EXHIBIT 10.3
EXECUTION COPY
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CUSTODIAN AGREEMENT
among
BAY VIEW ACCEPTANCE CORPORATION,
as Custodian,
and
BAY VIEW 2005 WAREHOUSE TRUST,
as Issuer
and
JPMORGAN CHASE BANK, N.A.,
as Indenture Trustee
Dated as of June 20, 2005
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THIS CUSTODIAN AGREEMENT, dated as of June 20, 2005, is made with respect
to the issuance of Notes by BAY VIEW 2005 WAREHOUSE TRUST (the "Issuer"), and is
among the Issuer, BAY VIEW ACCEPTANCE CORPORATION, a Nevada corporation ("Bay
View Acceptance") as custodian (in such capacity, the "Custodian") and JPMORGAN
CHASE BANK, N.A., a national banking association ("JPMorgan"), as indenture
trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, Bay View Acceptance and Bay View Warehouse Corporation (the
"Depositor") have entered into a Contribution Agreement dated as of the date
hereof (the "Contribution Agreement"), pursuant to which Bay View Acceptance has
contributed, transferred and assigned to the Depositor all of its right, title
and interest in and to the Initial Receivables and related Contributed Assets
and will sell, transfer and assign to the Depositor on the applicable Funding
Date all of its right, title and interest in and to the related Subsequent
Receivables and related Contributed Assets;
WHEREAS, the Issuer, Bay View Acceptance, as Servicer (the "Servicer"),
the Depositor, JPMorgan as Indenture Trustee and Systems & Services
Technologies, Inc., as Backup Servicer, have entered into a Sale and Servicing
Agreement, dated as of the date hereof (the "Sale and Servicing Agreement"),
pursuant to which the Depositor has sold, transferred and assigned to the Issuer
all of the Depositor's right, title and interest in and to the Initial
Receivables and related Deposited Assets and will transfer and assign to the
Issuer on the applicable Funding Date all of the Depositor's right, title and
interest in and to the related Subsequent Receivables and related Deposited
Assets;
WHEREAS, in connection with such sales, transfers and assignments, Bay
View Acceptance and the Depositor have made certain representations and
warranties regarding the Custodian Files, upon which the Indenture Trustee has
relied in accepting the Grant of the Trust Estate under the Indenture; and
WHEREAS, the Servicer desires that the Indenture Trustee appoint the
Custodian to hold the Custodian Files as the custodian on behalf of the
Indenture Trustee;
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Definitions. Terms not defined in this Agreement shall have the
respective meanings assigned to them in the Sale and Servicing Agreement or, if
not identified therein, in the Indenture, or if not identified therein, in the
Contribution Agreement.
Section 2. Appointment of Custodian; Acknowledgement of Receipt. Subject
to the terms and conditions hereof, the Indenture Trustee hereby revocably
appoints the Custodian, and the Custodian hereby accepts such appointment, as
custodian and bailee to act exclusively on behalf of the Indenture Trustee for
the benefit of the Noteholders to maintain custody of the Custodian Files
relating to the Receivables and other related assets from time to time pledged
to
the Indenture Trustee as part of the Trust Estate. In performing its duties
hereunder, the Custodian agrees to act with reasonable care, using that degree
of skill and attention that a commercial bank or other financial institution
acting in the capacity of a custodian would exercise with respect to files
relating to comparable automotive receivables or other receivables that it
services or holds for itself or others. The Custodian hereby with respect to the
Initial Receivables and related Deposited Assets and with respect to any
Subsequent Receivables and the related Deposited Assets as of the applicable
Funding Date, acknowledges receipt of the Custodian File for each Receivable
listed on the Schedule of Receivables attached as Schedule I to the Sale and
Servicing Agreement and each applicable Assignment, subject to any exceptions
noted on the applicable Certification (as defined below), related to the Closing
Date or such Funding Date, as applicable. The Custodian acknowledges that it is
holding the Custodian Files on behalf of and for the benefit of the Indenture
Trustee, and if the Custodian is not Bay View Acceptance, to perfect the
absolute assignment and transfer of the Receivables and related parts of the
Trust Estate from each of the Contributor and the Depositor and to perfect the
grant of a security interest in the Receivables and the related parts of the
Trust Estate by the Issuer to the Indenture Trustee. The Custodian shall not
assign, transfer, pledge or grant a security interest in any other person or
entity to perform or carry out any of its duties, responsibilities or
obligations under this Agreement. Any act or instrument purporting to effect any
such assignment, transfer, pledge, grant, declaration or appointment shall be
void.
