EXHIBIT 99.3
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Agreement") made
this 31st day of March, 2004, among The Huntington National Bank, a national
banking association organized under the laws of the United States of America
("HNB" or the "Servicer"), Xxxxxx Xxxxxxx ABS Capital II Inc., a Delaware
Corporation (the "Assignee"), and Xxxxxx Xxxxxxx Asset Funding, Inc., a
corporation organized under the laws of Delaware (the "Assignor").
WHEREAS, the Purchaser and HNB have entered into a certain Purchase and
Servicing Agreement dated as of February 29, 2004 (the "Purchase and Servicing
Agreement"), pursuant to which HNB sold certain retail automobile and
light-duty truck loan and installment sale contracts listed on the receivable
schedule attached as an exhibit to the Purchase and Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain retail automobile and light-duty truck loan
and installment sale contracts (the "Receivables"), which Receivables are
subject to the provisions of the Purchase and Servicing Agreement and are
listed on the receivable schedule attached as Exhibit 1 hereto (the
"Receivable Schedule");
WHEREAS, pursuant to a Sale and Servicing Agreement, dated as of March
31, 2004 (the "Sale and Servicing Agreement"), among the Assignee, as
depositor, Xxxxxx Xxxxxxx Auto Loan Trust 2004-HB1, as issuer (the "Issuer"),
the Servicer, the Assignor, as seller and Xxxxx Fargo Bank, National
Association, as indenture trustee (the "Indenture Trustee"), the Assignee will
transfer the Receivables to the Indenture Trustee, together with the
Assignee's rights in the Purchase and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
Assignment and Assumption.
SECTION 1.01 The Assignor hereby assigns to the Assignee all of its
right, title and interest in and to the Receivables and Purchase and Servicing
Agreement, to the extent relating to the Receivables (other than the rights of
the Assignor to indemnification and contribution under Sections 10.02 and
10.04 thereunder), and all other Conveyed Assets with respect thereto, and the
Assignee hereby assumes all of the Assignor's obligations under the Purchase
and Servicing Agreement, to the extent relating to the Receivables from and
after the date hereof, and HNB hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any
obligations under the Purchase and Servicing Agreement from and after the date
hereof, to the extent relating to the Receivables. Notwithstanding the
foregoing, it is understood that the Assignor is not released from liability
for any breaches of the
representations and warranties made in Section 3.03 of the Purchase and
Servicing Agreement, and the Assignee is not undertaking any such liability
hereunder.
SECTION 1.02 The Assignor represents and warrants to the Assignee that
the Assignor has not taken any action which would serve to impair or encumber
the Assignor's ownership interest in the Receivables since the date of the
Purchase and Servicing Agreement.
SECTION 1.03 HNB and the Assignor shall have the right to amend, modify
or terminate the Purchase and Servicing Agreement without the joinder of the
Assignee with respect to retail automobile and light-duty truck loan and
installment sale contracts not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or
be binding on the Assignee.
ARTICLE 2
Accuracy of Purchase and Servicing Agreement.
HNB and the Assignor represent and warrant to the Assignee that (a)
attached hereto as Exhibit 2 is a true, accurate and complete copy of the
Purchase and Servicing Agreement and any amendments, supplements or other
modifications thereto, (b) the Purchase and Servicing Agreement is in full
force and effect as of the date hereof, (c) the Purchase and Servicing
Agreement has not been amended or modified in any respect except as set forth
in Exhibit 2 and (d) no notice of termination has been given to the Servicer
under the Purchase and Servicing Agreement.
ARTICLE 3
Recognition of Purchaser.
From and after the date hereof, the Servicer, shall note the transfer of
the Receivables to the Assignee in its books and records, shall recognize the
Assignee as the owner of the Receivables and shall service the Receivables for
the benefit of the Assignee pursuant to the Purchase and Servicing Agreement,
the terms of which are incorporated herein by reference. It is the intention
of the Assignor, HNB and the Assignee that the Purchase and Servicing
Agreement shall be binding upon and inure to the benefit of the Assignee and
its permitted successors and assigns.
