Exhibit 10.4
EXECUTION COPY
================================================================================
SALE AND SERVICING AGREEMENT
among
GS AUTO LOAN TRUST 2007-1,
as Issuer,
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.,
as Depositor,
THE BANK OF NEW YORK,
as Indenture Trustee and Data Aggregator,
and
XXXXXXX SACHS MORTGAGE COMPANY,
as Servicer
Dated as of June 28, 2007
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE........................................... 1
ARTICLE II TRANSFERRED ASSETS.............................................. 1
SECTION 2.1 Conveyance of Transferred Assets; Intent of the Parties... 1
SECTION 2.2 Representations and Warranties of the Depositor
regarding the Receivables................................. 1
SECTION 2.3 Repurchase upon Breach.................................... 2
SECTION 2.4 Custody of Receivable Files............................... 3
SECTION 2.5 Representations and Warranties as to the Security
Interest of the Issuer in the Receivables................. 3
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND
TRUST PROPERTY.................................................. 4
SECTION 3.1 Duties of Servicer........................................ 4
SECTION 3.2 Collection of Receivable Payments......................... 5
SECTION 3.3 Realization Upon Receivables.............................. 5
SECTION 3.4 Maintenance of Security Interests in Financed Vehicles.... 6
SECTION 3.5 Covenants of Servicer..................................... 6
SECTION 3.6 Purchase of Receivables Upon Breach....................... 6
SECTION 3.7 Servicer Fees............................................. 7
SECTION 3.8 Monthly Noteholder Report................................. 8
SECTION 3.9 Annual Statement as to Compliance; Notice of Event
of Servicing Termination.................................. 8
SECTION 3.10 Annual Independent Certified Public
Accountant's Report....................................... 8
SECTION 3.11 Access to Certain Documentation and Information
Regarding Receivables..................................... 9
SECTION 3.12 Servicer Expenses......................................... 9
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS
AND CERTIFICATEHOLDERS.......................................... 9
SECTION 4.1 Accounts.................................................. 9
SECTION 4.2 Collections............................................... 11
SECTION 4.3 Application of Collections................................ 11
SECTION 4.4 Additional Deposits....................................... 11
SECTION 4.5 Distributions............................................. 11
SECTION 4.6 Net Deposits.............................................. 11
SECTION 4.7 Statements to Noteholders and Certificateholders.......... 11
Sale and Servicing Agreement 2007-1
ii
TABLE OF CONTENTS
Page
ARTICLE V THE DEPOSITOR................................................... 14
SECTION 5.1 Representations, Warranties and Covenants
of Depositor.............................................. 14
SECTION 5.2 Liability of Depositor; Indemnities....................... 15
SECTION 5.3 Merger or Consolidation of, or Assumption of
the Obligations of Depositor.............................. 15
SECTION 5.4 Limitation on Liability of Depositor and Others........... 16
SECTION 5.5 Depositor May Own Notes or Certificates................... 16
ARTICLE VI THE SERVICER.................................................... 16
SECTION 6.1 Representations of Servicer............................... 16
SECTION 6.2 Indemnities of Servicer................................... 17
SECTION 6.3 Merger or Consolidation of, or Assumption of
the Obligations of Servicer............................... 18
SECTION 6.4 Limitation on Liability of Servicer and Others............ 18
SECTION 6.5 Subservicing and Delegation of Duties..................... 19
SECTION 6.6 Servicer Not to Resign as Servicer; Resignation
and Termination of Receivables Servicers.................. 19
SECTION 6.7 Servicer May Own Notes or Certificates.................... 19
ARTICLE VII SERVICING TERMINATION........................................... 20
SECTION 7.1 Events of Servicing Termination........................... 20
SECTION 7.2 Appointment of Successor Servicer......................... 22
SECTION 7.3 Notification to Noteholders and Certificateholders........ 23
SECTION 7.4 Waiver of Past Events of Servicing Termination............ 23
ARTICLE VIII TERMINATION..................................................... 23
SECTION 8.1 Optional Purchase of All Receivables...................... 23
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture... 23
ARTICLE IX MISCELLANEOUS PROVISIONS........................................ 24
SECTION 9.1 Amendment................................................. 24
SECTION 9.2 Protection of Title to Trust Property..................... 25
SECTION 9.3 Governing Law; Submission to Jurisdiction; Waiver
of Jury Trial............................................. 26
SECTION 9.4 Notices................................................... 27
SECTION 9.5 Severability of Provisions................................ 27
SECTION 9.6 No Waiver; Cumulative Remedies............................ 28
Sale and Servicing Agreement 2007-1
iii
TABLE OF CONTENTS
Page
SECTION 9.7 Third-Party Beneficiaries................................. 28
SECTION 9.8 Limitation of Liability of the Owner Trustee
and the Indenture Trustee................................. 28
SECTION 9.9 Transfers Intended as Sale; Security Interest............. 28
SECTION 9.10 No Petition............................................... 29
SECTION 9.11 Execution in Counterparts................................. 30
SECTION 9.12 Headings.................................................. 30
SECTION 9.13 Data Aggregation.......................................... 30
Appendix A Definitions and Usage
Schedule A Receivables
Schedule B Form of Monthly Data File and Servicer Report and Aggregator Report
Sale and Servicing Agreement 2007-1
iv
This SALE AND SERVICING AGREEMENT, dated as of June 28, 2007 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is among GS AUTO LOAN TRUST 2007-1 (the "Issuer"), a Delaware
statutory trust, XXXXXXX XXXXX ASSET BACKED SECURITIES CORP., a Delaware
corporation (the "Depositor"), THE BANK OF NEW YORK, as Indenture Trustee (in
such capacity, the "Indenture Trustee") and Data Aggregator (in such capacity,
the "Data Aggregator"), and XXXXXXX SACHS MORTGAGE COMPANY, a New York limited
partnership, as servicer (in such capacity, the "Servicer").
WHEREAS, the Issuer desires to purchase from the Depositor a portfolio of
receivables and related property consisting of motor vehicle retail installment
sale contracts and loans;
WHEREAS, the Servicer is willing to service such receivables on behalf of
the Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix A hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
TRANSFERRED ASSETS
SECTION 2.1 Conveyance of Transferred Assets; Intent of the Parties. In
consideration of the Issuer's delivery to, or upon the order of, the Depositor
of the Notes and the Certificates, the Depositor does hereby irrevocably sell,
transfer, assign and otherwise convey to the Issuer without recourse (subject to
the obligations herein) all right, title and interest of the Depositor, whether
now owned or hereafter acquired, in and to the Transferred Assets. The sale,
transfer, assignment and conveyance made hereunder shall not constitute and is
not intended to result in an assumption by the Issuer of any obligation of the
Depositor or any other Person to the Obligors or any other Person in connection
with the Receivables and the other Transferred Assets or any agreement, document
or instrument related thereto. The Depositor and the Issuer intend that the
sale, transfer, assignment and conveyance of the Transferred Assets pursuant to
this Section 2.1 shall be a sale and not a secured borrowing.
SECTION 2.2 Representations and Warranties of the Depositor regarding the
Receivables. The Depositor makes the following representations and warranties
with respect to the Receivables, on which the Issuer relies in purchasing the
Receivables and pledging the same to the Indenture Trustee. Such representations
and warranties speak as of the Closing Date, but shall survive the sale,
transfer and assignment of the Receivables by the Depositor to the Issuer
Sale and Servicing Agreement 2007-1
pursuant to this Agreement and the pledge of the Receivables by the Issuer to
the Indenture Trustee pursuant to the Indenture.
(i) Schedule of Receivables. No selection procedures adverse
to the Securityholders have been used by the Depositor in selecting
the Receivables from all receivables owned by the Depositor which
meet the selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been sold,
transferred, assigned or pledged by the Depositor to any Person
other than the Issuer.
(iii) Good Title. Immediately prior to the transfer and
assignment of the Receivables to the Issuer herein contemplated,
each Receivable was free and clear of all Liens created by the
Depositor; and, immediately upon the transfer thereof, the Issuer
has either (i) good and marketable title to each Receivable, free
and clear of all of all Liens and rights of others to the extent
created by the Depositor and the transfer has been perfected under
applicable law or (ii) a first priority perfected security interest
in the Depositor's rights in each Receivable.
SECTION 2.3 Repurchase upon Breach. (a) Each of the Depositor, the
Servicer, the Issuer and the Indenture Trustee shall inform the other parties to
this Agreement promptly, in writing, upon the discovery by it of any breach of
the Depositor's representations and warranties pursuant to Section 2.2 which
materially and adversely affects the interest of the Issuer in any Receivable.
Unless the breach shall have been cured by the last day of the second Collection
Period following written notice to the Indenture Trustee of such breach, the
Depositor shall repurchase any Receivable for which the interest of the Issuer
is materially and adversely affected by such breach as of such last day (or, at
the Depositor's option, the last day of the first Collection Period following
the discovery). Any such breach shall not be deemed to have a material and
adverse effect on the interests of the Issuer if such breach does not affect the
ability of the Issuer to receive and retain timely payment in full on the
related Receivable. The Depositor shall remit the related Purchase Amount (less
any Liquidation Proceeds deposited, or to be deposited, in the Collection
Account with respect to such Receivable pursuant to Section 3.3), in the manner
specified in Section 4.4.
(b) In addition to the foregoing repurchase obligations, if the
interest of the Issuer in any Receivable is materially and adversely affected by
a breach by an Originator of a representation or warranty relating to such
Receivable in an Originator Purchase Agreement, the Depositor shall repurchase
such Receivable from the Issuer but only if the Originator shall in fact
repurchase such Receivable. The Depositor shall remit the purchase price paid by
the Originator with respect to such Receivable pursuant to Section 3.3 of this
Agreement to or at the direction of the Issuer or Indenture Trustee, as the case
may be.
