EXHIBIT 99.2
EXECUTION COPY
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SALE AND SERVICING AGREEMENT
among
WHOLE AUTO LOAN TRUST 2003-1,
as Issuer,
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Depositor,
and
BEAR XXXXXXX ASSET RECEIVABLES CORP.,
as Servicer.
Dated as of October 7, 2003
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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............................................8
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..............................................................................14
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........................17
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..........................................................................19
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.........22
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............................................................28
SECTION 9.3 Governing Law....................................................................................30
SECTION 9.4 Notices..........................................................................................30
SECTION 9.5 Severability of Provisions.......................................................................31
SECTION 9.6 Assignment.......................................................................................31
SECTION 9.7 Further Assurances...............................................................................31
SECTION 9.8 No Waiver; Cumulative Remedies...................................................................31
SECTION 9.9 Third-Party Beneficiaries........................................................................31
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...................................................................................32
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 October 7, 2003 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), among WHOLE AUTO LOAN TRUST 2003-1 (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.
(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 the first Collection Period following the discovery of such
breach). The Depositor shall remit the
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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 "XXXX Representations") in respect of the DCS Receivables that were
assigned by XXXX to the Depositor under the XXXX Receivables Purchase
Agreement, (ii) DCS's representation and warranties (the "ALFT IV
Representations" and, together with the XXXX Representations, 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 (iii)
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:
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(i) The original executed Receivable or, if no such original exists,
a copy thereof.
(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
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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 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 1, 2003 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
5
of such Receivables Servicer have been terminated pursuant to the 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 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, 2011. 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 any Ford Credit Receivables purchased by the Depositor pursuant to the XXXX
2002-1 Receivables Purchase Agreement, September 30, 2009, (ii) in respect of
any Ford Credit Receivables purchased by the Depositor pursuant to the
Receivables Purchase Agreement with Ford Credit, July 31, 2010, (iii) in
respect of any GMAC Receivables purchased by the Depositor pursuant to the
ALFT II Receivables Purchase Agreement, August 31, 2011 and (iii) in respect
of any DCS Receivables purchased by the Depositor pursuant to the ALFT IV
Receivables Purchase Agreement, September 30, 2011.
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.
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
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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.
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, 2004, 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 a firm 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, 2004 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 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) for
such period, including the applicable party's procedures and records relating
to such party's servicing
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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 is of the opinion 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 addition, such report shall set forth
the procedures performed in conjunction with the examination.
The report will also indicate 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 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.
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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 Accounts, pursuant to which DCS shall
deposit collections on the DCS Receivables, as more specifically described in
the DCS Servicing Agreements, (ii) the Ford Credit Deposit Accounts, pursuant
to which Ford Credit shall deposit collections on the Ford Credit Receivables,
as more specifically described in the Ford Credit Servicing Agreements and
(iii) a GMAC Deposit Account, pursuant to which GMAC shall deposit collections
on the GMAC Receivables, as more specifically described in the GMAC Servicing
Agreement. Each of the forgoing deposit accounts were established and shall
initially be maintained with the Depository Institution. Pursuant to the Data
Administration Agreement, on or prior to each Payment Date, the Data
Administrator shall instruct the 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
the 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 2003-1", 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 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 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
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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 2003-1 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 Agreements, to remit to the DCS Deposit Accounts (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 Agreements, to remit to the Ford Credit Deposit Accounts (i) all
payments by or on behalf of the 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 Agreements) 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
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Agreements, 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
Agreement, to remit to the GMAC Deposit Account (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
Agreement) received with respect to each GMAC Receivable that became an
Administrative Receivable or Warranty Receivable (each as defined in the GMAC
Servicing Agreement) on such date or during such Collection Period pursuant to
the GMAC Servicing Agreement.
(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 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.
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.
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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;
(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;
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(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/xxxxxx.
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 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.
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(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.
(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,
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(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:
(a) Organization and Good Standing. The Servicer is a 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
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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.
(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,
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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 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
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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,
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
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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
Agreements, GMAC under the GMAC Receivables Servicing Agreement, DCS under the
DCS Receivables Servicing Agreements 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 each Ford Credit Receivables Servicing Agreement)
under Section 3.8 of each Ford Credit Receivables Servicing Agreement in
return for the Deferred Repurchase Amount (as defined in each Ford Credit
Servicing Agreement).
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.
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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 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
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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.
(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.
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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.
(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
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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 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
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
26
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.
(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
27
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.
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
28
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 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
29
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 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 (212)
272-0979 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 (000) 000-0000, 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:
30
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.
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
31
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
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
32
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 2003-1,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
BEAR XXXXXXX ASSET RECEIVABLES CORP.,
as Servicer
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior 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:
--------------------------------------
Name:
Title:
Wilmington Trust Company
not in its individual capacity
but solely as Owner Trustee
By:
--------------------------------------
Name:
Title:
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. For purposes of this Schedule D, "2003 Receivable" means a
Ford Credit Receivable that was purchased by the Depositor pursuant to the
Purchase and Sale Agreement, dated as of September 1, 2003, between Ford
Credit, as seller, and the Depositor, as purchaser, and "2002 Receivable"
means a Ford Credit Receivable that was purchased by the Depositor from XXXX
2002-1 pursuant to the XXXX 2002-1 Receivables Purchase 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
D-1
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 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.
D-2
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.
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.
D-3
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.
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 2002 Receivable has an origination date on or
after May 12, 1997, and each 2003 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, for each 2002
Receivable, 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 60 days overdue as of the Cut-off Date; and as of the
Cut-off Date, for each 2003 Receivable, 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 (in each case with respect to the 2003 Receivables,
determined based on information available to the Depositor on the Cut-off
Date; provided, however, that if it is subsequently determined that a
Receivable was delinquent as of the Cut-off Date, the Depositor will be
entitled to the remedies under Section 6.2 of the Receivables Purchase
Agreement with Ford Credit).
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 2003 Receivable has had its
original maturity extended.
D-4
APPENDIX A
Definitions and Usage
AA-1
Appendix A
DEFINITIONS AND USAGE
The following rules of construction and usage shall be applicable to any
agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed hereby and in
any certificate or other document made or delivered pursuant thereto,
accounting terms not defined in this Appendix or in any such agreement,
instrument, certificate or other document, and accounting terms partly defined
in this Appendix or in any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles as in effect on the
date of such agreement or instrument. To the extent that the definitions of
accounting terms in this Appendix or in any such agreement, instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in an agreement or instrument refer to such agreement or instrument
as a whole and not to any particular provision or subdivision thereof;
references in an agreement or instrument to "Article," "Section" or another
subdivision or to an attachment are, unless the context otherwise requires, to
an article, section or subdivision of or an attachment to such agreement or
instrument; and the term "including" and its variations means "including
without limitation."
The definitions contained in this Appendix are equally applicable to both
the singular and plural forms of such terms and to the masculine as well as to
the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to below or in
any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
Definitions
"Accrued Class A Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class A Noteholders' Monthly Accrued Interest for such
Payment Date and the Class A Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class B Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class B Noteholders' Monthly Accrued Interest for such
Payment Date and the Class B Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class C Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class C Noteholders' Monthly Accrued Interest for such
Payment Date and the Class C Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class D Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class D Noteholders' Monthly Accrued Interest for such
Payment Date and the Class D Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a) of the
Indenture.
