EXHIBIT 99.1
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SALE AND SERVICING AGREEMENT
among
WHOLE AUTO LOAN TRUST 2004-1,
as Issuer,
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Depositor,
and
BEAR XXXXXXX ASSET RECEIVABLES CORP.,
as Servicer.
Dated as of November 9, 2004
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Table of Contents
Page
ARTICLE I DEFINITIONS AND USAGE.......................................................................1
ARTICLE II TRUST PROPERTY..............................................................................1
SECTION 2.1 Conveyance of Trust Property; Intent of the Parties.........................................1
SECTION 2.2 Representations and Warranties of the Depositor regarding the Receivables...................1
SECTION 2.3 Repurchase upon Breach......................................................................2
SECTION 2.4 Custody of Receivable Files.................................................................3
SECTION 2.5 Duties of Servicer as Custodian.............................................................4
SECTION 2.6 Instructions; Authority to Act..............................................................5
SECTION 2.7 Custodian's Indemnification.................................................................5
SECTION 2.8 Effective Period and Termination............................................................5
SECTION 2.9 Representations and Warranties as to the Security Interest of the Issuer in the
Receivables................................................................................6
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY..............................7
SECTION 3.1 Duties of Servicer..........................................................................7
SECTION 3.2 Collection of Receivable Payments...........................................................7
SECTION 3.3 Realization Upon Receivables................................................................8
SECTION 3.4 Maintenance of Security Interests in Financed Vehicles......................................9
SECTION 3.5 Covenants of Servicer.......................................................................9
SECTION 3.6 Purchase of Receivables Upon Breach.........................................................9
SECTION 3.7 Servicer Fees..............................................................................10
SECTION 3.8 Investor Report............................................................................10
SECTION 3.9 Annual Statement as to Compliance; Notice of Event of Servicing Termination................10
SECTION 3.10 Annual Independent Certified Public Accountant's Report....................................10
SECTION 3.11 Access to Certain Documentation and Information Regarding Receivables......................11
SECTION 3.12 Servicer Expenses..........................................................................11
SECTION 3.13 Insurance..................................................................................11
SECTION 3.14 Xxxxxxxx-Xxxxx Act of 2002.................................................................11
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS............................12
SECTION 4.1 Accounts...................................................................................12
SECTION 4.2 Collections................................................................................13
SECTION 4.3 Application of Collections.................................................................14
SECTION 4.4 Additional Deposits........................................................................15
SECTION 4.5 Distributions..............................................................................15
SECTION 4.6 Net Deposits...............................................................................15
SECTION 4.7 Statements to Noteholders and Certificateholders...........................................15
ARTICLE V THE DEPOSITOR..............................................................................16
SECTION 5.1 Representations, Warranties and Covenants of Depositor.....................................16
SECTION 5.2 Liability of Depositor; Indemnities........................................................17
SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations of Depositor..................18
SECTION 5.4 Limitation on Liability of Depositor and Others............................................18
SECTION 5.5 Depositor May Own Notes or Certificates....................................................18
SECTION 5.6 Depositor Certificate of Incorporation.....................................................18
ARTICLE VI THE SERVICER...............................................................................18
SECTION 6.1 Representations of Servicer................................................................18
SECTION 6.2 Indemnities of Servicer....................................................................20
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of Servicer...................21
SECTION 6.4 Limitation on Liability of Servicer and Others.............................................21
SECTION 6.5 Subservicing and Delegation of Duties......................................................22
SECTION 6.6 Servicer Not to Resign as Servicer; Resignation and Termination of Receivables
Servicers.................................................................................23
SECTION 6.7 Servicer May Own Notes or Certificates.....................................................23
ARTICLE VII SERVICING TERMINATION......................................................................23
SECTION 7.1 Events of Servicing Termination............................................................23
SECTION 7.2 Appointment of Successor Servicer..........................................................25
SECTION 7.3 Notification to Noteholders and Certificateholders.........................................26
SECTION 7.4 Waiver of Past Events of Servicing Termination.............................................26
ARTICLE VIII TERMINATION................................................................................26
SECTION 8.1 Optional Purchase of All Receivables.......................................................26
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture....................................27
ARTICLE IX MISCELLANEOUS PROVISIONS...................................................................27
SECTION 9.1 Amendment..................................................................................27
SECTION 9.2 Protection of Title to Trust Property......................................................29
SECTION 9.3 Governing Law..............................................................................30
SECTION 9.4 Notices....................................................................................31
SECTION 9.5 Severability of Provisions.................................................................31
SECTION 9.6 Assignment.................................................................................31
SECTION 9.7 Further Assurances.........................................................................32
SECTION 9.8 No Waiver; Cumulative Remedies.............................................................32
SECTION 9.9 Third-Party Beneficiaries..................................................................32
SECTION 9.10 Actions by Noteholders or Certificateholders...............................................32
SECTION 9.11 Limitation of Liability of Owner Trustee and Indenture Trustee.............................32
SECTION 9.12 Savings Clause.............................................................................33
SECTION 9.13 No Petition................................................................................33
Schedule A Schedule of Receivables (listed to indicate DCS Receivables, Ford Credit
Receivables and GMAC Receivables).........................................................A-1
Schedule B Location of Receivable Files .............................................................B-1
Schedule C List of Receivables Servicers ............................................................C-1
Schedule D Certain Representations and Warranties Regarding the Ford Credit
Receivables...............................................................................D-1
Appendix A Definitions and Usage....................................................................AA-1
SALE AND SERVICING AGREEMENT, dated as of November 9, 2004 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), among WHOLE AUTO LOAN TRUST 2004-1 (the "Issuer"), a Delaware
statutory trust, BEAR XXXXXXX ASSET BACKED FUNDING II INC., a Delaware
corporation (the "Depositor") and BEAR XXXXXXX ASSET RECEIVABLES CORP., a
Delaware corporation, as servicer (in such capacity, the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of receivables
and related property consisting of motor vehicle retail installment sale
contracts and loans;
WHEREAS, the Servicer is willing to service such receivables 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
agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
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 shall be
applicable herein.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property; Intent of the
Parties. In consideration of the Issuer's delivery to, or upon the order of,
the Depositor of the Notes and the Certificates, the Depositor 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 Depositor, whether now owned or hereafter acquired, in and to the Trust
Property. The sale, transfer, assignment and conveyance made hereunder shall
not constitute and is not intended to result in an assumption by the Issuer
of any obligation of the Depositor to the Obligors or any other Person in
connection with the Receivables and the other Trust Property or any
agreement, document or instrument related thereto. The Depositor and the
Issuer intend that the sale, transfer, assignment and conveyance of the Trust
Property pursuant to this Section 2.1 shall be a sale and not a secured
borrowing.
SECTION 2.2 Representations and Warranties of the Depositor
regarding the Receivables. The Depositor makes the following representations
and warranties with respect to the Receivables, on which the Issuer relies in
purchasing the Receivables and pledging the same to the Indenture Trustee.
Such representations and warranties speak as of the execution and delivery of
this Agreement and as of the Transfer Date, but shall survive the sale,
transfer and assignment of the Receivables by the Depositor to the Issuer and
the pledge of the Receivables by the Issuer to the Indenture Trustee pursuant
to the Indenture.
(i) Schedule of Receivables. No selection procedures adverse to
the Securityholders have been used in selecting the
Receivables from all receivables owned by the Depositor which
meet the selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been sold, transferred,
assigned or pledged by the Depositor to any Person other than
the Issuer; provided that such Receivable has been previously
assigned and reacquired by the Depositor.
(iii) Good Title. Immediately prior to the transfer and assignment
of the Receivables to the Issuer herein contemplated, each
Receivable was free and clear of all Liens and rights of
others to the extent created by the Depositor; and,
immediately upon the transfer thereof, the Issuer has either
(i) good and marketable title to each Receivable, free and
clear of all of all Liens and rights of others to the extent
created by the Depositor and the transfer has been perfected
under applicable law or (ii) a first priority perfected
security interest in the Depositor's rights in each
Receivable.
(iv) Additional Representations and Warranties. The Ford Credit
Receivables satisfy the representations and warranties set
forth in Schedule D hereto.
SECTION 2.3 Repurchase upon Breach. Each of the Depositor, the
Servicer, the Issuer and the Owner Trustee shall inform the other parties to
this Agreement promptly, in writing, upon the discovery by it of any breach
of the Depositor's representations and warranties pursuant to Section 2.2.
Unless the breach shall have been cured by the last day of the second
Collection Period following written notice to the Indenture Trustee of such
breach, the Indenture Trustee shall enforce the obligation of the Depositor
under this Section 2.3 to repurchase any Receivable, the Issuer's interest in
which is materially and adversely affected by the breach as of such last day
(or, at the Depositor's option, the last day of the first Collection Period
following the discovery). In consideration of the purchase of the Receivable,
the Depositor shall remit the related Purchase Amount (less any Liquidation
Proceeds deposited, or to be deposited, in the Collection Account with
respect to such Receivable pursuant to Section 3.3), in the manner specified
in Section 4.4. The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to
a breach of the Depositor's representations and warranties pursuant to
Section 2.2 shall be to require the Depositor to repurchase such Receivables
pursuant to this Section 2.3. The obligation of the Depositor to repurchase
under this Section 2.3 shall not be solely dependent upon the actual
knowledge of the Depositor of any breached representation or warranty.
Neither the Owner Trustee nor the Indenture Trustee shall have any duty to
conduct an affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Receivable pursuant to this Section 2.3 or
the eligibility of any Receivable for purposes of this Agreement.
For the avoidance of doubt, nothing in this Section shall preclude
the Depositor from enforcing the obligation of Ford Credit under the
Receivables Purchase Agreement with Ford Credit, or the Servicer from
enforcing the obligation of Ford Credit under the Ford Credit Acknowledgment,
to repurchase any Receivable, the Issuer's interest in which is materially
and adversely affected by the breach, as of such last day (or, at the
Depositor's option, the last day of
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the first Collection Period following the discovery of such breach). The
Depositor shall remit the related Purchase Amount (less any Liquidation
Proceeds deposited, or to be deposited, in the Collection Account with
respect to such Receivable pursuant to Section 3.3) in the manner specified
in Section 4.4; provided, however, that if the Depositor shall have
previously remitted the Purchase Amount pursuant to the immediately preceding
paragraph, the Depositor shall be entitled to retain for its own account the
Purchase Amount collected from Ford Credit. The sole remedy of the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach of Ford Credit's representations
and warranties in respect of a Receivable sold by it pursuant to the related
Receivables Purchase Agreement shall be Ford Credit's repurchase of such
Receivable in accordance with the related Receivables Purchase Agreement.
Each of the Depositor, the Servicer, the Issuer and the Owner
Trustee shall inform the other parties to this Agreement promptly, in
writing, upon the discovery by it of any breach of (i) DCS's representation
and warranties (the "DCS Representations") in respect of the DCS Receivables
that were assigned by ALFT IV to the Depositor under the ALFT IV Receivables
Purchase Agreement and (ii) GMAC's representations and warranties and CARI's
representation and warranties (the "GMAC/XXXX Representations") in respect of
the GMAC Receivables that were assigned by ALFT II to the Depositor under the
ALFT II Receivables Purchase Agreement. The Servicer shall notify DCS, GMAC
or XXXX, as the case may be, of its repurchase obligation. Unless the breach
shall have been cured by the last day of the second Collection Period
following written notice to the Indenture Trustee of such breach, the
Indenture Trustee shall enforce the obligation of DCS, GMAC or XXXX, as the
case may be, to repurchase any Receivable, the Issuer's interest in which is
materially and adversely affected by the breach, as of such last day (or, at
the Depositor's option, the last day of the first Collection Period following
the discovery of such breach). The Purchase Amount (less any Liquidation
Proceeds deposited, or to be deposited, in the Collection Account with
respect to such Receivable pursuant to Section 3.3) from such purchase shall
be remitted in the manner specified in Section 4.4. The sole remedy of the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach of any of the DCS Representations
or the GMAC/XXXX Representations shall be to require DCS, GMAC or XXXX, as
applicable, to repurchase such Receivables pursuant to this Section 2.3.
Neither the Owner Trustee nor the Indenture Trustee shall have any duty to
conduct an affirmative investigation as to the occurrence of any condition
requiring the repurchase of any DCS Receivable or GMAC Receivable pursuant to
this Section 2.3 or the eligibility of any Receivable for purposes of this
Agreement.
