Exhibit 10.4
===============================================================================
FORM OF SALE AND SERVICING AGREEMENT
among
WHOLE AUTO LOAN TRUST [ ],
as Issuer,
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Depositor,
and
BEAR XXXXXXX ASSET RECEIVABLES CORP.,
as Servicer
Dated as of [ ]
===============================================================================
Table of Contents
Page
----
ARTICLE I DEFINITIONS AND USAGE.......................................................................1
ARTICLE II TRUST PROPERTY..............................................................................1
SECTION 2.1 Conveyance of Trust Property; 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 Duties of Servicer as Custodian.............................................................4
SECTION 2.6 Instructions; Authority to Act..............................................................5
SECTION 2.7 Custodian's Indemnification.................................................................5
SECTION 2.8 Effective Period and Termination............................................................5
SECTION 2.9 Representations and Warranties as to the Security Interest of the Issuer in the
Receivables................................................................................6
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY..............................6
SECTION 3.1 Duties of Servicer..........................................................................6
SECTION 3.2 Collection of Receivable Payments...........................................................7
SECTION 3.3 Realization Upon Receivables................................................................8
SECTION 3.4 Maintenance of Security Interests in Financed Vehicles......................................8
SECTION 3.5 Covenants of Servicer.......................................................................9
SECTION 3.6 Purchase of Receivables Upon Breach.........................................................9
SECTION 3.7 Servicer Fees...............................................................................9
SECTION 3.8 Investor Report.............................................................................9
SECTION 3.9 Annual Statement as to Compliance; Notice of Event of Servicing Termination................10
SECTION 3.10 Annual Independent Certified Public Accountant's Report....................................10
SECTION 3.11 Access to Certain Documentation and Information Regarding Receivables......................11
SECTION 3.12 Servicer Expenses..........................................................................11
SECTION 3.13 Insurance..................................................................................11
SECTION 3.14 Xxxxxxxx-Xxxxx Act of 2002.................................................................11
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS............................11
SECTION 4.1 Accounts...................................................................................11
SECTION 4.2 Collections................................................................................13
SECTION 4.3 Application of Collections.................................................................14
SECTION 4.4 Additional Deposits........................................................................14
SECTION 4.5 Distributions..............................................................................14
SECTION 4.6 Net Deposits...............................................................................14
SECTION 4.7 Statements to Noteholders and Certificateholders...........................................14
ARTICLE V THE DEPOSITOR..............................................................................15
SECTION 5.1 Representations, Warranties and Covenants of Depositor.....................................15
SECTION 5.2 Liability of Depositor; Indemnities........................................................16
SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations of Depositor..................17
SECTION 5.4 Limitation on Liability of Depositor and Others............................................17
SECTION 5.5 Depositor May Own Notes or Certificates....................................................17
SECTION 5.6 Depositor Certificate of Incorporation.....................................................17
ARTICLE VI THE SERVICER...............................................................................18
SECTION 6.1 Representations of Servicer................................................................18
SECTION 6.2 Indemnities of Servicer....................................................................19
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of Servicer...................20
SECTION 6.4 Limitation on Liability of Servicer and Others.............................................20
SECTION 6.5 Subservicing and Delegation of Duties......................................................21
SECTION 6.6 Servicer Not to Resign as Servicer; Resignation and Termination of Receivables
Servicers.................................................................................22
SECTION 6.7 Servicer May Own Notes or Certificates.....................................................22
ARTICLE VII SERVICING TERMINATION......................................................................22
SECTION 7.1 Events of Servicing Termination............................................................22
SECTION 7.2 Appointment of Successor Servicer..........................................................24
SECTION 7.3 Notification to Noteholders and Certificateholders.........................................25
SECTION 7.4 Waiver of Past Events of Servicing Termination.............................................25
ARTICLE VIII TERMINATION................................................................................25
SECTION 8.1 Optional Purchase of All Receivables.......................................................25
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture....................................26
ARTICLE IX MISCELLANEOUS PROVISIONS...................................................................26
SECTION 9.1 Amendment..................................................................................26
SECTION 9.2 Protection of Title to Trust Property......................................................27
SECTION 9.3 Governing Law..............................................................................29
SECTION 9.4 Notices....................................................................................30
SECTION 9.5 Severability of Provisions.................................................................30
SECTION 9.6 Assignment.................................................................................30
SECTION 9.7 Further Assurances.........................................................................30
SECTION 9.8 No Waiver; Cumulative Remedies.............................................................31
SECTION 9.9 Third-Party Beneficiaries..................................................................31
SECTION 9.10 Actions by Noteholders or Certificateholders...............................................31
SECTION 9.11 Limitation of Liability of Owner Trustee and Indenture Trustee.............................31
SECTION 9.12 Savings Clause.............................................................................32
SECTION 9.13 No Petition................................................................................32
Schedule A Schedule of Receivables...................................................................A-1
Schedule B Location of Receivable Files .............................................................B-1
Schedule C List of Receivables Servicers ............................................................C-1
Schedule D Certain Representations and Warranties Regarding the Receivables..........................D-1
Appendix A Definitions and Usage............................................................Appendix A-1
SALE AND SERVICING AGREEMENT, dated as of [ ] (as from time to time
amended, supplemented or otherwise modified and in effect, this "Agreement"),
among WHOLE AUTO LOAN TRUST [ ] (the "Issuer"), a Delaware statutory trust,
BEAR XXXXXXX ASSET BACKED FUNDING II INC., a Delaware corporation (the
"Depositor") and BEAR XXXXXXX ASSET RECEIVABLES CORP., a Delaware corporation,
as servicer (in such capacity, the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of receivables and
related property consisting of motor vehicle retail installment sale
contracts;
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
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property; 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 (i) the Trust Property,
(ii) all rights of the Depositor under the Receivables Purchase Agreement[s]
with [ ] [and [ ] (including without limitation the representations and
warranties of [ ] assigned by [ ] under such Receivables Purchase
Agreement). 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 to the Obligors or any other Person in
connection with the Receivables and the other Trust Property or any agreement,
document or instrument related thereto. The Depositor and the Issuer intend
that the sale, transfer, assignment and conveyance of the Trust Property
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 execution and
delivery of this Agreement and as of the Transfer Date, but shall survive the
sale, transfer and assignment of the Receivables by the Depositor to the
Issuer 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 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 and rights of others to the extent
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.
(iv) Additional Representations and Warranties. The Receivables satisfy
the representations and warranties set forth in Schedule D hereto.
