EXHIBIT 99.29 SERVICING AGREEMENT AAAC
This SERVICING AGREEMENT (as amended, modified or restated from time to
time, the "Servicing Agreement") is made as of May 25, 2000 (the "Effective
Date"), by and between ALL AMERICAN ACCEPTANCE CORP., a Florida corporation
("AAAC"), and AUTOFUND SERVICING, INC., a Texas corporation ("AFSI").
RECITALS
A. AAAC is the owner and holder of a portfolio of motor vehicle
retail installment sale contracts, some of which are secured
by new or used motor vehicles (the "Sales Contracts"), which
Sales Contracts are identified on A Schedule 1 hereto.
B. The Obligor under each Sales Contract is in default in the
Obligor's obligating under the Sales Contract, including the
payment of the principal and interest due under the Sales
Contract.
C. AAAC and AFSI desire to enter into an agreement pursuant to
which AFSI will manage, administer and service the Receivables
(as defined below), make collection and repossession calls,
liquidate motor vehicles securing the Sales Contracts and
collect any deficiencies existing under the Sales Contracts.
NOW THEREFORE, in consideration of the covenants and conditions
contained in this Servicing Agreement, the parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Defined Terms. Capitalized terms contained in this
Servicing Agreement without definitions have the following meanings, and the
definitions of such terms are equally applicable to both the singular and plural
forms of such terms and to the masculine, feminine and neuter genders of such
terms.
"Affiliate" of any Person means any Person who directly or
indirectly controls, is controlled by, or is under direct or indirect common
control with such Person. For purposes of this definition of "Affiliate", the
term "control" (including the terms "controlling", "controlled by" and "under
common control with") means the possession, directly or indirectly, of the power
to direct or cause a direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract of otherwise.
"Business Day" means any day other than (i) a Saturday or Sunday,
or (ii) another day on which banking institutions in the State of Texas are
authorized or obligated by law to be closed.
"Certificate of Title" means with respect to any Financed Vehicle,
the certificate of title (or other evidence of ownership) issued by the
department of motor vehicles, or other appropriate governmental body, or the
state in which the Financed Vehicle is registered or is to be registered,
showing the Obligor as owner with either notation of the first lien of AAAC, or
such other status indicated thereon which is necessary to perfect the security
interest of AAAC in the Financed Vehicle as a first priority interest.
"Collateral" means a Financed Vehicle and any other property in
which a lien has been created in favor of AAAC
"Collection Account" means such bank account designated to AFSI in
writing as the Collection Account by AAAC which, as of the Effective Date, is
the bank account identified on Schedule 2 attached hereto.
"Collection Fees" has the meaning set forth in Section 2.02(d).
"Collection Period" means a calendar month.
"Collections" has the meaning set forth in Section 3.01(a).
"Credit Application" means the credit application completed by the
Obligor in order to request financing for the Obligor's purchase of the Financed
Vehicle.
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"Dispute Resolution Procedure" means the Dispute Resolution
Procedure attached hereto as Annex E.
"Documents" means with respect to each Receivable if available, (i)
the original Certificate of Title or proof of lien perfection; (ii) the executed
Original Purchase Contract with original signatures; (iii) a copy of the dealer
invoice and invoices for any additional equipment included in such contract,
(iv) a copy of the original signed Credit Application; (v) verification that
AAAC was the loss payee, additional insured, or lien holder with respect to the
Insurance Policies (including policy number); (vi) a copy of the "Report of
Sale", "Guaranty of Title" or other comparable document executed by the seller
dealer which has been forwarded to the appropriate department of motor vehicles;
(vii) copies of: (a) credit bureau reports, (b) the completed credit
investigation form, (c) the completed verification of employment and income
forms, (d) Obligor references, and (c) the credit scoring sheet; (viii) the
applicable funds disbursement invoice or listing; (ix) a certificate for each
type of Insurance Policy purchased by Obligor; (x) AAAC's loan process or "deal
structure" sheet, (xi) a "fact sheet" from the dealer, (xii) a copy of the
"Credit Life Insurance Policy", if any, and the "Credit Disability Insurance
Policy", if any, on the Obligor relating to the Financed Vehicle; (xiii) a copy
of the "Vehicle Invoice", if applicable; (xiv) other documents, or copies, as
applicable, that may be reasonably required in the ordinary course of business
with respect to the enforceability of the Obligor's obligations, and (xv) all
other records, files, and documents, whether consisting of paper or computerized
or in some other form, which relate specifically to the applicable Receivable,
Obligor or the Financed Vehicle or associated rights under the Receivable,
including, without limitation, instruments, documents, correspondence and
memoranda generated by or coming into the possession of AFSI (including, but not
limited to, insurance premium receipts, ledger sheets, payment records,
insurance claim files, correspondence and current and historical computer data
files) that are required to document or service any Receivable.
"Effective Date" has the meaning set forth in the first paragraph
hereof
"Financed Vehicle" means a new or used automobile, sport utility
vehicles or light-duty trucks and all accessions thereto comprising the
Collateral, securing an Obligor's indebtedness under a Receivable that is being
serviced by AFSI hereunder. Beside each Sales Contract on Schedule 1 is an
indication whether or not, as of the Effective Date, there is a Financed Vehicle
for such Sales Contract.
"Indebtedness" means, as applied to any Person at any time, (i) all
indebtedness, monetary obligations or other monetary liabilities of such Person
(a) for borrowed money or evidenced by debt securities, debentures, acceptances,
notes or other similar instruments, and any unpaid accrued interest, fees and
charges relating thereto, (b) with respect to letters of credit issued for such
Person's account, (c) to pay the deferred purchase price of property or
services, except accounts payable and accrued expenses arising in the ordinary
course of business, (d) in respect of capital leases or (e) in respect of
guaranties in connections with any of the foregoing; (ii) all indebtedness,
monetary obligations or other monetary liabilities of such Person secured by a
lien on any property of such Person whether or not such indebtedness, monetary
obligations or monetary liabilities are assumed by such Person; (iii) all
preferred stock subject to mandatory redemptions; (iv) all indebtedness,
monetary obligations or other monetary liabilities of such Person under,
inconnection with or relating to a securitization facility; and (v) all
contingent contractual monetary obligations with respect to any of the forgoing.
"Insurance Policies" means any credit life, disability, warranty,
collision, comprehensive or other insurance policy that insures a Financed
Vehicle and shall include any Required Borrower Insurance.
"Lien" means a security interest, lien, charge, pledge or
encumbrance of any kind.
"Liquidation Proceeds" means, with respect to any Receivable, all
funds, collections and proceeds collected from whatever source in respect
thereof or on the related Financed Vehicle (including, but not limited to, all
proceeds of sale or other disposition, collections, insurance proceeds, dealer
recourse and third party originator recourse).