Section 3. Delivery of Custodian Files. Except as specifically noted in an
exception report delivered to the Indenture Trustee, the Custodian hereby
certifies that it has received as custodian for, and bailee of the Indenture
Trustee for the benefit of the Noteholders, the following documents pertaining
to each of the Receivables identified in a Schedule of Receivables for the
initial transfer and each subsequent transfer, a copy of which Schedule of
Receivables shall be provided to the Custodian:
(a) a fully executed original of the related retail installment
contract, and an acknowledgement of the Custodian that it holds such
Receivable for the benefit of the Noteholders;
(b) evidence of either (1) a certificate of insurance, (2) an
application form for insurance signed by the Obligor, or (3) a signed
representation letter from the Obligor named in the Receivable pursuant to
which the Obligor has agreed to obtain physical damage insurance for the
related Financed Vehicle;
(c) the original or electronic equivalent of the Certificate of
Title or, with respect to a Certificate of Title filed electronically, a
report or data file prepared by a third party service that shows such
service maintains perfection related to such Certificate of Title on
behalf of the Servicer; or, if the original Certificate of Title has not
yet been received, and in the case of each electronic Certificate of
Title, an application therefor, or a copy of such Certificate of Title
with a copy of the application filed to amend the Certificate of Title to
indicate the security interest of the Contributor in the related Financed
Vehicle;
(d) an electronic copy of an original credit application signed by
the Obligor;
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(e) the originals of all written assumption, consolidation,
extension, modification or waiver agreements, if any, relating to such
Receivable, except for any such item listed above which has been preserved
by electronic means;
(f) any other documents that the Servicer shall keep on file, in
accordance with its customary procedures, relating to a Receivable, the
related Obligor or the related Financed Vehicle; and
(g) any additional original loan documents evidencing any
assumption, consolidation, extension, modification or waiver of a
Receivable approved by the Servicer.
Section 4. Certification. The Custodian shall deliver on or prior to the
Closing Date and each Funding Date to the Indenture Trustee and the Agent a
certification (each a "Certification"), in substantially the form annexed hereto
as Exhibit A, to the effect that (except as described on the exception list
attached thereto) (i) the Custodian has received a Custodian File for each
Receivable listed on the related Schedule of Receivables and it has received
(ii) all documents required to be delivered to it pursuant to Section 3 of this
Agreement and such documents are in its possession, (iii) such documents have
been reviewed by the Custodian and have not been mutilated, damaged, torn or
otherwise physically altered and relate to such Receivable identified on the
Schedule of Receivables, (iv) each of such documents which is required to be
signed by the Obligor has been signed in the appropriate spaces, (v) all
necessary blanks in each document have been filled in and each document appears
on its face to have been properly prepared, (vi) the Custodian is not holding
any original of the related retail installment contract other than the original
of such retail installment contract that it is holding as custodian hereunder
and to its knowledge, no other such original exists, (vii) neither the related
retail installment contract nor any assignment thereof included in the Custodian
File contains on its face any stamp or other evidence of any lien or security
interest therein, and (viii) based on its examination, each contract related to
such Receivable as described in Section 3(a) hereof is an executed original
counterpart. The Custodian shall attach an exception report to the Certification
noting the absence from a Custodian File of a document required to be included
therein pursuant to Section 3 of the Custodian Agreement.
Section 5. Certificates of Title. On or before the Closing Date and on
each Funding Date, as applicable, the Custodian shall deliver to the Indenture
Trustee and the Agent a list of all Receivables with respect to which an
application for a Certificate of Title showing Bay View Acceptance as secured
party was not included in the related Custodian File as of the Closing Date or
such Funding Date, as the case may be.