SECTION 2.4 Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Issuer,
upon the execution and delivery of this Agreement, 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 following
documents or instruments, which are hereby constructively delivered to the
Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture, with
respect to each Receivable:
(i) The original executed Receivable or, if no such original
exists, a copy thereof.
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(ii) The original credit application fully executed by the
Obligor or a photocopy thereof or a record thereof on a computer
file, diskette or on microfiche.
(iii) The notice of recorded Lien or such documents that the
Servicer or the Depositor shall keep on file, in accordance with
its or the related Receivables Servicer's customary procedures,
evidencing the first priority perfected security interest of the
related Seller in the Financed Vehicle.
(iv) Any and all other documents (including any computer file,
diskette or microfiche) that the Servicer or the related
Receivables Servicer shall keep on file, in accordance with its or
the related Receivables Servicer's customary procedures, relating
to a Receivable, an Obligor (to the extent relating to a
Receivable), or a Financed Vehicle.
The Servicer acknowledges that it holds the documents and
instruments relating to the Receivables for the benefit of the Issuer and the
Indenture Trustee. The Issuer and the Indenture Trustee shall have no
responsibility to monitor the Servicer's performance as custodian and shall
have no liability in connection with the Servicer's performance of such
duties hereunder.
SECTION 2.5 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer (or the related Receivables Servicer
on its behalf) shall hold the Receivable Files for the benefit of the Issuer
and the Indenture Trustee and shall maintain such accurate and complete
accounts, records and computer systems pertaining to each Receivable File as
shall enable the Servicer and the Issuer to comply with the terms and
conditions of this Agreement and the Indenture Trustee to comply with the
terms and conditions of the Indenture. In performing its duties as custodian,
the Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer (or the related Receivables Servicer) exercises
with respect to the receivable files relating to all comparable automotive
receivables that the Servicer (or such Receivables Servicer) services for
itself or others. The Servicer shall conduct, or cause to be conducted,
periodic audits of the Receivable Files held by it under this Agreement and
of the related accounts, records and computer systems, in such a manner as
shall enable the Issuer or the Indenture Trustee to identify all Receivables
Files and such related accounts, records and computer systems and verify the
accuracy of the Servicer's record keeping. The Servicer shall promptly report
to the Issuer and the Indenture Trustee in writing any failure on its part to
hold the Receivable Files and maintain its accounts, records, and computer
systems as herein provided and shall promptly take appropriate action to
remedy any such failure. Nothing herein shall be deemed to require an initial
review or any periodic review by the Issuer, the Owner Trustee or the
Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at its (or the related Receivables Servicer's)
offices specified in Schedule B to this Agreement, or at such other office as
shall be specified to the Issuer and the Indenture Trustee by 30 days' prior
written notice. The Servicer shall make available to the Issuer and the
Indenture Trustee or their duly authorized representatives, attorneys, or
auditors, the Receivable Files and the related accounts, records and computer
systems maintained by the Servicer upon reasonable notice during normal
business hours as the Issuer or the Indenture Trustee shall
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reasonably request, which does not unreasonably interfere with the Servicer's
(or the related Receivables Servicer's) normal operations.
(c) Release of Documents. Upon written instructions from the
Indenture Trustee, the Servicer shall release or cause to be released any
document in the Receivable Files to the Indenture Trustee, the Indenture
Trustee's agent or the Indenture Trustee's designee, as the case may be, at
such place or places as the Indenture Trustee may reasonably designate, as
soon as is reasonably practicable, to the extent it does not unreasonably
interfere with the Servicer's normal operations. The Servicer shall not be
responsible for any loss occasioned by the failure of the Indenture Trustee
or its agent or designee to return any document or any delay in doing so.
SECTION 2.6 Instructions; Authority to Act. All instructions from
the Indenture Trustee shall be in writing and signed by an Authorized Officer
of the Indenture Trustee, and the Servicer shall be deemed to have received
proper instructions with respect to the Receivable Files upon its receipt of
such written instructions.
SECTION 2.7 Custodian's Indemnification. The Servicer, as
custodian, shall indemnify the Issuer, the Owner Trustee and the Indenture
Trustee for any and all liabilities, obligations, losses, compensatory
damages, payments, costs, or expenses of any kind whatsoever that may be
imposed on, incurred, or asserted against the Issuer, the Owner Trustee or
the Indenture Trustee as the result of any improper act or omission in any
way relating to the maintenance and custody by the Servicer as custodian of
the Receivable Files; provided, however, that the Servicer shall not be
liable (i) to the Issuer for any portion of any such amount resulting from
the willful misfeasance, bad faith, or negligence of the Indenture Trustee,
the Owner Trustee or the Issuer, (ii) to the Owner Trustee for any portion of
any such amount resulting from the willful misfeasance, bad faith, or
negligence of the Indenture Trustee, the Owner Trustee or the Issuer and
(iii) to the Indenture Trustee for any portion of any such amount resulting
from the willful misfeasance, bad faith, or negligence of the Indenture
Trustee, the Owner Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of September 27, 2004 with
respect to the DCS Receivables and as of October 1, 2004 with respect to the
Ford Receivables and the GMAC Receivables, and shall continue in full force
and effect until terminated pursuant to this Section 2.8. If Bear Xxxxxxx
Asset Receivables Corp. shall resign as Servicer in accordance with the
provisions of this Agreement or if all of the rights and obligations of the
Servicer shall have been terminated under Section 7.1, the appointment of the
Servicer as custodian hereunder may be terminated by the Indenture Trustee or
by the holders of Notes evidencing not less than a majority of the principal
amount of the Notes Outstanding (or if no Notes are Outstanding, by holders
of Certificates evidencing Percentage Interests aggregating at least 51%), in
the same manner as the Indenture Trustee or such Securityholders may
terminate the rights and obligations of the Servicer under Section 7.1. As
soon as practicable after any termination of such appointment, the Servicer
shall deliver to the Indenture Trustee or the Indenture Trustee's agent any
Receivable Files and the related accounts and records maintained by the
Servicer at such place or places as the Indenture Trustee may reasonably
designate. Notwithstanding the foregoing, after any termination of the rights
and obligations of the Servicer under this Agreement, each Receivables
Servicer, unless the rights and obligations of such Receivables Servicer have
been terminated pursuant to the
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terms and conditions of its Receivables Servicing Agreement, shall maintain
custody of the related Receivables and the related accounts and records
maintained by it pursuant to the applicable Receivables Servicing
Agreement(s).
SECTION 2.9 Representations and Warranties as to the Security
Interest of the Issuer in the Receivables. The Depositor makes the following
representations and warranties to the Issuer. The representations and
warranties speak as of the execution and delivery of this Agreement and as of
the Closing Date, and shall survive the sale of the Trust Property to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) This Agreement creates a valid and continuing security interest
(as defined in the UCC) in the Receivables in favor of the Issuer, which
security interest is prior to all other Liens, and is enforceable as such as
against creditors of and purchasers from the Seller.
(b) The Receivables constitute "tangible chattel paper" within the
meaning of Article 9 of the UCC.
(c) Immediately prior to its transfer to the Issuer, the Depositor
owned and had good and marketable title to the Receivables free and clear of
any lien, claim or encumbrance of any Person.
(d) The Depositor has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the proper filing
office in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Receivables granted to the Issuer
hereunder. Each such financing statement will contain a statement to the
following effect "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the Issuer
and its assigns."
(e) Other than the security interest granted to the Issuer pursuant
to this Agreement, the Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Receivables. The
Depositor has not authorized the filing of and is not aware of any financing
statements against the Depositor that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Issuer hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien filings
against it.
(f) The Servicer (or the Receivables Servicers) as custodian for
the Issuer has in its possession all original copies of the contracts that
constitute or evidence the Receivables. The contracts that constitute or
evidence the Receivables do not have any marks or notations indicating that
they have been pledged, assigned or otherwise conveyed to any Person other
than the Issuer.
Each of the parties hereto agrees that it shall not waive any of
the foregoing representations and warranties.
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ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall manage,
service, administer and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer (or the
related Receivables Servicer) exercises with respect to all comparable new or
used automobile and light-duty truck receivables that it (or such Receivables
Servicer) services for itself. The Servicer's duties shall include collection
and posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, reporting tax information to
Obligors, accounting for collections, furnishing (or causing to be furnished)
monthly and annual statements to the Owner Trustee and the Indenture Trustee
with respect to distributions and preparing (or causing to be prepared) the
tax returns of the Trust in accordance with Section 5.6 of the Trust
Agreement. The Servicer shall follow its (or the related Receivables
Servicer's) customary standards, policies and procedures in performing its
duties as Servicer. Without limiting the generality of the foregoing, the
Servicer is hereby (and each Receivables Servicer pursuant to its Receivables
Servicing Agreement is thereby) authorized and empowered to execute and
deliver, on behalf of itself (the Servicer, in the case of a Receivables
Servicer), the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders, 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 Receivables or to the
Financed Vehicles securing such Receivables. If the Servicer (or the related
Receivables Servicer) shall commence a legal proceeding to enforce a
Receivable, the Issuer (in the case of a Receivable other than a Purchased
Receivable) shall thereupon be deemed to have automatically assigned, solely
for the purpose of collection, such Receivable to the Servicer (or the
related Receivables Servicer). If in any enforcement suit or legal proceeding
it shall be held that the Servicer (or the related Receivables Servicer) may
not enforce a Receivable on the ground that it shall not be a real party in
interest or a holder entitled to enforce the Receivable, the Issuer shall, at
the Servicer's expense and direction (or, to the extent permitted in the
related Receivables Servicing Agreement, the related Receivables Servicer's
expense and direction), take steps to enforce the Receivable, including
bringing suit in its name or the names of the Indenture Trustee, the
Noteholders, the Certificateholders, or any of them. The Issuer shall furnish
the Servicer (or the related Receivables 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.
SECTION 3.2 Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable new or used automobile and light-duty truck receivables that it
services for itself. The Servicer shall enforce the obligations of each
Receivables Servicer under the related Receivables Servicing Agreement in all
material respects until such Receivables Servicing Agreement has been
terminated in accordance with its terms. The Servicer shall not change the
amount of, change the annual percentage rate of or extend any Receivable or
change any material term of a Receivable, except as provided by the terms of
the Receivable or of this Agreement or as required by law or court order,
except that the Servicer may permit a
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Receivables Servicer to grant extensions, rebates or adjustments to the
extent permitted in the related Receivables Servicing Agreement; provided,
however, that the Servicer may extend any Receivable that is in default or
with respect to which default is reasonably foreseeable and that would be
acceptable to the Servicer with respect to comparable new or used automobile
and light-duty truck receivables that it (or the related Receivables
Servicer) services for itself, if the maturity of such Receivable will not be
extended beyond September 30, 2012. If, as a result of inadvertently
rescheduling or extending payments, such rescheduling or extension breaches
any of the terms of the proviso to the preceding sentence, then the Servicer
shall be obligated to purchase such Receivable pursuant to Section 3.6. For
the purpose of such purchases pursuant to Section 3.6, notice shall be deemed
to have been received by the Servicer at such time as shall make purchase
mandatory as of the last day of the Collection Period during which the
discovery of such breach occurred.
Notwithstanding anything herein to the contrary, the Servicer shall
not make any collection, repossession or liquidation efforts after (i) in
respect of the GMAC Receivables purchased by the Depositor pursuant to the
ALFT II Receivables Purchase Agreement and identified on Exhibit A thereof,
August 31, 2011, (ii) in respect of the GMAC Receivables purchased by the
Depositor pursuant to the ALFT II Receivables Purchase Agreement and
identified on Exhibit B thereof, July 31, 2012, (iii) in respect of any Ford
Credit Receivables purchased by the Depositor pursuant to the XXXX III
Receivables Purchase Agreement, July 31, 2010, and (iv) in respect of any DCS
Receivables purchased by the Depositor pursuant to the ALFT IV Receivables
Purchase Agreement, September 30, 2012.