(c) The sole remedy of the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders with respect to a breach of
any of the representations and warranties referred to in Sections 2.3(a) and (b)
shall be the repurchase of the related Receivables pursuant to Section 2.3(a) or
(b), as applicable.
Sale and Servicing Agreement 2007-1
2
(d) Neither the Owner Trustee nor the Indenture Trustee shall have
any duty to conduct an affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Receivable pursuant to this Section
2.3 or the eligibility of any Receivable for purposes of this Agreement.
(e) With respect to all Receivables purchased pursuant to this
Section 2.3, the Issuer shall assign to the Depositor or the applicable
Originator, as the case may be, without recourse, representation or warranty,
all of the Issuer's right, title and interest in and to such Receivables and all
security and documents relating thereto.
SECTION 2.4 Custody of Receivable Files. The Issuer hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to act
as the agent of the Issuer and the Indenture Trustee as custodian of the
following documents or instruments, which are hereby constructively delivered to
the Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture, with
respect to each Receivable:
(i) the original executed Receivable or, if no such original
exists, a copy thereof;
(ii) the original credit application fully executed by the
Obligor or a photocopy thereof or a record thereof on a computer
file, diskette or on microfiche;
(iii) the original certificate of title or such documents that
the related Receivables Servicer keeps on file, in accordance with
its customary procedures, evidencing the security interest of the
related Originator in the related Financed Vehicle; and
(iv) any and all other documents (including any computer file,
diskette or microfiche) that the Servicer or the related Receivables
Servicer shall keep on file, in accordance with its or the related
Receivables Servicer's customary procedures, relating to a
Receivable.
The Servicer shall be permitted to appoint the applicable Receivables
Servicer to hold the documents and instruments relating to those Receivables for
the benefit of the Issuer and the Indenture Trustee. The Issuer and the
Indenture Trustee shall have no responsibility to monitor the Servicer's (or the
Receivables Servicers') performance as custodian and shall have no liability in
connection with the Servicer's (or the Receivables Servicers') performance of
such duties hereunder.
SECTION 2.5 Representations and Warranties as to the Security Interest of
the Issuer in the Receivables. The Depositor makes the following representations
and warranties to the Issuer and the Indenture Trustee. The representations and
warranties speak as of the execution and delivery of this Agreement and as of
the Closing Date, and shall survive the sale of the Trust Property to the Issuer
and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
Sale and Servicing Agreement 2007-1
3
(a) This Agreement creates a valid and continuing security interest
(as defined in the UCC) in the Receivables in favor of the Issuer, which
security interest is prior to all other Liens, and is enforceable as such as
against creditors of and purchasers from the Depositor.
(b) The Receivables constitute "tangible chattel paper" within the
meaning of Article 9 of the UCC.
(c) Immediately prior to its transfer to the Issuer, each Receivable
was free and clear of any Lien created by the Depositor.
(d) The Depositor has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Receivables granted to the Issuer hereunder. Each such
financing statement will contain a statement to the following effect "A purchase
of or security interest in any collateral described in this financing statement
will violate the rights of the Secured Party."
(e) Other than the security interest granted to the Issuer pursuant
to this Agreement, the Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Receivables. The
Depositor has not authorized the filing of and is not aware of any financing
statements against the Depositor that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Issuer hereunder or that has been terminated.
The Depositor is not aware of any judgment or tax lien filings against it.
(f) The contracts that constitute or evidence the Receivables do not
have any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Seller or the Issuer.
Each of the parties hereto agrees that it shall not, without satisfaction
of the Rating Agency Condition, waive any of the representations and warranties
in this Section 2.5.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall (or shall in accordance
with Section 6.5 require the Receivables Servicers to) manage, service,
administer and make collections on the Receivables with reasonable care, using
that degree of skill and attention that the Servicer (or the related Receivables
Servicer) exercises with respect to all comparable new or used automobile and
light-duty truck receivables that it (or the related Receivables Servicer)
services for itself or others. The duties the Servicer shall be responsible to
delegate to the Receivables Servicers include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, reporting tax information to Obligors and accounting for
collections. The Servicer shall follow its customary standards, policies and
procedures in performing its duties as Servicer or those standards of the
applicable Receivables Servicer set forth in the related Receivables Servicing
Agreement. Without limiting the generality of the foregoing, the Servicer is
hereby (and each Receivables Servicer pursuant to its
Sale and Servicing Agreement 2007-1
4
Receivables Servicing Agreement is thereby) authorized and empowered to execute
and deliver, on behalf of itself (or the Servicer, in the case of a Receivables
Servicer), the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders, or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other comparable instruments, with respect to such Receivables or to the
Financed Vehicles securing such Receivables. If the Servicer (or the related
Receivables Servicer) shall commence a legal proceeding to enforce a Receivable,
the Issuer (in the case of a Receivable other than a Purchased Receivable) shall
thereupon be deemed to have automatically assigned, solely for the purpose of
collection, such Receivable to the Servicer (or the related Receivables
Servicer). If in any enforcement suit or legal proceeding it shall be held that
the Servicer (or the related Receivables Servicer) may not enforce a Receivable
on the ground that it is not a real party in interest or a holder entitled to
enforce the Receivable, the Issuer shall, at the Servicer's expense and
direction (or, to the extent permitted in the related Receivables Servicing
Agreement, the related Receivables Servicer's expense and direction), take steps
to enforce the Receivable, including bringing suit in its name or the names of
the Indenture Trustee, the Noteholders, the Certificateholders, or any of them.
The Issuer shall furnish the Servicer (or the related Receivables Servicer) with
any powers of attorney and other documents reasonably necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
hereunder.
SECTION 3.2 Collection of Receivable Payments. The Servicer shall (or
shall in accordance with Section 6.5 require the related Receivables Servicer
to) make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable new or used automobile and light-duty truck receivables that it
services for itself and others. To the extent the Indenture Trustee becomes
aware of any breach by a Receivables Servicer, the Indenture Trustee shall, to
the extent legally entitled pursuant to the terms thereof, enforce (or cause the
enforcement of) the obligations of such Receivables Servicer under the related
Receivables Servicing Agreement in all material respects until such Receivables
Servicing Agreement has been terminated in accordance with its terms.
Notwithstanding anything herein to the contrary, the Servicer and Ford Credit,
as a Receivables Servicer, shall not be required to make any collection,
repossession or liquidation efforts with respect to the Ford Credit Receivables
after January 28, 2012.
SECTION 3.3 Realization Upon Receivables. On behalf of the Issuer, the
Servicer shall (or shall require the related Receivables Servicer to) use
reasonable efforts, consistent with its (or the related Receivables Servicer's)
customary standards, policies and procedures, to repossess or otherwise convert
the ownership of the Financed Vehicle securing any Receivable as to which the
Servicer (or the related Receivables Servicer) shall have determined to be
uncollectible. The Servicer shall (or shall require the related Receivables
Servicer to) follow such customary standards, policies and procedures as it (or
the related Receivables Servicer) shall deem necessary or advisable in its
servicing of comparable receivables, which may include selling the Financed
Vehicle at public or private sale. The Servicer (or the related Receivables
Servicer) shall be entitled to recover from proceeds all reasonable expenses
incurred by it in the course of converting the Financed Vehicle into cash
proceeds. The Liquidation Proceeds (net of such expenses, if applicable)
realized in connection with any such action with respect to a Receivable shall
be deposited by the Servicer (or the related Receivables Servicer) into the
Collection Account in the manner specified in Section 4.2 and shall be applied
to reduce (or to satisfy, as
Sale and Servicing Agreement 2007-1
5
the case may be) the Purchase Amount of the Receivable, if such Receivable is to
be repurchased by the Depositor or a Seller pursuant to Section 2.3 or is to be
purchased by the Servicer pursuant to Section 3.6. The foregoing shall be
subject to the provision that the Servicer (or the related Receivables Servicer)
shall not be required to expend funds in connection with the repair or the
repossession of a Financed Vehicle unless it shall determine in its discretion
that such repair and/or repossession will increase the Liquidation Proceeds by
an amount greater than the amount of such expenses.
SECTION 3.4 Maintenance of Security Interests in Financed Vehicles. The
Servicer shall (or shall require the related Receivables Servicer to), in
accordance with its (or the related Receivables Servicer's) customary
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Issuer hereby authorizes the Servicer (or a Receivables Servicer) to take
such steps as are necessary to re-perfect such security interest on behalf of
the Issuer and the Indenture Trustee in the event of the relocation of a
Financed Vehicle or for any other reason, in either case, when the Servicer has
knowledge of the need for such re-perfection.
SECTION 3.5 Covenants of Servicer. The Servicer (or a Receivables
Servicer) may grant extensions, rebates, deferrals, amendments, modifications or
adjustments on a Receivable in accordance with its customary practices (or the
servicing standard of the applicable Receivables Servicer set forth in the
related Receivables Servicing Agreement); provided, however, that the Servicer
will purchase such Receivable in the manner provided in Section 3.6 if any event
occurs which results in a repurchase by a Receivables Servicer of the Receivable
under the applicable Originator Agreement. The Servicer (or any Receivables
Servicer) may in its discretion waive any late payment charge or any other fees
that may be collected in the ordinary course of servicing a Receivable.
Notwithstanding anything in this Agreement to the contrary, the Servicer (or any
Receivables Servicer) may refinance any Receivable if the full Principal Balance
of such Receivable is deposited into the Collection Account, and the receivable
created by such refinancing shall not be property of the Issuer.