"Adjusted Principal Balance" shall mean, as of any date of determination,
(i) if the interest rate per annum set forth on the Receivable is at least
equal to the Minimum Required APR, the Principal Balance of such Receivable
and (ii) if the interest rate per annum set forth on the Receivable is less
than the Minimum Required APR, the present value of all remaining Scheduled
Payments on such Receivable discounted on a monthly basis at the Minimum
Required APR.
"Administration Agreement" shall mean the Administration Agreement, dated
as of October 7, 2003, by and among the Administrator, the Issuer and the
Indenture Trustee.
"Administrator" shall mean Bear Xxxxxxx Investment Products Inc., in its
capacity as administrator under the Administration Agreement, or any successor
Administrator thereunder.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any Person shall mean the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" shall have meanings correlative to the foregoing.
"Aggregate Servicing Fee" shall mean the aggregate of the Receivables
Servicer Servicing Fees and the Servicing Fee payable to the Servicer and the
Receivables Servicers on each Payment Date, which is equal to the product of
1/12th of 1.02% and the aggregate Principal Balance of the Receivables as of
the first day of the related Collection Period.
"XXXX 2002-1" shall mean Auto Loan Funding Trust 2002-1, a Delaware
statutory trust.
"XXXX 2002-1 Receivables" shall mean the receivables retained by XXXX
2002-1 and not sold to the Depositor.
"XXXX 2002-1 Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of October 7, 2003 between XXXX 2002-1, as seller,
and the Depositor, as purchaser.
2
"ALFT II" shall mean Auto Loan Funding Trust II, a Delaware statutory
trust.
"ALFT II Receivables" shall mean the receivables retained by ALFT II and
not sold to the Depositor.
"ALFT II Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of October 7, 2003 between ALFT II, as seller, and
the Depositor, as purchaser.
"XXXX III" shall mean Auto Loan Funding Trust III, a Delaware statutory
trust.
"XXXX III Receivables" shall mean the receivables retained by XXXX III
and not sold to the Depositor.
"XXXX III Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of October 7, 2003 between the Depositor, as
seller, and XXXX III, as purchaser.
"ALFT IV" shall mean Auto Loan Funding Trust IV, a Delaware statutory
trust.
"ALFT IV Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of October 7, 2003 between ALFT IV, as seller, and
the Depositor, as purchaser.
"Amount Financed" shall mean, with respect to a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed
Vehicle and any related costs.
"Annualized Average Monthly Net Loss Rate" shall mean, with respect to
any date of determination, the product of (x) twelve and (y) the average of
the Monthly Net Loss Rates for each of the three preceding Collection Periods.
For the purpose of this definition, the "Monthly Net Loss Rate" means, for the
last day of any Collection Period, a fraction expressed as a percentage, the
numerator of which is equal to the sum of all net losses reported by the
Receivables Servicers for that Collection Period and the denominator of which
is equal to the aggregate principal balance of the Receivables as of the first
day of that Collection Period.
"Annual Percentage Rate" or "APR" of a Receivable shall mean the annual
rate of finance charges stated in the Receivable.
"Applicable Tax State" shall mean, as of any date of determination, the
State in which the Owner Trustee maintains its Corporate Trust Office.
"Authenticating Agent" shall have the meaning specified in Section 2.14
of the Indenture or 3.11 of the Trust Agreement, as applicable.
"Authorized Officer" shall mean, (i) with respect to the Issuer, any
officer within the Corporate Trust Office of the Owner Trustee, including any
vice president, assistant vice president, secretary, assistant secretary or
any other officer of the Owner Trustee customarily performing functions
similar to those performed by any of the above designated officers and, for
3
so long as the Administration Agreement is in full force and effect, any
officer of the Administrator who is authorized to act for the Administrator in
matters relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement; and (ii) with respect to the
Indenture Trustee or the Owner Trustee, any officer within the Corporate Trust
Office of the Indenture Trustee or the Owner Trustee, as the case may be,
including any vice president, assistant vice president, secretary, assistant
secretary or any other officer of the Indenture Trustee or the Owner Trustee,
as the case may be, customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject and
shall also mean, with respect to the Owner Trustee, any officer of the
Administrator.
"Available Collections" shall mean, for any Payment Date, the sum of the
following amounts with respect to the Collection Period preceding such Payment
Date: (i) all payments collected on the Receivables; (ii) all Liquidation
Proceeds attributable to Receivables which were designated as Defaulted
Receivables in the related Collection Period in accordance with the related
Receivables Servicer's customary servicing procedures; (iii) all Recoveries;
(iv) the Purchase Amount received with respect to each Receivable that became
a Purchased Receivable during such Collection Period; (v) investment earnings,
if any, on funds on deposit in the accounts established in connection with the
Trust, to the extent allocated to the Trust and (vi) partial prepayments of
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 which causes a
reduction in the Obligor's periodic payment to an amount below the Scheduled
Payment as of the Cut-off Date; provided, however, that in calculating the
Available Collections the following will be excluded: (a) the servicing fee
payable to each Receivables Servicer from Collections in respect of the
respective Receivables serviced by it; (b) all payments and proceeds
(including Liquidation Proceeds) of any Receivables the Purchase Amount of
which has been included in the Available Collections in a prior Collection
Period; and (c) any late fees, prepayment charges or other administrative fees
or similar charges allowed by applicable law, collected or retained by the
related Receivables Servicer during the related Collection Period.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11 U.S.C.
101 et seq., as amended.
"Basic Documents" shall mean the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the Receivables Purchase
Agreements, the Indenture, the Administration Agreement, the Underwriting
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection therewith.
"Book-Entry Note" shall mean a beneficial interest in any of the Class
A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, the Class B
Notes, the Class C Notes and the Class D Notes, in each case issued in
book-entry form.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in the State of New York,
the State of Delaware or the
4
state in which the Corporate Trust Office of the Indenture Trustee are
authorized by law, regulation or executive order to be closed.
"XXXX" shall mean Capital Auto Receivables, Inc., a Delaware corporation,
and its successors.
"Certificate Distribution Account" shall mean the account established and
maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Certificateholder" or "holder of a Certificate" shall mean a Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B to the Trust Agreement filed for the Trust pursuant to Section
3810(a) of the Statutory Trust Statute.
"Certificate Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9 of the Trust Agreement and shall initially
be XX Xxxxxx Chase Bank.
"Certificate Percentage Interest" shall mean, with respect to a
Certificate, the percentage specified on such Certificate as the Certificate
Percentage Interest, which percentage represents the beneficial interest of
such Certificate in the Issuer. The aggregate Percentage Interest shall be
100%.
"Certificate Register" shall mean the certificate register maintained
pursuant to Section 3.4 of the Trust Agreement.
"Certificate Registrar" shall mean any certificate registrar acting in
accordance with Section 3.4 of the Trust Agreement and shall initially be the
Owner Trustee.
"Certificates" shall mean the certificates evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form of
Exhibit A to the Trust Agreement; provided, however, that the Owner Trust
Estate has been pledged to the Indenture Trustee to secure payment of the
Notes and that the rights of the Certificateholders to receive distributions
on the Certificates are subordinated to the rights of the Noteholders as
described in the Sale and Servicing Agreement, the Indenture and the Trust
Agreement.
"Class" shall mean any one of the classes of Notes.
"Class A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the sum of the Class A-1 Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-2 Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-3 Noteholders' Interest
Carryover Shortfall for such Payment Date and the Class A-4 Noteholders'
Interest Carryover Shortfall for such Payment Date.