SECTION 3.3 Realization Upon Receivables. On behalf of the Issuer,
the Servicer shall use reasonable efforts, consistent with its (or the
related Receivables Servicer's) customary standards, policies and procedures,
to repossess or otherwise convert the ownership of the Financed Vehicle
securing any Receivable as to which the Servicer shall have determined to be
a Defaulted Receivable or otherwise (and shall identify any such Defaulted
Receivable in writing to the Indenture Trustee no later than the
Determination Date following the Collection Period in which the Servicer
shall have made such determination). The Servicer shall follow such customary
standards, policies and procedures as it (or the related Receivables
Servicer) shall deem necessary or advisable in its servicing of comparable
receivables, which may include selling the Financed Vehicle at public or
private sale. The Servicer shall be entitled to recover from proceeds all
reasonable expenses incurred by it in the course of converting the Financed
Vehicle into cash proceeds. The Liquidation Proceeds (net of such expenses)
realized in connection with any such action with respect to a Receivable
shall be deposited by the Servicer into the Collection Account in the manner
specified in Section 4.2 and shall be applied to reduce (or to satisfy, as
the case may be) the Purchase Amount of the Receivable, if such Receivable is
to be repurchased by the Depositor or a Seller pursuant to Section 2.3 or is
to be purchased by the Servicer pursuant to Section 3.6. 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 be required to expend
funds in connection with the repair or the repossession of such Financed
Vehicle unless it shall determine in its discretion that such repair and/or
repossession will increase the Liquidation Proceeds by an amount greater than
the amount of such expenses.
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SECTION 3.4 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its (or the related
Receivables Servicer's) customary procedures, take such steps as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle. The Issuer hereby authorizes the
Servicer to take such steps as are necessary to re-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, in either case,
when the Servicer has knowledge of the need for such re-perfection. In the
event that the assignment of a Receivable to the Issuer is insufficient,
without a notation on the related Financed Vehicle's certificate of title, or
without fulfilling any additional administrative requirements under the laws
of the state in which the Financed Vehicle is located, to transfer to the
Issuer a perfected security interest in the related Financed Vehicle, the
Servicer hereby agrees that the Receivables Servicer's listing as the secured
party on the certificate of title is deemed to be in its capacity as agent of
the Issuer and the Indenture Trustee and further agrees to hold such
certificate of title as the agent and custodian of the Issuer and the
Indenture Trustee; provided that the Servicer shall not, nor shall the Issuer
or the Indenture Trustee have the right to require that the Servicer, make
any such notation on the related Financed Vehicles' certificate of title or
fulfill any such additional administrative requirement of the laws of the
state in which such Financed Vehicle is located.
SECTION 3.5 Covenants of Servicer. The Servicer shall not (i)
release the Financed Vehicle securing each such Receivable from the security
interest granted by such Receivable in whole or in part except in the event
of payment in full by or on behalf of the Obligor thereunder, (ii) impair the
rights of the Issuer in the Receivables or (iii) increase the number of
payments under a Receivable, increase the Amount Financed under a Receivable
or extend or forgive payments on a Receivable, except as provided in Section
3.2. In the event that at the end of the scheduled term of any Receivable the
outstanding principal amount thereof is such that the final payment to be
made by the related Obligor is larger than the regularly scheduled payment of
principal and interest made by such Obligor, the Servicer may permit such
Obligor to pay such remaining principal amount in more than one payment of
principal and interest; provided that the last such payment shall be due on
or prior to the last Business Day of the Collection Period immediately
preceding the month in which the Class D Final Scheduled Payment Date occurs.
SECTION 3.6 Purchase of Receivables Upon Breach. (a) The Servicer,
the Depositor or the Owner Trustee, as the case may be, promptly shall inform
the other parties to this Agreement, in writing, upon the discovery of any
breach pursuant to Section 3.2, 3.4 or 3.5. Unless the breach shall have been
cured by the last day of the second Collection Period following such
discovery (or, at the Servicer's election, the last day of the first
following Collection Period), the Servicer shall purchase any Receivable
materially and adversely affected by such breach (which shall include any
Receivable as to which a breach of Section 3.5 has occurred) at the related
Purchase Amount (less any Liquidation Proceeds deposited, or to be deposited,
in the Collection Account with respect to such Receivable pursuant to Section
3.3). In consideration of the purchase of such Receivable, the Servicer shall
remit the Purchase Amount in the manner specified in Section 4.4. The sole
remedy of the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders with respect to a breach pursuant to
Section 3.2, 3.4 or 3.5 shall be to require the Servicer to purchase
Receivables pursuant to this Section 3.6.
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(b) With respect to all Receivables purchased pursuant to this
Section 3.6, the Issuer shall assign to the Servicer, without recourse,
representation or warranty, all of the Issuer's right, title and interest in
and to such Receivables and all security and documents relating thereto.
SECTION 3.7 Servicer Fees. The Servicer shall be entitled to the
Servicing Fee, which shall be payable as provided in Section 8.2 of the
Indenture. It is acknowledged and agreed that (i) the Receivables Servicer
Servicing Fee will be paid to the Receivables Servicers (including any
successor subservicer thereto) from the Collections on the related
Receivables and (ii) if the Servicer becomes a direct servicer in place of
any Receivables Servicer (or any successor subservicer thereto), the Servicer
shall receive the related Receivables Servicer Servicing Fee.
SECTION 3.8 Investor Report. On or prior to the Determination Date
for each Payment Date, the Servicer shall deliver to the Depositor, the Owner
Trustee, each Note Paying Agent and Certificate Paying Agent and the
Indenture Trustee, with a copy to the Rating Agencies, an investor report
containing all information (including all specific dollar amounts) necessary
to make the transfers and distributions pursuant to Section 8.2 of the
Indenture for the Collection Period preceding the date of such investor
report (the "Investor Report") and the written statements to be furnished by
the Owner Trustee to the Certificateholders pursuant to Section 4.7 hereof
and by the Indenture Trustee to the Noteholders pursuant to Section 4.7
hereof and Section 7.4 of the Indenture. Receivables purchased or to be
purchased by the Servicer or a Seller shall be identified by the Servicer by
the Seller's account number with respect to such Receivable (as specified in
the Schedule of Receivables).
SECTION 3.9 Annual Statement as to Compliance; Notice of Event of
Servicing Termination. (a) The Servicer shall deliver to the Owner Trustee,
the Indenture Trustee and each Rating Agency on or before March 31 of each
year beginning March 31, 2005, an Officer's Certificate, dated as of December
31 of the preceding calendar year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or such
shorter period in the case of the first such certificate) and of its
performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency promptly after having obtained actual
knowledge thereof, but in no event later than five (5) Business Days
thereafter, written notice in an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become an Event of
Servicing Termination under Section 7.1.
SECTION 3.10 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause one or more firms of independent certified
public accountants, who may also render other services to the Servicer, the
Seller, the Depositor, the Data Administrator or any Receivables Servicer, to
deliver to the Owner Trustee and the Indenture Trustee on or before March 31
of each year beginning March 31, 2005 with respect to the twelve months ended
on the immediately preceding December 31 (or such shorter period in the case
of the first such report) a
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report to the effect that such firm has examined the automobile and
light-duty truck receivable servicing functions of the Servicer (or the Data
Administrator under the Data Administration Agreement or a Receivables
Servicer under the related Receivables Servicer Agreement, as applicable, as
determined in the sole discretion of the Servicer) for such period, including
the applicable party's procedures and records relating to such party's
servicing of the Receivables under this Agreement (or the Data Administration
Agreement or the related Receivables Servicing Agreement, as applicable) and
that, on the basis of such examination, such firm states, or attests the
assertion by the applicable party, that the applicable servicing by such
party has been conducted during such period in compliance with this Agreement
(or the Data Administration Agreement or the related Receivables Servicing
Agreement, as applicable) except for (a) such exceptions as such firm
believes to be immaterial and (b) such other exceptions as shall be set forth
in such firm's report. In the sole discretion of the Servicer any such report
may instead be in a form then required under the applicable rules under the
Securities Exchange Act or 1934, as amended.
The report will also indicate, to the extent applicable, that the
firm is independent of the Servicer (or the Data Administrator or a
Receivables Servicer, as applicable) within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public
Accountants.
SECTION 3.11 Access to Certain Documentation and Information
Regarding Receivables. In each case subject to the Servicer's rights to
access under the related Receivables Servicing Agreement, the Servicer shall
provide to the Certificateholders, the Indenture Trustee and the Noteholders
access to the Receivable Files without charge, but only upon reasonable
request and during the normal business hours at the offices of the Servicer
or the respective offices of the Receivables Servicers, as applicable.
Nothing in this Section 3.11 shall affect the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding
the Obligors, and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of
this Section 3.11.
SECTION 3.12 Servicer Expenses. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder,
including fees, expenses (including counsel fees and expenses) and
disbursements of the independent accountants, taxes imposed on the Servicer
and expenses incurred in connection with distributions and reports to
Noteholders and Certificateholders.
SECTION 3.13 Insurance. The Servicer, in accordance with its
customary servicing procedures and underwriting standards, or those of the
Receivables Servicer pursuant to the related Receivables Servicing Agreement,
shall require that each Obligor shall have obtained and shall maintain
comprehensive and collision insurance covering the related Financed Vehicle
as of the execution of the Receivable.
SECTION 3.14 Xxxxxxxx-Xxxxx Act of 2002. To the extent permitted
by applicable law and the rules of the Securities and Exchange Commission as
interpreted by the staff of the Securities and Exchange Commission, the
Servicer shall furnish to the Depositor in a timely manner for filing under
the Securities Exchange Act of 1934, as amended, the certification required
by Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 in respect of the Issuer.
Whether or
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not such certification may be given by the Servicer, the Servicer hereby
indemnifies and holds harmless the Depositor against any loss, liability and
damages incurred by the Depositor in respect of any certification furnished
by it pursuant to such Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 to the
extent such loss, liability and damages arises out of or is based on such
certification relating to information contained in or omitted from any
Investor Report.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) Prior to the Closing Date there shall
have been established (i) the DCS Deposit Account, pursuant to which DCS
shall deposit collections on the DCS Receivables, as more specifically
described in the DCS Servicing Agreement, (ii) the Ford Credit Deposit
Account, pursuant to which Ford Credit shall deposit collections on the Ford
Credit Receivables, as more specifically described in the Ford Credit
Servicing Agreement and (iii) the GMAC Deposit Accounts, pursuant to which
GMAC shall deposit collections on the GMAC Receivables, as more specifically
described in the GMAC Servicing Agreements. Each of the forgoing deposit
accounts were established and shall initially be maintained with the relevent
Depository Institution. Pursuant to the Data Administration Agreement, on or
prior to each Payment Date, the Data Administrator shall instruct each
Depository Institution to withdraw from each such deposit account for deposit
into the Collection Account the Available Collections for the related
Collection Period. All monies owned by the Trust deposited from time to time
in the foregoing deposit accounts shall be held by each Depository
Institution for the benefit of the Noteholders and, after payment in full of
the Notes, as agent of the Issuer and as part of the Trust Property;
provided, however, that all monies owned by third parties deposited from time
to time in the foregoing deposit accounts shall not be so held and shall not
be available for deposit into the Collection Account and shall not be
available to make payments in respect of the Notes or the Certificates.
(b) The Servicer shall, prior to the Closing Date, cause to be
established and maintained an Eligible Deposit Account in the name "JPMorgan
Chase Bank, as Indenture Trustee and as secured party from Whole Auto Loan
Trust 2004-1", initially at the corporate trust department of the Indenture
Trustee, which shall be designated as the "Collection Account". The
Collection Account shall be under the sole dominion and control of the
Indenture Trustee; provided, that the Servicer and/or relevant Depository
Institution may make deposits to, and the Indenture Trustee may (following
written instruction of the Data Administrator or the Servicer) make
withdrawals from, the Collection Account in accordance with the terms of the
Basic Documents. The Collection Account will be established and maintained
pursuant to an account agreement which specifies New York law as the
governing law. In addition, the Collection Account shall be established and
maintained at an institution which agrees in writing that for so long as the
Notes are outstanding it will comply with entitlement orders (as defined in
Article 8 of the UCC) originated by the Indenture Trustee without further
consent of the Issuer. All monies deposited from time to time in the
Collection Account shall be held by the Indenture Trustee as secured party
for the benefit of the Noteholders and, after payment in full of the Notes,
as agent of the Issuer and as part of the Trust Property. All deposits to and
withdrawals
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from the Collection Account shall be made only upon the terms and conditions
of the Basic Documents.
All amounts held in the Collection Account shall, to the extent
permitted by applicable law, rules and regulations, be invested, as directed
in writing by the Servicer, by the depository institution or trust company
then maintaining the Collection Account in specified Permitted Investments
that mature not later than the Business Day immediately prior to the Payment
Date (or if the Rating Agency Condition is satisfied, not later than such
Payment Date) for the Collection Period to which such amounts relate and such
Permitted Investments shall be held to maturity. The Indenture Trustee shall
not be liable for investment losses in Permitted Investments made in
accordance with directions from the Servicer. In the event that the
Collection Account is no longer to be maintained at the corporate trust
department of the Indenture Trustee, the Servicer shall, with the Indenture
Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit
Account to be established as the Collection Account within ten (10) Business
Days (or such longer period not to exceed thirty (30) calendar days as to
which each Rating Agency may consent).
