Exhibit 10.1



 





Exhibit 10.1




 





CONTRIBUTION AGREEMENT




dated as of [          ], 20[ ]




Between




DRIVE CONSUMER USA INC.




and




DRIVE AUTO RECEIVABLES LLC




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS AND USAGE	 	 	1	 
	     SECTION 1.1
	 	Definitions	 	 	1	 
	     SECTION 1.2
	 	Other Interpretive Provisions	 	 	1	 
	ARTICLE II CONTRIBUTION	 	 	2	 
	     SECTION 2.1
	 	Agreement to Contribute on the Closing Date	 	 	2	 
	     SECTION 2.2
	 	Agreement to Contribute on the Funding Dates	 	 	2	 
	     SECTION 2.3
	 	Consideration for the Initial Conveyed Assets	 	 	2	 
	     SECTION 2.4
	 	Consideration and Payment for the Subsequent Conveyed Assets	 	 	3	 
	     SECTION 2.5
	 	Conditions to Transfer of Subsequent Contracts	 	 	3	 
	ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS	 	 	4	 
	     SECTION 3.1
	 	Representations and Warranties of the Originator	 	 	4	 
	     SECTION 3.2
	 	Representations and Warranties of the Originator as to each Contract	 	 	5	 
	     SECTION 3.3
	 	Repurchase upon Breach	 	 	6	 
	     SECTION 3.4
	 	Protection of Title	 	 	6	 
	     SECTION 3.5
	 	Other Liens or Interests	 	 	8	 
	     SECTION 3.6
	 	Representations and Warranties of the Depositor	 	 	8	 
	     SECTION 3.7
	 	Costs and Expenses	 	 	8	 
	     SECTION 3.8
	 	Indemnification	 	 	8	 
	ARTICLE IV MISCELLANEOUS	 	 	9	 
	     SECTION 4.1
	 	Transfers Intended as Absolute Contribution; Security Interest	 	 	9	 
	     SECTION 4.2
	 	Notices, Etc	 	 	10	 
	     SECTION 4.3
	 	Choice of Law	 	 	11	 
	     SECTION 4.4
	 	Headings	 	 	11	 
	     SECTION 4.5
	 	Counterparts	 	 	11	 
	     SECTION 4.6
	 	Amendment	 	 	11	 
	     SECTION 4.7
	 	Waivers	 	 	11	 
	     SECTION 4.8
	 	Entire Agreement	 	 	11	 
	     SECTION 4.9
	 	Severability of Provisions	 	 	11	 
	     SECTION 4.10
	 	Binding Effect; Assignability	 	 	12	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	     SECTION 4.11
	 	Acknowledgment and Agreement	 	 	12	 
	     SECTION 4.12
	 	No Waiver; Cumulative Remedies	 	 	12	 
	     SECTION 4.13
	 	Nonpetition Covenant	 	 	12	 
	     SECTION 4.14
	 	Submission to Jurisdiction	 	 	12	 






	 	 	 
	EXHIBITS
	 	 
	Exhibit A

	 	Form of Assignment
	Schedule I

	 	Representations and Warranties






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     THIS CONTRIBUTION AGREEMENT is made and entered into as of [          ], 20[ ] (as amended
from time to time, this “Agreement”) by DRIVE CONSUMER USA INC., an Illinois corporation
(“Drive Consumer” or the “Originator”), and Drive Auto Receivables LLC, a Delaware
limited liability company (the “Depositor”).



WITNESSETH:




     WHEREAS, in the regular course of its business, the Originator purchases certain [prime]
[non-prime] motor vehicle retail installment sale contracts secured by new and used automobiles,
light duty trucks, vans, mini-vans and motorcycles from motor vehicle dealers; and



     WHEREAS, the Originator and the Depositor wish to set forth the terms pursuant to which the
Originator’s right, title and interest in and to the Contracts are to be conveyed, transferred,
contributed and assigned by the Originator to the Depositor, which Contracts will then be
transferred by the Depositor, pursuant to the Sale and Servicing Agreement to Drive Auto
Receivables Trust 20[ ]-[ ] (the “Issuer”) to be created under the Trust Agreement.



     NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein,
the parties hereto agree as follows:



ARTICLE I




DEFINITIONS AND USAGE




     SECTION 1.1 Definitions. Except as otherwise defined herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are defined in Appendix
A to the Sale and Servicing Agreement dated as of the date hereof (as from time to time amended,
supplemented or otherwise modified and in effect, the “Sale and Servicing Agreement”) among
the Issuer, Drive Consumer, as servicer, the Depositor, as seller and [          ], as indenture
trustee, which also contains rules as to usage that are applicable herein. As used herein, the
following terms shall have the following meanings:



     “Conveyed Assets” has the meaning specified in Section 2.2.



     “Initial Conveyed Assets” has the meaning specified in Section 2.1.



     “Subsequent Conveyed Assets” has the meaning specified in Section 2.2.



     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) references to any Person include that Person’s successors and assigns; and (g)
headings are for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.



ARTICLE II




CONTRIBUTION




     SECTION 2.1 Agreement to Contribute on the Closing Date. On the terms and subject to
the conditions set forth in this Agreement, the Originator agrees to transfer, assign, set over,
contribute and otherwise convey to the Depositor without recourse (subject to the obligations
herein) on the Closing Date all of its right, title and interest in, to and under the Contracts
after the Initial Cut-Off Date, the Contract Files and the Related Security relating thereto,
whether now owned or hereafter acquired, described in an Assignment substantially in the form of
Exhibit A delivered on the Closing Date (collectively, the “Initial Conveyed
Assets”), which sale shall be effective as of the Initial Cut-Off Date. The transfer,
assignment and conveyance made hereunder will not constitute and is not intended to result in an
assumption by the Depositor of any obligation of the Originator to the Obligors, the Dealers or any
other Person in connection with the Contracts and the other assets and properties conveyed
hereunder or any agreement, document or instrument related thereto.



     SECTION 2.2 Agreement to Contribute on the Funding Dates. On the terms and subject to
the conditions set forth in this Agreement, the Originator agrees to transfer, assign, set over,
contribute and otherwise convey to the Depositor on each Funding Date all of its right, title and
interest in, to and under the Contracts after the related Subsequent Cut-Off Date and the Related
Security relating thereto, whether now owned of hereafter acquired, described in an Assignment
substantially in the form of Exhibit A delivered on such Funding Date (collectively, the
“Subsequent Conveyed Assets” and, together with the Initial Conveyed Assets, the
“Conveyed Assets”). The transfer, assignment and conveyance made hereunder will not
constitute and is not intended to result in an assumption by the Depositor of any obligation of the
Originator to the Obligors, the Dealers or any other Person in connection with the Contracts and
the other assets and properties conveyed hereunder or any agreement, document or instrument related
thereto.



     SECTION 2.3 Consideration for the Initial Conveyed Assets. In consideration of the
contribution of the Initial Conveyed Assets contributed to the Depositor on the Closing Date, the
Depositor shall issue membership interests in the Depositor to the Originator representing 100% of
the equity interest in the Depositor, such interest to represent the estimated fair market value of
the Initial Conveyed Assets on the Closing Date. Notwithstanding the preceding sentence, if such
purchase price for the Initial Conveyed Assets exceeds the amount of cash available to the
Depositor from the proceeds of the sale of the Notes, then an undivided interest in such Initial
Conveyed Assets in an amount equal to such excess shall be deemed to have been contributed to the
Depositor by the Originator.



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     SECTION 2.4 Consideration and Payment for the Subsequent Conveyed Assets. In
consideration of the contribution of the Subsequent Conveyed Assets contributed to the Depositor on
each Funding Date, the Depositor shall pay to the Originator on such date an amount equal to the
estimated fair market value of the related Subsequent Conveyed Assets on such Funding Date (the
“Purchase Price”). Notwithstanding the preceding sentence, if the Purchase Price to be
paid by the Depositor for such Subsequent Conveyed Assets exceeds the amount of any cash payments
paid by the Issuer to the Depositor on such Funding Date for such Subsequent Conveyed Assets, then
an undivided interest in such Subsequent Conveyed Assets in an amount equal to such excess shall be
deemed to have been contributed to the Depositor by Drive Consumer.