Section 6. Obligations of the Custodian. (a) The Custodian shall maintain
the items constituting the Custodian Files at its principal office or, subject
to the prior written consent of the Majority Holders, at such other office as
shall from time to time be identified to the Indenture Trustee and the Agent in
writing, and the Custodian will hold the items constituting the Custodian Files
in such office on behalf of the Indenture Trustee clearly segregated from any
other instruments and files on its records, including other instruments and
files held by the Custodian with respect to other trusts established by the
Depositor or any of its Affiliates. The Custodian shall segregate and maintain
continuous custody of all items constituting the
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Custodian Files in secure, fire resistant cabinets (with respect to retail
installment contracts and Certificates of Title only) in accordance with
customary standards of a commercial bank acting in the capacity of custodian
with respect to similar receivables. The Custodian shall hold the Custodian
Files on behalf of the Indenture Trustee for the benefit of the Noteholders, and
shall maintain such accurate and complete accounts, records and computer systems
pertaining to each Custodian File as will enable the Issuer to comply with the
terms and conditions of the Sale and Servicing Agreement, the Indenture and the
other Transaction Documents. Each original retail installment sale contract
shall be stamped on both the first page and the signature page (if different) in
accordance with the instructions from time to time provided by the Agent and the
form and content of the stamp shall be acceptable to the Majority Holders. Each
Receivable shall be identified on the books and records of the Custodian in a
manner that (i) is consistent with the practices of a commercial bank or other
financial institution acting in the capacity of custodian with respect to
similar receivables, (ii) indicates that the Receivable is held by the Custodian
on behalf of the Indenture Trustee for the benefit of the Noteholders, and (iii)
is otherwise necessary, as reasonably determined by the Custodian, to comply
with the terms of this Custodian Agreement. The Custodian shall conduct, or
cause to be conducted, periodic physical inspections of the Custodian Files held
by it under this Custodian Agreement, and of the related accounts, records and
computer systems, in such a manner as shall enable the Indenture Trustee, the
Agent and the Custodian to verify the accuracy of the Custodian's inventory and
recordkeeping. Such inspections shall be conducted at such times, in such manner
and by such persons including, without limitation, independent accountants, as
the Indenture Trustee for the benefit of the Noteholders and the Agent may
request, and the reasonable cost of one such inspection per calendar year shall
be borne directly by the Custodian and not by the Issuer. Upon becoming aware,
the Custodian shall promptly report to the Indenture Trustee and the Agent any
failure on its part to hold the Custodian Files and maintain its accounts,
records and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Notwithstanding the above, the Custodian may
make microfiche or other electronic copies of the Custodian Files and may
maintain such copies of the Custodian Files in lieu of maintaining physical
possession of the Custodian Files; provided, however, that such copies shall
duplicate the entire contents of each Custodian File and, provided further, that
the Custodian shall at all times maintain the related retail installment
contract and the original Certificate of Title or, if not yet received, evidence
that an application therefor has been submitted with the appropriate authority,
evidencing the security interest of Bay View Acceptance and the originals of all
assumption, consolidation, extension, modification or waiver agreements, if any,
relating to such Receivable.
(b) With respect to the documents constituting each Custodian File that is
delivered to the Custodian, the Custodian shall (i) act exclusively as the
custodian for, and the bailee of, the Indenture Trustee on behalf of the
Noteholders, (ii) hold all documents constituting such Custodian File received
by it for the exclusive use and benefit of the Indenture Trustee, and (iii) make
disposition thereof only in accordance with the terms of this Agreement or with
written instructions furnished by the Indenture Trustee or the Majority Holders.
(c) The Custodian shall assist the Indenture Trustee and the Owner
Trustee, on behalf of the Issuer, generally in the preparation of any routine
reports to Noteholders or to regulatory bodies, to the extent necessitated by
the Custodian's custody of the Custodian Files.
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(d) The Custodian shall, in general, attend to all non-discretionary
details in connection with maintaining custody of the Custodian Files on behalf
of the Indenture Trustee for the benefit of the Noteholders.
(e) In the event that (i) the Indenture Trustee or the Custodian shall be
served by a third party with any type of levy, attachment, writ or court order
with respect to any Custodian File or a document included within a Custodian
File or (ii) a third party shall institute any court proceeding by which any
Custodian File or a document included within a Custodian File shall be required
to be delivered otherwise than in accordance with the provisions of this
Agreement, the party or parties receiving such service shall promptly deliver or
cause to be delivered to the other parties to this Agreement and the Agent
copies of all court papers, orders, documents and other materials concerning
such proceedings. The Custodian shall continue to hold and maintain all the
Custodian Files that are the subject of such proceedings pending a final order
issued by a court of competent jurisdiction permitting or directing disposition
thereof. Upon final determination of such court, the Custodian shall dispose of
such Custodian File or a document included within such Custodian File as
directed by such determination or, if no such determination is made, in
accordance with the provisions of this Agreement and the other Transaction
Documents. Expenses of the Custodian incurred as a result of such proceedings
shall be borne by the Issuer.
Section 7. Instructions; Authority to Act. The Custodian shall be deemed
to have received proper instructions with respect to the Custodian Files upon
its receipt of written instructions signed by a Responsible Officer of the
Indenture Trustee or the Agent. Such instructions may be general or specific in
terms. A copy of any such instructions delivered to the Custodian shall be
furnished by the Indenture Trustee or the Agent to each other, to the Servicer
and the Issuer.
