EXHIBIT 10.3
EXECUTION COPY
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CUSTODIAN AGREEMENT
among
BAY VIEW ACCEPTANCE CORPORATION,
as Custodian,
and
BAY VIEW AUTO RECEIVABLES OWNER TRUST,
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee
Dated as of June 5, 2003
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THIS CUSTODIAN AGREEMENT, dated as of June 5, 2003, is made with respect
to the issuance of Notes by BAY VIEW AUTO RECEIVABLES OWNER TRUST (the
"Issuer"), and is among the Issuer, BAY VIEW ACCEPTANCE CORPORATION, a Nevada
corporation ("Bay View Acceptance") as custodian (in such capacity, the
"Custodian") and JPMORGAN CHASE BANK, a New York banking corporation
("JPMorgan"), as indenture trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, Bay View Acceptance and Bay View Receivables Corporation (the
"Depositor") have entered into a Contribution Agreement dated as of the date
hereof (the "Contribution Agreement"), pursuant to which Bay View Acceptance has
contributed, transferred and assigned to the Depositor all of its right, title
and interest in and to the Initial Receivables and related Contributed Assets
and will sell, transfer and assign to the Depositor on the applicable Funding
Date all of its right, title and interest in and to the related Subsequent
Receivables and related Contributed Assets;
WHEREAS, the Issuer, Bay View Acceptance, as Servicer (the "Servicer"),
the Depositor, JPMorgan as Indenture Trustee and Systems & Services
Technologies, Inc., as Backup Servicer, have entered into a Sale and Servicing
Agreement, dated as of the date hereof (the "Sale and Servicing Agreement"),
pursuant to which the Depositor has sold, transferred and assigned to the Issuer
all of the Depositor's right, title and interest in and to the Initial
Receivables and related Deposited Assets and will transfer and assign to the
Issuer on the applicable Funding Date all of the Depositor's right, title and
interest in and to the related Subsequent Receivables and related Deposited
Assets;
WHEREAS, in connection with such sales, transfers and assignments, Bay
View Acceptance and the Depositor have made certain representations and
warranties regarding the Custodian Files, upon which the Indenture Trustee has
relied in accepting the Grant of the Trust Estate under the Indenture; and
WHEREAS, the Servicer desires that the Indenture Trustee appoint the
Custodian to hold the Custodian Files as the custodian on behalf of the
Indenture Trustee;
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Definitions. Terms not defined in this Agreement shall have the
respective meanings assigned to them in the Sale and Servicing Agreement or, if
not identified therein, in the Indenture, or if not identified therein, in the
Contribution Agreement.
Section 2. Appointment of Custodian; Acknowledgement of Receipt. Subject
to the terms and conditions hereof, the Indenture Trustee hereby revocably
appoints the Custodian, and the Custodian hereby accepts such appointment, as
custodian and bailee to act exclusively on behalf of the Indenture Trustee for
the benefit of the Noteholders to maintain custody of the Custodian Files
relating to the Receivables and other related assets from time to time pledged
to
Signature Page to Custodian Agreement
the Indenture Trustee as part of the Trust Estate. In performing its duties
hereunder, the Custodian agrees to act with reasonable care, using that degree
of skill and attention that a commercial bank acting in the capacity of a
custodian would exercise with respect to files relating to comparable automotive
or other receivables that it services or holds for itself or others. The
Custodian hereby with respect to the Initial Receivables and related Deposited
Assets and with respect to any Subsequent Receivables and the related Deposited
Assets as of the applicable Funding Date, acknowledges receipt of the Custodian
File for each Receivable listed in the Schedule of Receivables attached as
Schedule I to the Sale and Servicing Agreement and each applicable Assignment,
subject to any exceptions noted on the applicable Certification (as defined
below), related to the Closing Date or such Funding Date, as applicable. The
Custodian acknowledges that it is holding the Custodian Files on behalf of and
for the benefit of the Indenture Trustee, and if the Custodian is not Bay View
Acceptance, to perfect the absolute assignment and transfer of the Receivables
and related parts of the Trust Estate from each of the Contributor and the
Depositor and to perfect the grant of a security interest in the Receivables and
the related parts of the Trust Estate by the Issuer to the Indenture Trustee.
