EXHIBIT 10.3
AMENDED AND RESTATED
SERVICING AGREEMENT
BETWEEN
XXXXX FARGO BANK, N.A.
AS SERVICER AND CUSTODIAN
AND
BANK OF AMERICA, NATIONAL ASSOCIATION
AS PURCHASER
DATED AS OF JULY 7, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND USAGE......................................................................1
Section 1.1. Definitions.......................................................................1
ARTICLE II SERVICER AS CUSTODIAN......................................................................2
Section 2.1. Custody of Receivable Files.......................................................2
Section 2.2. Duties of Custodian...............................................................2
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND PURCHASED PROPERTY.........................4
Section 3.1. Duties of Servicer................................................................4
Section 3.2. Collection of Receivable Payments.................................................5
Section 3.3. Realization Upon Receivables......................................................6
Section 3.4. Allocations of Collections........................................................6
Section 3.5. Maintenance of Security Interests in Financed Vehicles............................6
Section 3.6. Covenants of Servicer.............................................................6
Section 3.7. Repurchase of Receivables Upon Breach by the Servicer.............................7
Section 3.8. Servicing Fee and Supplemental Servicing Fee Payable to the Servicer..............8
Section 3.9. Annual Statement as to Compliance; Notice of Event of Servicing
Termination.......................................................................8
Section 3.10. Annual Independent Certified Public Accountants' Report...........................8
Section 3.11. Servicer Expenses.................................................................9
Section 3.12. Disaster Recovery Plan............................................................9
Section 3.13. Exchange Act Filings.............................................................10
Section 3.14. Quality Control Procedures.......................................................10
Section 3.15. Accuracy of Information..........................................................10
Section 3.16. Inspection Rights................................................................10
ARTICLE IV DISTRIBUTIONS; STATEMENTS.................................................................10
Section 4.1. Establishment of Collection Account by the Purchaser.............................10
Section 4.2. Distributions; Remittance Conditions.............................................10
Section 4.3. Net Remittances to the Purchaser.................................................11
Section 4.4. Statements to Purchaser..........................................................11
ARTICLE V THE SERVICER..............................................................................12
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.1. Representations of Servicer......................................................12
Section 5.2. Indemnities of Servicer..........................................................13
Section 5.3. Merger or Consolidation of, or Assumption of the Obligations of Servicer.........14
Section 5.4. Limitation on Liability of Servicer and Others...................................14
Section 5.5. Delegation of Duties.............................................................15
Section 5.6. Xxxxx Fargo Not to Resign as Servicer............................................15
Section 5.7. Existence........................................................................15
Section 5.8. Servicer May Own Securities......................................................15
Section 5.9 Servicer May Not Sell Deficiency Balances........................................15
ARTICLE VI SERVICING TERMINATION.....................................................................16
Section 6.1. Events of Servicing Termination..................................................16
Section 6.2. Consequence of a Servicer Termination Event......................................17
Section 6.3. Agreement to Cooperate Upon Termination or Resignation of the Servicer...........17
Section 6.4. Waiver of Past Events of Servicing Termination...................................17
Section 6.5. Termination......................................................................17
ARTICLE VII MISCELLANEOUS PROVISIONS..................................................................18
Section 7.1. Amendment........................................................................18
Section 7.2. Counterparts.....................................................................18
Section 7.3. GOVERNING LAW; Submission to Jurisdiction........................................18
Section 7.4. Headings and Cross-References....................................................18
Section 7.5. Notices and Wire Instructions....................................................18
Section 7.6. Severability of Provisions.......................................................19
Section 7.7. Assignment.......................................................................19
Section 7.8. Further Assurances...............................................................19
Section 7.9. No Waiver; Cumulative Remedies...................................................19
Section 7.10. Third-Party Beneficiaries........................................................20
Section 7.11. WAIVER OF TRIAL BY JURY..........................................................20
Section 7.12. Special Covenants of the Purchaser and the Servicer..............................20
ARTICLE VIII SECURITIZATIONS AND OTHER DISPOSITIONS OF RECEIVABLES.....................................21
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TABLE OF CONTENTS
(continued)
PAGE
Section 8.1. Securitizations and Other Dispositions of Receivables............................21
Section 8.2. Designees to Act on Behalf of Purchaser..........................................23
Section 8.3. Nonpetition......................................................................23
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EXHIBITS
EXHIBIT A SCHEDULE OF RECEIVABLES
EXHIBIT B FORM OF MONTHLY SERVICING REPORT
EXHIBIT C FORM OF XXXXXXXX-XXXXX CERTIFICATE
EXHIBIT D FORM OF 10B-5 OFFICER'S CERTIFICATE
ATTACHMENT A MONTHLY FILE TAPE DATA LAYOUT
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This AMENDED AND RESTATED SERVICING AGREEMENT, (as from time to time
amended, supplemented or otherwise modified and in effect, this "Agreement"), is
made as of July 7, 2005, between Xxxxx Fargo Bank, N.A., a national banking
association ("Xxxxx Fargo"), as servicer (in such capacity, the "Servicer"), and
as custodian (in such capacity, the "Custodian") and BANK OF AMERICA, National
Association, a national banking association ("BANA"), as purchaser (together
with its successors and assigns, the "Purchaser").
1. The Servicer and the Purchaser entered into a Servicing Agreement
dated as of May 27, 2005 (the "Original Agreement");
2. The parties hereto have agreed to amend and restate the Original
Agreement pursuant hereto.
3. The Purchaser purchased a specified portfolio of receivables
consisting of automobile and light truck retail installment sale contracts and
related property from the Seller.
4. The Seller sold such specified portfolio of receivables to the
Purchaser pursuant to a Purchase and Sale Agreement.
5. The Servicer is servicing and is willing to continue to service, on
behalf of the Purchaser, the Purchaser's specified portfolio of receivables.
6. For administrative convenience, the Servicer is acting as the
custodian and is willing to continue to act as the custodian, on behalf of the
Purchaser, of the Purchaser's specified portfolio of receivables and related
property.
In consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the Parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Section 1.1 Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned to them in Appendix A to the Purchase and Sale Agreement,
dated as of May 27, 2005, between Xxxxx Fargo, as the Seller, and BANA, as the
Purchaser. All references herein to "the Agreement" or "this Agreement" are to
this Servicing Agreement as it may be amended, supplemented or modified from
time to time, the exhibits and attachments hereto and the capitalized terms used
herein which are defined in such Appendix A, and all references herein to
Articles, Sections and subsections are to Articles, Sections or subsections of
this Agreement unless otherwise specified. The rules of construction and usage
set forth in such Appendix A shall be applicable to this Agreement.
ARTICLE II
SERVICER AS CUSTODIAN
Section 2.1. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Purchaser,
upon the execution and delivery of this Agreement, hereby revocably appoints the
Custodian, and the Custodian hereby accepts such appointment, to act as the
agent of the Purchaser as custodian of the following documents or instruments,
which are hereby constructively delivered to the Purchaser (collectively, the
"Receivable Files") with respect to each Receivable:
(a) the fully executed original of the installment sale contract for
such Receivable;
(b) documents evidencing or related to any Insurance Policy;
(c) 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;
(d) where permitted by law, the original certificate of title (when
received) and otherwise such documents, if any, that Seller keeps on file in
accordance with its customary procedures indicating that the Financed Vehicle is
owned by the Obligor and subject to the interest of Seller as first lienholder
or secured party; and
(e) any and all other documents that Seller keeps on file in accordance
with its customary procedures relating to the individual Receivable, Obligor or
Financed Vehicle.
The Custodian hereby acknowledges receipt of the Receivable Files for
each Receivable listed on the Schedule of Receivables attached hereto as Exhibit
A.
Section 2.2. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold each Receivable File
described herein on behalf of the Purchaser of the related Receivable for the
use and benefit of the Purchaser and shall maintain such accurate accounts,
records and computer systems pertaining to each Receivable File described
herein. On or prior to the Closing Date, the computer files created in
connection with the Receivables will be marked to reflect that the Receivables
have been sold to the Purchaser. Each Receivable shall be identified as such on
the computer records of the Custodian to the extent the Custodian reasonably
determines to be necessary to comply with the terms and conditions of this
Agreement. In performing its duties hereunder, the Custodian agrees to act with
reasonable care, using that degree of skill and attention that the Custodian
exercises with respect to receivable files relating to comparable automobile
receivables that the Custodian holds for itself or others and that is consistent
with industry standards and consistent with such standard of care, the Custodian
may utilize the services of third parties to act as custodian of Receivable
Files under the same terms as the Servicer may delegate duties pursuant to
Section 5.5. The Custodian shall conduct, or cause to be conducted, periodic
physical inspections 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 Custodian to verify the accuracy of the Custodian's inventory
and record keeping. The Custodian shall promptly report to the Purchaser of a
Receivable any failure on its part to hold the related Receivable File as
described herein and maintain its accounts, records and computer systems as
herein provided and promptly take appropriate action to remedy any such failure.
