EXHIBIT 99.3
------------
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Agreement")
made as of the 1st day of June, 2003, between Xxxxxx Xxxxxxx ABS Capital II
Inc. a Delaware corporation (the "Assignee"), and Xxxxxx Xxxxxxx Asset
Funding, Inc., a Delaware corporation (the "Assignor") and acknowledged by The
Huntington National Bank, a national banking association organized under the
laws of the United States of America ("Huntington" or the "Servicer").
WHEREAS, Xxxxxx Xxxxxxx Asset Funding, Inc. and Huntington have
entered into a certain Purchase and Servicing Agreement dated as of May 31,
2003 (the "Purchase and Servicing Agreement"), pursuant to which Huntington
sold certain retail motor vehicle loan and installment sale contracts listed
on the receivable schedule attached as an exhibit to the Purchase and
Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain retail motor vehicle loan and installment
sale contracts (the "Receivables"), which Receivables are subject to the
provisions of the Purchase and Servicing Agreement and are listed on the
receivable schedule attached as Schedule 1 hereto (the "Receivable Schedule");
WHEREAS, pursuant to a Sale and Servicing Agreement, dated as of
June 1, 2003 (the "Sale and Servicing Agreement"), among Xxxxxx Xxxxxxx Asset
Funding, Inc., as seller, Xxxxxx Xxxxxxx ABS Capital II Inc., as depositor,
Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1 (the "Trust"), the Servicer and Xxxxx
Fargo Bank Minnesota, National Association, as indenture trustee (the
"Indenture Trustee"), the Assignee will transfer the Receivables to the Trust,
together with the Assignee's rights in the Purchase and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) On the Closing Date under the Sale and Servicing Agreement
(the "Closing Date"), the Assignor hereby assigns, sells, transfers, sets
over and conveys to the Assignee all of its right, title and interest in
and to the Receivables and the Purchase and Servicing Agreement, to the
extent relating to the Receivables (other than the rights of the Assignor
to indemnification thereunder), and all Conveyed Assets with respect
thereto (as defined in Exhibit 1 hereto), and the Assignee hereby assumes
all of the Assignor's obligations under the Purchase and Servicing
Agreement, to the extent relating to the Receivables, from and after the
Closing Date, and Huntington hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any
obligations under the Purchase and Servicing Agreement from and after the
Closing Date, to the extent relating to the Receivables. Notwithstanding
the foregoing, it is understood that the Assignor is not released from
liability for any breaches of the representations and warranties made by
it in Section 3.03 of the Purchase and Servicing Agreement, and the
Assignee is not undertaking any such liability hereunder. Assignor hereby
authorizes the filling of assignments in the State of Ohio of
the UCC financing statement naming it as secured party/purchaser under
the Purchase and Servicing Agreement with respect to the Receivables and
the filing of a UCC financing statement in the State of Delaware with
respect to the Receivables and Conveyed Assets hereunder, and the further
assignment thereof to the Trust and Indenture Trustee.
(b) The Assignor represents and warrants to the Assignee that
the Assignor has not taken any action which would serve to impair or
encumber the Assignor's ownership interest in the Receivables since the
date of the Purchase and Servicing Agreement.
(c) Huntington hereby agrees to pay any GAP Amounts owed by it
under the Purchase and Servicing Agreement to whomever shall be
responsible for servicing the Receivables at any time on behalf of the
Trust.
(d) Huntington and the Assignor shall have the right to amend,
modify or terminate the Purchase and Servicing Agreement without the
joinder of the Assignee with respect to retail motor vehicle loan and
installment sale contracts not conveyed to the Assignee hereunder;
provided, however, that such amendment, modification or termination shall
not affect or be binding on the Assignee.
2. Accuracy of Purchase and Servicing Agreement.
Huntington and the Assignor represent and warrant to the Assignee
that (a) attached hereto as Exhibit 2 is a true, accurate and complete copy of
the Purchase and Servicing Agreement and any amendments, supplements or other
modifications thereto, (b) the Purchase and Servicing Agreement is in full
force and effect as of the Closing Date, (c) the Purchase and Servicing
Agreement has not been amended or modified in any respect except as set forth
in Exhibit 2 and (d) no notice of termination has been given to the Servicer
under the Purchase and Servicing Agreement.
3. Recognition of Purchaser.
From and after the Closing Date, the Servicer shall note the
transfer of the Receivables to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Receivables and shall service the
Receivables for the benefit of the Assignee pursuant to the Purchase and
Servicing Agreement, the terms of which are incorporated herein by reference.
