Exhibit 10.4
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (as amended or
supplemented from time to time including pursuant to any Supplement Agreement
(as defined below) the "Agreement") made this 30th day of August, 2004, among
The Huntington National Bank, a national banking association organized under
the laws of the United States of America ("HNB" or the "Servicer"), Xxxxxx
Xxxxxxx ABS Capital II Inc., a corporation organized under the laws of
Delaware (the "Assignee"), and Xxxxxx Xxxxxxx Asset Funding Inc., a
corporation organized under the laws of Delaware (the "Assignor" or the
"Purchaser").
WHEREAS, the Purchaser and HNB have entered into a certain Flow
Purchase and Servicing Agreement dated as of May 31, 2004 (the "Purchase and
Servicing Agreement"), pursuant to which HNB (i) sold to the Purchaser certain
retail motor vehicle loan and installment sale contracts identified on the
receivable schedule attached as Schedule 1 hereto (the "Initial Receivables")
in transactions that occurred in June, July and August 2004 and (ii) has
agreed to sell to the Purchaser subsequent to the date of this Agreement, a
pool of retail automobile and light-duty truck loan and installment sale
contracts in a aggregate principal amount of approximately $50,000,000 (the
"Subsequent Receivables" collectively with the Initial Receivables the
"Receivables"), in each case listed on the receivable schedule attached as an
exhibit to the Purchase and Servicing Agreement;
WHEREAS, pursuant to a Sale and Servicing Agreement, dated as of
June 30, 2004 (the "Sale and Servicing Agreement"), among the Assignee, as
depositor, Xxxxxx Xxxxxxx Auto Loan Trust 2004-HB2, as issuer (the "Issuer"),
the Servicer, the Assignor, as seller and Xxxxx Fargo Bank, National
Association, as indenture trustee (the "Indenture Trustee"), the Assignee will
transfer the Receivables to the Issuer, together with the Assignee's rights in
the Purchase and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Assignment and Assumption.
Section 1.01 Assignment and Assumption of Rights in Respect of
Initial Receivables. The Assignor hereby assigns to the Assignee all of its
right, title and interest in and to the Initial Receivables and the Purchase
and Servicing Agreement and each applicable Assignment, to the extent relating
to the Initial Receivables (other than the rights of the Assignor to
indemnification and contribution under Sections 10.02 and 10.04 of the
Purchase and Servicing Agreement), and all other Conveyed Assets with respect
thereto, and the Assignee hereby assumes all of the Assignor's obligations
under the Purchase and Servicing Agreement, to the extent relating to the
Initial Receivables from and after the date hereof, and HNB hereby
acknowledges such assignment and assumption and hereby agrees to the release
of the Assignor from any obligations under the Purchase and Servicing
Agreement from and after the date hereof, to the extent relating to the
Initial Receivables.
Section 1.02 Agreement to Assign and Assume Rights in Respect of
Subsequent Receivables. The Assignor and the Assignee agree to enter into an
agreement supplemental to this Agreement substantially in the form attached
hereto as Exhibit I hereto (a "Supplemental Agreement") with respect to the
Subsequent Receivables to be transferred pursuant to the Sale and Servicing
Agreement for the purpose of extending the provisions of this Agreement to the
Subsequent Receivables.
Section 1.03 Limitation. Notwithstanding the foregoing Section 1.01
and 1.02, it is understood that the Assignor is not released from liability
for any breaches of the representations and warranties made in Section 3.03 of
the Purchase and Servicing Agreement, and the Assignee is not undertaking any
such liability hereunder.
ARTICLE II
Accuracy of Purchase and Servicing Agreement.
HNB and the Assignor represent and warrant to the Assignee that (a)
attached hereto as Exhibit 2 is a true, accurate and complete copy of the
Purchase and Servicing Agreement and any amendments, supplements or other
modifications thereto, (b) the Purchase and Servicing Agreement is in full
force and effect as of the date hereof, (c) the Purchase and Servicing
Agreement has not been amended or modified in any respect except as set forth
in Exhibit 2 and (d) no notice of termination has been given to the Servicer
under the Purchase and Servicing Agreement.
ARTICLE III
Recognition of Purchaser.