"Class A Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, the sum of the Class A-1 Noteholders' Monthly Accrued
Interest for such Payment Date, the Class A-2 Noteholders' Monthly Accrued
Interest for such Payment Date, the
5
Class A-3 Noteholders' Monthly Accrued Interest for such Payment Date and the
Class A-4 Noteholders' Monthly Accrued Interest for such Payment Date.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to the greater of (a) the Outstanding Amount of
the Class A-1 Notes immediately prior to such Payment Date and (b) an amount
equal to (i) the Outstanding Amount of the Class A Notes immediately prior to
such Payment Date minus (ii) the lesser of (A) 90.20% of the Pool Balance for
such Payment Date and (B) an amount equal to (1) the Pool Balance for such
Payment Date minus (2) the Target Overcollateralization Level for such Payment
Date; provided, however, that, on the Final Scheduled Payment Date of any
Class of Class A Notes, the Class A Principal Payment Amount shall not be less
than the amount that is necessary to pay that Class of Class A Notes in full;
and provided, further, that the Class A Principal Payment Amount on any
Payment Date shall not exceed the Outstanding Amount of the Class A Notes on
that Payment Date.
"Class A-1 Final Scheduled Payment Date" shall mean the September 2004
Payment Date.
"Class A-1 Noteholder" shall mean the Person in whose name a Class A-1
Note is registered in the Note Register.
"Class A-1 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-1 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-1 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-1 Notes actually paid to the Class A-1 Notes on such preceding Payment Date,
plus interest on the amount of interest due but not paid to the Class A-1
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class A-1 Rate.
"Class A-1 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the prior
Payment Date (or, in the case of the first Payment Date, from and including
the Closing Date) to and including the day immediately prior to such Payment
Date, on the Class A-1 Notes at the Class A-1 Rate on the Outstanding Amount
of the Class A-1 Notes on the immediately preceding Payment Date (or, in the
case of the first Payment Date, the Closing Date), after giving effect to all
payments of principal to the Class A-1 Noteholders on or prior to such
preceding Payment Date. For all purposes of this Agreement and the other Basic
Documents, interest with respect to the Class A-1 Notes shall be computed on
the basis of the actual number of days in the related Interest Period and a
360-day year.
"Class A-1 Notes" shall mean the $758,000,000 aggregate initial principal
amount Class A-1 1.10% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-1 to the Indenture.
"Class A-1 Rate" shall mean 1.10% per annum.
6
"Class A-2 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the sum of the Class A-2A Noteholders' Interest
Carryover Shortfall for such Payment Date and the Class A-2B Noteholders'
Interest Carryover Shortfall for such Payment Date.
"Class A-2 Noteholders' Monthly Accrued Interest " shall mean, with
respect to any Payment Date, the sum of the Class A-2A Noteholders' Monthly
Accrued Interest for such Payment Date and the Class A-2B Noteholders' Monthly
Accrued Interest for such Payment Date.
"Class A-2 Notes" shall mean, collectively, the Class A-2A Notes and the
Class A-2B Notes.
"Class A-2A Final Scheduled Payment Date" shall mean the April 2006
Payment Date.
"Class A-2A Noteholder" shall mean the Person in whose name a Class A-2A
Note is registered in the Note Register.
"Class A-2A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-2A Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-2A Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-2A Notes actually paid to the Class A-2A Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-2A Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-2A Rate.
"Class A-2A Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-2A Notes at the Class A-2A Rate on
the Outstanding Amount of the Class A-2A Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of this Agreement and the other Basic Documents,
interest with respect to the Class A-2A Notes shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-2A Notes" shall mean the $834,000,000 aggregate initial
principal amount Class A-2A 1.40% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-2A to the
Indenture.
"Class A-2A Rate" shall mean 1.40% per annum.
"Class A-2B Final Scheduled Payment Date" shall mean the April 2006
Payment Date.
"Class A-2B Noteholder" shall mean the Person in whose name a Class A-2B
Note is registered in the Note Register.
7
"Class A-2B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-2B Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-2B Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-2B Notes actually paid to the Class A-2B Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-2B Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-2B Rate.
"Class A-2B Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-2B Notes at the Class A-2B Rate on
the Outstanding Amount of the Class A-2B Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of this Agreement and the other Basic Documents,
interest with respect to the Class A-2B Notes shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-2B Notes" shall mean the $20,000,000 aggregate initial principal
amount Class A-2B 3.69% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-2B to the Indenture.
"Class A-2B Rate" shall mean 3.69% per annum.
"Class A-3 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the sum of the Class A-3A Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-3B Noteholders'
Interest Carryover Shortfall for such Payment Date and the Class A-3C
Noteholders' Interest Carryover Shortfall for such Payment Date.
"Class A-3 Noteholders' Monthly Accrued Interest " shall mean, with
respect to any Payment Date, the sum of the Class A-3A Noteholders' Monthly
Accrued Interest for such Payment Date, the Class A-3B Noteholders' Monthly
Accrued Interest for such Payment Date and the Class A-3C Noteholders' Monthly
Accrued Interest for such Payment Date.
"Class A-3 Notes" shall mean, collectively, the Class A-3A Notes, the
Class A-3B Notes and the Class A-3C Notes.
"Class A-3A Final Scheduled Payment Date" shall mean the October 2006
Payment Date.
"Class A-3A Noteholder" shall mean the Person in whose name a Class A-3A
Note is registered in the Note Register.
"Class A-3A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-3A Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-3A Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-3A Notes actually paid to the Class A-3A Noteholders on such preceding
8
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-3A Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-3A Rate.
"Class A-3A Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-3A Notes at the Class A-3A Rate on
the Outstanding Amount of the Class A-3A Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of this Agreement and the other Basic Documents,
interest with respect to the Class A-3A Notes shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-3A Notes" shall mean $160,875,000 aggregate initial principal
amount Class A-3A 1.84% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-3A to the Indenture.
"Class A-3A Rate" shall mean 1.84% per annum.
"Class A-3B Final Scheduled Payment Date" shall mean the May 2007 Payment
Date.
"Class A-3B Noteholder" shall mean the Person in whose name a Class A-3B
Note is registered in the Note Register.
"Class A-3B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-3B Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-3B Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-3B Notes actually paid to the Class A-3B Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-3B Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-3B Rate.
"Class A-3B Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-3B Notes at the Class A-3B Rate on
the Outstanding Amount of the Class A-3B Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of this Agreement and the other Basic Documents,
interest with respect to the Class A-3B Notes shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-3B Notes" shall mean $273,250,000 aggregate initial principal
amount Class A-3B 1.99% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-3B to the Indenture.
"Class A-3B Rate" shall mean 1.99% per annum.
9
"Class A-3C Final Scheduled Payment Date" shall mean the May 2007 Payment
Date.
"Class A-3C Noteholder" shall mean the Person in whose name a Class A-3C
Note is registered in the Note Register.
"Class A-3C Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-3C Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-3C Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-3C Notes actually paid to the Class A-3C Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-3C Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-3C Rate.
"Class A-3C Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-3C Notes at the Class A-3C Rate on
the Outstanding Amount of the Class A-3C Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of this Agreement and the other Basic Documents,
interest with respect to the Class A-3C Notes shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-3C Notes" shall mean $160,875,000 aggregate initial principal
amount Class A-3C 2.15% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-3C to the Indenture.
"Class A-3C Rate" shall mean 2.15% per annum.
