 Annual Officer’s Certificate; Notice of Servicer Termination Event
	 	 	11	 
	SECTION 3.10 Annual Servicing Report of Independent Public Accountants
	 	 	11	 
	SECTION 3.11 Servicer Expenses
	 	 	11	 
	SECTION 3.12 Fidelity Bond
	 	 	11	 
	SECTION 3.13 1934 Act Filings
	 	 	11	 
	ARTICLE IV DISTRIBUTIONS; ACCOUNTS STATEMENTS TO THE RESIDUAL INTERESTHOLDERS AND THE NOTEHOLDERS
	 	 	12	 
	SECTION 4.1 Establishment of Accounts
	 	 	12	 
	SECTION 4.2 Remittances
	 	 	14	 
	SECTION 4.3 Additional Deposits and Payments
	 	 	14	 
	SECTION 4.4 Distributions
	 	 	15	 
	SECTION 4.5 [Reserved]
	 	 	16	 
	SECTION 4.6 Statements to Noteholders and Residual Interestholders
	 	 	17	 
	SECTION 4.7 No Duty to Confirm
	 	 	18	 






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TABLE
OF CONTENTS
(continued)



	 	 	 	 	 
	SECTION 4.8 [Claims Under a Reserve Account Letter of Credit.]
	 	 	18	 
	ARTICLE V THE SELLER
	 	 	19	 
	SECTION 5.1 Representations of Seller
	 	 	19	 
	SECTION 5.2 Liability of the Seller; Indemnities
	 	 	20	 
	SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations of, Seller
	 	 	21	 
	SECTION 5.4 Limitation on Liability of Seller and Others
	 	 	21	 
	SECTION 5.5 The Seller May Own Notes
	 	 	21	 
	SECTION 5.6 Sarbanes-Oxley Act Requirements
	 	 	22	 
	SECTION 5.7 Compliance with Organizational Documents
	 	 	22	 
	 
	ARTICLE VI THE SERVICER
	 	 	22	 
	SECTION 6.1 Representations of Servicer
	 	 	22	 
	SECTION 6.2 Indemnities of Servicer
	 	 	23	 
	SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of, Servicer

	 	 	24	 
	
SECTION 6.4 Limitation on Liability of Servicer and Others
	 	 	25	 
	SECTION 6.5 Delegation of Duties
	 	 	25	 
	SECTION 6.6 Drive Consumer Not to Resign as Servicer
	 	 	25	 
	SECTION 6.7 The Backup Servicer
	 	 	25	 
	SECTION 6.8 Servicer May Own Notes
	 	 	26	 
	 
	ARTICLE VII TERMINATION OF SERVICER
	 	 	26	 
	SECTION 7.1 Termination of Servicer
	 	 	26	 
	SECTION 7.2 Notification to Noteholders and Residual Interestholders
	 	 	28	 
	 
	ARTICLE VIII OPTIONAL PURCHASE
	 	 	28	 
	SECTION 8.1 Optional Purchase of Trust Estate
	 	 	28	 
	ARTICLE IX THE POLICY
	 	 	28	 
	SECTION 9.1 Subrogation
	 	 	28	 
	SECTION 9.2 Preference Claims; Direction of Proceedings
	 	 	29	 
	SECTION 9.3 Surrender of Policy
	 	 	29	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	29	 
	SECTION 10.1 Amendment
	 	 	29	 
	SECTION 10.2 Protection of Title to Trust
	 	 	30	 
	SECTION 10.3 Other Liens or Interests
	 	 	32	 






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TABLE
OF CONTENTS
(continued)




	 	 	 	 	 
	SECTION 10.4 Transfers Intended as Sale; Security Interest
	 	 	32	 
	SECTION 10.5 Notices, Etc
	 	 	33	 
	SECTION 10.6 Choice of Law
	 	 	33	 
	SECTION 10.7 Headings
	 	 	33	 
	SECTION 10.8 Counterparts
	 	 	33	 
	SECTION 10.9 Waivers
	 	 	33	 
	SECTION
10.10 Entire Agreement
	 	 	34	 
	SECTION
10.11 Severability of Provisions
	 	 	34	 
	SECTION
10.12 Binding Effect
	 	 	34	 
	SECTION
10.13 Acknowledgment and Agreement
	 	 	34	 
	SECTION
10.14 Cumulative Remedies
	 	 	34	 
	SECTION
10.15 Nonpetition Covenant
	 	 	34	 
	SECTION
10.16 Submission to Jurisdiction; Waiver of Jury Trial
	 	 	34	 
	SECTION
10.17 Limitation of Liability
	 	 	35	 
	SECTION
10.18 Third-Party Beneficiaries
	 	 	35	 
	SECTION
10.19 Limitation of Rights
	 	 	35	 
	SECTION
10.20 Information Requests.
	 	 	36	 
	SECTION
10.21 Regulation AB
	 	 	36	 
	SECTION
10.22 Information to Be Provided by the Indenture Trustee
	 	 	36	 
	Schedule I
Representations and Warranties 

Schedule II Notice of Addresses 

Schedule III Custodial Fees
	 	 	 	 
	 
	 	 	 	 
	Exhibit A Form of Notice of Funding Date
	 	 	 	 
	Exhibit B Form of Joint Officer’s Certificate
	 	 	 	 
	Exhibit C Form of Assignment pursuant to Sale and Servicing Agreement
	 	 	 	 
	Exhibit D Form of Servicer’s Certificate
	 	 	 	 
	Exhibit E Form of Indenture Trustee’s Acknowledgement
	 	 	 	 
	Exhibit F Form of Servicing Criteria Report
	 	 	 	 
	Exhibit G Form of Sarbanes Certification
	 	 	 	 
	 
	 	 	 	 
	Appendix A Definitions
	 	 	 	 






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     SALE AND SERVICING AGREEMENT, dated as of [        ], 20[ ] as amended,
supplemented or otherwise modified and in effect from time to time, this “Agreement”), by
and among DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ], a Delaware statutory trust (the
“Issuer”), DRIVE AUTO RECEIVABLES LLC, a Delaware limited liability company, as seller (the
“Seller”), DRIVE CONSUMER USA INC., an Illinois corporation (“Drive Consumer”), as
servicer (in such capacity, the “Servicer”), [        ], as backup servicer
(the “Backup Servicer”) and [        ], a [
], as indenture trustee (the “Indenture Trustee”).



     WHEREAS, the Issuer desires to purchase from the Seller a portfolio of [prime] [non-prime]
motor vehicle retail installment sale contracts secured by new and used automobiles, light-duty
trucks, vans, mini-vans and motorcycles.



     WHEREAS, the Seller is willing to sell such portfolio of contracts and related property to the
Issuer; and



     WHEREAS, Drive Consumer is willing to service such contracts and related property on behalf of
the Issuer;



     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as follows:



ARTICLE I

DEFINITIONS AND USAGE




     SECTION 1.1 Definitions. Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are defined in
Appendix A hereto, which also contains rules as to usage that are applicable herein.



     SECTION 1.2 Other Interpretive Provisions. For purposes of this Agreement, unless the
context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and
accounting terms partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting principles; (b) terms defined
in Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words “hereof,” “herein” and “hereunder” and
words of similar import refer to this Agreement as a whole and not to any particular provision of
this Agreement; (d) references to any Article, Section, Schedule, Appendix or Exhibit are
references to Articles, Sections, Schedules, Appendices and Exhibits in or to this Agreement and
references to any paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term “including” means “including without limitation”; (f) except as otherwise
expressly provided herein, references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; (g) references to any Person
include that Person’s successors and assigns; and (h) headings are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision hereof.



ARTICLE II

CONVEYANCE OF TRANSFERRED ASSETS




     SECTION 2.1 Conveyance of Transferred Assets. (a) In consideration of the Issuer’s
sale and delivery to, or upon the order of, the Seller of all of the Notes and the Residual
Interest on the Closing Date, the Seller does hereby irrevocably sell, transfer, assign and
otherwise convey to the Issuer without



 









 







recourse (subject to the obligations herein) all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the Initial Transferred Assets,
identified in an Assignment substantially in the form of Exhibit C delivered on the Closing
Date. The sale, transfer, assignment and conveyance made hereunder does not constitute and is not
intended to result in an assumption by the Issuer of any obligation of the Seller or the Originator
to the Obligors, the Dealers or any other Person in connection with the Contracts or the other
assets and properties conveyed hereunder or any agreement, document or instrument related thereto.



     (b) In consideration of the payment of the Contracts Purchase Price from the Pre-Funding
Account, on each Funding Date the Seller does hereby sell, transfer, assign, and otherwise convey
to the Issuer without recourse (subject to the obligations herein) all right, title and interest of
the Seller, whether now owned or hereafter acquired, in, to and under the Subsequent Transferred
Assets, identified in an Assignment substantially in the form of Exhibit C delivered on
such Funding Date. The purchase of the Subsequent Transferred Assets on each Funding Date shall be
made in accordance with the Contribution Agreement and this Agreement. The sale, transfer,
assignment and conveyance made hereunder does not constitute and is not intended to result in an
assumption by the Issuer of any obligation of the Seller or the Originator to the Obligors, the
Dealers or any other Person in connection with the Contracts or the other assets and properties
conveyed hereunder or any agreement, document or instrument related thereto.



     (c) The Seller shall transfer to the Issuer the Subsequent Contracts and the other property
and rights related thereto described in
Section 2.1(b) only upon the satisfaction of each
of the following conditions on or prior to the related Funding Date:




     (i) the Seller shall have provided the Indenture Trustee, the Owner Trustee[, the
Insurer] and the Rating Agencies with a Notice of Funding not later than five (5) Business
Days prior to such Funding Date and shall have provided any information reasonably requested
by any of the foregoing with respect to the Subsequent Contracts;




     (ii) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee a
list of all Subsequent Contracts to be transferred on such Funding Date;




     (iii) as of each Funding Date, (A) the Seller shall not be insolvent and shall not
become insolvent as a result of the transfer of Subsequent Contracts on such Funding Date,
(B) the Seller shall not intend to incur or believe that it shall incur debts that would be
beyond its ability to pay as such debts mature, (C) such transfer shall not have been made
with actual intent to hinder, delay or defraud any Person and (D) the assets of the Seller
shall not constitute unreasonably small capital to carry out its business as conducted;




     (iv) the Funding Period shall not have terminated;




     (v) after giving effect to any transfer of Subsequent Contracts on a Funding Date, the
Contracts transferred to the Issuer pursuant hereto shall meet the following criteria (based
on the characteristics of the Initial Contracts on the Initial Cut-Off Date and the
Subsequent Contracts on the related Subsequent Cut-Off Dates) as such information is
provided to the Indenture Trustee by the Servicer: (A) the weighted average APR of all
Contracts transferred to the Issuer shall not be less than [ ]%[, unless, with the prior
consent of the Rating Agencies and the Insurer, the Seller increases the related Subsequent
Reserve Amount with respect to such Subsequent Contracts by the amount required by the
Insurer]; (B) the weighted average original term to scheduled maturity of the Contracts
shall not be greater than [ ] months; (C) the weighted average overall loan to
value percentage of the Contracts shall not be greater than [ ]%; (D) the percentage
of Contracts originated and entered into in the State of Texas shall not exceed [ ]% of
the total Contracts in



2









 







the Issuer; and (E) the percentage of Contracts relating to the
“OverDrive” program shall not be less than [ ]%;




     (vi) each of the representations and warranties made by the Seller pursuant to
Schedule I hereto with respect to the Subsequent Contracts to be transferred on such
Funding Date shall be true and correct as of the related Funding Date, and the Seller shall
have performed all obligations to be performed by it hereunder on or prior to such Funding
Date;




     (vii) the Seller shall, at its own expense, on or prior to the Funding Date indicate in
its computer files that the Subsequent Contracts have been sold to the Issuer pursuant to
this Agreement;




     (viii) the Seller shall have taken any action required to maintain the first priority
perfected ownership interest of the Issuer in the Trust Estate and the first priority
perfected security interest of the Indenture Trustee in the Collateral;




     (ix) no selection procedures adverse to the interests of the Noteholders [or the
Insurer] shall have been utilized in selecting the Subsequent Contracts;




     (x) the addition of any such Subsequent Contracts shall not result in a material
adverse tax consequence to the Issuer or the Noteholders;




     (xi) the Seller shall have delivered to the Rating Agencies[, the Insurer] and the
Indenture Trustee an Opinion of Counsel with respect to the transfer of such Subsequent
Contracts substantially in the form of the Opinion of Counsel delivered to the Rating
Agencies[, the Insurer] and the Indenture Trustee on the Closing Date (which Opinion of
Counsel may be included in the Opinion of Counsel delivered on the Closing Date);




     (xii) [no Insurer Default shall have occurred and be continuing;]




     (xiii) [the Insurer, in its absolute and sole discretion, shall have approved the
transfer in writing of such Subsequent Contracts to the Issuer and the Insurer shall have
been reimbursed for any fees and expenses incurred by the Insurer in connection with the
granting of such approval;]




     (xiv) the Seller shall simultaneously cause the Reserve Amount to be increased by the
Subsequent Reserve Amount with respect to the Subsequent Contracts transferred on such
Funding Date;




     (xv) the Seller shall have delivered to [the Insurer,] the Owner Trustee and the
Indenture Trustee an Officers’ Certificate confirming the satisfaction of each condition
precedent specified in this paragraph (c); and




     (xvi) no such Subsequent Contract shall have an APR less than [ ]%.



     SECTION 2.2 Representations and Warranties of the Seller as to each Contract. On the
date hereof, with respect to the Initial Contracts, or on each Funding Date, with respect to the
Subsequent Contracts, the Seller hereby makes the representations and warranties set forth on
Schedule I to the Issuer[, the Insurer] and the Indenture Trustee as to the Initial
Contracts and Subsequent Contracts, as applicable, sold, transferred, assigned, and otherwise
conveyed to the Issuer under this Agreement on which such representations and warranties the Issuer
relies in acquiring the Contracts. The



3









 







representations and warranties as to each Contract shall
survive the Grant of the Contracts by the Issuer to the Indenture Trustee pursuant to the
Indenture. Notwithstanding any statement to the contrary contained herein or in any other
Transaction Document, the Seller shall not be required to notify any insurer with respect to any
Insurance Policy obtained by an Obligor.



     SECTION 2.3 Repurchase upon Breach. Upon discovery by any party hereto of a breach of
any of the representations and warranties set forth in Section 2.2 with respect to any
Contract at the time such representations and warranties were made which materially and adversely
affects the interests of the Issuer[, the Insurer] or the Noteholders in such Contract, the party
discovering such breach shall give prompt written notice thereof to the other parties hereto;
provided, that delivery of the Servicer’s Certificate shall be deemed to constitute prompt notice
by the Servicer and the Issuer of such breach; provided, further, that the failure to give such
notice shall not affect any obligation of the Seller hereunder. If the breach materially and
adversely affects the interests of the Issuer[, the Insurer] or the Noteholders in such Contract,
then the Seller shall either (a) correct or cure such breach or (b) repurchase such Contract from
the Issuer, in either case on or before the Payment Date following the end of the first full
Collection Period after the date the Seller became aware or was notified of such breach. Any such
purchase by the Seller shall be at a price equal to the Repurchase Price. In consideration for
such repurchase, the Seller shall make (or shall cause to be made) a payment to the Issuer equal to
the Repurchase Price by depositing such amount into the Collection Account prior to noon, New York
City time on such date of repurchase. Upon payment of such Repurchase Price by the Seller, the
Indenture Trustee, on behalf of the Indenture Secured Parties, and the Issuer shall release and
shall execute and deliver such instruments of release, transfer or assignment, in each case without
recourse or representation, as may be reasonably requested by the Seller to evidence such release,
transfer or assignment or more effectively vest in the Seller or its designee all of the Issuer’s
and Indenture Trustee’s rights in any Contract and related Transferred Assets repurchased pursuant
to this Section 2.3. It is understood and agreed that, unless the Seller fails to
repurchase (or fails to enforce the obligation of the Originator under the Contribution Agreement
to repurchase) any Contract as described above, the right to cause the Seller to repurchase (or to
enforce the obligations of the Originator under the Contribution Agreement to repurchase) any
Contract as described above shall constitute the sole remedy respecting such breach available to
the Issuer[, the Insurer] and the Indenture Trustee. Neither the Owner Trustee nor the Indenture
Trustee will have any duty to conduct an affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Contract pursuant to this Section 2.3.



     SECTION 2.4 Custody of Contract Files.



     The Indenture Trustee shall hold each Contract File under this Agreement except as described
in this Section. On or prior to the Closing Date, and each Funding Date, as applicable, the
Indenture Trustee shall provide an Acknowledgment substantially in the form of Exhibit E
hereto dated as of the Closing Date and each Funding Date, as applicable, to the Owner Trustee [and
the Insurer] confirming that the Indenture Trustee has received and is in possession of the
original of each Contract listed on the Schedule of Contracts. The Indenture Trustee shall receive
compensation for its custodial duties as detailed on Schedule III hereof.



     To assure uniform quality in servicing the Contracts and to reduce administrative costs, the
Issuer hereby revocably appoints the Servicer and the Servicer hereby accepts such appointment, to
act as the
agent of the Issuer and the Indenture Trustee as custodian of the original Certificates of
Title for each Financed Vehicle evidencing the security interest of the Indenture Trustee in the
Financed Vehicles which are hereby constructively delivered to the Indenture Trustee as of the
Closing Date and each Funding Date. The Servicer shall maintain such Certificates of Title
physically segregated from other titles of automotive receivables owned or serviced by it at its
principal place of business located at 8585 North Stemmons Freeway, Suite 1100 N, Dallas, Texas
75247. [The Insurer shall have the right, in the exercise



4









 







of its sole discretion, to direct the
Servicer to transfer the Certificates of Title for the Financed Vehicles to the Indenture Trustee
as custodian of such Certificates of Title and the Indenture Trustee shall accept and hold such
Certificates of Title together with the balance of the Contract Files.]



     SECTION 2.5 Funding Events.



     (a) A funding event (each, a “Funding Event”) shall occur upon a Funding Date and in
accordance with the requirements of this Section.



     (b) During the Funding Period, the Issuer shall, on the Funding Dates, (i) acquire Subsequent
Transferred Assets from the Seller pursuant to Section 2.1(b) (and the Seller shall acquire
such Subsequent Transferred Assets from the Originator pursuant to the Contribution Agreement) and
(ii) Grant all of the Issuer’s right, title and interest in, to and under such Subsequent
Transferred Assets to the Indenture Trustee for the benefit of the Indenture Secured Parties. Such
Subsequent Transferred Assets shall be acquired at the option of the Issuer upon instruction from
the Servicer[; provided that such Subsequent Transferred Assets may not be acquired through the
Pre-Funding Account without the consent of the Insurer]; provided, however, that the giving or
withholding of such consent shall be based solely on the characteristics of the Subsequent
Transferred Assets in relation to the Initial Transferred Assets.



     (c) The following procedures shall be followed to effect a Funding Event:




     (i) Drive Consumer will package and forward or cause to be packaged and forwarded to
the Servicer (in the event that Drive Consumer is not the Servicer) the Contract File
(except for the Certificate of Title or application for the Certificate of Title which it
will retain possession of pursuant to Section 2.4) with respect to each Subsequent
Contract.




     (ii) At least five (5) days prior to the Funding Date, the Issuer shall deliver, or
cause to be delivered, to the Indenture Trustee[, the Insurer] and the Servicer and a Notice
of Funding Date (substantially in the form of Exhibit A hereto); and




     (iii) On or prior to the Funding Date, the Issuer shall deliver, or cause to be
delivered, to the Indenture Trustee[, the Insurer] and the Servicer the following:




     (1) the Schedule of Contracts delivered by the Seller for such Funding Date;
and




     (2) a Joint Officer’s Certificate of Drive Consumer, the Seller and the Issuer
(substantially in the form of Exhibit B hereto).



     (d) Upon satisfaction of the above requirements, the Indenture Trustee will, on the applicable
Funding Date, withdraw from the Pre-Funding Account an amount equal to the Contracts Purchase Price
for the Subsequent Contracts acquired on such Funding Date and shall forward such funds to the
Seller or
its designee, in cash by federal wire transfer funds, pursuant to the written directions
provided to the Indenture Trustee in the Notice of Funding Date. On such Funding Date, the Seller
shall fund the Reserve Amount in amount sufficient to cause the Reserve Amount to equal Subsequent
Reserve Amount. Such funding can be accomplished either by (i) depositing cash in the Reserve
Account, (ii) causing a Reserve Account Letter of Credit to be issued, or (iii) utilizing any
combination of clauses (i) and (ii).



5









 





ARTICLE III

ADMINISTRATION AND SERVICING OF

CONTRACTS AND TRUST PROPERTY




     SECTION 3.1 Duties of Servicer.



     (a) The Servicer is hereby appointed by the Issuer and authorized to act as agent for the
Issuer and in such capacity shall manage, service, administer and make collections on the
Contracts, and perform the other actions required by the Servicer under this Agreement. The
Servicer agrees that its servicing of the Contracts will be carried out with reasonable care, using
that degree of skill and attention that the servicers in the retail automotive financing industry
exercise with respect to all comparable receivables that they service for themselves or others.
The Servicer’s duties shall include collection and posting of all payments, responding to inquiries
of Obligors on such Contracts, investigating delinquencies, sending payment statements or coupons
to Obligors, reporting tax information to Obligors, accounting for collections and furnishing
monthly and annual statements to the Indenture Trustee with respect to distributions. The Servicer
shall follow prudent standards, policies, and procedures in performing its duties as Servicer.



     (b) Without limiting the generality of the foregoing, the Servicer is hereby granted a limited
power of attorney by the Indenture Trustee to execute and deliver, on behalf of itself, the Issuer,
the Noteholders, the Indenture Trustee or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable instruments with
respect to such Contracts or to the Financed Vehicles securing such Contracts in accordance with
the terms of this Agreement. If the Servicer shall commence a legal proceeding to enforce a
Contract, the Indenture Trustee (in the case of a Contract other than a Repurchased Contract) shall
thereupon be deemed to have automatically assigned, solely for the purpose of collection, such
Contract to the Servicer. If in any enforcement suit or legal proceeding it shall be held that the
Servicer may not enforce a Contract on the ground that it shall not be a real party in interest or
a holder entitled to enforce the Contract, the Indenture Trustee shall be deemed to have
automatically assigned such Contract to the Servicer, solely for the purpose of collection. The
Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents
reasonably necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder. The Servicer, at its expense, shall obtain on behalf of the Trust
all licenses, if any, required by the laws of any jurisdiction to be held by the Trust in
connection with ownership of the Contracts, and shall make all filings and pay all fees as may be
required in connection therewith during the term hereof.



     (c) The Servicer hereby agrees that upon its resignation and the appointment of a successor
Servicer hereunder, the Servicer will terminate its activities as Servicer hereunder in accordance
with Section 7.1, and, in any case, in a manner which the Controlling Party or the
Indenture Trustee with the consent of the Controlling Party reasonably determines will facilitate
the transition of the performance of such activities to such successor Servicer, and the Servicer
shall cooperate with and assist such successor Servicer.



     (d) [So long as no Insurer Default has occurred and is continuing,] the Servicer shall not
change its customary servicing procedures [without the consent of the Insurer] if the Servicer
determines that such a change would have a material adverse effect on the interests of [the Insurer
or] the Noteholders.



     (e) All services, duties and responsibilities of the Servicer under this Agreement shall be
performed and carried out by the Servicer as an independent contractor for the benefit of the Trust
[and the Insurer], and none of the provisions of this Agreement shall be deemed to make, authorize
or appoint



6









 







the Servicer as agent or representative of the Seller, the Indenture Trustee, the
Issuer[, the Insurer] or any Noteholder except as provided in Section 2.4. Without
limiting the generality of the foregoing, the Servicer is authorized to sell Charged-Off Contracts
and the Indenture Trustee is authorized to release the Contract Files related to any Charged-Off
Contracts sold and to release any and all security interests and liens granted by the Issuer to the
Indenture Trustee in and to any Charged-Off Contracts sold and the Contract Files related thereto.



     SECTION 3.2 Collection and Application of Contract Payments. The Servicer shall make
reasonable efforts to collect all payments called for under the terms and provisions of the
Contracts as and when the same shall become due and shall follow such collection procedures as it
follows with respect to all comparable receivables that it services for itself or others and, in
any event, with no less degree of skill and care than would be exercised by a prudent servicer of
similar prime, sub-prime and non-prime motor vehicle retail installment sales contracts. The
Servicer may, in its discretion and in accordance with its customary servicing procedures, grant
extensions, rebates or adjustments on a Contract, and amend or modify any Contract which shall not
modify the APR, the number or amount of the Contract Scheduled Payment; provided, that in no event
shall a Contract be extended such that any payment thereon would be due after [        ];
provided further that no extensions may be granted by the Servicer until at least six Contract
Scheduled Payments have been received by the Servicer under the related Contract and thereafter
only one extension not to exceed one month may be granted each 12 months for one of the following
reasons: major repair, major medical or other major events or catastrophes such as house fire,
flood, hurricane or tornado damage or similar occurrences; provided, however, that no more than
four extensions shall be permitted on any Contract. The Servicer may in its discretion waive any
late payment charge or any other fees, not including interest on the outstanding Principal Balance,
that may be collected in the ordinary course of servicing a Contract. Notwithstanding anything in
this Agreement to the contrary, the Servicer may refinance any Contract that would cause the
average Extension Ratio for any three consecutive Collection Periods to exceed [ ]% by accepting
a new promissory note from the related Obligor and depositing the full outstanding Principal
Balance of such Contract into the Collection Account. The receivable created by such refinancing
shall not be the property of the Issuer.