     SECTION 2.5 Conditions to Transfer of Subsequent Contracts. The Originator shall
transfer to the Depositor the Subsequent Contracts and the other property and rights related
thereto described in Section 2.2 above only upon the satisfaction of each of the following
conditions on or prior to the related Funding Date:




     (i) The Originator shall have provided the Indenture Trustee, the Owner Trustee[, the
Insurer] and the Rating Agencies with a Notice of Funding Date not later than five 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 Originator 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 Originator shall not be insolvent and shall not
become insolvent as a result of the transfer of Subsequent Contracts on such Funding Date,
(B) the Originator 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
Originator 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 Depositor pursuant to this Agreement 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 Depositor shall not be less than [     ]%, unless, with the
prior consent of the Rating Agencies [and the Insurer], the Originator 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 all of the Contracts shall not be greater than [     ]%; (D) the
percentage of Contracts originated and entered into in the



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State of Texas shall not exceed [     ]% of the total Contracts in the Trust; and (E)
the percentage of Contracts relating to “OverDrive” program shall not be less than [     ]%;




     (vi) each of the representations and warranties made by the Originator 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 Originator
shall have performed all obligations to be performed by it hereunder on or prior to such
Funding Date;




     (vii) the Originator 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 Depositor
pursuant to this Agreement;




     (viii) the Originator shall have taken any action required to maintain the first
priority perfected ownership interest of the Trust in the Trust Estate and the first
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 Trust or the Noteholders;




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




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




     (xiii) the Originator 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 Section 2.5; and




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



ARTICLE III




REPRESENTATIONS, WARRANTIES AND COVENANTS




     SECTION 3.1 Representations and Warranties of the Originator. The Originator hereby
represents and warrants to the Depositor[, the Insurer] and the Trust as of the date hereof with
respect to the Initial Conveyed Assets and as of each Funding Date with respect to the related
Subsequent Conveyed Assets:



     (a) Organization, etc. The Originator has been duly organized and is validly existing
as a corporation 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



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presently conducted, and had at all relevant times, and has power, authority and legal right
to acquire and own the Contracts.



     (b) Power and Authority. The Originator has full power and authority to convey,
transfer, contribute and assign the property conveyed and assigned to the Depositor hereunder and
has duly authorized such contribution and assignment to the Depositor by all necessary action.
This Agreement [and the Insurance Agreement have] has been duly authorized, executed and delivered
by the Originator and shall constitute the legal, valid and binding obligations of the Originator
except as the same may be limited by insolvency, bankruptcy, reorganization or other laws relating
to or affecting the enforcement of creditors’ rights or by general equity principles.



     (c) No Violation. The consummation of the transactions contemplated by this Agreement
[and the Insurance Agreement], and the fulfillment of the terms hereof and thereof, will not
conflict with or result in a breach of any of the terms or provisions of, or constitute a default
under (in each case material to the Originator and its subsidiaries considered as a whole), or
result in the creation or imposition of, any lien, charge or encumbrance (in each case material to
the Originator and its subsidiaries considered as a whole) upon any of the property or assets of
the Originator pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument under which the Originator
is a debtor or guarantor, nor will such action result in any violation of the provisions of the
certificate of incorporation or other organizational documents of the Originator.



     (d) No Proceedings. No legal or governmental proceedings are pending to which the
Originator is a party or of which any property of the Originator is the subject, and no such
proceedings are threatened or contemplated by governmental authorities or threatened by others,
other than such proceedings which will not have a material adverse effect upon the general affairs,
financial position, net worth or results of operations (on an annual basis) of the Originator and
its subsidiaries considered as a whole and will not materially and adversely affect the performance
by the Originator of its obligations under, or the validity and enforceability of this Agreement
[or the Insurance Agreement].



     (e) Principal Place of Business, Jurisdiction of Organization. The principal place of
business of the Originator is located in Texas. The Originator is organized under the laws of
Illinois as a corporation. “Drive Consumer USA Inc.” is the correct legal name of the Originator
indicated on the public records of the Originator’s jurisdiction of organization which shows it to
be organized. Prior to December 6, 2006 and for at least the five (5) years preceding such date,
the Originator’s correct legal name was Drive Financial Services, LP, a limited partnership formed
under the laws of Delaware.