Section 8. Release of Custodian Files. (a) If the Custodian and the
Servicer are Affiliates, the Custodian may release any Custodian Files to the
Servicer in order for the Servicer to accomplish its duties under Article VI of
the Sale and Servicing Agreement. The Custodian shall indicate in its records
each such release and, if applicable, each return of a Custodian File to the
Custodian by the Servicer.
(b) If the Custodian is not the Servicer or an Affiliate thereof from time
to time and as appropriate for the foreclosure or servicing of any of the
Receivables, the Custodian is hereby authorized, upon receipt of a written
request of the Servicer acknowledged by the Indenture Trustee in substantially
the form annexed as Exhibit B hereto (a "Request for Release and Receipt of
Documents"), to release to the Servicer by the close of business on the second
Business Day following such request, the related Custodian File or the documents
from a Custodian File set forth in such Request for Release and Receipt of
Documents.
(c) All documents released to the Servicer pursuant to this Section 8
shall be held by the Servicer in trust for the benefit of the Indenture Trustee
in accordance with the Sale and Servicing Agreement. The Servicer shall return
to the Custodian each and every document previously requested from the Custodian
when the Servicer's need therefore in connection with such foreclosure or
servicing no longer exists, unless the Receivable shall be liquidated, in which
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case, upon receipt of a certification to this effect from the Servicer to the
Custodian acknowledged by the Indenture Trustee, in substantially the form
annexed as Exhibit B, the Servicer's prior receipt shall be returned by the
Custodian to the Servicer.
Section 9. Release Upon Redelivery or Payment. If the Custodian is not the
Servicer or an Affiliate thereof, upon the redelivery of any Receivable pursuant
to the Sale and Servicing Agreement or the payment in full of any Receivable,
which shall be evidenced by the delivery to the Custodian of a Request for
Release and Receipt of Documents in the form of Exhibit B executed by the
Servicer and acknowledged by the Indenture Trustee, the Custodian shall promptly
release the associated Custodian File to the Servicer.
Section 10. Examination of Custodian Files. Upon reasonable prior written
notice to the Custodian (but no less than one Business Day), the Indenture
Trustee and the Agent and their respective authorized representatives will be
permitted to examine the Custodian Files, documents, records and other papers in
the possession, or under the control, of the Custodian relating to any or all of
the Receivables and the other assets included in the Trust Estate during the
Custodian's normal business hours.
Section 11. Insurance of the Custodian. The Custodian shall, at its own
expense, maintain at all times during the term of this Agreement and keep in
full force and effect (a) fidelity insurance and (b) theft of documents
insurance. All such insurance shall be in amounts, with standard coverage and
subject to deductibles, as are customary for similar insurance typically
maintained by commercial banks that act as custodian in similar transactions.
Section 12. Periodic Statements. Each month, the Custodian by electronic
transfer shall provide to the Indenture Trustee a list of all Receivables for
which the Custodian holds a Custodian File pursuant to this Agreement. Such list
shall include the loan number and name of the related Obligor and may be in the
form of a copy of the Schedule of Receivables with manual deletions to denote
any Receivables redelivered since the date of this Agreement.
Section 13. Copies of Documents. If the Custodian is not the Servicer,
within ten Business Days after the written request and at the expense of the
Servicer, the Custodian shall provide the Indenture Trustee with copies of all
documents in each Custodian File held by the Custodian hereunder.
Section 14. Custodian Fee. For its services under this Agreement, the
Custodian shall be entitled to reasonable compensation to be paid by the
Servicer.
Section 15. Indemnification by the Custodian. The Custodian agrees to
indemnify the Depositor, the Issuer, the Owner Trustee (as such and in its
individual capacity), the Indenture Trustee, the Backup Servicer, the Agent and
the Noteholders for any and all liabilities, obligations, losses, damage,
payments, costs or expenses of any kind whatsoever (including the fees and
expenses of counsel) that may be imposed on, incurred or asserted against the
Depositor, the Issuer, the Owner Trustee (as such or in its individual
capacity), the Indenture Trustee, the Backup Servicer, the Agent and the
Noteholders and their respective officers, directors, employees, agents,
attorneys and successors and assigns as the result of any act or
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omission which relates to the maintenance and custody by the Custodian of the
Custodian Files; provided, however, that the Custodian shall not be liable for
any portion of any such liabilities, obligations, losses, damages, payments or
costs or expenses due to the willful misfeasance, bad faith or gross negligence
of the Depositor, the Issuer, the Owner Trustee, the Indenture Trustee, the
Backup Servicer, the Agent or the Noteholders or the officers, directors,
employees and agents thereof. In no event shall the Custodian be liable to any
third party for acts or omissions of the Custodian.