Section 3.01 Notation of Initial Receivables. From and after the
date hereof the Servicer shall note the transfer of the Initial Receivables to
the Assignee in its books and records, shall recognize the Assignee as the
owner of the Initial Receivables and shall service the Initial Receivables for
the benefit of the Assignee pursuant to the Purchase and Servicing Agreement
and the applicable Assignment, the terms of which are incorporated herein by
reference.
Section 3.02 Notation of Subsequent Receivables. From and after the
date of any Supplemental Agreement, the Servicer shall note the transfer of
the Subsequent Receivables transferred on such date to the Assignee in its
books and records, shall recognize the Assignee as the owner of such
Subsequent Receivables and shall service such Subsequent Receivables for the
benefit of the Assignee pursuant to the Purchase and Servicing Agreement and
the applicable Assignment, the terms of which shall be incorporated herein by
reference upon the execution of the applicable Supplemental Agreement.
Section 3.03 Binding Effect. It is the intention of the Assignor,
HNB and the Assignee that the Purchase and Servicing Agreement shall be
binding upon and inure to the benefit of the Assignee and its permitted
successors and assigns.
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ARTICLE IV
Representations and Warranties of the Assignee.
The Assignee hereby represents and warrants to the Assignor, as of
the date hereof and as of the date of each Supplemental Agreement, as follows:
Section 4.01 Decision to Purchase. The Assignee represents and
warrants that it is a sophisticated investor able to evaluate the risks and
merits of the transactions contemplated hereby, and that it has not relied in
connection therewith upon any statements or representations of the Assignor or
the Seller other than those contained in the Purchase and Servicing Agreement
or this Agreement.
Section 4.02 Authority. The Assignee hereto represents and warrants
that it is duly and legally authorized to enter into this Agreement and to
perform its obligations hereunder and under the Purchase and Servicing
Agreement.
Section 4.03 Enforceability. The Assignee hereto represents and
warrants that this Agreement has been duly authorized, executed and delivered
by it and (assuming due authorization, execution and delivery thereof by each
of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
ARTICLE V
Representations and Warranties of the Assignor.
The Assignor hereby represents and warrants to the Assignee, as of
the date hereof and as of the date of each Supplemental Agreement, as follows:
Section 5.01 Existence. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of Delaware
with full power and authority to enter into and perform its obligations under
the Purchase and Servicing Agreement and this Agreement.
Section 5.02 Execution, Delivery, Enforceability. This Agreement has
been duly executed and delivered by the Assignor, and, assuming due
authorization, execution and delivery by each of the other parties hereto,
constitutes a legal, valid, and binding agreement of the Assignor, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law.
Section 5.03 No Consent Required. The execution, delivery and
performance by the Assignor of this Agreement and the consummation of the
transactions contemplated
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thereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as has
been obtained, given, effected or taken prior to the date thereof.
Section 5.04 Due Execution and Delivery. The execution and delivery
of this Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the
Assignor of this Agreement, nor the consummation by the Assignor of the
transactions therein contemplated, nor compliance by the Assignor with the
provisions thereof, will conflict with or result in a breach of, or constitute
(with or without notice or lapse of time or both) a default under, any of the
provisions of the governing documents of the Assignor or any law, governmental
rule or regulation or any material judgment, decree or order binding on the
Assignor or any of its properties, or any of the provisions of any material
indenture, mortgage, deed of trust, contract or other instrument to which the
Assignor is a party or by which it is bound.
Section 5.05 No Action or Proceedings. There are no actions, suits
or proceedings pending or, to the knowledge of the Assignor, threatened,
before or by any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by this Agreement or
(ii) with respect to any other matter that in the judgment of the Assignor
will be determined adversely to the Assignor and will if determined adversely
to the Assignor materially adversely affect its ability to perform its
obligations under this Agreement.
Section 5.06 No Assignment of Receivables. Except for the sale to
the Assignee, the Assignor has not assigned or pledged any Receivable or any
interest or participation therein.
Section 5.07 No Cancellation etc. of Receivables. The Assignor has
not satisfied, canceled, or subordinated in whole or in part, or rescinded the
collateral securing the Receivable, and the Assignor has not released the
collateral securing the Receivable from the lien of the Receivable, in whole
or in part, nor has the Assignor executed an instrument that would effect any
such release, cancellation, subordination, or rescission. The Assignor has not
released any Obligor, in whole or in part, from its obligations with respect
to the related Receivable.
