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EXHIBIT 10.1
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SERVICING AGREEMENT
between
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Purchaser,
FIRST MERCHANTS ACCEPTANCE CORPORATION,
Servicer,
and
XXXXXX TRUST AND SAVINGS BANK,
Paying Agent and Backup Servicer
Dated as of June 17, 1997
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TABLE OF CONTENTS
ARTICLE I
Definitions
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SECTION 1.01. Definitions 1
SECTION 1.02. Other Definitional Provisions 11
ARTICLE II
The Receivables
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SECTION 2.01. Custody of Receivable Files 12
SECTION 2.02. Duties of Servicer as Custodian 13
SECTION 2.03. Instructions; Authority to Act 14
SECTION 2.04. Custodian's Indemnification 14
SECTION 2.05. Effective Period and Termination 14
ARTICLE III
Administration and Servicing of Receivables
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SECTION 3.01. Duties of Servicer 15
SECTION 3.02. Collection and Receivable Payments; Modifications of Receivables 16
SECTION 3.03. Realization upon Receivables 16
SECTION 3.04 Physical Damage Insurance 17
SECTION 3.05. Maintenance of Security Interests in Financed Vehicles 18
SECTION 3.06. Covenants of Servicer 18
SECTION 3.07. Purchase of Receivables upon Breach 19
SECTION 3.08. Servicing Fee 20
SECTION 3.09. Servicer's Certificate 20
SECTION 3.10. Annual Statement as to Compliance; Notice of Servicer Termination Event 20
SECTION 3.11. Annual Independent Accountants' Report 21
SECTION 3.12. Access to Certain Documentation and Information Regarding Receivables 21
SECTION 3.13. Monthly Tape 21
SECTION 3.14. Retention and Termination of Servicer 22
ARTICLE IV
Distributions;
Statements to the Purchaser
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SECTION 4.01. Lock-Box Account 23
SECTION 4.02. Accounts 23
SECTION 4.03. Application of Collections 26
SECTION 4.04. Purchase Amounts 26
SECTION 4.05. Distributions 26
SECTION 4.06. Statements to the Purchaser 26
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ARTICLE V
The Servicer
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SECTION 5.01. Representations of Servicer 27
SECTION 5.02. Indemnities of Servicer 29
SECTION 5.03. Merger or Consolidation of, or Assumption of the Obligations of, Servicer 30
SECTION 5.04. Limitation on Liability of Servicer, Backup Servicer and Others 31
SECTION 5.05. Appointment of Subservicer 32
SECTION 5.06. Servicer Not to Resign 32
ARTICLE VI
Default
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SECTION 6.01. Servicer Termination Events 33
SECTION 6.02. Consequences of a Servicer Termination Event 34
SECTION 6.03. Appointment of Successor 34
SECTION 6.04. Waiver of Past Defaults 35
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ARTICLE VII
Miscellaneous 35
SECTION 7.01. Amendment 35
SECTION 7.02. Protection of Title 36
SECTION 7.03. Notices 37
SECTION 7.04. Assignment by the Servicer 38
SECTION 7.05. Limitations on Rights of Others 38
SECTION 7.06. Severability 38
SECTION 7.07. Separate Counterparts 38
SECTION 7.08. Headings 38
SECTION 7.09. Governing Law 38
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SERVICING AGREEMENT dated as of June 17, 1997, among GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., a Delaware corporation (the "Purchaser"), FIRST
MERCHANTS ACCEPTANCE CORPORATION, a Delaware corporation (the "Servicer") and
XXXXXX TRUST AND SAVINGS BANK, an Illinois banking corporation, as Paying Agent
(in such capacity, the "Paying Agent") and as Backup Servicer (in such
capacity, the "Backup Servicer").
WHEREAS the Purchaser has purchased from First Merchants Acceptance
Corporation a portfolio of motor vehicle retail installment sale contracts
originated or purchased by First Merchants Acceptance Corporation in the
ordinary course of business;
WHEREAS the Servicer is willing to service the receivables arising in
connection with such contracts;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Amount Financed" means with respect to a Receivable, the amount advanced
under the Receivable toward the purchase price of the Financed Vehicle and any
related costs, exclusive of any amount allocable to the premium of force-placed
physical damage insurance covering the Financed Vehicle.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate of
finance charges stated in such Receivable.
"Backup Servicer" means Xxxxxx Trust and Savings Bank or its successor in
interest pursuant to Section 5.03 or such other Person as shall have been
appointed as Backup Servicer pursuant to Section 6.03(b).
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"Basic Documents" means this Agreement, the Receivables Purchase Agreement
and the Custodian Agreement and any other documents and certificates delivered
in connection therewith.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banking institutions in the City of New York and Chicago,
Illinois are authorized or obligated by law or executive order to be closed.
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 4.02(b).
"Collection Account Property" means the Collection Account, all amounts
and investments held from time to time in such account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Collection Period" means, with respect to any Distribution Date, the
calendar month preceding such Distribution Date. Any amount stated as of the
last day of a Collection Period or as of the first day of a Collection Period
shall give effect to the following calculations as determined as of the close
of business on such last day: (1) all applications of collections and (2) all
distributions to be made on the related Distribution Date.
"Contract" means a motor vehicle retail installment sale contract between
a Dealer and one or more Obligors named in list of Receivables on Schedule I
hereto, together with all accounts, general intangibles, chattel paper,
documents and instruments (as those terms are defined in the Uniform Commercial
Code as enacted in the State of Illinois) and any contract rights related
thereto.
"Corporate Trust Office" means the principal office of the Paying Agent
and the Backup Servicer from which at any particular time its corporate trust
business shall be administered which office at the date of the execution of
this Agreement is located at Xxxxxx Trust and Savings Bank, 000 Xxxx Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000, Attention: Indenture Trust
Administration or at any other time at such other address as the Paying Agent
and the Backup Servicer may designate from time to time by notice to the
Servicer.
"Cram Down Loss" means any loss resulting from an order issued by a court
of appropriate jurisdiction in an insolvency proceeding
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that reduces the amount owed on a Receivable or otherwise modifies or
restructures the Obligor's Scheduled Payments to be made thereon. The amount
of any such Cram Down Loss will equal the excess of (i) the Principal Balance
of the Receivable immediately prior to such order over (ii) the Principal
Balance of such Receivable as so reduced, modified or restructured. A Cram
Down Loss will be deemed to have occurred on the date of issuance of such
order.
"Custodian" means Xxxxxx Trust and Savings Bank, in its capacity as
custodian under the Custodian Agreement.
"Custodian Agreement" means the Custodian Agreement dated as of June 17,
1997 among the Purchaser, as purchaser, the Servicer, as servicer and as
seller, and Xxxxxx Trust and Savings Bank, as custodian, in the form attached
hereto as Exhibit D.
"Cutoff Date" means June 1, 1997.
"Dealer" means the dealer or other entity who sold a Financed Vehicle and
who originated the related Receivable and assigned it to (x) First Merchants,
(y) Magna or (z) any other Person approved by First Merchants, pursuant to a
Dealer Agreement.
"Dealer Agreement" means (a) an agreement between First Merchants and a
Dealer pursuant to which such Dealer sells Contracts to First Merchants or (b)
collectively, (i) an agreement between (x) Magna and or (y) an affiliate of
First Merchants and a Dealer pursuant to which such Dealer sells Contracts to
Magna or such affiliate of First Merchants, as the case may be, and (ii) an
agreement between (x) Magna or (y) an affiliate of First Merchants and First
Merchants pursuant to which Magna sells Contracts to First Merchants (or
otherwise assigns Contracts to First Merchants' designee).
"Defaulted Receivable" means a Receivable with respect to which any of the
following shall have occurred: (i) a payment under the related Contract is 120
or more days delinquent (and the related Obligor has not cured any deficiency
with respect to such Receivable during the related Collection Period), (ii) the
related Financed Vehicle has been repossessed or (iii) the Servicer has
determined in good faith that payments under the related Contract are not
likely to be resumed.
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"Delivery" when used with respect to Collection Account Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof to the Paying Agent or its nominee or
custodian by physical delivery to the Paying Agent or its nominee or
custodian endorsed to, or registered in the name of, the Paying Agent or its
nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC) transfer
thereof (i) by delivery of such certificated security endorsed to, or
registered in the name of, the Paying Agent or its nominee or custodian or
endorsed in blank to a financial intermediary (as defined in Section 8-313
of the UCC) and the making by such financial intermediary of entries on its
books and records identifying such certificated securities as belonging to
the Paying Agent or its nominee or custodian and the sending by such
financial intermediary of a confirmation of the purchase of such
certificated security by the Paying Agent or its nominee or custodian, or
(ii) by delivery thereof to a "clearing corporation" (as defined in Section
8-102(3) of the UCC) and the making by such clearing corporation of
appropriate entries on its books reducing the appropriate securities account
of the transferor and increasing the appropriate securities account of a
financial intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated securities
for the sole and exclusive account of the financial intermediary, the
maintenance of such certificated securities by such clearing corporation or
a "custodian bank" (as defined in Section 8-102(4) of the UCC) or the
nominee of either subject to the clearing corporation's exclusive control,
the sending of a confirmation by the financial intermediary of the purchase
by the Paying Agent or its nominee or custodian of such securities and the
making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Paying Agent or
its nominee or custodian (all of the foregoing, "Physical Property"), and,
in any event, any such Physical Property in registered form shall be in the
name of the Paying Agent or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such
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Collection Account Property to the Paying Agent or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Collection Account Property to an appropriate
book-entry account maintained with a Federal Reserve Bank by a financial
intermediary which is also a "depository" pursuant to applicable Federal
regulations and issuance by such financial intermediary of a deposit advice
or other written confirmation of such book-entry registration to the Paying
Agent or its nominee or custodian of the purchase by the Paying Agent or its
nominee or custodian of such book-entry securities; the making by such
financial intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant to
Federal book-entry regulations as belonging to the Paying Agent or its
nominee or custodian and indicating that such custodian holds such
Collection Account Property solely as agent for the Paying Agent or its
nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Collection Account Property to the Paying Agent or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Collection Account Property that is
an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of the
issuer thereof in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by the Paying
Agent or its nominee or custodian of such uncertificated security, the
making by such financial intermediary of entries on its books and records
identifying such uncertificated certificates as belonging to the Paying
Agent or its nominee or custodian.
