EXHIBIT 99.4
RECEIVABLES PURCHASE AGREEMENT
between
AUTO LOAN FUNDING TRUST IV,
as Seller
and
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Purchaser
Dated as of November 9, 2004
TABLE OF CONTENTS
Page
----
1. Definitions.............................................................1
2. Representations and Warranties of the Seller............................3
3. Conveyance of the Receivables...........................................3
4. Seller Covenants........................................................5
5. Survival of Representations and Obligations.............................5
6. Protection of Title to the Purchaser....................................5
7. Notices.................................................................6
8. Successors and Assigns..................................................6
9. Counterparts............................................................6
10. Applicable Law..........................................................6
11. Limitation of Liability of Owner Trustee................................7
EXHIBIT A..................................................................A-1
EXHIBIT B..................................................................B-1
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This RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of
November 9, 2004, between AUTO LOAN FUNDING TRUST IV, a Delaware statutory
trust (the "Seller"), and BEAR XXXXXXX ASSET BACKED FUNDING II INC., a
Delaware corporation (the "Purchaser").
PRELIMINARY STATEMENT
Subject to the terms and conditions of this Agreement, the Seller is
selling those Receivables identified on Exhibit A to the Purchaser. The
Purchaser may sell the Receivables to Whole Auto Loan Trust 2004-1, a
Delaware statutory trust. Following such sale, DaimlerChrysler Services North
America LLC ("DCS") will continue to service the Receivables pursuant to the
servicing and administration agreement dated as of October 12, 2004 (as
amended, restated, modified or otherwise supplemented from time to time, the
"Receivables Servicing Agreement") among DCS, as seller, servicer and
administrator (in such capacity, the "Receivables Servicer"), the Seller and
the Purchaser. DCS will act as a subservicer with respect to the Receivables
pursuant to the agreement to subservice and acknowledgement dated as of
November 9, 2004 (the "Acknowledgement") among DCS, Bear Xxxxxxx Asset
Receivables Corp., as servicer, and the Purchaser.
The Receivables are the motor vehicle retail installment sale
contacts described in Exhibit A hereto.
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
For all purposes of this Agreement, the following terms shall have
the meanings set forth below:
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(consensual, statutory or other), charge, security arrangement, or any other
encumbrance or other right or claim in, of or on any Person's assets or
properties in favor of any other Person, of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
"Collection" means any amount paid by an Obligor or any other party
with respect to a Receivable, including Liquidation Proceeds.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices, or other writings pursuant to which such
Receivable arises or which evidence such Receivable.
"Credit and Collection Policy" means the credit and collection
policies and practices of the Receivables Servicer and any successor
Receivables Servicer relating to Receivables and Contracts, such policies
being subject to unilateral revision or modification at any time by the
Receivables Servicer or successor Receivables Servicer.
"Cut-off Date" means September 27, 2004.
"DCS Receivable" means all Receivables sold to the Seller pursuant
to that certain purchase agreement dated October 12, 2004 between DCS and the
Purchaser.
"Dealer" means the dealer who sold a Financed Vehicle and who
originated and assigned the related Receivable to DCS under an existing
agreement between such dealer and DCS.
"Deposit Account" means the account established and maintained
pursuant to Section 5.1 of the Receivables Servicing Agreement.
"Finance Charges" means, with respect to any Receivable and its
related Contract, any finance, interest or similar charges owing by an
Obligor pursuant to such Contract, including, without limitation, any charge
payable in connection with any extension or adjustment under such Contract
(without regard to whether any such extension or adjustment is permitted
under the terms of the Receivables Servicing Agreement).
"Financed Vehicle" means an automobile or light-duty truck, together
with all accessions thereto, securing an Obligor's indebtedness under the
applicable Contract.
"Fixed Value Receivable" means any motor vehicle retail installment
contract that provides for amortization of the loan over a series of fixed
level payment monthly installments in accordance with the simple interest
method, but also requires a final payment that is greater than the scheduled
monthly payments and is due after payment of such scheduled monthly payments
and that may be made by (i) payment in full in cash of a fixed value amount,
(ii) return of the Financed Vehicle to the Receivables Servicer provided
certain conditions are satisfied or (iii) refinancing the final fixed value
payment in accordance with specified conditions.