Section 5.08 No Impairment of Receivables. The Assignor represents
and warrants to the Assignee that the Assignor has not taken any action that
would serve to impair or encumber the Assignor's ownership interest in any
Receivable since the date on which it acquired such Receivable pursuant to the
Purchase and Servicing Agreement.
It is understood and agreed that the representations and warranties
set forth in this Article 5 shall inure to the benefit of the Assignee and its
permitted assigns notwithstanding any restrictive or qualified endorsement or
assignment. Upon the discovery by the Assignor or the Assignee and its
permitted assigns of a breach of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other parties to this Agreement and in no event later than two (2) Business
Days from the date of such discovery. It is understood and agreed that the
obligations of the Assignor set forth in Article 6 to repurchase a Receivable
constitute the sole remedies available to the Assignee and its permitted
assigns on
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their behalf respecting a breach of the representations and warranties
contained in this Article 5. It is further understood and agreed that the
Assignor shall be deemed not to have made the representations and warranties
in this Article 5 with respect to, and to the extent of, representations and
warranties made, as to the matters covered in this Article 5, by the Servicer
in the Purchase and Servicing Agreement (or any officer's certificate
delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Article 5, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
ARTICLE VI
Repurchase of Receivables.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty, or covenant under this Agreement that materially and
adversely affects the value of any Receivable theretofore transferred to the
Assignee or the interest of the Assignee therein (it being understood that any
such defect or breach shall be deemed to have materially and adversely
affected the value of the related Receivable or the interest of the Assignee
therein if the Assignee incurs a loss as a result of such defect or breach),
the Assignee promptly shall request that the Assignor cure such breach and, if
the Assignor does not cure such breach in all material respects within sixty
(60) days from the date on which it is notified of the breach, the Assignee
may enforce the Assignor's obligation hereunder to purchase such Receivable
from the Assignee.
The Assignor hereby irrevocably appoints the Indenture Trustee as
its attorney-in-fact to exercise the Assignor's remedies against HNB in the
event that HNB, as Seller, breaches any of its representations or warranties
made in Section 3.01(b) of the Purchase and Servicing Agreement or any
Assignment pursuant thereto.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
ARTICLE VII
Purchase and Servicing Agreement Unimpaired.
Section 7.01 Full Force and Effect. Except as contemplated hereby,
the Purchase and Servicing Agreement and each applicable Assignment thereunder
shall remain in full force and effect in accordance with its terms.
Section 7.02 Certain Amendments. HNB and the Assignor shall have the
right to amend, modify or terminate the Purchase and Servicing Agreement
without the joinder of the Assignee with respect to retail motor vehicle loan
and installment sale contracts not conveyed to
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the Assignee hereunder; provided, however, that such amendment, modification
or termination shall not affect or be binding on the Assignee.
ARTICLE VIII
Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF
THE STATE OF NEW YORK.
ARTICLE IX
Notices.
Any notices or other communications permitted or required hereunder
or under the Purchase and Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to: (a) in the case of the HNB, The Huntington National Bank, Huntington
Center, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx
or such address as may hereafter be furnished by the Seller; (b) in the case
of the Assignee, Xxxxxx Xxxxxxx ABS Capital II Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, with a copy to Xxxxxxxx Xxxxx, or such
other address as may hereafter be furnished by the Assignee and (c) in the
case of the Assignor, Xxxxxx Xxxxxxx Asset Funding Inc., 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxx, or such other address as may
hereafter be furnished by the Assignor.
ARTICLE X
Counterparts.
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
ARTICLE XI
Definitions.
Any capitalized term used but not defined in this Agreement has the
same meaning as in the Purchase and Servicing Agreement.
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ARTICLE XII
Absolute Assignment.