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"Determination Date" means, with respect to each Distribution Date, the
earlier of (i) the eighth calendar day of the month in which such Distribution
Date occurs (or if such eighth day is not a Business Day, the next succeeding
Business Day) and (ii) the fifth Business Day preceding such Distribution Date.
"Distribution Date" means, with respect to each Collection Period, the
fifteenth day of the following month or, if such day is not a Business Day, the
immediately following Business Day, commencing on July 15, 1997.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution acceptable to the Purchaser or (b) a segregated trust
account with the corporate trust department of a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as any of the securities of such depository
institution shall have a credit rating from each Rating Agency in one of its
generic rating categories that signifies investment grade and acceptable to the
Purchaser.
"Eligible Institution" means (a) the corporate trust department of Xxxxxx
Trust and Savings Bank so long as it shall be Paying Agent under this Agreement
or (b) a depository institution organized under the laws of the United States
of America or any one of the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), which (i) has either (A) a long-term
unsecured debt rating of AAA or better by Standard & Poor's and A1 or better by
Moody's or (B) a certificate of deposit rating of A-1+ by Standard & Poor's and
P-1 or better by Moody's, or any other long-term, short-term or certificate of
deposit rating acceptable to the Purchaser and (ii) whose deposits are insured
by the FDIC.
"Eligible Investments" means book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(a) direct obligations of, and obligations fully guaranteed as to the
full and timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company
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incorporated under the laws of the United States of America or any state
thereof (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or State banking or depository
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall have a
credit rating from each of the Rating Agencies in the highest investment
grade category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment grade category granted thereby;
(d) investments in money market funds having a rating from each of the
Rating Agencies in the highest investment grade category granted thereby
(including funds for which the Paying Agent or the Custodian or any of
their Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above; and
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (b).
"Eligible Servicer" means First Merchants, the Backup Servicer or any
other Person which at the time of its appointment as Servicer (i) is servicing
a portfolio of motor vehicle retail installment sale contracts and/or motor
vehicle installment loans, (ii) is legally qualified and has the capacity to
service the Receivables, (iii) has demonstrated the ability professionally and
competently to service a portfolio of motor vehicle retail installment sale
contracts and/or motor vehicle installment loans
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similar to the Receivables with reasonable skill and care and (iv) has a
minimum net worth of $100,000,000.
"FDIC" means the Federal Deposit Insurance Corporation.
"Financed Vehicle" means an automobile, light-duty truck, van or minivan,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"First Merchants" means First Merchants Acceptance Corporation, a Delaware
corporation, and its successors.
"Initial Pool Balance" means the aggregate principal balance of the
Receivables as of the Cutoff Date.
"Insolvency Event" means, with respect to a specified Person, (a) the entry
of a decree or order for relief by a court having jurisdiction in the premises
in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs; (b) the commencement of an
involuntary case under the federal or state bankruptcy, insolvency or similar
law, as now or hereinafter in effect, or another present or future federal or
state bankruptcy, insolvency or similar law with respect to such Person and
such case is not dismissed within 60 days; or (c) the commencement by such
Person of a voluntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
such Person to the entry of an order for relief in an involuntary case under
any such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
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"Interest Distribution Amount" means, with respect to any Distribution
Date, the sum of the following amounts, without duplication, with respect to
the Receivables in respect of the Collection Period preceding such Distribution
Date: () that portion of all collections on Receivables allocable to interest,
(b) Liquidation Proceeds with respect to the Receivables to the extent
allocable to interest due thereon in accordance with the Servicer's customary
servicing procedures, (c) the Purchase Amount of each Receivable that became a
Purchased Receivable during such Collection Period to the extent attributable
to accrued interest on such Receivable, (d) Investment Earnings for the related
Distribution Date and (e) Recoveries for such Collection Period to the extent
allocable to interest; provided, however, that in calculating the Interest
Distribution Amount the following will be excluded: all payments and proceeds
(including Liquidation Proceeds and Recoveries) of any Purchased Receivables
the Purchase Amount of which has been included in the Interest Distribution
Amount in a prior Collection Period.
"Investment Earnings" means, with respect to any Distribution Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in the Collection Account.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
arising subsequent to the Closing Date that attach to the respective Receivable
by operation of law as a result of any act or omission by the related Obligor.
"Liquidated Receivable" means any Receivable or with respect to which any
of the following shall have occurred: (i) the related Financed Vehicle has
been repossessed for 90 days or more, (ii) such Receivable is a Defaulted
Receivable with respect to which the Servicer has determined in good faith that
all amounts it expects to recover have been received or (iii) a payment under
the related Contract is 150 or more days delinquent.
"Liquidation Proceeds" means, with respect to any Liquidated Receivable,
the moneys collected in respect thereof, from whatever source, on a Liquidated
Receivable during the Collection Period in which such Receivable became a
Liquidated Receivable, net of the sum of any amounts expended by the Servicer
in connection with such liquidation and any amounts required by law to be
remitted to the Obligor on such Liquidated Receivable; provided however that
the
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Liquidation Proceeds with respect to any Receivable shall in no event be less
than zero.
"Local Collection Account" shall have the meaning provided in Section
4.02.
"Local Collection Account Agreement" means the agreement dated as of June
17, 1997, among Xxxxxx Trust and Savings Bank, the Purchaser and the Servicer,
as amended, supplemented or otherwise modified from time to time.
"Local Post Office Box" shall have the meaning specified in Section 4.01.
"Magna" means Magna Bank of St. Louis, a Missouri banking corporation, and
its successors and assigns.
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under such Receivable.
"Obligor's Scheduled Payment" means, with respect to each Receivable, the
scheduled monthly payment amount set forth in the related Contract and required
to be paid by the Obligor during each Collection Period. If, after the Closing
Date, an Obligor's scheduled monthly payment obligation under the related
Contract is modified (i) as a result of the order of a court in an insolvency
proceeding involving the Obligor, (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) as a result of modifications or extensions of
the Contract permitted by Section 3.02, "Obligor's Scheduled Payment" shall
refer to the Obligor's scheduled monthly payment obligation as so modified.
"Opinion of Counsel" means one or more written opinions of counsel, which
counsel shall be reasonably acceptable to the Purchaser; provided that, with
respect to any opinion delivered to the Backup Servicer or the Paying Agent,
such counsel shall also be reasonably acceptable to the Backup Servicer or the
Paying Agent, as applicable.
"Original Pool Balance" means $[______________].
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"Paying Agent" means Xxxxxx Trust and Savings Bank in its capacity as
paying agent under this Agreement.
"Payment Determination Date" means, with respect to any Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means, with respect to each Determination Date, the
aggregate Principal Balance of the Receivables (excluding all Purchased
Receivables and Liquidated Receivables) as of the close of business on the last
day of the related Collection Period, after giving effect to all payments
received from Obligors for such Collection Period, and after adjustment for
Cram Down Losses for such Collection Period.
"Precomputed Receivable" means any Receivable under which the portion of a
payment allocable to earned interest (which may be referred to in the related
Contract as an add-on finance charge) and the portion allocable to the Amount
Financed is determined according to the sum of periodic balances or the sum of
monthly balances or any equivalent method or are monthly actuarial receivables.
"Principal Balance" means, with respect to any Receivable and
Determination Date, the Amount Financed minus an amount equal to the sum, as of
the close of business on the last day of the related Collection Period, of (1)
that portion of all amounts received on or prior to such day with respect to
such Receivable and allocable to principal using the actuarial method (with
respect to Precomputed Receivables) or the Simple Interest Method (with respect
to Simple Interest Receivables), as applicable, and (2) any Cram Down Losses
with respect to such Receivable.
"Purchase Amount" means, with respect to any Receivable that became a
Purchased Receivable, the unpaid principal balance owed by the Obligor thereon
plus interest on such amount at the applicable APR to the date of repurchase.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 3.07 or by the Seller pursuant to the Receivables Purchase Agreement.
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"Purchaser" means Greenwich Capital Financial Products, Inc. and its
successors in interest to the extent permitted hereunder.
"Rating Agency" means either Xxxxx'x or Standard & Poor's or, when used in
the plural form, Xxxxx'x and Standard and Poor's. If none of Xxxxx'x, Standard
& Poor's or a successor to either of them remains in existence, "Rating Agency"
shall mean any nationally recognized statistical rating organization or other
comparable Person designated by the Purchaser, notice of which designation
shall be given to the Servicer, the Backup Servicer and the Paying Agent.
"Realized Losses" means, with respect to any Receivable that becomes a
Liquidated Receivable, the excess of the Principal Balance of such Liquidated
Receivable over Liquidation Proceeds to the extent allocable to principal.
"Receivable" means any Contract listed on Schedule A.
"Receivable Files" means the documents specified in Section 2.01.
"Receivables Purchase Agreement" means the Receivables Purchase Agreement
dated as of June 17, 1997, between First Merchants, as seller, and the
Purchaser.
"Recoveries" means, with respect to any Receivable that becomes a
Liquidated Receivable, monies collected in respect thereof, from whatever
source, during any Collection Period following the Collection Period in which
such Receivable became a Liquidated Receivable, net of the sum of any amounts
expended by the Servicer for the account of the related Obligor and any amounts
required by law to be remitted to the related Obligor.
"Regular Principal Distribution Amount" means, with respect to any
Distribution Date, the sum of the following amounts, without duplication, with
respect to the Receivables in respect of the related Collection Period: (i)
that portion of all collections on the Receivables allocable to principal, (ii)
that portion of all Liquidation Proceeds and Recoveries allocable to principal
and (iii) that portion allocable to principal of the Purchase Amount of all
Receivables that became Purchased Receivables during or in respect of such
Collection Period; provided, however, that in calculating the Regular Principal
Distribution Amount the following will be excluded: (i) all payments and
proceeds (including
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Liquidation Proceeds) of any Purchased Receivables the Purchase Amount of which
has been included in the Regular Principal Distribution Amount in a prior
Collection Period.
"Responsible Officer" means the chairman of the board, the president, any
executive vice president, any vice president, the treasurer, any assistant
treasurer, the secretary, or any assistant secretary of the Servicer or
Purchaser.
"Seller" means First Merchants under the Receivables Purchase Agreement.
"Servicer" means First Merchants, as the servicer of the Receivables, and
each successor to First Merchants (in the same capacity) pursuant to Section
5.03 or 6.03.
"Servicer Extension Notice" shall have the meaning specified in Section
3.14.
"Servicer Termination Event" means an event specified in Section 6.01.