SECTION 3.6 Purchase of Receivables Upon Breach. (a) Each of the
Depositor, the Servicer, the Issuer and the Indenture Trustee shall inform the
other parties to this Agreement promptly, in writing, upon the discovery by it
of any breach of Section 3.4 which materially and adversely affects the interest
of the Issuer in any Receivable or any event under Section 3.5 which materially
and adversely affects the interest of the Issuer in any Receivable. Unless the
breach or event shall have been cured by the last day of the second Collection
Period following written notice to the Indenture Trustee of such breach or
event, the Servicer shall repurchase any Receivable, the interest of the Issuer
in which is materially and adversely affected by such breach or event as of such
last day (or, at the Servicer's option, the last day of the first Collection
Period following the discovery). The Servicer shall remit the related Purchase
Amount (less any Liquidation Proceeds deposited, or to be deposited, in the
Collection Account with respect to such Receivable pursuant to Section 3.3), in
the manner specified in Section 4.4.
(b) Each of the Depositor, the Servicer and the Issuer shall inform
the other parties to this Agreement promptly, in writing, upon the discovery by
it of any action with respect to a Receivable which results in a requirement by
Ford Credit, Huntington or Fidelity to repurchase the Receivable. Upon its
receipt of notice as described in the preceding sentence, the
Sale and Servicing Agreement 2007-1
6
Indenture Trustee shall notify (or shall cause notice to be delivered to) Ford
Credit, Huntington or Fidelity, as the case may be, of such repurchase
requirement and, unless the action requiring the repurchase shall have been
cured within the cure period specified in the applicable Originator Agreement,
the Indenture Trustee shall enforce (or cause the Depositor to enforce) the
obligation of Ford Credit, Huntington or Fidelity, as the case may be, to
repurchase such Receivable. The Servicer shall cause the Purchase Amount (less
any Liquidation Proceeds deposited, or to be deposited, in the Collection
Account with respect to such Receivable pursuant to Section 3.3) from such
purchase to be remitted in the manner specified in Section 4.4.
(c) The sole remedy of the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders with respect to a breach of
Section 3.4 or an event described in Section 3.5 shall be the repurchase of the
related Receivables pursuant to Section 3.6(a) or (b), as applicable.
(d) Neither the Owner Trustee nor the Indenture Trustee shall have
any duty to conduct an affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Receivable pursuant to this Section
3.6.
(e) (i) To the extent necessary, under the Ford Credit Servicing
Agreement, Ford Credit may, in its sole discretion in order to liquidate a Ford
Credit Receivable after the occurrence of a Deferred Repurchase Trigger Event,
repurchase such Receivable from Trust I or the Depositor, as the case may be,
which shall have the right to purchase such Receivable from the Issuer. The
Depositor shall remit the related Deferred Purchase Price paid by Ford Credit
with respect to such Receivable in the manner specified in Section 4.4.
(ii) Under the Ford Credit Servicing Agreement, Ford Credit
may, in its sole discretion, sell a Ford Credit Receivable that it
has charged off in accordance with its customary standards, policies
and procedures and has elected to repurchase as described in clause
(i) above as part of a bulk sale by Ford Credit of charged off
retail installment sale contracts that it services for itself and
others. Proceeds of any such bulk sale allocable to the Ford Credit
Receivables, determined by Ford Credit in its discretion, will
constitute recoveries that shall be the final payment of Deferred
Repurchase Amounts relating to such Receivables. The sole right of
the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders with respect to Receivables
sold pursuant to this Section 3.6(e)(ii) shall be the recoveries as
described above.
(f) With respect to all Receivables purchased pursuant to this
Section 3.6, the Issuer shall assign to the Servicer, without recourse,
representation or warranty, all of the Issuer's right, title and interest in and
to such Receivables and all security and documents relating thereto.
SECTION 3.7 Servicer Fees. The Servicer shall be entitled to the Net
Servicing Fee, which shall be payable as provided in Section 8.2 of the
Indenture. The Receivables Servicers shall be entitled to the Receivables
Servicer Servicing Fee. To the extent that a Receivables Servicer does not
retain its Receivables Servicer Servicing Fee from collections on Receivables
Sale and Servicing Agreement 2007-1
7
serviced by it, the Servicer will pay any portion of that Receivables Servicer
Servicing Fee that is not so retained directly to that Receivables Servicer.
SECTION 3.8 Monthly Noteholder Report. On each Payment Date, the Indenture
Trustee will prepare and make available to the Depositor, the Owner Trustee,
each Note Paying Agent and each Certificate Paying Agent, with a copy to the
Rating Agencies, a report (the "Monthly Noteholder Report"), containing all
information necessary to calculate the transfers and distributions on each
Payment Date pursuant to Section 8.2 of the Indenture for the Collection Period
preceding the date of such Monthly Noteholder Report and the written statement
to be furnished by the Indenture Trustee to the Noteholders pursuant to Section
4.7 hereof and Section 7.4 of the Indenture. Pursuant to Section 9.13 hereof,
The Bank of New York shall aggregate the monthly reports prepared by the
Receivables Servicers to the extent those reports are forwarded to The Bank of
New York by the Receivables Servicers; provided, however, that The Bank of New
York will not be liable for any incomplete report to the extent that The Bank of
New York did not receive the information required to complete that report from
another Receivables Servicer. The Bank of New York shall promptly notify the
Depositor and the Servicer in the event it does not timely receive any report
from a Receivables Servicer. Neither the Servicer, the Issuer, the Owner Trustee
nor the Indenture Trustee shall have any liability or responsibility for any
inaccuracy in any Monthly Noteholder Report resulting from any inaccuracy in any
information provided by a Receivables Servicer.
SECTION 3.9 Annual Statement as to Compliance; Notice of Event of
Servicing Termination. (a) For so long as the Issuer is subject to the reporting
requirements of the Exchange Act, the Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and each Rating Agency on or before March 25 of
each year beginning March 25, 2008, a servicer compliance statement with respect
to the preceding calendar year in accordance with Item 1123 of Regulation AB.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency promptly after having obtained actual knowledge
thereof, but in no event later than five (5) Business Days thereafter, written
notice in an Officer's Certificate of any event which with the giving of notice
or lapse of time, or both, would become an Event of Servicing Termination under
Section 7.1.
(c) The Servicer will deliver to the Owner Trustee and to the
Indenture Trustee, on or before March 25 of each year, beginning March 25, 2008,
a report regarding the Servicer's assessment of compliance with the applicable
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB.
SECTION 3.10 Annual Independent Certified Public Accountant's Report. The
Servicer shall cause a firm of independent certified public accountants, who may
also render other services to the Servicer, the Seller, the Depositor or the
Receivables Servicers, to deliver to the Owner Trustee and the Indenture Trustee
on or before March 25 of each year beginning March 25, 2008 with respect to the
twelve months ended on the immediately preceding December 31 (or such shorter
period in the case of the first such report) a report that attests to, and
reports on, the Servicer's assessment delivered pursuant to Section 3.09(c),
which attestation
Sale and Servicing Agreement 2007-1
8
report shall be made in accordance with the requirements of Rule 15d-18 under
the Exchange Act and Item 1122(b) of Regulation AB.
SECTION 3.11 Access to Certain Documentation and Information Regarding
Receivables. In each case subject to the Servicer's rights to access under the
related Receivables Servicing Agreement, the Servicer shall provide to the
Issuer and the Indenture Trustee access to the Receivable Files without charge,
but only upon reasonable request and during the normal business hours at the
offices of the Servicer or the respective offices of the Receivables Servicers,
as applicable. Nothing in this Section 3.11 shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section 3.11.
SECTION 3.12 Servicer Expenses. The Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees, expenses (including counsel fees and expenses) and disbursements of the
independent accountants, taxes imposed on the Servicer and expenses incurred in
connection with distributions and reports to Noteholders and Certificateholders,
except that each Receivables Servicer will be entitled to any Supplemental
Servicing Fee.
(a) Sarbanes Oxley Act of 2002. The Depositor or Servicer shall
provide on a timely basis for filing with the 1934 Act Documents, the
certification required by Rule 15d-14 under the Exchange Act and Section 302 of
the Xxxxxxxx-Xxxxx Act to be included in those reports. The Depositor and the
Servicer, or either of them, is authorized to file such certification or any
other 1934 Act Document on behalf of the Issuer.
(b) To the extent any reports or documents are required to be filed
or any other certification is required to be made with respect to the Issuer,
the Notes or the Certificates pursuant to the Xxxxxxxx-Xxxxx Act, the Depositor
or the Servicer shall prepare and execute any such report, document or
certification and the Depositor and the Servicer, or either of them, is
authorized to file such report, document or certification on behalf of the
Issuer.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) Prior to the Closing Date there shall have been
established (i) the Ford Credit Deposit Account, to which Ford Credit has agreed
to deposit collections on the Ford Credit Receivables, as more specifically
described in the Ford Credit Servicing Agreement, (ii) a Huntington Deposit
Account, to which Huntington has been directed to remit collections on the
Huntington Receivables in accordance with the Huntington Servicing Agreement and
(iii) a Fidelity Deposit Account, to which Fidelity shall deposit collections on
the Fidelity Receivables, as more specifically described in the Fidelity
Purchase and Servicing Agreement. Each of the forgoing deposit accounts were
established and shall initially be maintained with the Depository Institution,
which shall be a "federally insured depository institution" as specified in Item
1122(d)(2)(v) of Regulation AB. No checks shall be issued, printed or honored
with respect to any such account. On the Business Day prior to each Payment
Sale and Servicing Agreement 2007-1
9
Date, the Indenture Trustee is hereby instructed to withdraw from each such
deposit account for deposit into the Collection Account the Available
Collections for the related Collection Period. All monies owned by the Issuer
deposited from time to time in the foregoing deposit accounts shall be held by
the Depository Institution for the benefit of the Noteholders and, after payment
in full of the Notes, as agent of the Issuer and as part of the Trust Property;
provided, however, that all monies owned by the Seller or other third parties
deposited from time to time in the foregoing deposit accounts shall not be so
held and shall not be available for deposit into the Collection Account and
shall not be available to make payments in respect of the Notes or the
Certificates.