     SECTION 3.2 Representations and Warranties of the Originator 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 Originator hereby makes the representations and warranties set forth
on Schedule I to the Sale and Servicing Agreement to the Depositor as to the Initial Contracts and
Subsequent Contracts, as applicable, sold, transferred, assigned, contributed and otherwise
conveyed to the Depositor under this Agreement on which such representations and warranties the
Depositor relies in acquiring the Contracts. Such representations and warranties speak, with
respect to any Contract, as of the applicable Cut-Off Date for such Contract, but shall



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survive the sale of such Contracts to the Issuer under the Sale and Servicing Agreement, and
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 Originator shall not be required to notify any insurer with respect to any Insurance
Policy obtained by an Obligor or to notify any Dealer about any aspect of the transaction
contemplated by the Transaction Documents.



     SECTION 3.3 Repurchase upon Breach. Upon discovery by or notice to the Depositor or
the Originator of a breach of any of the representations and warranties set forth in Section
3.2 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 the Contracts, the party
discovering such breach or receiving such notice shall give prompt written notice thereof to the
other party; provided, that the failure to give such notice shall not affect any obligation of the
Originator hereunder. If the Originator does not correct or cure such breach prior to the end of
the first full Collection Period after the date the Originator became aware or was notified of such
breach, then the Originator shall repurchase any Contract affected by such breach which materially
and adversely affects the interests of the Issuer[, the Insurer] or the Noteholders in such
Contract from the Depositor on or before such last day. Any such breach or failure will not be
deemed to have a material and adverse effect if such breach or failure does not affect the ability
of the Depositor (or its assignee) to receive and retain timely payment in full on such Contract.
Any such repurchase by the Originator shall be at a price equal to the Repurchase Price. In
consideration for such repurchase, the Originator shall make (or shall cause to be made) a payment
to the Depositor equal to the Repurchase Price by depositing such amount into the Collection
Account prior to noon, New York City time on such Payment Date. Upon payment of such Repurchase
Price by the Originator, the Depositor shall release and shall execute and deliver such instruments
of release, transfer or assignment, in each case without recourse or representation, as shall be
reasonably necessary to vest in the Originator or its designee any Contract repurchased pursuant
hereto. It is understood and agreed that the obligation of the Originator to repurchase any
Contract as described above shall constitute the sole remedy respecting such breach available to
the Depositor.



     SECTION 3.4 Protection of Title.



     (a) The Originator 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 Depositor in the Contracts and in the proceeds
thereof. The Originator shall deliver (or cause to be delivered) to the Depositor file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon as available
following such filing.



     (b) The Originator shall not change its name, identity, State of organization or structure as
a corporation in any manner that would, could or might make any financing statement or continuation
statement filed by the Originator in accordance with Section 3.4(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 Depositor [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.



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     (c) The Originator shall give the Depositor [and the Insurer] at least 60 days’ prior written
notice of any relocation for purposes of Section 9-307 of the UCC of its principal executive office
or State of organization if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such amendment. The
Originator shall at all times maintain each office from which it shall service Contracts and its
principal executive office, within the United States (other than Louisiana).



     (d) The Originator shall maintain accounts and records as to each Contract and the related
Contract File accurately and in sufficient detail to permit 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 the related Contract File.



     (e) The Originator shall maintain its computer systems so that, from and after the time of
contribution hereunder of the Contracts to the Depositor, the Originator’s master computer records
(including any back-up archives) that refer to a Contract and the related Contract File shall
indicate clearly (including by means of tagging) the interest of the Depositor in such Contract and
the related Contract File and that such Contract and the related Contract File is owned by the
Depositor.



     (f) Indication of the Depositor’s ownership of any Contract shall be deleted from or modified
on the Originator’s computer systems when, and only when, the Contract shall have been paid in full
or repurchased or when the Depositor shall give notice that it has conveyed such Contract.



     (g) If at any time the Originator shall propose to sell, grant a security interest in, or
otherwise transfer any interest in, automotive receivables to any prospective seller, lender or
other transferee, the Originator shall give to such prospective seller, 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 or the related Contract File, shall indicate
clearly (including by means of tagging) that such Contract and the related Contract File has been
sold and is owned by the Depositor.



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



     (i) Upon request, the Originator shall furnish to the Depositor[, the Insurer] and the Trust
within 20 Business Days, a list of all Contracts (by contract number and name of Obligor) then
owned by the Depositor, together with a reconciliation of such list to the Schedule of Contracts.