"Obligor" means, with respect to a Receivable, the purchaser of the
Financed Vehicle, each co-purchaser, co-signer and guarantor, or any other
Person Responsible or potentially responsible for payments under the Receivable.
"Original Purchase Contract" means with respect to each Receivable,
the original contract, together with the original of any and all modifications,
amendments or assignments with respect thereto.
"Outstanding Principal Balance" means the unpaid principal balance
of a Receivable as of a certain date, which amount shall, to the extent
permitted by applicable law, (i) included accrued but unpaid premiums for any
Insurance Policies with respect to the Receivable, (ii) include accrued, but
unpaid, finance charges, fees or other charges related to the Receivable, but
(iii) not include any unearned finance charges, fees or other charges related to
the Receivable.
"Person" means (i) any individual, corporation, estate,
partnership, joint venture, limited liability company, association, joint stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof, or other entity.
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"Receivable" means (i) a Sales Contract and (ii) the Documents and
the Insurance Policies related thereto.
"Reimbursable Expenses" has the meaning set for the in Section
2.08(b).
"Required Borrower Insurance" means any casualty and any other
insurance an Obligor is required to obtain pursuant to the terms of a
Receivable.
"Sales Contract" has the meaning set forth in Recital A.
"Service Provider" means any Person who provides AFSI with any of
the services to be provided by AFSI pursuant to this Servicing Agreement.
ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 2.01. Appointment of AFSI
(a) AAAC hereby appoints, effective on the Effective Date, AFSI to
manage, administer and service the Receivables, make collections on the
Receivables, lawfully take possession of Financed Vehicles, sell or otherwise
dispose of such Financed Vehicle as allowed by applicable law, collect any
deficiencies existing under the Sales Contracts, as specified herein, and to
otherwise perform the duties of AFSI set forth herein. AFSI accepts such
appointment effective as of the Effective Date on the terns and conditions of
this Servicing Agreement. In performing its duties hereunder, AFSI shall have
full power and authority to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable, within the terms of this Servicing Agreement, the Collection Policy
and applicable laws. In the performance of its duties hereunder, AFSI shall be
an independent contractor acting on its own behalf in its own name and for its
own account. It shall have no authority, express or implied, to act in any
manner or by any means for or on behalf of AAAC in any capacity other than as an
independent contractor. Neither this Servicing Agreement nor any of the
activities contemplated hereby shall be deemed to create any partnership, joint
venture, agency or employer/employee relationship between AFSI and AAAC.
Notwithstanding the foregoing provision of this Section 2.01, pursuant to
express provisions of this Servicing Agreement, AFSI may be authorized or
directed to take certain actions on behalf of, in the name of, or for the direct
benefit of AAAC, provided that, in the taking of such action, AFSI shall comply
with all applicable laws and continue to be acting as an independent contractor.
AFSI shall perform all of its obligations under this Servicing Agreement at its
own expense.
(b) The appointment of AFSI pursuant to Section 2.01 shall be for
term commencing on the Effective Date and ending, unless earlier terminated
pursuant to the provisions of Sections 5.03, 5.04 or 6.02 on the Expiration
Date.
Section 2.02. Collection of Receivables.
(a) AFSI shall be responsible for collecting and shall take all
action necessary to collect the Outstanding Principal Balance on all
Receivables, including, without limitation, locating the Obligors and Financed
Vehicles, repossessing Financed Vehicles, filing and prosecuting lawsuits to
collect any deficiencies on the Receivables, and collecting on judgments and
settlements relating to the Receivables. In no event shall the Outstanding
Principal Balance of a Receivable be reduced, except by the amount of any
Liquidation Proceeds received, partial payments by an Obligor or in connection
with a settlement in full of a Receivable as provided in the following
sentences. AFSI shall have the ability to settle any account in full that does
not result in a reduction of greater than 50% of the then Outstanding Principal
Balance of the applicable Receivable. AFSI shall obtain the prior written
approval of AAAC for any amount over the limit. Additionally, any settlement of
an account that would provide for payments in tow or more installments rather
than a single lump sum payment shall require the prior written approval of AAAC.
(b) AFSI shall provide sufficient staffing and telephone lines to:
(i) quote payoffs to requesting Obligors verbally and in writing, (ii) answer
billing questions and (iii) reasonably respond to any other written or
telephonic inquiries by Obligors or AAAC relating to the Receivables.
(c) AFSI will, consistent with the standard of care required by
this Servicing Agreement and Applicable law, act with respect to the Receivables
and the Collateral in such manner as will, in the reasonable judgment of AFSI,
maximize the benefits to be received by AAAC with respect thereto.
Notwithstanding the foregoing or anything herein or in the Collection Policy to
the contrary, in performing its duties hereunder, AFSI shall, and shall cause
all Service Providers to, comply with the terms and provisions of this Servicing
Agreement, the Collection Policy and all applicable laws (including, without
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limitation, all consumer protection laws, all finance laws and all debt
collection laws). If there is a conflict between the terms and provisions of
this Servicing Agreement, the Collection Policy and applicable law, AFSI shall,
upon providing written notice to AAAC, comply with applicable law. AFSI shall
obtain and provide to AAAC a signed written statement from each Service Provider
stating that such Service Provider will comply with the terms and provisions of
this Servicing Agreement and all applicable law (including, without limitation,
all consumer protection laws, all finance laws and all debt collection laws) and
such Service Provider is experienced and knowledgeable in providing the services
the Service Provider has been requested to perform.
Section 2.03. Repossession of Financed Vehicles. AFSI shall use its
reasonable best efforts, consistent with applicable law, to repossess or
otherwise convert the ownership of the Financed Vehicle securing each
Receivable. None of AFSI nor its Affiliates, agents, employees or their
relatives, shall be allowed to purchase a Financed Vehicle being foreclosed
upon, except through an open auction procedure. All sales shall be for cash.
Section 2.04. Maintenance of Security Interests in Financed Vehicles
and Receivables. Provided that AFSI or any Service Provider is aware of facts
which indicate a need to take such sections as described below, AFSI shall,
consistent with the standard set forth in Section 2.02(c), take such actions as
ae necessary to maintain the continuing perfection and priority of AAAC's right,
title and interest in the Receivables and the Collateral, including, but not
limited to, obtaining the execution and the registering, re-registering,
recording, re-recording, filing, and refilling of all security agreements,
Certificates of Title, cautionary financing statements, continuation statements
or other instruments as are necessary to maintain the security interests granted
by the Obligors under the respective Receivables. AAAC authorizes AFSI to
re-perfect or cause the re-perfection of such security interests on its behalf.