Section 16. Advice of Counsel. The Custodian and the Indenture Trustee
further agree that the Custodian shall be entitled to rely in good faith and act
upon advice of counsel with respect to its performance hereunder as custodian
and shall be without liability for any action reasonably taken in good faith
pursuant to such advice, provided that such action is not in violation of
applicable federal or state law.
Section 17. Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions. (a) This Custodian Agreement shall become effective as of
the date hereof and shall continue in full force and effect until terminated as
hereinafter provided. This Custodian Agreement may be amended at any time by
mutual written agreement of the Majority Holders, the Indenture Trustee, the
Issuer and the Custodian and may be terminated by the Custodian by giving
written notice to the other parties hereto, such termination to take effect no
sooner than thirty (30) days after the date of such notice; provided, however,
that the Majority Holders may terminate this Custodian Agreement at any time in
their sole discretion, and any termination by the Majority Holders shall take
effect immediately. So long as Bay View Acceptance is serving as Custodian, any
termination of Bay View Acceptance as Servicer under the Sale and Servicing
Agreement shall automatically terminate Bay View Acceptance as Custodian under
this Agreement. Promptly (but in any event within two (2) Business Days) after
receipt of notice of termination of this Custodian Agreement, the Custodian
shall deliver the Custodian Files to the Indenture Trustee on behalf of the
Noteholders at the Custodian's expense, or, to the extent such expenses are not
paid for by the Custodian, such expenses shall be reimbursed to the Indenture
Trustee pursuant to Section 5.03(b)(second) of the Indenture, at such place or
places as the Indenture Trustee may designate in writing to the Custodian, and
the Indenture Trustee or its agent, as the case may be, shall act as custodian
for such Custodian Files on behalf of the Noteholders until such time as a
successor custodian, approved by the Majority Holders pursuant to paragraph (b)
below has been appointed. If, within two (2) Business Days after the termination
of this Custodian Agreement, the Custodian has not delivered the Custodian Files
in accordance with the preceding sentence, the Indenture Trustee or its agent
may enter the premises of the Custodian and remove the Custodian Files from such
premises at the Custodian's expense, or, to the extent not paid for by the
Custodian, such expenses shall be reimbursed to the Indenture Trustee pursuant
to Section 5.03(b)(second) of the Indenture. The Indenture Trustee shall have no
responsibility or duty with respect to any Custodian File while not in its
physical possession, it being understood and agreed that possession by the
Indenture Trustee of any Custodian File shall not be imputed to the Indenture
Trustee at any time such Custodian File is in transit to or from the Indenture
Trustee. In addition, the Indenture Trustee shall have no responsibility or duty
with respect to any Custodian File within its possession except to exercise the
same standard of care to which it affords similar property held for its own
account. The Indenture Trustee is not required to verify that it has received
all of the Custodian Files held by
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the Custodian. The indemnities provided to the Indenture Trustee under the Sale
and Servicing Agreement and in the Indenture shall apply to the Indenture
Trustee's care, handing and storage of the Custodian Files. In connection with
the administration of this Agreement, the parties may agree from time to time
upon the interpretation of the provisions of this Agreement as may in their
joint opinion be consistent with the general tenor and purposes of this
Agreement, any such interpretation to be signed by all parties and annexed
hereto.
(b) Following any termination or resignation of the Custodian, so long as
Bay View Acceptance is the Servicer, the Indenture Trustee and the Servicer may,
or, if Bay View Acceptance is no longer the Servicer, the Indenture Trustee may,
select and appoint a successor custodian with the consent of the Majority
Holders. If no successor Custodian shall have been appointed within thirty (30)
days of such resignation or termination, the Indenture Trustee may petition any
court of competent jurisdiction for a successor custodian. All fees and
reasonable out-of-pocket costs and expenses incurred by the successor custodian
shall be reimbursed to such successor custodian pursuant to Section
5.03(b)(fifth) of the Indenture.
Section 18. Governing Law. This Custodian Agreement shall be governed by
and construed in accordance with the laws of the State of New York, including
Sections 5-1401 and 5-1402 of the New York General Obligations law, but
otherwise without regard to the conflicts of laws principles thereof.