(c) The Servicer shall, prior to the Closing Date, establish and
maintain an administrative subaccount within the Collection Account, which
subaccount shall be designated as the "Principal Distribution Account". The
Principal Distribution Account is established and maintained solely for
administrative purposes.
(d) The Servicer shall, prior to the Closing Date, cause an
Eligible Deposit Account to be established and maintained, in the name "Whole
Auto Loan Trust 2004-1 Certificate Distribution Account", initially at the
corporate trust department of the Indenture Trustee, which shall be
designated as the "Certificate Distribution Account". The Certificate
Distribution Account shall be under the sole dominion and control of the
Owner Trustee. All monies deposited from time to time in the Certificate
Distribution Account pursuant to this Agreement and the Indenture shall be
held by the Owner Trustee as part of the Trust Property and shall be applied
as provided in the Basic Documents. In the event that the Certificate
Distribution Account is no longer to be maintained at the corporate trust
department of the Indenture Trustee, the Servicer shall cause an Eligible
Deposit Account to be established as the Certificate Distribution Account
within ten (10) Business Days (or such longer period not to exceed thirty
(30) calendar days as to which each Rating Agency may consent) and shall give
written notice of the location and account number of such account to the
Owner Trustee. The Certificate Distribution Account will be established and
maintained pursuant to an account agreement which specifies New York law as
the governing law.
SECTION 4.2 Collections. (a) DCS is obligated, subject to the
terms of the DCS Servicing Agreement, to remit to the DCS Deposit Account (i)
all payments by or on behalf of the Obligors on the DCS Receivables (but
excluding Purchased Receivables) and (ii) all Liquidation Proceeds in respect
of the DCS Receivables, both as collected during the Collection Period,
within two Business Days of receipt thereof.
(b) Ford Credit is obligated, subject to the terms of the Ford
Credit Servicing Agreement, to remit to the Ford Credit Deposit Account (i)
all payments by or on behalf of the
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Obligors (but excluding payments in respect of Purchased Receivables), (ii)
all amounts received from whatever source representing payment of the
Deferred Repurchase Amount (as defined in the Ford Credit Servicing
Agreement) for any Liquidated Receivables and (iii) partial prepayments
representing any refunded item included in the principal balance of a
Receivable, such as extended warranty protection plan costs, or physical
damage, credit life, disability insurance premiums, or any partial prepayment
that causes a reduction in the Obligor's periodic payment to an amount below
the scheduled payment as described in the Ford Credit Servicing Agreement,
all as collected during the Collection Period, within two Business Days of
receipt thereof.
(c) GMAC is obligated, subject to the terms of the GMAC Servicing
Agreements, to remit to the GMAC Deposit Accounts (i) all payments by or on
behalf of the Obligors (but excluding payments in respect of Purchased
Receivables), (ii) all Liquidation Proceeds received with respect to the GMAC
Receivables (other than Purchased Receivables) and (iii) the Administrative
Purchase Payments or Warranty Payments (each as defined in the GMAC Servicing
Agreements) received with respect to each GMAC Receivable that became an
Administrative Receivable or Warranty Receivable (each as defined in the GMAC
Servicing Agreements) on such date or during such Collection Period pursuant
to the GMAC Servicing Agreements.
(d) Notwithstanding the provisions of Sections 4.2(b) and (c)
above, each of Ford Credit and GMAC shall be permitted to remit the
collections described above received during a Collection Period to such
deposit account on the Business Day preceding the related Payment Date but
only for so long as the Monthly Remittance Condition (as defined in the
related Receivables Servicing Agreement) is satisfied. Unless the Rating
Agency Condition has been satisfied, the Servicer shall not otherwise consent
to monthly remittances by Ford Credit or GMAC under the related Receivables
Servicing Agreement. The Owner Trustee or the Indenture Trustee shall not be
deemed to have knowledge of any event or circumstance in the definition of
Monthly Remittance Condition that would require remittance by a Receivables
Servicer to such deposit account within two Business Days of receipt as
aforesaid unless the Owner Trustee or the Indenture Trustee has received
written notice of such event or circumstance from the Servicer in an
Officer's Certificate, or from the holders of Notes evidencing not less than
25% of the principal amount of the Notes Outstanding, or from the holders of
Certificates evidencing Percentage Interests aggregating at least 51%, or a
Trustee Officer in the Corporate Trust Office with knowledge hereof or
familiarity herewith has actual knowledge of such event or circumstance. For
purposes of this Article IV the phrase "payments by or on behalf of Obligors"
shall mean payments made by Persons other than the Servicer or by other
means.
SECTION 4.3 Application of Collections. For the purposes of this
Agreement, as of the close of business on the last day of each Collection
Period, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied in accordance
with the customary practices of the related Receivables Servicer or, if such
Receivables Servicer is no longer engaged by the Servicer, the customary
practice of the Servicer.
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SECTION 4.4 Additional Deposits. The Depositor and the Servicer
shall deposit in the Collection Account the aggregate Purchase Amount with
respect to Purchased Receivables pursuant to Sections 2.3 and 3.6,
respectively, and the Servicer shall deposit therein all amounts to be paid
under Section 8.1. All such deposits with respect to a Collection Period
shall be made, in immediately available funds, on the Business Day preceding
the Payment Date related to such Collection Period.
SECTION 4.5 Distributions. On each Payment Date, the Servicer
shall instruct the Indenture Trustee (based on the information contained in
the Investor Report delivered on or before the related Determination Date
pursuant to Section 3.8), to make withdrawals from the Collection Account and
make deposits, distributions and payments, to the extent of Available
Collections for such Payment Date, in the manner and order of priority set
forth in Section 8.2 of the Indenture.
SECTION 4.6 Net Deposits. Remittances pursuant to Sections 4.2
and 4.4 above may be made net of the Aggregate Servicing Fee. Nonetheless,
the Servicer shall account for all of the above described remittances and
distributions in the Investor Report as if the amounts were deposited and/or
transferred separately.
SECTION 4.7 Statements to Noteholders and Certificateholders. On
the later of (a) the 12th day of each month, or if such day is not a Business
Day, the next succeeding Business Day or (b) two Business Days prior to each
Payment Date, the Servicer shall provide to the Indenture Trustee (with
copies to the Rating Agencies and each Note Paying Agent) for the Indenture
Trustee to make available to each Noteholder of record as of the most recent
Record Date and to the Owner Trustee for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date the Investor
Report, setting forth for the Collection Period relating to such Payment Date
the following information as to the Notes and the Certificates to the extent
applicable:
(i) the amount of such distribution allocable to principal
allocable to the Notes and to the Certificates;
(ii) the amount of such distribution allocable to interest
allocable to the Notes and the Certificates;
(iii) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(iv) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and the amount of any
unpaid Servicing Fees and the change in such amount from that of
the prior Payment Date;
(v) the amounts of the Class A Noteholders' Interest Carryover
Shortfall, the Class B Noteholders' Interest Carryover Shortfall,
the Class C Noteholders' Interest Carryover Shortfall and the Class
D Noteholders' Interest Carryover Shortfall, if any, on such
Payment Date and the change in such amounts from the preceding
Payment Date;
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(vi) the aggregate outstanding principal amount of each Class
of Notes and the Note Pool Factor for each Class of Notes;
(vii) the amount of any previously due and unpaid payment of
principal of each Class of Notes, and the change in such amount
from that of the prior Payment Date;
(viii) Annualized Average Monthly Loss Rate;
(ix) the aggregate Purchase Amount of Receivables repurchased
by the Depositor or a Seller or purchased by the Servicer, if any,
with respect to the related Collection Period;
(x) the aggregate amount of Defaulted Receivables; and
(xi) the aggregate Collections for the related Collection
Period.
In addition, such statements may be posted by the Indenture Trustee
on its website at xxx.xxxxxxxx.xxx/xxx.
Each amount set forth on the Payment Date statement pursuant to
clauses (i), (ii), (iv), (v) and (vii) above shall be expressed as a dollar
amount per $1,000 of original principal amount of a Note or original
Certificate Balance of a Certificate, as applicable.
ARTICLE V
THE DEPOSITOR
SECTION 5.1 Representations, Warranties and Covenants of
Depositor. The Depositor makes the following representations and warranties
on which the Issuer is deemed to have relied in acquiring the Trust Property.
The representations and warranties speak as of the execution and delivery of
this Agreement and shall survive the conveyance of the Trust Property by the
Depositor to the Issuer and the pledge thereof by the Issuer to the Indenture
Trustee pursuant to the Indenture:
(i) Organization and Good Standing. The Depositor is a duly formed,
validly existing and in good standing under the laws of the State of
Delaware, with all corporate 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 had at all relevant times, and has, power,
authority, and legal right to acquire and own the Receivables.
(ii) Power and Authority. The Depositor has all corporate power and
authority to execute and deliver this Agreement and the other Basic Documents
to which it is a party and to carry out their terms; the Depositor has full
power and authority to sell and assign the property to be sold, and assigned
to and deposited, with the Issuer, and the Depositor shall have duly
authorized such sale and assignment to the Issuer by all necessary corporate
action; and the execution, delivery, and performance of this Agreement and
the other Basic Documents to which
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the Depositor is a party have been duly authorized, executed and delivered by
the Depositor by all necessary corporate action.
(iii) Binding Obligations. This Agreement, when duly executed and
delivered by the other parties hereto, constitutes a legal, valid, and
binding obligation of the Depositor enforceable against the Depositor in
accordance with its terms, except as the enforceability hereof may be limited
by bankruptcy, insolvency, reorganization, or other similar laws affecting
creditors' rights in general and by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or at
law.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Depositor is a party and the fulfillment of the terms hereof and thereof do
not (i) conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of the Depositor,
or conflict with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement, or other instrument to which the Depositor is a party
or by which it is bound, (ii) 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 (iii) violate any law or, to the best of
the Depositor's knowledge, any order, rule, or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending, or, to the best of the Depositor's knowledge, threatened, before any
court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Depositor or its properties (i)
asserting the invalidity of this Agreement, any of the other Basic Documents
or the Securities, (ii) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this Agreement or
the other Basic Documents, (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement, any
of the other Basic Documents or the Securities or (iv) relating to the
Depositor and which might adversely affect the federal income tax attributes
of the Securities.
SECTION 5.2 Liability of Depositor; Indemnities. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement, and hereby
agrees to the following:
(a) The Depositor shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any loss, liability or expense incurred
by reason of (i) the Depositor's willful misfeasance, bad faith, or
negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this
Agreement and (ii) the Depositor's violation of federal or State securities
laws in connection with the registration or the sale of the Notes or the
Certificates.
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(b) Indemnification under this Section 5.2 shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement and shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Depositor shall have made any indemnity payments pursuant to this Section 5.2
and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly
repay such amounts to the Depositor, without interest.
SECTION 5.3 Merger or Consolidation of, or Assumption of the
Obligations of Depositor. Any Person (i) into which the Depositor may be
merged or consolidated, (ii) resulting from any merger, conversion, or
consolidation to which the Depositor shall be a party, or (iii) succeeding to
the business of the Depositor, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the
Depositor under this Agreement, will be the successor to the Depositor 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. The Depositor shall
provide notice of any merger, conversion, consolidation, or succession
pursuant to this Section 5.3 to the Rating Agencies, the Owner Trustee and
the Indenture Trustee.
SECTION 5.4 Limitation on Liability of Depositor and Others. The
Depositor and any officer or employee or agent of the Depositor may rely in
good faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor shall not be under any obligation to appear
in, prosecute, or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in
any expense or liability.
SECTION 5.5 Depositor May Own Notes or Certificates. The
Depositor, and any Affiliate of the Depositor, may in its individual or any
other capacity become the owner or pledgee of Notes or Certificates with the
same rights as it would have if it were not the Depositor or an Affiliate
thereof, except as otherwise expressly provided herein or in the other Basic
Documents. Except as set forth herein or in the other Basic Documents, Notes
and Certificates so owned by or pledged to the Depositor or any such
Affiliate shall have an equal and proportionate benefit under the provisions
of this Agreement and the other Basic Documents, without preference,
priority, or distinction as among all of the Notes and Certificates.
SECTION 5.6 Depositor Certificate of Incorporation. The Depositor
shall not amend its certificate of incorporation unless the Rating Agency
Condition is satisfied.