Section 2.05. Reports Provided by AFSI Reports Provided by AFSI. AFSI
will provide to AAAC such reports relating to the Receivables as noted in Annex
C at the times and in the form specified therein. AFSI shall also provide AAAC
such reasonable additional reports as may be requested in writing by AAAC within
the time set forth in such request (such time not to be less than five (5)
Business Days), but any increase in the number of reports or reporting frequency
requested from that provided on Annex C may require a reasonable additional fee
based on a time and material basis to be agreed to by AAAC and AFSI based on the
specific requests of AAAC. Each report shall be certified by an officer of AFSI
as being complete, true and correct in all material respects, and, in addition
to any other requirements, shall have a line item setting forth the cumulative
total for the relevant category in the report.
Section 2.06. Servicing Fee
(a) Each month during the term of this Servicing Agreement, AAAC
shall pay AFSI fifty percent (50%) of the Collections (the "Servicing Fee").
(b) The Servicing Fee and for the immediately preceding Collection
Period shall be paid by AAAC to AFSI by the later of the fifteenth (15th) day
and the thirtieth (30th) day of the calendar month and five (5) Business Days
after AFSI delivers to AAAC each of the following: (i) the AFSI Certificate for
such Collection Period pursuant to Section 2.07 below and (ii) the monthly
reports required by Section 2.05.
Section 2.07. AFSI Certificates. AFSI shall deliver to AAAC, on or
prior to the tenth (10th) day of each month, an AFSI Certificate substantially
in the form provided in Annex D hereto (the "AFSI Certificate").
Section 2.08. Costs and Expenses.
All fees, costs and expenses incurred or paid by AFSI in carrying out
its obligations and duties hereunder shall be paid by AFSI and AFSI shall be
responsible for paying all fees, costs and expenses incurred or paid by or to
any Service Provider.
Section 2.09. Responsibility for Insurance Policies, Processing of
Claims Under Insurance Policies.
(a) AFSI shall maintain originals or good and legible copies of all
Documents obtained in performing its duties hereunder with respect to each
Receivable and, if applicable, the Financed Vehicle related thereto. AFSI shall
keep satisfactory books and records pertaining to each Receivable and shall make
periodic reports in accordance with this Servicing Agreement. Such records may
not be destroyed or otherwise disposed of except as provided herein and as
allowed by applicable laws, regulations or decrees. All documents. Whether
developed or originated by AFSI or not, reasonably required to document or to
properly administer any Receivable shall remain at all times the property of
AAAC, and AFSI shall hold such documents in trust for AAAC. AFSI shall not
acquire any property rights with respect to any Receivable or any Document
(including, without limitation, any possessory Lien with respect to any
Receivable or any Document), and shall not have the right to possession of them
except pursuant to the terms of this Servicing Agreement. AFSI shall respond to
all third party inquires concerning ownership of the Receivables by indicating
that the Receivables are the property of AAAC, and, if applicable, subject to a
Lien in favor of AAAC. AFSI shall bear the entire cost of restoration or
replacement of any Document that is damaged, lost or destroyed while in AFSI's
or a Service Provider's possession or under AFSI's or a Service Provider's
control.
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(b) AFSI hereby agrees that the computer files and other physical
records of the Receivables maintained by AFSI will bear an indication reflecting
that the Receivables are owned by AAAC and are subject to a Lien in favor of
AAAC.
Section 2.11. Records. AFSI shall maintain or cause to be maintained
such books of account and other records as will enable AAAC to determine the
status of each Receivable. The foregoing shall not reduce or preclude in any way
AFSI's obligations to prepare and submit the reports required by the Servicing
Agreement.
Section 2.12. Inspection
(a) At all times during the term hereof, AFSI shall afford AAAC and
its authorized agents and representatives, upon not less than 24 hours notice,
reasonable access during normal business hours to the all records relating to
the Receivables. The examination referred to in the Section 2.12 will be
conducted in a manner which does not unreasonably interfere with AFSI's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination, AAAC and its authorized agents and representatives
may, using generally accepted audit procedures, verify (1) the status of each
Receivable and review the Documents and other records relating thereto for
conformity to reports prepared pursuant to Section 2.05 or otherwise, and (2)
AFSI's compliance with this Servicing Agreement. Nothing in this section shall
affect the obligation of AFSI to observe any applicable law prohibiting
disclosure of information regarding Obligors, and the failure of AFSI to provide
access to information as a result of such obligation shall not constitute a
breach of this Section 2.12. AFSI's obligations under this Section 2.12 shall be
to provide access to records related to the Receivables, ensure that such
records are in reasonable order, and to respond to questions related to such
records. AFSI shall not be compensated for providing such services or for
otherwise facilitating any such reasonable inspections. Any other expense
incident to the exercise by AAAC of any right under this Section 2.12 (including
without limitation copying costs and third party fees and costs) shall be borne
by AAAC provided, however, that AFSI shall provide such services to AAAC at
AFSI's actual cost.
(b) At no additional charge, not more frequently than monthly, AFSI
will, at AAAC's request, provide AAAC with a data extract disk, in a format
requested by AAAC, containing detailed information, in form and substance
acceptable to AAAC, relating to the status of each Receivable and the collection
activity on the Receivables for the periods identified by AAAC.
Section 2.13 Enforcement.
(a) If AFSI determines that a lawsuit is necessary to collect on
the Receivables, AFSI shall xxx to enforce or collect upon the Receivables and
the Insurance Policies (including unpaid claims), in its own name, if possible,
or as agent for AAAC. If AFSI commences a legal proceeding t enforce a
Receivable or and Insurance Policy, the act of commencement shall be deemed to
be an automatic assignment of the Receivable and the related rights under the
Insurance Policies by AAAC to AFSI for purposes of collection only. If, however,
in any enforcement suit or legal proceeding it is held that AFSI may not enforce
a Receivable or an Insurance Policy on the grounds that it is not a real party
in interest or a holder entitled to enforce the Receivable or the Insurance
Policy, AAAC shall, at AFSI's request, assign the Receivable or the Insurance
Policy to AFSI for the limited purpose of enforcing the Receivable, or the
Insurance Policy, or to take such steps as AAAC deems necessary to enforce the
Receivable or the Insurance Policy, including bringing suit in AAAC's name.
Except as provided in Section 2.08 (b), AFSI shall not be entitled to
reimbursement for expenses paid in connection with enforcement or collection
activities with respect to the Receivables pursuant to this Section 2.13.
Assignment of a Receivable shall not effect the allocation of any Collections
received with respect to such Receivable and all such Collections shall be
deposited to the Collection Account in accordance with this Servicing Agreement
and allocated between AAAC and AFSI as if no such assignment had been made.
(b) AFSI shall exercise any rights of recourse against third
Persons that exist with respect to any Receivable in accordance with AFSI's
usual practice, the standard of care required by this Servicing Agreement and
applicable law. In exercising such recourse rights, AFSI is hereby authorized on
AAAC's behalf to reassign the Receivable and to deliver the Certificate of Title
to the Financed Vehicle to the Person against whom recourse exists at the price
set forth in the document creating the recourse.