     SECTION 3.3 Realization Upon Contracts. On behalf of the Issuer [and the Insurer],
the Servicer shall use reasonable efforts, consistent with prudent servicing procedures, to
repossess or otherwise convert the ownership of the Financed Vehicle securing any Contract as to
which the Servicer shall have determined eventual payment in full is unlikely. The Servicer shall
follow such prudent practices and procedures as would be deemed prudent in the servicing of
comparable receivables, which may include reasonable efforts to realize upon any Dealer Recourse
and selling the Financed Vehicle at public or private sale. The foregoing shall be subject to the
provision that, in any case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with the repair or the repossession of such Financed Vehicle
unless it shall determine that there is a reasonable likelihood that such repair and/or
repossession will increase the Liquidation Proceeds by an amount greater than the amount of such
expenses. The Servicer agrees that within 45 days from the Closing Date
or the related Funding Date, as applicable, it shall make such filings and effect such notices
as are necessary under Section 9-324(b) and 9-324 (c) of the New York UCC (or comparable section of
the UCC of any applicable state) to preserve the Issuer’s interest (or security interest, as the
case may be) in any repossessed Financed Vehicles delivered for sale to Dealers.



     SECTION 3.4 Maintenance of Security Interests in Financed Vehicles.



     (a) The Servicer will, in accordance with its customary servicing procedures, take such steps
as are necessary to maintain perfection of the security interest created by each Contract in the
related Financed Vehicle. The Issuer hereby authorizes the Servicer to take such steps as are
necessary to re-



7









 







perfect such security interest on behalf of the Issuer and the Indenture Trustee in
the event of the relocation of a Financed Vehicle or for any other reason.



     (b) [Upon the occurrence of a Trigger Event,] the Servicer, at the written direction of the
Controlling Party, shall take or cause to be taken such action as may[, in the opinion of counsel
to the Insurer,] be necessary or desirable to perfect or re-perfect the security interests in the
Financed Vehicles securing the Contracts in the name of the Indenture Trustee on behalf of the
Indenture Secured Parties by amending the title documents of such Financed Vehicles or by such
other reasonable means as may, in the opinion of counsel to the Controlling Party, be necessary or
prudent and shall deliver to the Indenture Trustee any Contract File or portion thereof that is
currently in the possession of the Servicer, including the original Certificates of Title. The
Servicer hereby agrees to pay all costs and expenses related to such perfection or re-perfection
(the “Reliening Expenses”); provided, however, in the event the Backup Servicer is required
to assume the duties of the Servicer, the Backup Servicer shall not be liable for any such
Reliening Expenses. The Controlling Party may pay such Reliening Expenses [and, if the Insurer is
the Controlling Party, any such amounts paid by the Insurer shall constitute part of the
Reimbursement Obligations due to the Insurer].



     SECTION 3.5 Covenants of Servicer.



     (a) Lien in Force. Except for a release to an insurer in exchange for insurance
proceeds paid by such insurer resulting from a claim for the total insured value of a Financed
Vehicle, the Servicer shall not release any Financed Vehicle from the security interest granted by
the related Contract in whole or in part except in the event of payment in full by or on behalf of
the Obligor thereunder or repossession, nor shall the Servicer impair the rights of the Noteholders
[or the Insurer] in the Contracts, nor shall the Servicer change the APR with respect to any
Contract, except as may be required by applicable law.



     (b) No Impairment. The Servicer will do nothing to materially impair the rights of
the Issuer, the Indenture Trustee or the Noteholders in the Contracts or the Insurance Policies
except as otherwise expressly provided in the Transaction Documents.



     (c) Restrictions on Liens. The Servicer will not (i) create, incur or suffer to
exist, or agree to create, incur or suffer to exist, or consent to cause or permit in the future
(upon the happening of a contingency or otherwise) the creation, incurrence or existence of any
Lien or restriction on transferability of the Contracts except for the lien in favor of the
Indenture Trustee for the benefit of the Indenture Secured Parties, and the restrictions on
transferability imposed by this Agreement or (ii) file or authorize for filing under the UCC of any
jurisdiction any financing statement which names the Servicer as a debtor, or sign any security
agreement authorizing any secured party thereunder to file such financing statement, with respect
to the Contracts, except in each case any such instrument solely securing the rights and preserving
the lien of the Indenture Trustee for the benefit of the Indenture Secured Parties.



     (d) Physical Damage Insurance. The Servicer, in accordance with prudent servicing
procedures, shall require that each Obligor shall have obtained physical damage insurance covering
the Financed Vehicle as of the date of execution of the Contract. The Servicer shall, in
accordance with its customary servicing procedures, monitor physical damage insurance coverage.



     SECTION 3.6 Purchase of Contracts Upon Breach. Upon discovery by any party hereto of
a breach of any of the obligations set forth in Section 3.2, 3.3, 3.4 or
3.5 which materially and adversely affects the interests of the Issuer[, the Insurer], the
Indenture Trustee or the Noteholders in any Contract, the party discovering such breach shall give
prompt written notice thereof to the other parties hereto; provided, that the delivery of the
Servicer’s Certificate shall be deemed to constitute prompt notice by the Servicer and the Issuer
of such breach; provided, further, that the failure to give such notice shall not



8









 







affect any
obligation of the Servicer under this Section 3.6. If the breach materially and adversely
affects the interests of the Issuer[, the Insurer] or the Noteholders in such Contract, then the
Servicer shall either (a) correct or cure such breach or (b) purchase such Contract from the
Issuer, in either case on or before one Business Day prior to the Determination Date immediately
following the end of the first full Collection Period after the date the Servicer became aware or
was notified of such breach. Any such purchase by the Servicer shall be at a price equal to the
Repurchase Price. In consideration for such repurchase, the Servicer shall make (or shall cause to
be made) a payment to the Issuer equal to the Repurchase Price by depositing such amount into the
Collection Account prior to noon, New York City time on such date of repurchase. Upon payment of
such Repurchase Price by the Servicer, the Indenture Trustee, on behalf of the Indenture Secured
Parties, and the Issuer shall release and shall execute and deliver such instruments of release,
transfer or assignment, in each case without recourse or representation, as may be reasonably
requested by the Seller to evidence such release, transfer or assignment or more effectively vest
in the Servicer or its designee all of the Issuer’s and Indenture Trustee’s rights in any Contract
and related Transferred Assets repurchased pursuant to this Section 3.6. It is understood
and agreed that, unless the Servicer fails to purchase any Contract as described above, the
obligation of the Servicer to purchase any Contract as described above shall constitute the sole
remedy respecting such breach available to the Issuer[, the Insurer] and the Indenture Trustee;
provided, however, that the Servicer will indemnify the Issuer[, the Insurer], the Owner Trustee,
the Indenture Trustee and the Noteholders from and against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which may be asserted
against or incurred by any of them as a result of third party claims arising out of the events or
facts giving rise to such breach. The indemnification provided pursuant to this section will
survive the removal or resignation of the Servicer[, the Insurer] and /or the Indenture Trustee.



     SECTION 3.7 Servicing Fee. On each Payment Date, the Issuer shall pay to the Servicer
the Servicing Fee in accordance with Section 4.4 for the immediately preceding Collection
Period as compensation for its services. In addition, the Servicer will be entitled to be
reimbursed from amounts on deposit in the Collection Account with respect to a Collection Period
for amounts previously deposited in the Collection Account but later determined by the Servicer to
have resulted from mistaken deposits or postings or checks returned for insufficient funds. The
amount to be reimbursed hereunder shall be paid to the Servicer on the related Distribution Date
pursuant to Section 4.4(a)(2) upon certification by the Servicer of such amounts and the
provision of such information to the Indenture Trustee [and the Insurer] as may be necessary [in
the opinion of the Insurer] to verify the accuracy of such certification; provided, however, that
the Servicer must provide such clarification within 12 months of such mistaken deposit, posting, or
returned check. [In the event that the Insurer has not received evidence satisfactory to it of the
Servicer’s entitlement to reimbursement pursuant to this Section 3.7, the Insurer shall
give the Indenture Trustee notice in writing to such effect, following receipt of which the
Indenture Trustee shall not make a distribution to the Servicer in respect of such amount pursuant
to Section 4.4, or if the Servicer prior
thereto has been reimbursed pursuant to Section 4.4, the Indenture Trustee shall
withhold such amounts from amounts otherwise distributable to the Servicer on the next succeeding
Distribution Date.] The amount to be reimbursed hereunder shall be paid to the Servicer on the
next succeeding Business Day out of collections on Contracts to be remitted to the Collection
Account to the extent the net amount to the Collection Account is greater than zero.



     SECTION 3.8 Servicer’s Certificate.



     (a) By the Determination Date in each calendar month, the Servicer shall deliver to the
Indenture Trustee[, the Insurer] and the Backup Servicer a Servicer’s Certificate in the form of
Exhibit D hereto containing all information necessary to make the transfers, deposits and
distributions pursuant to this Agreement and the other Transaction Documents for the Collection
Period immediately preceding the date of such Servicer’s Certificate and as of the last day of such
Collection Period, and all information



9









 







necessary [(including whether a Trigger Event or Reserve
Event has occurred)] for the Indenture Trustee to make available statements to Noteholders [and the
Insurer] pursuant to Section 4.6. Contracts purchased by the Issuer shall be identified by
the Servicer by the Obligor’s account number and certain other information with respect to such
Contract (as specified in Schedule A to this Agreement).



     (b) On the eighth day of each month (the “Servicer’s Data Date”), the Servicer shall
send to the Backup Servicer [and the Insurer] a Computer Tape, detailing the payments on the
Contracts during the prior Collection Period (the “Servicer’s Data File”). Such Computer
Tape shall be in the form and have the specifications as may be agreed to between the Servicer, the
Backup Servicer[, the Insurer] and the Indenture Trustee from time to time.



     (c) No later than one Business Day prior to each Determination Date, provided that the
Servicer shall have furnished to the Backup Servicer the Servicer’s Certificate, the Backup
Servicer shall review the information contained in the Servicer’s Certificate against the
information on the Servicer’s Data File, on an aggregate basis. No later than one Business Day
prior to each Distribution Date, the Backup Servicer shall notify the Servicer[, the Insurer] and
the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the Servicer’s
Data File and the Backup Servicer and the Servicer shall attempt to reconcile such inconsistencies;
provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for
the purpose of calculations and distributions with respect to the related Distribution Date. If
the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a
Servicer’s Certificate by the related Distribution Date, the Servicer shall cause a firm of
independent certified public accountants, at the Servicer’s expense, to audit the Servicer’s
Certificate and, prior to the third Business Day, but in no event later than the fifth calendar
day, of the following month, reconcile the discrepancies. The effect, if any, of such
reconciliation shall be reflected in the Servicer’s Certificate for such next Determination Date.
The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s
Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall
be limited to those apparent from the Backup Servicer’s review thereof. The Backup Servicer and
the Servicer shall attempt to reconcile any such material inconsistencies and/or to furnish any
such omitted information and the Servicer shall amend the Servicer’s Certificate to reflect the
Backup Servicer’s computations or to include the omitted information. The Backup Servicer shall in
no event be liable to the Servicer with respect to any failure of the Backup Servicer to discover
or detect any errors, inconsistencies or omissions by the Servicer with respect to the Servicer’s
Certificate and Servicer’s Data File except as specifically set forth in this Section.



     (d) The Servicer shall provide to the Backup Servicer, or its agent, monthly, or as frequently
as may be otherwise requested, information on the Contracts sufficient to enable the Backup
Servicer to assume the responsibilities as Successor Servicer and collect on the Contracts.



     (e) Except as provided in this Agreement, the Backup Servicer may accept and reasonably rely
on all accounting, records and work of the Servicer without audit, and the Backup Servicer shall
have no liability for the acts or omissions of the Servicer. If any error, inaccuracy or omission
(collectively, “Errors”) exists in any information received from the Servicer, and such
Errors should cause or materially contribute to the Backup Servicer making or continuing any Errors
(collectively, “Continued Errors”), the Backup Servicer shall have no liability for such
Continued Errors; provided, however, that this provision shall not protect the Backup Servicer
against any liability that would otherwise be imposed by reason of willful misconduct, bad faith or
gross negligence in discovering or correcting any Error or in the performance of its or their
duties hereunder or under this Agreement. In the event the Backup Servicer becomes aware of Errors
or Continued Errors, the Backup Servicer shall[, with the prior consent of the Insurer,] use its
best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such
Errors and Continued Errors and prevent future Continued Errors. The Backup Servicer shall be
entitled to recover its costs thereby expended from the Servicer.



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     (f) The Backup Servicer shall be indemnified by the Servicer from and against all claims,
damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable
attorneys’ fees) arising out of claims asserted against the Backup Servicer by third parties on any
matter arising out of this Agreement to the extent the act or omission giving rise to the claim
accrues before the date on which the Backup Servicer assumes the duties of Servicer hereunder,
except for any claims, damages, losses or expenses arising from the Backup Servicer’s own gross
negligence, bad faith or willful misconduct.



     SECTION 3.9 Annual Officer’s Certificate; Notice of Servicer Termination Event. (a)
The Servicer will deliver to the Rating Agencies, the Issuer[, the Insurer] and the Indenture
Trustee, on or before March 31 of each year, beginning on March 31, [ ], an Officer’s
Certificate of the Servicer (with appropriate insertions) providing such information as is required
under Item 1123 of Regulation AB.



     (b) The Servicer will deliver to the Issuer, [the Insurer,] the Indenture Trustee and each
Rating Agency promptly after having obtained knowledge thereof, but in no event later than five (5)
Business Days after having obtained such knowledge, written notice in an Officer’s Certificate
(with appropriate insertions) providing such information as is required under Item 1123 of
Regulation AB and of any event which with the giving of notice or lapse of time, or both, would
become a Servicer Termination Event.



     (c) The Servicer will deliver to the Issuer [and the Insurer], on or before March 31 of each
year, beginning on March 31, [        ], a report regarding the Servicer’s assessment of compliance
with the Servicing Criteria during the immediately preceding calendar year, as required under
paragraph (b) of Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.



     SECTION 3.10 Annual Servicing Report of Independent Public Accountants. On or before
the 90th day following the end of each fiscal year, beginning with the fiscal year ending December
31, 20[ ], the Servicer shall cause a firm of nationally recognized independent public accountants
(who may also render other services to the Servicer, the Seller or their respective Affiliates) to
furnish to the Indenture Trustee, the Servicer, the Seller[, the Insurer] and each Rating Agency
each attestation report on assessments of compliance with the Servicing Criteria with respect to
the Servicer or any affiliate thereof
during the related fiscal year delivered by such accountants pursuant to paragraph (c) of Rule
13a-18 or Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB. The certification
required by this paragraph may be replaced by any similar certification using other procedures or
attestation standards which are now or in the future in use by servicers of comparable motor
vehicle contracts.



     SECTION 3.11 Servicer Expenses. The Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder, including fees and disbursements of
independent accountants, taxes imposed on the Servicer and expenses incurred in connection with
distributions and reports to Noteholders[, the Insurer] and the Residual Interestholders and with
administering the duties of the Issuer.



     SECTION 3.12 Fidelity Bond. The Servicer hereby represents and covenants that the
Servicer has obtained, and shall continue to maintain in full force and effect, a fidelity bond and
errors and omissions policy covering the Servicer of a type and in such amount as is customary for
prudent servicers engaged in the business of servicing prime, sub-prime and non-prime motor vehicle
retail installment sales contracts similar to the Contracts.



     SECTION 3.13 1934 Act Filings. The Issuer hereby authorizes the Servicer and the
Seller, or either of them, to prepare, sign, certify and file any and all reports, statements and
information respecting the Issuer and/or the Notes required to be filed pursuant to the Exchange
Act, and the rules thereunder.



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ARTICLE IV

DISTRIBUTIONS; ACCOUNTS

STATEMENTS TO THE RESIDUAL INTERESTHOLDERS

AND THE NOTEHOLDERS




     SECTION 4.1 Establishment of Accounts.



     (a) The Servicer shall cause to be established:




     (i) for the benefit of the Indenture Secured Parties in the name of the Indenture
Trustee, an Eligible Account (the “Collection Account”), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of the
Indenture Secured Parties, which Eligible Account shall be established by and maintained
with the Indenture Trustee or its designee;




     (ii) for the benefit of the Indenture Secured Parties, in the name of the Indenture
Trustee, an Eligible Account (the “Note Distribution Account”), bearing a
designation clearly indicating that the funds deposited therein are held for the benefit of
the Indenture Secured Parties, which Eligible Account shall be established by and maintained
with the Indenture Trustee or its designee;




     (iii) for the benefit of the Indenture Secured Parties, in the name of the Indenture
Trustee, an Eligible Account (the “Reserve Account”), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the Indenture
Secured Parties, which Eligible Account shall be established by and maintained with the
Indenture Trustee or its designee;




     (iv) for the benefit of the Indenture Secured Parties, in the name of the Indenture
Trustee, an Eligible Account (the “Pre-Funding Account”), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of the
Indenture Secured Parties, which Eligible Account shall be established by and maintained
with the Indenture Trustee or its designee;




     (v) for the benefit of the Indenture Secured Parties, in the name of the Indenture
Trustee, an Eligible Account (the “Capitalized Interest Account”), bearing a
designation clearly indicating that the funds deposited therein are held for the benefit of
the Indenture Secured Parties, which Eligible Account shall be established by and maintained
with the Indenture Trustee or its designee; and




     (vi) for the benefit of the Residual Interestholder, in the name of the Indenture
Trustee, an Eligible Account (the “Residual Interest Account”), bearing a
designation clearly indicating that the funds deposited therein are held for the benefit of
the Residual Interestholder, which Eligible Account shall be established by and maintained
with the Indenture Trustee or its designee.



     (b) Funds on deposit in the Collection Account, the Pre-Funding Account, the Reserve Account
and the Capitalized Interest Account shall each be invested by the Indenture Trustee (or any
custodian with respect to funds on deposit in any such account) in Eligible Investments selected in
writing by the Servicer (pursuant to standing instructions or otherwise), bearing interest or sold
at a discount, and maturing, unless payable on demand, no later than the Business Day immediately
preceding the next Payment Date; provided, however, it is understood and agreed that the Indenture
Trustee shall not be



12









 







liable for any loss arising from such investment in Eligible Investments
unless the Eligible Investment was a direct obligation of the Indenture Trustee or unless such loss
was caused by the Indenture Trustee’s negligence or willful misconduct (it being understood and
acknowledged that no loss on any such Eligible Investment which was made in conformity with this
Agreement and the instructions of the Servicer shall be considered “caused by the Indenture
Trustee’s negligence or willful misconduct”). All such Eligible Investments shall be held by or on
behalf of the Indenture Trustee for the benefit of the Indenture Trustee on behalf of the
Noteholders [and the Insurer] as their interests may appear. Funds deposited in the Collection
Account on the day immediately preceding a Payment Date upon the maturity of any Eligible
Investments are not required to be invested overnight. On each Payment Date, all interest and
investment income (net of investment losses and expenses) on funds on deposit in the Collection
Account and the Pre-Funding Account, as of the end of the Collection Period shall be included in
Available Funds; and all interest and other investment income (net of investment losses and
expenses) on funds on deposit in the Reserve Account shall be deposited into the Reserve Account.
If any Trust Account shall cease to be an Eligible Account, the Servicer, [with the consent of the
Insurer so long as the Insurer is the Controlling Party,] within five (5) Business Days shall,
cause such accounts to be moved to an institution so that such account meets the definition of
Eligible Account.



     (c) If (i) the Servicer shall have failed to give investment directions for any funds on
deposit in the Collection Account, the Pre-Funding Account or the Reserve Account to the Indenture
Trustee by 2:00 p.m. Eastern Time (or such other time as may be agreed by the Issuer and Indenture
Trustee) on any Business Day, (ii) a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been declared due and payable or
(iii) if the Notes shall have been declared due and payable following an Event of Default, but
amounts collected or receivable from the Trust Estate are being applied as if there had not been
such a declaration; then the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Collection Account, the Pre-Funding
Account or the Reserve Account, as the case may be, in Eligible Investments described in
clause (vi) of the definition thereof.



     (d) (i) Subject to the grant of the security interest pursuant to the Indenture in favor of
the Indenture Trustee, the Issuer shall possess all right, title and interest in all funds on
deposit from time to time in the Trust Accounts and in all proceeds thereof and all such funds,
investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided
herein, the Trust Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Indenture Secured Parties as their interests may appear.




     (ii) With respect to any Eligible Investments held from time to time in any Trust
Account, the Indenture Trustee agrees that:




     (A) any Eligible Investment that is held in deposit accounts shall be, except
as otherwise provided herein, subject to the exclusive custody and control of the
Indenture Trustee, and the Indenture Trustee shall have sole signature authority
with respect thereto;




     (B) any Eligible Investment that constitutes Physical Property shall be
delivered to the Indenture Trustee in accordance with paragraph (a) of the
definition of “Delivery” and shall be held, pending maturity or disposition, solely
by the Indenture Trustee or a securities intermediary (as such term is defined in
Section 8-102(a)(14) of the UCC) acting solely for the Indenture Trustee;




     (C) any Eligible Investment that is a book-entry security held through the
Federal Reserve System pursuant to Federal book-entry regulations shall be delivered in



13









 







accordance with paragraph (b) of the definition of “Delivery” and shall be
maintained by the Indenture Trustee, pending maturity or disposition, through
continued book-entry registration of such Eligible Investment as described in such
paragraph; and




     (D) any Eligible Investment that is an “uncertificated security” under Article
8 of the UCC and that is not governed by clause (C) above shall be delivered
to the Indenture Trustee in accordance with paragraph (c) of the definition of
“Delivery” and shall be maintained by the Indenture Trustee, pending maturity or
disposition, through continued registration of the Indenture Trustee’s (or its
nominee’s) ownership of such security.



     (e) The Servicer shall have the power, revocable by [the Insurer (so long as the Insurer is
the Controlling Party and prior to the Termination Date), or by] the Indenture Trustee, or the
Owner Trustee, each with the prior written consent of [the Insurer (so long as the Insurer is the
Controlling Party and prior to the Termination Date) and] the Indenture Trustee (after the
Termination Date), to instruct the Indenture Trustee to make withdrawals and payments from the
Trust Accounts for the purpose of permitting the Servicer and the Indenture Trustee to carry out
its respective duties hereunder.



     SECTION 4.2 Remittances. The Servicer shall deposit an amount equal to all
collections into the Collection Account within two Business Days after receipt. Pending deposit
into the Collection Account, collections may be commingled and used by the Servicer at its own risk
and are not required to be segregated from its own funds.



     SECTION 4.3 Additional Deposits and Payments.



     (a) On the date of a repurchase of a Contract by the Seller pursuant to Section 2.3,
or the purchase of a Contract by the Servicer pursuant to Section 3.6, as applicable, the
Servicer or the Seller, as applicable, will deposit into the Collection Account the aggregate
Repurchase Price with respect to Repurchased Contracts purchased by the Servicer or the Seller on
such date and the Servicer will deposit into the Collection Account all amounts to be paid under
Section 8.1. All such deposits with respect to any such date which is a Payment Date will
be made, in immediately available funds by noon, New York City time, on such Payment Date related
to such Collection Period.



     (b) [Draws on Reserve Account. [if applicable].]




     (c) [Draws on Reserve Account. [if applicable].]




     (d) If, on any Payment Date, [so long as there has not been an occurrence of a Reserve Event
which is not Deemed Cured and] the amount on deposit in the Reserve Account [and the amount
available under all available Reserve Account Letters of Credit] is not less than the Specified
Reserve Amount for the related Collection Period, the Total Available Reserve Amount (after giving
effect to all other additions thereto and reductions thereof made on such Payment Date, including
with respect to Section 4.3(b) and Section 4.3 (c)) exceeds the Specified Reserve
Amount on such Payment Date, the Indenture Trustee shall, upon the direction of the Servicer,
reduce the cash balance of the Reserve Account by the amount, if any, by which the Total Available
Reserve Amount exceeds the Specified Reserve Amount by withdrawing such amount from the Reserve
Account and depositing it into the Residual Interest Account.



     (e) The Indenture Trustee will, on the Payment Date relating to each Collection Period,
withdraw from the Pre-Funding Account the investment income accrued during such Collection Period
from the investment of funds in the Pre-Funding Account and deposit such amount in the Collection
Account.



14









 





     (f) On the Closing Date, the Seller will cause the Reserve Amount to equal the Initial Reserve
Amount [either through (i) a cash deposit to the Reserve Account from the Pre-Funding Account, (ii)
causing the Reserve Account Letter of Credit Bank to issue a Reserve Account Letter of Credit, or
(iii) any combination thereof].



     (g) On each Funding Date, the Seller will cause the Reserve Amount to equal the Subsequent
Reserve Amount for such Funding Date[, through (i) a cash deposit to the Reserve Account from the
Pre-Funding Account, (ii) causing the Reserve Account Letter of Credit Bank to issue a Reserve
Account Letter of Credit, or (iii) any combination thereof].



     (h) On the Closing Date the Seller shall deposit from the proceeds of the offering of the
Notes an amount equal to the Capitalized Interest Account Deposit into the Capitalized Interest
Account.



     (i) (i) On the Payment Dates occurring in [      ], [      ] and [      ], the
Indenture Trustee shall withdraw, in immediately available funds, from the Capitalized Interest
Account the Monthly Capitalized Interest Amount for such Payment Date and deposit such amount in
the Collection Account as Available Funds for distribution on such Distribution Date pursuant to
Section 4.4(a).