ARTICLE VI
THE SERVICER
SECTION 6.1 Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Trust Property. The representations speak as of the execution
and delivery of this Agreement and shall survive the conveyance of the Trust
Property to the Issuer and the pledge thereof by the Issuer pursuant to the
Indenture:
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(a) Organization and Good Standing. The Servicer is duly formed,
validly existing and in good standing under the law of the State of Delaware,
with all corporate 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 had at all relevant times, and has, power, authority
and legal right to acquire, own, sell, and service the Receivables and to
hold the Receivable Files as custodian on behalf of the Indenture Trustee.
(b) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and the other Basic Documents to which
it is a party and to carry out their terms; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to which it is a
party shall have duly authorized, executed and delivered by the Servicer by
all necessary corporate action.
(c) Binding Obligations. This Agreement constitutes a legal, valid,
and binding obligation of the Servicer enforceable in accordance with their
terms subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, liquidation or other similar laws and equitable principles
relating to or affecting the enforcement of creditors' rights in general and
by general principles of equity regardless of whether such enforceability is
considered in a proceeding in equity or law.
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents to which the Servicer is a
party and the fulfillment of the terms hereof do not conflict with, result in
any breach of any of the terms and provisions of, nor constitute (i) (with or
without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Servicer, or conflict with or breach any of
the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement, or other instrument
to which the Servicer is a party or by which it shall be bound, (ii) 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 (iii)
violate any law or, to the best of the Servicer's knowledge, 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.
(e) No Proceedings. There are no proceedings or investigations
pending, or to the best of the Servicer's knowledge, threatened, before any
court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties (i)
asserting the invalidity of this Agreement, any of the other Basic Documents
or the Securities, (ii) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this Agreement
and the other Basic Documents, (iii) 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 Basic Documents or the Securities, or (iv) relating to the
Servicer and which might adversely affect the federal income tax attributes
of the Securities.
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(f) Fidelity Bond. The Servicer maintains a fidelity bond in such
form and amount as is customary for servicers acting as custodian of funds
and documents in respect of retail automotive installment sales contracts and
loans.
SECTION 6.2 Indemnities of Servicer. The Servicer shall 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
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders, the Depositor, the Administrator and the Data
Administrator 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
Issuer, the Owner Trustee, the Depositor and the Indenture Trustee from and
against any taxes that may at any time be asserted against any such Person
with respect to the transactions contemplated herein or in the other Basic
Documents, if any, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes
(but, in the case of the Issuer, not including any taxes asserted with
respect to, and as of the date of, the conveyance of the Receivables to the
Issuer or the issuance and original sale of the Notes and the Certificates,
or asserted with respect to ownership of the Receivables, or federal or state
income taxes arising out of the transactions contemplated by this Agreement
and the other Basic Documents) 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 Noteholders, the
Certificateholders and the Depositor 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 any such Person through, the negligence, willful misfeasance, or bad
faith of the Servicer in the performance of its duties under this Agreement
or any other Basic Document to which it is a party, or by reason of reckless
disregard of its obligations and duties under this Agreement or any other
Basic Document to which it is a party.
(d) The Servicer shall indemnify, defend, and hold harmless the
Owner Trustee and the Indenture Trustee, as applicable, from and against any
and all expenses, obligations, liabilities, losses, damages, injuries (to
person, property, or natural resources), penalties, stamp or similar taxes,
actions, suits, judgments, reasonable costs and expenses (including
reasonable attorney's and agent's fees and expenses) of whatever kind or
nature regardless of their merit arising out of or incurred in connection
with the acceptance or performance of the trusts and duties contained herein
and in the other Basic Documents, if any, except to the extent that such
cost, expense, loss, claim, damage, or liability: (i) shall be due to the
willful misfeasance, bad faith, or negligence (except for errors in judgment)
of the Owner Trustee or the Indenture Trustee, as applicable; (ii) in the
case of the Owner Trustee, shall arise from the Owner Trustee's breach of any
of its representations or warranties set forth in Section 6.9 of the Trust
Agreement or, in the case of the Indenture Trustee, from the Indenture
Trustee's breach of any of its
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representations or warranties set forth in the Indenture; or (iii) in the
case of the Indenture Trustee, shall arise out of or be incurred in
connection with the performance by the Indenture Trustee of the duties of a
Successor Servicer hereunder.
(e) Indemnification under this Section 6.2 by Bear Xxxxxxx Asset
Receivables Corp. (or any successor thereto pursuant to Section 7.2) as
Servicer, with respect to the period such Person was 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 or the
resignation or removal of the Owner Trustee or the Indenture Trustee 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 Person to or on behalf of whom such payments are
made thereafter shall collect any of such amounts from others, such Person
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, (iii) succeeding to the business of
the Servicer or (iv) 50% or more of the equity of which is owned, directly or
indirectly, by The Bear Xxxxxxx Companies Inc., which Person in any of the
foregoing cases executes an agreement of assumption to perform every
obligation of the Servicer under this Agreement, will be the successor to the
Servicer under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties to this Agreement. The
Servicer shall provide notice of any merger, conversion, consolidation or
succession pursuant to this Section 6.3 to the Rating Agencies and the
Indenture Trustee.
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 shall be under any liability to the Issuer, the
Noteholders or the Certificateholders, 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 shall not protect the Servicer or any such
Person against any liability that would otherwise be imposed by reason of
willful misfeasance or bad faith in the performance of duties or by reason of
reckless disregard of its obligations and duties under this Agreement, or by
reason 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 Depositor 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 shall not be
under any obligation to appear in, prosecute, or defend any legal action that
shall not be incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may cause it to incur
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, the rights and duties of the parties to this Agreement and
the interests of the Noteholders and Certificateholders under this Agreement.
In such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Issuer,
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and the Servicer shall be entitled to be reimbursed therefor. Any amounts due
the Servicer pursuant to this subsection shall be payable on a Payment Date
from the Available Collections on deposit in the Collection Account only
after all payments required to be made on such date to the Noteholders, the
Certificateholders, the Owner Trustee, the Indenture Trustee and the Servicer
have been made.
(c) The Servicer and any director or officer or employee or agent
of the Servicer shall be indemnified by the Trust and held harmless against
any loss, liability, or expense including reasonable attorneys' fees and
expenses incurred in connection with any legal action relating to the
performance of the Servicer's duties under this Agreement, other than (i) any
loss or liability otherwise reimbursable pursuant to this Agreement; (ii) any
loss, liability, or expense incurred solely by reason of the Servicer's
willful misfeasance, negligence, or bad faith in the performance of its
duties hereunder or by reason of reckless disregard of its obligations and
duties under this Agreement; and (iii) any loss, liability, or expense for
which the Issuer is to be indemnified by the Servicer under this Agreement.
Any amounts due the Servicer pursuant to this subsection shall be payable on
a Payment Date from the Available Collections on deposit in the Collection
Account only after all payments required to be made on such date to the
Noteholders, the Certificateholders, the Owner Trustee and the Indenture
Trustee have been made.
SECTION 6.5 Subservicing and Delegation of Duties. The Servicer
may engage a subservicer to perform some or all of its duties hereunder and
may at any time perform specific duties as servicer under this Agreement
through sub-contractors; provided that no such subservicing, delegation or
subcontracting shall relieve the Servicer of its responsibilities with
respect to such duties, as to all of which the Servicer shall remain
primarily responsible and the Servicer shall be solely responsible for the
fees of any such subservicers and sub-contractors.
Without limiting the generality of the preceding paragraph, the
Servicer has engaged Ford Credit under the Ford Credit Receivables Servicing
Agreement, GMAC under the GMAC Receivables Servicing Agreements, DCS under
the DCS Receivables Servicing Agreement and the Data Administrator under the
Data Administration Agreement. The Servicer shall promptly notify each Rating
Agency of any material amendment to any Receivables Servicing Agreement. The
Issuer and the Servicer shall permit Ford Credit to repurchase Liquidated
Receivables (as defined in the Ford Credit Receivables Servicing Agreement)
under Section 3.8 of the Ford Credit Receivables Servicing Agreement in
return for the Deferred Repurchase Amount (as defined in the Ford Credit
Servicing Agreement).
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SECTION 6.6 Servicer Not to Resign as Servicer; Resignation and
Termination of Receivables Servicers. (a) Subject to the provisions of
Section 6.3, the Servicer shall not resign from its obligations and duties
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 Owner Trustee and the Indenture Trustee
at the earliest practicable time (and, if such communication is not in
writing, shall be confirmed in writing at the earliest practicable time) and
any such determination shall be evidenced by an Opinion of Counsel to such
effect delivered to the Owner Trustee and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become
effective until the Indenture Trustee or a Successor Servicer shall have (i)
taken the actions required by Section 7.1(b) and (ii) assumed the
responsibilities and obligations of the Servicer in accordance with Section
7.2.
(b) The Servicer may terminate its Receivables Servicing Agreement
with any Receivables Servicer upon the terms and conditions set forth in such
agreement. Notwithstanding the foregoing, to the extent that a Receivables
Servicing Agreement permits the related Receivables Servicer to resign with
the express written consent of the Depositor, the Depositor and Servicer
hereby agree that they will not grant such consent unless the Rating Agency
Condition is satisfied.
SECTION 6.7 Servicer May Own Notes or Certificates. The Servicer,
and any Affiliate of the Servicer, may, in its individual or any other
capacity, become the owner or pledgee of Notes or Certificates 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 Basic
Documents. Except as set forth herein or in the other Basic Documents, Notes
and Certificates so owned by or pledged to the Servicer or such Affiliate
shall have an equal and proportionate benefit under the provisions of this
Agreement, without preference, priority or distinction as among all of the
Notes and Certificates.
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination. (a) If any one of
the following events ("Events of Servicing Termination") shall occur and be
continuing:
(i) Any failure by the Servicer to deliver to the Owner
Trustee or the Indenture Trustee any proceeds or payment required
to be so delivered under the terms of the Notes and the
Certificates and this Agreement that shall continue unremedied for
a period of five (5) Business Days after written notice of such
failure is received by the Servicer from the Owner Trustee or the
Indenture Trustee or after discovery of such failure by an officer
of the Servicer; or
(ii) Failure on the part of the Servicer duly to observe or to
perform in any material respect any other covenants or agreements,
as the case may be, set forth in the Notes, the Certificates or in
this Agreement, which failure shall (A) materially and adversely
affect the rights of Noteholders or Certificateholders and (B)
continue
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unremedied for a period of sixty (60) days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given (1) to the Servicer by the Owner Trustee or
the Indenture Trustee or (2) to the Owner Trustee, the Indenture
Trustee and the Servicer by the Noteholders of Notes evidencing not
less than 25% of the principal amount of the Notes or, if no Notes
are outstanding, by holders of Certificates evidencing Percentage
Interests aggregating at least 25%; or
(iii) So long as a depository institution is not the Servicer,
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 or, if
Bear Xxxxxxx Asset Receivables Corp. is the Servicer, The Bear
Xxxxxxx Companies Inc. (or its successor in interest) in 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 sixty
(60) consecutive days; or
(iv) So long as a depository institution is not the Servicer,
the consent by the Servicer or, if Bear Xxxxxxx Asset Receivables
Corp. is the Servicer, The Bear Xxxxxxx Companies Inc. (or its
successor in interest) 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 Bear Xxxxxxx Companies Inc. (or
its successor in interest), as applicable) of or relating to
substantially all of its property; or the Servicer or, if Bear
Xxxxxxx Asset Receivables Corp. is the Servicer, The Bear Xxxxxxx
Companies Inc. (or its successor in interest) shall admit in
writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations or
become insolvent;
then the Indenture Trustee shall promptly notify each Rating Agency, and in
each and every case, so long as an Event of Servicing Termination shall not
have been remedied, either the Indenture Trustee or the holders of Notes
evidencing not less than 25% of the principal amount of the Notes Outstanding
(or, if no Notes are Outstanding, Certificates evidencing Percentage
Interests aggregating at least 25%), by notice then given in writing to the
Servicer (and to the Indenture Trustee and the Owner Trustee if given by the
Noteholders and to the Owner Trustee if given by the Certificateholders and
in each case with a copy to the Rating Agencies) may terminate all of the
rights and obligations of the Servicer under this Agreement. On or after the
receipt by the Servicer of such written notice, all authority and power of
the Servicer under this Agreement, whether with respect to the Notes, the
Certificates or the Trust Property or otherwise, shall pass to and be vested
in the Indenture Trustee or such Successor Servicer as may be appointed under
Section 7.2; and, without limitation, the Indenture Trustee and the Owner
Trustee are hereby authorized and empowered to execute and deliver, on behalf
of the predecessor Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise.