(c) Without the express written consent of AAAC, AFSI may not
permit any waiver, release, rescission or cancellation of any Receivable nor may
it take any action with respect to any Receivable or Collateral that would
materially impair the rights of AAAC therein or in the proceeds thereof.
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ARTICLE III
COLLECTIONS AND INSURANCE COVERAGE
Section 3.01. Collections. Each Business Day, AFSI shall deposit into
the Collection Account, all funds for payments made by or on behalf of an
Obligor and received by or on behalf of AFSI, including, without limitation, all
actual payments, insurance proceeds, recoveries, settlement payments,
collections, all proceeds relating to the repossession or disposition of the
Financed Vehicles (including without limitation Liquidation Proceeds) and all
payments or other amounts, if an made by or on behalf of an Obligor and received
by AFSI with respect to any Receivable (the "Collections").
Section 3.02. Insurance Coverage. AFSI shall maintain, at its own
expense, a crime insurance policy or fidelity bond, with broad coverage with
responsible companies on all officers, employees or other Persons acting on
behalf of AFSI in any capacity with regard to the Receivables to handle funds,
money, documents and papers relating to the Receivables, including, without
limitation, the Service Providers. Any such insurance shall protect and insure
AFSI against losses for dishonest acts of such Persons and shall be maintained
in a form that would meet the requirements of prudent institutional auto loan
servicers and in an amount of not less than $10,000 per occurrence with no
deductible. Additionally, AFSI shall maintain, at its own expense, such other
insurance policies with responsible companies in such limits and with such
deductibles as would be maintained by a reasonable prudent operator of a
business performing the services to be performed by AFSI hereunder. AAAC shall
be named as an additional named insured on each policy and as loss payee and as
an additional insured on the crime insurance policy. Additionally, each
insurance policy shall provide that it may not be cancelled or modified without
thirty (30) days prior written notice to AAAC. On the Effective Date, AFSI will
provide AAAC a certificate of insurance evidencing each such insurance policy
and within 5 days of the issuance of any new policy or the reissuance of any
existing policy, AFSI will provide AAAC a certificate of insurance evidencing
such policy, in each case, as required above, identifying AAAC as an additional
named insured and as loss payee.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.01. Representations and Warranties of AFSI. AFSI hereby makes
the following representations and warranties to AAAC. These representations and
warranties are made as of the execution of this Servicing Agreement as being
true and correct at the time and at all times thereafter while AFSI has
obligations pursuant to this Servicing Agreement.
(a) Due Organization and Good Standing. AFSI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
its incorporation, with power and authority to own its properties and to conduct
its businesses as such properties are owned and such businesses are presently
conducted. AFSI is qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the character of its properties or the
nature of their activities makes such qualification necessary.
(b) Power and Authority. AFSI has the power and authority to
execute and deliver this Servicing Agreement and to carry out its terms; and the
execution, delivery and performance of this Servicing Agreement have been duly
authorized by AFSI by all necessary corporate action.
(c) Binding Obligations. This Servicing Agreement shall constitute
a legal, valid and binding obligation of AFSI enforceable in accordance with its
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 shall be considered in a proceeding inequity or at law.
(d) No Violation. The consummation of the transactions contemplated
by this Servicing Agreement and the fulfillment of the terms thereof shall not
conflict with, result in any breach of any of the terms, and the provisions of,
nor constitute (with or without notice or lapse of time) a default under, the
articles of organization or by-laws of AFSI, or to the best of AFSI's knowledge,
after reasonable investigation, any indenture, agreement or other instrument to
which AFSI is a part of by which it shall be bound; nor result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than this Servicing
Agreement); nor violate any law or, to the best of AFSI's knowledge, any order,
rule or regulation applicable to AFSI of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over AFSI or any of its properties.
(e) No Proceedings. There are no proceedings or investigations
pending or, to AFSI's best knowledge, threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over AFSI or any of its properties (a) contesting the validity of
this Servicing Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated by this Servicing Agreement, or (c) seeking any
determination or ruling that might materially and adversely affect the
performance by AFSI of its obligations under, or the validity or enforceability
of, this Servicing Agreement.
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(f) Experience. AFSI is experienced and knowledgeable in providing
the services it has agreed to provide and will provide under this Servicing
Agreement and will only employ Service Providers who are experienced and
knowledgeable in providing such services.
(g) Former Directors and Officers of AAAC. No former officer of
director of AAAC (or a predecessor of AAAC) is employed or otherwise a party to
an agreement with AFSI or an Affiliate of AFSI, to the knowledge of AFSI, no
former officer or director of AAAC (or a predecessor of AAAC) is employed or
otherwise a party to an agreement with a Service Provider of an Affiliate of a
Service Provider; and no former officer of director of AAAC (or a predecessor of
AAAC) has any equity interest in or the right or acquire any equity interest in
AFSI or a Service Provider.
Section 4.02. Representations and Warranties of AAAC. AAAC hereby makes
the following representations and warranties to AFSI. These representations and
warranties are made as of the execution of this Servicing Agreement by AAAC as
being true and correct at that time and at all times thereafter while AAAC has
any obligations pursuant to this Servicing Agreement.
(a) Due Organization and Good Standing. AAAC is a cooperation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, with power and authority to own its properties and to conduct
its business as such properties are owned and such business is presently
conducted. AAAC is qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the character of Its properties or the
nature of its activities makes such qualification necessary.
(b) Power and Authority. AAAC has the power and authority to
execute and deliver this Servicing Agreement and to carry out its terms; and the
execution, delivery and performance of this Servicing Agreement have been duly
authorized by AAAC by all necessary corporate action.
(c) Binding Obligations. This Servicing Agreement shall constitute
a legal, valid and binding obligation of AAAC enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditor's
rights in general and by general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding inequity or at law.
(d) No Violation. The consummation of the transactions contemplated
by this Servicing Agreement and the fulfillment of the terms thereof shall not
conflict with, result in any breach of any of the terms, and the provisions of,
nor constitute (with or without notice or lapse of time) a default under, the
articles of organization or by-laws of AAAX, or to the best of AAAC's knowledge,
after reasonable investigation, any indenture, agreement or other instrument to
which AAAC is a part of by which it shall be bound; nor result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than this Servicing
Agreement); nor violate any law or, to the best of AAAC's knowledge, any order,
rule or regulation applicable to AAAC of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over AAAC or any of its properties.
(e) Permits and Licenses. AAAC has all necessary permits, license,
consents, approvals, waiver, registrations and notifications necessary for the
execution and performance of this Servicing Agreement by AAAC (including,
without limitation, all permits, licenses, consents, approvals, waivers,
registrations and notifications relating to any hardware, software or other
intellectual property utilized or to be utilized by AAAC pursuant to this
Servicing Agreement) and there has not been any revocation, withdrawal,
termination, modification, cancellation, suspension or similar limitation of
such permits, licenses, consents, approvals, waivers, registrations and
notifications.