Section 19. Notices. All demands, notices and communications hereunder
shall be in writing, delivered or mailed, and shall be deemed to have been duly
given upon receipt (a) in the case of the Custodian, at the following address:
0000 Xxxxxxx Xxxx., Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, (b)
in the case of the Indenture Trustee, at the following address: 000 Xxxxxx Xx.,
0xx Xxxxx, Xxxxxxx, XX 00000, Attention: Structured Finance - Bay View 2005, (c)
in the case of the Issuer, at the following address: Bay View 2005 Warehouse
Trust c/o Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000 Attention: Corporate Trust Administration and
(d) in the case of any other Person, at the address specified for such Person in
the Indenture.
Section 20. Binding Effect. This Custodian Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Concurrently with the appointment of a successor
Indenture Trustee under the Indenture, the parties hereto shall amend this
Custodian Agreement to make said successor Indenture Trustee, the successor to
the Indenture Trustee hereunder.
Section 21. Counterparts. For the purpose of facilitating the execution of
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts (including by facsimile or other
electronic means), each of which shall be deemed to be an original and together
shall constitute and be one and the same instrument.
Section 22. Headings. The Section headings are not part of this Agreement
and shall not be used in its interpretation.
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Section 23. Nonpetition. Notwithstanding any prior termination of this
Agreement, the Custodian shall not, prior to the date which is one year and one
day after the payment in full of the Notes, acquiesce, petition or otherwise
invoke or cause the Issuer, the Depositor or any Noteholder to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer, the Depositor or any Noteholder under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer, the Depositor or any Noteholder or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Issuer, the Depositor or any Noteholder.
Section 24. Assignment. No party to this Agreement may assign its rights
or delegate its obligations under this Agreement without the express written
consent of the other parties hereto, except as otherwise expressly set forth in
this Agreement.
Section 25. Limitation of Liability. Notwithstanding any other provision
herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Issuer under the Issuer Trust Agreement, and in
no event shall Wilmington Trust Company or the Owner Trustee have any liability
in respect of the obligations of the Issuer hereunder or under any other
Transaction Document, as to all of which recourse shall be had solely to the
assets of the Issuer, and for all purposes of this Agreement and each other
Transaction Document the Owner Trustee and Wilmington Trust Company shall be
entitled to the benefits of the Issuer Trust Agreement.
Section 26. Integration. (a) This Agreement and each other Transaction
Document contain the final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns (including
any trustee in bankruptcy). This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms and
shall remain in full force and effect until terminated in accordance with its
terms; provided, however, that the rights and remedies with respect to (i) any
breach of any representation and warranty made by the Custodian and (ii) the
indemnification and payment provisions of Section 15 shall be continuing and
shall survive any termination of this Agreement.
Section 27. Severability of Provisions. If one or more of the provisions
of this Agreement shall be held invalid for any reason, such provisions shall be
deemed severable from the remaining provisions of this Agreement and shall in no
way affect the validity or enforceability of such remaining provisions. To the
extent permitted by law, the parties hereto hereby waive any law which renders
any provision of this Agreement prohibited or unenforceable.
Section 28. Rights Cumulative. All rights and remedies under this
Agreement are cumulative, and none is intended to be exclusive of another. No
delay or omission in insisting
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upon the strict observance or performance of any provision of this Agreement, or
in exercising any right or remedy, shall be construed as a waiver or
relinquishment of such provision, nor shall it impair such right or remedy.
Every right and remedy may be exercised from time to time and as often as deemed
expedient.
Section 29. CONSENT TO JURISDICTION. (a) TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND TO OR IN CONNECTION WITH ANY OF THE
TRANSACTION DOCUMENTS OR THE TRANSACTION OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
OR DETERMINED IN SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT. THE PARTIES
HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO ASSERT BY WAY OF MOTION,
AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE RELATED DOCUMENTS OR THE
SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS.
(b) To the extent permitted by applicable law, the parties hereto shall
not seek and hereby waive the right to any review of the judgment of any such
court by any court of any other nation or jurisdiction which may be called upon
to grant an enforcement of such judgment.
(c) Each of the Issuer and the Custodian agrees that until such time as
the Notes have been paid in full each of the Issuer and the Custodian shall have
appointed an agent registered with the Secretary of State of the State of New
York, with an office in the County of New York in the State of New York, as its
true and lawful attorney and duly authorized agent for acceptance of service of
legal process. Each of the Issuer and the Custodian agrees that service of such
process upon such Person shall constitute personal service of such process upon
it.