Nothing herein will be deemed to
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require an initial review or any periodic review by the Purchaser or any
Purchaser Pledgee of the Receivables Files.
(b) Maintenance of and Access to Records. The Custodian agrees to
maintain each Receivable File at 000 Xxxx Xxxxxxxx Xxxx, Xxxxx, Xxxxxxx 00000,
or at such other office of the Custodian as shall from time to time be
identified to the Purchaser upon thirty (30) days' prior written notice. Subject
only to the Custodian's security requirements applicable to its own employees
having access to similar records held by the Custodian, the Custodian shall
permit the Purchaser or Purchaser Pledgee or any of their respective duly
authorized representatives, attorneys or auditors to inspect the related
Receivable File described herein and the related accounts, records and computer
systems maintained by the Custodian pursuant hereto at such times as the
Purchaser or Purchaser Pledgee may reasonably request. Prior to the occurrence
and continuation of a Servicer Termination Event, any such access will be at the
expense of the Purchaser. Upon written request from the Purchaser or the
Purchaser Pledgee, the Servicer will release any document in the Receivable
Files to the requesting party or its designee; provided that (i) such release of
documents will not interfere with the Servicer's ability to service the
Receivables in accordance with the terms of this Agreement and (ii) if a
Servicer Termination Event has not occurred, the Purchaser will reimburse the
Servicer for any reasonable costs and expenses incurred in effecting such
release. Any document so released will be handled by the Purchaser or the
Purchaser Pledgee, as applicable, or its designee with due care and returned to
the Servicer as soon as such Person no longer has a need for such document. If a
Servicer Termination Event has occurred and is continuing, access to the
Receivables Files and the release of any document in the Receivables Files will
be at the sole cost and expense of the Servicer.
(c) Administration; Reports. In general, the Custodian shall attend to
all non-discretionary details in connection with maintaining custody of the
Receivable Files as described herein. In addition, the Custodian shall assist
the Servicer generally in the preparation of routine reports to the Purchaser,
if any, or to regulatory bodies, to the extent necessitated by the Custodian's
custody of the Receivable Files described herein.
(d) Servicing. The Custodian is familiar with the duties of the
Servicer, the servicing procedures and the allocation and distribution
provisions (including those related to principal collections, losses and
recoveries on Receivables) set forth in this Agreement and hereby agrees to
maintain the Receivable Files in a manner consistent therewith. The Custodian
further agrees to cooperate with the Servicer in the Servicer's performance of
its duties herein and under the other Basic Documents.
(e) Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions from the Purchaser with respect to the
Receivable Files described herein upon its receipt of written instructions
signed by an authorized officer of the Purchaser or the Purchaser Pledgee.
(f) Indemnification By the Custodian. The Custodian agrees to indemnify
the Purchaser and the Purchaser Pledgee for any and all liabilities,
obligations, losses, damages, payments, costs or expenses of any kind whatsoever
that may be imposed on, incurred by or asserted against the Purchaser or the
Purchaser Pledgee as the result of any act or omission in
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any way relating to the maintenance and custody by the Custodian of the
Receivable Files described herein; provided, however, that the Custodian shall
not be liable to the Purchaser or the Purchaser Pledgee for any portion of any
such amount resulting from the willful misfeasance, bad faith, negligence or
failure to comply with applicable laws or regulations of the Purchaser, the
Purchaser Pledgee or any subsequent purchaser, assignee, transferee, pledgee or
other holder of the Receivables. This Section 2.2(f) shall survive the
termination of this Agreement.
(g) Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions. The Servicer's appointment as Custodian will become
effective as of the Cutoff Date and will continue in full force and effect until
terminated as herein provided. The appointment of the Servicer as Custodian may
be terminated by either party hereto by written notice to the other party, such
termination to take effect no sooner than sixty (60) days after the date of such
notice. Notwithstanding the foregoing, if Xxxxx Fargo resigns as Servicer in
accordance with the provisions of this Agreement or if all of the rights and
obligations of the Servicer are terminated under Section 6.2, the appointment of
the Servicer as Custodian hereunder may be terminated in the same manner as the
Servicer may be terminated under Section 6.2. As soon as practicable after any
termination under this Section 2.2, the Custodian will deliver to the Purchaser,
or the Purchaser's designee, the Receivable Files and the related accounts and
records maintained by the Custodian at such place or places as the Purchaser may
reasonably designate, at the expense of (i) the Custodian, if the Custodian
resigns, if a Servicer Termination Event has occurred and is continuing or if
the long-term unsecured senior debt rating of the Servicer is withdrawn or
reduced below "A2" by Xxxxx'x or "A" by Standard & Poor's or (ii) the Purchaser,
if the Purchaser terminates the Custodian and no Servicer Termination Event has
occurred.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND PURCHASED PROPERTY
Section 3.1. Duties of Servicer. Effective as of the Cutoff Date, the
Servicer is hereby appointed and authorized to act as agent for the Purchaser
and in such capacity shall manage, service, administer and make collections on
the Receivables with reasonable care, using that degree of skill and attention
that the Servicer exercises with respect to comparable automobile receivables
that it services for itself or others and that is consistent with prudent
industry standards. The Servicer hereby accepts such appointment and
authorization and agrees to perform the duties of Servicer with respect to the
Receivables set forth herein. The Servicer's duties shall include collection and
posting of all payments, responding to inquiries of Obligors, investigating
delinquencies, sending monthly statements to Obligors, reporting tax information
to Obligors, accounting for collections and furnishing monthly and annual
statements to the Purchaser of any Receivables with respect to distributions and
performing the other duties specified herein. Subject to the provisions of
Section 3.2 and the standard of care set forth above, the Servicer shall follow
its customary standards, policies and procedures and shall have full power and
authority, acting alone, to do any and all things in connection with such
managing, servicing, administration and collection that it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered by the Purchaser, pursuant to this Section 3.1,
to execute and deliver, on behalf of
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itself or the Purchaser of such Receivable, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and the
Financed Vehicles; provided, that notwithstanding the foregoing, the Servicer
shall not, excepted as permitted by Section 3.6, release an Obligor from payment
of any unpaid balance of any related Receivable. The Servicer is hereby
authorized to commence, in its own name or in the name of the Purchaser of such
Receivable a legal proceeding to enforce a Defaulted Receivable as contemplated
by Section 3.3, to enforce all obligations of the Seller herein or to commence
or participate in a legal proceeding (including a bankruptcy proceeding)
relating to or involving a Receivable or a Defaulted Receivable. If the Servicer
commences or participates in such a legal proceeding in its own name, the
Servicer is hereby authorized and empowered by the Purchaser pursuant to this
Section 3.1, to obtain possession of the related Financed Vehicle and
immediately and without further action on the part of the Purchaser or the
Servicer, the Purchaser of such Receivable shall thereupon automatically assign
in trust such Receivable and the security interest in the related Financed
Vehicle to the Servicer for the benefit of the Purchaser for purposes of
commencing or participating in any such proceeding as a party or claimant. Upon
such automatic assignment, the Servicer will be, and will have all the rights
and duties of, a secured party under the UCC and other applicable law with
respect to such Receivable and the related Financed Vehicle. At the Servicer's
request from time to time, the Purchaser shall provide the Servicer with
evidence of the assignment in trust for the benefit of the Purchaser, as
applicable, as may be reasonably necessary for the Servicer to take any of the
actions set forth in the following sentence. The Servicer is hereby authorized
and empowered by the Purchaser to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other documents
or instruments in connection with any such proceeding. The Purchaser shall
furnish the Servicer with any powers of attorney and other documents and take
any other steps which the Servicer may deem necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties herein. Except
to the extent required by the preceding two sentences, the authority and rights
granted to the Servicer in this Section 3.1 shall be nonexclusive and shall not
be construed to be in derogation of the retention by the Purchaser of equivalent
authority and rights.
The Servicer hereby agrees that upon its resignation and the
appointment of a successor servicer hereunder, the Servicer will terminate its
activities as Servicer hereunder in accordance with Section 6.2, and, in any
case, in a manner which the Purchaser or Purchaser Pledgee reasonably determines
will facilitate the transition of the performance of such activities to such
successor servicer, and the Servicer shall cooperate with and assist such
successor servicer.