It is the intention of the Assignor and Assignee that this Agreement
shall evidence a sale of the Receivables and other related property from the
Assignor to the Assignee (for non-tax purposes), as of the date hereof, in the
case of the Initial Receivables, and as of the date of the related
Supplemental Agreement, in the case of the Subsequent Receivables, and that
such Conveyed Assets shall not be treated as property of the Assignor as
debtor-in-possession or by a bankruptcy trustee in any insolvency, bankruptcy
or other similar proceeding in respect of the Assignor under any Applicable
Law. Further, it is not the intent of the parties hereto that any such
assignment be deemed a grant by the Assignor to the Assignee of a mere
security interest (for non-tax purposes) in any of the Conveyed Assets in
order to secure a debt or other obligation of the Assignor. However, in the
event and to the extent that, notwithstanding the intent of the parties
hereto, the transfer and assignment contemplated hereby is held not to be a
true or absolute sale (for non-tax purposes), this Agreement shall constitute
a security agreement under Applicable Law, and, in such event, the Assignor
shall be deemed to have granted, and the Assignor hereby grants, as of the
date hereof, in the case of the Initial Receivables, and as of the date of the
related Supplemental Agreement, in the case of the Subsequent Receivables, to
the Assignee a first priority security interest in all accounts, money,
chattel paper, securities, instruments, documents, deposit accounts,
certificates of deposit, letters of credit, advices of credit, banker's
acceptances, uncertificated securities, general intangibles, contract rights,
goods and other property consisting of, arising from or relating to such
Conveyed Assets, for the benefit of the Assignee and its assignees as security
for the Assignor's obligations hereunder and the Assignor consents to the
pledge of the foregoing Conveyed Assets to the Indenture Trustee under the
Indenture entered into by the Trust and the Indenture Trustee.
ARTICLE XIII
Addition as Subsequent Receivables.
This Agreement shall be deemed to be amended and restated to reflect
the terms of each Supplemental Agreement entered into in accordance with the
second Paragraph of Section 1.01 and Schedule 1 attached hereto shall be
deemed to include all Subsequent Receivables identified in Annex A of any such
Supplemental Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
XXXXXX XXXXXXX ABS CAPITAL II INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXX XXXXXXX ASSET FUNDING INC.
By: /s/ J. Xxxxxxx Xxx Xxxx
-------------------------------
Name: J. Xxxxxxx Xxx Xxxx
Title: Vice President
Acknowledged by:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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EXHIBIT I
FORM OF SUPPLEMENTAL AGREEMENT
This Supplemental Agreement, dated [______], is made with respect to
the ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT dated August 30, 2004
(the "AAR Agreement"), among The Huntington National Bank, a national banking
association organized under the laws of the United States of America ("HNB" or
the "Servicer"), Xxxxxx Xxxxxxx ABS Capital II Inc., a corporation organized
under the laws of Delaware (the "Assignee"), and Xxxxxx Xxxxxxx Asset Funding
Inc., a corporation organized under the laws of Delaware (the "Assignor" or
the "Purchaser") . Terms used and not defined herein have the respective
meaning as defined in this AAR Agreement.
The Assignor herby assigns to the Assignee all of its right, title
and interest in and to the Subsequent Receivables listed in Annex A attached
hereto and the Purchase and Servicing Agreement and the related Assignment, to
the extent relating to such Subsequent Receivables (other than the rights of
the Assignor to indemnification and contribution under Sections 10.02 and
10.04 of the Purchase and Servicing Agreement), and all other Conveyed Assets
with respect thereto, and the Assignee hereby assumes all of the Assignor's
obligations under the Purchase and Servicing Agreement to the extent relating
to such Subsequent Receivables from and after the date hereof. HNB hereby
acknowledges such assignment and assumption and hereby agrees to the release
of the Assignor from any obligations under the Purchase and Servicing
Agreement from and after the date hereof, to the extent relating to such
Subsequent Receivables.
The AAR Agreement is hereby deemed to be amended, modified and
supplemented by this Supplemental Agreement such that such Subsequent
Receivables and all associated rights and obligations with respect thereto are
considered to be covered by the AAR Agreement as fully as if such Additional
Subsequent Receivables had originally been identified in Schedule 1 attached
thereto
IN WITNESS WHEREOF, the parties hereto have executed this
Supplemental Agreement as of the day and year first above written.
[Signatures appear on next page]
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XXXXXX XXXXXXX ABS CAPITAL II INC.
By:_________________________
Name:
Title:
XXXXXX XXXXXXX ASSET FUNDING INC.
By:_________________________
Name:
Title:
Acknowledged by:
THE HUNTINGTON NATIONAL BANK
By:_________________________
Name:
Title:
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