Section 4.03. Standard of Care. In performing its duties and
obligations hereunder and in making its judgments, determinations and decisions
pursuant to this Servicing Agreement, AFSI will exercise that degree of skill
and care consistent with the degree of skill and care that AFSI exercises with
respect to similar motor vehicle retail installment sales contracts or loans
owned and/or serviced by AFSI and that is consistent with prudent industry
standards, policies and procedures AFSI applies with respect to similar motor
vehicle retail installment contracts or loans owned or serviced by it; provided,
however, that notwithstanding the foregoing, AFSI shall not, except pursuant to
a judicial order from a court of competent jurisdiction, or as otherwise
required by applicable law or regulation, release or waive the right to collect
the unpaid balance on any Receivable. In performing its duties and obligations
hereunder, AFSI shall maintain all state and federal licenses, permits and
franchises necessary for it to perform its responsibilities hereunder, and shall
not impair the rights of AAAC in the Receivables and ally other property in
which AAAC has an interest.
Section 4.04. Survival of Representation and Warranties. The
representations and warranties set forth in this Article IV are continuous and
shall survive the termination of this Servicing Agreement. Upon discovery by
either AFSI or AAAC of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other party.
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Section 4.05. Covenants of AFSI. AFSI hereby covenants to AAAC during
the term of this Servicing Agreement:
(a) In performing its duties and obligations hereunder and in
making its judgments, determinations and decisions pursuant to this Servicing
Agreement, AFSI will comply with all applicable state and federal laws, rules,
and regulations. Notwithstanding anything herein to the contrary, to the extent
applicable law, the Collection Policy and this Servicing Agreement conflict,
AFSI shall comply with applicable law.
(b) All payments received by AFSI with respect to the Receivables
will be received in trust by AFSI for the benefit of AAAC and will be deposited
into the Collection Account, as provided in Section 3.01.
(c) Except as otherwise provided in the Collection Policy, AFSI
shall (i) not release any Financed Vehicle securing any Receivable from the
security interest granted in connection with such Receivable in whole or in part
except in the event of payment in full by the obligor thereunder (or settlement
pursuant to Section 2.02) or upon transfer of the Financed Vehicle to a
successor purchaser of the vehicle following repossession by AFSI, (ii) not take
any action or fail to take any actin which could materially impair or adversely
affect the rights of AAAC in the Receivables or the Collateral, (iii) except as
provided in Sections 2.02 and 2.03, not sell, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Receivable, the Collateral or any interest therein, (iv) defend the right, title
and interest of AAAC in, to and under such Receivables and Collateral, against
all clams of third parties claming through or under AFSI, (v) deposit into the
Collection Account all payments received by AfsI with respect to the Receivables
in accordance with this Servicing Agreement, (vi) promptly notify AAAC if any
representation or warranty by AFSI contained herein is or becomes untrue,
incomplete or misleading, (vii) promptly notify AAAC of any violation of
applicable law or the Collection Policy by a Service Provider or Violation of
any material provision of any agreement between a Service Provider and AFSI
relating to the services to be performed pursuant to this Servicing Agreement,
and (viii) upon the discovery of the relocation out of state of a Financed
Vehicle, promptly notify AAAC of the occurrence of any event which, to the
knowledge of AFSI, would require that AAAC make or cause to be made any filing,
report, notice, or application or seek any consent or authorization from any
government agency, tribunal, or authority to create, maintain and protect a
first-priority security interest of AAAC in, to and on the Financed Vehicles and
a first-priority security interest of AAAC in, to , and on the Receivables
(unless such actions are being taken by AFSI pursuant to Section 2.04 above).
(d) AFSI will promptly advise AAAC of any inquiry received from an
Obligor which contemplates the consent of AAAC. Inquiries contemplating the
consent of AAAC shall include, but not be limited to, inquires about settlement
of any unasserted claim or defense, the actions identified in Section 2.02 as
requiring the consent of AAAC and all other matters AFSI should reasonably
understand are not within AFSI's authority under this Servicing Agreement or the
Collection Policy.
(e) Within two (2) Business Days of receipt, AFSI shall provide
AAAC with copies of all correspondence, written notices and legal and
administrative documents (including without limitation, any written claim, a
counterclaim or the initiation of any legal process, litigation or
administrative or judicial investigation) which alleges that AFSI, a Service
Provider of AAAC committed a wrongful act with regard to a Receivable, Obligor
or any Collateral, violated any law relating to debt collection practices or
which alleges or seeks damages or losses of $10,000 or more. Additionally,
within two (2) Business Days of receipt, AFSI shall inform AAAC in writing of
the following:
(f) the receipt of a written notice from any agency or governmental
body having authority over the conduct of its business that (i) it is being
placed under regulatory supervision, (ii) any license, permit, charter,
membership or registration needed to perform this Servicing Agreement or
material to the conduct of its business is to be suspended or revoked, or (iii)
it is to cease and desist any practice, procedure or policy employed by it in
the conduct of its business, and such cessation may materially affect the
conduct of its business or adversely affect its financial affairs or adversely
affect its ability to perform any of its obligations under this Servicing
Agreement;
(g) the receipt of any written claim or the receipt of a written
notice of the initiation of any legal process, litigation or administrative of
judicial investigation against it which may materially affect the operation,
financial condition or business of AFSI or AFSI's ability to perform any of its
obligations under this Servicing Agreement or which in any way involves AAAC's
security interest in the Receivables or related Collateral or other rights
therein or under this Servicing Agreement; or
(h) AFSI will reasonably cooperate with AAAC in audits, reviews and
special reports as may be required by the Court of any of AAAC's lenders. AAAC
shall reimburse AFSI for all reasonable costs and expenses associated therewith.
For purposes of reimbursement under this Section, the term special reports shall
not include any reports noted on Annex C hereto or otherwise required by this
Servicing Agreement and the term audits does not include the audits referenced
in Section 4.05(i).
(i) Attached hereto as Schedule 3 is a list of the servicing
locations of AFSI and the Persons involved in, or responsible for, the
administration and servicing of the Receivables, which list shall be promptly
updated in writing by AFSI and provided to AAAC as changes are made. AFSI shall
not change a location where it administers or services the Receivables unless it
first gives AAAC sixty (60) days written notice and takes all action AAAC
reasonably requests in order to protect AAAC's interest in the Receivables and
Documents at the new location.
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(j) AFSI agrees to give written notice to AAAC within two (2)
Business Days of the occurrence, of any Event of Default by AFSI.
(k) AFSI shall provide AAAC quarterly financial statements for AFSI
within sixty (60) days of the end of each fiscal quarter of AFSI and annual
audited financial statements within one hundred twenty (120) days of the fiscal
year-end. The financial statements shall be certified by an officer of AFSI as
being true and correct in all material respect.