ARTICLE 4
Representations and Warranties of the Assignee.
The Assignee hereby represents and warrants to the Assignor as follows:
SECTION 4.01 Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits of
the transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Seller
other than those contained in the Purchase and Servicing Agreement or this
Agreement.
SECTION 4.02 Authority. The Assignee hereto represents and warrants that
it is duly and legally authorized to enter into this Agreement and to perform
its obligations hereunder and under the Purchase and Servicing Agreement.
SECTION 4.03 Enforceability. The Assignee hereto represents and warrants
that this Agreement has been duly authorized, executed and delivered by it and
(assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
ARTICLE 5
Representations and Warranties of the Assignor.
The Assignor hereby represents and warrants to the Assignee as follows:
SECTION 5.01 The Assignor has been duly organized and is validly existing
as a corporation in good standing under the laws of Delaware with full power
and authority to enter into and perform its obligations under the Purchase and
Servicing Agreement and this Agreement.
SECTION 5.02 This Agreement has been duly executed and delivered by the
Assignor, and, assuming due authorization, execution and delivery by each of
the other parties hereto, constitutes a legal, valid, and binding agreement of
the Assignor, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law.
SECTION 5.03 The execution, delivery and performance by the Assignor of
this Agreement and the consummation of the transactions contemplated thereby
do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date thereof.
SECTION 5.04 The execution and delivery of this Agreement have been duly
authorized by all necessary corporate action on the part of the Assignor;
neither the execution and delivery by the Assignor of this Agreement, nor the
consummation by the Assignor of the transactions therein contemplated, nor
compliance by the Assignor with the provisions thereof, will conflict with or
result in a breach of, or constitute (with or without notice or lapse of time
or both) a default under, any of the provisions of the governing documents of
the Assignor or any law, governmental rule or regulation or any material
judgment, decree or order binding on the Assignor or any of its properties, or
any of the provisions of any material indenture, mortgage, deed of trust,
contract or other instrument to which the Assignor is a party or by which it
is bound.
SECTION 5.05 There are no actions, suits or proceedings pending or, to
the knowledge of the Assignor, threatened, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter that in the judgment of the Assignor will be determined adversely
to the Assignor and will if determined adversely to the Assignor materially
adversely affect its ability to perform its obligations under this Agreement.
SECTION 5.06 Except for the sale to the Assignee, the Assignor has not
assigned or pledged any Receivable or any interest or participation therein.
SECTION 5.07 The Assignor has not satisfied, canceled, or subordinated in
whole or in part, or rescinded the collateral securing the Receivable, and the
Assignor has not released the collateral securing the Receivable from the lien
of the Receivable, in whole or in part, nor has the Assignor executed an
instrument that would effect any such release, cancellation, subordination, or
rescission. The Assignor has not released any Obligor, in whole or in part,
from its obligations with respect to the related Receivable.
It is understood and agreed that the representations and warranties set
forth in this Section 5 shall inure to the benefit of the Assignee and its
permitted assigns notwithstanding any restrictive or qualified endorsement or
assignment. Upon the discovery by the Assignor or the Assignee and its
permitted assigns of a breach of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other parties to this Agreement and in no event later than two (2) Business
Days from the date of such discovery. It is understood and agreed that the
obligations of the Assignor set forth in Article 6 to repurchase a Receivable
constitute the sole remedies available to the Assignee and its permitted
assigns on their behalf respecting a breach of the representations and
warranties contained in this Article 5. It is further understood and agreed
that the Assignor shall be deemed not to have made the representations and
warranties in this Article 5 with respect to, and to the extent of,
representations and warranties made, as to the matters covered in this Article
5, by the Servicer in the Purchase and Servicing Agreement (or any officer's
certificate delivered pursuant thereto).
It is understood and agreed that the Assignor has made no representations
or warranties to the Assignee other than those contained in this Article 5,
and no other affiliate of the Assignor has made any representations or
warranties of any kind to the Assignee.