"Class A-4 Final Scheduled Payment Date" shall mean the March 2010
Payment Date.
"Class A-4 Noteholder" shall mean the Person in whose name a Class A-4
Note is registered in the Note Register.
"Class A-4 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-4 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-4 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-4 Notes actually paid to the Class A-4 Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class
A-4 Noteholders on such preceding Payment Date, to the extent permitted by
law, at the Class A-4 Rate.
"Class A-4 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date, on the Class A-4 Notes at the Class A-4 Rate on
the Outstanding Amount of the Class A-4 Notes on the preceding Payment Date
(after giving
10
effect to all payments of principal on such preceding Payment Date). For all
purposes of this Agreement and the other Basic Documents, interest with
respect to the Class A-4 Notes shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
"Class A-4 Notes" shall mean the $462,605,000 aggregate initial principal
amount Class A-4 2.58% Asset Backed Notes issued by the Trust under the
Indenture, substantially in the form of Exhibit A-4 to the Indenture.
"Class A-4 Rate" shall mean 2.58% per annum.
"Class B Final Scheduled Payment Date" shall mean the March 2010 Payment
Date.
"Class B Noteholder" shall mean the Person in whose name a Class B Note
is registered in the Note Register.
"Class B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
B Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class B Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
B Notes actually paid to the Class B Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class B
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class B Rate.
"Class B Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class B Notes at the Class B Rate on the Outstanding
Amount of the Class B Notes preceding Payment Date (after giving effect to all
payments of principal on such preceding Payment Date). For all purposes of
this Agreement and the other Basic Documents, interest with respect to the
Class B Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class B Notes" shall mean the $69,520,000 aggregated initial principal
amount Class B 2.24% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit B to the Indenture.
"Class B Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date) and (ii) the Outstanding Amount
of the Class B Notes immediately prior to such Payment Date minus (b) the
lesser of (i) 93.70% of the Pool Balance for such Payment Date and (ii) an
amount equal to (A) the Pool Balance for such Payment Date minus (B) the
Target Overcollateralization Level for such Payment Date; provided, however,
that, on the Class B Final Scheduled Payment Date, the Class B Principal
Payment Amount shall not be less than the amount that is necessary to pay the
Class B Notes in full; and provided, further, that the Class B Principal
Payment Amount on any Payment Date shall not exceed the Outstanding Amount of
the Class B Notes on that Payment Date.
11
"Class B Rate" shall mean 2.24% per annum.
"Class C Final Scheduled Payment Date" shall mean the March 2010 Payment
Date.
"Class C Noteholder" shall mean the Person in whose name a Class C Note
is registered in the Note Register.
"Class C Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
C Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class C Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
C Notes actually paid to the Class C Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class C
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class C Rate.
"Class C Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class C Notes at the Class C Rate on the Outstanding
Amount of the Class C Notes on the preceding Payment Date (after giving effect
to all payments of principal on such preceding Payment Date). For all purposes
of this Agreement and the other Basic Documents, interest with respect to the
Class C Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class C Notes" shall mean the $27,805,000 aggregate initial principal
amount Class C 3.13% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit C to the Indenture.
"Class C Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date), (ii) the Outstanding Amount of
the Class B Notes (after taking into account distribution of the Class B
Principal Payment Amount on such Payment Date) and (iii) the Outstanding
Amount of the Class C Notes immediately prior to such Payment Date minus (b)
the lesser of (i) 95.10% of the Pool Balance for such Payment Date and (ii) an
amount equal to (A) the Pool Balance for such Payment Date minus (B) the
Target Overcollateralization Level for such Payment Date; provided, however,
that, on the Class C Final Scheduled Payment Date, the Class C Principal
Payment Amount shall not be less than the amount that is necessary to pay the
Class C Notes in full; and provided, further, that the Class C Principal
Payment Amount on any Payment Date shall not exceed the Outstanding Amount of
the Class C Notes on that Payment Date.
"Class C Rate" shall mean 3.13% per annum.
"Class D Final Scheduled Payment Date" shall mean the March 2010 Payment
Date.
"Class D Noteholder" shall mean the Person in whose name a Class D Note
is registered in the Note Register.
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"Class D Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
D Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class D Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
D Notes actually paid to the Class D Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class D
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class D Rate.
"Class D Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class D Notes at the Class D Rate on the Outstanding
Amount of the Class D Notes on the preceding Payment Date (after giving effect
to all payments of principal on such preceding Payment Date). For all purposes
of this Agreement and the other Basic Documents, interest with respect to the
Class D Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class D Notes" shall mean $69,520,000 aggregate initial principal amount
Class D 6.00% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit D to the Indenture.
"Class D Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount (which will not be less than zero) equal to (a) 100%
of the Regular Principal Allocation for such Payment Date minus (b) an amount
equal to the sum of (i) the Class A Principal Payment Amount for such Payment
Date, (ii) the Class B Principal Payment Amount for such Payment Date and
(iii) the Class C Principal Payment Amount for such Payment Date; provided,
however, that, on the Class D Final Scheduled Payment Date, the Class D
Principal Payment Amount shall not be less than the amount that is necessary
to pay the Class D Notes in full; and provided, further, that the Class D
Principal Payable Amount on any Payment Date shall not exceed the Outstanding
Amount of the Class D Notes on that Payment Date.
"Class D Rate" shall mean 6.00% per annum.
"Clearance System" shall have the meaning specified in Section 2.2 of the
Indenture.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall mean October 7, 2003.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause of
the Indenture.
13
"Collection Account" shall mean the account or accounts established and
maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Collection Period" shall mean, with respect to the first Payment Date,
the period from and including the Cut-off Date to and including September 30,
2003 and, with respect to each subsequent Payment Date, the calendar month
preceding the calendar month in which the Payment Date occurs.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Commission" shall mean the Securities and Exchange Commission.
"Controlling Class" shall mean (i) if the Class A Notes have not been
paid in full, the Class A Notes, (ii) if the Class A Notes have been paid in
full and Class B Notes remain Outstanding, the Class B Notes, (iii) if the
Class A Notes and the Class B Notes have been paid in full and Class C Notes
remain Outstanding, the Class C Notes, and (iv) if the Class A Notes, the
Class B Notes and the Class C Notes have been paid in full, the Class D Notes.
"Corporate Trust Office" shall mean, (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
0000 Xxxxxx Xxxxxx Xxxxx, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000 or at such other address as the Owner Trustee may designate from
time to time by notice to the Certificateholders and the Depositor, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Certificateholders and
the Depositor); and (ii) with respect to the Indenture Trustee, the principal
corporate trust office of the Indenture Trustee located at 0 Xxx Xxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: ITS Structured Finance,
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Issuer, or the principal corporate
trust office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and the Issuer).
"Cut-off Date" shall mean (i) September 1, 2003 with respect to the Ford
Credit Receivables, GMAC Receivables and those DCS Receivables that were
purchased by the Depositor pursuant to the XXXX Receivables Purchase Agreement
and (ii) September 3, 2003 with respect to those DCS Receivables purchased by
the Depositor pursuant to the ALFT IV Receivables Purchase Agreement.
"Data Administration Agreement" shall mean the Data Administration
Agreement dated as of October 7, 2003 among the Servicer, the Depositor, the
Data Administrator and the Indenture Trustee.
"Data Administrator" shall mean Systems & Services Technologies, Inc., in
its capacity as data administrator under the Data Administration Agreement, or
any successor thereunder.