Section 4.06. Assumption of Obligations of AFSI. Notwithstanding
anything to the contrary in this Servicing Agreement, AFSI shall be liable to
AAAC for all actions and inaction's of any Service Provider, and the delegation
to a Service Provider of any obligations of AFSI under this Servicing Agreement
shall not relieve AfsI of such obligations.
Section 4.07. Interest in Receivables and Proceeds. AFSI acknowledges
that AFSI has no interest in the Receivables and the proceeds therefrom
deposited in the Collection Account. Except as otherwise provided in this
Servicing Agreement, AFSI agrees to hold the Receivables and the proceeds
therefrom in its possession as agent for AAAC.
ARTICLE V
DEFAULT, REMEDIES AND LIABILITY
Section 5.01. Events of Default by AFSI. Any of the following acts or
occurrences shall constitute an Event of Default by AFSI under this Servicing
Agreement:
(a) The intentional failure of AFSI to make any payment, transfer
or deposit of funds required to be made under the terms of this Servicing
Agreement on the date such payment, transfer or deposit is required to be made;
(b) The failure of AFSI (other than an intentional failure) to make
any payment, transfer, or deposit of monies required to be made under the terms
of this Servicing Agreement on the date such payment, transfer, or deposit is
required to be made, which failure continues unremedied for a period of two (2)
Business Days after the date when originally due; provided, however, that such
grace period shall no longer apply upon the failure of AFSI to make any payment,
transfer or deposit funds required under the terms of this Servicing Agreement
on the date such payment, transferor deposit is required to be made;
(c) The failure of AFSI or a Service Provider to comply with any
applicable law in performing the services to be performed hereunder.
(d) The failure of AFSI to observe or perform in any material
respect any other covenant or agreement required to be performed under this
Servicing Agreement which failure continues unremedied for a period of five (5)
Business Days after written notice of such failure shall have been given to
AFSI, provided that, if such failure cannot be cured by diligent efforts of AFSI
within such five (5) Business Day period, then such tie period shall be extended
for the shorter of (i) the period reasonably required to cure such failure using
the diligent efforts of the breaching party and (ii) thirty (30) days;
(e) The entry with respect to AFSI of a decree or order for relief
by a court or agency or supervisory authority having jurisdiction under any
present or future federal or state bankruptcy, insolvency or similar law;
(f) AFSI 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,
(g) An involuntary case shall be commenced against AFSI and the
petition shall not be dismissed, stayed, bonded or discharged within sixty (60)
days after commencement of the case, or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of AFSI in an
involuntary case, under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law, or the board of
directors of AFSI adopts any resolution or otherwise authorizes any action to
approve any of the foregoing. A decree or order of a court having jurisdiction
in the premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other office having similar powers over AFSI or over all
or a substantial part of the assets of AFSI shall be entered; or an interim
receiver, trustee or other custodian of AFSI or of all or a substantial part of
the assets of AFSI shall be appointed or a warrant of attachment, execution
similar process against any substantial part of the assets of AFSI shall be
issued and any such event shall not be stayed, dismissed, bonded or discharged
within sixty (60) days after entry, appoint mentor issuance or the board of
directors of AFSI adopts any resolution or otherwise authorizes any action to
approve any of the foregoing;
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(h) AFSI shall fail to make any payment when due with respect to
any Indebtedness of AFSI (other than an obligation payable hereunder), or any
breach, default or event of default shall occur, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any such
Indebtedness or require a redemption or other repurchase of such Indebtedness
and such failure relates to the acceleration or redemption of an amount in
excess of $500,000, and such acceleration shall continue for a period of five
(5) Business Days;
(i) There shall have occurred any event which materially adversely
affects the ability of AFSI to perform its obligations hereunder, or, if in the
reasonable judgment of AAAC, there is a material adverse change in the financial
condition or operations of AFSI;
(j) Either Xxxx Xxxxxx or Xxxxx X. Xxxxxxx shall cease to be
primarily responsible for the management of the business and affairs of, or
otherwise cease to control the day-to-day operations of, AFSI;
(k) Any representation, warranty or statement made by AFSI in this
Servicing Agreement or in any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of the
time when the same shall have been made; or
(l) AFSI or a Service Provider, or an Affiliate of AFSI or a
Service Provider, shall employ or otherwise contract with any former officer of
director of AAAC (or a predecessor of AAAC), or any former officer or director
of AAAc (or a predecessor of AAAC) shall acquire any equity interest in or the
right to acquire any equity interest AFSI or a Service Provider.
Section 5.02. Events of Default by AAAC. Any of the following acts or
occurrences shall constitute an Event of Default by AAAC under this Servicing
Agreement:
(a) Failure of AAAC to make any payment required to be made under
the terms of this Servicing Agreement which failure continues unremedied for a
period of fifteen (15) days after written notice of such failure shall have been
given by AFSI to AAAC;
(b) The failure of AAAC to observe or perform in any material
respect any other covenant or agreement required to be performed under this
Servicing Agreement which failure continues unremedied for a period of five (5)
Business Days after written notice of such failure shall have been given to AAAC
provided that, if such failure cannot be cured by diligent efforts of AAAc
within such five (5) Business Day period, then such time period shall be
extended by the shorter of (i) the period required to cure such failure using
the diligent efforts of AAAc and (ii) thirty (30), days;
(c) The entry with respect to AAAC of a decree or order for relief
by a court or agency or supervisory authority having jurisdiction under any
present or future federal or state bankruptcy, insolvency or similar law;
(d) AAAC 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 stature, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations;
(e) An involuntary case shall be commenced against AAAC and the
petition shall not be dismissed stayed, bonded or discharged within sixty (60)
days after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of AAAC in an
involuntary case, under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect or any other similar relief shall be granted
under any applicable federal, state, local or foreign law; or the board of
directors of AAAC adopts any resolution or otherwise authorizes any action to
approve any of the foregoing. A decree or order of a court having jurisdiction
in the premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over AAAC or overall
or a substantial part of the assets of AAAC shall be entered or an interim
receiver, trustee or other custodian of AAAC or of all or a substantial part of
the assets of AAAC shall be appointed or a warrant of attachment, execution or
similar process against any substantial part of the assets of AAAC shall be
issued and any such event shall not be stayed, dismissed, bonded or discharged
within sixty (60) days after entry, appoint mentor issuance; or the board of
directors of AAAC adopts any resolution or otherwise authorizes any action to
approve any of the foregoing;
(f) AAAC shall fail to make any payment when due with respect to
any Indebtedness of AAAC (other than an obligation payable hereunder), or any
breach, default or event of default shall occur, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any such
Indebtedness, if the holder or holders of such Indebtedness accelerate the
maturity of any such Indebtedness or require a redemption or other repurchase of
such Indebtedness and such failure relates to the acceleration or redemption of
an amount in excess of $10,000,000, and such acceleration shall continue for a
period of five (5) Business Days, or
(g) Any representation, warranty or statement made by AAAC in this
Servicing Agreement or in any report or other writing delivered pursuant hereto
shall prove to be incorrect in any material respect as of the time when the same
shall have been made.