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(b) Upon termination of the Servicer under Section 7.1(a), the
predecessor Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Indenture Trustee or such Successor Servicer
for administration 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 Receivable and the delivery of the Receivable Files and the
related accounts and records maintained by the Servicer. All reasonable costs
and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files to the Successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to this Section 7.1
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses.
(c) Upon termination of the Servicer under Section 7.1(a), the
Successor Servicer, by acceptance of its appointment, agrees that it will
service the DCS Receivables, the Ford Credit Receivables and the GMAC
Receivables through their respective Receivables Servicing Agreements, unless
the applicable Receivables Servicing Agreement has been terminated pursuant
to the terms and conditions set forth therein.
SECTION 7.2 Appointment of Successor Servicer. (a) Upon the
Servicer's receipt of notice of termination pursuant to Section 7.1 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 (x) the date 45 days from the delivery to the
Indenture Trustee and the Owner Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms of this
Agreement and (y) 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, the Issuer shall appoint a Successor Servicer, and
the Successor Servicer shall accept its appointment by a written assumption
in form acceptable to the Owner Trustee and the Indenture Trustee (with a
copy to each Rating Agency). In the event that a Successor Servicer has not
been appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section 7.2, the Indenture Trustee without
further action shall automatically be appointed the Successor Servicer. The
Indenture Trustee may resign as the Servicer by giving written notice of such
resignation to the Issuer and in such event shall be released from such
duties and obligations, such release not to be effective until the date a
Successor Servicer enters into a written assumption as provided in this
Section. Upon delivery of any such notice to the Issuer, the Issuer shall
obtain a new servicer as the Successor Servicer in accordance with this
Section. Notwithstanding the above, if the Indenture Trustee shall be legally
unable so to act or if, within 30 days after the delivery of its notice of
resignation, the Issuer shall not have obtained a Successor Servicer, the
Indenture Trustee shall appoint, or petition a court of competent
jurisdiction to appoint, any established institution, having a net worth of
not less than $100,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to the Servicer under
this Agreement; provided that the Rating Agency Condition shall be satisfied
in connection with such appointment.
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(b) Upon appointment, the Successor Servicer 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, by the terms and provisions of this
Agreement; provided, that (i) any failure of such Successor Servicer to
perform such responsibilities or duties that are caused by the predecessor
Servicer's failure to provide information or monies required hereunder shall
not be considered a default by such Successor Servicer and (ii) such
Successor Servicer shall have no liability for actions, inactions or
representations of the predecessor Servicer.
(c) In connection with such appointment, the Indenture Trustee may
make such arrangements for the compensation of such Successor Servicer out of
payments on Receivables as it and such Successor Servicer shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the predecessor Servicer under this Agreement. The Indenture
Trustee and such Successor Servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
(d) Notwithstanding anything herein or in the other Basic Documents
to the contrary, in no event shall the Indenture Trustee, should it be
appointed Successor Servicer, be required to purchase any Receivable pursuant
to Section 3.6 herein or otherwise or indemnify the Issuer, the Owner
Trustee, the Noteholders, the Certificateholders, the Depositor or any other
Person pursuant to Sections 3.13.
SECTION 7.3 Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, the Servicer
pursuant to this Article VII, the Indenture Trustee shall give prompt written
notice thereof to Noteholders, and the Owner Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses of
record and to each Rating Agency.
SECTION 7.4 Waiver of Past Events of Servicing Termination. The
holders of Notes evidencing not less than a majority of the principal amount
of the Notes (or, if no Notes are outstanding, holders of Certificates
evidencing Percentage Interests aggregating at least 51%) may, on behalf of
all Noteholders and Certificateholders, waive any Event of Servicing
Termination hereunder and its consequences, except an event resulting from
the failure to make any required deposits to or payments from any of the
Trust Accounts or the Certificate Distribution Account in accordance with
this Agreement, which shall require the unanimous vote of all Holders of
Outstanding Securities. Upon any such waiver of a past Event of Servicing
Termination, such Event of Servicing Termination shall cease to exist, and
shall be deemed to have been remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other Event of Servicing
Termination or impair any right consequent thereon. The Issuer shall provide
written notice of any such waiver to the Rating Agencies.
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables. As of the last
day of any Collection Period as of which the Pool Factor shall be equal to or
less than the Optional Purchase
26
Percentage, the Servicer shall have the option to purchase the Trust Property
from the Trust. To exercise such option, the Servicer shall deposit pursuant
to Section 4.4 in the Collection Account an amount equal to the lesser of (i)
the aggregate Purchase Amount for the Receivables and (ii) the fair market
value of the Receivables, and shall succeed to all interests in and to the
Trust. Notwithstanding the foregoing, the Servicer shall not be permitted to
exercise such option unless the amount to be deposited in the Collection
Account pursuant to the preceding sentence, together with the other amounts
on deposit in the Collection Account, is greater than or equal to the sum of
the outstanding principal amount of the Notes and all accrued but unpaid
interest (including any overdue interest) thereon. The amount deposited in
the Collection Account pursuant to this Section 8.1 shall be used on the next
Payment Date to make payments in full to Noteholders and Certificateholders
in the manner set forth in Article IV. The purchase of the Trust Property
pursuant to this Section shall not be permitted unless the Servicer provides
to the Indenture Trustee and the Owner Trustee an Opinion of Counsel in form
reasonably satisfactory to the Indenture Trustee and the Owner Trustee to the
effect that such purchase will not constitute a fraudulent transfer of assets
of the Servicer under applicable state and federal law; provided that this
sentence may be deleted or modified with the consent of Moody's and without
the consent of any Securityholder, the Indenture Trustee or the Owner
Trustee. The Servicer or the Issuer shall furnish written notice of the
Servicer's election to exercise such option to the Indenture Trustee and the
Rating Agencies at least 10 days', but not more than 30 days', prior to the
Payment Date on which such purchase shall occur (and the Indenture Trustee
shall promptly furnish such notice to the Noteholders).
SECTION 8.2 Succession Upon Satisfaction and Discharge of
Indenture. Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, to the extent
permitted by applicable law, the Indenture Trustee will continue to carry out
its obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Collection Account in accordance
with Section 4.5.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment. (a) This Agreement may be amended by the
Depositor, the Servicer and the Issuer, with the consent of the Indenture
Trustee and the Owner Trustee to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement that may be inconsistent with any other
provision of this Agreement, the Prospectus Supplement or the Prospectus or
to add any provisions to or change or eliminate any provisions or to modify
the rights of the Noteholders or Certificateholders; provided, however, that
such action shall not, as evidenced by either (i) an Opinion of Counsel or
(ii) satisfaction of the Rating Agency Condition, together with an Officer's
Certificate of the Servicer delivered to the Owner Trustee and the Indenture
Trustee, materially and adversely affect the interests of any Noteholder or
Certificateholder.
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(b) This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Issuer, with the consent of the Indenture
Trustee and the Owner Trustee to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld) and with the consent of (i) the Noteholders of Notes evidencing not
less than a majority of the principal amount of each Class of Notes, and (ii)
the Certificateholders of Certificates evidencing Percentage Interests
aggregating at least 51% Balance (which consent of any holder of a Note or
holder of a Certificate given pursuant to this Section 9.1 or pursuant to any
other provision of this Agreement shall be conclusive and binding on such
Note or Certificate, as the case may be, and on all future holders of such
Note or holders of such Certificate, as the case may be, and of any Note or
Certificate, as applicable, issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made
upon such Note or the Certificate), 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
Certificateholders; provided, however, that no such amendment shall (A)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that shall be required to be made on any Note
or Certificate or change any Note Interest Rate or any Certificate Rate,
without the consent of all Noteholders or Certificateholders or (B) reduce
the aforesaid percentage required to consent to any such amendment, without
the consent of the holders of all Notes affected thereby and holders of all
Certificates affected thereby.
(c) Prior to the execution of any such amendment the Servicer will
provide written notification of the substance of such amendment to each
Rating Agency.
(d) Promptly after the execution of any such amendment, the
Servicer shall furnish written notification of the substance of such
amendment to the Owner Trustee, the Indenture Trustee and each Rating Agency.
The Owner Trustee shall provide notification of the substance of the
amendment to each Certificateholder, and the Indenture Trustee will provide
notification of the substance of such amendment to each Noteholder. It shall
not be necessary for the consent of Noteholders or the Certificateholders
pursuant to this Section 9.1 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Noteholders and Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee and the Indenture Trustee may prescribe,
including the establishment of record dates pursuant to the Note Depository
Agreement.
(e) Prior to the execution of any amendment to this Agreement, the
Owner Trustee and 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 9.2(i)(1). The Owner Trustee or the Indenture Trustee may, but
shall not be obligated to, enter into any such amendment which affects such
Owner Trustee's or Indenture Trustee's own rights, duties or immunities under
this Agreement or otherwise.
28
SECTION 9.2 Protection of Title to Trust Property. (a) The
Depositor 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
Issuer and the Indenture Trustee for the benefit of the Noteholders in the
Receivables and in the proceeds thereof. The Depositor shall deliver (or
cause to be delivered) to the Owner Trustee and the Indenture Trustee
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 Depositor or the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might
make any financing statement or continuation statement filed by the Depositor
in accordance with paragraph (a) above seriously misleading within the
meaning of ss. 9-506 of the UCC, unless it shall have given the Owner Trustee
and the Indenture Trustee at least 10 days' prior written notice thereof,
with a copy to the Rating Agencies, and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Depositor and the Servicer shall give the Owner Trustee and
the Indenture Trustee at least ten (10) days' prior written notice of any
relocation of its principal executive office or change in the jurisdiction
under whose laws it is formed if, as a result of such relocation or 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 or new
financing statement. The Servicer shall at all times maintain each office
from which it shall service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of conveyance under this Agreement of the Receivables to
the Issuer, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly, by numerical
code or otherwise, that such Receivable is owned by the Issuer and has been
pledged to the Indenture Trustee pursuant to the Indenture. Indication of the
Issuer's and the Indenture Trustee's interest in a Receivable shall not be
deleted from or modified on the Servicer's computer systems until, and only
until, the Receivable shall have been paid in full or repurchased.
(f) If at any time 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 Receivable, shall indicate clearly that such
29
Receivable has been conveyed to and is owned by the Issuer and has been
pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice, shall
permit the Depositor, the Owner Trustee, the Indenture Trustee and their
respective agents at any time during normal business hours at the Servicer's
expense to inspect, audit, and make copies of and to obtain abstracts from
the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee
and the Indenture Trustee, within five (5) Business Days, a list of all
Receivables (by contract number and name of Obligor) then owned by the
Issuer, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Investor Reports furnished before such request
indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee:
(1) promptly after 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 and subject
to customary qualifications and assumptions, all financing
statements and continuation statements have been filed that are
necessary fully to perfect the interest of the Issuer and the
Indenture Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which
such details are given, or (B) stating that, in the opinion of such
Counsel, no such action shall be necessary to perfect such
interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Cut-off Date, an Opinion of Counsel, dated as of a
date during such 120-day period, either (A) stating that, in the
opinion of such counsel and subject to customary qualifications and
assumptions, all financing statements and continuation statements
have been filed that are necessary fully to perfect the interest of
the Issuer and the Indenture Trustee in the Receivables, and
reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in
the opinion of such Counsel, no such action shall be necessary to
perfect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to preserve and protect such interest.
(j) For the purpose of facilitating the execution of this Agreement
and for other purposes, this Agreement may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and all of which counterparts shall constitute but one and the same
instrument.
SECTION 9.3 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PROVISIONS THAT WOULD APPLY THE LAW OF ANY
30
JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 9.4 Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, over night courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in
the case of the Servicer, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
facsimile (000) 000-0000 Attention: Xxxxxxxx Xxxxx, or at such other address
as shall be designated by the Seller or the Servicer in a written notice to
the Owner Trustee and the Indenture Trustee, (b) in the case of the
Depositor, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile (212)
272-0979, Attention: Xxxxx Xxxxxx, (c) in the case of the Owner Trustee, at
the Corporate Trust Office of the Owner Trustee, (d) in the case of the
Indenture Trustee, at the Corporate Trust Office of the Indenture Trustee,
(e) in the case of Xxxxx'x Investors Service, Inc., at the following address:
Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, (f) in the case of Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., at the following
address: Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Surveillance Department, and (g) in the case of
Fitch, Inc., at the following address: Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Any notice required or permitted to be mailed to a
Noteholder or Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Person as shown in the Note Register or the
Certificate Register, as applicable. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder or Certificateholder shall receive such
notice.