"Servicer's Certificate" means a certificate signed by (a) the chairman of
the board, any vice president, the controller or any assistant controller and
(b) the president, a treasurer, assistant treasurer, secretary or assistant
secretary of the Servicer delivered pursuant to Section 3.09, substantially in
the form of Exhibit C.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during each Collection Period, determined pursuant to Section 3.08.
"Simple Interest Method" means the method of allocating the monthly
payments received with respect to a Receivable to interest in an amount equal
to the product of (i) the applicable APR, (ii) the period of time (expressed as
a fraction of a year, based on the actual number of days in the calendar month
and 365 days in the calendar year) elapsed since the preceding payment was made
under such Receivable and (iii) the outstanding principal amount of the
Receivable, and allocating the remainder of each such monthly payment to
principal.
"Simple Interest Receivable" means any Receivable under which the portion
of a payment allocable to interest and the portion
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allocable to principal is determined in accordance with the Simple Interest
Method.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. or its successor.
"State" means any one of the 50 states of the United States of America or
the District of Columbia.
"Total Distribution Amount" means, for each Distribution Date, the sum of
the applicable Interest Distribution Amount and the applicable Regular
Principal Distribution Amount (other than the portion thereof attributable to
Realized Losses and/or Cram Down Losses).
"Trust Officer" means, in the case of the Custodian, the Backup Servicer
or the Paying Agent, any officer within the Corporate Trust Office of the
Custodian, the Backup Servicer or the Paying Agent as the case may be,
including any Vice President, Assistant Vice President, Assistant Treasurer,
Assistant Secretary or any other officer customarily performing functions
similar to these performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
SECTION 1.02. Other Definitional Provisions. (a) Capitalized terms used
herein and not otherwise defined herein have the meaning assigned to them in
the Receivables Purchase Agreement. All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made
or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the
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meanings of such terms under generally accepted accounting principles, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Article, Section, Schedule and
Exhibit references contained in this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to
a Person are also to its permitted successors and assigns.
ARTICLE II
The Receivables
SECTION 2.01. Custody of Receivable Files.
(a) To assure uniform quality in servicing the Receivables and to reduce
administrative costs, the Purchaser hereby revocably appoints the Servicer, and
the Servicer hereby accepts such appointment, to act for the benefit of the
Purchaser as custodian of the following documents or instruments:
(i) a copy of the fully executed original of each Receivable
(together with a copy of any agreements modifying such Receivable,
including a copy of any extension agreement);
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(ii) the original credit application, or a copy thereof, fully
executed by each Obligor thereon;
(iii) the original certificate of title or such other documents that
the Custodian or the Servicer or the Seller shall keep on file in
accordance with its customary procedures evidencing the security interest
of the Seller in the Financed Vehicle; and
(iv) any and all other documents that are set forth in Schedule C
hereto.
(b) Pursuant to the Custodian Agreement, the Custodian will act as
custodian of (i) the fully executed original of each Receivable (together with
any agreements modifying such Receivable, including any extension agreement)
with executed assignment from the related Dealer (or Magna, as applicable) to
Seller and any intervening assignments and (ii) a fully executed assignment in
blank from Seller.
SECTION 2.02. Duties of Servicer as Custodian2.02. Duties of Servicer as
Custodian. (a) Safekeeping. The Servicer shall hold the Receivable Files as
custodian for the benefit of the Purchaser, and shall maintain accurate and
complete accounts, records and computer systems pertaining to each Receivable
File. In performing its duties as custodian, the Servicer shall act with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to the receivable files relating to all comparable
automotive receivables that the 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 Purchaser
and the Backup Servicer to verify the accuracy of the Servicer's record
keeping. The Servicer shall promptly report to the Purchaser and the Backup
Servicer 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 Purchaser of
the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at one of its offices specified in Schedule B to this
Agreement or at such other office as shall be
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specified to the Purchaser and the Backup Servicer by written notice not later
than 3 Business Days prior to any change in location. The Servicer shall make
available to the Purchaser and the Backup Servicer or their duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files and the related accounts, records and computer systems maintained by the
Servicer at such times during normal business hours as the Purchaser and the
Backup Servicer (as the case may be) shall instruct.
(c) Release of Documents. Upon instruction from the Purchaser, the
Servicer shall release any Receivable File to the person designated by the
Purchaser, at such place or places as the Purchaser may designate, as soon as
practicable, and upon the release and delivery of any such document in
accordance with the instructions of the Purchaser, the Servicer shall be
released from any further liability and responsibility under this Section 2.02
with respect to such documents, unless and until such time as such documents
shall be returned to the Servicer. In no event shall the Servicer be
responsible for any loss occasioned by the Purchaser's failure to return any
Receivable File or any portion thereof in a timely manner.
SECTION 2.03. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Responsible Officer
of the Purchaser. The Servicer shall be entitled to rely and act upon any such
instructions it reasonably believes to be genuine.
SECTION 2.04. Custodian's Indemnification. The Servicer, as custodian,
shall indemnify the Purchaser, the Backup Servicer and their officers,
directors, employees and agents for any and all liabilities, obligations,
losses, compensatory damages, payments, costs, or expenses of any kind
whatsoever that may be imposed on, incurred by or asserted against the
Purchaser, the Backup Servicer or any of their officers, directors, employees or
agents 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 to the Purchaser or any
such officer, director, employee or agent of the Purchaser for any portion of
any such amount resulting from the willful misfeasance, bad faith or negligence
of the Purchaser or any officer, director, employee or agent of the Purchaser.
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Indemnification under this Section shall survive the resignation or
removal of the Servicer or the termination of this Agreement 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 and
the Person to or on behalf of whom such payments are made thereafter collects
any of such amounts from others, such Person shall promptly repay such amounts
to the Servicer, without interest.
SECTION 2.05. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect unless and until terminated pursuant to this
Section 2.05. If First Merchants or any successor Servicer shall resign as
Servicer in accordance with the provisions of this Agreement or if all of the
rights and obligations of First Merchants or any successor Servicer shall have
been terminated under Section 6.02, the appointment of such Servicer as
custodian may be terminated by the Purchaser in the same manner as the
Purchaser may terminate the rights and obligations of the Servicer under
Section 6.02. The Purchaser may terminate the Servicer's appointment as
custodian, with cause, at any time upon written notification to the Servicer
and without cause, only by written notification to the Servicer pursuant to
Section 6.02. As soon as practicable after any termination of such appointment
(but in no event more than 3 Business Days after any such termination of
appointment), the Servicer shall deliver the Receivable Files to the Purchaser
or the Purchaser's agent at such place or places as the Purchaser may
reasonably designate.
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.01. Duties of Servicer. The Servicer, for the benefit of the
Purchaser, shall manage, service, administer and make collections on the
Receivables and perform the other actions required by the Servicer under this
Agreement. The Servicer shall service the Receivables in accordance with its
customary and usual procedures and consistent with the procedures employed by
institutions that service motor vehicle retail installment sale contracts. The
Servicer's duties shall include the collection and posting of all payments,
responding to inquiries of Obligors, investigating delinquencies, sending
monthly payment statements to Obligors, reporting any required tax information
to Obligors,
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monitoring the collateral, accounting for collections, furnishing monthly and
annual statements to the Purchaser with respect to distributions, monitoring
the compliance by Obligors with the insurance requirements contained in the
related Contracts, and performing the other duties specified herein. The
Servicer also shall administer and enforce all rights of the holder of the
Receivables under the Contracts and the Dealer Agreements. To the extent
consistent with the standards, policies and procedures otherwise required
hereby, the Servicer shall follow its customary standards, policies and
procedures and shall have full power and authority, acting alone, to do any and
all things in connection with the managing, servicing, administration and
collection of the Receivables that it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer is hereby authorized and
empowered to execute and deliver, on behalf of itself and the Purchaser, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments with respect to the
Receivables and with respect to the Financed Vehicles; provided, however, that,
notwithstanding the foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from payment
of any unpaid amount due under any Receivable or waive the right to collect the
unpaid balance of any Receivable from an Obligor. The Servicer is hereby
authorized to commence, in its own name or in the name of the Purchaser, a
legal proceeding to enforce a Receivable pursuant to Section 3.03 or to
commence or participate in any other legal proceeding (including a bankruptcy
proceeding) relating to or involving a Receivable, an Obligor or a Financed
Vehicle. If the Servicer commences or participates in any such legal
proceeding in its own name, the Purchaser shall thereupon be deemed to have
automatically assigned the applicable Receivable to the Servicer solely for
purposes of commencing or participating in such proceeding as a party or
claimant, and the Servicer is authorized and empowered by the Purchaser to
execute and deliver in the Purchaser's name any notices, demands, claims,
complaints, responses, affidavits, or other documents or instruments in
connection with any such proceeding. If in any enforcement suit or legal
proceeding it shall be held that the 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 such Receivable, the Purchaser may, at the Servicer's expense and
direction, take steps to enforce such Receivable, including bringing suit in
its name or the name of the Purchaser. The Purchaser may upon the written
request of the Servicer furnish the Servicer with any powers of attorney and
other
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documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder.
SECTION 3.02. Collection and Receivable Payments; Modifications of
Receivables. (a) Consistent with the standards, policies and procedures
required by this Agreement, 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 automotive
receivables that it services for itself or others and otherwise act with
respect to the Receivables in such manner as will, in the reasonable judgment
of the Servicer, maximize the amount to be received by the Purchaser with
respect thereto. The Servicer is authorized in its discretion to waive any
prepayment charge, late payment charge or any other similar fees that may be
collected in the ordinary course of servicing any Receivable.
(b) The Servicer may at any time agree to a modification or amendment of a
Receivable in order to (i) change the date during each calendar month when the
related Obligor's scheduled payment is due or (ii) reamortize the Obligor's
Scheduled Payments on the Receivable following a partial prepayment of
principal.
(c) Except as otherwise instructed by the Purchaser, the Servicer may
grant payment extensions or other modifications of or amendments with respect
to a Receivable (in addition to those modifications permitted by Section
3.02(b)) in accordance with its customary procedures, which are attached hereto
as Schedule D, if the Servicer believes in good faith that such extension,
modification or amendment is necessary to avoid a default on such Receivable,
will maximize the amount to be received by the Purchaser with respect to such
Receivable and is otherwise in the best interests of the Purchaser; provided,
however, that:
(i) in no event may the final Obligor's Scheduled Payment on a
Receivable be extended beyond [ ]; and
(ii) with respect to any Determination Date, the amount of Receivables
subject to extension or modification shall not exceed 25 Receivables in any
calendar month.