The Custodian shall not assign, transfer, pledge or grant a security interest in
any other person or entity to perform or carry out any of its duties,
responsibilities or obligations under this Agreement. Any act or instrument
purporting to effect any such assignment, transfer, pledge, grant, declaration
or appointment shall be void.
Section 3. Delivery of Custodian Files. Except as specifically noted in an
exception report delivered to the Indenture Trustee, the Custodian hereby
certifies that it has received as custodian for, and bailee of the Indenture
Trustee for the benefit of the Noteholders, the following documents pertaining
to each of the Receivables identified in a Schedule of Receivables for the
initial transfer and each subsequent transfer, a copy of which Schedule of
Receivables shall be provided to the Custodian:
(a) a fully executed original of the related retail installment
contract, and an acknowledgement of the Custodian that it holds such
Receivable for the benefit of the Noteholders;
(b) evidence of either (1) a certificate of insurance, (2) an
application form for insurance signed by the Obligor, or (3) a signed
representation letter from the Obligor named in the Receivable pursuant to
which the Obligor has agreed to obtain physical damage insurance for the
related Financed Vehicle;
(c) the original or electronic equivalent of the Certificate of
Title or, with respect to a Certificate of Title filed electronically, a
report prepared by a third party service that shows such service maintains
perfection related to such Certificate of Title on behalf of the Servicer;
or, if the original Certificate of Title has not yet been received, and in
the case of each electronic Certificate of Title, an application therefor,
or a copy of such Certificate of Title with a copy of the application
filed to amend the Certificate of Title to indicate the security interest
of the Contributor in the related Financed Vehicle;
(d) an electronic copy of an original credit application signed by
the Obligor;
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(e) the originals of all written assumption, consolidation,
extension, modification or waiver agreements, if any, relating to such
Receivable, except for any such item listed above which has been preserved
by electronic means;
(f) any other documents that the Servicer shall keep on file, in
accordance with its customary procedures, relating to a Receivable, the
related Obligor or the related Financed Vehicle; and
(g) any additional original loan documents evidencing any
assumption, consolidation, extension, modification or waiver of a
Receivable approved by the Servicer.
Section 4. Certification. The Custodian shall deliver on or prior to the
Closing Date and each Funding Date to the Indenture Trustee and the Agent a
certification (each a "Certification"), in substantially the form annexed hereto
as Exhibit A, to the effect that (except as described on the exception report
attached thereto) the Custodian has received a Custodian File for each
Receivable listed on the related Schedule of Receivables and it has received (i)
all documents required to be delivered to it pursuant to Section 3 of this
Agreement in its possession, (ii) such documents have been reviewed by it and
have not been mutilated, damaged, torn or otherwise physically altered and
relate to such Receivable identified on the Schedule of Receivables, (iii) each
of such documents which is required to be signed by the Obligor has been signed
in the appropriate spaces, (iv) all necessary blanks in each document have been
filled in and each document appears on its face to have been properly prepared,
(v) the Custodian is not holding any original of the related retail installment
contract other than the original of such retail installment contract that it is
holding as custodian hereunder and to its knowledge, no other such original
exists, (vi) neither the related retail installment contract nor any assignment
thereof included in the Custodian File contains on its face any stamp or other
evidence of any lien or security interest therein, and (vii) based on its
examination, the related contract is an executed original counterpart. The
Custodian shall attach an exception report to the Certification noting the
absence from a Custodian File of a document required to be included therein
pursuant to Section 3 of the Custodian Agreement.