(b) The Indenture Trustee shall, prior to the Closing Date, cause to
be established and maintained two Eligible Deposit Accounts in the name "The
Bank of New York, as Indenture Trustee and as secured party for GS Auto Loan
Trust 2007-1", initially at the corporate trust department of the Indenture
Trustee, which shall be designated as the "Collection Account" and the
"Principal Distribution Account," respectively. The Collection Account and the
Principal Distribution Account shall be under the sole dominion and control of
the Indenture Trustee. In addition, the Collection Account and the Principal
Distribution Account shall be established and maintained at an institution which
agrees in writing that for so long as the Notes are outstanding it will comply
with entitlement orders (as defined in Article 8 of the UCC) originated by the
Indenture Trustee without further consent of the Issuer. All monies deposited
from time to time in the Collection Account and the Principal Distribution
Account shall be held by the Indenture Trustee as secured party for the benefit
of the Indenture Secured Parties and, after payment in full of the Notes, as
agent of the Issuer and as part of the Trust Property. All deposits to and
withdrawals from the Collection Account and the Principal Distribution Account
shall be made only upon the terms and conditions of the Basic Documents.
(c) All amounts held in the Collection Account and the Principal
Distribution Account shall, to the extent permitted by applicable law, rules and
regulations, be invested, as directed in writing by the Servicer, by the
depository institution or trust company then maintaining the Collection Account
and the Principal Distribution Account in specified Permitted Investments that
mature not later than the second Business Day immediately prior to the Payment
Date (or if the Rating Agency Condition is satisfied, not later than such
Payment Date) for the Collection Period to which such amounts relate and such
Permitted Investments shall be held to maturity. The Indenture Trustee shall not
be liable for investment losses in Permitted Investments made in accordance with
directions from the Servicer. In the event that the Collection Account or the
Principal Distribution Account is no longer to be maintained at the corporate
trust department of the Indenture Trustee, the Indenture Trustee shall cause an
Eligible Deposit Account to be established as the Collection Account or
Principal Distribution Account, as applicable, within ten (10) Business Days (or
such longer period not to exceed thirty (30) calendar days as to which each
Rating Agency may consent).
(d) The Indenture Trustee shall, prior to the Closing Date, cause an
Eligible Deposit Account to be established and maintained, in the name "GS Auto
Loan Trust 2007-1 Certificate Distribution Account", initially at the corporate
trust department of the Indenture Trustee, which shall be designated as the
"Certificate Distribution Account". The Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee. All monies
deposited from time to time in the Certificate Distribution Account pursuant to
this
Sale and Servicing Agreement 2007-1
10
Agreement and the Indenture shall be held by the Owner Trustee as part of
the Trust Property and shall be applied as provided in the Basic Documents. In
the event that the Certificate Distribution Account is no longer to be
maintained at the corporate trust department of the Indenture Trustee, the
Indenture Trustee shall cause an Eligible Deposit Account to be established as
the Certificate Distribution Account within ten (10) Business Days (or such
longer period not to exceed thirty (30) calendar days as to which each Rating
Agency may consent) and shall give written notice of the location and account
number of such account to the Owner Trustee.
SECTION 4.2 Collections. Upon the Indenture Trustee becoming aware or
receiving notice of the failure of a Receivables Servicer to remit Collections
in accordance with the terms of the applicable Receivables Servicing Agreement,
the Indenture Trustee shall enforce the obligation of each Receivables Servicer
to remit Collections in accordance with the terms of the applicable Receivables
Servicing Agreement. Unless the Rating Agency Condition has been satisfied, the
Servicer shall not consent to any amendment to a Receivables Servicing Agreement
which would delay the timing for remitting Collections received by a Receivables
Servicer under the related Receivables Servicing Agreement.
SECTION 4.3 Application of Collections. For the purposes of this
Agreement, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied in accordance
with the customary practices of the related Receivables Servicer or, if such
Receivables Servicer is no longer engaged by the Servicer, the customary
practice of the Servicer.
SECTION 4.4 Additional Deposits. The Depositor and the Servicer shall
deposit (or cause the deposit of) in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables pursuant to Sections 2.3
and 3.6, respectively, and the Servicer shall deposit therein all amounts to be
paid under Section 8.1. All such deposits with respect to a Collection Period
shall be made, in immediately available funds, on the Payment Date related to
such Collection Period. For so long as Xxxxxxx Xxxxx Mortgage Company is the
servicer, on the Business Day before each Payment Date, the Servicer will
deposit into the Collection Account the Receivables Servicer Supplemental
Payment Amount, if any, for that Payment Date.
SECTION 4.5 Distributions. On each Payment Date, the Indenture Trustee
shall (based on the information contained in the Monthly Noteholder Report
delivered on or before the related Determination Date) make withdrawals from the
Collection Account and make deposits, distributions and payments, to the extent
of Available Funds for such Payment Date, in the manner and order of priority
set forth in Section 8.2 of the Indenture.
SECTION 4.6 Net Deposits. If Xxxxxxx Sachs Mortgage Company is not the
Servicer, remittances pursuant to Sections 4.2 and 4.4 above may be made net of
the Net Servicing Fee. Nonetheless, the Indenture Trustee shall account for all
of the above described remittances and distributions in the Monthly Noteholder
Report as if the amounts were deposited and/or transferred separately.
SECTION 4.7 Statements to Noteholders and Certificateholders. On each
Payment Date, the Indenture Trustee shall provide to each Noteholder of record
as of the most recent
Sale and Servicing Agreement 2007-1
11
Record Date (with copies to the Rating Agencies and each Note Paying Agent) and
shall provide a hard copy of the Monthly Noteholder Report to the Owner Trustee
for distribution to each Certificateholder pursuant to Section 5.05 of the Trust
Agreement, setting forth for the Collection Period relating to such Payment Date
the following information as to the Notes and the Certificates to the extent
applicable based on the information provided to the Indenture Trustee pursuant
to Section 3.8:
(i) the amount of such distribution allocable to principal
allocable to the Notes and to the Certificates;
(ii) the amount of such distribution allocable to interest
allocable to the Notes and the Certificates;
(iii) the Pool Balance and the Pool Factor as of the close of
business on the last day of the preceding Collection Period;
(iv) the amount of the Net Servicing Fee paid to the Servicer
with respect to the related Collection Period and the amount of any
unpaid Net Servicing Fees and the change in such amount from that of
the prior Payment Date;
(v) the Receivables Servicer Supplement Payment Amount, if
any, for the Payment Date;
(vi) the aggregate outstanding principal amount of each Class
of Notes and the Note Factor for each Class of Notes;
(vii) the amount of any previously due and unpaid payment of
principal or interest of each Class of Notes, and the change in such
amount from that of the prior Payment Date;
(viii) the Three-Month Annualized Net Loss Ratio;
(ix) the aggregate Purchase Amount of Receivables repurchased
pursuant to Section 2.3 or purchased pursuant to Section 3.6, if
any, with respect to the related Collection Period;
(x) the aggregate amount of Receivables which became
Liquidated Receivables during the related Collection Period;
(xi) any applicable Record Dates, the Determination Date and
the Payment Date for the related Collection Period;
(xii) cash flows received and the sources thereof for
distributions, fees and expenses (including portfolio yield, if
applicable);
(xiii) calculated amounts and distribution of the flow of
funds for the related Collection Period itemized by type and
priority of payment, including:
Sale and Servicing Agreement 2007-1
12
(1) fees or expenses accrued and paid, with an identification
of the general purpose of such fees and the party receiving such
fees or expenses;
(2) payments accrued or paid with respect to enhancement or
other support, with an identification of the general purpose of such
payments and the party receiving such payments; and
(3) the amount of excess cash flow or excess spread and the
disposition of excess cash flow.
(xiv) the beginning and ending Outstanding Amount of the
Notes;
(xv) interest rates applicable to the Receivables and the
Notes, as applicable;
(xvi) beginning and ending balances of the Trust Accounts and
account activity during the related Collection Period;
(xvii) any amounts drawn on any credit enhancement or other
support, and the amount of coverage remaining under any such
enhancement, if known and applicable;
(xviii) number and amount of Receivables at the beginning and
ending of the related Collection Period, and updated pool
composition information, such as weighted average coupon, weighted
average life, weighted average remaining term, Pool Factors and
prepayment amounts;
(xix) delinquency and loss information for the related
Collection Period, as well as a description of any changes to how
delinquencies, charge-offs and uncollectible amounts are defined or
determined, addressing the effect of any grace period, re-aging
restructure, partial payments considered current or other practices
on delinquency and loss experience regarding the Receivables;
(xx) any modifications, extensions or waivers to Receivables
terms, fees, penalties or payments during the related Collection
Period;
(xxi) breaches of Receivable representations or warranties or
transaction covenants;
(xxii) information on ratio, coverage or other tests used for
determining any performance trigger and whether the trigger was met;
and
(xxiii) information regarding any Receivable changes (other
than in connection with a Receivable converting into cash in
accordance with its terms), removals in connection with repurchases
(and purchase rates, if applicable).
Sale and Servicing Agreement 2007-1
13
Each amount set forth on the Payment Date statement pursuant to clauses
(i) and (ii) above shall be expressed as a dollar amount per $1,000 of original
principal amount of a Note or original Certificate Balance of a Certificate, as
applicable.
The Indenture Trustee will make the Monthly Noteholder Report available to
each Noteholder via the Indenture Trustee's internet website, and, with the
consent or at the direction of the Issuer, such other information regarding the
notes and/or receivables as the Indenture Trustee may have in its possession,
but only with the use of a password provided by the Indenture Trustee.