"Insurance Policy" means (i) any comprehensive and collision, fire,
theft or other insurance policy maintained by an Obligor in which the
Receivables Servicer is named as loss payee with respect to one or more
Financed Vehicles, and (ii) any credit, life or disability insurance
maintained by an Obligor in connection with any Contract.
"Liquidated Receivable" means any Receivable liquidated by the
Receivables Servicer through the sale of a Financed Vehicle or otherwise
written off in accordance with the Credit and Collection Policy.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
net of the sum of any amounts expended by the Receivables Servicer in
connection with such liquidation and any amounts required by law to be
remitted to the Obligor on such Liquidated Receivable.
"Obligor" means any Person which is obligated to make payment on a
Receivable.
"OMSC Receivable" means any Receivable acquired by DCS from the
Overseas Military Sales Corporation, or its successor.
"Person" means any corporation, natural person, firm, joint venture,
partnership, limited
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liability company, trust, unincorporated organization, enterprise, government
or any department or agency of any government.
"Receivable" means the indebtedness and other obligations of an
Obligor arising under a Contract, whether such indebtedness or other
obligations constitute accounts, chattel paper, instruments or general
intangibles, in each case, as such terms are defined in the UCC, and
including, without limitation, the obligation to pay any Finance Charges with
respect thereto.
"Simple Interest Method" means the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of (a) the
fixed rate of interest, (b) the unpaid principal balance, and (c) a fraction,
the numerator of which is the number of days elapsed since the preceding
payment of interest was made and the denominator of which is 365, and the
remainder of such payment is allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
Capitalized terms used and not otherwise defined herein (including
the Preliminary Statement) shall have the meanings assigned thereto in the
amended and restated trust agreement dated as of October 12, 2004 between the
Purchaser and Chase Manhattan Bank USA, National Association, as owner
trustee (the "Trust Agreement").
2. Representations and Warranties of the Seller.
The Seller represents and warrants to, and agrees with, the
Purchaser that:
(a) This Agreement has been duly authorized, executed and delivered
by the Seller and constitutes a legal, valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, subject,
as to enforceability, to bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) The Seller's assignment and delivery of the Receivables to the
Purchaser will transfer to the Purchaser all of the Seller's right, title and
interest therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance created by the Seller.
(c) With respect to the DCS Receivables, DCS has made the
representations and warranties set forth in Exhibit B hereto.
3. Conveyance of the Receivables.
In consideration of the Purchaser's payment to the Seller of
$716,992,669.74 (the "Purchase Price"), the Seller does hereby irrevocably
sell, transfer, assign and otherwise convey to the Purchaser without recourse
(subject to the obligations herein) all of Seller's right, title and
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interest in, to and under the following, whether now owned or existing or
hereafter acquired or arising (collectively, the "Purchased Property"): (x)
(i) the Receivables and all Collections received thereunder on or after
September 27, 2004, (ii) the Financed Vehicles, the financing of the purchase
of which gave rise to such Receivable, including, without limitation, all of
the Seller's right, title and interest in and to the proceeds of the
Insurance Policies, and all warranties, indemnities, service obligations and
other contract rights issued or granted by, or otherwise existing under
applicable law against, the manufacturer or Dealer in respect of such
Financed Vehicle, (iii) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure payment of
such Receivable, whether pursuant to the Contract related to such Receivable,
or otherwise, together with all financing statements signed by an Obligor
describing any collateral securing such Receivable, and including, without
limitation, all security interests or liens, and property subject thereto,
granted by any Person (whether or not the primary Obligor on such Receivable)
under or in connection therewith, (iv) all books, records and other
information relating to such Receivable, including, without limitation, all
Contracts, (v) all service contracts and other contracts and agreements
relating to such Receivable, (vi) any proceeds from recourse to Dealers with
respect to Receivables with respect to which the Receivables Servicer has
determined in accordance with its customary servicing procedures that
eventual payment in full is unlikely, (vii) all funds on deposit from time to
time in the Deposit Account, to the extent related to the Receivables, and in
all investments and proceeds thereof (including all income thereon), (viii)
any Financed Vehicle that shall have secured a Receivable and shall have been
acquired by or on behalf of DCS or the Seller, and (ix) all present and
future claims, demands, causes of action and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion thereof, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables, instruments
and other property which at any time constitute all or part of or are
included in the proceeds of any of the foregoing, and (y) all rights of the
Seller under (A) the Purchase Agreement dated October 12, 2004 (the "Purchase
Agreement") between DCS, as seller, and Bear Xxxxxxx Asset Backed Funding II
Inc., as purchaser, and (B) the Receivables Servicing Agreement (including
without limitation the representations and warranties of DCS thereunder), but
in the case of (A) and (B), only to the extent such rights relate to the
Receivables.