SECTION 3.03. Realization upon Receivables. Consistent with the
standards, policies and procedures required by this Agreement,
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the Servicer shall use its best efforts to repossess or otherwise convert the
ownership of and liquidate any Financed Vehicle securing a Receivable with
respect to which the Servicer shall have determined that eventual payment in
full is unlikely. The Servicer shall begin such repossession and conversion
procedures as soon as practicable after default on such Receivable, but in no
event later than the date on which all or any portion of an Obligor's Scheduled
Payment has become 91 days delinquent; provided, however, that the Servicer may
elect not to repossess a Financed Vehicle within such time period if in its
good faith judgment it determines that the proceeds ultimately recoverable with
respect to such Receivable would be increased by forbearance. In repossessing
or otherwise converting the ownership of a Financed Vehicle and liquidating a
Receivable, the Servicer is authorized to follow such customary practices and
procedures as it shall deem necessary or advisable, consistent with the
standard of care required by Section 3.01, which practices and procedures may
include reasonable efforts to realize upon any recourse to Dealers (or Magna,
as applicable) or any sales tax or other rebates, the sale of the related
Financed Vehicle at public or private sale, the submission of claims under an
insurance policy and other actions by the Servicer in order to realize on a
Receivable or obtain a deficiency judgement; provided, however, that, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds of
liquidation of the related Receivable by an amount greater than the expense for
such repair or repossession. The Servicer shall be entitled to recover all
reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the cash
proceeds of the sale of such Financed Vehicle, any deficiency obtained from the
Obligor or any amounts received from recourse to the related Dealer (or Magna,
as applicable).
SECTION 3.04. Physical Damage Insurance. (a) The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained and maintain physical loss damage insurance covering the
Financed Vehicle as of the execution of the Receivable.
(b) The Servicer shall monitor the status of the insurance policies
referred to in this Section 3.04 in accordance with its customary servicing
procedures. If the Servicer shall
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determine that an Obligor has failed to obtain or maintain a physical loss and
damage insurance policy covering the related Financial Vehicle as set forth in
clause (a) of this Section 3.04 (including during the repossession of such
Financed Vehicle) the Servicer shall be diligent in carrying on its customary
servicing procedures to enforce the rights of the holder of the Receivable
thereunder to require the Obligor to obtain such physical loss and damage
insurance.
(c) The Servicer may xxx to enforce or collect upon the insurance
policies, in its own name, if possible, or as agent of the Purchaser. If the
Servicer elects to commence a legal proceeding to enforce an insurance policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Purchaser under such insurance policy to the Servicer for
purposes of collection only.
SECTION 3.05. Maintenance of Security Interests in Financed Vehicles. (a)
The Servicer shall, in accordance with its customary servicing procedures, take
such steps as are necessary to maintain perfection of the security interest of
the Seller created by each Receivable in the related Financed Vehicle. The
Servicer is hereby authorized to take such steps as are necessary to re-perfect
such security interest on behalf of the Purchaser in the event of the
relocation of a Financed Vehicle or for any other reason. In the event that
the assignment of a Receivable to the Purchaser 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 perfect a security interest
in the related Financed Vehicle in favor of the Purchaser, the Servicer hereby
agrees that the designation of First Merchants as the secured party on the
certificate of title is in its capacity as agent of the Purchaser.
(b) The Purchaser and Servicer hereby agree that the Purchaser may take or
cause to be taken such actions as may, in the opinion of counsel to the
Purchaser, be necessary or desirable to perfect or re-perfect the security
interests in the Financed Vehicles in the name of the Purchaser, including by
amending the title documents of the Financed Vehicles. The Servicer hereby
agrees to pay all expenses related to such perfection or reperfection and to
take all action necessary therefor. In addition, the Purchaser may at any
other time instruct the Servicer to take or cause to be taken such action as
may, in the opinion of
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counsel to the Purchaser, be necessary or desirable to perfect or re-perfect
the security interest in the Financed Vehicles in the name of the Purchaser;
provided, however, that if the Purchaser requests that the title documents be
amended prior to the occurrence of a Servicer Termination Event, the
out-of-pocket expenses of the Servicer or any other entity incurred in
connection with any such action shall be reimbursed to the Servicer or such
other party by the Purchaser.
SECTION 3.06. Covenants of Servicer. By its execution and delivery of
this Agreement, the Servicer hereby covenants to the Purchaser as follows:
(a) Liens in Force. No Financed Vehicle securing a Receivable shall be
released in whole or in part from the security interest granted by the
Receivable, except upon payment in full of the Receivable or as otherwise
contemplated herein;
(b) No Impairment. The Servicer shall do nothing to impair the rights of
the Purchaser in the Receivables;
(c) No Amendments. The Servicer shall not extend or otherwise amend the
terms of any Receivable, except in accordance with Section 3.02 (provided that
no breach of this covenant shall be deemed to have occurred unless and until
the remedy provided in Section 3.07, after demand therefor, has not been
complied with); and
(d) Restrictions on Liens. The Servicer shall not (A) create, incur or
suffer to exist, or agree to create, incur or suffer to exist, or consent to or
permit in the future (upon the occurrence of a contingency or otherwise) the
creation, incurrence or existence of any Lien on or restriction on
transferability of any Receivable except for the Lien in favor of the Purchaser
and the restrictions on transferability imposed by this Agreement or (B) sign
or file any UCC financing statements in any jurisdiction that names First
Merchants or the Servicer as a debtor and any Person other than the Purchaser
as a secured party, or sign any security agreement authorizing any secured
party thereunder to file any such financing statement with respect to the
Receivables.
(e) Power of Attorney. Servicer shall execute and deliver to Purchaser a
Limited Power of Attorney, substantially in the form of Exhibit E hereto.
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SECTION 3.07. Purchase of Receivables upon Breach. Upon discovery by any
of the Servicer, Purchaser or Backup Servicer of a breach of any of the
covenants set forth in Sections 3.02(c), 3.05(a) or 3.06 (which breach has not
been waived by the Purchaser), the party discovering such breach shall give
prompt written notice to the other party; provided, however, that the failure
to give any such notice shall not affect any obligation of the Servicer under
this Section 3.07; and provided further that, with respect to the Backup
Servicer, "discovery" shall mean actual knowledge by a Trust Officer. On or
before the last day of the first Collection Period following its discovery or
receipt of notice of any breach of any covenant set forth in Sections 3.02(c),
3.05(a) or 3.06 that materially and adversely affects the interests of the
Purchaser, the Servicer shall, unless such breach shall have been cured in all
material respects by such date, purchase from the Purchaser the Receivable
affected by such breach. In consideration of the purchase of any such
Receivable, the Servicer shall remit the related Purchase Amount into the
Collection Account in the manner specified in Section 4.04. Subject to Section
5.02, it is understood and agreed that the obligation of the Servicer to
purchase any Receivable with respect to which such a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against the Servicer for such breach available to the Purchaser.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Servicer, the Servicer shall
indemnify the Seller, the Backup Servicer and the Purchaser against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees
and expenses of counsel, which may be asserted against or incurred by either of
them as a result of third party claims arising out of the events or facts
giving rise to a breach of the covenants or representations and warranties set
forth in Sections 3.05 or 3.06.
SECTION 3.08. Servicing Fee. The Servicing Fee payable to the Servicer
on each Distribution Date shall equal the product of (i) one-twelfth, (ii)
2.50% and (iii) the Pool Balance as of the first day of the related Collection
Period. The Servicing Fee shall be calculated on the basis of a 360-day year
comprised of twelve 30-day months. The Servicer also shall be entitled to all
late fees, prepayment charges (including, in the case of a Receivable that
provides for payments according to the "Rule of 78s" and that is prepaid in
full, the difference between the Principal Balance of such Receivable (plus
accrued interest to the date of prepayment)
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and the Principal Balance of such Receivable computed according to the "Rule of
78s"), and other administrative fees or similar charges allowed by applicable
law with respect to the Receivables, collected (from whatever source) on the
Receivables.
Except as otherwise provided herein, the Servicer shall be required to pay
all expenses incurred by it in connection with its activities under this
Agreement (including taxes imposed on the Servicer and expenses incurred in
connection with distributions and reports made by the Servicer to the Purchaser
and the Paying Agent). The Servicer shall be liable for the fees and expenses
of the Backup Servicer, the Paying Agent and the Custodian.
SECTION 3.09. Servicer's Certificate. Not later than 10:00 a.m. (New
York City time) on each Determination Date, the Servicer shall deliver to the
Paying Agent, Backup Servicer, and the Purchaser a Servicer's Certificate
containing all information necessary to make the distributions to be made on
the related Distribution Date pursuant to Section 4.05 for the related
Collection Period. Receivables to be purchased by the Servicer or to be
repurchased by the Seller pursuant to the Receivables Purchase Agreement and
each Receivable that became a Liquidated Receivable shall be identified by the
Servicer by account number with respect to such Receivable (as specified in
Schedule A).
SECTION 3.10. Annual Statement as to Compliance; Notice of Servicer
Termination Event. (a) The Servicer shall deliver to the Paying Agent, the
Backup Servicer and the Purchaser, within 120 days after the end of the
Servicer's fiscal year (with the first such certificate being delivered no
later than April 30, 1998), an Officer's Certificate signed by a Responsible
Officer of the Servicer, stating that (i) a review of the activities of the
Servicer during the preceding 12-month period (or such shorter period as shall
have elapsed from the Closing Date to the end of the first such fiscal year)
and of the performance of its obligations under this Agreement has been made
under such officer's supervision and (ii) to 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 Backup Servicer, and the Purchaser,
promptly after having obtained knowledge thereof, but in no event later than
two Business Days thereafter, written
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notice in an Officer's Certificate of any event which with the giving of notice
or lapse of time or both would become a Servicer Termination Event under
Section 6.01.