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Section 5.03. Remedies of AAAC. If an Event of Default as described in
Section 5.01 shall have occurred and be then continuing AAAC may exercise any
right or remedy available to AAAC under this Servicing Agreement or under
applicable law and, in addition, may immediately terminate this Servicing
Agreement by giving written notice of such termination to AFSI. Such termination
shall be without prejudice to any claims of AAAC resulting from an Event of
Default by AFSI.
Section 5.05. Remedies of AFSI. If an Event of Default as described in
Section 5.02 shall have occurred and be then continuing, AFSI may exercise any
right or remedy available to it under this Servicing Agreement or under
applicable law, including termination of this Servicing Agreement by giving
sixty (60) days prior written notice of such termination to AAAC. Such
termination shall be without prejudice to any claims of AFSI resulting from an
Event of Default by AAAC. If an Event of Default occurs as described in Sections
5.02 ( c) through (e) above as to AAAC, AFSI may terminate this Servicing
Agreement immediately upon written notice to AAAC.
(a) AFSI shall be strictly accountable to AAAC for all payments
actually received by AFSI (or any party with which it has contracted) on
Receivables and shall be liable for any actual damages resulting from its breach
of such obligation.
(b) AFSI hereby indemnifies AAAC from any and all losses, damages,
costs, good faith settlements, expenses, taxes, reasonable attorney' and
paralegal' fees, and all other liabilities of any kind or nature whatsoever,
resulting, directly or indirectly in whole or in part, from any claim, demand or
suit by or on behalf of any third party against AAAC arising from an action,
inaction or omission by AFSI or any Service Provider in performing any
obligation of AfsI hereunder or with respect to any Receivable, Sales Contract
or the Collateral, including, without limitation, any claim, demand or suit by
or on behalf of any Service Provider for any fee or expense which is not a
Collection Fee.
(c) The following procedures shall apply with respect to any
indemnity obligation pursuant to this Servicing Agreement:
(1) AAAC shall give AFSI a notice (a"Claim Notice") describing in
reasonable detail the facts known to AAAC giving rise to any claim for
indemnification and shall include in such Claim Notice (if then known) the
amount or the method of computation of the amount of such claim and a reference
to the provision of this Servicing Agreement or any other agreement, document of
instrument executed hereunder or in connection herewith upon which such claim is
based; provided, that a Claim Notice in respect of any action at law or suit in
equity by or against AAAC as to which indemnification will be sought shall be
given promptly after the action or suit is commenced, provided further that
failure to give such notice shall not relieve the AFSI of its obligations
hereunder except to the extent it shall have been prejudiced by such failure.
(2) In calculating any amount claimed pursuant to a Claim Notice,
there shall be deducted (i) any insurance recovery in respect thereof (and no
right of subrogation shall accrue hereunder to any insurer), and (ii) the amount
of any tax benefit to AAAC (or any of its Affiliates) with respect to such
amount (after giving effect to the tax effect of receipt of the indemnification
payments).
(3) After the giving of any Claim Notice pursuant hereto, the
amount of indemnification to which AAAC shall be entitled shall be determined;
(i) by written agreement between AAAC and AFSI, (ii) by the Dispute Resolution
Procedures; or (iii) by any other means to which AAAC and AFSI shall agree.
(4) AAAC shall have the right to conduct and control, through
counsel of choosing, the defense, compromise or settlement of any third Person
claim, action or suit against AAAC as to which indemnification will be sought by
AAAC from AFSI hereunder, and in any such case AFSI shall cooperate in
connection therewith and shall furnish, at its own expense, such records,
information and testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested by AAAC in
connection therewith; provided that AFSI may participate, through counsel chosen
by it and at its own expense, in the defense of any such claim, action or suit
as to which AAAC has so elected to conduct and control the defense thereof
provided such counsel does not, in the judgment of AAAC's counsel, unreasonably
interfere with AAAC's defense, compromise or settlement of such claim, action or
suit; and provided, further, that AAAC shall not, without the written consent of
AFSI (which written consent shall not be unreasonably withheld), pay, compromise
or settle any such claim, action or suit, except that no such consent shall be
required if, following a written request from AAAC, AFSI shall fail, within 14
days after the making of such request, to acknowledge and agree in writing that,
if such claim action or suit shall be adversely determined, AFSI has an
obligation to provide indemnification hereunder to AAAC. Notwithstanding the
foregoing, AAAC shall have the right to pay, settle or compromise any such
claim, action or suit without such consent, provided that in such event AAAC
shall waive any right to indemnity therefor hereunder unless such consent is
unreasonably withheld.
Section 5.06. Force Majeure. Not withstanding anything herein to the
contrary, no party to this Servicing Agreement shall be considered in default
hereunder of have any liability to any party for any failure to perform if such
failure arises out of the following causes beyond the control of such party;
acts of God, or a public enemy, fire, flood or war.
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ARTICLE VI
TERMINATION
Section 6.01. Term of Agreement. The term of this Servicing Agreement
shall begin on the Effective Date and shall continue until terminated as
provided herein (the "Termination Date").
Section 6.02. Termination Without Cause.
(a) In addition to the termination rights set forth in Section
5.03, AAAC may terminate this Servicing Agreement at any time upon thirty (30)
days written notice to AFSI. Upon such termination, AFSI shall be entitled to
receive (i) the earned and unpaid Servicing Fee earned as of the date of such
termination.
(b) AFSI may, so long as there exists no Event of Default by AFSI,
terminate this Servicing Agreement at any time (1) upon at least ninety (90)
days prior written notice to AAAC, and (2) payment of $25,000 to AAAC as a
transition fee (but not as a penalty). Upon such termination, AFSI shall not be
entitled to any unpaid Servicing Fees.
(c) Upon an Event of Default by AAAC pursuant to the Servicing
Agreement, AFSI may terminate this Servicing Agreement as provided in Section
5.04, and upon such termination AFSI shall be entitled to receive the accrued
and unpaid Servicing Fee earned as of the date of such termination.
Section 6.03. Effect of Termination of Agreement. Upon termination of
this Servicing Agreement, AFSI shall promptly (a) return all Documents and any
related files, electronic data, other magnetic media and correspondence in its
possession as are related to the management of the Receivables and the services
provided hereunder and (b) terminate any and all agreements with Service
Providers relating to the services provided hereunder without liability to AAAC.
Section 6.04. Survival of Provisions. Notwithstanding anything herein
to the contrary, the provisions of Sections 4.05(e), 4.05(f), 4.06, 4.07 and
5.05 shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANIOUS PROVISIONS
Section 7.01. Amendment. This Servicing Agreement may be amended or
modified by an agreement signed by an authorized representative of each of the
parties hereto
Section 7.02. Waiver. The provisions of this Servicing Agreement may
only be waived by written consent of the party making the waiver. The failure of
either party at any time to require performance by the other of any provision of
this Servicing Agreement shall in no way affect that party's right to enforce
such provision, nor shall the waiver by either party of any breach of any
provision of this Servicing Agreement be taken or held to be a waiver of any
further breach of the same provision or any other provision.