     (ii) On the Payment Dates occurring in [      ], [      ] and [      ], the
Servicer shall instruct the Indenture Trustee in writing to withdraw from the Capitalized
Interest Account and pay to the Seller on such Payment Date an amount equal to the
Overfunded Capitalized Interest Amount for such Payment Date. Any amounts remaining in the
Capitalized Interest Account on the Payment Date which immediately follows the end of the
Funding Period after taking into account the transfer pursuant to Section 4.3(i)(i)
shall be remitted by the Indenture Trustee to the Seller. Upon any such distributions to
the Seller, the Noteholders, the Residual Interestholders [and the Insurer] will have no
further rights in, or claims to, such amounts.



     (j) On or prior to the third Business Day preceding each Determination Date, the Indenture
Trustee shall send a written notice to the Servicer stating the amount of investment income earned,
if any, during the related Collection Period on each Trust Account maintained at the Indenture
Trustee.



     (k) [Replacement of Reserve Account Letter of Credit] [if applicable.]




     SECTION 4.4 Distributions.



     (a) Prior to any acceleration of the Notes pursuant to Section 5.2 of the Indenture, on each
Payment Date, the Indenture Trustee (based on information contained in the Servicer’s Certificate
delivered on or before the related Determination Date pursuant to Section 3.8) shall make
the following deposits and distributions, to the extent of Available Funds on deposit in the
Collection Account for such Payment Date, in the following order of priority:




     (1) first, to the Backup Servicer, the Indenture Trustee and the Owner Trustee,
the Backup Servicing Fee, the Indenture Trustee Fee and the Owner Trustee Fee,
respectively, to the extent such fees have not previously been paid, and to any
Successor Servicer, any unreimbursed Transition Expenses up to $100,000;




     (2) second, to the Servicer, the Servicing Fee, or to any Successor Servicer,
the Successor Servicing Fee;



15









 






     (3) third, to the Note Distribution Account for distribution to the Noteholders
pro rata, the Accrued Note Interest due and accrued for the related Interest Period;




     (4) [fourth, to the Insurer, the Premium pursuant to the Insurance Agreement;]




     (5) fifth, to the Note Distribution Account, for distribution to the
Noteholders, the Noteholder Principal Distributable Amount;




     (6) [sixth, to the Insurer, the Reimbursement Obligations pursuant to the
Insurance Agreement];




     (7) [seventh, at the Insurer’s discretion, to the Note Distribution Account if
a Trigger Event has occurred on or before such Payment Date, the amount of Available
Funds remaining after payment of clauses first through sixth above, for distribution
to the Noteholders until the Note Balance of each Class has been reduced to zero,
and then to
the Insurer for payment of all Reimbursement Obligations not paid pursuant to
clause sixth above;]




     (8) eighth, to the Reserve Account, any additional amounts required to
reinstate the reserve amount up to the Specified Reserve Amount;




     (9) [tenth, at the Insurer’s discretion if a Trigger Event has occurred on or
before such Payment Date, to the Note Distribution Account, up to the Reserve Amount
available, and then to the Insurer for payment of all Reimbursement Obligations not
paid pursuant to clause sixth above;]




     (10) [eleventh, at the Insurer’s discretion if a Trigger Event has
occurred on or before such payment date, up to the Reserve Amount available, to the
Account Party and/or each Reserve Account Letter of Credit Bank, as applicable, all
amounts payable to the Account Party and/or such Reserve Account Letter of Credit
Bank, as the case may be, pursuant to the applicable Letter of Credit Reimbursement
Agreement, including, without limitation, any accrued and unpaid Letter of Credit
Draw Amounts, Letter of Credit Fees and Letter of Credit Interest and Expenses;] and




     (11) twelfth, any remaining funds will be distributed to the Residual
Interestholder.


Notwithstanding any other provision of this Section 4.4, following the occurrence and
during the continuation of an Event of Default which has resulted in an acceleration of the Notes,
the Indenture Trustee shall apply all amounts on deposit in the Collection Account pursuant to
Section 5.4(b) of the Indenture.




     (b) [Reserved].



     SECTION 4.5 [Reserved].



     SECTION 4.6 Statements to Noteholders and Residual Interestholders. On or before each
Determination Date, the Servicer shall provide to the Residual Interestholders and to the Indenture



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Trustee (with a copy to each Rating Agency[, the Insurer] and the Issuer) for the Indenture Trustee
to forward or otherwise make available to each Noteholder of record as of the most recent Record
Date, a statement setting forth for the Collection Period and Payment Date relating to such
Determination Date the following information (to the extent applicable):



     (a) the aggregate amount being paid on such Payment Date in respect of interest on and
principal of each Class of Notes;



     (b) the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance, the
Class A-4 Note Balance and the Note Factor with respect to each Class of Notes, in each case after
giving effect to payments on such Payment Date;



     (c) (i) the amount on deposit in the Reserve Account and [available under all Reserve Account
Letters of Credit and] the Total Available Reserve Amount, each as of the beginning and end of the
related Collection Period, (ii) the amount deposited in the Reserve Account in respect of such
Payment Date, if any, (iii) the amount withdrawn from the Reserve Account [or drawn under any
Reserve
Account Letter of Credit] and deposited to the Residual Interest Account pursuant to
Section 4.3(d), if any, on such Payment Date, (iv) the balance on deposit in the Reserve
Account on such Payment Date after giving effect to withdrawals therefrom and deposits thereto in
respect of such Payment Date and (v) the change in such balance from the immediately preceding
Payment Date;



     (d) the Noteholder Principal Distribution Amount for such Payment Date;




     (e) the Pool Balance and the Pool Factor as of the close of business on the last day of the
preceding Collection Period;



     (f) the amount of the Servicing Fee to be paid to the Servicer or the amount of the Successor
Servicing Fee to be paid to the Successor Servicer, as applicable, with respect to the related
Collection Period and the amount of any unpaid Servicing Fees or Successor Servicing Fees and the
change in such amount from that of the prior Payment Date;



     (g) the amount of the Noteholders’ Interest Carryover Shortfall, if any, on such Payment Date
and the change in such amount from the preceding Payment Date;



     (h) the aggregate Repurchase Price with respect to Repurchased Contracts paid by (i) the
Servicer and (ii) the Seller with respect to the related Collection Period;



     (i) the amount on deposit in the Pre-Funding Account (until the termination of the Funding
Period);



     (j) the amount on deposit in the Capitalized Interest Account, the Monthly Capitalized
Interest Amount and the Overfunded Capitalized Interest Amount to be released from the Capitalized
Interest Account on the related Payment Date and the amount on deposit in the Capitalized Interest
Account after taking into account such withdrawals;



     (k) the amount of fees to be paid to the Indenture Trustee and the Owner Trustee with respect
to the related Payment Date and the amount of any unpaid fees to the Indenture Trustee and the
Owner Trustee and the change in such amount from that of the prior Payment Date[;



     (l) the Deficiency Amount, if any;



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     (m) the Delinquency Ratio (as defined in the Insurance Agreement) as of such Determination
Date; and



     (n) the Cumulative Net Charge-off Ratio (as defined in the Insurance Agreement) as of such
Determination Date].



Each amount set forth pursuant to clause (a) or (g) above relating to the Notes shall be expressed
as a dollar amount per $1,000 of the Initial Note Balance of the Notes (or Class thereof).



     The Indenture Trustee may make available via the Indenture Trustee’s internet website all
reports or notices required to be provided by the Indenture Trustee under this Section 4.6.
Any information that is disseminated in accordance with the provisions of this Section 4.6
shall not be required to be disseminated in any other form or manner. The Indenture Trustee will
make no representations or
warranties as to the accuracy or completeness of such documents and will assume no
responsibility therefor.



     The Indenture Trustee’s internet website shall be initially located at “[
]” or at such other address as shall be specified by the Indenture Trustee from time to time in
writing to the Noteholders[, the Insurer], the Servicer, the Issuer or any Paying Agent. In
connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee
may require registration and the acceptance of a disclaimer. The Indenture Trustee shall not be
liable for the dissemination of information in accordance with this Agreement.



     SECTION 4.7 No Duty to Confirm. The Indenture Trustee shall have no duty or
obligation to confirm or verify the contents of any reports or certificates delivered to the
Indenture Trustee pursuant to this Agreement believed by the Indenture Trustee to be genuine and to
have been signed or presented by the proper party or parties.



     SECTION 4.8 [Claims Under a Reserve Account Letter of Credit.] [To be added if applicable.]




     (a) [In the event that the Indenture Trustee is required to make a claim under any Reserve
Account Letter of Credit pursuant to this Agreement, the Indenture Trustee shall make a demand
under an available Reserve Account Letter of Credit in accordance with the terms of such Reserve
Account Letter of Credit at least two Business Days prior to the related Payment Date. Amounts
paid to the Indenture Trustee by the applicable Reserve Account Letter of Credit Bank under such
Reserve Account Letter of Credit must be delivered to the Indenture Trustee and shall be deposited
by the Indenture Trustee into the Reserve Account on the Business Day prior to the related Payment
Date. Any payment made by a Reserve Account Letter of Credit Bank under a Reserve Account Letter
of Credit shall be applied solely to the payment of the Notes and for such other purposes as set
forth in Section 4.3 hereof.



     (b) Any and all amounts disbursed by the Indenture Trustee from the Reserve Account from
claims made under a Reserve Account Letter of Credit shall not be considered payment by the Issuer
or from the Reserve Account with respect to such Notes, and shall not discharge the obligations of
the Issuer with respect thereto. The Account Party shall, to the extent the Indenture Trustee
makes any payment with respect to the Notes with amounts disbursed from the Reserve Account from
claims made under a Reserve Account Letter of Credit, become subrogated to the rights of the
recipients of such payments to the extent of such payments. Subject to and conditioned upon any
payment with respect to the Notes by or on behalf of any Reserve Account Letter of Credit Bank, the
Indenture Trustee shall assign to the Account Party all rights to the payment of interest or
principal with respect to the Notes which are then due for payment to the extent of all payments
made by such Reserve Account Letter of Credit Bank, and the Account Party may exercise any option,
vote, right, power or the like, with respect to the Notes to



18









 







the extent that it has made payment
under such Reserve Account Letter of Credit. To evidence such subrogation, the Note Registrar
shall note the Account Party’s rights as subrogee upon the register of Note Owners upon receipt
from the applicable Reserve Account Letter of Credit Bank of proof of payment by such Reserve
Account Letter of Credit Bank of any drawing under the applicable Reserve Account Letter of Credit.
The foregoing subrogation shall in all cases be subject to the rights of the Note Owners to
receive all scheduled payments of principal and interest in respect of the Notes and the right of
the Insurer to receive Reimbursement Obligations.



     (c) The Indenture Trustee shall keep a complete and accurate record of all funds disbursed
under each Reserve Account Letter of Credit and deposited into the Reserve Account and the
allocation of such funds to payment of interest on and principal paid in respect of any Note. Each
Reserve Account
Letter of Credit Bank and the Account Party shall have the right to inspect such records at
reasonable times upon one Business Day’s prior notice to the Indenture Trustee.]



ARTICLE V

THE SELLER




     SECTION 5.1 Representations of Seller. On the Closing Date and on each Funding Date,
the Seller makes the following representations on which the Issuer and the Indenture Trustee shall
rely in accepting the Contracts in trust and in connection with the performance by the Indenture
Trustee of its obligations hereunder [and the Insurer relied in issuing the Policy]. The
representations speak as of the execution and delivery of this Agreement on the Closing Date and on
each Funding Date but shall survive the sale of the Contracts to the Issuer and the subsequent
pledge thereof to the Indenture Trustee pursuant to the Indenture:



     (a) Organization and Good Standing. The Seller is duly formed and validly existing as
a limited liability company in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and has and had at all relevant times, full power,
authority and legal right to acquire and own the Contracts.



     (b) Due Qualification. The Seller is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of property or the conduct of its business
requires such qualifications.



     (c) Power and Authority. The Seller has the power and authority to execute and
deliver this Agreement and the other Transaction Documents to which it is a party and to carry out
their respective terms. The Seller has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Trust and has duly authorized such sale and
assignment to the Trust by all necessary action; and the execution, delivery and performance of
this Agreement and the other Transaction Documents to which it is a party have been duly authorized
by the Seller by all necessary action.



     (d) Valid Sale; Binding Obligations. This Agreement evidences a valid sale, transfer
and assignment of the Trust Estate, enforceable against creditors of and purchasers from the
Seller; and a legal, valid and binding obligation of the Seller enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors’ rights generally and to general principles of equity.



19









 





     (e) No Violation. The consummation of the transactions contemplated by this Agreement
and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof
and thereof does not conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the Seller’s [certificate of
incorporation/limited liability company agreement], or any indenture, agreement or other instrument
to which the Seller is a party or by which it is bound; nor result in the creation or imposition of
any lien upon any of its properties pursuant to the terms of any such indenture, agreement or other
instrument; or violate any law or, to the best of the Seller’s knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction over the Seller or
its properties.



     (f) No Proceedings. There are no proceedings or investigations pending, or to the
Seller’s best knowledge threatened, before any court, regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over the Seller or its properties: (A)
asserting the invalidity of this Agreement, any other Transaction Document to which it is a party
or the Securities; (B) seeking to prevent the issuance of the Securities or the consummation of any
of the transactions contemplated by this Agreement or, any other Transaction Document to which it
is a party; (C) seeking any determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or enforceability of, this
Agreement, any other Transaction Document to which it is a party or the Securities; or (D) relating
to the Seller and which might adversely affect the federal income tax attributes of the Securities.



     (g) Principal Place of Business; Jurisdiction of Organization. The principal place of
business of the Seller is located in Texas. The Seller is formed under the laws of Delaware as a
limited liability company. “Drive Auto Receivables LLC” is the correct legal name of the Seller
indicated on the public records of the Seller’s jurisdiction of formation which shows it to be
organized.



     (h) Investment Company Act. The Seller is not an “investment company” that is
registered or required to be registered under, or otherwise subject to the restrictions of, the
Investment Company Act of 1940, as amended.



     SECTION 5.2 Liability of the Seller; Indemnities. The Seller shall be liable in
accordance herewith only to the extent of the obligations specifically undertaken by the Seller
under this Agreement (provided that this provision shall not protect the Seller against any
liability that would otherwise be imposed by reason of willful misconduct or negligence in the
performance of its duties under this Agreement), and hereby agrees to the following:



     (a) The Seller shall indemnify, defend, and hold harmless the Issuer, the Owner Trustee, the
Indenture Trustee[, the Insurer], the Noteholders and the Residual Interestholder from and against
any loss, liability or expense incurred by reason of the Seller’s violation of federal or State
securities laws in connection with the registration or the sale of the Notes.



     (b) The Seller will pay any and all taxes levied or assessed upon the Issuer or upon all or
any part of the Trust Estate.



     (c) Indemnification under this Section 5.2 will survive the resignation or removal of
the Owner Trustee or the Indenture Trustee and the termination of this Agreement and will include,
without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the
Seller has made any indemnity payments pursuant to this Section 5.2 and the Person to or on
behalf of whom such payments are made thereafter collects any of such amounts from others, such
Person will promptly repay such amounts to the Seller, without interest.




20









 





     (d) The Seller’s obligations under this Section 5.2 are
obligations solely of the Seller and will not constitute a claim against the Seller
to the extent that the Seller does not have funds sufficient to make payment of such
obligations. In furtherance of and not in derogation of the foregoing, the Issuer,
the Servicer, the Indenture Trustee[, the Insurer] and the Owner Trustee, by
entering into or accepting this Agreement, acknowledge and agree that they have no
right, title or interest in or to the Other Assets of the Seller. To the extent
that, notwithstanding the agreements and provisions contained in the preceding
sentence, the Issuer, the Servicer[, the Insurer], the Indenture Trustee or the
Owner Trustee either (i) asserts an interest or claim to, or benefit from, Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section 1111(b)
of the Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), then the Issuer, the Servicer[, the Insurer], the Indenture
Trustee or the Owner Trustee further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and will be expressly subordinated to
the indefeasible payment in full, which, under the terms of the relevant documents
relating to the securitization or conveyance of such Other Assets, are entitled to
be paid from, entitled to the benefits of, or otherwise secured by such Other Assets
(whether or not any such entitlement or security interest is legally perfected or
otherwise entitled to a priority of distributions or application under applicable
law, including insolvency laws, and whether or not asserted against the Seller),
including the payment of post-petition interest on such other obligations and
liabilities. This subordination agreement will be deemed a subordination agreement
within the meaning of Section 510(a) of the Bankruptcy Code. The Issuer, the
Servicer[, the Insurer], the Indenture Trustee and the Owner Trustee each further
acknowledges and agrees that no adequate remedy at law exists for a breach of this
Section 5.2(d) and the terms of this Section 5.2(d) may be enforced
by an action for specific performance. The provisions of this Section
5.2(d) will be for the third party benefit of those entitled to rely thereon and
will survive the termination of this Agreement.



     SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations of,
Seller. Any Person (i) into which the Seller may be merged or consolidated, (ii)
resulting from any merger, conversion, or consolidation to which the Seller shall be a
party, (iii) succeeding to the business of the Seller or (iv) exercising control directly or
indirectly of the Seller, which Person in any of the foregoing cases executes an agreement
of assumption acceptable to the Controlling Party to perform every obligation of the Seller
under this Agreement and the other Transaction Documents to which the Seller is a party,
will be the successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this Agreement;
provided, however, that (x) the Seller shall have delivered to the Indenture Trustee [and
the Insurer] an Officer’s Certificate and an Opinion of Counsel each stating that such
consolidation, conversion, merger, or succession and such agreement or assumption comply
with this Section 5.3 and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with and (y) the Seller shall
have delivered to [the Insurer and] the Indenture Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Issuer in the Contracts, and reciting the details
of such filings, or (B) stating that, in the opinion of such counsel, no such action shall
be necessary to preserve and protect such interest and (z) the Rating Agency Condition shall
have been satisfied. The Seller shall provide notice of any merger, consolidation,
conversion, or succession pursuant to this Section 5.3 to [the Insurer
and] the Rating Agencies then providing a rating for the Notes. Notwithstanding
anything herein to the contrary, the execution of the foregoing agreement of assumption and
compliance with clauses (x), (y) and (z) above shall be conditions to the consummation of
the transactions referred to in clauses (i), (ii), (iii) or (iv) above.



     SECTION 5.4 Limitation on Liability of Seller and Others. The Seller and any officer
or employee or agent of the Seller may rely in good faith on the advice of counsel or on any
document of



21









 








any kind, prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Seller will not be under any obligation to appear in, prosecute, or
defend any legal action that is not incidental to its obligations under this Agreement, and that in
its opinion may involve it in any expense or liability.



     SECTION 5.5 The Seller May Own Notes. The Seller, and any Affiliate of the Seller,
may in its individual or any other capacity become the owner or pledgee of Notes with the same
rights as it would have if it were not the Seller or an Affiliate thereof, except as otherwise
expressly provided herein or in the other Transaction Documents. Except as set forth herein or in
the other Transaction Documents, Notes so owned by the Seller or any such Affiliate will have an
equal and proportionate benefit under the provisions of this Agreement and the other Transaction
Documents, without preference, priority, or distinction as among all of the Notes. Unless all
Notes are owned by the Issuer, the Seller, the Servicer, the Administrator or any of their
respective Affiliates, any Notes owned by the Issuer, the Seller, the Servicer, the Administrator
or any of their respective Affiliates shall be disregarded with respect to the determination of any
request, demand, authorization, direction, notice, consent, vote or waiver hereunder or under any
other Transaction Document.



     SECTION 5.6 Sarbanes-Oxley Act Requirements. To the extent any documents are required
to be filed or any certification is required to be made with respect to the Issuer or the Notes
pursuant to the Sarbanes-Oxley Act, the Issuer hereby authorizes the Servicer and the Seller, or
either of them, to prepare, sign, certify and file any such documents or certifications.



     SECTION 5.7 Compliance with Organizational Documents. The Seller shall comply with
its limited liability company agreement and other organizational documents.



ARTICLE VI

THE SERVICER




     SECTION 6.1 Representations of Servicer. On the Closing Date and on each Funding
Date, the Servicer makes the following representations on which the Issuer and the Indenture
Trustee shall rely in accepting the Contracts in trust and in connection with the performance by
the Indenture Trustee of its obligations hereunder [and the Insurer relies in issuing the Policy].
The representations speak as of the execution and delivery of this Agreement on the Closing Date
and on each Funding Date but shall survive the sale of the Contracts to the Issuer:



     (a) Organization and Good Standing. The Servicer is duly formed and is validly
existing as a corporation in good standing under the laws of the State of Illinois, with power and
authority to own its properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and has and had at all relevant times, full power,
authority and legal right to acquire, own, sell and service the Contracts;



     (b) Due Qualification. The Servicer is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its business in
servicing of the Contracts as required by
this Agreement requires such qualifications except where such failure will not have a material
adverse effect or the Servicer’s ability to service the Contracts as required by this Agreement;



     (c) Power and Authority. The Servicer has the power and authority to execute and
deliver this Agreement and the other Transaction Documents to which it is a party and to carry out
their respective terms; and the execution, delivery and performance of this Agreement and the other



22









 







Transaction Documents to which it is a party have been duly authorized by the Servicer by all
necessary action;



     (d) Binding Obligations. This Agreement and the other Transaction Documents to which
it is a party constitute legal, valid, and binding obligations of the Servicer enforceable in
accordance with their respective terms, subject to the effects of bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’ rights generally and
to general principles of equity;



     (e) No Violation. The consummation of the transactions contemplated by this Agreement
and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof
and thereof do not conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the Servicer’s certificate of
incoproation, or any indenture, agreement or other instrument to which the Servicer is a party or
by which it may be bound; nor result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other instrument (other than
this Agreement); nor, to the best of the Servicer’s knowledge, violate any law applicable to the
Servicer or any order, rule or regulation applicable to the Servicer of any court or of any federal
or state regulatory body, administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties; and



     (f) No Proceedings. There are no proceedings or investigations pending, or, to the
Servicer’s best knowledge, threatened, before any court, regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of this Agreement, any of the other Transaction Documents to which it is a
party or the Securities, (B) seeking to prevent the issuance of the Securities or the consummation
of any of the transactions contemplated by this Agreement or any of the other Transaction Documents
to which it is a party, (C) seeking any determination or ruling that might materially and adversely
affect the performance by the Servicer of its obligations under, or the validity or enforceability
of, this Agreement, any of the other Transaction Documents to which it is a party or the Securities
or (D) relating to the Transaction Servicer and which might adversely affect the federal income tax
attributes of the Securities.



     SECTION 6.2 Indemnities of Servicer. The Servicer will be liable in accordance
herewith only to the extent of the obligations specifically undertaken by the Servicer under this
Agreement, and hereby agrees to the following:



     (a) The Servicer shall defend, indemnify, and hold harmless the Indenture Trustee[, the
Insurer] and the Owner Trustee and their respective officers, directors, employees and agents, and
the Issuer from and against any and all costs, expenses, losses, damages, claims and liabilities
arising out of or resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of a Financed Vehicle.



     (b) The Servicer shall indemnify, defend and hold harmless the Indenture Trustee, the Owner
Trustee, the Issuer[, the Insurer] and their respective officers, directors, agents and employees
from and against any taxes (other than net income, gross receipts, franchise or other similar
taxes) that may at any time be asserted against the Indenture Trustee, the Owner Trustee[, the
Insurer] or the Issuer, with respect to the transactions contemplated herein, including, without
limitation, any sales, general corporation, tangible personal property, privilege, or license taxes
and costs and expenses in defending against the same.



     (c) The Servicer shall indemnify, defend, and hold harmless the Issuer, the Owner Trustee, the
Indenture Trustee[, the Insurer] and the Noteholders from and against any and all costs, expenses,
losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage
or



23









 







liability arose out of, or was imposed upon the Issuer, the Owner Trustee[, the Insurer] or the
Noteholders through the negligence, willful misconduct or bad faith of the Servicer in the
performance of its duties under this Agreement or any other Transaction Document to which it is a
party.



     (d) The Servicer shall indemnify, defend, and hold harmless the Owner Trustee, the Indenture
Trustee[, the Insurer] and each of its officers, directors, employees and agents from and against
all costs, expenses, losses, claims, damages, and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties herein contained, except to
the extent that such cost, expense, loss, claim, damage or liability: (i) shall be due to the
willful misconduct, bad faith, or negligence of the Indenture Trustee, (ii) shall arise from the
Indenture Trustee’s breach of any of its representations or warranties in any material respect set
forth in the Indenture or (iii) shall arise out of or be incurred in connection with the
performance by the Indenture Trustee of the duties of Successor Servicer hereunder.



     (e) The Servicer shall indemnify, defend, and hold harmless, the Indenture Trustee, the Owner
Trustee[, the Insurer] and each of their officers, directors, employees and agents from and against
all costs, expenses, losses, claims, damages and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties contained in the Trust
Agreement, except to the extent that such cost, expense, loss, claim, damage or liability (i) shall
be due to the willful misconduct, bad faith or negligence of the Owner Trustee or (ii) shall arise
from the Owner Trustee’s breach of any of its representations or warranties set forth in the Trust
Agreement.



     (f) The Servicer shall indemnify, defend, and hold harmless, the Backup Servicer and its
officers, directors, employees and agents from and against all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, claim, damage, or liability arose
out of, or was imposed upon the Backup Servicer resulting from the acts or omissions of the
Servicer in the performance of its duties in its capacity as Servicer under this Agreement or any
other Transaction Document to which it is a party.



     (g) Indemnification under this Section 6.2 by the Servicer, with respect to the period
such Person was (or was deemed to be) the Servicer, shall survive the termination of such Person as
Servicer or a resignation by such Person as Servicer as well as the termination of this Agreement
and shall include reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section 6.2 and the
recipient thereafter collects any of such amounts from others, the recipient shall promptly repay
such amounts to the Servicer, without interest.



     SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of, Servicer.
Any Person (i) into which the Servicer may be merged or consolidated, (ii) resulting from any
merger, conversion, or consolidation to which the Servicer shall be a party or (iii) succeeding to
the business of the Servicer (or to substantially all of the Servicer’s business insofar as it
relates to the purchase of retail installment sales contracts from Dealers and the servicing of the
Contracts), which Person in any of the foregoing cases executes an agreement of assumption
acceptable to the Controlling Party to perform every obligation of the Servicer under this
Agreement and the other Transaction Documents to which it is a party, will be the successor to the
Servicer under this Agreement and the other Transaction Documents to which it is a party without
the execution or filing of any paper or any further act on the part of any of
the parties to this Agreement; provided, however, that (x) the Servicer shall have delivered
to [the Insurer,] the Owner Trustee and the Indenture Trustee an Officer’s Certificate and an
Opinion of Counsel each stating that such consolidation, conversion, merger or succession and such
agreement of assumption comply with this Section 6.3 and that all conditions precedent
provided for in this Agreement and the other Transaction Documents to which it is a party relating
to such transaction have been complied with and (y) the Servicer shall have delivered to [the
Insurer,] the Owner Trustee and the Indenture Trustee an



24









 







Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to preserve and protect
the interest of the Issuer in the Contracts, and reciting the details of such filings, or (B)
stating that, in the opinion of such counsel, no such action shall be necessary to preserve and
protect such interest and (z) the Rating Agency Condition shall have been satisfied. The Servicer
shall provide notice of any merger, conversion, consolidation or succession pursuant to this
Section 6.3 to [the Insurer and] the Rating Agencies then providing a rating for the
Securities. The Indenture Trustee shall forward a copy of each such notice to each Noteholder.
Notwithstanding anything herein to the contrary, the execution of the foregoing agreement of
assumption and compliance with clauses (x), (y) and (z) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), (iii) or (iv) above.



     SECTION 6.4 Limitation on Liability of Servicer and Others.



     (a) Neither the Servicer nor any of the directors or officers or employees or agents of the
Servicer will be under any liability to the Issuer, the Indenture Trustee, the Owner Trustee, the
Noteholders[, the Insurer] or the Residual Interestholders, except as provided under this
Agreement, for any action taken or for refraining from the taking of any action pursuant to this
Agreement or for errors in judgment; provided, however, that this provision will not protect the
Servicer or any such Person against any liability that would otherwise be imposed by reason of
willful misconduct or bad faith in the performance of duties of negligence in the performance of
its duties under this Agreement. The Servicer and any director, officer or employee or agent of
the Servicer may rely in good faith on any Opinion of Counsel or on any Officer’s Certificate of
the Seller or certificate of auditors believed to be genuine and to have been signed by the proper
party in respect of any matters arising under this Agreement.



     (b) Except as provided in this Agreement, the Servicer will not be under any obligation to
appear in, prosecute, or defend any legal action that is not incidental to its duties to service
the Contracts in accordance with this Agreement, and that in its opinion may involve it in any
expense or liability; provided, however, that the Servicer may undertake any reasonable action that
it may deem necessary or desirable in respect of this Agreement and the rights and duties of the
parties to this Agreement and the interests of the Noteholders and the Residual Interestholders
under this Agreement. In such event, the legal expenses and costs of such action and any liability
resulting therefrom will be expenses, costs and liabilities of the Servicer.



     SECTION 6.5 Delegation of Duties. The Servicer may, at any time without notice or
consent, delegate any or all of its duties under the Transaction Documents to any sub-contractor
appointed with the written consent of the Controlling Party; provided, that no such delegation
shall relieve the Servicer of its responsibility with respect to such duties and the Servicer shall
remain obligated and liable to [the Insurer,] the Issuer and the Indenture Trustee for its duties
hereunder as if the Servicer alone were performing such duties.



     SECTION 6.6 Drive Consumer Not to Resign as Servicer. Subject to the provisions of
Section 6.3, the Servicer shall not resign from the obligations and duties hereby imposed
on it as Servicer under this Agreement except upon determination that the performance of its duties
under this Agreement shall no longer be permissible under applicable law. Notice of any such
determination permitting the
resignation of the Servicer shall be communicated to [the Insurer and] the Indenture Trustee
within five (5) Business Days thereafter (and, if such communication is not in writing, shall be
confirmed in writing within five (5) Business Days thereafter) and any such determination shall be
evidenced by an Opinion of Counsel to such effect delivered to the [Insurer and] the Indenture
Trustee concurrently with or promptly after such notice. No such resignation shall become
effective until a Successor Servicer shall have taken the actions required by Section
7.1(d) and shall have assumed the responsibilities and obligations of the



25









 







predecessor Servicer
and the Controlling Party has indicated that the Successor Servicer is acceptable to it. The
Indenture Trustee shall forward a copy of each notice so received to each Noteholder and the Rating
Agencies.



     SECTION 6.7 The Backup Servicer.



     (a) Prior to assuming any of the Servicer’s rights and obligations hereunder the Backup
Servicer shall only be responsible to perform those duties specifically imposed upon it by the
provisions hereof. Such duties generally relate to following the provisions herein which would
permit the Backup Servicer to assume some or all of the Servicer’s rights and obligations hereunder
with reasonable dispatch, following notice.



     The Backup Servicer, prior to assuming any of the Servicer’s duties hereunder, may not resign
hereunder unless (i) it arranges for a successor Backup Servicer reasonably acceptable to the
Servicer, the Seller and the Controlling Party, and, if [an Insurer Default has occurred and is
continuing or] the Termination Date has occurred, the Rating Agencies, with not less than 60 days’
notice delivered to the Controlling Party, the Rating Agencies, the Servicer and the Seller and
(ii) such successor Backup Servicer has consented in writing to such appointment. Prior to its
becoming Successor Servicer, the Backup Servicer shall have only those duties and obligations
imposed by it under this Agreement, and shall have no obligations or duties under any agreement to
which it is not a party, including the various agreements named herein.



     (b) The Backup Servicer shall not be required to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if the repayment of such funds or adequate written indemnity against
such risk or liability is not reasonably assured to it in writing prior to the expenditure or risk
of such funds or incurrence of financial liability. Notwithstanding any provision to the contrary,
the Backup Servicer, in its capacity as such, and not in its capacity as Successor Servicer, shall
not be liable for any obligation of the Servicer contained in this Agreement, and the parties shall
look only to the Servicer to perform such obligations.



     (c) The Servicer shall have no liability, direct or indirect, to any party, for the acts or
omissions of the Backup Servicer, whenever such acts or omissions occur whenever such liability is
imposed.



     (d) [Notwithstanding anything to the contrary herein, so long as the Insurer is the
Controlling Party, the Insurer shall have the right to remove the Backup Servicer for cause at any
time prior to the Termination Date and replace the Backup Servicer. In the event that the Insurer
exercises its right to remove and replace [           ] as Backup Servicer, [       ] shall have no
further obligation to perform the duties of the Backup Servicer under this Agreement.] [If Backup
Servicer and the Indenture Trustee are the same party – Any removal and replacement of [      ] in
its capacity as Backup Servicer shall not affect its duties or obligations as Indenture Trustee
under the Transaction Document.]



     SECTION 6.8 Servicer May Own Notes. The Servicer, and any Affiliate of the Servicer,
may, in its individual or any other capacity, become the owner or pledgee of Notes with the same
rights as it would have if it were not the Servicer or an Affiliate thereof, except as otherwise expressly
provided herein or in the other Transaction Documents. Except as set forth herein or in the other
Transaction Documents, Notes so owned by or pledged to the Servicer or such Affiliate will have an
equal and proportionate benefit under the provisions of this Agreement, without preference,
priority or distinction as among all of the Notes.



26









 





ARTICLE VII

TERMINATION OF SERVICER




     SECTION 7.1 Termination of Servicer.



     (a) If a Servicer Termination Event shall have occurred and be continuing, the Indenture
Trustee shall, at the direction of the Controlling Party, by notice given to the Servicer, the
Owner Trustee, the Issuer, the Administrator, the Noteholders[, the Insurer] and each Rating
Agency, terminate the rights and obligations of the Servicer under this Agreement with respect to
the Contracts. Upon the Servicer’s receipt of notice of termination pursuant to this Section
7.1(a) or the Servicer’s resignation in accordance with the terms of this Agreement, the
predecessor servicer shall continue to perform its functions as Servicer under this Agreement, in
the case of termination, only until the date specified in such termination notice or, if no such
date is specified in a notice of termination, until receipt of such notice and, in the case of
resignation, until the later of (i) the date 30 days from the delivery to the Backup Servicer and
the Indenture Trustee of written notice of such resignation (or the date of written confirmation of
such notice prior to the expiration of the 45 days) in accordance with the terms of this Agreement
and (ii) the date upon which the predecessor servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the
Servicer’s resignation or termination hereunder, and, prior to the Termination Date, [if the
Insurer so directs (so long as the Insurer is the Controlling Party),] the Backup Servicer shall be
the successor in all respects to the Servicer in its capacity as servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof;
provided, however, that the Backup Servicer shall not be liable for any actions of any Servicer
prior to such succession or for any breach by the Servicer of any of its representations and
warranties contained in this Agreement or in any related document or agreement. Notwithstanding
the above, if the Backup Servicer is legally unable to so act or, prior to the Termination Date,
[the Insurer otherwise directs (so long as the Insurer is the Controlling Party), the Insurer may
appoint a Successor Servicer, otherwise,] the Indenture Trustee shall appoint (after soliciting
bids from potential servicers), or petition a court of competent jurisdiction to appoint, a
servicer as the Successor Servicer hereunder, in the assumption of all or any part of the
responsibilities, duties or liabilities of the outgoing Servicer hereunder. In the event that [     
], as Backup Servicer, is legally unable to act as Servicer under this Agreement and another
entity is appointed as Successor Servicer under this Section, [       ] shall have no further
obligation to perform the obligations of Servicer or Backup Servicer under this Agreement. In the
event that the Backup Servicer is so prohibited by law from acting or, prior to the Termination
Date, [the Insurer otherwise directs (so long as the Insurer is the Controlling Party),] the
outgoing Servicer shall continue to act as Servicer hereunder until a Successor Servicer [which,
prior to the Termination Date, shall be acceptable to the Insurer (so long as the Insurer is the
Controlling Party)] is appointed and assumes the obligations as Successor Servicer. In the event
the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section
7.1, the Backup Servicer will make reasonable efforts consistent with applicable law to become
licensed, qualified and in good standing under the laws which require licensing or qualification,
in order to perform its obligations as Servicer hereunder or, alternatively, shall retain an agent
who is so licensed, qualified and in good standing.



     (b) Upon succeeding to the duties of the Servicer (in the case of the Backup Servicer) or upon
appointment as Servicer (in the case of the Successor Servicer) pursuant to this Agreement, the
Backup Servicer or the Successor Servicer, as applicable, shall be the successor in all
respects to the predecessor servicer and shall be subject to all the responsibilities, duties, and
liabilities arising thereafter relating thereto placed on the predecessor servicer, and shall be
entitled to (to the extent arranged in accordance with the following paragraph) the Successor
Servicing Fee and all of the rights granted to the predecessor servicer, by the terms and
provisions of this Agreement; provided that neither the Backup Servicer nor the Successor Servicer
shall be liable for the acts or omissions of any predecessor servicer.



27









 





     (c) In connection with such succession of duties (in the case of the Backup Servicer) or
appointment (in the case of a Successor Servicer), the Indenture Trustee may make such arrangements
for the compensation of such Successor Servicer (including Transition Expenses) out of payments on
Contracts as it, [the Insurer (prior to the Termination Date and so long as the Insurer is the
Controlling Party)] and such Successor Servicer shall agree; provided, however, that no such
compensation (excluding Transition Expenses) shall be in excess of the Successor Servicing Fee.
The Backup Servicer, the Indenture Trustee and any such Successor Servicer shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such succession.



     (d) The predecessor servicer shall cooperate with the Successor Servicer and the Backup
Servicer in effecting the termination of the responsibilities and rights of the predecessor
servicer under this Agreement, including the transfer to the Backup Servicer or the Successor
Servicer for administration by it of all cash amounts that shall at the time be held by the
predecessor servicer for deposit, or shall thereafter be received with respect to a Contract, and
the related accounts and records maintained by the Servicer. All reasonable costs and expenses
(including attorneys’ fees and disbursements) incurred in connection with transferring the
Contracts to the Successor Servicer, converting the Servicer’s data to the Successor Servicer’s
computer systems and amending this Agreement to reflect such succession as Servicer pursuant to
this Section shall be paid by the predecessor servicer upon presentation of reasonable
documentation of such costs and expenses (the “Transition Expenses”); provided, however,
that such Transition Expenses shall not exceed $100,000. If such Transition Expenses are not paid
to the Successor Servicer by the predecessor servicer, such Transition Expenses shall be paid under
Section 4.4(a)(1). [In addition, the Insurer shall have the option to pay the Transition
Expenses. So long as the Insurer is the Controlling Party, if the Insurer elects to pay any such
Transition Expenses, the amount paid by the Insurer shall constitute part of the Reimbursement
Obligations due to the Insurer.]



     SECTION 7.2 Notification to Noteholders and Residual Interestholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this Article
VII, the Indenture Trustee will give prompt written notice thereof to the Owner Trustee, the
Issuer[, the Insurer], the Administrator, each Rating Agency and to the Noteholders and the
Residual Interestholders at their respective addresses of record.



ARTICLE
VIII

OPTIONAL PURCHASE




     SECTION 8.1 Optional Purchase of Trust Estate. The Seller and the Servicer shall each
have the right at its option (the “Optional Purchase”) to purchase the Trust Estate from
the Issuer on any Payment Date if, either before or after giving effect to any payment of principal
required to be made on such Payment Date, the aggregate Pool Balance is less than or equal to 15%
of the Original Pool Balance and the aggregate Principal Balances of the Subsequent Contracts
conveyed to the Issuer as of the related Funding Date. The purchase price for the Trust Estate
shall equal the Redemption Price (the “Optional Purchase Price”), which amount shall be
deposited by the Seller or the Servicer into the Collection Account on the Redemption Date. If the
Seller or the Servicer exercises the Optional Purchase, the Notes shall be redeemed and in each
case in whole but not in part on the related Payment Date for the Redemption Price.



ARTICLE
IX

THE POLICY




     SECTION 9.1 Subrogation. The Insurer shall, to the extent it makes any payment with
respect to the Notes, become subrogated to the rights of the recipients of such payments to the
extent of such payments. Subject to and conditioned upon any payment with respect to the Notes by
or on behalf of the



28









 







Insurer, each Noteholder shall be deemed, without further action, to have
directed the Indenture Trustee to assign to the Insurer all rights to the payment of interest or
principal with respect to the Notes which are then due for payment to the extent of all payments
made by the Insurer and the Insurer may exercise any option, vote, right, power or the like with
respect to the Notes to the extent that it has made payment with respect to the Notes whether
pursuant to the Policy or otherwise. Notwithstanding the foregoing, the order of priority of
payments to be made pursuant to Section 4.4 shall not be modified by this clause. To
evidence such subrogation, the Note Registrar shall note the Insurer’s rights as subrogee upon the
register of Noteholders upon receipt from the Insurer of proof of payment by the Insurer of any
Scheduled Payment (as defined in the Policy) or other payment.



     SECTION 9.2 Preference Claims; Direction of Proceedings. In the event that the
Indenture Trustee has received a certified copy of an order of the appropriate court that any
Scheduled Payment paid on a Note has been avoided in whole or in part as a preference payment under
applicable bankruptcy law, the Indenture Trustee shall so notify the Insurer, shall comply with the
provisions of the Policy to obtain payment by the Insurer of such avoided payment, and shall, at
the time it provides notice to the Insurer, notify Holders of the Notes by mail that, in the event
that any Noteholder’s payment is so recoverable, such Noteholder shall be entitled to payment
pursuant to the terms of the Policy. Pursuant to the terms of the Policy, the Insurer will make
such payment on behalf of the Noteholder to the receiver, conservator, debtor-in-possession or
trustee in bankruptcy named in the “Order” (as defined in the Policy) and not to the Indenture
Trustee or any Noteholder directly (unless such Noteholder has previously paid such payment to the
receiver, conservator, debtor-in-possession or trustee in bankruptcy, in which case the Insurer
will make such payment to the Indenture Trustee for payment, in accordance with the instructions to
be provided by the Insurer, to such Noteholder upon proof of such payment reasonably satisfactory
to the Insurer).



     Each “Notice of Claim” (as defined in the Policy) shall provide that the Indenture Trustee, on
its behalf and on behalf of the Noteholders, thereby appoints the Insurer as agent and
attorney-in-fact for the Indenture Trustee and each Noteholder in any legal proceeding with respect
to the Notes. The Indenture Trustee shall promptly notify the Insurer of any proceeding or the
institution of any action (of which a Responsible Officer of the Indenture Trustee has actual
knowledge) seeking the avoidance as a preferential transfer under applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (a “Note Preference Claim”) of any
payment made with respect to the Notes. Each Holder of Notes, by its purchase of Notes, and the
Indenture Trustee hereby agree that so long as an Insurer Default shall not have occurred and be
continuing, the Insurer may at any time during the continuation of any proceeding relating to a
Note Preference Claim direct all matters relating to such Note Preference Claim including (i) the
direction of any appeal of any order relating to any Note Preference Claim and (ii) the posting of
any surety, supersedeas or performance bond pending any such appeal at the expense of the Insurer,
but subject to reimbursement as provided in the Insurance Agreement. In addition, and without
limitation of the foregoing, the Insurer shall be subrogated to, and each Noteholder and the
Indenture Trustee hereby delegate and assign, to the fullest extent permitted by law, the rights of
the Indenture Trustee and each Noteholder in the conduct of any proceeding with respect to a Note
Preference Claim, including, without limitation, all rights of any party to an adversary proceeding
action with respect to any court order issued in connection with any such Note Preference Claim.



     SECTION 9.3 Surrender of Policy. The Indenture Trustee shall surrender the Policy to
the Insurer for cancellation upon the expiration of the Policy in accordance with the terms of the
Policy.]



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ARTICLE X

MISCELLANEOUS PROVISIONS




     SECTION 10.1 Amendment. This Agreement may be amended by the Seller, the Servicer and
the Indenture Trustee, without the consent of any of the Noteholders or any of the Residual
Interestholders, [but with the prior written consent of the Insurer (so long as the Insurer is the
Controlling Party),] to (i) cure any ambiguity, to correct or supplement any provisions in this
Agreement, or to add any other provisions with respect to matters or questions arising under this
Agreement that shall not be inconsistent with the provisions of this Agreement, or (ii) reflect the
succession of a successor Servicer; provided, however, that in connection with any amendment
pursuant to clause (i) above, the action referred to therein shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of any Noteholder; and
provided, further, that in connection with any amendment pursuant to clause (ii) above, the
Rating Agency Condition shall have been satisfied; provided further, however, if any party to this
Agreement is unable to sign any amendment due to its dissolution, winding up or comparable
circumstances, then the consent of the Noteholders representing not less than a majority of the
Outstanding Note Balance [and the consent of the Insurer (so long as the Insurer is the Controlling
Party)] shall be sufficient to amend this Agreement without such party’s signature.



     This Agreement may also be amended from time to time by the Seller, the Servicer and the
Indenture Trustee with the written consent of [the Insurer (so long as the Insurer is the
Controlling Party) and] the Holders of Notes voting as a single class (which consent of any Holder
of a Note given pursuant to this Section or pursuant to any other provision of this Agreement shall
be conclusive and binding on such Holder and on all future Holders of such Note and of any Note
issued upon the registration of transfer thereof or in exchange thereof or in lieu thereof whether
or not notation of such consent is made upon the Note), evidencing not less than a majority of the
then Outstanding Note Balance for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders [or the Insurer]; provided, however, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments
on Contracts or distributions that shall be required to be made on any Note or change the Interest
Rate of any Class of Notes or the Note Principal Distributable Amount or (b) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of the Holders of all
Notes then outstanding; provided further, however, if any party to this Agreement is unable to sign
any amendment due to its dissolution, winding up or comparable circumstances, then the consent of
the Noteholders representing not less than a majority of the Outstanding Note Balance [and the
consent of the Insurer (so long as the Insurer is the Controlling Party)] shall be sufficient to
amend this Agreement without such party’s signature.



     Prior to the execution of any such amendment or consent, the Servicer will provide and the
Indenture Trustee shall distribute written notification of the substance of such amendment or
consent to each Rating Agency then rating the Notes [and the Insurer]. Promptly after the
execution of any such amendment or consent, the Indenture Trustee shall furnish written
notification of the substance of such amendment or consent to each Noteholder. It shall not be
necessary for the consent of Noteholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other consents of Noteholders
provided for in this Agreement) and of evidencing the authorization of the execution thereof by
Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may
prescribe. Prior to the execution of any amendment to this Agreement, the Indenture Trustee shall
be entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and the Opinion of
Counsel referred to in Section 10.2(i)(1). The Indenture Trustee may, but shall not be
obligated to, enter into any



30









 







such amendment which affects the Indenture Trustee’s own rights,
duties or immunities under this Agreement or otherwise.



     SECTION 10.2 Protection of Title to Trust.



     (a) The Seller shall file such financing statements and cause to be filed such continuation
statements, all in such manner and in such places as may be required by law fully to preserve,
maintain, and protect the interest of the Indenture Secured Parties in the Contracts and in the
proceeds thereof and the sale of accounts and chattel paper. The Seller shall deliver (or cause to
be delivered) to the Indenture Trustee [and the Insurer] file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such filing.



     (b) None of the Issuer, the Seller or the Servicer shall change its name, identity, State of
incorporation or formation or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by the Seller in accordance with
Section 10.2(a) seriously misleading within the meaning of Section 9-506, Section 9-507 and
Section 9-508 of the UCC, unless it shall have given the Indenture Trustee [and the Insurer] at
least five days’ prior written notice thereof and shall have promptly filed appropriate amendments
to all previously filed financing statements or continuation statements.



     (c) The Seller, the Issuer and the Servicer shall give the Indenture Trustee [and the Insurer]
at least 60 days’ prior written notice of any relocation of its principal executive office or
change of its State of incorporation or formation if, as a result of any such change, the
applicable provisions of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall promptly file any
such amendment. The Servicer shall at all times maintain each office from which it shall service
Contracts, and its principal executive office, within the United States (other than the State of
Louisiana).



     (d) The Servicer shall maintain accounts and records as to each Contract accurately and in
sufficient detail to permit (i) the reader thereof to know at any time the status of such Contract,
including payments and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each Contract and the amounts
from time to time deposited in the Collection Account in respect of such Contract.



     (e) The Servicer shall maintain its computer systems so that, from and after the time of sale
under this Agreement of the Contracts to the Issuer, the Servicer’s master computer records
(including any back-up archives) that refer to a Contract shall indicate clearly (including by
means of tagging) the interest of the Issuer in such Contract and that such Contract is owned by
the Issuer. Indication of the Trust’s ownership of a Contract shall be deleted from or modified on
the Servicer’s computer systems when, and only when, the Contract shall have been paid in full or
repurchased.



     (f) If at any time the Seller or the Servicer shall propose to sell, grant a security interest
in, or otherwise transfer any interest in automotive receivables to any prospective purchaser,
lender or other transferee, the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or print-outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Contract, shall indicate clearly
(including by means of tagging) that such Contract has been sold and is owned by the Issuer.



     (g) The Servicer shall permit the Indenture Trustee[, the Insurer] and their respective agents
at any time during normal business hours to inspect, audit and make copies of and abstracts from
the Servicer’s records regarding any Contract.



31









 





     (h) Upon request, the Servicer shall furnish to the Indenture Trustee [and the Insurer],
within 20 Business Days, a list of all Contracts (by contract number and name of Obligor) then held
as part of the Trust, together with a reconciliation of such list to the Schedule of Contracts and
to each of the Servicer’s Certificates furnished before such request indicating removal of
Contracts from the Trust.



     (i) The Seller shall deliver to the Indenture Trustee [and the Insurer]:




          (1) upon the execution and delivery of this Agreement and of each amendment
thereto, an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements (and releases of financing statements) and
continuation statements have been executed that are necessary fully to preserve and
protect the interest of the Indenture Trustee in the Contracts, and reciting the
details of the expected filings thereof or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such interest; and




          (2) within 90 days after the beginning of each calendar year beginning with the
first calendar year beginning more than three months after the Initial Cut-off Date,
an Opinion of Counsel, dated as of a date during such 90-day period, either (A)
stating that, in the opinion of such Counsel, all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Indenture Trustee in the Contracts, and
reciting the details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of such Counsel,
no such action shall be necessary to preserve and protect such interest; such
Opinion of Counsel shall also describe the execution and filing of any financing
statements and continuation statements that will, in the opinion of such counsel, be
required to preserve and protect the interest of the Indenture Trustee in the
Contracts, until January 30 in the following calendar year.


Each Opinion of Counsel referred to in clauses (i)(1) or (i)(2) above shall specify
any action necessary (as of the date of such opinion) to be taken in the following year to preserve
and protect such interest.




     SECTION 10.3 Other Liens or Interests. Except for the conveyances and grants of
security interests pursuant to this Agreement and the other Transaction Documents, the Seller shall
not sell, pledge, assign or transfer the Contracts or other property transferred to the Issuer to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on any interest
therein, and the Seller shall defend the right, title and interest of the Issuer in, to and under
such Contracts and other property transferred to the Issuer against all claims of third parties
claiming through or under the Seller.