SECTION 2.3 Repurchase upon Breach. Each of the Depositor, the Servicer,
the Issuer and the Owner 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. 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
Indenture Trustee shall enforce the obligation of the Depositor under this
Section 2.3 to repurchase any Receivable, the Issuer's interest in which is
materially and adversely affected by the breach as of such last day (or, at
the Depositor's option, the last day of the first Collection Period following
the discovery). In consideration of the purchase of the Receivable, the
Depositor shall remit 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), in the manner specified in Section 4.4.
The sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders with respect to a breach of the
Depositor's representations and warranties pursuant to Section 2.2 shall be to
require the Depositor to repurchase such Receivables pursuant to this Section
2.3. The obligation of the Depositor to repurchase under this Section 2.3
shall not be solely dependent upon the actual knowledge of the Depositor of
any breached representation or warranty. 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.
2
[For the avoidance of doubt, nothing in this Section shall preclude the
Depositor from enforcing the obligation of [ ] under the [related]
Receivables Purchase Agreement to repurchase any Receivable, the Issuer's
interest in which is materially and adversely affected by the breach, as of
such last day (or, at the Depositor's option, the last day of the first
Collection Period following the discovery). The Depositor shall remit 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) in the manner specified in Section 4.4; provided, however, that if the
Depositor shall have previously remitted the Purchase Amount pursuant to the
immediately preceding paragraph, the Depositor shall be entitled to retain for
its own account the Purchase Amount collected from the related Seller. The
sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders with respect to a breach of such
Seller's representations and warranties in respect of a Receivable sold by it
pursuant to the related Receivables Purchase Agreement shall be such Seller's
repurchase of such Receivable in accordance with the related Receivables
Purchase Agreement.]
[Each of the Depositor, the Servicer, the Issuer and the Owner Trustee
shall inform the other parties to this Agreement promptly, in writing, upon the
discovery by it of any breach of [ ]'s representation and warranties (the
"[ ] Representations") in respect of the Receivables that were assigned by
[ ] to the Depositor under the Receivables Purchase Agreement with [ ].
The Servicer shall notify [ ] of its repurchase obligation. 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
Indenture Trustee shall enforce the obligation of [ ] to repurchase any
Receivable, the Issuer's interest in which is materially and adversely
affected by the breach, as of such last day (or, at the Depositor's option,
the last day of the first Collection Period following the discovery). 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 [ ] shall be remitted in the manner specified in Section 4.4. The
sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders with respect to a breach of the [ ]'s
Representations shall be to require [ ] to repurchase such Receivables
pursuant to this Section 2.3. 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.]
SECTION 2.4 Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer, upon
the execution and delivery of this Agreement, 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.
3
(iii) The notice of recorded Lien or such documents that the
Servicer or the Depositor shall keep on file, in accordance with its or
the related Receivables Servicer's customary procedures, evidencing the
first priority perfected security interest of the related Seller in the
Financed Vehicle.
(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,
an Obligor (to the extent relating to a Receivable), or a Financed
Vehicle.
The Servicer acknowledges that it holds the documents and instruments
relating to the 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 performance as custodian and shall have no liability in
connection with the Servicer's performance of such duties hereunder.
SECTION 2.5 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer (or the related Receivables Servicer on
its behalf) shall hold the Receivable Files for the benefit of the Issuer and
the Indenture Trustee and shall maintain such accurate and complete accounts,
records and computer systems pertaining to each Receivable File as shall
enable the Servicer and the Issuer to comply with the terms and conditions of
this Agreement, and the Indenture Trustee to comply with the terms and
conditions of the Indenture. In performing its duties as custodian, the
Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer (or the related Receivables Servicer) exercises
with respect to the receivable files relating to all comparable automotive
receivables that the Servicer (or such Receivables Servicer) services for
itself or others. The Servicer shall conduct, or cause to be conducted,
periodic audits of the Receivable Files held by it under this Agreement and of
the related accounts, records and computer systems, in such a manner as shall
enable the Issuer or the Indenture Trustee to identify all Receivables Files
and such related accounts, records and computer systems and verify the
accuracy of the Servicer's record keeping. The Servicer shall promptly report
to the Issuer and the Indenture Trustee in writing any failure on its part to
hold the Receivable Files and maintain its accounts, records, and computer
systems as herein provided and shall promptly take appropriate action to
remedy any such failure. Nothing herein shall be deemed to require an initial
review or any periodic review by the Issuer, the Owner Trustee or the
Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at its (or the related Receivables Servicer's) offices
specified in Schedule B to this Agreement, or at such other office as shall be
specified to the Issuer and the Indenture Trustee by 30 days' prior written
notice. The Servicer shall make available to the Issuer and the Indenture
Trustee or their duly authorized representatives, attorneys, or auditors, the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer upon reasonable notice during normal business hours
as the Issuer or the Indenture Trustee shall reasonably request, which does
not unreasonably interfere with the Servicer's (or the related Receivables
Servicer's) normal operations.
4
(c) Release of Documents. Upon written instructions from the Indenture
Trustee, the Servicer shall release or cause to be released any document in
the Receivable Files to the Indenture Trustee, the Indenture Trustee's agent
or the Indenture Trustee's designee, as the case may be, at such place or
places as the Indenture Trustee may reasonably designate, as soon as is
reasonably practicable, to the extent it does not unreasonably interfere with
the Servicer's normal operations. The Servicer shall not be responsible for
any loss occasioned by the failure of the Indenture Trustee or its agent or
designee to return any document or any delay in doing so.
SECTION 2.6 Instructions; Authority to Act. All instructions from the
Indenture Trustee shall be in writing and signed by an Authorized Officer of
the Indenture Trustee, and the Servicer shall be deemed to have received
proper instructions with respect to the Receivable Files upon its receipt of
such written instructions.