The Indenture Trustee's internet website will be initially located at
"xxxxx://xxx.xxxxxxxx.xxx/XXX" or at such other address as will be specified by
the Indenture Trustee from time to time in writing to the Noteholders and the
Owner Trustee. In connection with providing access to the Indenture Trustee's
internet website, the Indenture Trustee may require registration and the
acceptance of a disclaimer. The Indenture Trustee will not be liable for the
dissemination of information in accordance with the foregoing.
ARTICLE V
THE DEPOSITOR
SECTION 5.1 Representations, Warranties and Covenants of Depositor. The
Depositor makes the following representations and warranties on which the Issuer
is deemed to have relied in acquiring the Trust Property. The representations
and warranties speak as of the Closing Date and shall survive the conveyance of
the Trust Property by the Depositor to the Issuer and the pledge thereof by the
Issuer to the Indenture Trustee pursuant to the Indenture:
(i) Organization and Good Standing. The Depositor is duly
organized and validly existing as a corporation in good standing
under the laws of the State of Delaware, with the corporate power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted.
(ii) Power and Authority. The Depositor has the corporate
power and authority to execute and deliver this Agreement and the
other Basic Documents to which it is a party and to carry out their
respective terms; the Depositor has full power and authority to sell
and assign the property to be sold, and assigned to and deposited
with the Issuer, and the Depositor shall have duly authorized such
sale and assignment to and deposit with the Issuer by all necessary
corporate action; and the execution, delivery, and performance of
this Agreement and the other Basic Documents to which the Depositor
is a party have been duly authorized, executed and delivered by the
Depositor by all necessary corporate action.
(iii) Binding Obligations. This Agreement, when duly executed
and delivered by the other parties hereto, constitutes a legal,
valid, and binding obligation of the Depositor enforceable against
the Depositor in accordance
Sale and Servicing Agreement 2007-1
14
with its terms, except as the enforceability hereof may be limited
by bankruptcy, insolvency, reorganization, or other similar laws now
or hereafter in effect relating to or affecting creditors' rights in
general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at
law.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to
which the Depositor is a party and the fulfillment of the terms
hereof and thereof do not (i) conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or conflict with or
breach any of the material terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any
indenture, agreement, or other instrument to which the Depositor is
a party or by which it is bound, (ii) result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, or other instrument, other
than the Liens created by this Agreement or any other Basic
Document, or (iii) violate any law or, to the best of the
Depositor's knowledge, any order, rule, or regulation applicable to
the Depositor of any court or of any federal or state regulatory
body, administrative agency, or other governmental instrumentality
having jurisdiction over the Depositor.
(v) No Proceedings. There are no legal or governmental
proceedings pending, or, to the best of the Depositor's knowledge,
threatened, before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction
over the Depositor or its properties (i) asserting the invalidity of
this Agreement or any of the other Basic Documents, (ii) seeking to
prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or the other Basic
Documents, (iii) seeking any determination or ruling that would
reasonably be expected to materially and adversely affect the
performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement, any of the other
Basic Documents or the Securities or (iv) relating to the Depositor
and which would reasonably be expected to adversely affect the
federal income tax attributes of the Securities.
SECTION 5.2 Liability of Depositor; Indemnities. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Depositor under this Agreement (which shall not include
distributions on account of the Notes or the Certificates), and hereby agrees to
the following: The Servicer will pay any and all taxes levied or assessed upon
the Issuer or upon all or any part of the Trust Property.
SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations
of Depositor. Any Person (i) into which the Depositor may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Depositor shall be a party, or (iii) succeeding to the business of the
Depositor, which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Depositor under
Sale and Servicing Agreement 2007-1
15
this Agreement, will be the successor to the Depositor under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement. The Depositor shall provide notice of
any merger, conversion, consolidation, or succession pursuant to this Section
5.3 to the Rating Agencies, the Owner Trustee and the Indenture Trustee.
SECTION 5.4 Limitation on Liability of Depositor and Others. The Depositor
and any director, officer, employee or agent of the Depositor may rely in good
faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute, or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 5.5 Depositor May Own Notes or Certificates. The Depositor, and
any Affiliate of the Depositor, may in its individual or any other capacity
become the owner or pledgee of Notes or Certificates with the same rights as it
would have if it were not the Depositor or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Basic Documents.
ARTICLE VI
THE SERVICER
SECTION 6.1 Representations of Servicer. The Servicer makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Trust Property. The representations speak as of the Closing Date of this
Agreement and shall survive the conveyance of the Trust Property to the Issuer
and the pledge thereof by the Issuer pursuant to the Indenture:
(a) Organization and Good Standing. The Servicer is duly organized
and validly existing as a limited partnership in good standing under the laws of
the State of New York, with the limited partnership power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) Power and Authority. The Servicer has the limited partnership
power and authority to execute and deliver this Agreement and the other Basic
Documents to which it is a party and to carry out their respective terms; and
the execution, delivery, and performance of this Agreement and the other Basic
Documents to which it is a party have been duly authorized, executed and
delivered by the Servicer by all necessary limited partnership action.
(c) Binding Obligations. This Agreement, when duly executed by the
other parties hereto, constitutes a legal, valid, and binding obligation of the
Servicer enforceable against the Servicer in accordance with its terms, except
as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating to or
affecting creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
Sale and Servicing Agreement 2007-1
16
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents to which the Servicer is a party
and the fulfillment of the terms hereof and thereof do not (i) conflict with,
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time) a default under, the limited partnership
agreement of the Servicer, or conflict with or breach any of the material terms
or provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement, or other instrument to which the
Servicer is a party or by which it is bound, (ii) result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, or other instrument, other than Liens created by this
Agreement or any other Basic Document or (iii) violate any law or, to the best
of the Servicer's knowledge, any order, rule, or regulation applicable to the
Servicer of any court or of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Servicer.
(e) No Proceedings. There are no legal or governmental proceedings
pending, or to the best of the Servicer's knowledge, threatened, before any
court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties (i)
asserting the invalidity of this Agreement, any of the other Basic Documents,
(ii) seeking to prevent the issuance of the Securities or the consummation of
any of the transactions contemplated by this Agreement or the other Basic
Documents, (iii) seeking any determination or ruling that would reasonably be
expected to materially and adversely affect the performance by the Servicer of
its obligations under, or the validity or enforceability of, this Agreement, any
of the other Basic Documents or the Securities, or (iv) relating to the Servicer
and which would reasonably be expected to adversely affect the federal income
tax attributes of the Securities.
SECTION 6.2 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, and hereby agrees to the
following:
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Data Aggregator, the
Noteholders, the Certificateholders and the Depositor from and against any and
all costs, expenses, losses, damages, claims and liabilities, arising out of or
resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of a Financed Vehicle.
(b) Indemnification under this Section 6.2 by Xxxxxxx Xxxxx Mortgage
Company (or any successor thereto pursuant to Section 7.2) as Servicer, with
respect to the period such Person was the Servicer, shall survive the
termination of such Person as Servicer or a resignation by such Person as
Servicer as well as the termination of this Agreement or the resignation or
removal of the Owner Trustee or the Indenture Trustee and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section 6.2 and
the Person to or on behalf of whom such payments are made thereafter shall
collect any of such amounts from others, such Person shall promptly repay such
amounts to the Servicer, without interest.
Sale and Servicing Agreement 2007-1
17
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations
of Servicer. Any Person (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Servicer shall be a party, (iii) succeeding to the business of the
Servicer or (iv) 50% or more of the equity of which is owned, directly or
indirectly, by Xxxxxxx, Sachs & Co., which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Servicer
under this Agreement, will be the successor to the Servicer under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties to this Agreement. The Servicer shall provide notice of any
merger, conversion, consolidation or succession pursuant to this Section 6.3 to
the Rating Agencies and the Indenture Trustee.
SECTION 6.4 Limitation on Liability of Servicer and Others. (a) Neither
the Servicer nor the general partner or any limited partner under the Servicer's
limited partnership agreement or any of the directors or officers or employees
or agents of the Servicer, the general partner or any limited partner under the
Servicer's limited partnership agreement shall be under any liability to the
Issuer, the Indenture Trustee, the Owner Trustee, the Noteholders or the
Certificateholders, except as expressly provided under this Agreement, for any
action taken or for refraining from the taking of any action pursuant to this
Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance or bad faith in the
performance of duties or by reason of reckless disregard of its obligations and
duties under this Agreement, or by reason of gross negligence in the performance
of its duties under this Agreement (except for errors in judgment). The Servicer
and any director, officer or employee or agent of the Servicer may rely in good
faith on any Opinion of Counsel or on any Officer's Certificate of the Depositor
or certificate of auditors believed to be genuine and to have been signed by the
proper party in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute, or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may cause it to incur any expense
or liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement, the
rights and duties of the parties to this Agreement and the interests of the
Noteholders and Certificateholders under this Agreement. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Issuer, and the Servicer shall
be entitled to be reimbursed therefor. Any amounts due the Servicer pursuant to
this subsection shall be payable on a Payment Date from the Available Funds on
deposit in the Collection Account only after all payments required to be made on
such date to the Noteholders, the Certificateholders, the Owner Trustee, the
Indenture Trustee and the Servicer have been made.