"DCS" shall mean Daimler Chrysler Services North America LLC, a Michigan
limited liability company, and its successors.
14
"DCS Deposit Accounts" shall mean (i) the Deposit Account as defined in
the Servicing and Administration Agreement dated as of October 26, 2001 among
XXXX, DCS and Bear Xxxxxxx Investment Products, Inc., bearing account number
160930.1 at JPMorgan Chase Bank and (ii) the Deposit Account as defined in the
Servicing and Administration Agreement dated as of September 16, 2003 among
ALFT IV, DCS and the Depositor, bearing account number 00000000.1 at JPMorgan
Chase Bank.
"DCS Servicing Agreements" shall mean, collectively, (i) the Servicing
and Administration Agreement dated as of October 26, 2001 among XXXX, DCS, as
servicer, and Bear Xxxxxxx Investment Products, Inc. and (ii) the Servicing
and Administration Agreement dated as of September 16, 2003 among ALFT IV,
DCS, as servicer, and the Depositor.
"DCS Receivables" shall mean the Receivables listed in Schedule A to the
Sale and Servicing Agreement as DCS Receivables, which Receivables were sold
by DCS to ALFT IV and XXXX and then by ALFT IV and XXXX to the Depositor.
"Dealer" shall mean a dealer who sold a Financed Vehicle and who
originated and sold the related Receivable, directly or indirectly, to DCS,
Ford Credit or GMAC.
"Default" shall mean any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable that the related
Receivable Servicer determines is unlikely to be paid in full.
"Definitive Certificates" shall have the meaning specified in Section
3.10 of the Trust Agreement.
"Definitive Notes" shall have the meaning specified in Section 2.11 of
the Indenture.
"Deposit Account Agreement" shall mean, individually, any of (i) the
Amended and Restated Deposit Account Agreement dated as of October 7, 2003 by
and among XXXX, Whole Auto Loan Trust 2002-1, XXXX 2003-1, the Servicer and
JPMorgan Chase Bank; (ii) the Amended and Restated Deposit Account Agreement
dated as of October 7, 2003 by and between XXXX 2002-1, Whole Auto Loan Trust
2002-1, XXXX 2003-1, the Servicer and JPMorgan Chase Bank; (iii) the Deposit
Account Agreement dated as of October 7, 2003 by and between XXXX 2003-1, the
Servicer and JPMorgan Chase Bank; (iv) the Deposit Account Agreement dated as
of October 7, 2003 by and between ALFT II, XXXX 2003-1, the Servicer and
JPMorgan Chase Bank and (v) the Deposit Account Agreement dated as of October
7, 2003 by and between XXXX III, XXXX 2003-1, the Servicer and JPMorgan Chase
Bank. "Deposit Account Agreements" shall mean, collectively, the agreements
described in clauses (i) through (v) above.
"Depositor" shall mean Bear Xxxxxxx Asset Backed Funding II Inc., a
Delaware corporation and its successors and permitted assigns.
15
"Depository Institution" shall mean JPMorgan Chase Bank as the depository
institution at which the DCS Deposit Accounts, the Ford Credit Deposit
Accounts and the GMAC Deposit Account are maintained.
"Determination Date" shall mean, with respect to any Collection Period,
the Business Day immediately preceding the Payment Date following such
Collection Period.
"Eligible Deposit Account" shall mean either (i) a segregated account
with an Eligible Institution or (ii) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the U.S. or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each
Rating Agency in one of its generic rating categories which signifies
investment grade.
"Eligible Institution" shall mean either (i) the corporate trust
department of the Indenture Trustee or the related Trustee, as applicable;
(ii) a depository institution organized under the laws of the U.S. or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (1) which has either (A) a long-term unsecured debt rating of
at least "AA-" by Standard & Poor's and "Aa3" by Moody's or (B) a short-term
unsecured debt rating or certificate of deposit rating of "A-1+" by Standard &
Poor's and "Prime-1" by Moody's and (2) whose deposits are insured by the
Federal Deposit Insurance Corporation or (iii) any depository institution or
trust company in respect of which the Rating Agency Condition is satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall have the meaning specified in Section 5.1 of the
Indenture.
"Event of Servicing Termination" shall mean an event specified in Section
7.1 of the Sale and Servicing Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Date" shall mean November 16, 2003.
"Executive Officer" shall mean, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation and, with respect to any partnership, any
general partner thereof.
"Final Scheduled Payment Date" shall mean, with respect to (i) the Class
A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) the Class A-2A
Notes, the Class A-2A Final Scheduled Payment Date, (iii) the Class A-2B
Notes, the Class A-2B Final Scheduled Payment Date, (iv) the Class A-3A Notes,
the Class A-3A Final Scheduled Payment Date, (v) the Class A-3B Notes, the
Class A-3B Final Scheduled Payment Date, (vi) the Class A-3C Notes, the Class
A-3C Final Scheduled Payment Date, (vii) the Class A-4 Notes, the Class A-4
Final Scheduled Payment Date, (viii) the Class B Notes, the Class B Final
Scheduled Payment Date, (ix) the
16
Class C Notes, the Class C Final Scheduled Payment Date, and (x) the Class D
Notes, the Class D Final Scheduled Payment Date.
"Financed Vehicle" shall mean a new or used automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"First Allocation of Principal" shall mean, with respect to any Payment
Date, the excess, if any, of (x) the aggregate Outstanding Amount of the Class
A Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date.
"Ford Credit" shall mean Ford Motor Credit Company, a Delaware
corporation, and its successors.
"Ford Credit Acknowledgment" shall mean the acknowledgement executed by
Ford Credit to service the Receivables purchased by the Depositor pursuant to
the XXXX 2002-1 Receivables Purchase Agreement on behalf of the Issuer.
"Ford Credit Deposit Accounts" shall mean (i) the Collection Account as
defined in the Servicing Agreement dated as of November 1, 2002 between Bear
Xxxxxxx Asset Backed Funding Inc. and Ford Credit, bearing account number
00000000.1 at JPMorgan Chase Bank and (ii) the Collection Account as defined
in the Servicing Agreement dated as of September 1, 2003 between the Depositor
and Ford Credit, bearing account number 00000000.1 at JPMorgan Chase Bank.
"Ford Credit Receivables" shall mean the Receivables listed in Schedule A
to the Sale and Servicing Agreement as the Ford Credit Receivables, which
Receivables were sold by Ford Credit to the Depositor.
"Ford Credit Servicer Report" shall mean the Monthly Servicer Reports as
defined in the Ford Credit Servicing Agreements, but based solely on the Ford
Credit Receivables.
"Ford Credit Servicing Agreements" shall mean, collectively, (i) the
Servicing Agreement dated as of November 1, 2002 between Bear Xxxxxxx Asset
Backed Funding Inc., as purchaser, and Ford Credit, as servicer and (ii) the
Servicing Agreement dated as of September 1, 2003 between the Depositor, as
purchaser, and Ford Credit, as servicer.
"Global Note" shall have the meaning specified in Section 2.2 of the
Indenture.
"GMAC" shall mean General Motors Acceptance Corporation, a Delaware
corporation, and its successors.
"GMAC Deposit Account" shall mean the Collection Account as defined in
the GMAC Servicing Agreement. Such account is account number 00000000.1 at
JPMorgan Chase Bank.
"GMAC Servicing Agreement" shall mean the Servicing Agreement dated as of
September 9, 2003 between the Depositor, as purchaser, and GMAC, as servicer.