SECTION 2.7 Custodian's Indemnification. The Servicer, as custodian,
shall indemnify the Issuer, the Owner Trustee and the Indenture Trustee for
any and all liabilities, obligations, losses, compensatory damages, payments,
costs, or expenses of any kind whatsoever that may be imposed on, incurred, or
asserted against the Issuer, the Owner Trustee or the Indenture Trustee as the
result of any improper act or omission in any way relating to the maintenance
and custody by the Servicer as custodian of the Receivable Files; provided,
however, that the Servicer shall not be liable (i) to the Issuer for any
portion of any such amount resulting from the willful misfeasance, bad faith,
or negligence of the Indenture Trustee, the Owner Trustee or the Issuer, (ii)
to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith, or negligence of the Indenture Trustee, the
Owner Trustee or the Issuer and (iii) to the Indenture Trustee for any portion
of any such amount resulting from the willful misfeasance, bad faith, or
negligence of the Indenture Trustee, the Owner Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination. The Servicer's appointment
as custodian shall become effective as of the Cut-off Date and shall continue
in full force and effect until terminated pursuant to this Section 2.8. If
Bear Xxxxxxx Asset Receivables Corp. shall resign as Servicer in accordance
with the provisions of this Agreement or if all of the rights and obligations
of the Servicer shall have been terminated under Section 7.1, the appointment
of the Servicer as custodian hereunder may be terminated by the Indenture
Trustee, or by the holders of Notes evidencing not less than a majority of the
principal amount of the Notes Outstanding (or if no Notes are Outstanding, by
holders of Certificates evidencing Percentage Interests aggregating at least
51%), in the same manner as the Indenture Trustee or such Securityholders may
terminate the rights and obligations of the Servicer under Section 7.1. As
soon as practicable after any termination of such appointment, the Servicer
shall deliver to the Indenture Trustee or the Indenture Trustee's agent any
Receivable Files and the related accounts and records maintained by the
Servicer at such place or places as the Indenture Trustee may reasonably
designate. Notwithstanding the foregoing, after any termination of the rights
and obligations of the Servicer under this Agreement, each Receivables
Servicer, unless the rights and obligations of such Receivables Purchaser have
been terminated pursuant to the terms and conditions of its Receivables
Servicing Agreement, shall maintain custody of the related Receivables and the
related accounts and records maintained by it pursuant to its Receivables
Servicing Agreements.
5
SECTION 2.9 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. 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.
(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 Seller.
(b) The Receivables constitute "chattel paper" within the meaning of
Article 9 of the UCC.
(c) Immediately prior to its transfer to the Issuer, the Depositor owned
and had good and marketable title to the Receivables free and clear of any
lien, claim or encumbrance of any Person.
(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 statements 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 Issuer and its assigns."
(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 Servicer (or the Receivables Servicers) as custodian for the
Issuer has in its possession all original copies of the contracts that
constitute or evidence the Receivables. 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 Issuer.
Each of the parties hereto agrees that it shall not waive any of the
foregoing representations and warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall manage, service,
administer and make collections on the Receivables with reasonable care, using
that degree of skill and attention
6
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 services for itself. The Servicer's duties shall include collection and
posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, reporting tax information to
Obligors, accounting for collections, furnishing monthly and annual statements
to the Owner Trustee and the Indenture Trustee with respect to distributions
and preparing (or causing to be prepared) the tax returns of the Trust in
accordance with Section 5.6 of the Trust Agreement. The Servicer shall follow
its (or the related Receivables Servicer's) customary standards, policies and
procedures in performing its duties as Servicer. Without limiting the
generality of the foregoing, the Servicer is hereby (and each Receivables
Servicer pursuant to its Receivables Servicing Agreement is thereby)
authorized and empowered to execute and deliver, on behalf of itself (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 shall not be 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 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. The Servicer shall enforce the obligations of each 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. The Servicer shall not change the amount of, change
the annual percentage rate of or extend any Receivable or change any material
term of a Receivable, except as provided by the terms of the Receivable or of
this Agreement or as required by law or court order, and except that the
Servicer may permit a Receivables Servicer to grant extensions, rebates or
adjustments to the extent permitted in the related Receivables Servicing
Agreement; provided, however, that the Servicer may extend any Receivable that
is in default or with respect to which default is reasonably foreseeable and
that would be acceptable to the Servicer with respect to comparable new or
used automobile and light-duty truck receivables that it (or the related
Receivables Servicer) services for itself, if the maturity of such Receivable
will not be extended beyond [ ]. If, as a result of inadvertently
7
rescheduling or extending payments, such rescheduling or extension breaches
any of the terms of the proviso to the preceding sentence, then the Servicer
shall be obligated to purchase such Receivable pursuant to Section 3.6. For
the purpose of such purchases pursuant to Section 3.6, notice shall be deemed
to have been received by the Servicer at such time as shall make purchase
mandatory as of the last day of the Collection Period during which the
discovery of such breach occurred.
Notwithstanding anything herein to the contrary, the Servicer shall not
make any collection, repossession of liquidation efforts in respect of (i) any
[ ] Receivables after [ ] and (ii) any [ ] Receivables after [ ].
SECTION 3.3 Realization Upon Receivables. On behalf of the Issuer, the
Servicer shall 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 shall have determined to be a
Defaulted Receivable or otherwise (and shall identify any such Defaulted
Receivable in writing to the Indenture Trustee no later than the Determination
Date following the Collection Period in which the Servicer shall have made
such determination). The Servicer shall 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
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) realized in connection with any
such action with respect to a Receivable shall be deposited by the Servicer in
the Collection Account in the manner specified in Section 4.2 and shall be
applied to reduce (or to satisfy, as 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, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not be required to expend funds in connection with the repair or the
repossession of such 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, 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 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. In the event that the assignment of a Receivable to
the Issuer is insufficient, without a notation on the related Financed
Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Financed
Vehicle is located, to transfer to the Issuer a perfected security interest in
the related Financed Vehicle, the Servicer hereby agrees that the Receivables
Servicer's listing as the secured party on the certificate of title is deemed
to be in its capacity as agent of the Issuer and the Indenture Trustee and
further agrees to hold such certificate of title as the agent and custodian of
the Issuer and the Indenture Trustee; provided
8
that the Servicer shall not, nor shall the Issuer or the Indenture Trustee
have the right to require that the Servicer, make any such notation on the
related Financed Vehicles' certificate of title or fulfill any such additional
administrative requirement of the laws of the state in which a Financed
Vehicle is located.
SECTION 3.5 Covenants of Servicer. The Servicer shall not (i) release
the Financed Vehicle securing each such Receivable from the security interest
granted by such Receivable in whole or in part except in the event of payment
in full by or on behalf of the Obligor thereunder, (ii) impair the rights of
the Issuer in the Receivables, or (iii) increase the number of payments under
a Receivable, increase the Amount Financed under a Receivable or extend or
forgive payments on a Receivable, except as provided in Section 3.2. In the
event that at the end of the scheduled term of any Receivable, the outstanding
principal amount thereof is such that the final payment to be made by the
related Obligor is larger than the regularly scheduled payment of principal
and interest made by such Obligor, the Servicer may permit such Obligor to pay
such remaining principal amount in more than one payment of principal and
interest; provided that the last such payment shall be due on or prior to the
Collection Period immediately preceding the Class D Final Scheduled Payment
Date.