It is the intention of the Assignor, Huntington and the Assignee that the
Purchase and Servicing Agreement shall be binding upon and inure to the
benefit of Huntington and the Assignee and their successors and permitted
assigns.
4. Representations and Warranties of the Assignee.
The Assignee hereby represents and warrants to the Assignor as
follows:
(a) Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits
of the transactions contemplated hereby, and that it has not relied in
connection therewith upon any
2
statements or representations of the Assignor or Huntington other than
those contained in the Purchase and Servicing Agreement or this
Agreement.
(b) Authority. The Assignee represents and warrants that it is
duly and legally authorized to enter into this Agreement and to perform
its obligations hereunder and under the Purchase and Servicing Agreement.
(c) Enforceability. The Assignee represents and warrants that
this Agreement has been duly authorized, executed and delivered by it and
(assuming due authorization, execution and delivery thereof by each of
the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
5. Representations and Warranties of the Assignor.
The Assignor hereby represents and warrants to the Assignee as
follows:
(a) The Assignor has been duly organized and is validly
existing as a Delaware corporation in good standing under the laws of the
State of Delaware with full power and authority to enter into and perform
its obligations under the Purchase and Servicing Agreement and this
Agreement.
(b) This Agreement has been duly executed and delivered by the
Assignor, and (assuming due authorization, execution and delivery by each
of the other parties hereto) constitutes a legal, valid, and binding
agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or
other similar laws affecting creditors' rights generally and by general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(c) The execution, delivery and performance by the Assignor of
this Agreement and the consummation of the transactions contemplated
thereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
thereof.
(d) The execution and delivery of this Agreement have been duly
authorized by all necessary corporate action on the part of the Assignor;
neither the execution and delivery by the Assignor of this Agreement, nor
the consummation by the Assignor of the transactions therein
contemplated, nor compliance by the Assignor with the provisions thereof,
will conflict with or result in a breach of, or constitute a default
under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment,
decree or order binding on the Assignor or any of its properties, or any
of the provisions of any material indenture,
3
mortgage, deed of trust, contract or other instrument to which the
Assignor is a party or by which it is bound.
(e) There are no actions, suits or proceedings pending or, to
the knowledge of the Assignor, threatened, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will if determined adversely to
the Assignor materially adversely affect its ability to perform its
obligations under this Agreement.
(f) Except for the sale to the Assignee, the Assignor has not
assigned or pledged any Receivable or any interest or participation
therein.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall inure to the benefit of the Assignee and its
permitted assigns notwithstanding any restrictive or qualified endorsement or
assignment. Upon the discovery by the Assignor or the Assignee and its
permitted assigns of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties to this Agreement and in no event later than two (2)
Business Days from the date of such discovery.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 5, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
6. Repurchase of Receivables.
Upon discovery or notice of any breach by the Assignor of the
representation and warranty set forth in Section 5(f) above and such breach
materially and adversely affects the value of any Receivable or the interest
of the Assignee therein (it being understood that any such defect or breach
shall be deemed to have materially and adversely affected the value of the
related Receivable or the interest of the Assignee therein if the Assignee
incurs a loss as a result of such defect or breach), the Assignee promptly
shall request that the Assignor cure such breach and, if such breach is
curable and the Assignor shall have timely commenced such cure but,
notwithstanding its due and diligent efforts, the breach shall not be capable
of cure within sixty days of the earlier of either discovery by or notice to
the Assignor of such breach, the Assignor shall, upon receipt of written
consent by the Assignee, have up to two additional thirty day periods to
effectuate the cure (up to an aggregate total of 120 days) so long as it is
acting in good faith to effectuate such cure. If such cure is not effectuated
after 120 days (or within sixty or ninety days, if the applicable extension
was not granted by the Assignee), the affected Receivable shall, at the
Assignee's option, be repurchased by the Assignor at a price equal to the
Repurchase Amount (as such term is defined in the Sale and Servicing
Agreement) with respect to the affected Receivable.
It is understood and agreed that the obligations of the Assignor set
forth in this Section 6 to repurchase a Receivable constitute the sole
remedies available to the Assignee and
4
its permitted assigns respecting a breach of the representations and
warranties contained in Section 5(f).
7. Continuing Effect.
Except as contemplated hereby, the Purchase and Servicing Agreement
shall remain in full force and effect in accordance with its terms.
8. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Notices.