SECTION 3.11. Annual Independent Accountants' Report. The Servicer shall
cause a firm of independent certified public accountants, which may also render
other services to the Servicer or its affiliates, to deliver to the Backup
Servicer and the Purchaser, within 120 days after the end of each fiscal year
(with the first such report being delivered no later than April 30, 1998), a
report addressed to the Board of Directors of the Servicer, the Backup Servicer
and the Purchaser to the effect that such firm has audited the books and
records of the Servicer and issued its report thereon and that (1) such agreed
upon procedures report was made in accordance with generally accepted auditing
standards and accordingly included such tests of the accounting records and
such other auditing procedures as such firm considered necessary in the
circumstances; (2) the firm is independent of the Servicer within the meaning
of the Code of Professional Ethics of the American Institute of Certified
Public Accountants; and (3) a review in accordance with agreed upon procedures
was made of three randomly selected Servicer's Certificates, including the
delinquency, default and loss statistics required to be specified therein and,
except as disclosed in the accountants' report, no exceptions or errors in the
Servicer's Certificates were found. In the event such firm requires the Backup
Servicer to agree to the procedures performed by such firm, the Purchaser shall
direct the Backup Servicer in writing to so agree; it being understood and
agreed that (x) the Backup Servicer shall notify the Purchaser of any such
requirement to agree and (y) the Backup Servicer shall be entitled to
conclusively rely on the written direction of the Purchaser with respect
thereto. The Backup Servicer shall be under no obligation or have any
liability in respect of the sufficiency, validity or correctness of such
procedures.
SECTION 3.12. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Paying
Agent, the Custodian, the Backup Servicer and the Purchaser reasonable access
to any and all documentation regarding the Receivables held by the Servicer.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the offices of the Servicer.
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SECTION 3.13. Monthly Tape. On or before the eighth Business Day, but in
no event later than the tenth calendar day, of each month, the Servicer shall
deliver or cause to be delivered to the Paying Agent, the Backup Servicer and
the Purchaser, a computer tape or a diskette (or any other form of electronic
transmission acceptable to the Purchaser, Paying Agent and Backup Servicer) in
a format acceptable to the Purchaser, Paying Agent and Backup Servicer
containing the information with respect to the Receivables as of the last day
of the preceding Collection Period and necessary for preparation of the
Servicer's Certificate for the immediately succeeding Determination Date and to
determine the application of payments received on the Receivables as provided
herein. The Backup Servicer shall use such tape or diskette (or other
electronic transmission acceptable to the Paying Agent, the Backup Servicer and
the Purchaser) to verify the mathematical accuracy of the Servicer's
Certificate delivered by the Servicer, and the Backup Servicer shall certify to
the Purchaser that it has verified the mathematical accuracy of the Servicer's
Certificate in accordance with this Section 3.13 and shall notify the Servicer
and the Purchaser of any discrepancies, in each case, on or before the third
Business Day following the related Determination Date. In the event that the
Backup Servicer reports any discrepancies, the Servicer and the Backup Servicer
shall attempt to reconcile such discrepancies prior to the related Distribution
Date, but in the absence of a reconciliation, the Servicer's Certificate shall
control for the purpose of calculations and distributions with respect to the
related Distribution Date. In the event that the Backup Servicer and the
Servicer are unable to reconcile discrepancies with respect to a Servicer's
Certificate by the related Distribution Date, the Servicer shall cause a firm
of nationally recognized independent certified public accountants, at the
Servicer's expense, to audit the Servicer's Certificate and, prior to the third
Business Day, but in no event later than the fifth calendar day, of the
following month, to reconcile the discrepancies. The effect, if any, of such
reconciliation shall be reflected in the Servicer's Certificate for the next
succeeding Determination Date. In addition, the Servicer shall, if so
requested by the Purchaser, deliver within 3 Business Days after demand
therefor its records relating to the Receivables and a computer tape or
diskette containing as of the close of business on the date of demand all of
the data maintained by the Servicer in computer format in connection with
servicing the Receivables. Other than the duties specifically set forth in
this Agreement, the Backup Servicer shall have no obligations hereunder,
including to supervise, verify or monitor the performance of the Servicer. The
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Backup Servicer shall have no liability for any actions taken or omitted by the
Servicer.
SECTION 3.14. Retention and Termination of Servicer. The Servicer hereby
covenants and agrees to act as Servicer under this Agreement for an initial
term commencing on the Closing Date and ending on June 30, 1997, which term
shall be extendible by the Purchaser on written notice for successive calendar
months ending on the last day of each such month (or pursuant to revocable
written standing instructions delivered from time to time to the Servicer, for
any specified number of months). Each such notice (including each notice
pursuant to standing instructions, which shall be deemed delivered at the end
of successive monthly terms for so long as such instructions are in effect) (a
"Servicer Extension Notice") shall be delivered by the Purchaser to the
Servicer with a copy to the Backup Servicer. The Servicer hereby agrees that,
as of the date hereof and upon its receipt of any such Servicer Extension
Notice, the Servicer shall be bound for the duration of the initial term or the
term covered by such Servicer Extension Notice to act as the Servicer, subject
to and in accordance with the other provisions of this Agreement. The Servicer
agrees that if as of the fifteenth day of the calendar month preceding the last
day of any such servicing term the Servicer shall not have received a Servicer
Extension Notice, the Servicer shall, within five days thereafter, give written
notice of such non-receipt to the Backup Servicer and the Purchaser.
ARTICLE IV
Distributions;
Statements to the Purchaser
SECTION 4.01. Lock-Box Account. The Servicer shall promptly after the
Closing Date send revised payment statements (which statements will indicate
(by notation specific to this transaction) that such payments relate to
Receivables owned by the Purchaser) to each Obligor pursuant to which payments
made by such Obligor after the Closing Date will be addressed to a Lock-Box
Account (the "Lock-Box Account") at LaSalle National Bank. All payments and
other proceeds of any type and from any source on or with respect to the
Receivables that are delivered to the Lock-Box Account, or otherwise received
by the Seller or the Servicer, shall be the property of the Purchaser.
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SECTION 4.02. Accounts. (a) The Servicer has established various
accounts in the name of the Paying Agent (the "Local Collection Accounts"), at
the locations identified in the Local Collection Account Processing Agreement
attached as Exhibit A hereto. Each Local Collection Account shall be
maintained as an Eligible Deposit Account and shall bear a designation clearly
indicating that the amounts deposited thereto and held therein are for the
benefit of the Purchaser, as provided in the Local Collection Account
Agreement. All payments on the Receivables not mailed by Obligors or any other
Person to the Lock-Box Account which are otherwise delivered to the Seller or
the Servicer shall be deposited on a daily basis into the applicable Local
Collection Account, from which they will be swept within two Business Days to
the Collection Account. Amounts on deposit in any Local Collection Account
shall not be invested.
(b)(i) On or prior to the Closing Date, the Servicer shall establish, or
cause to be established with the Paying Agent, an account in the name of the
Purchaser (the "Collection Account"), which shall be maintained as an Eligible
Deposit Account and shall bear a designation clearly indicating that the
amounts deposited thereto are held for the benefit of the Purchaser. The
Paying Agent shall cause any amounts deposited to the Lock-Box Account or to
any Local Collection Account on or with respect to the Receivables to be swept
into the Collection Account as promptly as possible, but in no event later than
the second Business Day following receipt thereof in the Local Collection
Accounts. The Seller, the Servicer and the Paying Agent shall follow the daily
operating procedures set forth in Schedule E hereto with respect to collections
on the Receivables.
(ii) Funds on deposit in the Collection Account shall be invested by
the Paying Agent in Eligible Investments selected in writing by the
Purchaser; provided that such selection shall not conflict with the last
two sentences of the following clause (iii). All such Eligible Investments
shall be held by the Paying Agent for the benefit of the Purchaser.
(iii) On each Payment Determination Date all interest and other
investment income (net of losses and investment expenses) on funds on
deposit in the Collection Account shall be deemed to constitute a portion
of the Interest Distribution Amount for the related Distribution Date.
Funds on deposit in the Collection Account shall be invested in Eligible
Investments that will mature not later than the Business Day immediately
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preceding the next Distribution Date; provided that such requirement shall
be deemed fulfilled for all Eligible Investments falling under paragraph
(d) of the definition thereof. Funds deposited in the Collection Account
on a day which immediately precedes a Distribution Date upon the maturity
of any Eligible Investments are not required to be invested overnight.
(iv) The Paying Agent shall not be held liable in any way by reason of
any insufficiency in the Collection Account resulting from any loss on an
Eligible Investment included therein, except for losses attributable to
the Paying Agent's failure to make payments on such Eligible Investments
issued by the Paying Agent, in its commercial capacity as principal
obligor and not as Paying Agent, in accordance with their terms.
(c)(i) The Purchaser shall possess all right, title and interest in all
funds in respect of the Receivables received in the Local Post Office Boxes and
all funds on deposit from time to time in the Local Collection Accounts and the
Collection Account and in all proceeds thereof (including all income thereon),
subject to the Local Collection Account Agreement. The Local Post Office
Boxes, the Local Collection Accounts and the Collection Account shall be under
the sole dominion and control of the Paying Agent on behalf of the Purchaser,
subject to the Local Collection Account Agreement. If, at any time, any Local
Collection Account or the Collection Account ceases to be an Eligible Deposit
Account, the Paying Agent, on the Purchaser's behalf, shall within 10 Business
Days (or such longer period, not to exceed 30 calendar days, as to which the
Purchaser may consent) establish a new Local Collection Account or Collection
Account, as applicable, as an Eligible Deposit Account and shall transfer any
cash and/or any investments from the account that is no longer an Eligible
Deposit Account to the new Local Collection Account or Collection Account.
(ii) With respect to the Collection Account Property, Paying Agent
agrees that:
(A) any Collection Account Property that is held in deposit
accounts shall be held by the Paying Agent solely in the Eligible
Deposit Accounts, subject to the last sentence of Section 4.02(c)(i);
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(B) any Collection Account Property that constitutes Physical
Property shall be delivered to the Paying Agent in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Paying Agent or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for the Paying Agent;
(C) any Collection Account Property that is a book-entry security
held through the Federal Reserve System pursuant to federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the Paying Agent,
pending maturity or disposition, through continued book-entry
registration of such Collection Account Property as described in such
paragraph; and
(D) any Collection Account Property that is an "uncertificated
security" under Article VIII of the UCC and that is not governed by
clause (C) above shall be delivered to the Paying Agent in accordance
with paragraph (c) of the definition of "Delivery" and shall be
maintained by the Paying Agent, pending maturity or disposition,
through continued registration of the Paying Agent's (or its
nominee's) ownership of such security.
(iii) with the prior approval of the Purchaser, the Servicer shall
have the power to instruct the Paying Agent to make withdrawals and
payments from the Collection Account for the purpose of permitting the
Servicer to carry out its respective duties hereunder.