SECTION 3.6 Purchase of Receivables Upon Breach. (a) The Servicer, the
Depositor or the Owner Trustee, as the case may be, promptly shall inform the
other parties to this Agreement, in writing, upon the discovery of any breach
pursuant to Section 3.2, 3.4 or 3.5. Unless the breach shall have been cured
by the last day of the second Collection Period following such discovery (or,
at the Servicer's election, the last day of the first following Collection
Period), the Servicer shall purchase any Receivable materially and adversely
affected by such breach (which shall include any Receivable as to which a
breach of Section 3.5 has occurred) at 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). In consideration of
the purchase of such Receivable, the Servicer shall remit the Purchase Amount
in the manner specified in Section 4.4. The sole remedy of the Issuer, the
Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach pursuant to Section 3.2, 3.4 or
3.5 shall be to require the Servicer to purchase Receivables pursuant to this
Section 3.6.
(b) 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
Servicing Fee, which shall be payable as provided in Section 8.2 of the
Indenture.
SECTION 3.8 Investor Report. On or prior to the Determination Date for
each Payment Date, the Servicer shall deliver to the Depositor, the Owner
Trustee, each Note Paying Agent and Certificate Paying Agent and the Indenture
Trustee, with a copy to the Rating Agencies, an Investor Report containing all
information (including all specific dollar amounts) necessary to make the
transfers and distributions pursuant to Section 8.2 of the Indenture for the
Collection Period preceding the date of such investor report (the "Investor
Report"), and the written
9
statements to be furnished by the Owner Trustee to the Certificateholders
pursuant to Section 4.7 and by the Indenture Trustee to the Noteholders
pursuant to Section 4.7 hereof and Section 7.4 of the Indenture. Receivables
purchased or to be purchased by the Servicer or a Seller shall be identified
by the Servicer by the Seller's account number with respect to such Receivable
(as specified in the Schedule of Receivables).
SECTION 3.9 Annual Statement as to Compliance; Notice of Event of
Servicing Termination. (a) The Servicer shall deliver to the Owner Trustee,
the Indenture Trustee and each Rating Agency on or before April 30 of each
year beginning [ ], an Officer's Certificate, with respect to the preceding
12-month period (or such shorter period in the case of the first such
certificate), stating that (i) a review of the activities of the Servicer
during the preceding 12-month period (or such shorter period in the case of
the first such certificate) and of its performance under this Agreement has
been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such period, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
(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.
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,
the Data Administrator or any Receivables Servicer, to deliver to the Owner
Trustee and the Indenture Trustee on or before April 30 of each year beginning
[ ] with respect to the prior calendar year (or such shorter period in the
case of the first such report) a report to the effect that such firm has
examined the automobile and light-duty truck receivable servicing functions of
the Servicer (or the Data Administrator under the Data Administration
Agreement or a Receivables Servicer under the related Receivables Servicer
Agreement, as applicable) for such period, including the applicable party's
procedures and records relating to such party's servicing of the Receivables
under this Agreement (or the Data Administration Agreement or Receivables
Servicing Agreement, as applicable) and that, on the basis of such
examination, such firm is of the opinion that the applicable servicing by such
party has been conducted during such period in compliance with this Agreement
(or the Data Administration Agreement or Receivables Servicing Agreement, as
applicable) except for (a) such exceptions as such firm believes to be
immaterial and (b) such other exceptions as shall be set forth in such firm's
report. In addition, such report shall set forth the procedures performed in
conjunction with the examination.
The report will also indicate that the firm is independent of the
Servicer (or the Data Administrator or a Receivables Servicer, as applicable)
within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
10
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
Certificateholders, the Indenture Trustee and the Noteholders access to the
Receivable Files without charge, but only upon reasonable request and during
the normal business hours at the respective offices of the Servicer. 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.
SECTION 3.13 Insurance. The Servicer, in accordance with its customary
servicing procedures and underwriting standards, or those of the Receivables
Servicer pursuant to the related Receivables Servicing Agreement, shall
require that each Obligor shall have obtained and shall maintain comprehensive
and collision insurance covering the related Financed Vehicle as of the
execution of the Receivable.
SECTION 3.14 Xxxxxxxx-Xxxxx Act of 2002. To the extent permitted by
applicable law and the rules of the Securities and Exchange Commission as
interpreted by the staff of the Securities and Exchange Commission, the
Servicer shall furnish to the Depositor in a timely manner for filing under
the Securities Exchange Act of 1934, as amended, the certification required by
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 in respect of the Issuer.
Whether or not such certification may be given by the Servicer, the Servicer
hereby indemnifies and holds harmless the Depositor against any loss,
liability and damages incurred by the Depositor in respect of any
certification furnished by it pursuant to such Section 302 of the
Xxxxxxxx-Xxxxx Act of 2002 to the extent such loss, liability and damages
arises out of or is based on such certification relating to information
contained in or omitted from any Investor Report.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) Prior to the Closing Date there shall have
been established (i) a [ ] Deposit Account, pursuant to which [the receivables
servicer] shall deposit collections on the [ ] Receivables, as more
specifically described in the [ ] Servicing Agreement, (ii) a [ ] Deposit
Account, pursuant to which [ ] shall deposit collections on the [ ]
Receivables, as more specifically described in the [ ] Servicing Agreement
and (iii) a [ ] Deposit Account, pursuant to which [ ] shall deposit
collections on the [ ] Receivables, as more specifically described in the
[ ] Servicing Agreement. Each of the forgoing deposit accounts were
established and shall initially be maintained with the Depository Institution.
Pursuant to the Data Administration Agreement, on or prior to each
11
Payment Date, the Data Administrator shall instruct the Depository Institution
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 Trust 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
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 Servicer shall, prior to the Closing Date, cause to be
established and maintained an Eligible Deposit Account in the name "[ ]", as
Indenture Trustee, as secured party from Whole Auto Loan Trust [ ]", initially
at the corporate trust department of the Indenture Trustee, which shall be
designated as the "Collection Account". The Collection Account shall be under
the sole dominion and control of the Indenture Trustee; provided, that the
Servicer and/or Depository Institution may make deposits to, and the Indenture
Trustee may (following written instruction of the Data Administrator or the
Servicer) make withdrawals from, the Collection Account in accordance with the
terms of the Basic Documents. The Collection Account will be established and
maintained pursuant to an account agreement which specifies New York law as
the governing law. In addition, the Collection 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 shall be held by the Indenture Trustee as secured party 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. All deposits to and
withdrawals from the Collection Account shall be made only upon the terms and
conditions of the Basic Documents.