SECTION 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or
of the Notes, the Certificates or the rights of the holders thereof.
SECTION 9.6 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.3 and 7.2 and as provided
in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Depositor or the Servicer
unless (i)(A) the Rating Agency Condition is satisfied and (B) the Indenture
Trustee and the Owner Trustee have consented thereto, which consent shall not
be unreasonably withheld or (ii) the Owner Trustee, the Indenture Trustee,
the Noteholders of Notes evidencing not less than 66 2/3% of the principal
amount of the Notes Outstanding and the holders of Certificates evidencing
Percentage Interests aggregating at least 51% consent thereto. Any transfer
or assignment with respect to the Servicer of all its rights, obligations and
duties will not become effective until a successor Servicer has assumed the
Servicer's rights, duties and obligations under this Agreement. In the event
of a transfer or assignment pursuant to clause (ii) above, the Rating
Agencies shall be provided with notice of such transfer or assignment.
31
SECTION 9.7 Further Assurances. The Depositor and the Servicer
agree to do and perform, from time to time, any and all acts and to execute
any and all further instruments required or reasonably requested by the Owner
Trustee or the Indenture Trustee more fully to effect the purposes of this
Agreement.
SECTION 9.8 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges therein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 9.9 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Indenture
Trustee and the Owner Trustee and their respective successors and permitted
assigns and each of the Indenture Trustee and the Owner Trustee may enforce
the provisions hereof as if they were parties thereto. Except as otherwise
provided in this Article IX, no other Person will have any right or
obligation hereunder. The parties hereto hereby acknowledge and consent to
the pledge of this Agreement by the Issuer to the Indenture Trustee for the
benefit of the Noteholders pursuant to the Indenture.
SECTION 9.10 Actions by Noteholders or Certificateholders. (a)
Wherever in this Agreement a provision is made that an action may be taken or
a notice, demand, or instruction given by Noteholders or Certificateholders,
such action, notice, or instruction may be taken or given by any Noteholder
or Certificateholder, as applicable, unless such provision requires a
specific percentage of Noteholders or Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent,
waiver, or other act by a Noteholder or Certificateholder shall bind such
Noteholder or Certificateholder and every subsequent holder of such Note or
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or omitted to be done
by the Owner Trustee, the Indenture Trustee or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Note or
Certificate.
SECTION 9.11 Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company, in its individual capacity
or, except as expressly provided in the Trust Agreement, as Owner Trustee of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI and VII of the Trust
Agreement. For all purposes of this Agreement, in the performance of its
duties and
32
obligations hereunder (other than Successor Servicer), the Indenture Trustee
shall be afforded all of the rights, protections, immunities and indemnities
provided it under the Indenture.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by JPMorgan Chase Bank, not in its individual
capacity but solely as Indenture Trustee, and in no event shall JPMorgan
Chase Bank have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 9.12 Savings Clause. It is the intention of the Depositor
and the Issuer that the transfer of the Trust Property contemplated herein
constitute an absolute transfer of the Trust Property, conveying good title
to the Trust Property from the Depositor to the Issuer. However, in the event
that such transfer is deemed to be a transfer for security, the Depositor
hereby grants to the Issuer a first priority security interest in all of the
Depositor's right, title and interest in, to and under the Trust Property,
whether now owned or existing or hereafter acquired or arising, and all
proceeds thereof (including, without limitation, "proceeds" as defined in the
Uniform Commercial Code as in effect from time to time in the State of New
York) and all other rights and property transferred hereunder to secure a
loan in an amount equal to all amounts payable under the Notes and the
Certificates, and in such event, this Agreement shall constitute a security
agreement under applicable law. The Depositor hereby authorizes the Issuer or
its agents to file such financing statements and continuation statements as
the Issuer may deem advisable in connection with the security interest
granted by the Depositor pursuant to the preceding sentence.
SECTION 9.13 No Petition. The Servicer, by entering into this
Agreement, hereby covenants and agrees that prior to the end of the period
that is one year and one day after there has been paid in full all debt
issued by any securitization vehicle in respect of which the Depositor holds
any interest, it will not institute against the Issuer, or join in, or assist
or encourage others to institute any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Agreement or any of the other Basic Documents.
33
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.
WHOLE AUTO LOAN TRUST 2004-1,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
BEAR XXXXXXX ASSET RECEIVABLES CORP.,
as Servicer
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Depositor
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Accepted and agreed:
JPMorgan Chase Bank,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Wilmington Trust Company
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On File with the Indenture Trustee]
1. List of DCS Receivables
2. List of Ford Credit Receivables
3. List of GMAC Receivables
A-1
SCHEDULE B
Location of Receivable Files
1. DCS Receivables
A. 0000 Xxxxxxxx Xxxxx, Xxxxxxxx XX 00000.
B. 0000 Xxxxxx X, Xxxxx Xxxxxxx, XX 00000.
2. Ford Credit Receivables
A. Security Archives, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
B. MSX International, Inc., 0000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx, XX 00000
C. Iron Mountain Records Management, 00000 Xxxxxxx Xxxxxx, Xxxxxxx, XX
00000
3. GMAC Receivables
Commercial Services Group, XX Xxx 000000, Xxxxx, XX 00000-0000
Anchorage, 0000 "X" Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Birmingham, 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Montgomery, 000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000
Birmingham, 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000
Phoenix, 0000 X 00 Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Arizona, 0000 X 00xx Xxx., Xxxxx 000, Xxxxxxx, XX 00000
Phoenix Admin. Ctr, 0000 Xxxx Xxxx Xxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
San Xxxx, 0000 Xxxxx Xxxxxx Xxx., Xxxxx 000, Xxxxxxxx, XX 00000
Los Angeles, 0000 X. Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxx, XX
00000-0000
San Diego, 0000 Xxxxxx Xxxx, Xxxxx 000X, Xxx Xxxxx, XX 00000
Fresno, 0000 Xxxxx Xxxxxx Xxx, Xxxxx 000, Xxxxxx, XX 00000
Sacramento Comm. Lending, 0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000
Sacramento, 0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
San Bernardino, 000 X Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxxxxx,
XX 00000
Bakersfield, 0000 Xxxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000
Stockton, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx X, Xxxxxxxx, XX 00000
Thousand Oaks, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000
La Palma, 0 Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xx Xxxxx, XX 00000
Corona, 0000 Xxxxxxx Xxxxxx, #000, Xxxxxx, XX 00000
Pasadena, 0000 X. Xxxxxx Xxxx Xx., Xxxxx 000, Xxxxxxx Xxx, XX 00000
Newark, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
Concord, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
Los Angeles, 0000 Xxxx Xxxxx, Xxxxx 000, Xx Xxxxxxx, XX 00000
Denver, 0000 Xxxx Xxxxx Xxx., Xxxxx 000, Xxxxxx, XX 00000
Denver North, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Colorado Springs, 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, XX 00000
B-1
Denver, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
New London, 00 Xxxxxx X'Xxxxx Xxxxx, Xxx Xxxxxx, XX 00000
Hartford, 000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000
Glastonbury, 000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000
Hartford Dlr. Serv. Ctr., 000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000
Jacksonville, 0000 Xxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
00000
Tampa, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000
Pensacola, 0000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, X 00000
West Palm Beach, 000 XX 00xx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
Orlando, 00000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX 00000
Fort Xxxxx, 0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
Ft Lauderdale-Miami, 000 XX 00xx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX
00000
Orlando, 00000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX 00000
Jacksonville, 0000 Xxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
00000
AccuTel Document Center, 000 X. Xxxxxxxx Xxxx., Xxxxxxxx, XX 00000
Jacksonville Dlr Serv Ctr, 0000 Xxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000
Atlanta North, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Savannah, 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Atlanta, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Atlanta South, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Atlanta Admin. Center, 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
XX 00000
Atlanta Dealer Srv Ctr, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx,
XX 00000
Atlanta, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Honolulu, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Des Moines, 0000 00xx Xx., Xxxxx 000, Xxxx Xxx Xxxxxx, XX 00000
Sioux Falls, 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxx Xxxxxx, XX
00000
Des Moines, 0000 00xx Xx., Xxxxx 000, Xxxx Xxx Xxxxxx, XX 00000
Boise, 0000 X Xxxxx Xxxxxx, Xxxxx 000, Xxxxx, XX, 00000
Decatur IL 000 X. Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Chicago, 00000 Xxxxx 00xx Xxx., Xxxxxx Xxxx, XX 00000
Oak Brook, 00000 Xxxxx 00xx Xxx., Xxxxxx Xxxx, XX 00000
Lincolnshire, 00000 Xxxxx 00xx Xxx., Xxxxxx Xxxx, XX 00000
Crystal Lake, 000 Xxxxx Xx., Xxxxxxx Xxxx, XX 00000
Orland Park, 00000 Xxxxx 00xx Xxxxxx, Xxxxxx Xxxx, XX 00000
Moline, 0000 0xx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Chicago, 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000
Indianapolis, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx Xxxxx 000,
Xxxxxxxxxxxx, XX 00000-0000
Merrillville, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
XX 00000
Terre Haute, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx Xxxxx 000,
Xxxxxxxxxxxx, XX 00000
Indianapolis North, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000
Indianapolis, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
00000
Overland Park, 00000 Xxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000
AccuTel, Inc, 0000 Xxxx Xxxxxxx, Xxxxx 000-X, Xxxxxxx, XX 00000
Louisville, 0000 Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX 00000
New Orleans, 000 Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxxxxx, XX 00000-0000
B-2
Quincy, 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX, 00000-0000
Baltimore, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx, XX 00000
Salisbury, 000 X. Xxxx Xx, Xxxxx 000, Xxxxxxxxx, XX 00000
Rockville, 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Baltimore, 0000 Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxxxxx, XX 00000
Detroit Northwest, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
Grand Rapids, 0000 Xxxxx Xxxxx X.X., Xxxxx Xxxxxx, XX 00000
Flint, 0000 Xxxxxxx Xxxxxx, Xxxxx, XX 00000
Lansing, 0000 X. Xxxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Saginaw, 0000 Xxxxxxx Xxxxx, Xxxxx X, Xxxxxxx, XX 00000
Traverse City, 00000 Xxxxxxxx Xxxxxxx, 0xx Xxxxx - Xxxxx 0000,
Xxxxxxxx Xxxx, XX 00000
Detroit, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Detroit, 00000 Xxxxxx Xxxx Xxxxx X., Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxx, XX 00000
Xxxx, Northridge Plaza Two, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx, XX
00000
Detroit East, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000
Detroit Northeast, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
Detroit Southwest, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
Detroit West, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000
Flint, 0000 Xxxxxxx Xxxxxx, Xxxxx X, Xxxxx, XX 00000
Davison, 0000 Xxxxxxx Xxxxxx, Xxxxx X, Xxxxx, XX 00000
Detroit Admin. Center, 000 X. Xxxxxxxx Xxxx, Xxxxxx Xxxxx, XX
00000-0000
Minneapolis, 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000
Fargo (Liquidating Br.), 0000 Xxxx 00xx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxx XX 00000
Roseville, MN, 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX,
00000-0000
Bloomington, 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX
00000-0000
St. Cloud, 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX
00000-0000
St. Louis Comm. Lending, 00000 Xxxxx Xxxxx Xxxxx Xxxx, Xxxxxxxxxxxx,
XX 00000
St. Louis Acquis. Ctr., 00000 Xxxxx Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000
St. Louis Dealer Service, 00000 Xxxxx Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000
Billings, 000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Charlotte, 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Raleigh, 0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000-0000
Greensboro, 0000 Xxxxxxx Xx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Wilmington NC, 0000 Xxxxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxxx,
XX 00000
Charlotte, 0000 Xxxxxxxx Xx., Xxxxx 000, Xxxxxxxxx, XX 00000
Charlotte, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Charlotte Dealer Serv Ctr, 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx,
XX 00000
Fargo, 0000 00xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000
Omaha, 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000
Manchester NH, 0 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000
Bedford, 0 Xxxxxxx Xxxxx, Xxxxxxx, XX, 00000
Manchester Dlr Xxxx Xxx, 0 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000
East Hanover, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx #0 Xxxxx 000, Xxxx