The sale, transfer, assignment and conveyance made hereunder shall
not constitute and is not intended to result in an assumption by the
Purchaser of any obligation of the Seller to the Obligors or any other Person
in connection with the Purchased Property or any agreement, document or
instrument related thereto. The Seller and the Purchaser intend that the
sale, transfer, assignment and conveyance of the Purchased Property and other
rights and property pursuant to this Section 3 shall be a sale and not a
secured borrowing. However, in the event that such transfer is deemed to be a
transfer for security, the Seller hereby grants to the Purchaser a first
priority security interest in all of the Seller's right, title and interest
in, to and under the Purchased Property whether now owned or existing or
hereafter acquired or arising and all proceeds thereof (including, without
limitation, "proceeds" as defined in the Uniform Commercial Code as in effect
from time to time in the State of New York) and all other rights and property
transferred hereunder to secure a loan in an amount equal to the Purchase
Price, and
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in such event, this Agreement shall constitute a security agreement under
applicable law. The Seller hereby authorizes the Purchaser or its agents to
file such financing statements and continuation statements as the Purchaser
may deem advisable in connection with the security interest granted by the
Seller pursuant to the preceding sentence.
4. Seller Covenants.
The Seller shall cause the following to occur:
(a) The Purchaser shall have received an opinion of Sidley Xxxxxx
Xxxxx & Xxxx LLP, in its capacity as counsel to the Purchaser, addressed to
the Purchaser and dated the Closing Date, with respect to such matters as the
Purchaser requires, and the Seller shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(b) The Purchaser shall have received copies of the Purchase
Agreement, the Receivables Servicing Agreement and the Acknowledgement.
(c) The Purchaser shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., in its capacity as counsel to the Seller, addressed to
the Purchaser and dated the Closing Date, with respect to such matters as the
Purchaser requires, and the Seller shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(d) The Purchaser shall have received evidence satisfactory to it
that, within ten days of the date hereof, UCC-1 financing statements have
been or are being filed in the office of the Secretary of State of the State
of Delaware reflecting the transfer of the interest of the Seller in the
Purchased Property and the proceeds thereof to the Purchaser. The Seller will
provide or cause to be provided to the Purchaser such conformed copies of
such opinions and documents as the Purchaser may reasonably request.
5. Survival of Representations and Obligations.
The respective agreements, representations, warranties and other
statements of the Seller and the Purchaser set forth in or made pursuant to
this Agreement or contained in certificates of the Seller submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof made by or on behalf of
the Purchaser or the Seller or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Purchased Property.
6. Protection of Title to the Purchaser.
(a) The Seller shall file such financing statements and cause to be
filed 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 Purchaser in the Purchased Property and in the proceeds thereof. The
Seller shall deliver (or cause to be delivered) to the Purchaser file-stamped
copies of, or filing receipts for, any document filed as provided above, as
soon as
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available following such filing. The Seller hereby authorizes the filing of
such financing statements and continuation statements.
(b) The Seller shall not change its name, identity or
organizational structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-506(c)
or ss. 9-508(b) of the UCC, unless it shall have given the Purchaser at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller shall have an obligation to give the Purchaser at
least 60 days' prior written notice of any change in the jurisdiction in
which it is organized if, as a result of such relocation, 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.
7. Notices.
All communications hereunder will be in writing and, if sent to the
Purchaser, will be mailed, delivered or telegraphed and confirmed to Bear
Xxxxxxx Asset Backed Funding II Inc., c/o Bear Xxxxxxx & Co. Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000,
Attention: Xxxxx Xxxxxx; and if sent to the Seller, will be mailed, delivered
or telegraphed, and confirmed to it at Auto Loan Funding Trust IV, c/o Chase
Manhattan Bank USA, National Association, c/o JPMorgan Chase, 000 Xxxxxxx
Xxxxxxxxxx Xxxx, XX0/XXX0, Xxxxxx, Xxxxxxxx 00000, facsimile: (000) 000-0000,
Attention: Institutional Trust Services, with a copy to Bear Xxxxxxx
Investment Products, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile: (000) 000-0000, Attention: Xxxxxxxx Xxxxx. Any such notice will
take effect at the time of receipt.
8. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns and their officers
and directors and controlling persons, and no other person will have any
right or obligations hereunder.
9. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
10. Applicable Law.
THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS THAT WOULD APPLY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE
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DETERMINED IN ACCORDANCE WITH SUCH LAWS.
11. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
instrument has been signed by Chase Manhattan Bank USA, National Association
not in its individual capacity but solely in its capacity as Owner Trustee of
the Seller and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity or any beneficial owner of the Seller
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Seller hereunder, as to all of which recourse
shall be had solely to the assets of the Seller. For all purposes of this
Agreement, in the performance of any duties or obligations of the Seller
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AUTO LOAN FUNDING TRUST IV
By Chase Manhattan Bank USA, National
Association, not in its individual
capacity, but solely as Owner Trustee
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BEAR XXXXXXX ASSET BACKED FUNDING II INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A
Information as to the Receivables as of September 27, 2004. This information
may be provided in the form of a computer tape or disk.
Loan ID Principal Balance Contract APR Maturity Date
------- ----------------- ------------ -------------
[on file with Sidley Xxxxxx Xxxxx & Xxxx LLP]
A-1
EXHIBIT B
DaimlerChrysler Services North America LLC ("DCS") has made the
following representations and warranties with respect to the Receivables sold
to Auto Loan Trust IV pursuant to that certain purchase agreement dated
October 12, 2004 between DCS and Bear Xxxxxxx Asset Backed Funding II Inc.
(the "DCS Receivables") (capitalized terms used and not defined in this
Exhibit B shall have the meaning(s) ascribed thereto in the servicing and
administration agreement dated as of October 12, 2004 (the "Receivables
Servicing Agreement") among DCS, as seller, servicer and administrator, Auto
Loan Funding Trust IV and Bear Xxxxxxx Asset Backed Funding II Inc.):
(a) no selection procedures believed by DCS to be adverse
to Auto Loan Funding Trust IV were or will be used in selecting the
DCS Receivables for purchase under the Purchase Agreement,
(b) each DCS Receivable is an Eligible Receivable,
(c) there has been no material change in any Credit and
Collection Policy that would have a material adverse effect on the
performance of the Receivables,
(d) the Receivable Files are kept at one or more of the
locations listed in Schedule A to the Receivables Servicing
Agreement,
(e) the latest scheduled maturity of any DCS Receivable
shall be no later than the Final Scheduled Maturity Date,
(f) as of the Cut-Off Date, approximately 93.43% of the
aggregate principal balance of the DCS Receivables, constituting
approximately 89.27% of the number of DCS Receivables, represents
new vehicles; all of the DCS Receivables are Simple Interest
Receivables; and none of the DCS Receivables are Fixed Value
Receivables or OSMC Receivables. The Cut-Off Date Balance is
$1,200,000,476.03,
(g) as of the related Cut-off Date, no Obligor on a DCS
Receivable is shown on the Receivable Files as the subject of a
bankruptcy proceeding, and
(h) DCS's underwriting criteria with respect to the DCS
Receivables was not materially different than DCS's underwriting
criteria with respect to its public retail receivable securitization
transactions.