All amounts held in the Collection 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 in specified Permitted Investments
that mature not later than the 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 is no longer to be maintained at the corporate trust department of the
Indenture Trustee, the Servicer shall, with the Indenture Trustee's or
Issuer's assistance as necessary, cause an Eligible Deposit Account to be
established as the Collection 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).
(c) The Servicer shall, prior to the Closing Date, establish and
maintain an administrative subaccount within the Collection Account, which
subaccount shall be designated as the "Principal Distribution Account". The
Principal Distribution Account is established and maintained solely for
administrative purposes.
12
(d) The Servicer shall, prior to the Closing Date, cause an Eligible
Deposit Account to be established and maintained, in the name "Whole Auto Loan
Trust [ ] 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 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
Servicer 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). The Certificate Distribution Account will be established and
maintained pursuant to an account agreement which specifies New York law as
the governing law.
SECTION 4.2 Collections. (a) [ ] is obligated, subject to the terms of
the related Receivables Servicing Agreement, to remit to the [ ] Deposit
Account, (i) all payments by or on behalf of the Obligors on the [ ]
Receivables (but excluding Purchased Receivables) and (ii) all Liquidation
Proceeds, in respect of the [ ] Receivables, both as collected during the
Collection Period, within two Business Days of receipt thereof.
(b) Each of [ ] and [ ] is obligated, subject to the terms of the
related Receivables Servicing Agreement, to remit to the [ ] Deposit Account,
in the case of the [ ] Receivables, and the [ ] Deposit Account, in the
case of the [ ] Receivables, (i) all payments by or on behalf of the
Obligors (but excluding payments in respect of Purchased Receivables), (ii)
all amounts received from whatever source representing payment of the Deferred
Repurchase Price (as defined in the related Receivables Servicing Agreement,
and (iii) all Liquidation Proceeds, all as collected during the Collection
Period, within two Business Days of receipt thereof. Notwithstanding the
provisions of the first sentence of this Section 4.2(b), each of [ ] and the
[ ] shall be permitted to remit the collections described in clauses (i)
through (iii) received during a Collection Period to such deposit account on
the Business Day preceding the related Payment Date but only for so long as
the Monthly Remittance Condition (as defined in the related Receivables
Servicing Agreement) is satisfied. Unless the Rating Agency condition has been
satisfied, the Servicer shall not consent to monthly remittances by [ ] or
[ ] under the related Receivables Servicing Agreement. The Owner Trustee or
the Indenture Trustee shall not be deemed to have knowledge of any event or
circumstance in the definition of Monthly Remittance Condition that would
require remittance by a Receivables Servicer to such deposit account within
two Business Days of receipt as aforesaid unless the Owner Trustee or the
Indenture Trustee has received written notice of such event or circumstance
from the Servicer in an Officer's Certificate or from the holders of Notes
evidencing not less than 25% of the principal amount of the Notes Outstanding
or from the holders of Certificates evidencing Percentage Interests
aggregating at least 51% or a Trustee Officer in the Corporate Trust Office
with knowledge hereof or familiarity herewith has actual knowledge of such
event or circumstance. For purposes of this Article IV the phrase "payments by
or on behalf of Obligors" shall mean payments made by Persons other than the
Servicer or by other means.
13
SECTION 4.3 Application of Collections. For the purposes of this
Agreement, as of the close of business on the last day of each Collection
Period, 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 in the Collection Account the aggregate Purchase Amounts 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 Business Day preceding the Payment Date
related to such Collection Period.
SECTION 4.5 Distributions. On each Payment Date, the Servicer shall
instruct the Indenture Trustee (based on the information contained in the
Investor Report delivered on or before the related Determination Date pursuant
to Section 3.8), to make withdrawals from the Collection Account and make
deposits, distributions and payments, to the extent of Available Collections
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. Remittances pursuant to Sections 4.2 and 4.4
above may be made net of the Aggregate Servicing Fee. Nonetheless, the
Servicer shall account for all of the above described remittances and
distributions in the Investor Report as if the amounts were deposited and/or
transferred separately.
SECTION 4.7 Statements to Noteholders and Certificateholders. On the
later of (a) the [ ] day of each month, or if such day is not a Business Day,
the next succeeding Business Day or (b) [ ] Business Days prior to each
Payment Date, the Servicer shall provide to the Indenture Trustee (with copies
to the Rating Agencies and each Note Paying Agent) for the Indenture Trustee
to make available to each Noteholder of record as of the most recent Record
Date and to the Owner Trustee for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date the Investor
Report, 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:
(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 as of the close of business on the last day
of the preceding Collection Period;
14
(iv) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and the amount of any unpaid
Servicing Fees and the change in such amount from that of the prior
Payment Date;
(v) the amounts of the Class A Noteholders' Interest Carryover
Shortfall, the Class B Noteholders' Interest Carryover Shortfall, the
Class C Noteholders' Interest Carryover Shortfall and the Class D
Noteholders' Interest Carryover Shortfall, if any, on such Payment Date
and the change in such amounts from the preceding Payment Date;
(vi) the aggregate outstanding principal amount of each Class of
Notes and the Note Pool Factor for each Class of Notes;
(vii) the amount of any previously due and unpaid payment of
principal of each Class of Notes, and the change in such amount from
that of the prior Payment Date;
(viii) Annualized Average Monthly Loss Rate;
(ix) the aggregate Purchase Amount of Receivables repurchased by
the Depositor or a Seller or purchased by the Servicer, if any, with
respect to the related Collection Period; and
(x) the aggregate Collections for the related Collection Period.
In addition, such statements may be posted by the Indenture Trustee on
its website at [ ].
Each amount set forth on the Payment Date statement pursuant to clauses
(i), (ii), (iv), (v) and (vii) 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.
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 execution and delivery of this
Agreement 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 a duly formed,
validly existing and in good standing under the laws of the State of Delaware,
with all 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, and had at all relevant times, and has, power, authority,
and legal right to acquire and own the Receivables.
15
(ii) Power and Authority. The Depositor has all 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 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 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
with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, or other similar laws 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, 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 or its properties.