(c) The Servicer, the general partner and each limited partner under
the Servicer's limited partnership agreement and any director or officer or
employee or agent of the Servicer, the general partner and each limited partner
under the Servicer's limited partnership agreement shall be indemnified by the
Issuer and held harmless against any loss, liability, or expense including
reasonable attorneys' fees and expenses incurred in connection with any legal
action relating to the performance of the Servicer's duties under this
Agreement, other than (i)
Sale and Servicing Agreement 2007-1
18
any loss or liability otherwise reimbursable pursuant to this Agreement; (ii)
any loss, liability, or expense incurred solely by reason of the Servicer's
willful misfeasance, negligence, or bad faith in the performance of its duties
hereunder or by reason of reckless disregard of its obligations and duties under
this Agreement; and (iii) any loss, liability, or expense for which the Issuer
is to be indemnified by the Servicer under this Agreement. Any amounts due the
Servicer pursuant to this subsection shall be payable on a Payment Date from the
Available Funds on deposit in the Collection Account only after all payments
required to be made on such date to the Noteholders, the Certificateholders, the
Owner Trustee and the Indenture Trustee have been made.
SECTION 6.5 Subservicing and Delegation of Duties. The Servicer may, at
any time without notice or consent, delegate (a) any or all of its duties
(including, without limitation, its duties as custodian) under the Basic
Documents to any of its Affiliates or (b) specific duties to sub-contractors who
are in the business of performing such duties; provided that no such delegation
shall relieve the Servicer of its responsibility with respect to such duties and
the Servicer shall remain obligated and liable to the Issuer and the Indenture
Trustee for its duties hereunder as if the Servicer alone were performing such
duties.
Without limiting the generality of the preceding paragraph, each of the
Receivables Servicers will be subservicers pursuant to the terms and conditions
of the applicable Receivables Servicing Agreement.
SECTION 6.6 Servicer Not to Resign as Servicer; Resignation and
Termination of Receivables Servicers. (a) Subject to the provisions of Section
6.3, the Servicer shall not resign from its obligations and duties under this
Agreement except upon the mutual consent of the Servicer, the Indenture Trustee
and the Owner Trustee or upon the determination that the performance of its
duties under this Agreement shall no longer be permissible under applicable law.
Notice of any such determination permitting the resignation of the Servicer
shall be communicated to the Owner Trustee and the Indenture Trustee at the
earliest practicable time (and, if such communication is not in writing, shall
be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Owner Trustee and the Indenture Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until the
Indenture Trustee or a Successor Servicer shall have (i) taken the actions
required by Section 7.1(b) and (ii) assumed the responsibilities and obligations
of the Servicer in accordance with Section 7.2.
(b) The Receivables Servicing Agreement with any Receivables
Servicer may be terminated upon the terms and conditions set forth in such
agreement.
SECTION 6.7 Servicer May Own Notes or Certificates. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner or pledgee of Notes or Certificates with the same rights as it would
have if it were not the Servicer or an Affiliate thereof, except as otherwise
expressly provided herein or in the other Basic Documents. Except as set forth
herein or in the other Basic Documents, Notes and Certificates so owned by or
pledged to the Servicer or such Affiliate shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority or
distinction as among all of the Notes and Certificates.
Sale and Servicing Agreement 2007-1
19
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination. (a) If any one of the
following events ("Events of Servicing Termination") shall occur and be
continuing:
(i) Any failure by the Servicer to deliver to the Indenture
Trustee any payment required to be so delivered by the Servicer
under the terms of this Agreement that shall continue unremedied for
a period of ten (10) Business Days after written notice of such
failure is received by the Servicer from the Owner Trustee or the
Indenture Trustee; or
(ii) Failure on the part of the Servicer duly to observe or to
perform in any material respect any other covenants or agreements,
as the case may be, set forth in this Agreement, which failure shall
(A) materially and adversely affect the rights of Noteholders or
Certificateholders and (B) continue unremedied for a period of
ninety (90) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given
(1) to the Servicer by the Owner Trustee or the Indenture Trustee or
(2) to the Owner Trustee, the Indenture Trustee and the Servicer by
the Noteholders of Notes evidencing not less than a majority of the
principal amount of the Outstanding Notes or, if no Notes are
Outstanding, by holders of Certificates evidencing Percentage
Interests aggregating at least a majority; or
(iii) So long as a depository institution is not the Servicer,
the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of
a conservator, receiver, or liquidator for the Servicer or, if
Xxxxxxx Xxxxx Mortgage Company is the Servicer, Xxxxxxx Sachs Real
Estate Funding Corp. (or its successor in interest) in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings, or for the winding up or
liquidation of its respective affairs, and the continuance of any
such decree or order unstayed and in effect for a period of ninety
(90) consecutive days; or
(iv) So long as a depository institution is not the Servicer,
the consent by the Servicer or, if Xxxxxxx Xxxxx Mortgage Company is
the Servicer, Xxxxxxx Sachs Real Estate Funding Corp. (or its
successor in interest) to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or
relating to the Servicer (or Xxxxxxx Xxxxx Real Estate Funding Corp.
(or its successor in interest), as applicable) of or relating to
substantially all of its property; or the Servicer or, if Xxxxxxx
Sachs Mortgage Company is the Servicer, Xxxxxxx Xxxxx Real Estate
Funding Corp. (or its successor in interest) shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization
Sale and Servicing Agreement 2007-1
20
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations or become insolvent;
then the Indenture Trustee shall promptly notify each Rating
Agency, and in each and every case, so long as an Event of Servicing
Termination shall not have been remedied, either the Indenture
Trustee or the holders of Notes evidencing not less than a majority
of the principal amount of the Notes Outstanding (or, if no Notes
are Outstanding, Certificates evidencing Percentage Interests
aggregating at least a majority), by notice then given in writing to
the Servicer (and to the Indenture Trustee and the Owner Trustee if
given by the Noteholders and to the Owner Trustee if given by the
Certificateholders and in each case with a copy to the Rating
Agencies) may terminate all of the rights and obligations of the
Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Notes,
the Certificates or the Trust Property or otherwise, shall pass to
and be vested in the Indenture Trustee or such Successor Servicer as
may be appointed under Section 7.2; and, without limitation, the
Indenture Trustee and the Owner Trustee are hereby authorized and
empowered to execute and deliver, on behalf of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise.
Notwithstanding the foregoing, a delay or failure of performance
referred to under clauses (i) and (ii) above for a period of 150
days will not constitute an Event of Servicing Termination if such
delay or failure was caused by force majeure or other similar
occurrence.
(b) Upon termination of the Servicer under Section 7.1(a), the
predecessor Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Indenture Trustee or such Successor Servicer for
administration of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with respect
to a Receivable and the delivery of the Receivable Files and the related
accounts and records to the extent maintained by the Servicer. All reasonable
costs and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files to the Successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to this Section 7.1
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses. To the extent such costs and expenses
are not paid by the predecessor servicer, such costs and expenses shall be paid
by the Issuer.
(c) Upon termination of the Servicer under Section 7.1(a), the
Successor Servicer shall service the Ford Credit Receivables, the Huntington
Receivables and the Fidelity Receivables through the applicable Receivables
Servicing Agreement, unless the applicable Receivables Servicing Agreement has
been terminated pursuant to the terms and conditions set forth therein.
Sale and Servicing Agreement 2007-1
21
SECTION 7.2 Appointment of Successor Servicer. (a) Upon the Servicer's
receipt of notice of termination pursuant to Section 7.1 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the later of
(x) the date 45 days from the delivery to the Indenture Trustee and the Owner
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (y) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of the Servicer's resignation or termination hereunder, the Indenture
Trustee shall appoint a Successor Servicer, and the Successor Servicer shall
accept its appointment by a written assumption in form acceptable to the Owner
Trustee and the Indenture Trustee (with a copy to each Rating Agency). In the
event that a Successor Servicer has not been appointed at the time when the
predecessor Servicer has ceased to act as Servicer in accordance with this
Section 7.2, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. The Indenture Trustee may resign as the
Servicer by giving written notice of such resignation to the Issuer and in such
event shall be released from such duties and obligations, such release not to be
effective until the date a Successor Servicer enters into a written assumption
as provided in this Section. Upon delivery of any such notice to the Issuer, the
Issuer shall obtain a new servicer as the Successor Servicer in accordance with
this Section. Notwithstanding the above, if the Indenture Trustee shall be
legally unable so to act or if, within 30 days after the delivery of its notice
of resignation, the Issuer shall not have obtained a Successor Servicer, the
Indenture Trustee shall appoint, or petition a court of competent jurisdiction
to appoint, any established institution, having a net worth of not less than
$100,000,000 and whose regular business shall include the servicing of
automotive receivables, as the successor to the Servicer under this Agreement;
provided that the Rating Agency Condition shall be satisfied in connection with
such appointment.
(b) Upon appointment, the Successor Servicer shall be the successor
in all respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties, and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, by the terms and provisions of this
Agreement; provided, that (i) any failure of such Successor Servicer to perform
such responsibilities or duties that are caused by the predecessor Servicer's
failure to provide information or monies required hereunder shall not be
considered a default by such Successor Servicer and (ii) such Successor Servicer
shall have no liability for actions, inactions or representations of the
predecessor Servicer.
(c) In connection with such appointment, the Indenture Trustee may
make such arrangements for the compensation of such Successor Servicer out of
payments on Receivables as it and such Successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of the compensation
permitted for the predecessor Servicer under this Agreement. The Indenture
Trustee and such Successor Servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Sale and Servicing Agreement 2007-1
22
(d) Notwithstanding anything herein or in the other Basic Documents
to the contrary, in no event shall any Successor Servicer be required to
purchase any Receivable pursuant to Section 3.6 herein.
SECTION 7.3 Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article VII, the Indenture Trustee shall give prompt written notice thereof to
Noteholders, and the Owner Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses of record and to each Rating
Agency.
SECTION 7.4 Waiver of Past Events of Servicing Termination. The holders of
Notes evidencing not less than a majority of the principal amount of the
Controlling Class (or, if no Notes are outstanding, holders of Certificates
evidencing a majority of the Percentage Interests) may, on behalf of all
Noteholders and Certificateholders, waive any Event of Servicing Termination
hereunder and its consequences, except an event resulting from the failure by
the Servicer to make any required payments in accordance with this Agreement,
which shall require the unanimous vote of all Holders of Outstanding Securities.