Section 7.03. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, in any case addressed as follows:
To AFSI:
AutoFund Servicing, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx X-000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
To AAAC:
All American Acceptance Corporation
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
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With a copy to:
All American Acceptance Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxx x'Xxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxx
Fax: (000) 000-0000
Such notice, request, consent or other communication shall be deemed
given when so delivered, or if mailed tow days after deposit with the U.S.
Postal Service.
Section 7.04. Severability of Provisions. If one or more of the
provisions of this Servicing Agreement shall be held invalid for any reason,
such provisions shall be deemed severable from the remaining provisions of this
Servicing 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 Servicing Agreement
prohibited or unenforceable.
Section 7.05. Rights Cumulative. All rights and remedies under this
Servicing Agreement are cumulative, and none is intended to be exclusive of
another. No delay or omission in insisting upon the strict observance or
performance of any provision of this Servicing 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 7.06.
AAAC Offset. The obligations of AAAC under to this Servicing Agreement,
including without limitation the obligation to pay the Servicing Fee, the
Collection shall be subject to any defense, counterclaim or right of offset
which AAAC may have against AFSI pursuant to this Servicing Agreement or
otherwise.
Section 7.07. Powers of Attorney. AFSI is made AAAC's attorney-in-fact
for the limited purpose of signing documents necessary to maintain perfection of
the liens and security interests in the Financed Vehicles, release a lien upon
full payment or settlement of a Receivable, to transfer title to the buyer of a
Financed Vehicle at a sale foreclosing such security interest following
repossession, file insurance claims and endorse checks for deposit to the
Collection Account. With respect to other matters, AAAC may, from time to time,
provide to the employees of AFSI limited, revocable powers of attorney or other
such written authorizations as may be appropriate to enable AFSI to perform its
obligations under this Servicing Agreement.
Section 7.08. Captions. The article, paragraph and other headings
contained in this Servicing Agreement are for reference -------- purposes only,
and shall not limit or otherwise affect the meaning hereof.
Section 7.09. Assignment and Bind Effect. Except as provided in this
Servicing Agreement, no party to this Servicing Agreement may assign any of its
rights or obligations pursuant to this Servicing Agreement without the written
consent of the other parties hereto, which consent shall not be unreasonable
withheld.
Section 7.10. Legal Holidays. In the case where the date on which any
action required to be taken, document required to be delivered or payment
required to be made is not a Business Day, such action, delivery or payment need
not be made on that date, but may be made on the next succeeding Business Day.
Section 7.11. Counterparts. This Serving Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 7.12. Governing Law. This Servicing Agreement shall be deemed
entered into with and shall be governed by and interpreted in accordance with
the laws, (except for the conflict of law principles) of the Stare of Texas and
the laws of the United States of America.
Section 7.13. Parties. This Servicing Agreement shall inure solely to
the benefit of and shall be binding upon the parties hereto, and their
respective successors, legal representatives and permitted assigns, and no other
person shall have or be construed to have any equitable right, remedy or claim
under or in respect of or by virtue of this Servicing Agreement or any provision
contained herein.
Section 7.14. Attorney' Fees. In the event of any action at law or suit
in equity or a claim in bankruptcy or other proceeding to enforce this Servicing
Agreement, the prevailing party shall be entitled to receive, in addition to any
other sums which it is awarded, all costs and expenses of such action or suit,
including reasonable attorneys fees paid.
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Section 7.15. Entire Agreement. This Servicing Agreement, the documents
incorporated by reference herein (including all documents referenced herein or
attached hereto) express the entire agreement of the parties hereto, and
supersede all prior promises, representations, understandings, arrangements and
agreements between the parties with respect to the subject matter contained
herein. The parties hereto further acknowledge and agree that neither of them
has made any representations to induce the execution and delivery of this
Servicing Agreement except those expressly set forth herein.
Section 7.16. Drafting: Etc.. All parties hereto have had an
opportunity to participate in the drafting of this Servicing Agreement,
Consequently, any rule of construction that a document is to be construed
against the drafting party shall not be applicable.
Section 7.17. Construction. Titles and headings are provided herein for
convenience only and are not to sere as a basis for interpretation on the
construction of the Servicing Agreement.
Section 7.18. No Reliance. Each party represents that it has
independently reviewed and negotiated its participation under this Servicing
Agreement and has conducted such investigation as said party has deemed
appropriate. No party has relied on any investigation, documentation or
representation, written or oral, by any other party hereto or anyone purporting
to act on such other party's behalf.
Section 7.19. Confidentiality. AFSI agrees that any documents and
information of AAAC that are furnished, made available or otherwise disclosed to
AFSI pursuant to this Servicing Agreement shall remain the property of AAAC.
Unless any such documents or information were previously known to AFSI free of
any obligation to keep it confidential or becomes generally available to the
public through acts not attributable to AFSI or any agent or contractor of AFSI
9includign any Service Provider), it shall be subject to the provisions set
forth in this section, and (1) shall be held in confidence by AFSI, its
employees, contractors and agents; (2) shall be disclosed to only those of
AFSI's employees, contractors or agents who have a legitimate need to know; and
(3) may be released or disclosed to others only upon such terms and conditions
as may be previously agreed to by AAAC in writing.
Section 7.20. Further Assurances. Notwithstanding anything herein to
the contrary, each party hereby agrees that, at any time, and from time to time,
at the reasonable written request of the other party hereto and without further
consideration, the party will execute and deliver to the other party such other
and further written agreements and instruments and take and refrain from taking
such other action as the party requesting may reasonably request to secure for
the requesting party the rights and benefits intended to b provided to it by
this Servicing Agreement.
Section 7.21. Time. Time is of the essence with respect to this
Agreement and the respective time periods set forth herein.
Section 7.22. Dispute Resolution. Any claim, dispute or controversy of
any nature whatsoever, including but not limited to tort claims or contract
disputes, among the parties to this Servicing Agreement or their respective
successors and assigns, arising out of or relating to the terms and conditions
of this Servicing Agreement, including the implementation, applicability and
interpretation thereof, shall be resolved in accordance with the dispute
resolution procedures set forth on Annex E attached to this Servicing Agreement.
IN WITNESS WHEREOF, the parties have caused this Servicing Agreement to
be duly executed by their respective authorized representatives as of the
Effective Date.
AUTOFUND SERVICING, INC.
A Texas corporation
By: ____________________________
Name: __________________________
Title: _________________________
ALL AMERICAN ACCEPTANCE CORPORATION
A Florida corporation
By: ____________________________
Name: __________________________
Title: _________________________
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