17
"GMAC Receivables" shall mean the Receivables listed on Schedule A to the
Sale and Servicing Agreement as the GMAC Receivables.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and to xxxxx x xxxx upon
and a security interest in and right of set-off against, and to deposit, set
over and confirm pursuant to the Indenture. A Grant of the Collateral or of
any other agreement or instrument shall include all rights, powers and options
(but none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
monies payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Indenture" shall mean the Indenture, dated as of October 7, 2003, by and
between the Trust and the Indenture Trustee.
"Indenture Trustee" shall mean JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
under the Indenture, or any successor Indenture Trustee under the Indenture.
"Indenture Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Independent" shall mean, when used with respect to any specified Person,
that such Person (a) is in fact independent of the Issuer, any other obligor
on the Notes, the Seller and any Affiliate of any of the foregoing Persons,
(b) does not have any direct financial interest or any material indirect
financial interest in the Issuer, any such other obligor, the Depositor or any
Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Depositor or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" in the Indenture and that the signer
is Independent within the meaning thereof.
"Insolvency Event" shall mean, with respect to any Person, (i) the making
of a general assignment for the benefit of creditors, (ii) the filing of a
voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition
18
or answer seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation, (v) the filing by such Person of an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against such Person in any proceeding specified in (vii) below, (vi) seeking,
consent to or acquiescing in the appointment of a trustee, receiver or
liquidator of such Person or of all or any substantial part of the assets of
such Person or (vii) the failure to obtain dismissal within 60 days of the
commencement of any proceeding against such Person seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, or the entry of any order
appointing a trustee, liquidator or receiver of such Person or of such
Person's assets or any substantial portion thereof.
"Interest Period" shall mean, with respect to any Payment Date (i) with
respect to the Class A-1 Notes, from and including the Closing Date (in the
case of the first Payment Date) or from and including the most recent Payment
Date on which interest has been paid to but excluding the following Payment
Date and (ii) with respect to the Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class B Notes, Class C Notes and Class D Notes, from and including the
Closing Date (in the case of the first Payment Date) or from and including the
15th day of the calendar month preceding each Payment Date to but excluding
the 15th day of the calendar month of such Payment Date. Interest with respect
to the Class A-1 Notes will be computed on the basis of the actual number of
days in the related Interest Period. Interest with respect to the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes, the Class C Notes and the Class D Notes will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
"Investor Report" shall mean the Report prepared by the Servicer pursuant
to Section 3.8 of the Sale and Servicing Agreement containing, among other
things, the information set forth in Section 4.7 of the Sale and Servicing
Agreement.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean the Trust unless a successor replaces it and,
thereafter, shall mean the successor.
"Issuer Order" and "Issuer Request" shall mean a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Lien" shall mean a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than, in respect of a Receivable, tax liens,
mechanics' liens, and any liens which attach to the respective Receivable by
operation of law.
"Liquidated Receivable" shall mean: (i) any Receivable that, by its
terms, is in default and as to which the applicable Receivables Servicer has
determined, in accordance with its customary servicing procedures, that
eventual payment in full is unlikely or has repossessed and disposed of the
related Financed Vehicle and (ii) any Receivable with respect to which the
related Obligor has become a debtor in a bankruptcy proceeding.
"Liquidation Proceeds" shall mean with respect to any Receivable (a)
insurance proceeds received by the related Receivables Servicer and (b) monies
collected by the related Receivables
19
Servicer from whatever source, including but not limited to proceeds of
Financed Vehicles after repossession, on a Defaulted Receivable, net of any
payments required by law to be remitted to the Obligor.
"Memorandum" shall mean the Private Placement Memorandum dated September
25, 2003, relating to Class D Notes.
"Minimum Required APR" shall mean a rate per annum equal to 6.00%.
"Monthly Data File" shall mean (i) with respect to the DCS Receivables,
the monthly data tapes delivered under the DCS Servicing Agreements, (ii) with
respect to the Ford Credit Receivables, the Monthly Data Files as defined in
the Ford Credit Servicing Agreements and (iii) with respect to the GMAC
Receivables, the Monthly Data File as defined in the GMAC Servicing Agreement.
"Monthly Receivables Tape" shall mean a computer tape or disk containing
the information about the Receivables necessary to prepare the written
statements to be furnished by the Owner Trustee to the Certificateholders
pursuant to Section 3.8 of the Sale and Servicing Agreement and by the
Indenture Trustee to the Noteholders pursuant to Section 3.8 of the Sale and
Servicing Agreement.
"Monthly Remittance Condition" shall mean with respect to Ford Credit or
GMAC that each of the following is true: (a) no Event of Servicing Termination
(as defined in the applicable Receivables Servicing Agreement) has occurred
during the related Collection Period and (b) the rating of the applicable
Receivables Servicer's short-term unsecured debt is at least "P-1" by Moody's
and is at least "A-1" by Standard & Poor's.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Note Depositary Agreement" shall mean collectively (i) the Letter of
Representations, dated as of October 7, 2003 by and among the Issuer, the
Indenture Trustee, as agent and The Depository Trust Company regarding the
Offered Notes and (ii) the Letter of Representations, dated as of October 7,
2003 by and among the Issuer, the Indenture Trustee, as agent and The
Depository Trust Company regarding the Class D Notes.
"Note Depository" shall mean The Depository Trust Company or any
successor depository.
"Noteholder" or "holder of a Note" shall mean the Person in whose name a
Note is registered on the Note Register.
"Note Interest Rate" shall mean the Class A-1 Rate, the Class A-2A Rate,
the Class A-2B Rate, the Class A-3A Rate, the Class A-3B Rate, the Class A-3C
Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate or the Class D
Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
such Clearing Agency (directly as a
20
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Note Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Issuer to make payments
to and distributions from the Collection Account (including the Principal
Distribution Account), including payment of principal of or interest on the
Notes on behalf of the Issuer.
"Note Pool Factor" shall mean, with respect to each Class of Notes as of
the close of business on the last day of a Collection Period, a nine-digit
decimal figure equal to the outstanding principal balance of such Class of
Notes (after giving effect to any reductions thereof to be made on the
immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. The Note Pool Factor will be
1.00000000 as of the Closing Date; thereafter, the Note Pool Factor will
decline to reflect reductions in the outstanding principal amount of such
Class of Notes.
"Note Register" and "Note Registrar" shall have the respective meanings
specified in Section 2.5 of the Indenture.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and the
Class D Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or co-purchasers of
the Financed Vehicle or any other Person who owes payments under the
Receivable.
"Offered Notes" shall mean, collectively, the Class A Notes, the Class B
Notes, and the Class C Notes.
"Officer's Certificate" shall mean (i) with respect to the Trust, a
certificate signed by any two Authorized Officers of the Trust and (ii) with
respect to the Depositor or the Servicer, a certificate signed by the chairman
of the board, the president, any executive or senior vice president, any vice
president, the treasurer or the controller of the Depositor or the Servicer,
as applicable.
"Opinion of Counsel" shall mean a written opinion of counsel which
counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or the
Rating Agencies, as applicable.
"Optional Purchase Percentage" shall mean 10%.
"Original Pool Balance" shall mean an amount equal to the aggregate
Adjusted Principal Balance, as of the Cut-off Date, of the Receivables, which
shall be $2,780,842,620.59.