Upon any such waiver of a past Event of Servicing Termination, such Event of
Servicing Termination shall cease to exist, and shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other Event of Servicing Termination or impair any right
consequent thereon. The Indenture Trustee shall provide written notice of any
such waiver to the Rating Agencies.
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables. The Servicer, or if the
Servicer does not exercise such right, a Certificateholder evidencing 100% of
the Percentage Interests in the Certificates may purchase the outstanding
Receivables and the other Trust Property on any Payment Date if, as of the last
day of the related Collection Period, the Pool Balance has declined to 10% or
less of the Pool Balance as of the Cut-Off Date. To exercise such option, the
Servicer or Certificateholder, as applicable, shall deposit the Optional
Purchase Price to the Collection Account on such Payment Date. The Servicer or
Certificateholder, as applicable, shall furnish notice of such election to the
Indenture Trustee and the Owner Trustee not later than twenty (20) days (or such
longer period as may be required under the Note Depository Agreement) prior to
the Prepayment Date. Promptly following its receipt of such notice, (i) the
Indenture Trustee will promptly (but not later than 3 Business Days after it has
received such notice) provide notice of such purchase to the Noteholders of
record and (ii) the Owner Trustee will promptly (but not later than 3 Business
Days after it has received such notice) provide notice of such purchase to the
Certificateholders of record.
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture.
Following the satisfaction and discharge of the Indenture and the payment in
full of the principal of and interest on the Notes, to the extent permitted by
applicable law, the Indenture Trustee will continue to carry out its obligations
hereunder as agent for the Owner Trustee, including without limitation making
distributions from the Collection Account in accordance with Section 4.5.
Sale and Servicing Agreement 2007-1
23
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment. (a) Any term or provision of this Agreement may be
amended by the Depositor and the Servicer without the consent of the Indenture
Trustee, the Owner Trustee, any Noteholder, any Certificateholder, the Issuer or
any other Person; provided that such amendment shall not, as evidenced by an
Opinion of Counsel delivered to the Indenture Trustee and to that effect,
materially and adversely affect the interests of the Noteholders or the
Certificateholders. An amendment shall be deemed not to materially and adversely
affect the interests of the Noteholders or the Certificateholders and no Opinion
of Counsel to that effect shall be required if the Rating Agency Condition is
satisfied with respect to such amendment.
(b) Any term or provision of this Agreement may be amended by the
Depositor and the Servicer but without the consent of the Indenture Trustee, the
Owner Trustee, any Noteholder, any Certificateholder, the Issuer or any other
Person to add, modify or eliminate any provisions as may be necessary or
advisable in order to enable the Depositor, the Servicer or any of their
Affiliates to comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle, it being a condition to any such
amendment that the Rating Agency Condition shall have been satisfied; provided,
that any amendment entered into pursuant to this Section 9.1(b) shall not
significantly change the permitted activities of the Issuer.
(c) Any term or provision of this Agreement may also be amended from
time to time by the Depositor and the Servicer, with the consent of the
Indenture Trustee to the extent that its rights or obligations are materially
and adversely affected thereby (which consent shall not be unreasonably
withheld) and with the consent of (i) the Noteholders of Notes evidencing not
less than a majority of the principal amount of each Class of Notes, and (ii)
the Certificateholders of Certificates evidencing not less than a majority of
the Percentage Interests (which consent of any holder of a Note or holder of a
Certificate given pursuant to this Section 9.1 or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Note or
Certificate, as the case may be, and on all future holders of such Note or
holders of such Certificate, as the case may be, and of any Note or Certificate,
as applicable, issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon such Note or
the Certificate), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (A) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, or change the allocation or
priority of, collections of payments on Receivables or distributions that shall
be required to be made on any Note or Certificate or change any Note Interest
Rate, without the consent of all Noteholders or Certificateholders or (B) reduce
the aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes affected thereby and holders of all
Certificates affected thereby. It shall not be necessary for the consent of
Noteholders or the Certificateholders pursuant to this Section 9.1 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Noteholders and
Certificateholders provided for in this Agreement) and of
Sale and Servicing Agreement 2007-1
24
evidencing the authorization of the execution thereof by Noteholders and
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee and the Indenture Trustee may prescribe, including, with respect to the
Noteholders, the establishment of record dates pursuant to the Note Depository
Agreement.
(d) Prior to the execution of any such amendment the Indenture
Trustee will provide written notification of the substance of such amendment to
each Rating Agency.
(e) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish written notification of the substance of such
amendment to the Owner Trustee and each Rating Agency. The Issuer shall provide
notification of the substance of the amendment to each Certificateholder, and
the Indenture Trustee will provide notification of the substance of such
amendment to each Noteholder.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee and the Indenture Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and, if applicable, the Opinion of
Counsel referred to in Section 9.1(a). The Owner Trustee or the Indenture
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such Owner Trustee's or Indenture Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 9.2 Protection of Title to Trust Property. (a) The Depositor shall
file such financing statements and the Owner Trustee and the Issuer shall file
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the interest of the
Issuer and the Indenture Trustee for the benefit of the Indenture Secured
Parties in the Receivables and in the proceeds thereof. The Depositor or Issuer,
as applicable, shall deliver (or cause to be delivered) to the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. The Depositor hereby
authorizes the Issuer and the Owner Trustee to file continuation statements on
its behalf.
(b) Neither the Depositor or the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by the Issuer or the
Owner Trustee in accordance with paragraph (a) above seriously misleading within
the meaning of Sections 9-506, 9-507 or 9-508 of the UCC, unless it shall have
given the Issuer, the Owner Trustee and the Indenture Trustee at least 5 days'
prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Depositor and the Servicer shall give the Issuer, the Owner
Trustee and the Indenture Trustee at least ten (10) days' prior written notice
of any relocation of its principal executive office or change in the
jurisdiction under whose laws it is formed if, as a result of such relocation or
change, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and shall promptly file any such amendment or new
financing statement.
Sale and Servicing Agreement 2007-1
25
The Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Servicer shall maintain (or shall cause the Receivables
Servicers to maintain) accounts and records as to each Receivable accurately and
in sufficient detail to permit (i) the reader thereof to know at any time the
status of such Receivable, including payments and recoveries made and payments
owing (and the nature of each) and (ii) reconciliation between payments or
recoveries on (or with respect to) each Receivable and the amounts from time to
time deposited in the Collection Account in respect of such Receivable.
(e) The Servicer shall maintain its (or cause the Receivables
Servicers to maintain their) computer systems so that, from and after the time
of conveyance under this Agreement of the Receivables to the Issuer, the
Servicer's (or Receivables Servicers') master computer records (including any
back-up archives) that refer to a Receivable shall indicate clearly, by
numerical code or otherwise, that such Receivable is owned by the Issuer and has
been pledged to the Indenture Trustee. Indication of the Issuer's and the
Indenture Trustee's interest in a Receivable shall not be deleted from or
modified on the Servicer's computer systems until, and only until, the
Receivable shall have been paid in full or repurchased.
(f) If at any time the Servicer shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender, or other transferee, the
Servicer shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been conveyed to and is owned by
the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice, shall
permit the Indenture Trustee and its agents at any time during normal business
hours at the Indenture Trustee's expense (which reasonable expense shall be
reimbursed by the Issuer pursuant to Section 8.2(c) of the Indenture) to
inspect, audit, and make copies of and to obtain abstracts from the Servicer's
records regarding any Receivable.
SECTION 9.3 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THAT WOULD
APPLY THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any documents executed and
delivered in connection herewith, or for recognition and enforcement
of any judgment in respect thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York,
Sale and Servicing Agreement 2007-1
00
xxx xxxxxx xx xxx Xxxxxx Xxxxxx of America for the Southern District
of New York and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of such action or proceeding in any such
court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to such Person at its address determined in
accordance with Section 9.4; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER BASIC DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY.
SECTION 9.4 Notices. All demands, notices, and communications under this
Agreement shall be in writing, personally delivered, sent by fax, overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt (a) in the case of the Servicer, at
00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Facsimile: (000) 000-0000, Attention:
Xxxxxx XxXxxxxx; (b) in the case of the Depositor, at 00 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Facsimile (000) 000-0000, Attention: Xxxx Xxx; (c) in the case of the
Owner Trustee, at the Corporate Trust Office of the Owner Trustee; (d) in the
case of the Indenture Trustee, at the Corporate Trust Office of the Indenture
Trustee; (e) in the case of Xxxxx'x, at 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Facsimile: (000) 000-0000, Attention: ABS Monitoring Group; (f) in the case of
Standard & Poor's, at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Facsimile: (000) 000-0000, Attention: Asset Backed Surveillance Group; in the
case of Fitch, at Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Structured Finance; or (h) at such other address as shall be designated by any
of the foregoing in a written notice to the other parties hereto. Any notice
required or permitted to be mailed to a Noteholder or Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Person as
shown in the Note Register or the Certificate Register, as applicable. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder or
Certificateholder shall receive such notice.
SECTION 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way
Sale and Servicing Agreement 2007-1
27
affect the validity or enforceability of the other provisions of this Agreement
or of the Notes, the Certificates or the rights of the holders thereof.
SECTION 9.6 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Owner Trustee, the Indenture Trustee,
the Noteholders or the Certificateholders, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges therein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.7 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Indenture Trustee, the
Owner Trustee and their respective successors and permitted assigns and each of
the Indenture Trustee, Owner Trustee may enforce the provisions hereof as if
they were parties thereto. Except as otherwise provided in this Article IX, no
other Person will have any right or obligation hereunder. The parties hereto
hereby acknowledge and consent to the pledge of this Agreement by the Issuer to
the Indenture Trustee for the benefit of the Indenture Secured Parties pursuant
to the Indenture.