For the avoidance of doubt, to the extent that any specific term or
provision of this Agreement conflicts with the servicing practices the Servicer
follows with respect to the automobile receivables that it services for itself
and others, the Servicer shall follow the terms and provisions of this
Agreement, and the Servicer shall be deemed to have complied with its standard
of care set forth above in this Section 3.1 notwithstanding such conflict.
Section 3.2. Collection of Receivable Payments. The Servicer will make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same become due and will follow
such collection procedures as it follows with respect to all comparable
automobile receivables that it services for itself and others in connection
therewith. Except as provided in Section 3.6(c), the Servicer is hereby
authorized to grant
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extensions, rebates, or adjustments on a Receivable for credit reasons without
the prior consent of the Purchaser. The Servicer is authorized in its discretion
to waive any late payment charge or any other fees that may be collected in the
ordinary course of servicing a Receivable.
Section 3.3. Realization Upon Receivables. The Servicer shall use
reasonable efforts, consistent with its customary practices, policies and
procedures, and the standard of care set forth in Section 3.1, to repossess or
otherwise convert the ownership of the Financed Vehicle that it has reasonably
determined should be repossessed or otherwise converted following a default
under the Receivable secured by the Financed Vehicle. The Servicer is authorized
to follow such customary practices, policies and procedures as it follows in its
servicing of comparable receivables, which practices, policies and procedures
may include selling the Financed Vehicle at public or private sale and other
actions by the Servicer in order to realize upon such a Receivable, it being
understood that the Servicer shall (i) generally repossess Financed Vehicles
within ninety (90) days after a payment on the related Receivable becomes due
and has not been paid (unless the Financed Vehicle is voluntarily surrendered)
and (ii) sell such repossessed Financed Vehicle generally within forty-five (45)
days after repossession thereof. The foregoing is subject to the provision that,
in any case in which the Financed Vehicle shall have suffered damage, the
Servicer shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds of
liquidation of the related Receivable by an amount greater than the amount of
such expenses. The Servicer shall be entitled to receive all reasonable
Liquidation Expenses with respect to each Defaulted Receivable at such time as
the Receivable becomes a Defaulted Receivable, but only out of the cash proceeds
of such Financed Vehicle or any deficiency obtained from the Obligor.
Section 3.4. Allocations of Collections. If an Obligor is obligated
under one or more Receivables and also under one or more other assets owned by
the Seller or assigned by the Seller to third parties, then any payment on any
such asset received from or on behalf of such Obligor will, if identified as
being made with respect to a particular item or asset, be applied to such item,
and otherwise will be allocated by the Servicer in accordance with its customary
standards, policies and procedures.
Section 3.5. Maintenance of Security Interests in Financed Vehicles.
The Servicer shall, in accordance with its customary servicing procedures and
the standard of care set forth in Section 3.1, and at its own expense, take such
steps as are necessary to maintain the continuous perfection of the security
interest created by each Receivable in the related Financed Vehicle at all
times. The Purchaser hereby authorizes the Servicer to re-perfect such security
interest on behalf of such Purchaser, as necessary because of the relocation of
a Financed Vehicle or for any other reason.
Section 3.6. Covenants of Servicer. As of the Cutoff Date with respect
to the Receivables, the Servicer hereby makes the following representations,
warranties and covenants. The Servicer covenants that from and after the Closing
Date:
(a) Liens in Force. The Servicer shall not release in whole or in part
any Financed Vehicle from the security interest securing the related Receivable
except in the event of payment in full by or on behalf of the Obligor thereunder
or payment in full less a deficiency amount
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which the Servicer would not attempt to collect in accordance with the standard
of care set forth in Section 3.1 or in connection with repossession, or except
as may be required by an insurer in order to receive proceeds from any Insurance
Policy covering such Financed Vehicle.
(b) No Impairment. The Servicer shall not impair in any material
respect the rights of the Purchaser in and to the Receivables or any of the
other Purchased Property; and
(c) No Modifications. The Servicer shall not (i) reduce the Annual
Percentage Rate other than as required by applicable law, (ii) reduce the Amount
Financed with respect to any Receivable other than as required by applicable law
or in accordance with its customary servicing practice and the standard of care
set forth in Section 3.1 in connection with a settlement in the event the
Receivable becomes a Defaulted Receivable, (iii) extend the term to maturity of
a Receivable beyond July 14, 2012 or such other date specified in any
Securitization Document or (iv) permit any Obligor related to a Receivable to
participate in any "payment holiday" program marketed or promoted by the
Servicer or its Affiliates that would result in a payment deferment after the
Cutoff Date.
(d) Forced Placed Insurance. After the Cutoff Date, the Servicer shall
track the compliance of each Obligor in ordinance with its customary procedures
regarding the Obligor's obligation to maintain insurance coverage on the related
Financed Vehicle. The Servicer shall notify each Obligor when they are not in
compliance. Servicer shall not expend its own funds to pay any insurance premium
or obtain or maintain any such policy and Servicer shall not "force-place"
insurance.
Section 3.7. Repurchase of Receivables Upon Breach by the Servicer.
Upon discovery by either party to this Agreement of a breach of any of the
covenants set forth in Sections 3.5 and 3.6 that materially and adversely
affects the interest of the Purchaser in any Receivable, the Party discovering
such breach shall give prompt written notice thereof to the other. As of the
last day of the Collection Period which includes the 60th day following its
discovery or receiving notice of such breach (or, at the Servicer's election,
the last day of the Collection Period which includes the 30th day), the Servicer
shall, unless it shall have cured such breach in all material respects, purchase
from the Purchaser any Receivable materially and adversely affected by such
breach and, on the related Payment Date, the Servicer shall pay the
Administrative Purchase Payment.
In addition to such repurchase obligation, the Servicer shall indemnify
the Purchaser and the Purchaser Pledgee and hold them harmless against any
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from a
breach of any of the covenants set forth in Sections 3.5 and 3.6. It is
understood and agreed that the obligation of the Servicer to purchase any
Receivable with respect to which such a breach has occurred and is continuing
and to indemnify the Purchaser and the Purchaser Pledgee as provided in this
Section 3.7 and in Section 5.2, shall, if such obligations are fulfilled,
constitute the sole remedies against the Servicer for such breach available to
the Purchaser and any Purchaser Pledgee.
Upon receipt of the Administrative Purchase Payment, the Purchaser
shall assign, without recourse, representation or warranty, to the Servicer all
of the Purchaser's right, title and interest
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in, to and under such Administrative Receivable, all monies due thereon, the
security interests in the related Financed Vehicle, proceeds from any Insurance
Policies and the interests in certain rebates of premiums and other amounts
relating to the Insurance Policies and any document relating thereto, such
assignment being an assignment outright and not for security; and the Servicer,
shall thereupon own such Receivable, and all such security and documents, free
of any further obligations to the Purchaser with respect thereto.
Section 3.8. Servicing Fee and Supplemental Servicing Fee Payable to
the Servicer.
(a) Servicing Fee. To compensate the Servicer for services rendered
under this Agreement, the Purchaser will pay the Servicer the Servicing Fee on
each Payment Date from the Cutoff Date until the earliest to occur of:
(i) resignation of the Servicer pursuant to Section 5.6; or
(ii) termination of the Servicer pursuant to Section 6.2.
(b) Supplemental Servicing Fee. In addition to the Servicing Fee, and
as additional compensation for its services rendered under this Agreement, the
Servicer will be entitled to retain any late fees, prepayment charges,
non-sufficient fund fees, extension fees and other administrative fees and
expenses or similar charges allowed by applicable law collected (from whatever
source) on the Receivables during each Collection Period (such amounts, the
"Supplemental Servicing Fee").
Section 3.9. Annual Statement as to Compliance; Notice of Event of
Servicing Termination.
(a) The Servicer will deliver to the Purchaser and any trustee relating
to a Securitization on or before March 15 of each year beginning March 15, 2006,
an Officer's Certificate, dated as of December 31 of the immediately preceding
year, stating that:
(i) a review of the activities of the Servicer during the
preceding 12-month period (or, with respect to the first such
certificate, such period as shall have elapsed from the Cutoff Date to
the date of 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 in all material respects, or, if
there has been a material 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 will deliver to the Purchaser and any trustee relating
to a Securitization promptly (but in no event later than five Business Days)
after having obtained knowledge thereof, notice of any event which, with the
giving of notice or lapse of time, or both, would become a Servicer Termination
Event.