Xxxxxxx, XX 00000
X-0
Xxxx Xxxxxxx Xxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxx,
XX 00000
East Hanover South, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxx,
XX 00000
Albuquerque, 0000 Xxxxxxxx Xxxxxxx XX, Xxx Xxxx Xxxxxx Xxxxxxxx,
Xxxxx 000, Xxxxxxxxxxx, XX 00000
Las Vegas, 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000 X, Xxx Xxxxx,
XX 00000
Garden City West, XXX Xxxxx, Xxxx Xxxxx - 0xx Xxxxx, Xxxxxxxxx,
XX 00000
Rochester, 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Garden City, Xxxx Xxxxx XXX Xxxxx 0xx Xxxxx, Xxxxxxxxx, XX 00000-0000
Rochester, 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Garden City East, XXX Xxxxx, Xxxx Xxxxx - 0xx Xxxxx, Xxxxxxxxx,
XX 00000
Newburgh, Blake Building, 000 Xx 00 X, Xxxxx 0000, Xxxxxxxx, XX 00000
Garden City, XXX Xxxxx, Xxxx Xxxxx - 0xx Xxxxx, Xxxxxxxxx, XX
00000-0000
Cleveland, 00000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxxx, XX
00000
Dayton, 0000 Xxxxxxxxxx Xxxxxxx Xx, Xxxxx 000, Xxxxxx, XX 00000
Cincinnati, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Youngstown, 0000 Xxxxxxxx-Xxxxxxxx Xx, Xxxxxxxx, XX 00000
Columbus, 0000 X Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Toledo, 0000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
North Canton, 0000 Xxxxxxxx Xx XX, Xxxxx 000, Xxxxx Xxxxxx, XX 00000
Cincinnati, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Cleveland, 00000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxxx XX 00000
Columbus, 0000 X Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Toledo, 0000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Dayton, 0000 Xxxxxxxxxx Xxxxxxx Xx, Xxxxx 000, Xxxxxx, XX 00000
Youngstown, 0000 Xxxxxxxx-Xxxxxxxx Xx, Xxxxxxxx, XX 00000
North Canton, 0000 Xxxxxxxx Xx XX, Xxxxx 000, Xxxxx Xxxxxx, XX 00000
Columbus, 0000 X. Xxxx Xx, Xxxxx 000, Xxxxxxxx, XX 00000
Cleveland, 00000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxxx, XX
00000
Cleveland, 00000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxxx, XX
00000
Columbus, 0000 X. Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Oklahoma City, 00 Xxxx Xxxxx, Xxxxx 000, 0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx Xxxx, XX 00000
Portland OR, 0000 X. X. Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000
AccuTel, Inc., 000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000
Pittsburgh, 0000 Xxxxxxxxxx Xx., Xxxxx #000, Xxxxxxxxx Xxx., XX 00000
Philadelphia, 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000
Harrisburg, Commerce Park, 0000 Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000-0000
Mt. Laurel, 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000
Philadelphia, 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000
Allentown, 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000
Pittsburgh Sales Branch, 0000 Xxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxx
Xxx., XX 00000
Pittsburgh Dlr Serv Ctr, 0000 Xxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxx
Xxx., XX 00000
Greenville, SC 000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
Nashville, 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Knoxville, 000 X. Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Memphis, 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
B-4
Brentwood, 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
AccuTel, Inc., 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000
Dallas Commercial Lending, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000
South Central Ops., 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000
Houston Commer. Lending, 00000 Xxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx,
XX 00000
Houston, 0000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxx, XX 00000
Dallas, 0000 X. Xxxxxxx, Xxxxx 0000, Xx. Xxxxx, XX 00000
Dallas, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Houston, 00000 Xxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000
San Antonio, 000 Xxxxxxxxx Xxxx 000, Xxxxx 0000, Xxx Xxxxxxx, XX 00000
Dallas, 0000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx, XX 00000
AccuTel Admin. Serv. Inc., 000 Xxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxxx,
XX 00000
Dallas Administration Ctr, 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx,
XX 00000
AccuTel Remarketing Ctr, 000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
XX 00000
Oklahoma Cty-St Louis, 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000
Lubbock-St. Louis, 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000
Dallas Dealer Service Ctr, 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx,
XX 00000
CSG South East, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
CSG North East, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
Dallas, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
CSG WEST, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
CSG North Central, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
CSG South Central, 0000 X. Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
Salt Lake City, 0000 Xxxxx 000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, XX
00000
Greenville, NC, 00000 Xxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxx, XX
00000
Fairfax, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Richmond, 00000 Xxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Seattle, 00000 XX 0xx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Spokane, 000 X. Xxxxx Xxx., Xxxxx 000, Xxxxxxx, XX 00000
Seattle, 00000 XX Xxxxxxxx Xxx, #000, Xxxxxxxx, XX 00000-0000
Milwaukee WI 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000
Green Bay, 0000 Xxxxxxx Xxxxx, Xxxxx "X", Xxxxx Xxx, XX 00000
Madison WI 0000 X. Xxxx Xxxxx Xx., Xxxxx 000, Xxxxxxxxx, XX 00000
Duluth MN, 0000 X. 00xx Xxxxxx, Xxxxxxxx, XX 00000
Milwaukee, 000 X. Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000-0000
Teays WV 000 Xxxxxxx Xxxxxx, Xxxxx, XX 00000
PDP Group, Inc., Executive Plaza IV, 00000 XxXxxxxxx Xxxx, Xxxx
Xxxxxx, XX 00000
B-5
SCHEDULE C
List of Receivables Servicers
1. DaimlerChrysler Services North America LLC
2. Ford Motor Credit Company
3. General Motors Acceptance Corporation
C-1
SCHEDULE D
The Depositor makes the following representations and warranties
with respect to the Ford Credit Receivables, on which the Issuer relies in
purchasing such Receivables and pledging the same to the Indenture Trustee.
Unless otherwise indicated, such representations and warranties speak as of
the Closing Date (as defined in the Ford Credit Servicing Agreement).
Capitalized terms used and not defined herein have the meaning(s)
ascribed thereto in the Ford Credit Servicing Agreement.
i. Each Ford Credit Receivable:
(a) has been originated in the United States of America by a
Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business, has been fully and
properly executed by the parties thereto, has been purchased
by the Seller from such Dealer under an existing dealer
agreement with the Seller, has been validly assigned by such
Dealer to the Seller;
(b) creates or has created a valid, subsisting, and enforceable
first priority security interest in favor of Ford Credit in
the Financed Vehicle, which security interest is assignable by
Ford Credit to the Depositor;
(c) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for the
realization against the collateral of the benefits of the
security;
(d) provides for level monthly payments (provided that the last
payment may be different but in no event more than twice the
amount of the level payment) that fully amortize the Amount
Financed by maturity and yield interest at the Annual
Percentage Rate;
(e) provides for, in the event that such contract is prepaid, a
prepayment that fully pays the Principal Balance; and
(f) is a Simple Interest Receivable.
ii. Schedule of Receivables. The information contained in the Schedule of
Receivables is true and correct in all material respects as of the Cut-off
Date. No selection procedures believed to be adverse to the Depositor have
been utilized in selecting the Receivables from those receivables that meet
the criteria contained herein.
iii. Compliance with Law. Each Receivable and the sale of the Financed
Vehicle complied at the time it was originated or made and at the execution
of this Agreement complies in all
D-1
material respects with all requirements of applicable federal, State, and
local laws, and regulations thereunder, including, without limitation:
(a) usury laws;
(b) the Federal Truth-in-Lending Act;
(c) the Equal Credit Opportunity Act;
(d) the Fair Credit Reporting Act;
(e) the Fair Debt Collection Practices Act;
(f) the Federal Trade Commission Act;
(g) the Xxxxxxxx-Xxxx Warranty Act;
(h) the Federal Reserve Board's Regulations B and Z;
(i) State adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code; and
(j) other applicable consumer credit laws and equal credit
opportunity and disclosure laws.
iv. Binding Obligation. Each Receivable represents the genuine, legal, valid,
and binding payment obligation 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.
v. No Government Obligor. None of the Receivables is due from the United
States of America or any State, or from any agency, department, or
instrumentality of the United States of America or any State or political
subdivision thereof.
vi. Security Interest in Financed Vehicle. Immediately prior to the sale
hereof, each Receivable is secured by a first priority, validly perfected
security interest in the Financed Vehicle in favor of Ford Credit as secured
party or all necessary and appropriate actions have been commenced that would
result in a first priority, validly perfected security interest in the
Financed Vehicle in favor of Ford Credit as secured party.
vii. Receivables in Force. As of the Cut-off Date, no receivable has been
satisfied, subordinated, or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Receivable in whole or in part.
viii. No Waiver. No provision of a Receivable has been waived.
D-2
ix. No Defenses. The Receivables will not be subject to any right of
rescission, set-off, counterclaim, or defense.
x. No Liens. To the Depositor's best knowledge, no liens or claims have been
filed for work, labor, or materials relating to a Financed Vehicle that are
liens prior to, or equal with, the security interest in the Financed Vehicle
granted by the Receivable.
xi. No Default. Except for payment defaults continuing for a period of not
more than 30 days as of the Cut-off Date, no default, breach, violation, or
event permitting acceleration under the terms of any Receivable has occurred
as of the Cut-off Date; and no continuing condition that with notice or the
lapse of time would constitute a default, breach, violation, or event
permitting acceleration under the terms of any Receivable has arisen as of
the Cut-off Date; and Ford Credit has not waived any of the foregoing.
xii. Insurance. With respect to each Receivable, Ford Credit in accordance
with its customary standards, policies and procedures, has determined that,
as of the date of origination, the Obligor had obtained or agreed to obtain
physical damage insurance covering the Financed Vehicle.
xiii. Title. It is the intention of the Depositor that the sale contemplated
by this Agreement will constitute an absolute sale and that the beneficial
interest in and title to the Receivables not be part of the Depositor's
estate in the event of the filing of a bankruptcy petition by the Depositor
under any bankruptcy law. The Depositor has not pledged, assigned, sold,
granted a security interest in or otherwise conveyed any of the Receivables
to any Person other than the Issuer. Immediately prior to the sale and
transfer herein contemplated, the Depositor had good and marketable title to
each Receivable free and clear of all Liens, encumbrances, security
interests, participations and rights of others and, immediately upon the sale
and transfer thereof, the Issuer will have good and marketable title to each
Receivable, free and clear of all Liens, encumbrances, security interests,
participations and rights of others; and the sale of Receivables has been
perfected under the UCC. The Depositor has not authorized the filing of and
is not aware of any financing statements against the Depositor that includes
a description of collateral covering the Receivables other than any financing
statements relating to the security interest granted to the Issuer hereunder
or that has been terminated.
xiv. Valid Assignment. No Receivable has been originated in, or is subject to
the laws of, any jurisdiction under which the sale of such Receivable under
this Agreement would be unlawful, void, or voidable. Ford Credit has not
entered into any agreement with any Obligor that prohibits, restricts or
conditions the sale of any portion of the Receivables.
xv. All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Issuer a first priority,
validly perfected ownership interest in the Receivables will be made within
10 days of the Closing Date.
xvi. Chattel Paper. Each Receivable constitutes "tangible chattel paper" as
defined in the UCC.
D-3
xvii. One Original. There is only one original executed copy of each
Receivable. The Servicer, or its custodian, has possession of such original
with respect to each Receivable. Such original does not have any marks or
notations indicating that it has been pledged, assigned or otherwise conveyed
to any Person other than Ford Credit. All financing statements filed or to be
filed against the Depositor in favor of the Issuer in connection herewith
describing the Receivables contain a statement to the following effect: "A
purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Issuer."
xviii. No Notice of Bankruptcy. The Depositor has not received actual notice
that as of the Cut-off Date any Obligor is a debtor in a bankruptcy
proceeding.
xix. Origination. Each Receivable has an origination date on or after
February 3, 1998.
xx. Maturity of Receivables. Each Receivable has an original maturity of not
greater than 72 months.
xxi. Annual Percentage Rates. The Annual Percentage Rate of each Receivable
is not less than 0.00% and not greater than 29.99%.
xxii. Scheduled Payments. As of the Cut-off Date, the related Obligor has
made at least one scheduled payment (other than any down payment) and no
Receivable has a scheduled payment that is more than 30 days overdue as of
the Cut-off Date.
xxiii. Location of Receivable Files. Each Receivable File is kept at one or
more offices of the Servicer in the United States or the offices of one of
the custodians specified in Schedule B hereto.
xxiv. Extensions. As of the Cut-off Date, no Receivable has had its original
maturity extended.
D-4
APPENDIX A
Definitions and Usage
[See Appendix A attached to the Indenture]
AA-1