(v) No Proceedings. There are no proceedings or investigations 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, any of the other Basic Documents or the
Securities, (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 might
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 might 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, and hereby
agrees to the following:
(a) The Depositor shall indemnify, defend, and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any
16
loss, liability or expense incurred by reason of (i) the Depositor's willful
misfeasance, bad faith, or negligence in the performance of its duties under
this Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement and (ii) the Depositor's violation of federal or
State securities laws in connection with the registration or the sale of the
Notes or the Certificates.
(b) Indemnification under this Section 5.2 shall survive the resignation
or removal of the Owner Trustee or the Indenture Trustee and the termination
of this Agreement and shall include, without limitation, reasonable fees and
expenses of counsel and expenses of litigation. If the Depositor shall have
made any indemnity payments pursuant to this Section 5.2 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
Depositor, without interest.
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
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 officer or 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. Except as
set forth herein or in the other Basic Documents, Notes and Certificates so
owned by or pledged to the Depositor or any such Affiliate shall have an equal
and proportionate benefit under the provisions of this Agreement and the other
Basic Documents, without preference, priority, or distinction as among all of
the Notes and Certificates.
SECTION 5.6 Depositor Certificate of Incorporation. The Depositor shall
not amend its certificate of incorporation unless the Rating Agency Condition
is satisfied.
17
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 execution
and delivery 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 a duly formed,
validly existing and in good standing under the law of the State of Delaware,
with all 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, and had at all relevant times, and has, power, authority
and legal right to acquire, own, sell, and service the Receivables and to hold
the Receivable Files as custodian on behalf of the Indenture Trustee.
(b) Power and Authority. The Servicer has the 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 terms; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to which it is a
party shall have duly authorized, executed and delivered by the Servicer by
all necessary corporate action.
(c) Binding Obligations. This Agreement constitutes a legal, valid, and
binding obligation of the Servicer enforceable in accordance with their terms
subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, liquidation or other similar laws and equitable principles
relating to or affecting the enforcement of creditors' rights in general and
by general principles of equity regardless of whether such enforceability is
considered in a proceeding in equity or law.
(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 do not conflict with, result in any
breach of any of the terms and provisions of, nor constitute (i) (with or
without notice or lapse of time) a default under, the articles of
incorporation or bylaws 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 shall be 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 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 or its properties.
(e) No Proceedings. There are no proceedings or investigations 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 or the
18
Securities, (ii) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement and the
other Basic Documents, (iii) seeking any determination or ruling that might
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 might adversely affect the federal income tax attributes of
the Securities.
(f) Fidelity Bond. The Servicer maintains a fidelity bond in such form
and amount as is customary for servicers acting as custodian of funds and
documents in respect of retail automotive installment sales contracts.
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 Noteholders, the
Certificateholders, the Depositor, the Administrator and the Data
Administrator 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) The Servicer shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Depositor and the Indenture Trustee from and against
any taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated herein or in the other Basic
Documents, if any, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to, and as of the date of, the conveyance of the Receivables to the Issuer or
the issuance and original sale of the Notes and the Certificates, or asserted
with respect to ownership of the Receivables, or federal or state income taxes
arising out of the transactions contemplated by this Agreement and the other
Basic Documents) and costs and expenses in defending against the same.
(c) The Servicer shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders and the Depositor from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that such
cost, expense, loss, claim, damage, or liability arose out of, or was imposed
upon any such Person through, the negligence, willful misfeasance, or bad
faith of the Servicer in the performance of its duties under this Agreement or
any other Basic Document to which it is a party, or by reason of reckless
disregard of its obligations and duties under this Agreement or any other
Basic Document to which it is a party.
(d) The Servicer shall indemnify, defend, and hold harmless the Owner
Trustee and the Indenture Trustee, as applicable, from and against any and all
expenses, obligations, liabilities, losses, damages, injuries (to person,
property, or natural resources), penalties, stamp or similar taxes, actions,
suits, judgments, reasonable costs and expenses (including reasonable
attorney's and agent's fees and expenses) of whatever kind or nature
regardless of their merit arising out of or incurred in connection with the
acceptance or performance of the trusts and
19
duties contained herein and in the other Basic Documents, if any, except to
the extent that such cost, expense, loss, claim, damage, or liability: (i)
shall be due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of the Owner Trustee or the Indenture Trustee, as
applicable; (ii) in the case of the Owner Trustee, shall arise from the Owner
Trustee's breach of any of its representations or warranties set forth in
Section 6.9 of the Trust Agreement or, in the case of the Indenture Trustee,
from the Indenture Trustee's breach of any of its representations or
warranties set forth in the Indenture; or (iii) in the case of the Indenture
Trustee, shall arise out of or be incurred in connection with the performance
by the Indenture Trustee of the duties of a Successor Servicer hereunder.
(e) Indemnification under this Section 6.2 by Bear Xxxxxxx Asset
Receivables Corp. (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.
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 The Bear Xxxxxxx Companies Inc., 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 any of the directors or officers or employees or agents of
the Servicer shall be under any liability to the Issuer, the Noteholders or
the Certificateholders, except as 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 obligations
and duties under this Agreement, or by reason of negligence in the performance
of its duties under this Agreement. 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.
20
(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 involve it in 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
and 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 Collections 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 and any director or officer or employee or agent of the
Servicer shall be indemnified by the Trust 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) 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 Collections 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.
SECTION 6.5 Subservicing and Delegation of Duties. The Servicer may
engage a subservicer to perform some or all of its duties hereunder and may at
any time perform specific duties as servicer under this Agreement through
sub-contractors; provided that no such subservicing, delegation or
subcontracting shall relieve the Servicer of its responsibilities with respect
to such duties, as to all of which the Servicer shall remain primarily
responsible and the Servicer shall be solely responsible for the fees of any
such subservicers and sub-contractors.
Without limiting the generality of the preceding paragraph, the
Servicer has engaged [ ] under its Receivables Servicing Agreement, [ ]
under its Receivables Servicing Agreement, [ ] under its Receivables
Servicing Agreement and the Data Administrator under the Data Administration
Agreement. The Servicer shall promptly notify each Rating Agency of any
material amendment to any Receivables Servicing Agreement. The Issuer and the
Servicer shall permit [ ] and [ ] to repurchase Liquidated Receivables (as
defined in the related Receivables Servicing Agreement) under Section 3.8 of
the respective Receivables Servicing Agreement in return for the Defined
Purchase Price (as defined in such Receivables Servicing Agreement).
21
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 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 Servicer may terminate its Receivables Servicing Agreement with
any Receivables Servicer upon the terms and conditions set forth in such
agreement. Notwithstanding the foregoing, to the extent that a Receivables
Servicing Agreement permits the related Receivables Servicer to resign with
the express written consent of the Depositor, the Depositor and Servicer
hereby agree that they will not grant such consent unless the Rating Agency
Condition is satisfied.