SECTION 9.8 Limitation of Liability of the Owner Trustee and the Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by Wilmington Trust Company not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Wilmington Trust Company, in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Bank of New York, not in its individual
capacity but solely as Indenture Trustee, and in no event shall The Bank of New
York have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 9.9 Transfers Intended as Sale; Security Interest. (a) Each of the
parties hereto expressly intends and agrees that the transfer of the Transferred
Assets contemplated and effected under this Agreement is a complete and absolute
sale and transfer of the Transferred Assets rather than a pledge or assignment
of only a security interest and shall be given effect as such for all purposes.
It is further the intention of the parties hereto that the Receivables and other
Transferred Assets shall not be part of the Depositor's estate in the event of a
bankruptcy or insolvency of the Depositor. The sale and transfer by the
Depositor of Receivables and other Transferred Assets hereunder is and shall be
without recourse to, or representation or warranty
Sale and Servicing Agreement 2007-1
28
(express or implied) by, the Depositor, except as otherwise specifically
provided herein. The limited rights of recourse specified herein against the
Depositor are intended to provide a remedy for breach of representations and
warranties relating to the condition of the property sold, rather than to the
collectibility of the Receivables.
(b) Notwithstanding the foregoing, in the event that the Receivables
and other Transferred Assets are held to be property of the Depositor, or if for
any reason this Agreement is held or deemed to create indebtedness or a security
interest in the Receivables and other Transferred Assets, then it is intended
that:
(i) This Agreement shall be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction;
(ii) The conveyance provided for in Section 2.1 shall be
deemed to be a grant by the Depositor, and the Depositor hereby
grants, to the Issuer of a security interest in all of its right
(including the power to convey title thereto), title and interest,
whether now owned or hereafter acquired, in and to the Receivables
and other Transferred Assets, to secure such indebtedness and the
performance of the obligations of the Depositor hereunder;
(iii) The possession by the Issuer, or the Servicer (or
Receivables Servicers) as the Issuer's agent, of the Receivables
Files and any other property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by the purchaser or
a person designated by such purchaser, for purposes of perfecting
the security interest pursuant to the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable
jurisdiction; and
(iv) Notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, bailees or agents
(as applicable) of the Issuer for the purpose of perfecting such
security interest under applicable law.
SECTION 9.10 No Petition. Each party hereto agrees that, prior to the date
which is one year and one day after payment in full of all obligations of each
Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy
Remote Party (i) such party shall not authorize any Bankruptcy Remote Party to
commence a voluntary winding-up or other voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to such
Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the
appointment of an administrator, a trustee, receiver, liquidator, custodian or
other similar official with respect to such Bankruptcy Remote Party or any
substantial part of its property or to consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against such Bankruptcy Remote Party, or to make a
general assignment for the benefit of, its creditors generally, any party hereto
or any other creditor of such Bankruptcy
Sale and Servicing Agreement 2007-1
29
Remote Party, and (ii) none of the parties hereto shall commence or join with
any other Person in commencing any proceeding against such Bankruptcy Remote
Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction. This Section shall
survive the termination of this Agreement.
SECTION 9.11 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 9.12 Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
SECTION 9.13 Data Aggregation. The Servicer and the Data Aggregator hereby
agree to the following:
(a) Effective on the Closing Date, the Servicer shall cause each
Receivables Servicer to:
(i) Deliver a monthly data file to the Data Aggregator no
later than the 5th Business Day of each month; and
(ii) Deliver a servicer report to the Data Aggregator no later
than: in the case of Ford, the 10th calendar day of each month, in
the case of Huntington, the 5th Business Day of each month and, in
the case of Fidelity, the 5th Business Day of each month.
(b) The Servicer shall cause each Receivables Servicer to deliver
the monthly data file and servicer report in the manner, layout and format as
shall be reasonably requested by the Data Aggregator and substantially in the
form of Schedule B attached hereto. Any modifications to the manner, layout or
format shall be effective only upon the written consent of the Servicer and the
Data Aggregator.
(c) The Data Aggregator shall review the monthly data file received
from each Receivables Servicer for the related Collection Period and the related
servicer report and, to the extent possible based on the information provided
therein, tie-out and reconcile the monthly data file and servicer report.
(d) The Data Aggregator shall promptly notify the Servicer and the
Receivables Servicer in writing, with telephonic advice, of any discrepancy or
unreconciled data. The Servicer shall, and shall cause such Receivables Servicer
to cooperate fully in resolving any such discrepancy or unreconciled data.
(e) Subject to Section 3.8 hereto, the Data Aggregator shall prepare
the Aggregator Report substantially in the form of Schedule B attached hereto
and deliver it to the Servicer and the Indenture Trustee no later than 3
Business Days prior to the Payment Date.
Sale and Servicing Agreement 2007-1
30
(f) The Data Aggregator shall deliver a cash reconciliation report,
in a format mutually agreeable to the Data Aggregator and the Indenture Trustee,
to the Servicer and the Indenture Trustee no later than 3 Business Days prior to
the Payment Date.
(g) The Data Aggregator shall deliver such other reports as the
Servicer (or the Company) may reasonably request; provided, that the manner of
delivery and format of any such reports shall be at the mutual agreement of the
parties.
(h) The Data Aggregator may reasonably rely on any records and
documentation provided, produced or supplied to it by the Receivables Servicers
and the Servicer (together with the Receivables Servicers, the "Deal
Servicers"). The Data Aggregator shall have no liability in connection with the
malfeasance or nonfeasance of the Deal Servicers or the inaccuracy of any data
provided, produced or supplied by the Deal Servicers. The Data Aggregator shall
have no liability for any errors perpetuated by it in the performance of its
duties hereunder as a result of a latent defect in any underlying records or
data provided to it by the Deal Servicers except for such latent defects that
remain undiscovered or uncorrected as a result of the willful misconduct, bad
faith or gross negligence of the Data Aggregator in the performance of its
duties hereunder.
(i) The Data Aggregator may accept and reasonably rely on all
accounting and servicing records and other documentation provided to the Data
Aggregator, including documents prepared or maintained by the Deal Servicers, or
any party providing services related to the Receivables (each, a "Third Party").
The Data Aggregator shall have no duty, responsibility, obligation or liability
(collectively, "liability") for the acts or omissions of any Third Party. If any
error, inaccuracy or omission (collectively, "error") exists in any information
provided to the Data Aggregator and such error causes or materially contributes
to the Data Aggregator making or continuing any error (a "continuing error"),
the Data Aggregator shall have no liability for such continuing error; provided,
however, that this provision shall not protect the Data Aggregator against any
liability arising from its willful misconduct, bad faith or gross negligence in
discovering or correcting or failing to discover or correct any error or in the
performance of its duties contemplated herein.
(j) If the Data Aggregator becomes aware of any error or continuing
error which in the opinion of the Data Aggregator impairs its ability to perform
its services hereunder the Data Aggregator may, and at the direction of the
Servicer shall, undertake such data or records reconstruction as it deems
appropriate to correct any such error or continuing error.
(k) The Data Aggregator shall be entitled to all of the same rights,
protections, immunities and indemnities of the Indenture Trustee set forth in
the Indenture.
(l) If the Indenture Trustee shall resign or be replaced in
accordance with Sections 6.8 or 6.9 of the Indenture, unless the Depositor
elects otherwise in accordance with this Section 9.13(l), the Data Aggregator
shall promptly resign or be replaced, as applicable, and the successor Indenture
Trustee under the Indenture shall be the successor Data Aggregator under this
Agreement. At its option, the Depositor, upon resignation or replacement of the
Indenture Trustee, may elect for the Data Aggregator to continue acting in such
capacity under this Agreement, or the Depositor may replace the Data Aggregator
with a third party which is not the
Sale and Servicing Agreement 2007-1
31
successor Indenture Trustee; if the Data Aggregator continues in its duties
pursuant to this sentence, the Data Aggregator and the Depositor shall enter
into a mutually acceptable fee letter agreement. In the event of a resignation
or replacement of the Indenture Trustee, the Depositor shall within five (5)
Business Days following such resignation or replacement notify each Receivables
Servicer in writing of the identity and contact information for the successor
(if any) to the Data Aggregator, or shall similarly notify each Receivables
Servicer that the identity of the Data Aggregator remains unchanged. The Data
Aggregator shall continue performing its duties under this Agreement until a
successor Data Aggregator has been appointed pursuant to this Section 9.13(l).
Nothing in this Section 9.13(l) shall obligate the Depositor to terminate or
replace the Data Aggregator or to ensure that the Data Aggregator is the same
entity as the Indenture Trustee.
[SIGNATURES FOLLOW]
Sale and Servicing Agreement 2007-1
32
IN WITNESS WHEREOF, the parties have caused this Sale and Servicing
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
GS AUTO LOAN TRUST 2007-1, as Issuer
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By: /s/ J. Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: J. Xxxxxxxxxxx Xxxxxx
Title: Financial Services Officer
Sale and Servicing Agreement 2007-1
S-1
XXXXXXX XXXXX MORTGAGE COMPANY,
as Servicer
By: Xxxxxxx Sachs Real Estate Funding
Corp., its general partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX ASSET BACKED
SECURITIES CORP., as Depositor
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Sale and Servicing Agreement 2007-1
S-2
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK,
as Data Aggregator
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
Sale and Servicing Agreement 2007-1
S-3
APPENDIX A
DEFINITIONS
Sale and Servicing Agreement 2007-1
Appendix A
SCHEDULE A
RECEIVABLES
ON FILE WITH SERVICER
Schedule A
SCHEDULE B
FORM OF MONTHLY DATA FILE AND SERVICER REPORT AND
AGGREGATOR REPORT
Schedule B