ARTICLE 6
Repurchase of Receivables.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty, or covenant under this Agreement that materially and
adversely affects the value of any Receivable or the interest of the Assignee
therein (it being understood that any such defect or breach shall be deemed to
have materially and adversely affected the value of the related Receivable or
the interest of the Assignee therein if the Assignee incurs a loss as a result
of such defect or breach), the Assignee promptly shall request that the
Assignor cure such breach and, if the Assignor does not cure such breach in
all material respects within sixty (60) days from the
date on which it is notified of the breach, the Assignee may enforce the
Assignor's obligation hereunder to purchase such Receivable from the Assignee.
The Assignor hereby irrevocably appoints the Indenture Trustee as its
attorney-in-fact to exercise the Assignor's remedies against HNB in the event
that HNB, as Seller, breaches any of its representations or warranties made in
Section 3.01(b) of the Purchase and Servicing Agreement.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
ARTICLE 7
Continuing Effect.
Except as contemplated hereby, the Purchase and Servicing Agreement shall
remain in full force and effect in accordance with its terms.
ARTICLE 8
Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ARTICLE 9
Notices.
Any notices or other communications permitted or required hereunder or
under the Purchase and Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to: (a) in the case of the HNB, The Huntington National Bank, Huntington
Center, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx
or such address as may hereafter be furnished by the Seller; (b) in the case
of the Assignee, Xxxxxx Xxxxxxx ABS Capital II Inc., 0000 Xxxxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxx Xxxxxx, with a copy to Xxxxxx Xxxxxxx ABS Capital II
Inc., 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx Xxxxx, or such
other address as may hereafter be furnished by the Assignee and (c) in the
case of the Assignor, Xxxxxx Xxxxxxx Asset Funding, Inc., 0000 Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Attention: Xxxx Xxxxxx, with a copy to Xxxxxx
Xxxxxxx ABS Capital II Inc., 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxxx Xxxxx, or such other address as may hereafter be furnished by the
Assignor.
ARTICLE 10
Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
ARTICLE 11
Definitions.
Any capitalized term used but not defined in this Agreement has the same
meaning as in the Purchase and Servicing Agreement.
ARTICLE 12
Absolute Assignment.
It is the intention of the Assignor and Assignee that this Agreement
shall evidence a sale of the Receivables and other related property from the
Assignor to the Assignee (for non-tax purposes) and that such Conveyed Assets
shall not be treated as property of the Assignor as debtor-in-possession or by
a bankruptcy trustee in any insolvency, bankruptcy or other similar proceeding
in respect of the Assignor under any Applicable Law. Further, it is not the
intent of the parties hereto that any such assignment be deemed a grant by the
Assignor to the Assignee of a mere security interest (for non-tax purposes) in
any of the Conveyed Assets in order to secure a debt or other obligation of
the Assignor. However, in the event and to the extent that, notwithstanding
the intent of the parties hereto, the transfer and assignment contemplated
hereby is held not to be a true or absolute sale (for non-tax purposes), this
Agreement shall constitute a security agreement under Applicable Law, and, in
such event, the Assignor shall be deemed to have granted, and the Assignor
hereby grants, to the Assignee a first priority security interest in all
accounts, money, chattel paper, securities, instruments, documents, deposit
accounts, certificates of deposit, letters of credit, advices of credit,
banker's acceptances, uncertificated securities, general intangibles, contract
rights, goods and other property consisting of, arising from or relating to
such Conveyed Assets, for the benefit of the Assignee and its assignees as
security for the Assignor's obligations hereunder and the Assignor consents to
the pledge of the foregoing Conveyed Assets to the Indenture Trustee under the
Indenture entered into by the Trust and the Indenture Trustee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
XXXXXX XXXXXXX ABS CAPITAL II INC.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXX XXXXXXX ASSET FUNDING, INC.
By: /s/ J. Xxxxxxx Xxx Xxxx
--------------------------
Name: J. Xxxxxxx Xxx Xxxx
Title: Vice President
Acknowledged by:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