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.
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination. (a) If any one of the
following events ("Events of Servicing Termination") occur and be continuing:
(i) Any failure by the Servicer to deliver to the Owner Trustee or
the Indenture Trustee any proceeds or payment required to be so
delivered under the terms of the Notes and the Certificates and this
Agreement that shall continue unremedied for a period of five (5)
Business Days after written notice of such failure is received by the
Servicer from the Owner Trustee or the Indenture Trustee or after
discovery of such failure by an officer of the Servicer; 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 the Notes, the Certificates or in this
Agreement, which failure shall (A) materially and adversely affect the
rights of Noteholders or Certificateholders and (B) continue
22
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
25% of the principal amount of the Notes or, if no Notes are
outstanding, by holders of Certificates evidencing not less than 25% of
the Certificate Balance; 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 Bear
Xxxxxxx Asset Receivables Corp. is the Servicer, Bear Xxxxxxx Companies
Inc. (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 sixty (60) consecutive days; or
(iv) So long as a depository institution is not the Servicer, the
consent by the Servicer or, if Bear Xxxxxxx Asset Receivables Corp. is
the Servicer, Bear Xxxxxxx Companies Inc. (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 Bear Xxxxxxx
Companies Inc. (or its successor in interest), as applicable) of or
relating to substantially all of its property; or the Servicer or, if
Bear Xxxxxxx Asset Receivables Corp. is the Servicer, Bear Xxxxxxx
Companies Inc. (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
statute, make an assignment for the benefit of its creditors, or
voluntary 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 25% of the principal amount of the Notes Outstanding
(or, if no Notes are Outstanding, Certificates evidencing Percentage Interests
aggregating at least 51%), 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) (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.
23
(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 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.
(c) Upon termination of the Servicer under Section 7.1(a), the Successor
Servicer, by acceptance of its appointment, agrees that it will service the [
] Receivables, the [ ] Receivables and the [ ] Receivables through their
respective Receivables Servicing Agreements, unless any of such agreements are
terminated pursuant to the terms and conditions set forth therein.
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 Issuer 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.
24
(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 that
permitted 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.
(d) Notwithstanding anything herein or in the other Basic Documents to
the contrary, in no event shall the Indenture Trustee, should it be appointed
Successor Servicer, be required to purchase any Receivable pursuant to Section
3.6 herein or otherwise or indemnify the Issuer, the Owner Trustee, the
Noteholders, the Certificateholders, the Depositor or any other Person
pursuant to Sections 3.13.
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
Notes (or, if no Notes are outstanding, holders of Certificates evidencing
Percentage Interests aggregating at least 51%) 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 to
make any required deposits to or payments from any of the Trust Accounts or
the Certificate Distribution Account 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 or impair any right consequent thereon. The
Issuer shall provide written notice of any such waiver to the Rating Agencies.
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables. As of the last day of
any Collection Period as of which the Pool Factor shall be equal to or less
than the Optional Purchase
25
Percentage, the Servicer shall have the option to purchase the Trust Property
from the Trust. To exercise such option, the Servicer shall deposit pursuant
to Section 4.4 in the Collection Account an amount equal to the lesser of (i)
the aggregate Purchase Amount for the Receivables and (ii) the fair market
value of the Receivables, and shall succeed to all interests in and to the
Trust. Notwithstanding the foregoing, the Servicer shall not be permitted to
exercise such option unless the amount to be deposited in the Collection
Account pursuant to the preceding sentence is greater than or equal to the sum
of the outstanding principal amount of the Notes and all accrued but unpaid
interest (including any overdue interest) thereon. The amount deposited in the
Collection Account pursuant to this Section 8.1 shall be used on the next
Payment Date to make payments in full to Noteholders and Certificateholders in
the manner set forth in Article IV. The purchase of the Trust Property
pursuant to this Section shall not be permitted unless the Servicer provides
to the Indenture Trustee and the Owner Trustee an Opinion of Counsel in form
reasonably satisfactory to the Indenture Trustee and the Owner Trustee to the
effect that such purchase will not constitute a fraudulent transfer of assets
of the Servicer under applicable state and federal law; provided that this
sentence may be deleted or modified with the consent of Moody's and without
the consent of any Securityholder, the Indenture Trustee or the Owner Trustee.
The Servicer or the Issuer shall furnish written notice of the Servicer's
election to exercise such option to the Indenture Trustee and the Rating
Agencies at least 10 days', but not more than 30 days', prior to the Payment
Date on which such purchase shall occur (and the Indenture Trustee shall
promptly furnish such notice to the Noteholders).
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.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment. (a) This Agreement may be amended by the
Depositor, the Servicer and the Issuer, with the consent of the Indenture
Trustee and the Owner Trustee to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement, or to add any provisions to or change or
eliminate any provisions or to modify the rights of the Noteholders or
Certificateholders; provided, however, that such action shall not, as
evidenced by either an Opinion of Counsel or an Officer's Certificate
delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interests of any Noteholder or Certificateholder and the
Rating Agency Condition shall be satisfied.
(b) This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Issuer, with the consent of the Indenture
Trustee and the Owner Trustee to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld) and with the consent of (i) the Noteholders of Notes evidencing not
26
less than a majority of the principal amount of each Class of Notes, and (ii)
the Certificateholders of Certificates evidencing Percentage Interests
aggregating at least 51% Balance (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 or any Certificate 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.
(c) Prior to the execution of any such amendment the Servicer will
provide written notification of the substance of such amendment to each Rating
Agency.
(d) Promptly after the execution of any such amendment, the Servicer
shall furnish written notification of the substance of such amendment to the
Owner Trustee, the Indenture Trustee and each Rating Agency. The Owner Trustee
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. 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 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 the establishment of record dates
pursuant to the Note Depository Agreement.