     SECTION 10.4 Transfers Intended as Sale; Security Interest.



     (a) Each of the parties hereto expressly intends and agrees that the transfers contemplated
and effected under this Agreement are complete and absolute sales and transfers rather than pledges
or assignments of only a security interest and shall be given effect as such for all purposes. It
is further the intention of the parties hereto that the Contracts and related Transferred Assets
shall not be part of the Seller’s estate in the event of a bankruptcy or insolvency of the Seller.
The sales and transfers by the Seller of Contracts and related Transferred Assets hereunder are and
shall be without recourse to, or
representation or warranty (express or implied) by, the Seller, except as otherwise
specifically provided herein. The limited rights of recourse specified herein against the Seller
are intended to provide a remedy for breach of representations and warranties relating to the
condition of the property sold, rather than to the collectibility of the Contracts.



32









 





     (b) Notwithstanding the foregoing, in the event that the Contracts and other Transferred
Assets are held to be property of the Seller, or if for any reason this Agreement is held or deemed
to create indebtedness or a security interest in the Contracts and other Transferred Assets, then
it is intended that:




     (i) This Agreement shall be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction;




     (ii) The conveyance provided for in Section 2.1 shall be deemed to be a grant
by the Seller, and the Seller hereby grants, to the Issuer of a security interest in all of
its right (including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the Contracts and other Transferred Assets, to secure
such indebtedness and the performance of the obligations of the Seller hereunder;




     (iii) The possession by the Issuer, or the Servicer as the Issuer’s agent, of the
Contract Files and any other property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be “possession by the secured party” or possession by
the purchaser or a person designated by such purchaser, for purposes of perfecting the
security interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and




     (iv) Notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of the
Issuer for the purpose of perfecting such security interest under applicable law.



     SECTION 10.5 Notices, Etc. All demands, notices and communications hereunder shall be
in writing and shall be delivered or mailed by registered or certified first-class United States
mail, postage prepaid, hand delivery, prepaid courier service, or by facsimile, and addressed in
each case as set forth on Schedule II or at such other address as shall be designated in a written
notice to the other parties hereto. Any notice required or permitted to be mailed to a Noteholder
shall be given by first class mail, postage prepaid, at the address of such Noteholder as shown in
the Note Register. Delivery shall occur only upon receipt or reported tender of such communication
by an officer of the recipient entitled to receive such notices located at the address of such
recipient for notices hereunder; provided, however, that any notice to a Noteholder mailed within
the time prescribed in this Agreement shall be conclusively presumed to have been duly given,
whether or not the Noteholder shall receive such notice.



     SECTION 10.6 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY
LAW ALL OTHER RULES THEREOF RELATING TO CONFLICTS OF LAW AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.



     SECTION 10.7 Headings. The section headings hereof have been inserted for convenience
of reference only and shall not be construed to affect the meaning, construction or effect of this
Agreement.



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     SECTION 10.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.



     SECTION 10.9 Waivers. No failure or delay on the part of the Servicer, the Seller[,
the Insurer], the Issuer or the Indenture Trustee in exercising any power or right hereunder (to
the extent such Person has any power or right hereunder) shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or demand on any party
hereto in any case shall entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by any party hereto under this Agreement shall, except as may otherwise be
stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval
under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be
granted hereunder.



     SECTION 10.10 Entire Agreement. The Transaction Documents contain a final and complete
integration of all prior expressions by the parties hereto with respect to the subject matter
thereof and shall constitute the entire agreement among the parties hereto with respect to the
subject matter thereof, superseding all prior oral or written understandings. There are no
unwritten agreements among the parties.



     SECTION 10.11 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.



     SECTION 10.12 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns. This
Agreement shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such time as the parties
hereto shall agree.



     SECTION 10.13 Acknowledgment and Agreement. By execution below, the Seller expressly
acknowledges and consents to the pledge, assignment and grant of a security interest in the
Contracts and the other Transferred Assets by the Issuer to the Indenture Trustee on behalf of the
Indenture Secured Parties pursuant to the Indenture for the benefit of the Indenture Secured
Parties. In addition, the Seller hereby acknowledges and agrees that for so long as the Notes are
outstanding, the Indenture Trustee will have the right to exercise all powers, privileges and
claims of the Issuer under this Agreement.



     SECTION 10.14 Cumulative Remedies. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.



     SECTION 10.15 Nonpetition Covenant. Each party hereto agrees that, prior to the date
which is one year and one day after payment in full of all obligations of each Bankruptcy Remote
Party in respect of all securities issued by any Bankruptcy Remote Party (i) such party shall not
authorize any Bankruptcy Remote Party to commence a voluntary winding-up or other voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to such
Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or
other similar official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against such Bankruptcy Remote
Party, or to make a



34









 







general assignment for the benefit of, its creditors generally, any party
hereto or any other creditor of such Bankruptcy Remote Party, and (ii) none of the parties hereto
shall commence or join with any other Person in commencing any proceeding against such Bankruptcy
Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or statute now or
hereafter in effect in any jurisdiction. This Section shall survive the termination of this
Agreement.



     SECTION 10.16 Submission to Jurisdiction; Waiver of Jury Trial. Each of the parties
hereto hereby irrevocably and unconditionally:



     (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement or any documents executed and delivered in connection herewith, or for recognition and
enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;



     (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



     (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address determined in accordance with Section 10.5 of this
Agreement;



     (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



     (e) to the extent permitted by applicable law, each party hereto irrevocably waives all right
of trial by jury in any action, proceeding or counterclaim based on, or arising out of, under or in
connection with this Agreement, any other Transaction Document, or any matter arising hereunder or
thereunder.



     SECTION 10.17 Limitation of Liability. Neither the Indenture Trustee nor any of its
directors, officers or employees shall be liable for any action taken or omitted to be taken by it
or them hereunder, or in connection herewith, except that the Indenture Trustee shall be liable for
its negligence, bad faith or willful misconduct; nor shall the Indenture Trustee be responsible for
the validity, effectiveness, value, sufficiency or enforceability against the Issuer of this
Agreement or any of the Trust Estate (or any part thereof). Notwithstanding any term or provision
of this Agreement, the Indenture Trustee shall incur no liability to the Issuer for any action
taken or omitted by the Indenture Trustee in connection with the Trust Estate, except for the
negligence, bad faith or willful misconduct on the part of the Indenture Trustee, and, further,
shall incur no liability to the Issuer except for negligence, bad faith or willful misconduct in
carrying out its duties to the Issuer. The Indenture Trustee shall be protected and shall incur no
liability to any such party in relying upon the accuracy, acting in reliance upon the contents, and
assuming the genuineness of any notice, demand, certificate, signature, instrument or other
document reasonably believed by the Indenture Trustee to be genuine and to have been duly executed
by the appropriate signatory, and (absent actual knowledge of a Responsible Officer of the
Indenture Trustee to the contrary) the Indenture Trustee shall not be required to make any
independent investigation with respect thereto. The Indenture Trustee shall at all times be free
independently to establish to its
reasonable satisfaction, but shall have no duty to independently verify, the existence or
nonexistence of facts that are a condition to the exercise or enforcement of any right or remedy
hereunder or under any of the other Transaction Documents. The Indenture Trustee may consult with
independent counsel, and



35









 







shall not be liable for any action taken or omitted to be taken by it
hereunder in good faith and in accordance with the written advice of such counsel.



     SECTION 10.18 Third-Party Beneficiaries. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, the Noteholders and the Residual Interestholders and their
respective successors and permitted assigns and [each of] the Owner Trustee [and the Insurer] shall
be an express third party beneficiary [beneficiaries] hereof and may enforce the provisions hereof
as if it were a party hereto. Except as otherwise provided in this Section, no other Person will
have any right hereunder.



     SECTION 10.19 [Limitation of Rights. All of the rights of the Insurer in, to and under
this Agreement (including, but not limited to, all of the Insurer’s rights as a third party
beneficiary of this Agreement and all of the Insurer’s rights to receive notice of any action
hereunder and to give or withhold consent to any action hereunder) shall terminate upon the
termination of the Insurance Agreement in accordance with the terms thereof and the payment in full
of all amounts owing to the Insurer.]



     SECTION 10.20 Information Requests. The parties hereto shall provide any
information available and deliverable without undue expense as requested by the Servicer, the
Issuer, the Seller or any of their Affiliates, in order to comply with or obtain more favorable
treatment under any current or future law, rule, regulation, accounting rule or principle.



     SECTION 10.21 Regulation AB. The Seller and the Servicer acknowledge and agree that
the purpose of this Section 10.21 is to facilitate compliance by the Seller with the
provisions of Regulation AB and related rules and regulations of the Commission. The Seller shall
not exercise its right to request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission under the Securities Act and the
Exchange Act. The Servicer acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Seller in good faith for delivery of
information under these provisions on the basis of evolving interpretations of Regulation AB. The
Servicer shall cooperate fully with the Seller and the Issuer to deliver to the Seller and the
Issuer (including any of its assignees or designees) any and all statements, reports,
certifications, records and any other information necessary in the good faith determination of the
Seller or the Issuer to permit the Seller to comply with the provisions of Regulation AB, together
with such disclosures relating to the Servicer and the Contracts, or the servicing of the
Contracts, reasonably believed by the Servicer to be necessary in order to effect such compliance.



     SECTION 10.22 Information to Be Provided by the Indenture Trustee.



     (a) For so long as the Issuer is required to report under the Exchange Act, the Indenture
Trustee shall (i) on or before the fifth Business Day of each month, provide to the Seller, in
writing, such information regarding the Indenture Trustee as is requested by the Seller for the
purpose of compliance with Item 1117 of Regulation AB; provided, however, that the Indenture
Trustee shall not be required to provide such information in the event that there has been no
change to the information previously provided by the Indenture Trustee to Seller, and (ii) as
promptly as practicable following notice to or discovery by a Responsible Officer of the Indenture
Trustee of any changes to such information, provide to the Seller, in writing, such updated
information.



     (b) As soon as available but no later than March 15 of each calendar year for so long as the
Issuer is required to report under the Exchange Act, commencing in 20[ ], the Indenture Trustee
shall:



36









 






     (i) deliver to the Seller a report regarding the Indenture Trustee’s assessment of
compliance with the Servicing Criteria during the immediately preceding calendar year, as
required under paragraph (b) of Rule 13a-18, Rule 15d-18 of the Exchange Act and Item 1122
of Regulation AB. Such report shall be signed by an authorized officer of the Indenture
Trustee, and shall address each of the Servicing Criteria specified in Exhibit F or
such criteria as mutually agreed upon by the Seller and the Indenture Trustee;




     (ii) deliver to the Seller a report of a registered public accounting firm reasonably
acceptable to the Transferor that attests to, and reports on, the assessment of compliance
made by the Indenture Trustee and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act; and




     (iii) deliver to the Seller and any other Person that will be responsible for signing
the certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the Sarbanes-Oxley Act) on
behalf of the Issuer or the Seller a certification substantially in the form attached hereto
as Exhibit G or such form as mutually agreed upon by the Seller and the Indenture
Trustee.




     (iv) [           ] acknowledges, in its capacity as Backup Servicer and
Indenture Trustee under this Agreement and in its capacity as Indenture Trustee under the
Transaction Documents, that to the extent it is deemed to be participating in the servicing
function pursuant to Item 1122 of Regulation AB, it will take any action reasonably
requested by the Servicer to ensure compliance with the requirements of Sections
10.22(b)(i) and 10.22(b)(ii) hereof and with Item 1122 of Regulation AB;


The Indenture Trustee acknowledges that the parties identified in clause (b)(iii) above may
rely on the certification provided by the Indenture Trustee pursuant to such clause in signing a
Sarbanes Certification and filing such with the Commission.




[SIGNATURES FOLLOW]





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     IN WITNESS WHEREOF, the parties have caused this Sale and Servicing Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day and year first above
written.



	 	 	 	 	 
	 	 	Drive Auto Receivables LLC, as Seller
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name:
	 	 	Title:






Sale and Servicing Agreement (20[   ]-[   ])




S-1









 





	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[   ]-[       ], as
Issuer
	 
	 	 	 	 
	 

	 	By:
	 	[            ], not in its individual capacity but

solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name:
	 	 	Title:






Sale and Servicing Agreement (20[   ]-[       ])




S-2









 





	 	 	 	 	 
	 	 	DRIVE CONSUMER USA INC., as Servicer
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name:
	 	 	Title:






Sale and Servicing Agreement (20[   ]-[       ])




S-3









 





	 	 	 	 	 
	 	 	[                      ], [as Backup Servicer]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name:
	 	 	Title:






Sale and Servicing Agreement (20[  ]-[       ])




S-4









 





	 	 	 	 	 
	 	 	[                     ], not in its individual capacity but

solely as Indenture Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Name:
	 	 	Title:






Sale and Servicing Agreement (20[   ]-[       ])





S-5










 





SCHEDULE I




REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE CONTRACTS




     (a) Characteristics of Contracts.




     (i) Each Contract has been originated in the United States by a Dealer for the retail
sale of a Financed Vehicle in the ordinary course of such Dealer’s business, has been fully
and properly executed by the parties thereto, has been validly assigned by such Dealer to
the Originator, and validly assigned to the Seller by Drive Consumer pursuant to the
Contribution Agreement in accordance with its terms;




     (ii) each Contract creates a valid, subsisting, and enforceable first priority security
interest for the benefit of the Originator in the Financed Vehicle, which security interest
has been, in turn, assigned by Drive Consumer to the Seller and assigned by the Seller to
the Issuer;




     (iii) each Contract contains customary and enforceable provisions such that the rights
and remedies of the holder thereof shall be adequate for realization against the collateral
of the benefits of the security;




     (iv) each Contract provides for level monthly payments (provided that the payment in
the first or last month in the life of the Contract may be minimally different from the
level payment) that fully amortize the Amount Financed by maturity and yield interest at the
APR over an original term of no less than [ ] months and no greater than [ ] months;




     (v) each Contract provides for, in the event that such Contract is prepaid in full, a
prepayment that fully pays the Principal Balance;




     (vi) each Contract is a Simple Interest Contract; and




     (vii) no Obligor has defaulted and no Obligor will default, in each case, on any
portion of the first Contract Scheduled Payment due on the related Contract.



     (b) Schedule of Contracts. The information with respect to a Contract transferred on
the Closing Date or Funding Date, as applicable, as set forth in the Schedule of Contracts for such
date is true and correct in all material respects as of the close of business on the Initial
Cut-Off Date and on each Subsequent Cut-Off Date, and no selection procedures adverse to the
Noteholders [or the Insurer] have been utilized in selecting the Contracts.



     (c) Compliance with Law. Each Contract and the sale of the related Financed Vehicle
complied at the time it was originated or made and complies at the execution of this Agreement, in
all material respects with all requirements of applicable federal, state, and local laws and
regulations thereunder, including, without limitation, usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Federal
Reserve Board’s Regulations B and Z, and state adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and equal credit opportunity and
disclosure laws.



     (d) Binding Obligation. Each Contract represents the genuine, legal, valid, and
binding payment obligation in writing of the Obligor, enforceable by the holder thereof in
accordance with its terms subject to the effect of bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors rights generally and to general principles of
equity and no Obligor has any right



I-1









 







of action against the Seller, the Servicer or the Issuer or any right to any offset,
counterclaim or rescission.




     (e) No Government or Corporate Obligor. None of the Contracts is due from the United
States or any State or from any agency, department, or instrumentality of the United States or any
State. None of the Contracts is due from any Person that is not a natural person.



     (f) Obligor Bankruptcy. To the knowledge of the Seller, at the applicable Cut-Off
Date, no Obligor was the subject of a bankruptcy proceeding since origination.



     (g) Security Interest in Financed Vehicle. Immediately prior to the sale, assignment
and transfer thereof pursuant to Section 2.1 hereof, each Contract was secured by a validly
perfected first priority security interest in the Financed Vehicle for the benefit of the
Originator as secured party or all necessary and appropriate actions had been commenced (including
the filing of the related applications for Certificates of Title with the related department of
motor vehicles) that would result in the valid perfection of a first priority security interest in
the Financed Vehicle in favor of the Indenture Trustee for the benefit of the Originator as secured
party. Immediately after the sale, assignment and transfer thereof to the Issuer, although the
related Certificates of Title will not indicate the Issuer or Owner Trustee as secured party, each
Contract will be secured by an enforceable and perfected security interest in the Financed Vehicle
in favor of the Indenture Trustee which security interest is prior to all other Liens in such
Financed Vehicle.



     (h) Contracts in Force. No Contract has been satisfied, subordinated, or rescinded,
nor has any Financed Vehicle been released from the Lien granted by the related Contract in whole
or in part.



     (i) No Waiver. No provision of a Contract has been waived.



     (j) No Liens. To the best of the Seller’s knowledge, no liens or claims have been
filed for work, labor, materials, taxes or liens that arise out of operation of law relating to a
Financed Vehicle that are prior to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by the Contract.



     (k) No Default. Except for delinquencies continuing for a period of not more than 30
days as of the applicable Cut-Off Date, no default, breach, violation or event permitting
acceleration under the terms of any Contract has occurred and there was no material
misrepresentation by any Obligor on such Obligor’s credit application; and no continuing condition
existed that with notice or the lapse of time would constitute a default, breach, violation or
event permitting acceleration under the terms of any Contract has arisen.



     (l) Insurance. The Seller, in accordance with its customary procedures, has
determined that the Obligor has obtained physical damage insurance covering the Financed Vehicle or
has applied for such insurance: (i) in an amount at least equal to the lesser of (A) the actual
cash value of the related Financed Vehicle or (B) the unpaid Principal Balance of such Contract;
(ii) naming the Originator as loss payee; and (iii) insuring against loss and damage due to fire,
theft, transportation, collision and other risks generally covered by comprehensive and collision
damage.



     (m) Title. It is the intention of the Seller that the transfer and assignment herein
contemplated constitute a sale of the Contracts from the Seller to the Issuer and that the interest
in and title to the Contracts not be part of the Seller’s estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy law. No Contract has been sold,
transferred, assigned, or pledged by the Seller to any Person other than the Issuer and the
Indenture Trustee. Immediately prior to the transfer and



I-2









 







assignment of each Contract herein contemplated, the Seller had good and marketable title to
such Contract free and clear of all Liens and rights of others and, immediately upon the transfer
thereof, the Issuer shall have good and marketable title to such Contract, free and clear of all
Liens and rights of others other than the pledge to the Indenture Trustee; and each such transfer
and pledge has been perfected under the UCC.



     (n) Lawful Assignment. No Contract has been originated in, or is subject to the laws
of, any jurisdiction under which the sale, transfer and assignment of such Contract under this
Agreement or pursuant to transfers of the Contracts shall be unlawful, void or voidable.



     (o) All Filings Made. All filings (including, without limitation, UCC filings)
necessary in any jurisdiction to give the Issuer and the Indenture Trustee a first priority
perfected ownership interest in the Contracts have been made.



     (p) Chattel Paper. Each Contract (A) constitutes “tangible chattel paper” or a
“payment intangible,” each as defined in the UCC and (B) if such Contract is “tangible chattel
paper,” shall be maintained in its original “tangible” form[, unless the Insurer has consented in
writing to such chattel paper being maintained in another form or medium].



     (q) Maturity of Contracts. Each Contract in the Trust had an original maturity of no
less than [ ] months and no greater than [ ] months and a remaining term to maturity of not less
than [ ] months as of the applicable Cut-Off Date.



     (r) One Original. There is only one original executed copy of each Contract and such
original has been delivered to the Indenture Trustee.



     (s) U.S. Resident. Each Contract is payable in U.S. Dollars and to the best of the
Seller’s knowledge, the Obligor thereon is an individual who is a U.S. resident.



     (t) Final Contract Scheduled Payment. Each Contract has a final Scheduled Contract
Payment at least six months prior to the Final Scheduled Payment Date of the Class [ ] Notes.



     (u) Payments Due. The weighted average of the number of Contract Scheduled Payments
that have been due under the Contracts since origination is at least [ ].



     (v) Original Principal Balance. Each Contract has a Principal Balance of at least $[
] and not greater than $[ ] as of the applicable Cut-Off Date.



     (w) No Advances. No advances were made on behalf of the Obligor to satisfy any of the
representations and warranties set forth herein with respect to the related Contract.



     (x) Repossession. No Financed Vehicle was repossessed on or prior to the applicable
Cut-Off Date.



     (y) Credit and Collection Policy. Each Contract satisfies in all material respects
the requirements under the Credit and Collection Policy that was in effect at the time as of the
Closing Date or the Funding Date. Each Contract originated by a Dealer was underwritten by the
Originator pursuant to agreed upon and well-articulated underwriting and documentation standards.
The collection practices used with respect to each Contract have been in all respects legal,
proper, prudent and customary in the motor vehicle financing and servicing business. The
Originator and the Servicer will not amend or modify the Credit and Collection Policy in any
material respect without the prior written consent of the



I-3









 







Controlling Party, such consent not to be unreasonably withheld. [The Originator and the
Servicer will notify the Insurer of all amendments of the Credit and Collection Policy and send
copies of such amendments to the Insurer.]



     (z) No Proceedings. There are no proceedings pending, or to the best of the Seller’s
knowledge, threatened, wherein the Obligor or any governmental agency has alleged that any Contract
is illegal or unenforceable.



     (aa) Origination. The Seller has duly fulfilled all obligations to be fulfilled on
the lender’s part under or in connection with the origination, acquisition and assignment of the
Contracts and the related Trust Estate, including, without limitation, giving any notices or
consents necessary to effect the acquisition of the Contracts and the related Trust Estate by the
Issuer, and has done nothing to impair the rights of the Issuer[, the Insurer] or the Noteholders
in payments with respect thereto.



     (bb) Tax Liens. The sale, transfer, assignment and conveyance of the Contracts and
the related Trust Estate by the Seller hereunder is not subject to and will not result in any
Transfer Taxes other than Transfer Taxes which have or will be paid by the Seller as due. In the
event that the Issuer or the Indenture Trustee receives actual notice of any Transfer Taxes arising
out of the transfer, assignment and conveyance of the Contracts and the related Trust Estate, on
written demand by the Issuer or the Indenture Trustee, or upon the Seller’s otherwise being given
notice thereof by the Issuer or the Indenture Trustee, the Seller shall pay, and otherwise
indemnify and hold the Issuer[, the Insurer] and the Indenture Trustee harmless, on an after-tax
basis, from and against any and all such Transfer Taxes (it being understood that the Noteholders,
the Indenture Trustee[, the Insurer] and the Issuer shall have no obligation to pay such Transfer
Taxes).



     (cc) Dealers. Each Dealer that originated a Contract for sale to the Originator has
been selected by the Originator based on the Originator’s underwriting criteria, its financial and
operating history and record of compliance with requirements of applicable federal and state law.
Each Dealer from whom the Originator purchases Contracts directly has entered into an agreement
with the Originator providing for the sale of motor vehicle loans from time to time by such Dealer
to the Originator and is authorized to originate Contracts for sale to the Originator under the
Originator’s underwriting guidelines. To the best of the Seller’s knowledge, no Dealer has engaged
in any conduct constituting fraud or misrepresentation with respect to the Contracts or the related
Trust Estate.



     (dd) Adverse Selection. The Seller used no selection procedures that identified the
Contracts as being less desirable or valuable than other comparable motor vehicle loans originated
or acquired by the Seller.



     (ee) [Computer Tape. The computer tape made available to the Insurer by the Seller on
the Closing Date or the Funding Date, as applicable, was complete and accurate as of the applicable
Cut-Off Date and includes a description of the same Contracts that are described on the related
Schedule of Contracts.]



     (ff) Delinquent Taxes. With respect to each Initial Contract, as of the Closing Date,
there is no lien against any related Financed Vehicle for delinquent taxes. With respect to each
Subsequent Contract, as of the related Funding Date, there is no lien against any related Financed
Vehicle for delinquent taxes.



     (gg) Proceeds. At the time of origination of each Contract, the proceeds of such
Contract were fully disbursed. There is no requirement for future advances thereunder, and all
fees and expenses in connection with the origination of such Contract have been paid.



I-4









 





     (hh) Obligor History. No Contract is due from an Obligor who has defaulted under a
previous contract with the Seller or the Originator.



     (ii) Dealer Agreements. The Dealer that sold each Contract to the Originator has
entered into a Dealer Agreement and such Dealer Agreement constitutes the entire agreement between
the Originator and the related Dealer with respect to the sale of such Contract to the Originator.
Each such Dealer Agreement is in full force and effect and is the legal, valid and binding
obligation of such Dealer, there have been no material defaults by such Dealer or by the Originator
under such Dealer Agreement; the Originator has fully performed all of its obligations under such
Dealer Agreement; the Originator has not made any statements or representations to such Dealer
(whether written or oral) inconsistent with any term of such Dealer Agreement; the purchase price
(as specified in the applicable Dealer Agreement, if any) for such Contract has been paid in full
by the Originator; there is no other payment due to such Dealer from the Originator for the
purchase of such Contract; such Dealer has no right, title or interest in or to any Contract; there
is no prior course of dealing between such Dealer and the Originator which will affect the terms of
such Dealer Agreement; any payment owed to such Dealer by the Originator is a corporate obligation
of the Originator in the nature of a bonus for amounts collected by the Originator in excess of the
purchase price for a Contract.



     (jj) Risk of Loss. Each Contract contains provisions requiring the Obligor to assume
all risk of loss or malfunction of the related Financed Vehicle and to maintain liability insurance
with respect thereto, requiring the Obligor to pay all sales, use, property, excise and other
similar taxes imposed on or with respect to the related Financed Vehicle and making the Obligor
liable for all payments required to be made thereunder, without any setoff, counterclaim or defense
for any reason whatsoever, subject only to the Obligor’s right of quiet enjoyment.