"Outstanding" shall mean with respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture, as applicable, except:
(a) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
21
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the
Indenture Trustee or any Note Paying Agent in trust for the
Noteholders of such Notes (provided, however, that if such Notes are
to be prepaid, notice of such prepayment has been duly given
pursuant to the Indenture or provision for such notice has been
made, satisfactory to the Indenture Trustee); and
(c) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee or the Note Registrar,
as applicable, is presented that any such notes are held by a bona
fide purchaser;
provided, that in determining whether the holders of Notes evidencing the
requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent, or waiver under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Depositor,
the Servicer or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee, shall be protected in relying on any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that a Responsible Officer of the Indenture Trustee knows to be so owned
shall be so disregarded; provided, however, if the Issuer, any other obligor
upon the Notes, the Depositor, the Servicer or any Affiliate of any of the
foregoing Persons owns an entire Class of Notes, such Notes shall be deemed to
be Outstanding. Notes owned by the Issuer, any other obligor upon the Notes,
the Depositor, the Servicer or any Affiliate of any of the foregoing Persons
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Depositor, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean, as of any date of determination and as
to any Notes, the aggregate principal amount of such Notes Outstanding as of
such date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as Owner Trustee under
the Trust Agreement, or any successor Owner Trustee under the Trust Agreement.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the property and rights assigned to the Trust pursuant
to Article II of the Sale and Servicing Agreement.
"Participant" shall mean a participant in or member of the Note
Depository.
"Payment Date" shall mean the fifteenth (15th) day of each calendar month
or, if such day is not a Business Day, the next succeeding Business Day.
"Percentage Interest" shall mean, with respect to a Certificate, the
individual percentage interest of such Certificate, which shall be specified
on the face thereof, in the distributions on the Certificates. The sum of the
Percentage Interests for all Certificates shall be 100%.
22
"Permitted Investments" shall mean, on any date of determination,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form with maturities not exceeding the
Business Day preceding the next Payment Date which evidence:
(a) direct non-callable obligations of, and obligations fully
guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under
the laws of the United States of America or any state thereof (or
any domestic branch of a foreign bank) and subject to supervision
and examination by federal or State banking or depository
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of the Rating
Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each
of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Indenture Trustee or the
Owner Trustee or any of their respective Affiliates is investment
manager or advisor);
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct non-callable obligation of, or fully guaranteed by, the
United States of America or any agency or instrumentality thereof
the obligations of which are backed by the full faith and credit of
the United States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (b); and
(g) any other investment with respect to which the Rating
Agency Condition is satisfied.
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"Plan" shall mean an employee benefit plan (as defined in section 3(3) of
ERISA) that is subject to Title I of ERISA, a plan (as defined in section
4975(e)(1) of the Code) and any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity or otherwise.
23
"Pool Balance" shall mean, with respect to any Payment Date, an amount
equal to the aggregate Adjusted Principal Balance of the Receivables at the
end of the related Collection Period, after giving effect to all payments of
principal received from Obligors and Purchase Amounts to be remitted for the
related Collection Period.
"Pool Factor" as of the last day of a Collection Period shall mean a
nine-digit decimal figure equal to the Pool Balance at that time divided by
the Original Pool Balance.
"Predecessor Note" shall mean, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note and, for purposes of this definition, any Note
authenticated and delivered under Section 2.6 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" shall mean with respect to a prepayment of the Notes
pursuant to Section 10.1 of the Indenture, the Payment Date specified by
Servicer or the Issuer pursuant to Section 10.1 of the Indenture.
"Prepayment Price" shall mean in the case of a Class of Notes to be
prepaid, an amount equal to the unpaid principal amount of such Class of Notes
plus accrued and unpaid interest thereon at the applicable Note Interest Rate
plus interest on any overdue interest at the applicable Note Interest Rate (to
the extent lawful) to but excluding the Prepayment Date.
"Principal Balance" shall mean, with respect to any Receivable, as of the
related date of determination, the Amount Financed minus an amount equal to,
as of the close of business on the last day of the related Collection Period,
that portion of all amounts received on or prior to such day with respect to
such Receivable and allocable to principal.
"Principal Distribution Account" shall mean the administrative
sub-account of the Collection Account established and maintained as such
pursuant to Section 4.1 of the Sale and Servicing Agreement.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Prospectus" shall have the meaning specified in the Underwriting
Agreement.
"Prospectus Supplement" shall have the meaning specified in the
Underwriting Agreement.
"Purchase Amount" shall mean, (i) with respect to a Purchased Receivable
that is a DCS Receivable, an amount equal to the principal balance of such
Receivable on the date of purchase plus accrued and unpaid interest thereon to
the end of the month of such purchase, (ii) with respect to a Purchased
Receivable that is a Ford Credit Receivable, an amount equal to the principal
balance of such Receivable on the date of purchase, plus accrued and unpaid
interest to the date of such purchase and (iii) with respect to a Purchased
Receivable that is a GMAC Receivable, an amount equal to the principal balance
of such Receivable on the date of purchase.
24
"Purchased Receivable" shall mean a Receivable purchased as of the close
of business on the last day of the respective Collection Period by the
Servicer pursuant to Section 3.6 of the Sale and Servicing Agreement or by the
Depositor, DCS, GMAC or XXXX (as applicable) pursuant to Section 2.3 of the
Sale and Servicing Agreement.
"Qualified Institutional Buyer" shall mean a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act.
"Rating Agency" shall mean each of the nationally recognized statistical
rating organizations designated by the Depositor to provide a rating on the
Notes which is then rating such Notes. If no such organization or successor is
any longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Indenture
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action, that
each of the Rating Agencies shall have notified the Servicer, the Depositor,
the Owner Trustee and the Indenture Trustee in writing that such action will
not result in a reduction or withdrawal of the then current rating of any of
the Notes.
"Receivables" shall mean the motor vehicle retail installment sales
contract and loans listed on Schedule A to the Sale and Servicing Agreement
and all proceeds thereof and payments thereunder.
"Receivable Files" shall mean the documents specified in Section 2.4 of
the Sale and Servicing Agreement.
"Receivables Purchase Agreements" shall mean, collectively, (i) the ALFT
II Receivables Purchase Agreement, (ii) the ALFT IV Receivables Purchase
Agreement, (iii) the XXXX 2002-1 Receivables Purchase Agreement, (iv) the XXXX
Receivables Purchase Agreement and (v) the Purchase and Sale Agreement, dated
as of September 1, 2003, by and between Ford Credit, as seller, and the
Depositor, as purchaser.
"Receivables Servicer" shall mean (i) DCS with respect to the DCS
Receivables, (ii) Ford Credit with respect to the Ford Credit Receivables and
(iii) GMAC with respect to the GMAC Receivables.
"Receivables Servicer Servicing Fee" shall mean, with respect to a
Collection Period and a Receivables Servicer, the fee payable to such
Receivables Servicer for services rendered during such Collection Period,
which shall equal one-twelfth of the Receivables Servicing Fee Rate multiplied
by the aggregate Principal Balance of those Receivables serviced by such
Receivables Servicer as of the first day of such Collection Period.
"Receivables Servicing Agreement" shall mean any of the DCS Servicing
Agreements, the Ford Credit Servicing Agreements or the GMAC Servicing
Agreement.
"Receivables Servicing Fee Rate" shall mean 1.00%.