     (j) In the event the Originator receives any collections, it shall promptly upon receipt, but
in no event later than one (1) Business Day from receipt, deposit such payments or proceeds with
the Servicer for deposit into the Collection Account in accordance with the Sale and Servicing
Agreement.



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     SECTION 3.5 Other Liens or Interests. Except for the conveyances hereunder and
pursuant to the Sale and Servicing Agreement, the Originator will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any
interest therein, and the Originator shall defend the right, title and interest of the Depositor
in, to and under such Contracts against all claims of third parties claiming through or under the
Originator; provided, however, that the Originator’s obligations under this Section shall terminate
upon the termination of the Trust pursuant to the Trust Agreement.



     SECTION 3.6 Representations and Warranties of the Depositor. The Depositor hereby
represents and warrants to the Originator[, the Insurer] and the Trust as of the date hereof and as
of the Closing Date and as of each Funding Date:



     (a) Organization, Etc. The Depositor has been duly formed and is validly existing as
a limited liability company under the laws of the State of Delaware, and has full power and
authority to execute and deliver this Agreement and to perform the terms and provisions hereof.



     (b) Due Authorization and No Violation. This Agreement has been duly authorized,
executed and delivered by the Depositor, and is the valid, binding and enforceable obligation of
the Depositor except as the same may be limited by insolvency, bankruptcy, reorganization or other
laws relating to or affecting the enforcement of creditors’ rights or by general equity principles.
The consummation of the transactions contemplated by this Agreement, and the fulfillment of the
terms hereof, will not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Depositor pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Depositor is a debtor or guarantor, nor will such action
result in any violation of the provisions of the limited liability company agreement of the
Depositor.



     (c) No Litigation. No legal or governmental proceedings are pending to which the
Depositor is a party or of which any property of the Depositor is the subject, and no such
proceedings are threatened or contemplated by governmental authorities or threatened by others,
other than such proceedings which will not have a material adverse effect upon the general affairs,
financial position, net worth or results of operations (on an annual basis) of the Depositor and
will not materially and adversely affect the performance by the Depositor of its obligations under,
or the validity and enforceability of this Agreement.



     SECTION 3.7 Costs and Expenses. The Originator agrees to pay all reasonable costs and
disbursements in connection with the perfection, as against all third parties, of the Depositor’s
right, title and interest in and to the Contracts and the related property.



     SECTION 3.8 Indemnification.



     (a) The Originator shall defend, indemnify and hold harmless the Depositor, the Trust, the
Owner Trustee[, the Insurer] and any assignee of the foregoing from and against any and all costs,
expenses, losses, damages, claims and liabilities arising out of or resulting from the



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failure of a Contract to be originated in compliance with all requirements of law and for any
breach of any of the Originator’s representations and warranties contained herein.



     (b) The Originator shall defend, indemnify, and hold harmless the Depositor, the Trust, the
Owner Trustee[, the Insurer] and any assignee of the foregoing 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 Originator or any Affiliate thereof of a Financed Vehicle.



     (c) The Originator shall defend, indemnify and hold harmless the Depositor, the Trust, the
Owner Trustee[, the Insurer] and any assignee of the foregoing from and against any and all taxes
that may at any time be asserted against the Depositor with respect to the transactions
contemplated herein, including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes and costs and expenses in defending against the same.



     (d) The Originator shall defend, indemnify and hold harmless the Depositor, the Trust, the
Owner Trustee[, the Insurer] and any assignee of the foregoing from and against any and all costs,
expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon the Depositor through, the negligence,
willful misconduct or bad faith of the Originator in the performance of its duties under this
Agreement.



     (e) The Originator shall defend, indemnify and hold harmless the Depositor, the Trust, the
Owner Trustee[, the Insurer] and any assignee of the foregoing 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 Originator’s trusts, except to the extent that such cost, expense,
loss, claim, damage or liability shall be due to the willful misconduct, bad faith or negligence of
the Depositor. These indemnity obligations shall be in addition to any obligation that the
Originator may otherwise have.