     (kk) No Substitution. No Contract provides for the substitution, exchange or addition
of any Financed Vehicle subject to such Contract.



     (ll) Assignment. The rights with respect to each Contract are assignable by the
Seller without the consent of any Person other than consents which will have been obtained on or
before the transfer to the Issuer.



     (mm) Consumer. To the best of the Seller’s knowledge, no Obligor is a Person involved
in the business of leasing or selling equipment of a type similar to the Financed Vehicles.



     (nn) No Defects. Each Financed Vehicle was properly delivered to the Obligor in good
repair, without defects and in satisfactory order. Each Financed Vehicle was accepted by the
Obligor after reasonable opportunity to inspect and test such Financed Vehicle and no Obligor has
informed the Seller of any defect therein.



     (oo) Certificate of Title. The Servicer holds the Certificate of Title or the
application for a Certificate of Title for each of the Financed Vehicles as of the date on which
the related Contract is transferred to the Issuer and will obtain within 180 days of such date
Certificates of Title with respect to each Financed Vehicle as to which the Servicer holds only
such application.



     (pp) No Extensions; Modifications. No Contract has been extended, rewritten or is
subject to any forbearance, or any other such modified payment plan other than in accordance with
the Originator’s Credit and Collection Policy (of which Indenture Trustee retains a copy and which
is available from such Indenture Trustee upon request) as in effect on the Closing Date or the
Funding Date, as applicable.



I-5









 




Notwithstanding anything in this Section to the contrary, the Seller makes no representation or
warranty whether any Contract is or could become subject to the Servicemembers Civil Relief Act.





I-6









 








SCHEDULE II




NOTICE ADDRESSES




If to the Issuer:

Drive Auto Receivables Trust 20[ ]-[ ]

c/o [               ]

[                ]

Facsimile: [           ]




If to Drive Consumer, the Servicer of the Administrator:

Attention: Drive Consumer USA Inc.

8585 North Stemmons Freeway

Suite 1100-N

Dallas, Texas 75247

Facsimile: [           ]




If to the Seller:

Attention: Drive Auto Receivables USA Inc.

8585 North Stemmons Freeway

Suite 1100-N

Dallas, Texas 75247

Facsimile: [            ]




[If to the Backup Servicer:]

[                 ]

Facsimile: [(    )            ]




If to the Indenture Trustee:

[                 ]

[
                ]

Facsimile: [                 ]




If to the Owner Trustee:

[                 ]

[                 ]

Facsimile: [            ]




If to Moody’s:

Moody’s Investors Service, Inc.

99 Church Street

New York, New York 10007

Facsimile: [                 ]




If to S&P:

Standard & Poor’s Ratings Services

25 Broadway

New York, New York 10004

Facsimile: [           ]




[If to the Insurer:

                ]




II-1









 








SCHEDULE III




CUSTODIAL FEES





III-1









 








EXHIBIT A




NOTICE OF FUNDING DATE




     In accordance with the Indenture dated as of [         ], 20[ ] (as amended or
supplemented from time to time, the “Indenture”) by and between Drive Auto Receivables
Trust 20[ ]-[ ] (the “Issuer”), and [         ], as
indenture trustee (the “Indenture Trustee”), the undersigned hereby gives notice of the
Funding Date to occur on or before [         ], 20[ ] for each of the Contracts listed on the Schedule of
Contracts to be delivered to you on or prior to such Funding Date. Unless otherwise defined
herein, capitalized terms have the meanings set forth in Appendix A to the Sale and
Servicing Agreement dated as of [         ], 20[ ] by and among the Issuer, the
Indenture Trustee, Drive Consumer USA Inc., [Backup Servicer] and Drive Auto Receivables LLC, as
Seller (the “Seller”).



     Such Subsequent Contracts represent the following amounts:



	 	 	 	 	 
	Aggregate Principal Balance of Subsequent Contracts as of the Subsequent Cut-Off Date:
	 	$	                    	 
	Amount to be wired to or at the direction of the Seller in payment for such Subsequent Contracts:
	 	$	                    	 





Subsequent Cut-Off Date: ___, 20[         ]




     The undersigned hereby certifies that, in connection with the Funding Date specified
above, the undersigned has complied with all terms and provisions specified in Section 2.5
of the Sale and Servicing Agreement, including, but not limited to, delivery of the Officer’s
Certificate, as specified therein.



	 	 	 	 	 	 	 
	 	 	Date:                     , 20[         ]	 	 
	 
	 	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DRIVE CONSUMER USA INC., 
as Administrator	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 






A-1









 








EXHIBIT B




JOINT OFFICER’S CERTIFICATE




re: Funding Date




DRIVE CONSUMER USA INC.

DRIVE AUTO RECEIVABLES LLC

DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




     This Officer’s Certificate is being delivered in accordance with Section 2.5 of
that certain Sale and Servicing Agreement dated as of [         ], 20[ ] (as amended,
modified or supplemented from time to time, the “Sale and Servicing Agreement”) by and
among Drive Auto Receivables Trust 20[ ]-[ ] (the “Issuer”), Drive Auto Receivables LLC
(the “Seller”), Drive Consumer USA Inc. (the “Servicer”), [         ]
(the “Backup Servicer”) and [         ] (the “Indenture Trustee”). Terms
not otherwise defined herein shall have the meanings ascribed thereto in the Appendix A to
the Sale and Servicing Agreement. Reference is hereby made to the Funding Date to occur on
___, 20[ ] (the “Subject Funding Date”).



     By his or her signature below, each of the undersigned officers on behalf of the Servicer, the
Seller, and the Issuer, as the case may be, certify to the Indenture Trustee [and the Insurer]
that:



     (a) the representations and warranties of the Seller contained in Section 2.2 of the
Sale and Servicing Agreement with respect to the Subsequent Contracts to be acquired on the Subject
Funding Date (which are listed on the attached Schedule of Contracts) are true and correct as of
the applicable date set forth on Schedule I to the Sale and Servicing Agreement;



     (b) the representations of the Seller contained in Section 5.1 of the Sale and
Servicing Agreement are true and correct as of the date hereof;



     (c) the representations of the Servicer set forth in Section 6.1 of the Sale and
Servicing Agreement are true and correct as of the date hereof; and



     (d) the requirements stated in Section 2.5 of the Sale and Servicing Agreement
regarding the Subsequent Contracts to be acquired on the Subject Funding Date have been met.



	 	 	 	 	 
	 	 	Date:                     , 20__
	 
	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]
	 
	 	 	 	 
	 

	 	By:
	 	DRIVE CONSUMER USA INC., 

as Administrator
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






B-1









 








	 	 	 	 	 
	 	 	DRIVE CONSUMER USA INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






B-2









 






SCHEDULE OF CONTRACTS




B-3









 








EXHIBIT C




ASSIGNMENT PURSUANT TO SALE AND SERVICING AGREEMENT




[Date]




     For value received, in accordance with the Sale and Servicing Agreement (the “Agreement”),
dated as of [         ], 20[ ], by and among Drive Auto Receivables Trust 20[ ]-[
], a Delaware statutory trust (the “Issuer”), Drive Auto Receivables Trust LLC, a Delaware limited
liability company (the “Seller”), Drive Consumer USA Inc., an Illinois corporation
(“Drive Consumer”), [         ] (the “Backup Servicer”) and [        
] (the “Indenture Trustee”), on the terms and subject to the conditions set
forth in the Agreement, the Seller does hereby irrevocably sell, transfer, assign and otherwise
convey to the Issuer without recourse (subject to the obligations in the Agreement) on the date
hereof, all right, title and interest of the Seller, whether now owned or hereafter acquired, in,
to and under the Contracts set forth on the schedule of Contracts delivered by the Seller to the
Issuer on the date hereof (such schedule, together with any other schedule of Contracts delivered
by Seller to the Issuer pursuant to the Agreement, the “Schedule of Contracts”), and the
collections after the related Cut-Off Date and the Related Security relating thereto, together with
all of Seller’s rights under the Contribution Agreement and all proceeds of the foregoing, which
sale shall be effective as of such Cut-Off Date.



     The foregoing sale does not constitute and is not intended to result in an assumption by the
Issuer of any obligation of the Seller or the Originator to the Obligors, the Dealers, insurers or
any other Person in connection with the Contracts or the other assets and properties conveyed
hereunder or any agreement, document or instrument related thereto.



     This assignment is made pursuant to and upon the representations, warranties and agreements on
the part of the undersigned contained in the Agreement and is governed by the Agreement.



     Capitalized terms used herein and not otherwise defined shall have the meaning assigned to
them in the Agreement.



     IN WITNESS HEREOF, the undersigned has caused this assignment to be duly executed as of the
date first above written.



	 	 	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 







C-1









 








EXHIBIT D




FORM OF SERVICER’S CERTIFICATE





D-1









 








EXHIBIT E




FORM OF INDENTURE TRUSTEE’S ACKNOWLEDGEMENT





E-1









 








EXHIBIT F




SERVICING CRITERIA TO BE ADDRESSED IN




INDENTURE TRUSTEE’S ASSESSMENT OF COMPLIANCE




     The assessment of compliance to be delivered by the Indenture Trustee shall address, at a
minimum, the criteria identified below as “Applicable Servicing Criteria”:



	 	 	 	 	 
	 	 	 	 	 
	Servicing Criteria	 	Applicable
	Reference	 	Criteria	 	Servicing Criteria
	 

	 	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	1122(d)(1)(iii)

	 	Any requirements in the transaction agreements to maintain a back-up
servicer for the pool assets are maintained.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	 

	 	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.
	 	ü1
	 
	 	 	 	 
	1122(d)(2)(ii)

	 	Disbursements made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
	 	ü
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 






 




			
	1	 	Solely with regard to deposits made by the Indenture Trustee.






 









 






	 	 	 	 	 
	 	 	 	 	 
	Servicing Criteria	 	Applicable
	Reference	 	Criteria	 	Servicing Criteria
	1122(d)(2)(vi)

	 	Unissued checks are safeguarded so as to prevent unauthorized access.	 	 
	 
	 	 	 	 
	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 are (A)
mathematically accurate; (B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number of days specified in the
transaction agreements; (C) 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.	 	 
	 
	 	 	 	 
	 

	 	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.	 	 
	 
	 	 	 	 
	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.
	 	ü
	 
	 	 	 	 
	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.
	 	ü
	 
	 	 	 	 
	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.
	 	ü
	 
	 	 	 	 
	 

	 	Pool Asset Administration	 	 
	 
	 	 	 	 
	1122(d)(4)(i)

	 	Collateral or security on pool assets is maintained as required by
the transaction agreements or related asset pool documents.	 	 
	 
	 	 	 	 
	1122(d)(4)(ii)

	 	Pool assets and related documents are safeguarded as required by the
transaction agreements	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	1122(d)(4)(iv)

	 	Payments on pool assets, including any payoffs, made in accordance
with the related pool asset documents are posted to the 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 asset pool documents.	 	 





 Exhibit F to the

Sale and Servicing Agreement




F-3









 






	 	 	 	 	 
	 	 	 	 	 
	Servicing Criteria	 	Applicable
	Reference	 	Criteria	 	Servicing Criteria
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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).	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	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.	 	 
	 
	 	 	 	 
	1122(d)(4)(xiv)

	 	Delinquencies, charge-offs and uncollectible accounts are recognized
and recorded in accordance with the transaction agreements.	 	 
	 
	 	 	 	 
	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.	 	 







Exhibit F to the

Sale and Servicing Agreement





F-4









 








EXHIBIT G




SARBANES CERTIFICATION




Re: DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




     [           ], not in its individual capacity but solely as indenture trustee (the
“Indenture Trustee”), certifies to Drive Auto Receivables LLC (the “Seller”), and its officers,
with the knowledge and intent that they will rely upon this certification, that:



     (1) It has reviewed the report on assessment of the Indenture Trustee’s compliance provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and Item 1122 of Regulation AB (the “Servicing Assessment”), and the registered
public accounting firm’s attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1 122(b) of Regulation AB (the “Attestation Report”) that were
delivered by the Indenture Trustee to the Seller pursuant to the Sale and Servicing Agreement (the
“Agreement”), dated as of [           ], 20[ ], by and between Drive Consumer USA Inc., the
Seller, the Indenture Trustee and Drive Auto Receivables Trust 20[ ]-[ ] (collectively, the
“Indenture Trustee Information”);



     (2) To the best of its knowledge, the Indenture Trustee Information, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the Indenture Trustee Information; and



     (3) To the best of its knowledge, all of the Indenture Trustee Information required to be
provided by the Indenture Trustee under the Agreement has been provided to the Seller.



	 	 	 	 	 	 	 
	 	 	[          ], not in its individual

capacity but solely As Indenture Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






 









 








APPENDIX A




DEFINITIONS




     The following terms have the meanings set forth, or referred to, below:



     “Accrued Note Interest” shall mean, with respect to any Payment Date, the sum of the
Noteholders’ Monthly Accrued Interest for such Payment Date and the Noteholders’ Interest Carryover
Shortfall for such Payment Date.



     “Act” has the meaning set forth in Section 11.3(a) of the Indenture.



     “Administration Agreement” means the Administration Agreement, dated as of the Closing
Date, among the Administrator, the Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.



     “Administrator” means Drive Consumer, or any successor Administrator under the
Administration Agreement.



     “Administrator Termination Event” has the meaning set forth in Section 8(c) of
the Administration Agreement.



     “Affiliate” means, for any specified Person, any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such specified Person and
“affiliated” has a meaning correlative to the foregoing. For purposes of this definition,
“control” means the power, directly or indirectly, to cause the direction of the management and
policies of a Person.



     “Amount Financed” means, with respect to a Contract, the amount advanced under the
Contract toward the purchase price of the related Financed Vehicle and any related costs, including
the cost of any insurance and warranties.



     “Applicable Tax State” shall mean, as of any date, each State as to which any of the
following is then applicable: (a) a State in which the Owner Trustee maintains its Corporate Trust
Office, (b) a State in which the Owner Trustee maintains its principal executive offices, and (c)
the States of Virginia and Texas.



     “APR” of a Contract means the annual rate of finance charges stated in the Contract.



     “Authenticating Agent” means any Person authorized by the Indenture Trustee to act on
behalf of the Indenture Trustee to authenticate and deliver the Notes.



     “Authorized Newspaper” means a newspaper of general circulation in the City of New
York, printed in the English language and customarily published on each Business Day, whether or
not published on Saturdays, Sundays and holidays.



     “Authorized Officer” means (a) with respect to the Issuer, (i) any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuer and
who is identified on the list of Authorized Officers delivered by the Owner Trustee to the
Indenture Trustee on the Closing Date or (ii) so long as the Administration Agreement is in effect,
any officer of the Administrator who is authorized to act for the Administrator in matters relating
to the Issuer pursuant to the Administration Agreement and who is identified on the list of
Authorized Officers delivered by the Administrator to the



A-2









 







Owner Trustee and the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) and (b) with respect to the Owner Trustee, the Indenture
Trustee and the Servicer, any officer of the Owner Trustee, the Indenture Trustee or the Servicer,
as applicable, who is authorized to act for the Owner Trustee, the Indenture Trustee or the
Servicer, as applicable, in matters relating to the Owner Trustee, the Indenture Trustee or the
Servicer and who is identified on the list of Authorized Officers delivered by each of the Owner
Trustee, the Indenture Trustee and the Servicer to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter).




     “Available Funds” means, for any Payment Date and the related Collection Period, an
amount equal to the sum of the following amounts: (i) Contract Scheduled Payments (including
Modified Contract Scheduled Payments) received by the Servicer and partial and full prepayments
received by the Servicer; (ii) partial and full prepayments received by the Servicer; (iii)
Recoveries (including Liquidation Proceeds); (iv) (a) investment earnings on funds held in the
Reserve Account, Pre-Funding Account, Capitalized Interest Account and the Collection Account, (b)
funds on deposit in the Collection Account (including the Monthly Capitalized Interest Amount with
respect to such Payment Date) and (c) to the extent required, funds available and on deposit in the
Reserve Account and Capitalized Interest Account; (v) Repurchase Amounts paid by the Servicer or
the Seller; and (vi) proceeds from any insurance policies related to the Contracts or Financed
Vehicles.



     [“Backup Servicer” means [           ], in its capacity as backup servicer.]



     [“Backup Servicing Agreement” means the Backup Servicing Agreement, dated as of the
Closing Date, among the Backup Servicer, the Servicer[, the Insurer,] the Issuer, the Seller and
the Indenture Trustee.]



     [“Backup Servicing Fee” means $[           ] for each electronic submission by Drive
Consumer in accordance with [Section 6(c)] of the Backup Servicing Agreement; provided, however,
that if the Backup Servicer becomes the Successor Servicer, such fee shall no longer be paid.]



     “Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. 101 et seq., as
amended.



     “Bankruptcy Event” means, with respect to any Person, (i) the filing of a decree or
order for relief by a court having jurisdiction in the premises in respect of such Person in an
involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person, or ordering the winding-up or liquidation of such
Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days or (ii) the commencement by such Person of a voluntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an involuntary case under any such
law, or the consent by such Person to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person, or the
making by such Person of any general assignment for the benefit of creditors, or the failure by
such Person generally to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.



     “Bankruptcy Remote Party” means each of the Seller, the Issuer, any other trust
created by the Seller or any limited liability company or corporation wholly-owned by the Seller.



A-3









 





     “Benefit Plan” means (i) any “employee benefit plan” as defined in Section 3(3) of
ERISA that is subject to ERISA, (ii) a “plan” described by Section 4975(e)(1) of the Code or (iii)
any entity deemed to hold the assets of any of the foregoing by reason of an employee benefit
plan’s or other plan’s investment in such entity.



     “Book-Entry Notes” means a beneficial interest in the Notes, ownership and transfers
of which shall be made through book entries by a Clearing Agency as described in Section
2.10 of the Indenture.



     “Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions or trust companies located in the States of California, Delaware,
Minnesota, Texas or New York are authorized or obligated by law, executive order, or governmental
decree to be closed.



     “Capitalized Interest Account” means the account designated as such, established and
maintained pursuant to Section 4.1 of the Sale and Servicing Agreement.



     “Capitalized Interest Account Deposit” means $[ ].



     “Certificate” means a certificate substantially in the form of Exhibit A to
the Trust Agreement evidencing the Residual Interest, as such Certificate may be issued pursuant to
the Trust Agreement at the request of the Residual Interestholder.



     “Certificate of Title” means, with respect to any Financed Vehicle, the certificate of
title or other documentary evidence of ownership of such Financed Vehicle as issued by the
department, agency or official of the jurisdiction (whether in paper or electronic form) in which
such Financed Vehicle is titled responsible for accepting applications for, and maintaining records
regarding, certificates of title and liens thereon.



     “Certificateholder” means any Holder of a Certificate.



     “Certificate Register” has the meaning set forth in Section 3.4 of the Trust
Agreement.



     “Certificate Registrar” has the meaning set forth in Section 3.4 of the Trust
Agreement.



     “Charged-Off Contract” means a Contract which has been charged off by the Servicer in
accordance with the Charge-Off Policy.



     “Charge-Off Policy” means the Servicer’s Charge-Off Policy, as set forth in
Exhibit [ ] hereto.



     “Class” means a group of Notes whose form is identical except for variation in
denomination, principal amount or owner, and references to “each Class” thus mean each of the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.



     “Class A Notes” means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes, collectively.



     “Class A-1 Final Scheduled Payment Date” shall mean the Payment Date occurring in [           ].



     “Class A-1 Interest Rate” means [           ]% per annum (computed on the basis of the
actual number of days elapsed, but assuming a 360-day year).



A-4









 





     “Class A-1 Note Balance” means, at any time, the Initial Class A-1 Note Balance
reduced by all payments of principal made prior to such time on the Class A-1 Notes.



     “Class A-1 Noteholder” means the Person in whose name a Class A-1 Note is registered
on the Note Register.



     “Class A-1 Notes” means the Class of Auto Loan Asset Backed Notes designated as Class
A-1 Notes, issued in accordance with the Indenture.



     “Class A-2 Final Scheduled Payment Date” shall mean the Payment Date occurring in [
].



     “Class A-2 Interest Rate” means [ ]% per annum (computed on the basis of a 360-day
year of twelve 30-day months).



     “Class A-2 Note Balance” means, at any time, the Initial Class A-2 Note Balance
reduced by all payments of principal made prior to such time on the Class A-2 Notes.



     “Class A-2 Noteholder” means the Person in whose name a Class A-2 Note is registered
on the Note Register.



     “Class A-2 Notes” means the Class of Auto Loan Asset Backed Notes designated as Class
A-2 Notes, issued in accordance with the Indenture.



     “Class A-3 Final Scheduled Payment Date” shall mean the Payment Date occurring in [
].



     “Class A-3 Interest Rate” means [ ]% per annum (computed on the basis of a 360-day
year of twelve 30-day months).



     “Class A-3 Note Balance” means, at any time, the Initial Class A-3 Note Balance
reduced by all payments of principal made prior to such time on the Class A-3 Notes.



     “Class A-3 Noteholder” shall mean the Person in whose name a Class A-3 Note is
registered on the Note Register.



     “Class A-3 Notes” means the Class of Auto Loan Asset Backed Notes designated as Class
A-3 Notes, issued in accordance with the Indenture.



     “Class A-4 Final Scheduled Payment Date” shall mean the Payment Date occurring in [
].



     “Class A-4 Interest Rate” means [ ]% per annum (computed on the basis of the
actual number of days elapsed, but assuming a 360-day year).



     “Class A-4 Note Balance” means, at any time, the Initial Class A-4 Note Balance
reduced by all payments of principal made prior to such time on the Class A-4 Notes.



     “Class A-4 Noteholder” shall mean the Person in whose name a Class A-4 Note is
registered on the Note Register.



     “Class A-4 Notes” means the Class of Auto Loan Asset Backed Notes designated as Class
A-4 Notes, issued in accordance with the Indenture.



A-5









 





     “Clearing Agency” means an organization registered as a “clearing agency” pursuant to
Section 17A of the Exchange Act and shall initially be DTC.



     “Clearing Agency Participant” means a broker, dealer, bank or other financial
institution or other Person for which from time to time a Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.



     “Closing Date” means [           ], 20[ ].



     “Code” means the Internal Revenue Code of 1986, as amended, modified or supplemented
from time to time, and any successor law thereto, and the regulations promulgated and the rulings
issued thereunder.



     “Collateral” has the meaning set forth in the Granting Clause of the Indenture.



     “Collection Account” means the trust account established and maintained pursuant to
Section 4.1 of the Sale and Servicing Agreement.



     “Collection Period” means, with respect to each Payment Date, the preceding calendar
month. Any amount stated “as of the close of business on the last day of a Collection Period”
shall give effect to all collections, charge-offs and other account activity during such Collection
Period.



     “Commission” means the U.S. Securities and Exchange Commission.



     “Computer Tape” means a computer tape or diskette (or other means of electronic
transmission acceptable to the Backup Servicer [and the Insurer]) in a format acceptable to the
Backup Servicer [and the Insurer].



     “Continued Errors” has the meaning set forth in Section 3.8(e) of the Sale and
Servicing Agreement.



     “Contract” means any of the prime or non-prime motor vehicle retail installment sales
contracts (listed on any Schedule of Contracts delivered on the Closing Date or on any Funding
Date) which has not been released by the Indenture Trustee from the Issuer pursuant to the Sale and
Servicing Agreement, and all replacements and substitutions thereto, and all the rights thereunder.



     “Contract File” means each original Contract, together with any other documents
relating thereto which are held by the Indenture Trustee.



     “Contract Scheduled Payment” on a Contract means that portion of the payment required
to be made by the Obligor each month sufficient to amortize the Principal Balance under the simple
interest method over the term of the Contract and to provide interest at the APR.



     “Contracts Purchase Price” means, with respect to any Subsequent Contract, 100% of the
aggregate Principal Balance of such Subsequent Contract as of the related Subsequent Cut-Off Date.



     “Contribution Agreement” means the Contribution Agreement, dated as of the Closing
Date, between Drive Consumer and the Seller, as amended, modified or supplemented from time to
time.



A-6









 





     “Controlling Party” means [the Insurer, provided that if an Insurer Default has
occurred and is continuing, then the Controlling Party] [the Indenture Trustee acting at the
direction of the Noteholders evidencing not less than a majority of the Note Balance].



     “Conveyed Assets” has the meaning set forth in Section 2.2 of the Contribution
Agreement.



     “Corporate Trust Office” means, with respect to (i) the Owner Trustee, the principal
corporate trust office of the Owner Trustee, which at the time of
execution of this Agreement is [           ] and (ii) the Indenture Trustee, the principal corporate trust
office of the Indenture Trustee, which at the time of execution of this Agreement is [          
], Attention: [           ].



     “Cram Down Loss” means, for any Contract, if a court of appropriate jurisdiction in an
insolvency proceeding issued an order reducing the amount owed on the Contract or otherwise
modifying or restructuring the scheduled payments to be made on the Contract, an amount equal to
(i) the excess of the Contract’s Principal Balance immediately prior to the order over the
Contract’s Principal Balance as reduced and/or (ii) if the court issued an order reducing the
effective interest rate on the Contract, the excess of the Contract Principal Balance immediately
prior to the order over the Contract’s net present value, using as the discount rate the higher of
the APR on the Contract or the rate of interest, if any, specified by the court in the order of the
scheduled payments as so modified or restructured. A “Cram Down Loss” shall be deemed to have
occurred on the order’s issuance date.



     [“Cumulative Net Charge-Off Ratio” has the meaning specified in the Insurance
Agreement.]