(iv) It is expressly agreed to by the parties hereto that in no event
shall the Paying Agent have any liability in respect of the actions made by
any other Person in respect of the method of "Delivery" as required by
subsection (ii) above.
SECTION 4.03. Application of Collections. All amounts received with
respect to the Receivables during each Collection Period shall be applied by
the Servicer as follows:
With respect to each Simple Interest Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor shall be applied to
interest and principal in accordance with the Simple Interest Method. With
respect to each Precomputed
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Receivable (other than a Purchased Receivable), payments by or on behalf of the
Obligor shall be applied, first, to the Obligor's scheduled payment, with any
excess amounts being applied to future scheduled payments of such Obligor.
SECTION 4.04. Purchase Amounts. The Servicer and the Seller shall
deposit or cause to be deposited in the Collection Account, on or prior to each
Determination Date, the aggregate Purchase Amount with respect to Purchased
Receivables and the Servicer shall deposit therein all amounts to be paid under
Section 3.07.
SECTION 4.05. Distributions. (a) On each Payment Determination Date,
the Servicer shall calculate all amounts required to be distributed and on each
Distribution Date, the Servicer shall instruct the Paying Agent in writing
(based on the information contained in the Servicer's Certificate delivered on
the related Determination Date pursuant to Section 3.09) to make the following
payments and distributions by 11:00 a.m. (New York City time) in the following
order and priority:
(1) to the Servicer, from the Interest Distribution Amount, the
Servicing Fee (and all unpaid Servicing Fees from prior Collection
Periods);
(2) to the Backup Servicer, the Paying Agent and the Custodian,
from the Interest Distribution Amount remaining after the application
of clause (1) above, any accrued and unpaid fees and expenses
(including legal fees and expenses) due, but only to the extent not
previously paid by the Servicer; and
(3) to the Purchaser, the portion, if any, of the Total
Distribution Amount remaining after the application of clauses (1) and
(2) above.
SECTION 4.06. Statements to the Purchaser. On each Distribution Date,
the Servicer shall provide to the Purchaser, a statement substantially in the
form of Exhibit B, setting forth at least the following information:
(i) the amount of such distribution allocable to principal;
(ii) the amount of such distribution allocable to interest;
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(iii) the Pool Balance as of the close of business on the last day of
the related Collection Period, after giving effect to payments allocated to
principal reported under clause (i) above;
(iv) the amount of the Servicing Fee paid to the Servicer with respect
to the related Collection Period, and the amount of fees paid to each of
the Backup Servicer, the Paying Agent and the Custodian with respect to
related Collection Period;
(v) the aggregate amounts of Realized Losses, if any, and Cram Down
Losses, if any, separately identified, with respect to the related
Collection Period;
(vi) the aggregate principal balance of all Receivables that became
Liquidated Receivables or Purchased Receivables during the related
Collection Period;
(vii) the aggregate principal balance of Receivables that are 30 to 59
days, 60 to 89 days or 90 days or more delinquent;
(viii) the aggregate Purchase Amounts for Receivables, if any, that
were purchased during or with respect to such Collection Period; and
(ix) the following information regarding Receivables which have been
extended pursuant to Sections 3.02(b) or (c): (A) identification of which
Receivables have been so extended, (B) the aggregate number of such
Receivables, (C) the aggregate outstanding principal balance of such
Receivables, (D) and the percentage of all Receivables represented by such
Receivables (measured by outstanding principal balance).
ARTICLE V
The Servicer
SECTION 5.01. Representations of Servicer. The Servicer makes the
following representations on which the Purchaser is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of this Agreement and as of the Closing Date.
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(a) Organization and Good Standing. The Servicer is duly organized
and validly existing as a corporation in good standing under the laws of
the state of its incorporation, with the corporate power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, the corporate power, authority and legal right to
acquire, own, sell and service the Receivables and to hold the Receivable
Files as custodian.
(b) Due Qualification. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing
of the Receivables as required by this Agreement) shall require such
qualifications.
(c) 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 respective terms; and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which it is a party have been duly authorized by the Servicer by all
necessary corporate action;
(d) Binding Obligation. This Agreement and the Basic Documents to
which it is a party constitute legal, valid and binding obligations of the
Servicer, enforceable against the Servicer in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the Basic Documents to which it is a party and the
fulfillment of their respective terms shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the articles of
incorporation or bylaws of the Servicer, or any indenture, agreement,
mortgage, deed of trust, or other instrument to
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which the Servicer is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust, or
other instrument other than this Agreement and the Basic Documents, or
violate any law, 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 any of its properties;
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the Servicer
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the Servicer or
its properties: (i) asserting the invalidity of this Agreement or any of
the Basic Documents; (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the Basic Documents;
(iii) seeking any determination or ruling that might materially and
adversely affect the authority of the Servicer to perform its obligations
under, or the validity or enforceability of, this Agreement or any of the
Basic Documents.
(g) No Insolvent Obligors. As of the related Cutoff Date, no Obligor
on a Receivable is shown on the Receivable Files as the subject of a
bankruptcy proceeding.
SECTION 5.02. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer and the representations made by the Servicer under
this Agreement:
(a) The Servicer shall indemnify, defend and hold harmless the
Purchaser, Backup Servicer, the Paying Agent, the Custodian and their
respective officers, directors, employees and agents 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
Purchaser, Backup Servicer, the Paying Agent, the Custodian and their
respective officers, directors, agents and employees from and against any
taxes that may at any time be
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asserted against any of such parties with respect to the transactions
contemplated in this Agreement, including any sales, gross receipts,
tangible or intangible personal property, privilege or license taxes (but
not including any federal or other income taxes, including franchise taxes
asserted with respect to, and as of the date of, the transfer of the
Receivables to the Purchaser), and costs and expenses in defending against
the same.
(c) The Servicer shall indemnify, defend and hold harmless the
Purchaser, Backup Servicer, the Paying Agent, the Custodian and their
respective officers, directors, employees and agents, 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 breach of this
Agreement or the negligence, misfeasance or bad faith of the Servicer in
the performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.
For purposes of this Section, in the event of the termination of the
rights and obligations of First Merchants (or any successor thereto pursuant to
Section 5.03) as Servicer pursuant to Section 6.02, or a resignation by such
Servicer pursuant to this Agreement, such Servicer shall be deemed to be the
Servicer pending appointment of a successor Servicer pursuant to Section 6.03.
Indemnification under this Section shall survive the resignation or
removal of any indemnifying party or the termination of this Agreement 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 and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Servicer, without interest.
SECTION 5.03. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. (a) The Servicer shall not merge or consolidate
with any other Person, convey, transfer or lease substantially all its assets
as an entirety to another Person, or permit any other Person to become the
successor to the Servicer's business unless, after the merger, consolidation,
conveyance, transfer, lease, or succession, the successor or surviving entity
shall be capable of fulfilling the duties of the Servicer contained
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in this Agreement and shall be reasonably acceptable to the Purchaser. Any
Person (i) into which the Servicer may be merged or consolidated, (ii)
resulting from any merger or consolidation to which the Servicer shall be a
party, (iii) that acquires by conveyance, transfer or lease substantially all
of the assets of the Servicer or (iv) succeeding to the business of the
Servicer, which Person shall execute an agreement of assumption to perform
every obligation of the Servicer under this Agreement, shall 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, consolidation or succession
pursuant to this Section 5.03(a) to the Purchaser, the Custodian and the Paying
Agent. Notwithstanding the foregoing, the Servicer shall not merge or
consolidate with any other Person or permit any other Person to become a
successor to the Servicer's business unless (i) immediately after giving effect
to such transaction, no representation or warranty made pursuant to Section
5.01 shall have been breached (for purposes hereof, such representations and
warranties shall speak as of the date of the consummation of such transaction)
and no event that, after notice or lapse of time or both, would become a
Servicer Termination Event shall have occurred and be continuing, (ii) the
Servicer shall have delivered to the Purchaser an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 5.03(a) and that all
conditions precedent provided for in this Agreement relating to such
transaction have been complied with, and (iii) the Servicer shall have
delivered to the Purchaser an Opinion of Counsel stating that either (A) all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the interest
of the Purchaser in the Receivables and reciting the details of such filings or
(B) no such action shall be necessary to preserve and protect such interest.
(b) Any person (i) into which the Backup Servicer or the Paying Agent may
be merged or consolidated, (ii) resulting from any merger or consolidation to
which the Backup Servicer or the Paying Agent shall be a party, (iii) which
acquires by conveyance, transfer or lease substantially all of the assets of
the Backup Servicer or the Paying Agent or (iv) succeeding to the business of
the Backup Servicer or the Paying Agent which Person shall execute an agreement
of assumption to perform every obligation of the Backup Servicer or the Paying
Agent, as the case may be, under this
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Agreement, shall be the successor to the Backup Servicer or the Paying Agent,
as the case may be, under this Agreement without the execution or filing of any
paper or any further act on the part of any the parties to this Agreement.
SECTION 5.04. Limitation on Liability of Servicer, Backup Servicer and
Others. (a) None of the Servicer, the Backup Servicer, the Paying Agent or any
of their respective directors, officers, employees or agents shall be under any
liability to the Purchaser except as provided in this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement; provided, however that this provision shall not protect the
Servicer, the Backup Servicer, the Paying Agent or any such person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence in the performance of
duties. The Servicer, the Backup Servicer, the Paying Agent and any director,
officer, employee or agent of the Servicer or Backup Servicer may conclusively
rely in good faith on the written advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement.
(b) The Backup Servicer and the Paying Agent shall not be liable for any
obligation of the Servicer contained in this Agreement or for any errors of the
Servicer contained in any computer tape, certificate or other data or document
delivered to the Backup Servicer hereunder or on which the Backup Servicer or
the Paying Agent, as the case may be, must rely in order to preform its
obligations and the Purchaser shall look only to the Servicer to perform such
obligations. The Backup Servicer and the Paying Agent shall have no
responsibility and shall not be in default hereunder or incur any liability for
any failure, error, malfunction or any delay in carrying out any of its
respective duties under this Agreement if such failure or delay results from
the Backup Servicer or the Paying Agent, as the case may be, acting in
accordance with information prepared or supplied by a Person other than the
Backup Servicer or the Paying Agent, as the case may be, or the failure of any
such other Person to prepare or provide such information. The Backup Servicer
and the Paying Agent shall have no responsibility, shall not be in default and
shall incur no liability for (i) any act or failure to act of any third party,
including the Servicer or the Purchaser, (ii) any inaccuracy or omission in a
notice or communication received by the Backup Servicer or the Paying Agent, as
the case may be, from any third
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party, (iii) the invalidity or unenforceability of any Receivable under
applicable law, (iv) the breach or inaccuracy of any representation or warranty
made with respect to any Receivable, or (v) the acts or omissions of any
successor Backup Servicer or successor Paying Agent, as the case may be.