ARTICLE IV




MISCELLANEOUS




     SECTION 4.1 Transfers Intended as Absolute Contribution; 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 contributions 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
Conveyed Assets shall not be part of the Originator’s estate in the event of a bankruptcy or
insolvency of the Originator. The sales and transfers by the Originator of the Contracts and
related Conveyed Assets hereunder are and shall be without recourse to, or representation or
warranty (express or implied) by, the Originator, except as otherwise specifically provided herein.
The limited rights of recourse specified herein against the Originator 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.



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     (b) Notwithstanding the foregoing, in the event that the Contracts and other Conveyed Assets
are held to be property of the Originator, or if for any reason this Agreement is held or deemed to
create indebtedness or a security interest in the Contracts and other Conveyed 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 conveyances provided for in Section 2.1 and Section 2.2 shall
be deemed to be a grant by the Originator of, and the Originator hereby grants to the
Depositor, 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 Conveyed Assets, to secure such indebtedness and the performance of the
obligations of the Originator hereunder;




     (iii) The possession by the Depositor or its 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
Depositor for the purpose of perfecting such security interest under Applicable Law.



     SECTION 4.2 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 Electronic Transmission, and
addressed in each case as follows: (i) in the case of the Servicer at the following address:
Attention: Drive Consumer USA Inc., 8585 North Stemmons Freeway, Suite 1100-N, Dallas, Texas 75247;
at the following phone number: (214) 634-1110; and at the
following fax number: [(214) 237-3570];
(ii) in the case of the Indenture Trustee and the Backup Servicer, at its Corporate Trust Office,
Attention:
[          ] - Drive Auto Receivables Trust 20[ ]-[ ]; (iii) in the case of
the Owner Trustee, at its Corporate Trust Office; (iv) in the case of Moody’s, at: 99 Church
Street, New York, New York 10007; (v) in the case of S&P, at: 25 Broadway, New York, New York
10004; [and (vi) in the case of the Insurer, to: [           ], Telephone No.: [(  )     ],
Facsimile: [(  )     ];] or (vii) at such other address as shall be designated
by any of the foregoing 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



- 10 -









 




shall be conclusively presumed to have been duly given, whether or not the Noteholder shall
receive such notice.




     SECTION 4.3 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
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 4.4 Headings. The section headings hereof have been inserted for convenience
only and shall not be construed to affect the meaning, construction or effect of this Agreement.



     SECTION 4.5 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 4.6 Amendment. This Agreement may be amended from time to time [with the
prior written consent of the Insurer (so long as no Insurer Default has occurred and is
continuing)] by a written amendment duly executed and delivered by the Originator and the
Depositor; provided, however, that the Rating Agency Condition shall have been satisfied with
respect to such amendment.



     SECTION 4.7 Waivers. No failure or delay on the part of the Depositor, the Servicer,
the Originator, 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 the
Depositor or the Originator in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Depositor 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 4.8 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 4.9 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.



- 11 -









 





     SECTION 4.10 Binding Effect; Assignability. 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 4.11 Acknowledgment and Agreement. By execution below, the Originator
expressly acknowledges and consents to the sale of the Conveyed Assets and the assignment of all
rights and obligations of the Originator related thereto by the Depositor to the Issuer pursuant to
the Sale and Servicing Agreement and the pledge, assignment and grant of a security interest in the
Contracts and the other Conveyed Assets by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders. In addition, the Originator 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 Depositor under this Agreement.



     SECTION 4.12 No Waiver; Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.



     SECTION 4.13 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 hereto
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 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 4.14 Submission to Jurisdiction. 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



- 12 -









 







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 4.2 of this
Agreement; and



     (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.



     SECTION 4.15 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 the Owner Trustee [and the Insurer] shall be an
express third party beneficiary 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 4.16 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.]



[Remainder of Page Intentionally Left Blank]




- 13 -









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.



	 	 	 	 	 
	 	 	DRIVE CONSUMER USA INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:






S-1









 






	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:






S-2









 





EXHIBIT A




FORM OF

ASSIGNMENT PURSUANT TO CONTRIBUTION AGREEMENT




     For value received, in accordance with the Contribution Agreement dated as of [          ], 20[  ]
between Drive Consumer USA Inc., an Illinois corporation (the “Originator”) and Drive
Auto Receivables LLC, a Delaware limited liability company (the “Depositor”) (the
“Agreement”), on the terms and subject to the conditions set forth in the Agreement, the
Originator agrees to transfer, assign, set over, contribute and otherwise convey to the Depositor
on [          ], 20[  ] all of its right, title and interest, whether now owned or hereafter
acquired, in, to and under the Contracts set forth on the schedule of Contracts delivered by the
Originator to the Depositor on the date hereof (such schedule, together with any other Schedule of
Contracts delivered by the Originator to the Depositor pursuant to the Agreement, the “Schedule
of Contracts”), and the Collections after the related Cut-Off Date and the Related Security
relating thereto, which sale shall be effective as of such Cut-Off Date.