Section 5. Certificates of Title. On or before the Closing Date and each
Funding Date, as applicable, the Custodian shall deliver to the Indenture
Trustee and the Agent a list of all Receivables with respect to which a
Certificate of Title showing Bay View Acceptance as secured party was not
included in the related Custodian File as of the Closing Date or such Funding
Date, as the case may be.
Section 6. Obligations of the Custodian. (a) The Custodian shall maintain
the items constituting the Custodian Files at its principal office or, subject
to the prior written consent of the Majority Holders, at such other office as
shall from time to time be identified to the Indenture Trustee and the Agent in
writing, and the Custodian will hold the items constituting the Custodian Files
in such office on behalf of the Indenture Trustee clearly segregated from any
other instruments and files on its records, including other instruments and
files held by the Custodian with respect to other trusts established by the
Depositor or any of its Affiliates. The Custodian shall segregate and maintain
continuous custody of all items constituting the Custodian Files in secure, fire
resistant cabinets (with respect to retail installment contracts and
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Certificates of Title only) in accordance with customary standards of a
commercial bank acting in the capacity of custodian with respect to similar
receivables. The Custodian shall hold the Custodian Files on behalf of the
Indenture Trustee for the benefit of the Noteholders, and maintain such accurate
and complete accounts, records and computer systems pertaining to each Custodian
File as will enable the Issuer to comply with the terms and conditions of the
Sale and Servicing Agreement, the Indenture and the other Transaction Documents.
Each original retail installment sale contract shall be stamped on both the
first page and the signature page (if different) in accordance with the
instructions from time to time provided by the Agent and the form and content of
the stamp shall be acceptable to the Majority Holders. Each Receivable shall be
identified on the books and records of the Custodian in a manner that (i) is
consistent with the practices of a commercial bank acting in the capacity of
custodian with respect to similar receivables, (ii) indicates that the
Receivable is held by the Custodian on behalf of the Indenture Trustee for the
benefit of the Noteholders, and (iii) is otherwise necessary, as reasonably
determined by the Custodian, to comply with the terms of this Custodian
Agreement. The Custodian shall conduct, or cause to be conducted, periodic
physical inspections of the Custodian Files held by it under this Custodian
Agreement, and of the related accounts, records and computer systems, in such a
manner as shall enable the Indenture Trustee, the Agent and the Custodian to
verify the accuracy of the Custodian's inventory and recordkeeping. Such
inspections shall be conducted at such times, in such manner and by such persons
including, without limitation, independent accountants, as the Indenture Trustee
for the benefit of the Noteholders and the Agent may request, and the reasonable
cost of one such inspections per calendar year shall be borne directly by the
Custodian and not by the Issuer. Upon becoming aware, the Custodian shall
promptly report to the Indenture Trustee and the Agent any failure on its part
to hold the Custodian Files and maintain its accounts, records and computer
systems as herein provided and promptly take appropriate action to remedy any
such failure. Notwithstanding the above, the Custodian may make microfiche or
other electronic copies of the Custodian Files and may maintain such copies of
the Custodian Files in lieu of maintaining physical possession of the Custodian
Files; provided, however, that such copies shall duplicate the entire contents
of each Custodian File and, provided further, that the Custodian shall at all
times maintain the related contract and the original Certificate of Title or, if
not yet received, evidence that an application therefor has been submitted with
the appropriate authority, evidencing the security interest of Bay View
Acceptance and the originals of all assumption, consolidation, extension,
modification or waiver agreements, if any, relating to such Receivable.
(b) With respect to the documents constituting each Custodian File that
are delivered to the Custodian, the Custodian shall (i) act exclusively as the
custodian for, and the bailee of, the Indenture Trustee on behalf of the
Noteholders, (ii) hold all documents constituting such Custodian File received
by it for the exclusive use and benefit of the Indenture Trustee, and (iii) make
disposition thereof only in accordance with the terms of this Agreement or with
written instructions furnished by the Indenture Trustee or the Majority Holders.