"Eligible Receivable" means, as of the Cut-off Date, any DCS Receivable:
(i) the Obligor of which (a) is a resident of the United States and
(b) is not an affiliate of the originating Dealer or any of the parties
hereto,
(ii) the Obligor of which is not the subject of any bankruptcy,
insolvency or reorganization proceeding or any other proceeding seeking the
entry of an order for relief or the appointment of a receiver, trustee or
other similar official for it or any substantial part of its
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property,
(iii) which is not a Delinquent Receivable,
(iv) which is "tangible chattel paper" within the meaning of Section
9-102 of the UCC of all applicable jurisdictions,
(v) which is denominated and payable only in United States dollars
in the United States,
(vi) which (a) has been originated in the United States by a Dealer
for the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, (b) was fully and properly executed by the parties
thereto, (c) was purchased by DCS from such Dealer under an existing dealer
agreement, (d) satisfies all applicable requirements of the Credit and
Collection Policy, and (e) which is assignable by DCS to Auto Loan Funding
Trust IV,
(vii) which is neither an OMSC Receivable nor a Fixed Value
Receivable,
(viii) which does not have forced-placed physical damage insurance,
(ix) which arises under a Contract (a) which, together with such DCS
Receivable, is in full force and effect and constitutes the genuine, legal,
valid and binding payment obligation in writing of the related Obligor,
enforceable against such Obligor in accordance with its terms and (b) with
respect to which (1) no default, breach, violation, or event permitting
acceleration under the terms thereof has occurred and (2) there has not
arisen any condition that, with notice or lapse of time or both, would
constitute a default, breach, violation or event permitting acceleration
under the terms thereof, and DCS has not waived and shall not waive any of
the foregoing,
(x) which, together with the related Contract, (a) is secured by a
perfected, valid, subsisting and enforceable first priority security interest
in favor of DCS in the related Financed Vehicle, (b) contains customary and
enforceable provisions such that the rights and remedies of the holder of
such security interest are adequate for realization against the collateral of
the benefits of the security, and (c) was originated and transferred to DCS
without any conduct constituting fraud or misrepresentation on the part of
the applicable Dealer or DCS,
(xi) which, together with the related Contract, immediately
following the execution of such Contract, was purchased by (and the
originating Dealer has validly assigned all of its right, title and interest
therein to) DCS, and such purchase and assignment of such DCS Receivable,
such Contract and the Related Security to DCS is expressly contemplated in
such Contract,
(xii) which, together with the Contract related thereto, and the
sale of the Financed Vehicle complied at the time it was originated or made
and, at the execution of this Agreement, complies with all requirements of,
and does not contravene any, federal, state or local laws and regulations,
including usury laws, the federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty
Act, the Federal Reserve Board's Regulations B and Z, the Texas Consumer
Credit Code and State adaptations of the National
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Consumer Act and of the Uniform Consumer Credit Code, and other consumer
credit laws and equal credit opportunity and disclosure laws,
(xiii) the Financed Vehicle securing which (a) is free and clear of
any Adverse Claim other than the security interest therein then being
assigned by DCS to Auto Loan Funding Trust IV, and no enforcement action,
whether by repossession or otherwise, has been taken with respect to such
Financed Vehicle, and (b) is covered by the Required Insurance in respect of
such Financed Vehicle, and such Required Insurance is in full force and
effect, and the proceeds of the Required Insurance have been assigned to DCS
and such proceeds are fully assignable to the Issuer,
(xiv) with respect to the outstanding balance thereof, such
outstanding balance is scheduled to be paid in equal consecutive monthly
installments that fully amortize the Amount Financed by maturity,
(xv) which DCS Receivable bears interest at the per annum rate
stated on the face of the related Contract, which per annum rate remains
fixed during the term of such DCS Receivable and accrued interest on such DCS
Receivable is payable monthly, in arrears,
(xvi) which DCS Receivable is not due from the United States of
America or any State or from any agency, department or instrumentality of the
United States of America or any State,
(xvii) which DCS Receivable has not been satisfied, subordinated or
rescinded, nor has any Financed Vehicle been released from the lien granted
by the related DCS Receivable in whole or in part,
(xviii) which DCS Receivable has not been amended such that the
amount of the Obligor's scheduled payments has been increased,
(xix) as to which no provision of such DCS Receivable or the related
Contract has been waived,
(xx) as to which DCS Receivable and the related Contract, no right
of rescission, setoff, counterclaim or defense has been asserted or
threatened,
(xxi) which DCS Receivable has not been originated in, and is not
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such DCS Receivable or any DCS Receivable under this Agreement
is unlawful, void or voidable,
(xxii) as to which DCS Receivable, all filings (including UCC
filings) necessary in any jurisdiction to give the Issuer a first perfected
ownership interest in such DCS Receivable shall have been made,
(xxiii) as to which DCS Receivable, there is only one original
executed copy of the related Contract,
(xxiv) which DCS Receivable has a final maturity date before
September 30, 2010.
(xxv) (A) which DCS Receivable has a first scheduled due date on or
prior to the end of
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the month following the related Cut-Off Date and (B) which DCS Receivable
does not have a payment that is more than 30 days overdue as of the related
Cut-Off Date,
(xxvi) which DCS Receivable has an outstanding principal balance of
at least $1,000.00, and
(xxvii) which DCS Receivable was originated on or prior to June 27,
2004.
B-4