Section 3.10. Annual Independent Certified Public Accountants' Report.
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(a) The Servicer shall, at its expense, cause a firm of Independent
Accountants on or before March 15 of each year, beginning March 15, 2006, with
respect to the twelve months ended on the immediately preceding December 31 (or,
with respect to the first such report, such period as shall have elapsed from
the Cutoff Date to the date of such certificate), to deliver to the Purchaser
and any trustee relating to a Securitization a report (the "Accountants'
Report") addressed and delivered to the board of directors of the Servicer, to
the effect that such firm has examined the Servicer's assertion that the
Servicer has complied with its Minimum Servicing Standards (as defined below)
and that such examination: (i) was conducted in accordance with the Attestation
Protocol (as defined below) and (ii) included examining, on a test basis,
evidence regarding the Servicer's compliance with its Minimum Servicing
Standards. The Accountants' Report shall include an opinion that the Servicer's
assertion with respect to compliance with its Minimum Servicing Standards is
fairly stated in all material respects or shall report the exceptions that do
not permit such opinion The Accountants' Report required by this Section 3.10(a)
may be replaced at the election of the Servicer by any similar report or
certification using standards comparable to Minimum Servicing Standards or the
Attestation Protocol that are now or in the future in use by servicers of retail
installment sale contracts or direct purchase money loans and that otherwise
comply with any rule, regulation, "no action" letter or similar guidance
promulgated by the Securities and Exchange Commission, including Regulation AB
of the Commission.
(b) "Attestation Protocol" shall mean the procedures, standards,
guidance, explanatory materials, and exhibits with respect to the conduct of an
attestation program that are set forth in the preface, introduction and exhibits
to The Uniform Single Attestation Program for Mortgage Bankers effective for
fiscal years ended on or after December 15, 1995 or in any successor program, to
the extent such procedure, standards, guidance, explanatory materials and
exhibits are applicable to the servicing obligations set forth in this
Agreement.
(c) "Minimum Servicing Standards" shall mean the servicing standards
identified as "Minimum Servicing Standards" in The Uniform Single Attestation
Program for Mortgage Bankers effective for fiscal years ended on or after
December 15, 1995 or in any successor program, to the extent such standards are
applicable to the servicing obligations set forth in this Agreement.
(d) "Independent Accountants" shall mean a firm of accountants that is
independent of the Servicer, as defined and interpreted under the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
Section 3.11. Servicer Expenses. Subject to any limitations on the
Servicer's liability herein, the Servicer will be required to pay all expenses
incurred by it in connection with its activities hereunder, including fees,
expenses and disbursements of any subcontractors, Independent Accountants, taxes
imposed on the Servicer and expenses incurred in connection with distributions
and reports to the Purchaser and the Purchaser Pledgee.
Section 3.12. Disaster Recovery Plan. The Servicer will maintain and
comply with a written plan for resumption of business in the event a disaster
disrupts or impairs its business or operations.
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Section 3.13. Exchange Act Filings. The Servicer shall cooperate with
any reasonable request made by the Purchaser or any Purchaser Pledgee in
connection with any periodic reports required to be filed under the provisions
of the Exchange Act, and the rules and regulations of the Commission thereunder,
including Regulation AB and including providing an Officer's Certificate
substantially in the Form of Exhibit C hereto (or such other form as may by
required by applicable law) in connection with any Xxxxxxxx-Xxxxx Certification
required to be made by the Purchaser or any Purchaser Pledgee to the Commission.
Section 3.14. Quality Control Procedures. The Servicer shall have an
internal quality control program that verifies, on a regular basis, the
existence and accuracy of the Receivable Files, the quality of the servicing
activities of the Servicer and the Servicer's compliance with its obligations
under this Agreement.
Section 3.15. Accuracy of Information. All information furnished by the
Servicer to the Purchaser or any Purchaser Pledgee (including the Monthly
Servicer Reports and the Monthly Data File) for purposes of or in connection
with this Agreement and the transactions contemplated hereby will be true,
accurate and complete in all material respects, on and as of the date such
information was furnished (except to the extent that such furnished information
relates solely to an earlier date, in which case such information is true and
accurate in all material respects on and as of such earlier date).
Section 3.16. Inspection Rights. The Servicer shall permit the
Purchaser, the Purchaser Pledgee and their respective agents, at any time upon
reasonable request and notice during normal business hours, to inspect, audit
and make copies of any abstracts from the Servicer's records (if any) regarding
any Receivable.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS
Section 4.1. Establishment of Collection Account by the Purchaser. The
Purchaser will, prior to the Closing Date, establish and maintain an account in
the name of Purchaser at a bank in the United States of America (such account,
together with any replacement account, the "Collection Account"). On the Closing
Date and from time to time thereafter, the Purchaser shall inform the Servicer
in writing of the account number and related wiring information for the
Collection Account. The Servicer will deposit into the Collection Account all
remittances to the Purchaser, as required by Section 4.2, by wire transfer in
immediately available funds. All monies on deposit in the Collection Account
will be property of the Purchaser. Pending deposit into the Collection Account
and so long as the Monthly Remittance Condition is met, any monies collected by
the Servicer with respect to the Receivables may be used by the Servicer at its
own risk and for its own benefit and are not required to be segregated from its
own funds.
Section 4.2. Distributions; Remittance Conditions.
(a) Subject to Section 4.3, the Servicer will make remittances to the
Purchaser by depositing Available Collections and Available Collections Interest
for the related Collection
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Period in the Collection Account on the Business Day immediately preceding the
related Payment Date for any Collection Period, if:
(i) Xxxxx Fargo is the Servicer;
(ii) the rating of Xxxxx Fargo's short-term unsecured debt is at
least P-1 by Xxxxx'x and is at least A-1 by Standard & Poor's; and
(iii) no Servicer Termination Event has occurred (each of clauses
(i), (ii) and (iii), a "Monthly Remittance Condition").
(b) If the Servicer no longer satisfies each Monthly Remittance
Condition, then the Servicer shall within two Business Days of its failure to
satisfy the Monthly Remittance Conditions deliver all Available Collections in
its possession to the Collection Account. Thereafter, the Servicer shall remit
all Available Collections to the Collection Account within two Business Days of
the receipt thereof.
To the extent the Servicer again satisfies each Monthly Remittance
Condition it will again make remittances to the Purchaser in accordance with
Section 4.2(a).
(c) On or before the Reporting Date in any month with respect to which
the Servicer is required to make remittances in the manner provided in Section
4.2(b), the Servicer will prepare and provide in electronic form to the
Purchaser and any trustee relating to a Securitization as part of the Monthly
Servicing Report, a report reconciling its daily remittances with Available
Collections for such Collection Period and the other monthly data for such
Collection Period.
(d) On the Business Day immediately preceding each Payment Date, the
Servicer will also remit to the Collection Account an amount equal to the
aggregate Administrative Purchase Payments, if any, with respect to
Administrative Receivables for the related Collection Period pursuant to Section
3.7 hereof.
(e) The Servicer may withdraw (or cause to be withdrawn) funds from the
Collection Account to withdraw any funds deposited in the Collection Account
that were not required to be deposited therein (such as Supplemental Servicing
Fees) or were deposited therein in error.
Section 4.3. Net Remittances to the Purchaser. For so long as each
Monthly Remittance Condition is satisfied, the Servicer will make the monthly
remittances required under Section 4.2(a) net of the Servicing Fee and
Supplemental Servicing Fee and any unpaid Servicing Fee and Supplemental
Servicing Fee owed to the Servicer; provided, however, that such amounts will be
listed separately on the Monthly Servicer Report as if such amounts were
distributed to the Servicer separately.
Section 4.4. Statements to Purchaser. On or before each Reporting Date,
commencing on the Reporting Date on July 10, 2005, the Servicer will deliver in
electronic form to (a) the Purchaser and any indenture trustee relating to a
Securitization with respect to all of the Receivables on an aggregate basis a
monthly servicer report substantially in the form attached hereto as Exhibit B
(each, a "Monthly Servicer Report") and (b) the Purchaser and any indenture
11
trustee relating to a Securitization a monthly data file (setting forth
account-level data identified by account number) in a form substantially similar
to Attachment A hereto, with such changes to the information provided in
Attachment A hereto as will be mutually agreed to by the Servicer and the
Purchaser (the "Monthly Data File").