(c) The Custodian shall assist the Indenture Trustee and the Owner
Trustee, on behalf of the Issuer, generally in the preparation of any routine
reports to Noteholders or to regulatory bodies, to the extent necessitated by
the Custodian's custody of the Custodian Files.
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(d) The Custodian shall, in general, attend to all non-discretionary
details in connection with maintaining custody of the Custodian Files on behalf
of the Indenture Trustee for the benefit of the Noteholders.
(e) In the event that (i) the Indenture Trustee or the Custodian shall be
served by a third party with any type of levy, attachment, writ or court order
with respect to any Custodian File or a document included within a Custodian
File or (ii) a third party shall institute any court proceeding by which any
Custodian File or a document included within a Custodian File shall be required
to be delivered otherwise than in accordance with the provisions of this
Agreement, the party or parties receiving such service shall promptly deliver or
cause to be delivered to the other parties to this Agreement and the Agent
copies of all court papers, orders, documents and other materials concerning
such proceedings. The Custodian shall continue to hold and maintain all the
Custodian Files that are the subject of such proceedings pending a final order
of a court of competent jurisdiction permitting or directing disposition
thereof. Upon final determination of such court, the Custodian shall dispose of
such Custodian File or a document included within such Custodian File as
directed by such determination or, if no such determination is made, in
accordance with the provisions of this Agreement and the other Transaction
Documents. Expenses of the Custodian incurred as a result of such proceedings
shall be borne by the Issuer.
Section 7. Instructions; Authority to Act. The Custodian shall be deemed
to have received proper instructions with respect to the Custodian Files upon
its receipt of written instructions signed by a Responsible Officer of the
Indenture Trustee or the Agent. Such instructions may be general or specific in
terms. A copy of any such instructions shall be furnished by the Indenture
Trustee or the Agent to each other, to the Servicer and the Issuer.
Section 8. Release of Custodian Files. (a) If the Custodian and the
Servicer are Affiliates, the Custodian may release any Custodian Files to the
Servicer in order for the Servicer to accomplish its duties under Article VI of
the Sale and Servicing Agreement. The Custodian shall indicate in its records
each such release and, if applicable, each return of a Custodian File to the
Custodian by the Servicer.
(b) If the Custodian is not the Servicer or an Affiliate thereof from time
to time and as appropriate for the foreclosure or servicing of any of the
Receivables, the Custodian is hereby authorized, upon receipt of a written
request of the Servicer acknowledged by the Indenture Trustee in substantially
the form annexed as Exhibit B hereto (a "Request for Release and Receipt of
Documents"), to release to the Servicer by the close of business on the second
Business Day following such request, the related Custodian File or the documents
from a Custodian File set forth in such request and receipt.
(c) All documents released to the Servicer pursuant to this Section 8
shall be held by the Servicer in trust for the benefit of the Indenture Trustee
in accordance with the Sale and Servicing Agreement. The Servicer shall return
to the Custodian each and every document previously requested from the Custodian
when the Servicer's need therefore in connection with such foreclosure or
servicing no longer exists, unless the Receivable shall be liquidated, in which
case, upon receipt of a certification to this effect from the Servicer to the
Custodian
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acknowledged by the Indenture Trustee in substantially the form annexed as
Exhibit B, the Servicer's prior receipt shall be returned by the Custodian to
the Servicer.
Section 9. Release Upon Redelivery or Payment. If the Custodian is not the
Servicer or an Affiliate thereof, upon the redelivery of any Receivable pursuant
to the Sale and Servicing Agreement or the payment in full of any Receivable,
which shall be evidenced by the delivery to the Custodian of a Request for
Release and Receipt of Documents in the form of Exhibit B executed by the
Servicer and acknowledged by the Indenture Trustee, the Custodian shall promptly
release the associated Custodian File to the Servicer.