     “Cut-Off Date” means, (i) with respect to any Contract transferred on the Closing
Date, the Initial Cut-Off Date and (ii) with respect to Contracts transferred on any Funding Date,
the applicable Subsequent Cut-Off Date.



     “Dealer Agreement” means each Dealer Agreement between the Originator and the related
Dealer substantially in the form of Exhibit [ ] hereto.



     “Dealer Recourse” means, with respect to a Contract, all monies received in respect of
recourse rights against the Dealer which originated the Contract under the related Dealer Agreement
and any successor to such Dealer.



     “Dealers” means the dealers who sold the Financed Vehicles and who originated and
assigned the related Contracts to the Dealers or the Originator.



     [“Deemed Cured” has the meaning set forth in the Insurance Agreement.]




     “Default” means any occurrence that is, or with notice or lapse of time or both would
become, an Event of Default.



     “Defaulted Contract” means, with respect to any Payment Date, a Contract with respect
to which either of the following has occurred: (i) the related Obligor is contractually delinquent
on a Contract Scheduled Payment for greater than 60 days or (ii) the mandatory redemption period,
if any, has expired for a Contract with respect to which the related Financed Vehicle has been
repossessed.



     [“Deficiency Amount” has the meaning specified in the Policy.]



A-7









 





     “Definitive Note” means a definitive fully registered Note issued pursuant to
Section 2.12 of the Indenture.



     “Delivery”, when used with respect to property forming a part of a Trust Account,
means:



     (a) with respect to bankers’ acceptances, commercial paper, negotiable certificates of deposit
and other obligations that constitute “instruments” within the meaning of Section 9-102(a)(47) of
the UCC and are susceptible of physical delivery, transfer thereof by physical delivery to the
Indenture Trustee indorsed to, or registered in the name of, the Indenture Trustee or its nominee
or indorsed in blank, and, with respect to a certificated security (as defined in Section 8-102 of
the UCC) transfer thereof (i) by delivery of such certificated security to the Indenture Trustee or
by delivery of such certificated security to a securities intermediary indorsed to, or registered
in the name of, the Indenture Trustee or its nominee or indorsed in blank to a securities
intermediary (as defined in Section 8-102(a)(14) of the UCC) and the making by such securities
intermediary of entries on its books and records identifying such certificated securities as
belonging to the Indenture Trustee and the sending by such securities intermediary of a
confirmation of the purchase of such certificated security by the Indenture Trustee, or (ii) by
delivery thereof to a “clearing corporation” (as defined in Section 8-102(a)(5) of the UCC) and the
making by such clearing corporation of appropriate entries on its books reducing the appropriate
securities account of the originator and increasing the appropriate securities account of a
securities intermediary by the amount of such certificated security, the identification by the
clearing corporation of the certificated securities for the sole and exclusive account of the
securities intermediary, the maintenance of such certificated securities by such clearing
corporation or its nominee subject to the clearing corporation’s exclusive control, the sending of
a confirmation by the securities intermediary of the purchase by the Indenture Trustee of such
securities and the making by such securities intermediary of entries on its books and records
identifying such certificated securities as belonging to the Indenture Trustee (all of the
foregoing, “Physical Property”), and, in any event, any such Physical Property in
registered form shall be registered in the name of the Indenture Trustee or its nominee or endorsed
in blank; and such additional or alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Eligible Investment to the Indenture Trustee,
consistent with changes in applicable law or regulations or the interpretation thereof;



     (b) with respect to any security issued by the U.S. Treasury, the Federal Home Loan Mortgage
Corporation or by the Federal National Mortgage Association that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable federal regulations and
Articles 8 and 9 of the UCC: book-entry registration of such Eligible Investment to an appropriate
book-entry account maintained with a Federal Reserve Bank by a securities intermediary which is
also a “depositary” pursuant to applicable federal regulations and issuance by such securities
intermediary of a deposit advice or other written confirmation of such book-entry registration to
the Indenture Trustee of the purchase by the Indenture Trustee of such book-entry securities; the
making by such securities intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant to Federal book-entry
regulations as belonging to the Indenture Trustee and indicating that such securities intermediary
holds such Eligible Investment solely as agent for the Indenture Trustee; and such additional or
alternative procedures as may hereafter become appropriate to effect complete transfer of ownership
of any such Eligible Investment to the Indenture Trustee, consistent with changes in applicable law
or regulations or the interpretation thereof; and



     (c) with respect to any Eligible Investment that is an uncertificated security under Article 8
of the UCC and that is not governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the Indenture Trustee or its nominee or the securities
intermediary, the sending of a confirmation by the securities intermediary of the purchase by the
Indenture Trustee or its



A-8









 







nominee of such uncertificated security, and the making by such securities intermediary of
entries on its books and records identifying such uncertificated certificates as belonging to the
Indenture Trustee.



     In furtherance of the foregoing, any Eligible Investments held by the Indenture Trustee through a
securities intermediary shall be held only pursuant to a control agreement entered into among the
Seller, the Indenture Trustee and the securities intermediary, pursuant to which the securities
intermediary agrees to credit all financial assets (as defined in Section 8-102(a)(9) of the UCC)
purchased (as defined in Section 1-201(32) of the UCC) at the direction of the Indenture Trustee to
the securities account maintained by the securities intermediary for the benefit of the Indenture
Trustee and agrees to comply with entitlement orders (as defined in Section 8-102(a)(8) of the UCC)
of the Indenture Trustee without the further consent of the Seller and pursuant to which the
securities intermediary waives any prior lien on all financial assets credited to such securities
account to which it might otherwise be entitled. Such control agreement shall initially be
governed by [Minnesota] law and the Indenture Trustee shall not amend the initial control agreement
or enter into a control agreement with a successor securities intermediary which in either event
provides that the laws of a State other than [Minnesota] shall govern, without first obtaining a
continuation of perfection and priority opinion under the laws of such new State which is, prior to
the Termination Date[, acceptable to the Insurer].



     “Depositor” means the Seller in its capacity as Depositor under the Trust Agreement.



     “Determination Date” means the fifth Business Day preceding the related Payment Date.



     “Dollar” and “$” mean lawful currency of the United States of America.



     “Drive Consumer” means Drive Consumer USA Inc., an Illinois corporation, and its
successors and assigns.



     “DTC” means The Depository Trust Company, and its successors.



     “Eligible Account” shall mean either (i) a segregated account or accounts maintained
with an institution whose deposits are insured by the Federal Deposit Insurance Corporation, the
unsecured and uncollateralized long-term debt obligations of which institution shall be rated “AA-”
or higher by S&P and “Aa2” or higher by Moody’s and in the highest short-term rating category by
each of the Rating Agencies, and which is (a) a federal savings and loan association duly
organized, validly existing and in good standing under the federal banking laws, (b) an institution
duly organized, validly existing and in good standing under the applicable banking laws of any
State, (c) a national banking association duly organized, validly existing and in good standing
under the federal banking laws, (d) a principal subsidiary of a bank holding company, or (e)
approved in writing by the Controlling Party and each of the Rating Agencies or (ii) a chartered
depository institution acceptable to each Rating Agency and the Controlling Party, having capital
and surplus of not less than $100,000,000, acting in its fiduciary capacity.



     “Eligible Institution” means a depository institution or trust company (other than any
Affiliate of Drive Consumer) (which may be the Owner Trustee, the Indenture Trustee or any of their
respective Affiliates) organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign bank) (a) which at
all times has either (i) a long-term senior unsecured debt rating of “Aa2” or better by Moody’s,
“AA-” or better by S&P and AA- or better by Fitch, if rated by Fitch or such other rating that is
acceptable to each Rating Agency, as evidenced by a letter from such Rating Agency to the Issuer or
the Indenture Trustee or (ii) a certificate of deposit rating of “P-1” by Moody’s, “A-1+” by S&P
and F1 by Fitch, if rated by Fitch or (iii) such other rating that is acceptable to each Rating
Agency, as evidenced by a letter from such Rating Agency to the



A-9









 







Issuer or the Indenture Trustee[, and the Insurer (unless the Insurer is not the Controlling
Party)] and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.



     “Eligible Investments” mean any one or more of the following types of investments:




     (i) (a) direct interest-bearing obligations of, and interest-bearing obligations
guaranteed as to timely payment of principal and interest by, the United States or any
agency or instrumentality of the United States the obligations of which are backed by the
full faith and credit of the United States and (b) direct interest-bearing obligations of,
and interest-bearing obligations guaranteed as to timely payment of principal and interest
by, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation,
but only if, at the time of investment, such obligations are rated “AAA” by S&P and “Aaa” by
Moody’s;




     (ii) demand or time deposits in, certificates of deposit of, or bankers’ acceptances
issued by any depository institution or trust company organized under the laws of the United
States or any State and subject to supervision and examination by federal and/or state
banking authorities (including, if applicable, the Indenture Trustee or any agent of the
Indenture Trustee acting in their respective commercial capacities); provided that the
commercial paper or other short-term unsecured debt obligations of such depository
institution or trust company at the time of such investment, or contractual commitment
providing for such investment, are rated “A-1+” by S&P and “Prime-1” by Moody’s;




     (iii) repurchase obligations pursuant to a written agreement (a) with respect to any
obligation described in clause (i) above, where the Indenture Trustee has taken actual or
constructive delivery of such obligation, and (b) entered into with a depository institution
or trust company organized under the laws of the United States or any State thereof, the
deposits of which are insured by the Federal Deposit Insurance Corporation and the
short-term unsecured debt obligations of which are rated “A-1+” by S&P and “Prime-1” by
Moody’s (including, if applicable, the Indenture Trustee or any agent of the Indenture
Trustee acting in their respective commercial capacities);




     (iv) non-convertible debt securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States or any State whose
long-term unsecured debt obligations are rated “AAA” by S&P and “Aaa” by Moody’s at the time
of such investment or contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will not be Eligible
Investments to the extent that an investment therein will cause the then-outstanding
principal amount of securities issued by such corporation and held as part of the related
Trust Account to exceed 10% of the Eligible Investments held in the related Trust Account
(with Eligible Investments held in the related Trust Account valued at par);




     (v) commercial paper that (a) is payable in United States dollars and (b) is rated at
least “A-1+” by S&P and “Prime-1” by Moody’s;




     (vi) any money market fund that has been rated “Aaa” by Moody’s and “AAAm” or “AAAm-G”
by S&P and numerical gradations within such rating category (or the equivalent long-term
rating of such Rating Agency) for such money market funds; and




     (vii) any other demand or time deposit, obligation, security or investment as may be
acceptable to the Rating Agencies [and, prior to the Termination Date, the Insurer].



A-10









 





     Any of the foregoing Eligible Investments may be purchased from, by or through the Owner
Trustee or the Indenture Trustee or any of their respective Affiliates.



     “Eligible Contract” means a Contract meeting all of the criteria set forth on
Schedule I of the Sale and Servicing Agreement as of the Closing Date or the applicable
Funding Date, as the case may be.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.



     “ERISA Affiliate” means at any time, with respect to any Person or entity, any member
of such Person’s or entity’s “controlled group,” within the meaning of Section 4001 of ERISA or
Section 414(b), (c), (m) or (o) of the Code.



     “Errors” has the meaning set forth in Section 3.8(e) of the Sale and Servicing
Agreement.



     “Event of Default” has the meaning set forth in Section 5.1 of the Indenture.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Expenses” has the meaning set forth in Section 8.2 of the Trust Agreement.



     “Extension Ratio” means the fraction (expressed as a percentage) calculated as of the
last day of the related Collection Period, the numerator of which is the aggregate number of
Contracts for which an extension or a payment deferment is in effect (whether granted by the
Servicer during the related Collection Period or an earlier Collection Period) in accordance with
the Servicer’s stated extension policy and the denominator of which is the aggregate number of
Contracts then held by the Issuer. “Extension,” for purposes of this definition, does not include
either (i) a change of an Obligor’s scheduled due date within a month (i.e., from the 10th of each
month to the 15th) or (ii) the Servicer’s treatment of an Obligor who makes at least one-half of
his scheduled payment as current (provided that such Obligor continues to make all Contract
Scheduled Payments which follow).



     “Final Scheduled Payment Date” means, with respect to (i) the Class A-1 Notes, the
Class A-1 Final Scheduled Payment Date, (ii) the Class A-2 Notes, the Class A-2 Final Scheduled
Payment Date, (iii) the Class A-3 Notes, the Class A-3 Final Scheduled Payment Date and (iv) the
Class A-4 Notes, the Class A-4 Final Scheduled Payment Date.



     “Financed Vehicle” means a new or used automobile, light duty truck, van or mini-van,
together with all accessions thereto, securing an Obligor’s indebtedness under the related
Contract.



     “Funding Date” means a date occurring not more than once per calendar week during the
Funding Period and on which some or all of the Subsequent Contracts are transferred to the Issuer.



     “Funding Period” means the period beginning on the Closing Date and ending upon the
earliest to occur of (i) [ ] (ii) the first date on which the amount on deposit
in the Pre-Funding Account (after giving effect to any transfers therefrom in connection with the
transfer of Subsequent Contracts to the Issuer on such date) is less than $100,000 or (iii) the
date upon which an Event of Default or a Servicing Termination Event has occurred and has not been
cured within the applicable grace period.



     “GAAP” means generally accepted accounting principles in the USA, applied on a
materially consistent basis.



A-11









 





     “Governmental Authority” means any (a) Federal, state, municipal, foreign or other
governmental entity, board, bureau, agency or instrumentality, (b) administrative or regulatory
authority (including any central bank or similar authority) or (c) court or judicial authority.



     “Grant” means mortgage, pledge, bargain, sell, warrant, alienate, remise, release,
convey, assign, transfer, create, grant a lien upon and a security interest in and right of set-off
against, deposit, set over and confirm pursuant to the Indenture. A Grant of the Collateral or of
any other agreement or instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments in respect of the
Collateral and all other moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the Granting party or otherwise and generally to do and receive anything
that the Granting party is or may be entitled to do or receive thereunder or with respect thereto.
Other forms of the verb “to Grant” shall have correlative meanings.



     “Holder” means, as the context may require, the Certificateholder or a Noteholder or
both.



     “Indenture” means the Indenture, dated as of the Closing Date, between the Issuer and
Indenture Trustee, as the same may be amended and supplemented from time to time.



     “Indenture Secured Parties” shall mean the Noteholders [and the Insurer].



     “Indenture Trustee” means [           ], a [           ],
not in its individual capacity but as indenture trustee under the Indenture, or any successor
trustee under the Indenture.



     “Indenture Trustee Fee” means the sum of the greater of (i) the product of (a) [          
]% per annum and (b) the Pool Balance as of the first day of such Collection Period or (ii) $[           ] per month, plus all reasonable and necessary expenses of maintaining the collateral and all
amounts due the Indenture Trustee under the Transaction Documents, all of which shall be payable
monthly.



     “Independent” means, when used with respect to any specified Person, that such Person
(i) is in fact independent of the Issuer, any other obligor upon the Notes, the Administrator and
any Affiliate of any of the foregoing Persons, (ii) does not have any direct financial interest or
any material indirect financial interest in the Issuer, any such other obligor, the Administrator
or any Affiliate of any of the foregoing Persons and (iii) is not connected with the Issuer, any
such other obligor, the Administrator or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar
functions.



     “Independent Certificate” means a certificate or opinion to be delivered to the
Indenture Trustee under the circumstances described in, and otherwise complying with, the
applicable requirements of Section 11.1 of the Indenture, made by an independent appraiser
or other expert appointed by an Issuer Order, and such opinion or certificate shall state that the
signer has read the definition of “Independent” in this Appendix A and that the signer is
Independent within the meaning thereof.



     “Initial Class A-1 Note Balance” means $[           ].



     “Initial Class A-2 Note Balance” means $[           ].



     “Initial Class A-3 Note Balance” means $[           ].



     “Initial Class A-4 Note Balance” means $[           ].



A-12









 





     “Initial Cut-Off Date” means[           ].



     “Initial Note Balance” means, for any Class, the Initial Class A-1 Note Balance, the
Initial Class A-2 Note Balance, the Initial Class A-3 Note Balance or the Initial Class A-4 Note
Balance, as applicable, or with respect to the Notes generally, the sum of the foregoing.



     “Initial Pre-Funding Account Deposit Amount” means an amount equal to $[           ].



     “Initial Conveyed Assets” has the meaning set forth in Section 2.1 of the
Contribution Agreement.



     “Initial Contracts” means the Contracts transferred by the Seller to the Issuer on the
Closing Date.



     “Initial Reserve Amount” means an amount equal to [ ]% of the Original Pool Balance
(such amount to be funded by [one or more Reserve Account Letters of Credit and/or] cash from the
net proceeds of the offering of the Notes, such cash portion to equal $[ ]).



     “Initial Transferred Assets” means (a) the Initial Conveyed Assets, (b) all of the
Seller’s rights under the Contribution Agreement and (c) all proceeds of the foregoing.



     [“Insurance Agreement” means the Insurance Agreement dated as of the Closing Date
between the Insurer, the Issuer, the Seller, the Servicer, the Originator, and the Indenture
Trustee.]



     [“Insurance Agreement Event of Default” has the meaning specified in the Insurance
Agreement.]



     “Insurance Policy” means (i) any theft and physical damage insurance policy maintained
by the Obligor under a Contract, providing coverage against loss or damage to or theft of the
related Financed Vehicle, and (ii) any credit life or credit disability insurance maintained by an
Obligor in connection with any Contract.



     [“Insured Obligations” has the meaning specified in the Policy.]



     [“Insured Payment” has the meaning specified in the Policy.]



     [“Insurer” means[           ], a [           ], and its successors and assigns.]



     [“Insurer Event of Default” shall mean any one of the following events shall have
occurred and be continuing:



     (a) the Insurer fails to make a payment required under the Policy; or



     (b) the Insurer (1) files any petition or commences any case or proceeding under any provision
or chapter of the United States Bankruptcy Code or any other similar Federal or state law relating
to insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (2) makes a general
assignment for the benefit of its creditors or (3) has an order for relief entered against it under
the United States Bankruptcy Code or any other similar Federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization which is final and nonappealable; or



     (c) a court of competent jurisdiction, the [applicable state] Department of Insurance or other
competent regulatory authority enters a final and nonappealable order, judgment or decree (1)
appointing a custodian, trustee, agent or receiver for the Insurer or for all or any material
portion of its property or (2)



A-13









 







authorizing the taking of possession by a custodian, trustee, agent or receiver of the Insurer
(or the taking of possession of all or any material portion of the property of the Insurer).]



     “Interest Period” means (i) with respect to the first Payment Date, the period from
and including the Closing Date to but excluding the first Payment Date and (ii) with respect to
each subsequent Payment Date, the period from and including the prior Payment Date to but excluding
such subsequent Payment Date (in each case assuming that the Payment Date for the Class A-2 Notes
and the Class A-3 Notes is always on the 15th day of the calendar month in which that
Payment Date occurs).



     “Interest Rate” means (a) with respect to the Class A-1 Notes, the Class A-1 Interest
Rate, (b) with respect to the Class A-2 Notes, the Class A-2 Interest Rate, (c) with respect to the
Class A-3 Notes, the Class A-3 Interest Rate or (d) with respect to the Class A-4 Notes, the Class
A-4 Interest Rate.



     “Issuer” means Drive Auto Receivables Trust 20[ ]-[ ], a Delaware statutory trust
established pursuant to the Trust Agreement, until a successor replaces it and, thereafter, means
the successor and, for purposes of any provision contained herein, each other obligor on the Notes.



     “Issuer Order” and “Issuer Request” means a written order or request of the
Issuer signed in the name of the Issuer by any one of its Authorized Officers and delivered to the
Indenture Trustee.



     [“Late Payment Rate” has the meaning set forth in the Insurance Agreement.]



     “Liquidation Proceeds” means the monies collected from whatever source during a
Collection Period on a Charged-Off Contract, net of the sum of (i) any out-of-pocket expenses
reasonably incurred by the Servicer in enforcing such Charged-Off Contract plus (ii) any amounts
required by law to be remitted to the related Obligor.



     “Lien” means, for any asset or property of a Person, a lien, security interest,
mortgage, pledge or encumbrance in, of or on such asset or property in favor of any other Person,
except any Permitted Lien.



     “Modified Contract Scheduled Payment” means, with respect to any Contract which is not
a Charged-Off Contract and as to which the related Obligor shall have been declared bankrupt with
the result that the amount of such Obligor’s periodic Contract Scheduled Payment has been reduced
pursuant to an order of the bankruptcy court, the amount of such reduced periodic Contract
Scheduled Payment.



     “Monthly Capitalized Interest Amount” means, in the case of the [           ], [          
] and [           ] Payment Dates, an amount equal to the excess of (i) the product of (a)
a fraction, the numerator of which is the actual number of days elapsed in the related interest
accrual period and the denominator of which is 360, (b) the sum of the weighted average of the Note
Rates [and the Premium Percentage (as such term is defined in the Insurance Agreement)] and (c) the
amount on deposit in the Pre-Funding Account as of the last day of the second preceding Collection
Period, or, in the case of the [           ] Payment Date, as of the Closing Date, over (ii) the
Pre-Funding Earnings for such Payment Date.



     “Moody’s” means Moody’s Investors Service, Inc., or any successor that is a nationally
recognized statistical rating organization.



     “Note” means a Class A-1 Note, Class A-2 Note, Class A-3 Note or Class A-4 Note, in
each case substantially in the forms of Exhibit A to the Indenture.



A-14









 





     “Note Balance” means, with respect to any date of determination, for any Class, the
Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance or the Class A-4
Note Balance, as applicable, or with respect to the Notes generally, the sum of all of the
foregoing.



     “Note Depository Agreement” means the agreement, dated as of the Closing Date, between
the Issuer and DTC, as the initial Clearing Agency relating to the Notes, as the same may be
amended or supplemented from time to time.



     “Note Distribution Account” means the account by that name established and maintained
pursuant to Section 4.1 of the Sale and Servicing Agreement.



     “Note Factor” on a Payment Date means, with respect to each Class of Notes, a
six-digit decimal figure equal to the Note Balance of such Class of Notes as of the end of the
related Collection Period divided by the Note Balance of such Class of Notes as of the Closing
Date. The Note Factor will be 1.000000 as of the Closing Date; thereafter, the Note Factor will
decline to reflect reductions in the Note Balance of such Class of Notes.



     “Note Owner” means, with respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency or a
Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant
or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).



     “Note Preference Claim” has the meaning specified in Section 9.2 of the Sale
and Servicing Agreement.



     “Note Register” and “Note Registrar” have the respective meanings set forth in
Section 2.4 of the Indenture.



     “Noteholder” means, as of any date, the Person in whose name a Note is registered on
the Note Register on such date.



     “Noteholder Principal Distributable Amount” means, with respect to the Notes, (i) with
respect to any Payment Date, [___]% of the Principal Distributable Amount [if no Trigger Event has
occurred, 100% of the Principal Distributable Amount if a Trigger Event has occurred,] and 0% of
the Principal Distributable Amount after the payment in full of the notes, to be paid sequentially
to each Class of Notes [and amounts owed to the Insurer]); and (ii) with respect to the Final
Scheduled Payment Date on any Class of Notes, the Note Balance of that Class of Notes.



     “Noteholders’ Interest Carryover Shortfall” shall mean, with respect to any Payment
Date, the excess of the sum of the Noteholders’ Monthly Accrued Interest for the preceding Payment
Date and any outstanding Noteholders’ Interest Carryover Shortfall on such preceding Payment Date,
over the amount in respect of interest that is actually paid to Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to Noteholders on the
preceding Payment Date, to the extent permitted by law, at the respective Interest Rates borne by
such Notes for the related Interest Period.



     “Noteholders’ Monthly Accrued Interest” shall mean, with respect to any Payment Date,
the aggregate interest accrued for the related Interest Period on the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes at the respective Interest Rate for such
Class on the Note Balance of each such Class on the immediately preceding Payment Date or the
Closing Date, as the case may be, after giving effect to all payments of principal to the
Noteholders of such Class on or prior to such preceding Payment Date.



A-15









 





     “Noteholders Parity Deficit Amount” means, on any Payment Date, the amount by which
the Note Balance (after taking into account all distributions of principal[, excluding any amounts
to be paid by the Insurer,] to be made on such Payment Date) exceeds the sum of the Pool Balance
and the amount on deposit in the Pre-Funding Account as of the close of business on the last day of
the preceding Collection Period.



     “Notes” shall mean, collectively, the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes.



     “Notice of Funding Date” means a notice in the form of Exhibit A to the Sale
and Servicing Agreement. “Obligor” means, for any Contract, each Person obligated to pay such
Contract.



     “Officer’s Certificate” means (i) with respect to the Issuer, a certificate signed by
any Authorized Officer of the Issuer and (ii) with respect to the Seller or the Servicer, a
certificate signed by the chairman of the board, the president, any executive vice president, any
vice president, the treasurer, any assistant treasurer or the controller of the Seller or the
Servicer, as applicable.



     “Opinion of Counsel” means one or more written opinions of counsel who may, except as
otherwise expressly provided in the Indenture or any other applicable Transaction Document, be
employees of or counsel to the Issuer, the Servicer, the Seller or the Administrator, and which
opinion or opinions comply with any applicable requirements of the Transaction Documents and are in
form and substance reasonably satisfactory to the recipient(s). Opinions of Counsel need address
matters of law only and may be based upon stated assumptions as to relevant matters of fact.



     “Optional Purchase” has the meaning set forth in Section 8.1 of the Sale and
Servicing Agreement.



     “Optional Purchase Price” has the meaning set forth in Section 8.1 of the Sale
and Servicing Agreement.



     “Original Pool Balance” means the aggregate Principal Balance of the Contracts as of
the Initial Cut-off Date.