(e) 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 the Opinion of Counsel referred
to in Section 9.2(i)(1). 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 execute and file such financing statements and cause to be executed and
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 Issuer and the Indenture Trustee for the benefit of the Noteholders in
27
the Receivables and in the proceeds thereof. The Depositor shall deliver (or
cause to be delivered) to the Owner Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) None of 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 Depositor
in accordance with paragraph (a) above seriously misleading within the meaning
of ss. 9-506 of the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least 10 days' prior written notice thereof, with a copy
to the Rating Agencies, 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 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. 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 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 computer systems so that, from and
after the time of conveyance under this Agreement of the Receivables to the
Issuer, the Servicer's 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 pursuant to the Indenture. 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 Depositor, the Owner Trustee, the Indenture Trustee and their respective
agents at any time during normal
28
business hours at the Servicer's expense to inspect, audit, and make copies of
and to obtain abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee and
the Indenture Trustee, within five (5) Business Days, a list of all
Receivables (by contract number and name of Obligor) then owned by the Issuer,
together with a reconciliation of such list to the Schedule of Receivables and
to each of the Investor Reports furnished before such request indicating
removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(1) promptly after the execution and delivery of this Agreement
and of each amendment thereto, an Opinion of Counsel either (A) stating
that, in the opinion of such Counsel and subject to customary
qualifications and assumptions, all financing statements and
continuation statements have been executed and filed that are necessary
fully to perfect the interest of the Issuer and the Indenture Trustee in
the Receivables, and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or (B)
stating that, in the opinion of such Counsel, no such action shall be
necessary to perfect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cut-off Date, an Opinion of Counsel, dated as of a date during
such 120-day period, either (A) stating that, in the opinion of such
counsel and subject to customary qualifications and assumptions, all
financing statements and continuation statements have been executed and
filed that are necessary fully to perfect the interest of the Issuer and
the Indenture Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such Counsel,
no such action shall be necessary to perfect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2) above
shall specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
(j) For the purpose of facilitating the execution of this Agreement and
for other purposes, 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 9.3 Governing Law. 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.
29
SECTION 9.4 Notices. All demands, notices, and communications under this
Agreement shall be in writing, personally delivered, sent by telecopier, over
night 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 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile (212)
272-0979 Attention: [Xxxxxxxx Xxxxx], or at such other address as shall be
designated by the Seller or the Servicer in a written notice to the Owner
Trustee and the Indenture Trustee, (b) in the case of the Depositor, at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile (000) 000-0000, Attention:
[Xxxxx Xxxxxx], (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
Investors Service, Inc., at the following address: Xxxxx'x Investors Service,
Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
(f) in the case of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., at the following address: Standard & Poor's
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Surveillance Department, and (g) in the case of Fitch, Inc., at the following
address: Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000]. 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 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 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.3 and 7.2 and as provided
in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Depositor or the Servicer
unless (i)(A) the Rating Agency Condition is satisfied and (B) the Indenture
Trustee and the Owner Trustee have consented thereto, which consent shall not
be unreasonably withheld or (ii) the Owner Trustee, the Indenture Trustee, the
Noteholders of Notes evidencing not less than 66 2/3% of the principal amount
of the Notes Outstanding and the holders of Certificates evidencing Percentage
Interests aggregating at least 51% consent thereto. Any transfer or assignment
with respect to the Servicer of all its rights, obligations and duties will
not become effective until a successor Servicer has assumed the Servicer's
rights, duties and obligations under this Agreement. In the event of a
transfer or assignment pursuant to clause (ii) above, the Rating Agencies
shall be provided with notice of such transfer or assignment.
SECTION 9.7 Further Assurances. The Depositor and the Servicer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the Owner Trustee or
the Indenture Trustee more fully to
30
effect the purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
SECTION 9.8 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 9.9 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Indenture Trustee and
the Owner Trustee and their respective successors and permitted assigns and
each of the Indenture Trustee and the 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 Noteholders
pursuant to the Indenture.
SECTION 9.10 Actions by Noteholders or Certificateholders. (a) Wherever
in this Agreement a provision is made that an action may be taken or a notice,
demand, or instruction given by Noteholders or Certificateholders, such
action, notice, or instruction may be taken or given by any Noteholder or
Certificateholder, as applicable, unless such provision requires a specific
percentage of Noteholders or Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent,
waiver, or other act by a Noteholder or Certificateholder shall bind such
Noteholder or Certificateholder and every subsequent holder of such Note or
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or omitted to be done
by the Owner Trustee, the Indenture Trustee or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Note or
Certificate.
SECTION 9.11 Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [ ] not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
[ ], 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. For all purposes of this
Agreement, in the performance of its duties and obligations hereunder (other
31
than Successor Servicer), the Indenture Trustee shall be afforded all of the
rights, protections, immunities and indemnities provided it under the
Indenture.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by [ ], not in its individual capacity but solely
as Indenture Trustee, and in no event shall [ ] 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 9.12 Savings Clause. It is the intention of the Depositor and
the Issuer that the transfer of the Trust Property contemplated herein
constitute an absolute transfer of the Trust Property, conveying good title to
the Trust Property from the Depositor to the Issuer. However, in the event
that such transfer is deemed to be a pledge, the Depositor hereby grants to
the Issuer a first priority security interest in all of the Depositor's right,
title and interest in, to and under the Trust Property, and all proceeds
thereof, to secure a loan in an amount equal to all amounts payable under the
Notes and the Certificates, and in such event, this Agreement shall constitute
a security agreement under applicable law.
SECTION 9.13 No Petition. The Servicer, by entering into this Agreement,
hereby covenants and agrees that prior to the end of the period that is one
year and one day after there has been paid in full all debt issued by any
securitization vehicle in respect of which the Depositor holds any interest,
it will not institute against the Issuer, or join in, or assist or encourage
others to institute any institution against the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or State bankruptcy or similar law
in connection with any obligations relating to the Notes, this Agreement or
any of the other Basic Documents.
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.
WHOLE AUTO LOAN TRUST [ ],
as Issuer
By: [ ],
not in its individual capacity but solely
as Owner Trustee
By:
---------------------------------------
Name:
Title:
BEAR XXXXXXX ASSET RECEIVABLES CORP.,
as Servicer
By:
--------------------------------------------
Name:
Title:
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Depositor
By:
--------------------------------------------
Name:
Title:
Accepted and agreed:
[ ],
not in its individual capacity
but solely as Indenture Trustee
By: _________________________
Name:
Title:
[ ]
not in its individual capacity
but solely as Owner Trustee
By:_________________________
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
A-1
SCHEDULE B
Location of Receivable Files
B-1
SCHEDULE C
List of Receivables Servicer[s]
C-1
SCHEDULE D
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. Unless otherwise
indicated, such representations and warranties speak as of the Closing Date.
Capitalized terms used and not defined herein have the meaning(s)
ascribed thereto in the [ ] Servicing Agreement.
D-1
APPENDIX A
Definitions and Usage
[Form of Appendix A attached to the Form of Indenture (Exhibit 4.3)]
Appendix A-1