Section 30. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH
ANY OF THE TRANSACTION DOCUMENTS OR THE TRANSACTION. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HERETO HAS
10
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY
BY, AMONG OTHER THINGS, THIS WAIVER.
Section 31. Third Party Beneficiary. This Agreement shall inure to the
benefit of the Agent and the Noteholders and their respective successors and
assigns. Without limiting the generality of the foregoing, all covenants and
agreements in this Agreement which expressly confer rights upon the Issuer, the
Noteholders, the Agent or the Indenture Trustee shall be for the benefit of and
run directly to the Noteholders and the Agent, and the Noteholders and the Agent
shall be entitled to rely on and enforce such covenants to the same extent as if
it were a party hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Custodian
Agreement to be executed in its name and on its behalf by a duly authorized
officer on the day and year first above written.
JPMORGAN CHASE BANK, N.A., as Indenture Trustee
By: /s/ Xxxx Xx Xxxxx
-----------------------------
Name: Xxxx Xx Xxxxx
Title: Vice President
Signature Page to Custodian Agreement
BAY VIEW ACCEPTANCE CORPORATION,
as Custodian
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
Signature Page to Custodian Agreement
BAY VIEW 2005 WAREHOUSE TRUST, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Financial Services Officer
Signature Page to Custodian Agreement
EXHIBIT A
FORM OF
NOTICE OF FUNDING, CERTIFICATION
AND FUNDING CERTIFICATE
To: JPMorgan Chase Bank, N.A.
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Structured Finance - Bay View 2005
JPMorgan Chase Bank, N.A.
Asset Backed Finance
Suite IL1-0594
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Xxxxxx Xxxxxxx Corp.
Address: 000 X. XxXxxxx Xx., Xxxxx 00X
Xxxxxxx, XX 00000
Attn: Conduit Administration
Reference is made to (i) the Indenture, dated as of June 20, 2005 (as
amended, supplemented, or otherwise modified from time to time in accordance
with its terms, the "Indenture"), by and between Bay View 2005 Warehouse Trust,
as issuer (the "Issuer") and JPMorgan Chase Bank, N.A. as indenture trustee (the
"Indenture Trustee"), (ii) the Custodian Agreement, dated as of June 5, 2003 (as
amended, supplemented, or otherwise modified from time to time in accordance
with its terms, the "Custodian Agreement"), among Issuer, Indenture Trustee and
Bay View Acceptance Corporation ("Bay View Acceptance"), as custodian (in such
capacity, the "Custodian"), (iii) the Contribution Agreement, dated as of June
20, 2005 (as amended, supplemented, or otherwise modified from time to time in
accordance with its terms, the "Contribution Agreement"), by and between Bay
View Acceptance, as contributor (in such capacity, the "Contributor") and Bay
View Warehouse Corporation, as depositor (the "Depositor"), and (iv) the Sale
and Servicing Agreement, dated as of June 20, 2005 (as amended, supplemented, or
otherwise modified from time to time in accordance with its terms, the "Sale and
Servicing Agreement"), by and among the Issuer, the Depositor, the Indenture
Trustee, Systems & Services Technologies, Inc., as backup servicer, and Bay View
Acceptance, as Contributor and servicer. Unless otherwise defined herein,
capitalized terms have the meanings set forth in the Indenture and to the extent
not defined therein, in the Custodian Agreement.
ARTICLE 1
[NOTICE OF FUNDING]
[EXHIBIT C TO INDENTURE]
1
ARTICLE 2
CERTIFICATION
In accordance with the provisions of Section 3 of the Custodian Agreement,
the Custodian hereby certifies that, as to each Receivable listed on the
attached Schedule of Receivables, it has reviewed the Custodian File and has
determined that (except as specifically listed on the exceptions report attached
hereto): (i) all documents required to be delivered to it pursuant to Section 3
of the Custodian Agreement are in its possession; (ii) such documents have been
reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered and relate to such Receivable identified on the Schedule of
Receivables; (iii) each of such documents which is required to be signed by the
Obligor has been signed in the appropriate spaces; (iv) all necessary blanks in
each document have been filled in and each document appears on its face to have
been properly prepared,; (v) the Custodian is not holding any original of the
related retail installment contract other than the original of such retail
installment contract that it is holding as custodian hereunder and to its
knowledge, no other such original exists; (vi) neither the related retail
installment contract nor any assignment thereof included in the Custodian File
contains on its face any stamp or other evidence of any lien or security
interest therein; and (vii) based on its examination, each contract related to
such Receivables is an executed original counterpart. The exception report
attached hereto lists the absence from each Custodian File of any document
required to be included therein pursuant to Section 3 of the Custodian
Agreement.