ARTICLE V
THE SERVICER
Section 5.1. Representations of Servicer. The Servicer makes the
following representations as of the Cutoff Date and as of the Closing Date,
except as otherwise noted, which shall survive the sale, transfer and assignment
of the Receivables to the Purchaser and any subsequent pledge thereof to any
Purchaser Pledgee:
(a) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a national banking association in good
standing under the laws of the United States of America, with power and
authority to own its properties and to conduct its business as such properties
are presently owned and such business is presently conducted, and has had at all
relevant times the power, authority and legal right to service the Receivables
and the other properties and rights included in the Purchased Property.
(b) Due Qualification. The Servicer is duly qualified to do business
and in good standing, and has obtained all necessary licenses and approvals, in
all jurisdictions in which the ownership or lease of property or the conduct of
its business (including the servicing of the Receivables) requires or shall
require such qualification.
(c) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out the terms of this Agreement;
and the Servicer's execution, delivery and performance of this Agreement has
been duly authorized by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the Servicer
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, or other similar laws
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 at law.
(e) No Consent Required. No approval, authorization, consent, license
or other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement shall not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of the Servicer, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Servicer is
a party or by
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which it is bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than the Basic Documents or
violate any law, 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 any of its
properties that would materially and adversely affect the performance by the
Servicer of its obligations under, or the validity and enforceability of, this
Agreement.
(g) No Proceedings. As of the Closing Date, there are no proceedings or
investigations pending, or, to the Servicer's knowledge, threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of the Basic Documents, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, (C)
alleging that one or more of the Receivables, or the servicing thereof, failed
to comply with applicable law or (D) 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.
(h) Servicing Fee. The Servicing Fee, together with any Supplemental
Servicing Fees, represents reasonable compensation for the Servicer for
performing its obligations with respect to the Receivables under this Agreement.
The entire Servicing Fee, together with any Supplemental Servicing Fees, will be
treated by the Servicer, for accounting and tax purposes, as compensation for
its servicing activities hereunder.
(i) No Adverse Change. There has been no material adverse change in the
business, operations, financial condition or assets of the Servicer since the
date of the Servicer's most recent publicly available financial statements.
Section 5.2. Indemnities of Servicer. The Servicer shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Servicer. Such obligations shall
include the following:
(a) The Servicer shall defend, indemnify and hold harmless the Servicer
Indemnified Parties from and against any and all costs, expenses, losses,
damages, claims and liabilities arising out of or resulting from the use,
ownership or operation by the Servicer or any Affiliate thereof of any Financed
Vehicle;
(b) The Servicer shall indemnify, defend and hold harmless the Servicer
Indemnified Parties from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated in this
Agreement, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but not including any federal or
other income taxes arising out of distributions hereunder) and costs and
expenses in defending against the same;
(c) The Servicer shall indemnify, defend and hold harmless the Servicer
Indemnified Parties 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
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upon the Purchaser through the negligence, willful misfeasance or bad faith of
the Servicer in the performance of its duties under this Agreement or by reason
of reckless disregard of its obligations and duties under this Agreement, or by
the failure of the Receivables to have been serviced in compliance with
applicable law;
(d) The Servicer shall indemnify, defend, and hold harmless the
Servicer Indemnified Parties from and against any and all costs, expense,
losses, claims, damages, and liabilities arising out of any breach in respect of
any representation or warranty of the Servicer in this Agreement, or in any
Schedule, Exhibit, written statement or certificate furnished by Servicer
pursuant to this Agreement; provided, however, that the Servicer shall not be so
required to indemnify the Servicer Indemnified Parties or otherwise be liable to
the Servicer Indemnified Parties hereunder for any losses (i) resulting from the
performance of the Receivables in connection with the exercise of remedies
following the occurrence of servicing termination (except to the extent any such
losses are attributable to any breach by Servicer of any representation,
warranty or covenant made by it in relation to any such Receivable), or (ii)
arising from such Person's willful misfeasance, bad faith or negligence (except
for errors in judgment).
Indemnification under this Section 5.2 shall include reasonable fees
and expenses of external counsel and expenses of litigation. If the Servicer has
made any indemnity payments pursuant to this Section 5.2 and the recipient
thereafter collects any of such amounts from others, the recipient shall
promptly repay such amounts collected to the Servicer, without interest.
Section 5.3. Merger or Consolidation of, or Assumption of the
Obligations of Servicer. Any corporation or other entity (a) into which the
Servicer may be merged or consolidated, (b) resulting from any merger,
conversion or consolidation to which the Servicer shall be a party, (c)
succeeding to the business of the Servicer, or (d) more than 50% of the voting
stock (or, if not a corporation, other voting interests) of which is owned
directly or indirectly by Xxxxx Fargo & Company and which is otherwise servicing
the Servicer's receivables, which corporation in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Servicer
under this Agreement, shall 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, anything in this Agreement to the
contrary notwithstanding. The Servicer shall provide notice of any merger,
consolidation or succession pursuant to this Section 5.3 to the Purchaser.
Section 5.4. 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
Purchaser, except as specifically provided in 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, bad faith or negligence
(except errors in judgment) in the performance of duties or by reason of
reckless disregard of obligations and duties herein. The Servicer and any
director, officer or employee or agent of the Servicer may reasonably rely in
good faith on the
14
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting 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 is
not incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, at the Purchaser's request the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of the
Basic Documents and the rights and duties of the Parties to the Basic Documents
and the interests of the Purchaser in the Basic Documents. In such event, the
legal expenses and costs for such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Purchaser and the Servicer shall
be entitled to be reimbursed therefor, and the Purchaser shall defend, indemnify
and hold harmless the Servicer from and against any and all costs, expenses,
losses, damages, claims and liabilities arising out of or resulting therefrom.
Section 5.5. Delegation of Duties. So long as Xxxxx Fargo acts as
Servicer, the Servicer may, at any time without notice to or consent of the
Purchaser, delegate any duties herein to any corporation or other Person more
than 50% of the voting stock (or, if not a corporation, other voting interests)
of which is owned, directly or indirectly, by Xxxxx Fargo & Company. The
Servicer may at any time perform specific duties as Servicer through
sub-contractors who are in the business of servicing automobile receivables. No
such delegation or sub-contracting shall relieve the Servicer of its
responsibility with respect to such duties.
Section 5.6. Xxxxx Fargo Not to Resign as Servicer. Subject to the
provisions of Section 5.3, the Servicer shall not resign from the obligations
and duties imposed on it by this Agreement as Servicer except upon determination
that the performance of its duties herein or therein, as the case may be, is no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Purchaser. No such resignation shall become effective
until the Purchaser or a successor servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 6.3.
Section 5.7. Existence. Subject to the provisions of Section 5.3,
during the term of this Agreement, Xxxxx Fargo will keep in full force and
effect its existence, rights and franchises as a national banking association in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business (including the servicing of Receivables as required by this
Agreement) shall require such qualifications.
Section 5.8. Servicer May Own Securities. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner of pledgee of any securities issued in connection with any
Securitization with the same rights as it would have if it were not the Servicer
or an Affiliate thereof, except as expressly provided in the transaction
documents related to the issuance of such securities.
Section 5.9. Servicer May Not Sell Deficiency Balances. Notwithstanding
anything herein to the contrary, the Servicer shall not sell on behalf of the
Purchaser or any assignee of the Purchaser any deficiency balance relating to a
Defaulted Receivable.
15
Section 5.10. Clean-up Call. The Servicer shall have the right at its
option (the "Optional Purchase") to purchase the Trust Estate from the Issuer on
any Payment Date if, either before or after giving effect to any payment of
principal required to be made on such Payment Date, the aggregate Pool Balance
is less than or equal to 10% of the initial Pool Balance. The purchase price for
the Trust Estate shall equal the Redemption Price (the "Optional Purchase
Price"), which amount shall be deposited by the Servicer into the Collection
Account on the Redemption Date. For purposes of this Section 5.10, capitalized
terms used in this Section 5.10 are defined in Appendix A to the Sale Agreement,
dated as of the date hereof, between Bank of America Securities Auto Trust
2005-WF1 and BAS Securitization LLC, which also contains rules as to usage that
are applicable herein.