     The foregoing sale does not constitute and is not intended to result in any assumption by the
Depositor of any obligation of the undersigned to the Obligors, insurers or any other Person in
connection with the Contracts, any insurance policies or any agreement or instrument relating to
any of them.



     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.



[Remainder of page intentionally left blank]




A-1









 








     IN WITNESS HEREOF, the undersigned has caused this assignment to be duly executed as of [          ], 20[  ].



	 	 	 	 	 
	 	 	DRIVE CONSUMER USA INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:







A-2









 








SCHEDULE I




REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE CONTRACTS





	(a)	 	Characteristics of Contracts. (i) Each Contract:






	 	(i)	 	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, and has been validly assigned by such Dealer
to the Originator;
	 
	 	(ii)	 	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 the Originator to the Depositor;
	 
	 	(iii)	 	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)	 	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
Annual Percentage Rate over an original term of no less than [ ] months and no greater
than [ ] months;
	 
	 	(v)	 	provides for, in the event that such Contract is prepaid in full, a prepayment
that fully pays the Principal Balance;
	 
	 	(vi)	 	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




Schedule I-1









 






	 	 	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 of action against the Depositor or the Servicer 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 Originator, 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 this Agreement, 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 Trust, although the related certificates of title will not indicate the Trust 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 Originator’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 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.




Schedule I-2









 












	(l)	 	Insurance. The Originator, 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 Originator that the transfer and assignment herein
contemplated constitute a contribution of the Contracts from the Originator to the Depositor
and that the beneficial interest in and title to the Contracts not be part of the Originator’s
estate in the event of the filing of a bankruptcy petition by or against the Originator under
any bankruptcy law. No Contract has been sold, transferred, assigned, or pledged by the
Originator to any Person other than the Depositor and the Indenture Trustee. Immediately
prior to the transfer and assignment of each Contract herein contemplated, the Originator 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 Depositor shall have good and marketable title
to such Contract, free and clear of all Liens and rights of others.
	 
	(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 Depositor a first priority, perfected ownership interest in
the Contracts have been made.
	 
	(p)	 	Chattel Paper. Each Contract (A) constitutes either “tangible chattel paper” or a
“payment intangible,” each as defined in the UCC and (B) if “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 transferred to the Depositor 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
Originator’s knowledge, the Obligor thereon is an individual who is a United States 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.




Schedule I-3









 












	(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 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 Originator’s
knowledge, threatened, wherein the Obligor or any governmental agency has alleged that any
Contract is illegal or unenforceable.
	 
	(aa)	 	Origination. The Originator 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 Trust, and has done nothing to impair the rights of the Trust, the Noteholders [or the
Insurer] in payments with respect thereto.
	 
	(bb)	 	Tax Liens. The sale, transfer, assignment and conveyance of the Contracts and the
related Conveyed Assets by the Originator hereunder is not subject to and will not result in
any Transfer Taxes payable by the Depositor, the Issuer or the Indenture Trustee other than
Transfer Taxes which have or will be paid by the Originator 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 Originator’s otherwise
being given notice thereof by the Issuer or the Indenture Trustee, the Originator 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).




Schedule I-4









 












	(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 Originator’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 Originator 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 Originator.
	 
	(ee)	 	Computer Tape. The computer tape made available [to the Insurer] by the Originator
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.
	 
	(hh)	 	Obligor History. No Contract is due from an Obligor who has defaulted under a
previous contract with 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




Schedule I-5









 






	 	 	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
Originator without the consent of any Person other than consents which will have been obtained
on or before the transfer to the Depositor or the Trust.
	 
	(mm)	 	Consumer. To the best of the Originator’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 Originator 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 Depositor 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.





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




Schedule I-6