(c) The parties expressly acknowledge and consent to Xxxxxx Trust and
Savings Bank simultaneously acting in the capacity of Backup Servicer or
successor Servicer and as Paying Agent under this Agreement. Xxxxxx Trust and
Savings Bank may, in such capacities, discharge its separate functions fully,
without hinderance or regard to conflict of interest principles, duty of
loyalty principles or other breach of fiduciary duties to the extent that any
such conflict or breach arises from the performance by Xxxxxx Trust and Savings
Bank of express duties set forth in this Agreement in any of such capacities.
SECTION 5.05. Appointment of Subservicer. With the prior written consent
of the Purchaser, the Servicer may appoint a subservicer to perform all or any
portion of its obligations as Servicer hereunder; provided, however that the
Servicer shall remain obligated and be liable to the Purchaser for the
servicing and administering of the Receivables in accordance with the
provisions hereof without diminution of such obligation and liability by virtue
of the appointment of such subservicer and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing and
administering the Receivables. The fees and expenses of any subservicer shall
be as agreed between the Servicer and such subservicer from time to time, and
neither the Backup Servicer nor the Purchaser shall have any responsibility
therefor.
SECTION 5.06. Servicer Not to Resign; Resignation of the Backup Servicer
and the Paying Agent. (a) Subject to the provisions of Section 5.03(a) and
5.06(d), the Servicer shall not resign from the obligations and duties imposed
on it by this Agreement as Servicer except upon a determination that the
performance of its duties under this Agreement shall no longer be permissible
under applicable law.
(b) Subject to the provisions of Section 6.03(b) and 5.06(d), the Backup
Servicer may resign from the obligations and duties as Backup Servicer imposed
on it by this Agreement (i) upon a determination that the performance of its
duties under this Agreement shall no longer be permissible under applicable law
or
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(ii) with the prior written consent of the Purchaser. The Backup Servicer
shall be paid all fees owed to it hereunder upon such resignation.
(c) The Paying Agent may resign from its obligations and duties as Paying
Agent imposed on it by this Agreement (i) upon a determination that the
performance of its duties under this Agreement shall no longer be permissible
under applicable law or (ii) with the prior written consent of Purchaser. The
Paying Agent shall be paid all fees owed to it hereunder upon such resignation.
(d) Notice of any determination that the performance by any of the
Servicer, the Backup Servicer or the Paying Agent of its duties hereunder is no
longer permitted under applicable law shall be communicated to the Purchaser 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 by the Servicer, Backup Servicer or the Paying Agent, as applicable,
to the Purchaser concurrently with or promptly after such notice. No
resignation of the Servicer shall become effective until the Backup Servicer or
a successor Servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Section 6.03. No resignation of the Backup
Servicer or the Paying Agent shall become effective until an entity acceptable
to the Purchaser shall have assumed the responsibilities and obligations of the
Backup Servicer or the Paying Agent, as applicable.
ARTICLE VI
Default
SECTION 6.01. Servicer Termination Events. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(a) any failure by the Servicer to deposit into any of the Local
Collection Account, any lock-box account specifically used (with the consent of
the Purchaser) for receipt of payments in respect of the Receivables, or the
Collection Account any proceeds, or payment required to be so delivered under
the terms of this Agreement that continues unremedied for a period of two
Business Days (one Business Day with respect to payments of Purchase Amounts)
after such payment is required to be deposited;
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(b) failure by the Servicer to deliver to the Purchaser and the Paying
Agent the Servicer's Certificate by the applicable Determination Date, or to
observe any covenant or agreement set forth in Section 3.06;
(c) failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement,
which failure (i) materially and adversely affects the rights of the Purchaser
and (ii) continues unremedied for a period of 30 days after knowledge thereof
by the Servicer or after the date on which written notice of such failure
requiring the same to be remedied shall have been given to the Servicer by the
Purchaser;
(d) any representation, warranty or statement of the Servicer made in this
Agreement or any certificate, report or other writing delivered pursuant hereto
shall prove to be incorrect in any material respect as of the time when the
same shall have been made, and the incorrectness of such representation,
warranty or statement has a material adverse effect on the Purchaser and,
within 30 days after written notice thereof shall have been given to the
Servicer by the Purchaser, the circumstances or condition in respect of which
such representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured;
(e) the occurrence of an Insolvency Event with respect to the Servicer or,
so long as First Merchants is the Servicer, the Seller;
(f) any failure by the Purchaser to have delivered a Servicer Extension
Notice pursuant to Section 3.14 at least 5 Business Days prior to the
expiration of any servicing term; or
(g) the Servicer is terminated as servicer with respect to any trust that
has issued one or more classes of asset backed securities.
SECTION 6.02. Consequences of a Servicer Termination Event. If a Servicer
Termination Event shall occur and be continuing, the Purchaser, by notice given
in writing to the Servicer, 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 or upon non-extension of the term of the Servicer pursuant
to Section 3.14, all authority, power, obligations and responsibilities of the
Servicer under this Agreement automatically
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shall pass to, be vested in and become obligations and responsibilities of the
Backup Servicer (or such other successor Servicer or successor Backup Servicer
appointed by the Purchaser); provided, however that the successor Servicer
shall have no liability with respect to any obligation that was required to be
performed by the terminated Servicer prior to the date that the successor
Servicer becomes the Servicer or any claim of a third party based on any
alleged action or inaction of the terminated Servicer. The successor Servicer
is authorized and empowered by this Agreement to execute and deliver, on behalf
of the terminated 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 to show the Purchaser as lienholder or
secured party on the related certificates of title of the Financed Vehicles or
otherwise. The terminated Servicer at its own cost agrees to cooperate with
the successor Servicer in effecting the termination of the responsibilities and
rights of the terminated Servicer under this Agreement, including the transfer
to the successor Servicer for administration by it of all money and property
held by the Servicer with respect to the Receivables and the delivery to the
successor Servicer of all Receivable Files and other records relating to the
Receivables and a computer tape in readable form as of the most recent Business
Day containing all information necessary or advisable to enable the successor
Servicer to service the Receivables.
SECTION 6.03. Appointment of Successor. (a) On and after the time the
Servicer receives a notice of termination pursuant to Section 6.02, upon
non-extension of the servicing term as referred to in Section 3.14, or upon the
resignation of the Servicer pursuant to Section 5.06, the Backup Servicer
(unless the Purchaser shall have exercised its option pursuant to Section
6.03(b) to appoint an alternative successor Servicer) shall be the successor in
all respects to the Servicer in its capacity as Servicer under this Agreement
and shall be subject to all the rights, responsibilities, restrictions, duties,
liabilities, and termination provisions relating to the Servicer under this
Agreement, except as otherwise stated herein. The Purchaser and such successor
Servicer shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. If a successor Servicer is acting
as Servicer hereunder, it shall be subject to term-to-term servicing as
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referred to in Section 3.14 and to termination under Section 6.02 upon the
occurrence of any Servicer Termination Event applicable to it as Servicer.
(b) The Purchaser may exercise at any time its right to appoint as Backup
Servicer or as successor to the Servicer a Person other than the Person serving
as Backup Servicer at the time, and shall have no liability to the Person then
serving as Backup Servicer, or any other Person if it does so. Pending
appointment pursuant to the preceding sentence, the Backup Servicer shall act
as a successor Servicer unless it is legally unable to do so, in which event
the outgoing Servicer shall continue to act as Servicer until a successor has
been appointed and accepted such appointment. Subject to Section 5.06, no
provision of this Agreement shall be construed as relieving the Backup Servicer
of its obligation to succeed as successor Servicer upon the termination of the
Servicer pursuant to Section 6.02, the resignation of the Servicer pursuant to
Section 5.06 or the non-extension of the servicing term of the Servicer
pursuant to Section 3.14. If upon the termination of the Servicer pursuant to
Section 6.02 or the resignation of the Servicer pursuant to Section 5.06, the
Purchaser appoints a successor Servicer other than the Backup Servicer, the
Backup Servicer shall not be relieved of its duties as Backup Servicer
hereunder.
(c) Upon appointment, the successor Servicer (including the Backup
Servicer acting as 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 and shall be entitled to the Servicing Fee and all the
rights granted to the predecessor Servicer by the terms and provisions of this
Agreement; provided that such successor Servicer shall have no liability for
the acts or omissions of any predecessor Servicer.
SECTION 6.04. Waiver of Past Defaults. The Purchaser may waive in
writing any default by the Servicer in the performance of its obligations
hereunder and its consequences. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereto.
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ARTICLE VII
Miscellaneous
SECTION 7.01. Amendment. This Agreement may only be amended in writing by
the Purchaser, the Servicer, the Backup Servicer and the Paying Agent.
SECTION 7.02. Protection of Title. (a) The Servicer 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
Purchaser in the Receivables and in the proceeds thereof. The Servicer shall
deliver (or cause to be delivered) to the Purchaser file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as available
following such filing.
(b) The Servicer shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9 402(7) of the UCC, unless
it shall have given the Purchaser and the Backup Servicer at least 60 days'
prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Servicer shall give the Purchaser and the Backup Servicer at least
60 days' prior written notice of any relocation of its principal executive
office, and if, as a result of such relocation, the applicable provisions of
the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement, the
Servicer 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
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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 sale under this Agreement of the Receivables, the Servicer's
master computer records (including any backup archives and Norwest systems)
that refer to a Receivable shall indicate clearly the interest of the Purchaser
in such Receivable and that such Receivable is owned by the Purchaser.
Indication of the Purchaser's interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the related
Receivable shall have been paid in full or repurchased (or sold by the
Purchaser).
(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 printouts (including any restored from backup archives) that, if
they shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has been sold and is owned by the Purchaser.
(g) The Servicer shall permit the Purchaser and the Backup Servicer and
their agents at any time during normal business hours to inspect, audit and
make copies of and abstracts from the Servicer's records regarding any
Receivable.