ARTICLE VI
SERVICING TERMINATION
Section 6.1. Events of Servicing Termination. The Purchaser may
terminate all of the rights and obligations of the Servicer under this Agreement
if any one or more of the following events (each a "Servicer Termination Event")
occur and are continuing:
(a) any failure by the Servicer to deliver to the Purchaser (i) any
required payment disclosed (or required to be disclosed) on a Monthly Servicer
Report, which failure continues unremedied for a period of two Business Days or
(ii) any other amount, when the same becomes due and payable, which failure
continues for five Business Days after (x) notice thereof is received by the
Servicer or (y) discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Servicer to duly observe or perform in
any material respect any other covenants or agreements of the Servicer set forth
herein, or any breach of any representation or warranty by the Servicer herein,
which failure or breach (i) materially and adversely affects the rights of the
Purchaser and (ii) continues unremedied for a period of sixty (60) days after
(x) the date on which written notice of such failure, shall have been given to
the Servicer or (y) discovery of such failure by an officer of the Servicer;
(c) the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator for the Servicer, in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of their respective affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of sixty (60) consecutive days;
(d) the consent by the Servicer to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings of or relating to Xxxxx Fargo &
Company of or relating to substantially all of their respective property; or the
Servicer or Xxxxx Fargo & Company 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
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(e) the long-term unsecured senior debt rating of the Servicer is
withdrawn or reduced below "A2" by Xxxxx'x or "A" by Standard & Poor's.
Section 6.2. Consequence of a Servicer Termination Event. If a Servicer
Termination Event shall occur and be continuing the Purchaser, by notice then
given in writing to the Servicer, may terminate all of the rights and
obligations of the Servicer herein with respect to the Receivables. In the event
the Servicer is removed or resigns as Servicer with respect to servicing the
Receivables, the Purchaser shall appoint a successor servicer (which, for the
avoidance of doubt, may be BANA or one of its affiliates). Upon the Servicer's
receipt of notice of termination, such Servicer will continue to perform its
functions as Servicer under this Agreement only until the date specified in such
termination notice or, if no such date is specified in such termination notice,
until a successor servicer shall have been appointed. The Purchaser is hereby
authorized and empowered to execute and deliver, on behalf of the 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.
Section 6.3. Agreement to Cooperate Upon Termination or Resignation of
the Servicer. Upon termination under Section 6.2 or resignation under Section
5.6, the Servicer will cooperate at its own expense with the Purchaser or
Purchaser's designee in effecting the termination of the responsibilities and
rights of the Servicer under this Agreement, including, as soon as practicable,
the transfer to the Purchaser or the Purchaser's designee for administration of
all cash amounts that are at the time held by the Servicer for deposit or are
thereafter received with respect to a Receivable and the delivery of the
Receivable Files and the related accounts and records maintained by the
Servicer. The Servicer shall be entitled to receive from the Purchaser and the
successor servicer any amounts that are then payable to the Servicer under this
Agreement. In no event, however, will the Servicer be obligated to license its
proprietary servicing software or other applications to any successor servicer
or any other third party. The Servicer will assist Purchaser and any successor
servicer and provide reasonable cooperation to Purchaser and such successor
servicer in curing all documentation exceptions and deficiencies with respect to
the Receivable File, including obtaining missing title certificates and
correcting data errors caused by or resulting from the servicing of the
Receivables by Servicer.
Section 6.4. Waiver of Past Events of Servicing Termination. The
Purchaser may waive any Servicer Termination Event hereunder and its
consequences. Upon any such waiver of a past Servicer Termination Event, such
Servicer Termination Event will cease to exist, and will be deemed to have been
remedied for every purpose of this Agreement. No such waiver will extend to any
subsequent or other event or impair any right consequent thereon.
Section 6.5. Termination. This Agreement will terminate on the earlier
of (a) the Payment Date in the month following the final payment or liquidation
of all the Receivables; and (b) the Payment Date immediately succeeding the
Termination Date.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Amendment. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Servicer and the
Purchaser.
Section 7.2. Counterparts. 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 will be
deemed to be an original, and all of which counterparts will constitute but one
and the same instrument.
Section 7.3. GOVERNING LAW; Submission to Jurisdiction.
(a) THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER WILL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(b) In connection with any suit, claim, action or proceeding arising
out of or relating to this Agreement and the transactions contemplated hereby,
(i) each of the parties hereto hereby submits to the nonexclusive jurisdiction
of any court of the State of New York or any U.S. federal court located in the
Borough of Manhattan in the State of New York and (ii) each of the parties
hereto agrees to, and irrevocably waives any objection based on inconvenient
forum or venue not to, appear in such state or U.S. federal court located in the
Borough of Manhattan.
Section 7.4. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and will not affect the meaning
or interpretation of any provision of this Agreement.
Section 7.5. Notices and Wire Instructions. All communications and
notices pursuant hereto to either Party must be in writing or by fax and
addressed or delivered to it at its address as shown below or at such other
address as may be designated by it by notice to the other Party and, if mailed
or sent by fax, will be deemed given upon receipt at the address or fax number
for each Party set forth below, or at such other address or fax number provided
by a party in writing to the other party hereto from time to time:
To Servicer: Xxxxx Fargo Bank, N.A.
0000 Xxxxx Xxxxxx
MAC UI851-034
Xxxxx, XX 00000
Attention: Xxxxxxx Xxx
To Purchaser: Bank of America, National Association
Principal Finance Group
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
18
With a copy to: Bank of America, National Association
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Mail Stop 00-00-00-00
Attn: Legal Department- PFG Counsel
Xxxxx Fargo wire instructions:
Bank: Xxxxx Fargo Bank, N.A.
ABA: 000000000
Acct. Number: 0532650720
Acct. Name: Pool 11
Attention: Xxxxx Xxxxxx
Section 7.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement will be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms will be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and will in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.7. Assignment.
(a) Notwithstanding anything to the contrary contained herein, except
as provided in Sections 5.3, 5.5 and 5.6 and related provisions, this Agreement
may not be assigned by the Servicer without the prior written consent of the
Purchaser.
(b) The Servicer hereby acknowledges and consents to any sale,
transfer, mortgage, pledge, assignment or grant of a security interest by the
Purchaser of all or a portion of its right, title and interest in, to and under
the Receivables or any or all of the Purchaser's rights and obligations
hereunder to any other Person pursuant to an Assignment, Assumption and
Recognition Agreement or otherwise. At the request of Purchaser, the Servicer
shall acknowledge in writing any such sale, transfer, mortgage, pledge,
assignment or grant.
Section 7.8. Further Assurances. The Servicer agrees 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 Purchaser more fully to
effect the purposes of this Agreement, including the execution of any financing
statements or continuation statements relating to the Receivables for filing
under the provisions of the UCC of any applicable jurisdiction.
Section 7.9. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser any right, remedy, power or
privilege hereunder, will operate as a waiver thereof; nor will 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.
19
Section 7.10. Third-Party Beneficiaries. Each of the Servicer
Indemnified Parties and each Purchaser Pledgee is an intended beneficiary of
this Agreement and each of them shall have the right to enforce all provisions
of this Agreement as if they were a party hereto. Except as otherwise
specifically provided herein, the parties hereto hereby manifest their intent
that no other third party shall be deemed a third party beneficiary of this
Agreement.
Section 7.11. WAIVER OF TRIAL BY JURY. THE SERVICER AND PURCHASER EACH
HEREBY WAIVES (TO EXTENT THAT IT MAY LAWFULLY DO SO) ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH
TRIAL WITHOUT A JURY.
Section 7.12. Special Covenants of the Purchaser and the Servicer.
(a) Non-Solicitation Covenants.
(i) Non-Solicitation Covenant. The Purchaser agrees (and the
Purchaser Pledgee, by accepting the grant of a security interest in
the Receivables and other Purchased Property, is deemed to agree) that
it will not, without the prior written consent of Xxxxx Fargo, use the
names, addresses or social security numbers of the Obligors for
informational purposes, cross-selling purposes, solicitation purposes
or any other similar purpose unless such Person obtained such
information regarding the Obligors from some source other than the
Seller or Servicer.
(ii) Automobile Non-Solicitation Covenant. The Purchaser agrees
(and the Purchaser Pledgee, by accepting the grant of a security
interest in the Receivables and other Purchased Property, is deemed to
agree) that it will not, without the prior written consent of Xxxxx
Fargo, use the names, addresses or social security numbers of the
Obligors for informational purposes, cross-selling purposes,
solicitation purposes or any other similar purpose, in each case
relating to the purchase, sale or financing of new or used automobiles
or light trucks unless such Person obtained such information regarding
the Obligors from some source other than the Seller or Servicer.