25
"Record Date" shall mean, with respect to any Payment Date or Prepayment
Date and any Book-Entry Security, the close of business on the day prior to
such Payment Date or Prepayment Date or, with respect to any Definitive Note
or Definitive Certificate, the last day of the month preceding the month in
which such Payment Date or Prepayment Date occurs.
"Recoveries" shall mean, with respect to any Collection Period, all
amounts received by the Servicer with respect to any Defaulted Receivable
during any Collection Period following the Collection Period in which such
Receivable became a Defaulted Receivable, net of any fees, costs and expenses
incurred by the related Receivables Servicer and the Servicer in connection
with the collection of such Receivable and any payments required by law to be
remitted to the Obligor.
"Registered Noteholder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Registration Statement" shall mean Registration Statement No. 333-107577
filed by the Depositor with the Commission in the form in which it became
effective on September 10, 2003.
"Regular Principal Allocation" shall mean, with respect to any Payment
Date, the excess, if any, of the aggregate Outstanding Amount of the Notes as
of the day immediately preceding such Payment Date over (a) the Pool Balance
at the end of the related Collection Period minus (b) the Target
Overcollateralization Level for such Payment Date; provided that the Regular
Principal Allocation shall not exceed the aggregate Outstanding Amount of the
Notes; provided further that the Regular Principal Allocation on or after the
Final Scheduled Payment Date of any Class shall not be less than the amount
that is necessary to reduce the Outstanding Amount of such Class to zero.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Note" shall have the meaning specified in Section
2.2 of the Indenture.
"Related Agreements" shall have the meaning specified in the recitals to
the Administration Agreement.
"Representative" shall mean Bear, Xxxxxxx & Co. Inc., as representative
of the several Underwriters.
"Rule 144A Global Note" shall have the meaning specified in Section 2.2
of the Indenture.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of October 7, 2003, among the Trust, the Depositor, as
seller, and Bear Xxxxxxx Asset Receivables Corp., as servicer.
"Scheduled Payment" shall mean, for any Receivable, the scheduled monthly
payment amount indicated in such Receivable as required to be paid by the
Obligor in such Collection
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Period (without giving effect to deferments of payments pursuant to Section
3.2 of the Sale and Servicing Agreement or any rescheduling in any insolvency
or similar proceedings).
"Schedule of Receivables" shall mean the list of Receivables attached as
Schedule A to the Sale and Servicing Agreement and the Indenture (which
Schedules may be in the form of microfiche, disk or other means acceptable to
the Trustee).
"Second Allocation of Principal" shall mean, with respect to any Payment
Date, an amount equal to (i) the excess, if any, of (x) the aggregate
Outstanding Amount of the Class A Notes and the Class B Notes (as of the day
immediately preceding such Payment Date) over (y) the Pool Balance for such
Payment Date minus (ii) any amount deposited into the Principal Distribution
Amount as part of the First Allocation of Principal for such Payment Date.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities" shall mean the Notes and the Certificates, collectively.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sellers" shall mean ALFT II, ALFT IV, XXXX 2002-1, XXXX and Ford Credit,
each as a seller of a portion of the Receivables under the applicable
Receivables Purchase Agreement and each successor to thereto.
"Servicer" shall mean Bear Xxxxxxx Asset Receivables Corp. as the
servicer of the Receivables under the Sale and Servicing Agreement, and each
successor to thereto (in the same capacity) pursuant to Section 7.1 of the
Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to a Collection Period, the fee
payable to the Servicer for services rendered during such Collection Period,
which shall be equal to one-twelfth of the Servicing Fee Rate multiplied by
the aggregate Principal Balance of the Receivables as of the first day of the
Collection Period.
"Servicing Fee Rate" shall mean 0.02%.
"Simple Interest Method" shall mean the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the amount accrued from the
date of the preceding payment to the date of the current payment.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"State" shall mean any state or commonwealth of the United States of
America, or the District of Columbia.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code ss. 3801 et seq., as amended.
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"Successor Servicer" shall mean an institution appointed as successor
Servicer pursuant to Section 7.1 of the Sale and Servicing Agreement.
"Target Overcollateralization Level" shall mean, as of any Payment Date,
the amount equal to the greater of (x) 1.4% of the Pool Balance and (y)
$27,808,426.61.
"Temporary Regulation S Global Note" shall have the meaning specified in
Section 2.2 of the Indenture.
"Third Allocation of Principal" shall mean, with respect to any Payment
Date, an amount equal to (i) the excess, if any, of (x) the aggregate
Outstanding Amount of the Class A Notes, the Class B Notes and the Class C
Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date minus (ii) any amount deposited into the
Principal Distribution Account as part of the First Allocation of Principal
and the Second Allocation of Principal for such Payment Date.
"Transfer Date" shall mean the Closing Date.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean Whole Auto Loan Trust 2003-1, a Delaware statutory
trust governed by the Trust Agreement.
"Trust Accounts" shall mean the accounts created and maintained in
accordance with Section 4.1(b), (c) and (d) of the Sale and Servicing
Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement of
the Trust dated as of October 7, 2003 by and among the Depositor and the Owner
Trustee, as amended and/or restated from time to time.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, collectively, (i) the Receivables; (ii)
monies received thereunder on or after the Cut-off Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Issuer in the Financed Vehicles;
(iv) proceeds with respect to the Receivables from claims on any theft,
physical damage, credit life, credit disability, or other insurance policies
covering Financed Vehicles or Obligors; (v) the Receivable Files; (vi) the
Trust Accounts and all amounts, securities, investments, investment property
and other property deposited in or credited to any of the foregoing, all
security entitlements relating to the foregoing and all proceeds thereof;
(vii) payments and proceeds with respect to the Receivables; (viii) the rights
of the Depositor under the ALFT II Receivables Purchase Agreement, the ALFT IV
Receivables Purchase Agreement, the XXXX 2002-1 Receivables Purchase Agreement
and the XXXX Receivables Purchase Agreement; (ix) all property (including the
right to receive Liquidation Proceeds) securing a
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Receivable (other than a Receivable purchased by the Servicer or a Receivables
Servicer or repurchased by the Depositor); (x) rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cut-off Date; and (xi) all present and future
claims, demands, causes of action and choses in action in respect of any or
all of the foregoing and all payments on or under and all proceeds of every
kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion thereof, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing.
"Trustee Officer" shall mean, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture and the other Basic
Documents on behalf of the Indenture Trustee and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject
and, with respect to the Owner Trustee, any officer within the Corporate Trust
Office of the Owner Trustee with direct responsibility for the administration
of the Trust Agreement and the other Basic Documents on behalf of the Owner
Trustee.
"UCC" shall mean the Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Underwriters" shall mean the underwriters named in Schedule I to the
Underwriting Agreement.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
September 25, 2003 between the Depositor and the Representative.
"Underwritten Securities" shall mean the Class A Notes, Class B Notes and
Class C Notes.
"U.S. Person" shall have the meaning ascribed to such term in Regulation
S.
"XXXX" shall mean Whole Auto Loan Trust, a Delaware statutory trust.
"XXXX Receivables" shall mean the receivables retained by XXXX and not
sold to the Depositor.
"XXXX Receivables Purchase Agreement" shall mean the receivables purchase
agreement dated as of October 7, 2003 between XXXX, as seller, and the
Depositor, as purchaser.
"XXXX 2003-1" shall mean Whole Auto Loan Trust 2003-1, a Delaware
statutory trust.
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