(h) Upon the Purchaser's request, the Servicer shall furnish to the
Purchaser, within five Business Days, a list of all Receivables (by contract
number and name of Obligor) the documents relating to which are then held on
behalf of the Purchaser, together with a reconciliation of such list to the
Schedule of Receivables and to each of the Servicer's Certificates furnished
before such request indicating removal of Receivables from the pool.
(i) The Servicer shall deliver to the Purchaser:
(1) promptly after the execution and delivery of this Agreement and
each amendment hereto, an Opinion of Counsel stating that, in the
opinion of such counsel, either (A) all
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financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Purchaser 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) no such action shall be necessary to preserve and protect such
interest; and
(2) within 90 days after the beginning of each calendar year beginning
with the first calendar year beginning more than three months after the
Cutoff Date, an Opinion of Counsel, dated as of a date during such 90-day
period, stating that, in the opinion of such counsel, either (A) all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Purchaser 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) no such action shall be necessary to preserve and protect such
interest.
Each Opinion of Counsel referred to in clause (1) or (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.
SECTION 7.03. Notices. All demands, notices, communications and
instructions upon or to the Purchaser and the Servicer under this Agreement
shall be in writing, personally delivered 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, to First Merchants Acceptance Corporation, 000
Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxx; (b) in the case of the Purchaser, to Greenwich Capital Financial
Products, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxx Xxxx (with a copy to the General Counsel); or, as to each of the
foregoing, at such other address as shall be designated by written notice to
the other parties; (c) in the case of the Paying Agent and the Backup Servicer,
Xxxxxx Trust and Savings Bank, 12th Floor, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx Xxxxx.
SECTION 7.04. Assignment by the Servicer. Notwithstanding anything to
the contrary contained herein, except as provided in the remainder of this
Section, as provided in Section 5.03 herein and as provided in the provisions
of this Agreement concerning the
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resignation of the Servicer, this Agreement may not be assigned by the
Servicer.
SECTION 7.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Purchaser, the Paying Agent, the
Backup Servicer and the Servicer, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 7.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 7.07. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 7.08. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 7.09. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
Purchaser
By: _____________________________________
Name:
Title:
FIRST MERCHANTS ACCEPTANCE
CORPORATION, Servicer
By: _____________________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
Paying Agent and Backup Servicer
By: _____________________________________
Name:
Title:
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SCHEDULE A
Schedule of Receivables
[To be Delivered to the Purchaser at Closing]
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SCHEDULE B
Location of Receivable Files
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SCHEDULE C
Receivable Files
1. All documents obtained or created in connection with the credit
investigation.
2. All evidence of borrower verification of the Receivable.
3. All Obligor records including without limitation (i) file copy of
Receivable; (ii) copy Dealer assignment (if applicable); (iii) warranty
copy; (iv) credit life insurance policy; (v) proof of auto insurance; (vi)
xxxx of sale; (vii) buyer's guide (as is form); (viii) odometer statement;
(ix) title application; (x) contract verification sheet; (xi)
participation worksheet; (xii) checklist; (xiii) underwriting worksheet;
(xiv) approval; (xv) purchase trans printout; (xvi) original application;
(xvii) credit investigation; (xviii) credit bureau reports; (xix) check
stubs; and (xx) copies of drivers license reference sheets.
4. Original document envelope together with all documents maintained
therein.
5. All insurance verification forms and documents relating to insurance
follow-ups and all mail received from insurance.
6. Any and all other documents that the Servicer shall keep on file in
accordance with its customary procedures relating to a Receivable, an
Obligor or a Financed Vehicle.
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SCHEDULE D
Deferment Procedure
1. Deferments require manager approval. Supervisors and team leaders
are not authorized at this time.
2. The customer can be no more than 30 days delinquent.
p It is not the intent of this procedure to imply an all
or nothing philosophy on 60+ accounts. The correct approach
to take is to get a positive cash flow while negotiating for
up-to-date arrangements.
3. Customers are not eligible unless they have made a minimum of 4 full
contractual payments since the account opened.
4. Only 2 deferments can be granted in a 12 month period with a maximum
of 4 over the life of the contract. This must be verified by
reviewing either the transaction history screen or the archived
history.
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SCHEDULE E
Operating Procedures
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EXHIBIT A
LOCAL COLLECTION ACCOUNT PROCESSING AGREEMENT
A-1
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EXHIBIT B
First Merchants Acceptance Corporation Distribution Date Statement to Purchaser
Principal Distribution Amount
Interest Distribution Amount
Paying Agent Fee
Custodian Fee
Pool Balance
Pool Factor
Servicing Fee
Backup Servicer Fee
Realized Losses
Cram Down Losses
Liquidated Receivables or Purchased Receivables
Purchase Amounts
Principal Balance of Receivables that were delinquent:
30 to 59 days
60 to 89 days
90 days or more
B-1
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EXHIBIT C
Form of Servicer's Certificate
First Merchants Acceptance Corporation
Monthly Servicing Report
[Date]
Distribution Date:
I. Original Deal Parameter Inputs
(A) Initial Pool Balance
(B) Servicing Fee Rate
(C) Original Weighted Average Coupon (WAC)
(D) Original Weighted Average Remaining Term (WAM)
(E) Number of Contracts
II. Inputs from Previous Monthly Servicer Reports
(Not Applicable for First Monthly Report)
(A) Current Pool Balance
(B) Pool Factor
(C) Weighted Average Coupon of Remaining Portfolio (WAC)
(D) Weighted Average Remaining Term of Remaining Portfolio (WAM)
(E) Number of Contracts
III. Inputs from the System
(A) Simple Interest Loans
i. Principal Payments Received
ii. Interest Payments Received
iii. Repurchased Receivables
iv. Late Fees
(B) Liquidated Contracts
x. Xxxxx Principal Balance of Liquidated Receivables
ii. Net Liquidation Proceeds & Recoveries Received during the
Collection Period
(C) Weighted Average Coupon of Remaining Portfolio (WAC)
(D) Weighted Average Remaining Maturity of Remaining Portfolio (WAM)
(E) Remaining Number of Contracts
(F) Receivable Balance of Vehicles in Repossession During the Collection
Period
(G) Number of Vehicles in Repossession During the Collection Period
(H) Aggregate Net Losses for Collection Period
(I) Delinquent Contracts
Contracts Amount
--------- ------
i. 31-60 Days Delinquent
ii. 61 Days or More Delinquent
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IV. Inputs Derived from Other Sources
A. Collection Account Investment Income
---------------
B. Collections
(1) Total Principal Payments Received
(a) Principal Payments on Receivables (includes Partial and Full
Prepayments)
(b) Repurchased Receivables
(c) Cram Down Loss
(2) Interest Payments Received
C. Total Distribution Amount
(1) Total Distribution Amount
(2) Interest Distribution Amount
(3) Regular Principal Distribution Amount
D. Liquidated Receivables, Net (includes repos repurchased in
October)
(1) Gross Principal Balance of Liquidated Receivables
(2) Net Liquidation Proceeds & Recoveries Received during the
Collection Period
(3) Liquidated Receivables, Net
E. Monthly Distributions
(1) Principal Distribution Amount
(a) Principal Payments on Receivables
(b) Repurchased Receivables
(c) Cram Down Loss
(2) Required Distributions
(a) Servicing Fee (Includes late fees collected)
(b) Fees Paid to the Paying Agent, Custodian and the Backup
Servicer
F. Pool Balances and Portfolio Information
Beginning End
of Period of Period
--------- ----------
(1) Total Pool Balance
(2) Total Pool Factor
(5) Remaining
Overcollateralization
Amount
(6) Weighted Average
Coupon
(7) Weighted Average
Remaining Maturity
(8) Remaining Number
of Contracts
G. Net Loss and Delinquency Activities
(1) Net Losses for the Collection Period (including Cram Down)
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(2) Liquidated Receivables for the Collection Period
(3) Cumulative Net Losses
(4) Delinquent and Repossessed Receivables
(a) 60 Days Delinquent (Receivables Balance)
(b) 60 Days Delinquent (Number of Receivables)
(c) 61 Days or More (Receivables Balance)
(d) 91 Days or More (Number of Receivables)
(e) Receivables Balance of Vehicles in
Repossession During the Monthly Period
(f) Number of Vehicles in Repossession During the Collection
Period
H. Aggregate extensions and deferrals
I. Pool Balance at the end of the related Collection Period:
J. Outstanding Pool Balance:
Pool Factor:
K. Aggregate Purchase Amounts for Collection Period:
L. Aggregate Amount of Realized Losses for the Collection Period:
C-3
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EXHIBIT D
Custodial Agreement
C-4
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EXHIBIT E
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, pursuant to Section 3.06(f) of a certain
Servicing Agreement dated June 17, 1997, herein termed the "Servicing
Agreement", among FIRST MERCHANTS ACCEPTANCE CORPORATION, a Delaware
corporation herein termed the "Servicer", GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., a Delaware corporation herein termed the "Attorney", and XXXXXX TRUST AND
SAVINGS BANK, an Illinois banking corporation, the undersigned Servicer does
hereby constitute and appoint the Attorney, its successors and assigns, as the
true and lawful attorney-in-fact of the Servicer and with full power by an
instrument in writing to appoint a substitute or substitutes, to demand, reduce
to possession, collect, receive, receipt for, endorse, compromise, settle or
assign without recourse any and all indebtedness, notes, commercial paper,
promises to pay, retail installment sale contracts, chattel paper, instruments,
choses in action and other obligations described in Schedule "A" to the
Servicing Agreement, herein termed the "Receivables", together with all monies
due or to become due under said Receivables, and any and all claims, choses in
action, and rights and causes of action relating thereto, including any and all
real estate and personal property, security instruments and insurance policies
held as security for said Receivables, and all other property of every kind
relating thereto; to cancel or release the Receivables and release any
security, in whole or in part and in connection therewith to execute,
acknowledge or handle proper discharges, releases, satisfactions, certificates
of title, other lien certificates or other instruments in writing which may
become necessary in order to carry the foregoing powers into effect, the
Servicer hereby ratifying and confirming all acts and things lawfully and
reasonably done by the Attorney or its substitute or substitutes in pursuance
of the authority herein granted.
IN WITNESS WHEREOF, the Servicer has executed this instrument 16th day of
June, 1997.
Attest: FIRST MERCHANTS ACCEPTANCE
CORPORATION
__________________________ By:________________________
Its:_____________________ Secretary Its:_______________________ President
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