(b) Confidentiality/Customer Information; Privacy. The Servicer shall
keep confidential and shall not divulge to any party, without BANA's prior
written consent, the price paid by BANA for the Purchased Property, except to
the extent that it is reasonable and necessary for the Servicer to do so in
working with legal counsel, auditors, taxing authorities or other governmental
agencies. Each party agrees that it shall comply with all applicable laws and
regulations regarding the privacy or security of Customer Information and shall
maintain appropriate administrative, technical and physical safeguards to
protect the security, confidentiality and integrity of Customer Information,
including maintaining security measures designed to meet the objectives of the
Interagency Guidelines Establishing Standards for Safeguarding Customer
Information, 66 Fed. Reg. 8616 (the "Interagency Guidelines"). The Servicer
shall promptly make available to the Purchaser's regulators information
regarding such security measures as requested by such regulators. For purposes
of this Section, the term
20
"Customer Information" shall have the meaning assigned to it in the Interagency
Guidelines. Each party further agrees that any Customer Information transmitted
electronically by either party must be encrypted.
(c) Survival. The non-solicitation and non-disclosure covenants and
agreements of the Purchaser as set forth in Sections 7.12(a) and (b) will
survive the execution of this Agreement; provided, however, if a Servicer
Termination Event occurs but has not been waived by the Purchaser, when the
Servicer transfers servicing to the Purchaser or any successor servicer all
restrictions contained in Section 7.12(a)(i) will terminate. Xxxxx Fargo and the
Purchaser agree that any and all subsequent purchasers, holders or assignees of
the Receivables (including any servicer, custodian or other agent or contractor
engaged by the Purchaser or any such other Person with respect to the
Receivables) will also be subject to the covenants contained in Sections 7.12(a)
and (b), except covenants contained in Section 7.12(a)(i) if the Servicer
transfers the servicing to the Purchaser or any successor servicer as set forth
in the preceding sentence. It is understood that the breach of the obligations
as provided in Sections 7.12(a) and (b) would result in irreparable harm to the
Servicer and Affiliates thereof, for which money damages shall not be sufficient
and that each of the Servicer and Affiliates thereof, shall be entitled to
equitable relief, including injunction and specific performance.
ARTICLE VIII
SECURITIZATIONS AND OTHER DISPOSITIONS OF RECEIVABLES
Section 8.1. Securitizations and Other Dispositions of Receivables.
(a) The Servicer acknowledges that the Purchaser may, in the future,
from time to time sell or enter into financing or other arrangements with
respect to some or all of the Receivables in the form of one or more
Securitizations or other transactions (subject to the Reconstitution
Conditions), and the Servicer agrees to take such actions to assist the
Purchaser in connection therewith as the Purchaser may reasonably request,
including:
(i) making representations and warranties on the closing date of any
such transaction (and providing an Officer's Certificate of the Servicer to that
effect) that the Servicer has complied with all covenants and obligations
hereunder and that the representations and warranties with respect to the
Servicer as of the Closing Date are true and correct as of the closing date of
any such transaction,
(ii) cooperating fully with the Purchaser with respect to the
preparation (including, but not limited to, the endorsement, delivery,
assignment and execution) of the Securitization Documents and other related
documents, and with respect to servicing requirements (including amendments to
this Agreement) requested by the rating agencies and credit enhancers and that
are consistent with rating agency or credit enhancer requirements (as
applicable) for securitization transactions in which "AAA" rated asset-backed
securities are issued,
(iii) providing the Purchaser with narrative statements and statistical
or other information reasonably requested by the Purchaser which may be used in
any Securitization Document, including historical loss and delinquency data and
static pool data, and indemnifying the
21
Purchaser and its affiliates for material misstatements or omissions contained
in such information or in this Agreement,
(iv) providing (at the Purchaser's expense) an agreed upon procedures
letter by an independent accounting firm acceptable to the Purchaser and such
other verifications reasonably requested by the Purchaser of information
provided by the Servicer,
(v) providing reasonable access to facilities, employees and
information for rating agencies, credit enhancers, prospective whole loan
purchasers, accountants or attorneys to those representatives of the Servicer
with responsibility, knowledge or experience with respect to the Receivables for
the purpose of answering questions in relation thereto,
(vi) delivering (at the Servicer's expense, except to the extent set
forth in this subclause (vi) clause (c) below) opinions of counsel dated as of
the closing date of any such transaction requested by a rating agency or credit
enhancer or reasonably requested by the Purchaser, including an opinion that
this Agreement is enforceable against the Servicer under New York law, an
opinion that the Purchaser has a first priority perfected security interest in
the Receivables (which opinion shall be at the expense of the Purchaser), an
opinion that the conveyance of the Purchased Property by the Seller pursuant to
the Purchase and Sale Agreement constitutes a "true sale" of the Purchased
Property (which opinion shall be at the expense of the Purchaser), an opinion
covering general corporate matters with respect to the Servicer and an Officer's
Certificate substantially in the Form of Exhibit D hereto providing a "negative
assurance 10b-5 statement" relating to the information provided by the Servicer
pursuant to clause (iii) above, and
(vii) delivering certifications and otherwise cooperating with the
Purchaser and any other parties to the Securitization to satisfy the parties'
reporting obligations under the Exchange Act and applicable law including the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder and to
satisfy informational requests from regulators, rating agencies and credit
enhancers.
In connection with the closing of any such transaction, the Servicer
will represent and warrant, and deliver to the Purchaser an Officer's
Certificate to the effect, that any such information delivered to the Purchaser,
and the disclosure relating thereto, is true and correct and does not omit to
state any fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Without limiting the generality of the foregoing, any request by the
Purchaser for any information about the Servicer required by Regulation AB of
the Commission shall be deemed to be reasonable.
(b) Following any Securitization or other transaction described in this
Section, the Servicer shall continue to be responsible for its obligations under
this Agreement.
(c) Except as specifically set forth above, the Servicer shall be
responsible for all of its own out-of-pocket fees and expenses arising in
connection with this compliance under this Section 8.1 for the first such
transaction. In the event that the Purchaser transfers, assigns or otherwise
conveys the Purchased Property in connection with more than one transaction,
then the Purchaser shall pay (or cause to be paid) the Servicer's reasonable
out-of-pocket fees and
22
expenses arising in connection with its compliance with this Section 8.1 for
each transaction after the first transaction.
(d) This Section shall survive any termination of this Agreement.
Section 8.2. Designees to Act on Behalf of Purchaser. Purchaser and its
successors and transferees may appoint designees to act on their respective
behalf (including any Purchaser Pledgee) and such designees shall have the power
and right to administer and enforce this Agreement (to the extent of the
Purchaser's rights under this Agreement) on behalf of Purchaser (it being
understood that the Purchaser is subject to the Reconstitution Conditions and
that any appointment of designees shall be by the initial Purchaser or in
connection with a Reconstitution). To the extent Purchaser has any rights under
this Agreement, any such designee may exercise such rights on behalf of
Purchaser.
Section 8.3. Nonpetition. The Servicer agrees that, prior to the date
which is one year and one day after payment in full of all obligations of the
Purchaser and all obligations of all special purpose entities created in
connection with Securitizations in respect of all securities (including all
commercial paper) issued by them, respectively, (i) the Servicer shall not
authorize any such Securitization entity to commence a voluntary winding-up or
other voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to the such Securitization entity, or to make a
general assignment for the benefit of its creditors, and (ii) the Servicer shall
not commence or join with any other Person in commencing any proceeding against
any such Securitization entity under any bankruptcy, reorganization, liquidation
or insolvency law or statute now or hereafter in effect in any jurisdiction;
provided, that, notwithstanding the foregoing, a Securitization entity shall not
be prohibited from filing a voluntary bankruptcy petition to the extent such
Securitization entity obtains the necessary vote for filing a voluntary
bankruptcy petition as required by the organizational documents of such
Securitization entity.
23
The Parties have caused this Servicing Agreement to be executed by
their respective duly authorized officers as of the date and year first above
written.