ARTICLE 3
[FUNDING CERTIFICATE]
[EXHIBIT A TO INDENTURE]
This Notice of Funding, Certification and Funding Certificate may be
executed in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOWS]
2
By signing in the space provided below, the Issuer hereby acknowledges and
agrees that it is becoming a party to this Notice of Funding, Certification and
Funding Certificate for, and will only be bound, by the certifications it has
made as contained in Articles 1 and 3 hereof.
BAY VIEW 2005 WAREHOUSE TRUST, AS ISSUER
BY: WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner Trustee
BY: ____________________________________
NAME:___________________________________
TITLE:__________________________________
By signing in the space provided below, the Depositor (i) hereby
acknowledges and agrees that it is becoming a party to this Notice of Funding,
Certification and Funding Certificate for, and will only be bound, by the
certifications it has made as contained in Articles 1 and 3 hereof and (ii) as
the Certificateholder of the Issuer, hereby directs the Owner Trustee indicated
above to execute this Notice of Funding, Certification and Funding Certificate
to the extent set forth herein on behalf of the Issuer.
BAY VIEW WAREHOUSE CORPORATION, AS DEPOSITOR
BY: ____________________________________
NAME:
TITLE:
By signing in the space provided below, Bay View Acceptance as Contributor
and Custodian, as applicable, hereby acknowledges and agrees that it is becoming
a party to this Notice of Funding, Certification and Funding Certificate for,
and will be bound, by the certifications it has made as contained in Articles 1,
2 and 3 hereof.
BAY VIEW ACCEPTANCE CORPORATION, AS
CONTRIBUTOR AND CUSTODIAN
BY: ____________________________________
NAME:
TITLE:
3
EXCEPTION REPORT
EXHIBIT B
REQUEST FOR RELEASE
TO: Bay View Acceptance Corporation
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Counsel
JPMorgan Chase Bank, N.A., as Indenture Trustee
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Structured Finance - Bay View 2005
In connection with the servicing of the Receivables which are owned by Bay
View 2005 Warehouse Trust (the "Issuer") and are pledged by the Issuer to the
Indenture Trustee for the benefit of the Noteholders to support the Issuer's
Auto Receivables-Backed Notes, Series 2005-1, pursuant to Section 8 of the
Custodian Agreement described below, the undersigned, as Servicer of the
Receivables, requests the Custodian Files related to the Receivables described
below for the reason indicated. The undersigned shall return all documents to
you when the undersigned's need therefor no longer exists, except where the
Receivable is paid in full or otherwise disposed of (as indicated below).
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to such terms in the Custodian Agreement, dated as
of June 20, 2005, among the Custodian, the Issuer and the Indenture Trustee or
in the Sale and Servicing Agreement, dated as of June 20, 2005 among the Issuer,
the Depositor, the Indenture Trustee and the Servicer.
CONTRACT NUMBERS AND OBLIGOR NAMES:
The undersigned hereby certifies that if this release is requested due to
payment in full of a Receivable, or repurchase upon breach, all amounts received
in connection therewith, which are required to be deposited in the Local Bank
Account have been so deposited.
REASON FOR REQUESTING DOCUMENTS:
-- CONTRACT PAID IN FULL
-- REPURCHASE UPON BREACH
-- REPOSSESSION AND LIQUIDATION
-- OTHER - EXPLAIN REASON AND REFERENCE TO APPROPRIATE SECTION OF SERVICING
AGREEMENT
BAY VIEW ACCEPTANCE CORPORATION, as
Servicer
By ______________________________________
Name:_________________________________
Title:________________________________
CONTRACT NUMBERS _______________________
CUSTOMERS ______________________________
TO CUSTODIAN: Please acknowledge below by your signature the execution of the
above request. You must retain this form for your file, and a copy of this form,
signed and dated by you, shall be returned to the Servicer.
_________________________________________
Authorized Signature of Custodian
_________________________
Release Date
TO INDENTURE TRUSTEE: Please acknowledge below by your signature the execution
of the above request. You must retain this form for your file, and a copy of
this form, signed and dated by you, shall be returned to the Servicer.
_________________________________________
Authorized Signature of Indenture Trustee
_________________________
Release Date
RETURN OF RELEASED DOCUMENTS(S) FILE
All documents identified above as previously released have been returned:
________________________________________
Authorized Signature of Custodian
_________________________
Date of Return
B-2