Any notices or other communications permitted or required hereunder
or under the Purchase and Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to: (a) in the case of the Huntington, The Huntington National Bank,
Huntington Center, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention:
Xxxxxxx X. Xxxxxx or such address as may hereafter be furnished by the Seller;
(b) in the case of the Assignee, Xxxxxx Xxxxxxx ABS Capital II Inc., 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxx, with a copy to Xxxxxx
Xxxxxxx ABS Capital II Inc., 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxxx Xxxxx, or such other address as may hereafter be furnished by the
Assignee and (c) in the case of the Assignor, Xxxxxx Xxxxxxx Asset Funding,
Inc., 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxx, with a copy
to Xxxxxx Xxxxxxx ABS Capital II Inc., 0000 Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxxx Xxxxx, or such other address as may hereafter be furnished
by the Assignor.
10. Counterparts.
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
11. Definitions.
Any capitalized term used but not defined in this Agreement has the
same meaning as in the Sale and Servicing Agreement.
12. Absolute Assignment.
It is the intention of the Assignor and Assignee that this Agreement
shall evidence a sale of the Receivables and other related property from the
Assignor to the Assignee (for non-
5
tax purposes) and that such Conveyed Assets shall not be treated as property
of the Assignor as debtor-in-possession or by a bankruptcy trustee in any
insolvency, bankruptcy or other similar proceeding in respect of the Assignor
under any Applicable Law. Further, it is not the intent of the parties hereto
that any such assignment be deemed a grant by the Assignor to the Assignee of
a mere security interest (for non-tax purposes) in any of the Conveyed Assets
in order to secure a debt or other obligation of the Assignor. However, in the
event and to the extent that, notwithstanding the intent of the parties
hereto, the transfer and assignment contemplated hereby is held not to be a
true or absolute sale (for non-tax purposes), this Agreement shall constitute
a security agreement under Applicable Law, and, in such event, the Assignor
shall be deemed to have granted, and the Assignor hereby grants, to the
Assignee a first priority security interest in all accounts, money, chattel
paper, securities, instruments, documents, deposit accounts, certificates of
deposit, letters of credit, advices of credit, banker's acceptances,
uncertificated securities, general intangibles, contract rights, goods and
other property consisting of, arising from or relating to such Conveyed
Assets, for the benefit of the Assignee and its assignees as security for the
Assignor's obligations hereunder and the Assignor consents to the pledge of
the foregoing Conveyed Assets to the Indenture Trustee under the Indenture
entered into by the Trust and the Indenture Trustee.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
XXXXXX XXXXXXX ASSET FUNDING, INC.,
as Assignor
By: /s/ J. Xxxxxxx Xxx Xxxx
--------------------------------
Name: J. Xxxxxxx Xxx Xxxx
Title: Vice President
XXXXXX XXXXXXX ABS CAPITAL II INC.,
as Assignee
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Vice President
Acknowledged and Agreed by:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
7
SCHEDULE 1
Schedule of Receivables
(on CD-Rom)
EXHIBIT 1
CONVEYED ASSETS UNDER ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
The "Conveyed Assets" under the Assignment, Assumption and
Recognition Agreement shall mean all of the Assignor's right (including the
power to convey title thereto), title and interest in and to the types or
items of property listed below, wherever located and whether now owned or
hereafter acquired:
(i) each of the Receivables;
(ii) all interest, principal, and any other amounts received on or
with respect to each of the Receivables after the Cut-Off Date;
(iii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Assignor in
such Financed Vehicles;
(iv) all other security interests or other property interests
created by or constituting each Receivable and on any property that shall have
secured the Receivables and that shall have been acquired by or on behalf of
the Assignor;
(v) all of the Assignor's rights with respect to each Receivable and
the documentation relating to the Receivables, including, without limitation,
all rights under the VSI Policy with respect to such Receivable and the
contents of each Receivable File, including, without limitation, all of the
Assignor's enforcement and other rights under the UCC and other Applicable
Law;
(vi) rebates of premiums on insurance policies and all other items
financed as part of the Receivables in effect as of the Cut-Off Date,
including but not limited to, service warranties;
(vii) all Servicing Rights with respect to, and all proceeds of and
rights to enforce, any of the foregoing, including, without limitation, any
Insurance Proceeds and Liquidation Proceeds;
(viii) all of the Assignor's rights with respect to the Receivables
under the Purchase Agreement (other than the rights of the Assignor to
indemnification thereunder);
(ix) all accounts, money, chattel paper, securities, instruments,
documents, deposit accounts, certificates of deposit, letters of credit,
advices of credit, banker's acceptances, uncertificated securities, general
intangibles, contract rights, goods and other property consisting of, arising
from or relating to any and all of the foregoing; and
(x) the proceeds of any and all of the foregoing.
Any capitalized terms used but not defined in this Exhibit 1 has the same
meaning as in the Sale and Servicing Agreement.
I-2
EXHIBIT 2
Purchase and Servicing Agreement
As Amended to Closing Date