XXXXX FARGO BANK, N.A.,
as Servicer and Custodian
By: /s/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Purchaser
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Amended and Restated Servicing Agreement
S-1
EXHIBIT A
SCHEDULE OF RECEIVABLES
A-1
EXHIBIT B
FORM OF MONTHLY SERVICING REPORT
XXXXX FARGO AUTO FINANCE GROUP
XXXXX FARGO WHOLELOAN SALE
MONTHLY SERVICING REPORT
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Collection Period
Distribution Date
Transaction Month
----------------------------------------------------------------------------------------------------------------
I. ORIGINAL PORTFOLIO INFORMATION
Original Portfolio
Number of Contracts
Weighted Average Coupon
Weighted Average Maturity
----------------------------------------------------------------------------------------------------------------
II. COLLECTIONS
INTEREST:
Interest Collections (including Adminstrative
Purchase and Warranty Interest Payments)
-------------------
Total
PRINCIPAL:
Principal Collections (including Administrative
Purchase and Warranty Principal Payments)
Liquidation Proceeds from Receivables that became Liquidating
Receivables during Collection Period
-------------------
Total
Liquidation Proceeds (Recoveries) from Receivables that became
Liquidating Receivables during Prior Period
-------------------
Total Collections
Principal Adjustment
Principal Losses for Collection Period
-------------------
Total Regular Principal Reduction
----------------------------------------------------------------------------------------------------------------
III. SERVICING FEE
Servicing Fee Due
Servicing Fee Paid
-------------------
Servicing Fee Shortfall
----------------------------------------------------------------------------------------------------------------
B-1
----------------------------------------------------------------------------------------------------------------
IV. DISTRIBUTIONS
Available Collections
Available Collections Interest
Servicing Fee Paid
Daily Collections Remitted
-------------------
Net Distribution Owned to (Servicer) Purchaser
Misc. Adjustment
-------------------
Total Owed to Purchaser
----------------------------------------------------------------------------------------------------------------
V. PORTFOLIO INFORMATION
BEGINNING OF END OF PERIOD
PERIOD
Portfolio Receivable Balance
Weighted Average Coupon (WAC)
Weighted Average Maturity (WAM)
Remaining Number of Receivables
Accrued Interest
----------------------------------------------------------------------------------------------------------------
VI. NET LOSS AND DELINQUENCY ACCOUNT ACTIVITY
LOSSES:
Total Losses for Collection Period
Liquidation Proceeds from Receivables that become Liquidating
Receivables during Collection Period
Liquidation Contracts (#)
Liquidation Proceeds (Recoveries) from Receivables that become
Liquidating Receivables during Prior Period
Net Losses for Collection Period
Cumulative Net Losses for all Periods
DELINQUENT RECEIVABLES # OF CONTRACTS AMOUNT
31-60 Days Delinquent
61-90 Days Delinquent
Over 90 Days Delinquent
------------------- -------------------
Total
----------------------------------------------------------------------------------------------------------------
EXHIBIT C
FORM OF XXXXXXXX-XXXXX CERTIFICATE
I, __________________________, certify to ____________________________, and its
officers, directors, agents and affiliates (collectively, the "[ ]") , and with
the knowledge and intent that they will rely upon this certification, that:
(i) Based on my knowledge, the information relating to the Receivables and the
servicing thereof submitted by the Servicer to the [ ] which is used in
connection with preparation of the reports on Form 8-K and the annual report on
Form 10-K filed with the SEC with respect to the transaction, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the [ ] by the
Servicer under this Servicing Agreement has been provided to the [ ];
(iii) I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required by this
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance, the Accountant's Report and all servicing reports, officer's
certificates and other information relating to the servicing of the Receivables
submitted to the [ ], the Servicer has, as of the date of this certification
fulfilled its obligations under this Servicing Agreement; and
(iv) I have disclosed to the [ ] all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar standard as set forth in the Servicing Agreement.
(v) The Servicer shall indemnify and hold harmless the [ ] and its officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Certification or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the [ ],
then the Servicer agrees that it shall contribute to the amount paid or payable
by the [ ] as a result of the losses, claims, damages or liabilities of the [ ]
in such proportion as is appropriate to reflect the relative fault of the [ ] on
the one hand and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Certification or the Servicer's negligence,
bad faith or willful misconduct in connection therewith.
C-1
IN WITNESS WHEREOF, I have hereunto signed by name and affixed the seal of the
Seller.
Dated: By:
------------------------------
Name:
----------------------------
Title:
---------------------------
C-2
EXHIBIT D
FORM OF 10B-5 OFFICER'S CERTIFICATE
I, [_______________], the [___________] of Xxxxx Fargo Bank, N.A., a
national banking association (the "Company"), do hereby certify on behalf of the
Company that:
1. The statements and information contained in the Prospectus
Supplement dated [_____], 2005 ("Prospectus Supplement") under the headings
"[____________]", "[______________]" and "[________________]", were, on the date
of the Prospectus Supplement, and are on the date hereof, true, correct and
complete in all material respects and do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2. No event has occurred since the date of the Prospectus Supplement
affecting the Company which is required to be disclosed in the Prospectus
Supplement in order to make the statements therein with respect to the matters
covered in paragraph 1 above, in light of the circumstances under which they
were made, not misleading in any material respect.
IN WITNESS WHEREOF, I have hereunto signed my name as of this ____ day
of [____], 2005.
XXXXX FARGO BANK, N.A.
By:
---------------------------
Name:
---------------------------
Title: [___________]
D-1
ATTACHMENT A
MONTHLY FILE TAPE DATA LAYOUT
MASTER DATA FIELD DESCRIPTION FIELD NAME
1 Snapshot Date of File
2 AFG Account Number ILMAST-KEY
3 Securitization Pool Number M-SEC-POOL-NUM
4 Recovery Status Code CHG-OFF-CD
5 Closed-To-Posting Code M-CLOSED-TO-POSTING
6 Close Code CLOS
7 Maturity Date, Original M-ORG-MAT-DTE
8 Maturity Date, Current XXX-XXX
0 Note Date NOTE-DTE
10 Note Amount, Original ORG
11 Term, Current TERM
12 APR M-APR
13 Rate RATE
14 Loan Balance, Current P-INVEST-CURR-AMT
15 Interest Owing Amount, Current INT-PAYP
16 Principal Due Date XXX-XXX-X
00 Model M-MODEL
18 Model Year M-MODEL-YR
19 Manufacturer M-MANUFACTURER
20 Last Payment Date DTE-LAST-PMT
21 Interest Paid Amount, Year-to-date M-YTD-INT-PD
22 Payments Made, Number Of NO-PMTS-MD
23 Payoff Date M-Date-Paid-Off
24 Principal Payment Amount PAYMENT
25 CRA State Code M-CRA-STATE-CD
Current Times Delinquent, First
26 Category M-CTD-10-29
Current Times Delinquent, Second
27 Category M-CTD-30-59
Current Times Delinquent, Third
28 Category M-CTD-60-89
Current Times Delinquent, Fourth
29 Category M-CTD-90
30 New-Used Code M-NEW-USED-CODE
31 Credit Score Code, Current FICO
32 Principal Past Due Date PAST-DTE
33 Past Due Amount M-AMT-PAST-DUE
34 Term, Original ORG-Term
35 Interest Accrual Start Date Dte-Int-Begin
36 Total Interest Accrued Int-Accum
37 Total Interest Paid Int-Pd
38 Interest Paid Through Date M-Pd-To-Date
39 Zip Code NA-Zip
40 Number of Contract Extensions NO-EXTNS
41 Charge-Off Amount M-Chg-Off-Amt
42 BK & Repo Status M-CFA-KEY2
43 Repossession Date M-REPO-DTE
TRANSACTION DATA FIELD DESCRIPTION FIELD NAME
1 AFG Account Number HISTOT - KEY
2 Payment Processing Date HISTOT - PROC-DTE
3 Processing Date - month (mm) HISTOT - PROC-DTE-MM
4 Processing Date - day (dd) HISTOT - PROC-DTE-DD
5 Processing Date - century (cc) HISTOT - PROC-DTE-CC
6 Processing Date - year (yy) HISTOT - PROC-DTE-YY
7 Payment Effective Date HISTOT - EFF-DTE
8 Effective Date - month (mm) HISTOT - EFF-DTE-MM
9 Effective Date - day (dd) HISTOT - EFF-DTE-DD
10 Effective Date - century (cc) HISTOT - EFF-DTE-CC
11 Effective Date - year (yy) HISTOT - EFF-DTE-YY
12 Transaction Code HISTOT - TR
13 Old balance (before payment) HISTOT - OLD-BAL
14 Interest applied from payment HISTOT - INT
15 Principal applied from payment HISTOT - PRIN
16 Miscellaneous application of payment HISTOT - MISC
17 Insurance code HISTOT - INS-CO
18 Comment HISTOT - DESC
19 Total amount of transaction HISTOT - TOTAL-AMT
20 Interest adjustment amount HISTOT - INT-ADJ
RECOVERY DATA FIELD DESCRIPTION FIELD NAME
1 AFG Account Number RMSACCTNUM
2 Transaction Date TRAN_DATE
3 Transaction Amount JRNLTRAMT
4 Transaction Code RMSTRANCDE
5 Transaction Description JRNLTDESC