     “Originator” means Drive Consumer.



     “Other Assets” means any assets (or interests therein) (other than the Trust Estate)
conveyed or purported to be conveyed by the Seller to another Person or Persons other than the
Issuer, whether by way of a sale, capital contribution or by virtue of the granting of a lien.



     “Outstanding” means, as of any date, all Notes (or all Notes of an applicable Class)
theretofore authenticated and delivered under the Indenture except:




     (viii) Notes (or Notes of an applicable Class) theretofore cancelled by the Note
Registrar or delivered to the Note Registrar for cancellation pursuant to Section
2.8 of the Indenture;




     (ix) Notes (or Notes of an applicable Class) or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the related Noteholders (provided, however, that if such Notes
are to be redeemed, notice of such redemption has been duly given pursuant to the Indenture
or provision therefor, satisfactory to the Indenture Trustee, has been made); and



A-16









 






     (x) Notes (or Notes of an applicable Class) in exchange for or in lieu of other Notes
(or Notes of such Class) that have been authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;


provided that in determining whether Noteholders holding the requisite Note Balance have given any
request, demand, authorization, direction, notice, consent, vote or waiver hereunder or under any
Transaction Document, Notes owned by the Issuer, the Seller, the Servicer, the Administrator or any
of their respective Affiliates shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, vote or waiver, only Notes that a Responsible
Officer of the Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee thereof establishes
to the satisfaction of the Indenture Trustee such pledgee’s right so to act with respect to such
Notes and that such pledgee is not the Issuer, the Seller, the Servicer, the Administrator or any
of their respective Affiliates.




     “Overcollateralization Amount” means, on any Payment Date, the amount by which the
Pool Balance exceeds the Note Balance less the amount on deposit in the Pre-Funding Account.



     “Overcollateralization Percentage” means, on any Payment Date, the ratio of the
Overcollateralization Amount to the Pool Balance.



     “Overfunded Capitalized Interest Amount” means, with respect to:



     (a) the [           ] Payment Date, the excess of (a) the amount on deposit in the Capitalized
Interest Account on such Payment Date (after giving effect to the transfer of the Monthly
Capitalized Interest Amount to the Collection Account on such date) over (b) the product of (1)
1/360, (2) [           ]%, (3) [ ] and (4) the amount on deposit in the Pre-Funding Account
(excluding Pre-Funding Earnings) at the close of business on [           ];



     (b) the [           ] Payment Date, the excess of (a) the amount on deposit in the Capitalized
Interest Account on such Payment Date (after giving effect to the transfer of the Monthly
Capitalized Interest Amount to the Collection Account on such date) over (b) the product of (1)
1/360, (2) [           ]%, (3) [ ] and (4) the amount on deposit in the Pre-Funding Account
(excluding Pre-Funding Earnings) at the close of business on [           ]; and



     (c) the [           ] Payment Date, the amount on deposit in the Capitalized Interest Account on
such Payment Date (after giving effect to the transfer of the Monthly Capitalized Interest Amount
to the Collection Account on such date).



     “Owner Trustee” means [           ], a [           ], not in its
individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner
Trustee thereunder.



     “Owner Trustee Fee” means $[ ], payable monthly, plus reasonable out of pocket
expenses of the Owner Trustee, not to exceed $[ ] annually, incurred in fulfilling its duties
under the Transaction Documents.



     “Paying Agent” means the Indenture Trustee or any other Person that meets the
eligibility standards for the Indenture Trustee set forth in Section 6.11 of the Indenture
and is authorized by the Issuer to make the payments to and distributions from the Note
Distribution Account, including the payment of principal of or interest on the Notes on behalf of
the Issuer.



A-17









 





     “Payment
Date” means the 15th day of each calendar month beginning [           ], 20[ ]; provided, however, whenever a Payment Date would otherwise be a day that is not a
Business Day, the Payment Date shall be the next Business Day. As used herein, the “related”
Payment Date with respect to a Collection Period shall be deemed to be the Payment Date which
immediately follows such Collection Period.



     “Payment Default” has the meaning set forth in Section 5.4(a) of the
Indenture.



     “Permitted Liens” means (a) any liens created by the Transaction Documents; (b) any
liens for taxes not due and payable or the amount of which is being contested in good faith by
appropriate proceedings; and (c) any liens of mechanics, suppliers, vendors, materialmen, laborers,
employees, repairmen and other like liens securing obligations which are not due and payable or the
amount or validity of which is being contested in good faith by appropriate proceedings.



     “Person” means any individual, corporation, limited liability company, estate,
partnership, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political subdivision thereof.



     “Physical Property” has the meaning specified in the definition of “Delivery”
above.



     [“Policy” means the Insurance Policy dated the Closing Date issued by the Insurer with
respect to the Notes.]



     “Pool Balance” means, at any time, the aggregate Principal Balance of the Contracts at
such time.



     “Pool Factor” on a Payment Date means a six-digit decimal figure equal to the sum of
the Pool Balance and the funds in the Pre-Funding Account (excluding investment income) as of the
end of the preceding Collection Period divided by the sum of the aggregate Principal Balance of the
Contracts as of the Initial Cut-Off Date plus the Initial Pre-Funding Account Deposit Amount. The
Pool Factor will be 1.000000 as of the Cut-Off Date; thereafter, the Pool Factor will decline to
reflect reductions in the Pool Balance.



     “Pre-Funding Account” means the account by that name established and maintained
pursuant to Section 4.1 of the Sale and Servicing Agreement.



     “Pre-Funding Earnings” means, with respect to any date of determination during the
Funding Period, the actual investment income earned during the previous calendar month on amounts
on deposit in the Pre-Funding Account during such period as calculated by the Indenture Trustee.



     “Predecessor Note” means, with respect to any particular Note, every previous Note
evidencing all or a portion of the same debt as that evidenced by such particular Note; provided,
however, for the purpose of this definition, any Note authenticated and delivered under Section
2.5 of the Indenture in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Note.



     [“Preference Amount” has the meaning specified in the Policy.]



     [“Premium” means the insurance premium payable to the Insurer pursuant to the
Insurance Agreement.]



A-18









 





     “Principal Balance” of a Contract as of any date means the Amount Financed minus the
sum of (i) that portion of all Contract Scheduled Payments received on or prior to such day
allocable to principal, (ii) any refunded portion of extended warranty protection plan costs, or of
physical damage, credit life or disability insurance premiums included in the Amount Financed,
(iii) any payment of the Repurchase Amount with respect to the Contract allocable to principal,
(iv) the principal portion of any Modified Contract Scheduled Payments received on or prior to such
day and (v) any prepayment in full or any partial prepayments applied to reduce the principal
balance of the Contract; provided, however, that any Charged-Off Contract or Repurchased Contract
shall have a Principal Balance of zero.



     “Principal Distributable Amount” means, for any Payment Date, the sum of: (i) all
collections received on the Contracts (other than Charged-Off Contracts and contracts purchased by
the Servicer or repurchased by the Seller pursuant to the Transaction Documents) that are allocable
to principal; (ii) the Principal Balance of all contracts that became Charged-Off Contracts during
the related Collection Period, (iii) the amount of any payments by the Seller or the Servicer
relating to contracts they are required to purchase pursuant to the Transaction Documents allocable
to principal; [(iv) at the Insurer’s option, the aggregate Principal Balance of all Contracts
required to be purchased by the Seller or the Servicer pursuant to Sections 2.3 or
3.6 of the Sale and Servicing Agreement and Section 3.3 of the Contribution
Agreement during the Collection Period that were not purchased;] and (v) the aggregate amount of
Cram Down Losses during the related Collection Period.



     “Proceeding” means any suit in equity, action at law or other judicial or
administrative proceeding.



     “Purchase Price” has the meaning set forth in Section 2.4 of the Contribution
Agreement.



     “Rating Agency” means Moody’s or S&P.



     “Rating Agency Condition” means, with respect to any event or circumstance and each
Rating Agency, either (a) written confirmation by such Rating Agency that the occurrence of such
event or circumstance will not itself cause such Rating Agency to downgrade or withdraw its rating
assigned to any of the Notes[, without giving effect to the Policy on the ratings assigned to any
of the Notes] or (b) that such Rating Agency shall have been given notice of such event at least
ten days prior to the occurrence of such event (or, if ten days’ advance notice is impracticable,
as much advance notice as is practicable) and such Rating Agency shall not have issued any written
notice that the occurrence of such event will itself cause such Rating Agency to downgrade or
withdraw its rating assigned to any of the Notes[, without giving effect to the Policy on the
ratings assigned to any of the Notes].



     “Record Date” means, unless otherwise specified in any Transaction Document, with
respect to any Payment Date or Redemption Date, (i) for any Definitive Notes and for the
Certificates, if any, the close of business on the last Business Day of the calendar month
immediately preceding the calendar month in which such Payment Date or Redemption Date occurs and
(ii) for any Book-Entry Notes, the close of business on the Business Day immediately preceding such
Payment Date or Redemption Date.



     “Records” means, for any Contract, all contracts, books, records and other documents
or information (including computer programs, tapes, disks, software and related property and
rights, to the extent legally transferable) relating to such Contract or the related Obligor.



     “Recoveries” means, with respect to a Charged-Off Contract and for any Collection
Period occurring after the date on which such Contract becomes a Charged-Off Contract, all
payments, including insurance proceeds, that the Servicer received from or on behalf of an Obligor
regarding such Charged-



A-19









 







Off Contract, or from liquidation of the related Financed Vehicle, net of any reasonably
incurred out-of-pocket expenses incurred by the Servicer in enforcing such Charged-Off Contract.



     “Redemption Date” means in the case of a redemption of the Notes pursuant to
Section 10.1 of the Indenture, the Payment Date specified by the Administrator or the
Issuer pursuant to Section 10.1 of the Indenture.



     “Redemption Price” means an amount equal to the unpaid principal amount of the
outstanding Notes being redeemed plus accrued and unpaid interest thereon to but excluding the
Redemption Date plus all amounts due to [the Insurer,] the Indenture Trustee, the Backup Servicer
and the Owner Trustee under the Transaction Documents.



     “Registered Holder” means the Person in whose name a Note is registered on the Note
Register on the related Record Date.



     “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17
C.F.R. §§229.1100-229.1123, as such may be amended from time to time and subject to such
clarification and interpretation as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518. 70 Fed. Reg. 1,506, 1,531 (January 7,
2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from
time to time.



     [“Reimbursement Obligations” means any amounts owing to the Insurer under the
Insurance Agreement or any other Transaction Document including, without limitation, any overdue
premium amounts payable pursuant to the Insurance Agreement, any payments made on the Policy, any
Reliening Expenses and any Transition Expenses paid by the Insurer pursuant to Section
7.1(d) of the Sale and Servicing Agreement, in each case, together with interest thereon at the
Late Payment Rate.]



     “Related Security” means, for any Contract (i) all right, title, and interest of the
Seller in and to the Contracts and all monies due thereunder after the applicable Cut-Off Date;
(ii) the interest of the Seller in the security interests in the Financed Vehicles granted by
Obligors pursuant to the Contracts and any accessions thereto; (iii) the interest of the Seller in
any proceeds from claims on any physical damage, credit life or disability, or other insurance
policies maintained by the Obligors thereon covering the Financed Vehicles or the Obligors relating
to the Contracts and any proceeds from the liquidation of Contracts or the related Financed
Vehicles; (iv) all right, title and interest (but not the obligations) of the Seller in and to the
Contribution Agreement and this Agreement, insofar as such right, title and interest relates to the
Contracts, the related Contract Files or the related Financed Vehicles, including the right of the
Seller to cause the Originator, as applicable, to repurchase the Contracts from the Seller under
certain circumstances; (v) the interest of the Seller in any Dealer Recourse relating to the
Contracts; (vi) the interest of the Seller in certain rebates of premiums and other amounts
relating to insurance policies and other items financed under the Contracts in effect after the
applicable Cut-Off Date; (vii) the Trust Accounts and all funds on deposit from time to time and
all rights of the Seller therein; (viii) the related Contract Files; and (ix) the proceeds of any
and all of the foregoing.



     “Reliening Expenses” has the meaning set forth in Section 3.4(b) of the Sale
and Servicing Agreement.



     “Repurchase Price” means the amount equal to the amount that would be required to be
paid by an Obligor to prepay in full its Contract under the terms thereof (including one month’s
interest thereon at the related APR) which the Seller or the Servicer as applicable (pursuant
hereto) or Drive Consumer (pursuant to the Contribution Agreement), will be obligated hereunder (i)
to pay to repurchase a Contract and (ii) to exercise the Optional Purchase.



A-20









 





     “Repurchased Contract” means a Contract purchased by the Originator pursuant to
Section 3.3 of the Contribution Agreement, by the Servicer pursuant to Section 3.6
of the Sale and Servicing Agreement or by the Seller pursuant to Section 2.3 of the Sale
and Servicing Agreement.



     “Reserve Account” means the account designated as such, established and maintained
pursuant to Section 4.1 of the Sale and Servicing Agreement.



     [“Reserve Account Letter of Credit” means an irrevocable direct pay letter of credit
(i) issued by a Reserve Account Letter of Credit Bank, (ii) in form and substance satisfactory to
each Rating Agency and the Insurer, (iii) for the benefit of the Indenture Trustee and in form
reasonably acceptable to the Indenture Trustee, (iv) providing for the amount thereof to be
available to the Indenture Trustee in multiple drawings conditioned only upon presentation of the
applicable certificate in the form attached to such Reserve Account Letter of Credit, (v) having an
initial term of at least one year and (vi) credited to the Reserve Account.]



     [“Reserve Account Letter of Credit Bank” means an entity acceptable to the Controlling
Party that issues a Reserve Account Letter of Credit.]



     [“Reserve Event” has the meaning specified in the Insurance Agreement.]



     “Residual Interest” means the beneficial interest in the Issuer. The Residual
Interest shall not be represented by a Certificate except upon the request of the Residual
Interestholder pursuant to the terms of the Trust Agreement.



     “Residual Interest Account” means the account designated as such, established and
maintained pursuant to Section 4.1 of the Sale and Servicing Agreement.



     “Residual Interestholder” means a holder of the Residual Interest, whether or not
certificated. The Seller shall be the initial Residual Interestholder.



     “Responsible Officer” means, with respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of the Indenture Trustee or the Owner
Trustee, as the case may be, including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary, Corporate Trust Officer or any other officer of the Indenture
Trustee or the Owner Trustee customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer’s knowledge of any familiarity with the
particular subject.



     “Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of the
Closing Date, by and among the Seller, the Issuer, the Servicer, the Backup Servicer and the
Indenture Trustee, as the same may be amended, modified or supplemented from time to time.



     “Sarbanes Certification” has the meaning set forth in Section 10.22 of the
Sale and Servicing Agreement.



     “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002, as amended, modified or
supplemented from time to time, and any successor law thereto.



     “Schedule of Contracts” means, as the context may require, (i) the schedule of Initial
Contracts or Subsequent Contracts, as the case may be, transferred to the Issuer on the Closing
Date or a Funding Date, respectively, or (ii) collectively, the schedule of all Contracts assigned
to the Issuer by the Seller as



A-21









 







of the date of determination, with such additions and deletions as properly made pursuant to
the Transaction Documents.



     “Securities” means the Notes and the Residual Interests.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Seller” means Drive Auto Receivables LLC, a Delaware limited liability company.



     “Servicer” means Drive Consumer, initially, and any replacement Servicer appointed
pursuant to the Sale and Servicing Agreement.



     “Servicer’s Certificate” means the certificate delivered pursuant to Section
3.8 of the Sale and Servicing Agreement.



     “Servicer’s Data Tape” has the meaning set forth in Section 3.8(b) of the Sale
and Servicing Agreement.



     “Servicer’s Date File” has the meaning set forth in Section 3.8(b) of the Sale
and Servicing Agreement.



     “Servicer Termination Event” means any one or more of the following that shall have
occurred and be continuing:



     (a) failure by the Servicer (i) to deposit to the Collection Account any amount required to be
deposited therein by the Servicer that shall continue unremedied for a period of one Business Day
or (ii) to deliver to the Indenture Trustee [or the Insurer] the Servicer’s Certificate on the
related Determination Date that shall continue unremedied for a period of one Business Day, in the
case of either clause (i) or (ii) after the earlier to occur of (A) written notice of such failure
having been received by the Servicer from the Indenture Trustee [or the Insurer] or (B) discovery
of such failure by an officer of the Servicer;



     (b) failure on the part of the Seller, the Originator or the Servicer, as the case may be, to
repurchase a Contract in accordance with Section 2.3 or Section 3.6, as the case
may be, which failure shall continue unremedied for a period of one Business Day after the earlier
to occur of (i) the date on which written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Servicer or the Seller, as the case may be, by the
Indenture Trustee or (B) to the Servicer or the Seller, as the case may be, and the Indenture
Trustee by a majority of the Holders of the Notes [or the Insurer] or (ii) discovery of such
failure by an officer of the Servicer or the Seller, as the case may be;



     (c) failure on the part of the Servicer or the Seller duly to observe or to perform in any
material respect any other covenants or agreements of the Servicer or the Seller (as the case may
be) set forth in the Notes or in this Agreement or any other Transaction Document, which failure
shall (i) materially and adversely affect the rights of Noteholders [or the Insurer] and (ii)
continue unremedied for a period of 30 days after the earlier to occur of (A) the date on which
written notice of such failure, requiring the same to be remedied, shall have been given (1) to the
Servicer or the Seller, as the case may be, by the Indenture Trustee or (2) to the Servicer or the
Seller, as the case may be, and to the Indenture Trustee by the majority of the Holders of Notes
[or the Insurer]; or (B) discovery of such failure by an officer of the Servicer or the Seller;



     (d) the entry of a decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver or liquidator for the
Servicer in



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any insolvency, readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of
any decree or order for relief in respect of the Servicer or the Seller under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of debt or similar law, whether
now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a
period of 60 consecutive days;



     (e) the consent by the Servicer or the Seller to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or the Seller or relating to substantially all
of its property; or the admission by the Servicer or the Seller in writing of its inability to pay
its debts generally as they become due, the filing by the Servicer or the Seller of a petition to
take advantage of any applicable insolvency or reorganization statute, the making by the Servicer
or the Seller of an assignment for the benefit of its creditors, or the voluntarily suspension by
the Servicer or the Seller of payment of its obligations[; or



     (f) the occurrence of a Servicing Termination Trigger Event beyond the applicable cure period,
if any].



     “Servicing Criteria” shall mean the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.



     “Servicing Fee” means, for any Collection Period, a fee payable on a senior basis to
the Servicer for services rendered during such Collection Period, which shall be the product of (i)
[ ]% per annum and (ii) the Pool Balance as of the first day of such Collection Period.



     [“Servicing Termination Trigger Event” means, with respect to any Payment Date, the
occurrence of a Trigger Event under the Insurance Agreement or under and as defined in the
transaction documents relating to any other securitization transaction of the Servicer and/or the
Seller or any Affiliate of the Servicer in which the issued securities are insured by the Insurer.]



     “Simple Interest Contract” means any Contract under which the portion of a payment
allocable to interest and the portion allocable to principal is determined in accordance with the
Simple Interest Method.



     “Simple Interest Method” means the method of allocating a fixed level payment on an
obligation between principal and interest, pursuant to which the portion of such payment that is
allocated to interest is equal to the product of the fixed rate of interest on such obligation
multiplied by the unpaid Principal Balance multiplied by the period of time (expressed as a
fraction of a year, based on the actual number of days in the calendar month and 365 days in the
calendar year) elapsed since the preceding payment under which the obligation was made and the
remainder of such payment is allocable to principal.



     “Specified Reserve Amount” means (i) for any Payment Date with respect to which (i)
[no Reserve Event occurred that has not been Deemed Cured and no Trigger Event has occurred that
has not been waived by the Insurer], the greater of [ ]% less the Overcollateralization
Percentage of the Pool Balance as of the end of the related Collection Period and (b) the lesser of
(1) [ ]% of the sum of the Original Pool Balance and the aggregate Principal Balances of all
Subsequent Contracts as of their respective Cut-Off Dates and (2) the Note Balance immediately
prior to such Payment Date; (ii) [if a Reserve Event has occurred that has not been Deemed Cured],
the greater of (a) [ ]% less the Overcollateralization Percentage of the Pool Balance as of the
end of the related Collection Period and (b) the lesser of (1) [ ]% of the sum of the Original
Pool Balance and the aggregate Principal Balances of all Subsequent Contracts as of their
respective Cut-Off Dates and (2) the Note Balance immediately prior to



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such Payment Date[, and (iii) a Trigger Event has occurred that has not been waived by the
Insurer, the lesser of (a) 100% of the Note Balance as of the end of the related Collection Period
and (b) an amount that shall be determined by the Insurer in its sole discretion; provided,
however, that the “Specified Reserve Amount” shall never exceed the then-outstanding Note Balance;
provided, further, however, that the “Specified Reserve Amount” may, if permitted by the Insurer
and approved by the Rating Agencies, be reduced by an amount acceptable to the Insurer and the
Rating Agencies. Notwithstanding the foregoing, once a Trigger Event has occurred, the Total
Available Reserve Amount may, at the Insurer’s discretion, be used to pay additional principal on
the Notes sequentially until paid down to zero and then to pay all amounts due to the Insurer in
accordance with Section 4.3(b)].



     “STAMP” has the meaning set forth in Section 2.4 of the Indenture.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., or any successor that is a nationally recognized statistical rating organization.



     “Statutory Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code § 3801 et seq.



     “Subsequent Contract” means a Contracts transferred to the Issuer on a Funding Date.



     “Subsequent Cut-Off Date” means, with respect to any Subsequent Contract, the date
specified in the Notice of Funding Date related to such Subsequent Contract.



     “Subsequent Conveyed Assets” has the meaning set forth in Section 2.2 of the
Contribution Agreement.



     “Subsequent Reserve Amount” means, on each Funding Date, an amount equal to [ ]% of
the aggregate Principal Balance of Subsequent Contracts as of the related Subsequent Cut-off Date
transferred to the Issuer on such Funding Date. On each Funding Date, the Subsequent Reserve
Amount must be funded either by a cash deposit (such amount to be funded with cash withdrawn from
the Pre-Funding Account and deducted from the proceeds paid to the Seller as consideration of the
transfer of Subsequent Contracts on such Funding Date) or by the issuance of a Reserve Account
Letter of Credit, or any combination thereof.



     “Subsequent Transferred Assets” means (a) the Subsequent Conveyed Assets, (b) all of
the Seller’s rights under the Contribution Agreement and (c) all proceeds of the foregoing.



     “Successor Servicer” means any entity appointed as a successor to the Servicer
pursuant to Section 7.1(a) of the Sale and Servicing Agreement.



     “Successor Servicing Fee” means (i) the fee payable to any Successor Servicer
hereunder on each Payment Date equal to the amount set forth in the Backup Servicing Agreement and
(ii) reimbursement of expenses incurred in connection with realization on the Contracts or other
enforcement procedures in respect of collections, (i.e., repos, freight, skip-tracing).



     “Termination Date” shall mean the date on which all amounts owing to the Noteholders
[and, as certified in writing to the Owner Trustee by (i) the Insurer, all amounts owing to the
Insurer under the Transaction Documents have been paid in full] [and (ii) each Reserve Account
Letter of Credit Bank, all amounts owing to each Reserve Account Letter of Credit Bank hereunder
and under each Letter of Credit Reimbursement Agreement] have been paid in full have been paid in
full.



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     “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939, as
amended and as in force on the date hereof, unless otherwise specifically provided.



     “Total Available Reserve Amount” means, with respect to any Payment Date, the amount
available, from whatever source, in the Reserve Account [and under each Reserve Account Letter of
Credit] after taking into account any withdrawals from the Reserve Account [or any reductions in
the face amount of each Reserve Account Letter of Credit] made on such Payment Date.



     “Transaction Documents” means the Indenture, the Notes, the Note Depository Agreement,
the Sale and Servicing Agreement, the Contribution Agreement, the Administration Agreement[, the
Insurance Agreement] and the Trust Agreement, as the same may be amended or modified from time to
time.



     “Transferred Assets” means (a) the Initial Transferred Assets and (b) the Subsequent
Transferred Assets.



     “Transfer Taxes” means any tax, fee or governmental charge payable by the Seller, the
Issuer or the Indenture Trustee to any federal, state or local government.



     “Transition Expenses” has the meaning given such term in Section 7.1(d) of the
Sale and Servicing Agreement.



     [“Trigger Event” has the meaning set forth in the Insurance Agreement.]



     “Trust Accounts” means the Collection Account, the Note Distribution Account, the
Certificate Distribution Account, the Pre-Funding Account, the Capitalized Interest Account and the
Reserve Account.



     “Trust Agreement” means the Trust Agreement, dated as of [ ], 20[ ]
between the Seller and the Owner Trustee, as amended and restated by the Amended and Restated Trust
Agreement, dated as of the Closing Date, between the Seller and the Owner Trustee, as the same may
be amended and supplemented from time to time.



     “Trust Estate” means the assets conveyed or intended to be conveyed to the Issuer
pursuant to Section 2.1(a) and (b) of the Sale and Servicing Agreement.



     “UCC” means, unless the context otherwise requires, the Uniform Commercial Code as in
effect in the relevant jurisdiction, as amended from time to time.



     “United States” or “USA” means the United States of America (including all
states, the District of Columbia and political subdivisions thereof).



     The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms. Unless otherwise inconsistent with the terms of this Agreement, all accounting
terms used herein shall be interpreted, and all accounting determinations hereunder shall be made,
in accordance with GAAP. Amounts to be calculated hereunder shall be continuously recalculated at
the time any information relevant to such calculation changes.




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