Section 10. Examination of Custodian Files. Upon reasonable prior written
notice to the Custodian (but no less than one Business Day), the Indenture
Trustee and the Agent and their respective authorized representatives will be
permitted to examine the Custodian Files, documents, records and other papers in
the possession, or under the control, of the Custodian relating to any or all of
the Receivables and the other assets included in the Trust Estate during the
Custodian's normal business hours.
Section 11. Insurance of the Custodian. The Custodian shall, at its own
expense, maintain at all times during the term of this Agreement and keep in
full force and effect (a) fidelity insurance, (b) theft of documents insurance,
and (c) forgery insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as are customary for similar insurance
typically maintained by commercial banks that act as custodian in similar
transactions.
Section 12. Periodic Statements. Each month, the Custodian by electronic
transfer shall provide to the Indenture Trustee a list of all Receivables for
which the Custodian holds a Custodian File pursuant to this Agreement. Such list
shall include the loan number and name of the related Obligor and may be in the
form of a copy of the Schedule of Receivables with manual deletions to denote
any Receivables redelivered since the date of this Agreement.
Section 13. Copies of Documents. If the Custodian is not the Servicer,
within ten Business Days after the written request and at the expense of the
Servicer, the Custodian shall provide the Indenture Trustee with copies of all
documents in each Custodian File held by the Custodian hereunder.
Section 14. Custodian Fee. For its services under this Agreement, the
Custodian shall be entitled to reasonable compensation to be paid by the
Servicer.
Section 15. Indemnification by the Custodian. The Custodian agrees to
indemnify the Depositor, the Issuer, the Owner Trustee (as such and in its
individual capacity), the Indenture Trustee, the Backup Servicer, the Agent and
the Noteholders for any and all liabilities, obligations, losses, damage,
payments, costs or expenses of any kind whatsoever (including the fees and
expenses of counsel) that may be imposed on, incurred or asserted against the
Depositor, the Issuer, the Owner Trustee (as such or in its individual
capacity), the Indenture Trustee, the Backup Servicer, the Agent and the
Noteholders and their respective officers, directors, employees, agents,
attorneys and successors and assigns as the result of any act or
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omission which relates to the maintenance and custody by the Custodian of the
Custodian Files; provided, however, that the Custodian shall not be liable for
any portion of any such liabilities, obligations, losses, damages, payments or
costs or expenses due to the willful misfeasance, bad faith or gross negligence
of the Depositor, the Issuer, the Owner Trustee, the Indenture Trustee, the
Backup Servicer, the Agent or the Noteholders or the officers, directors,
employees and agents thereof. In no event shall the Custodian be liable to any
third party for acts or omissions of the Custodian.
Section 16. Advice of Counsel. The Custodian and the Indenture Trustee
further agree that the Custodian shall be entitled to rely in good faith and act
upon advice of counsel with respect to its performance hereunder as custodian
and shall be without liability for any action reasonably taken in good faith
pursuant to such advice, provided that such action is not in violation of
applicable federal or state law.
Section 17. Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions. (a) This Custodian Agreement shall become effective as of
the date hereof and shall continue in full force and effect until terminated as
hereinafter provided. This Custodian Agreement may be amended at any time by
mutual written agreement of the Majority Holders, the Indenture Trustee, the
Issuer and the Custodian and may be terminated by the Custodian by giving
written notice to the other parties hereto, such termination to take effect no
sooner than thirty (30) days after the date of such notice; provided, however,
that the Majority Holders may terminate this Custodian Agreement at any time in
their sole discretion, and any termination by the Majority Holders shall take
effect immediately. So long as Bay View Acceptance is serving as Custodian, any
termination of Bay View Acceptance as Servicer under the Sale and Servicing
Agreement shall automatically terminate Bay View Acceptance as Custodian under
this Agreement. Promptly (but in any event within two (2) Business Days) after
receipt of notice of termination of this Custodian Agreement, the Custodian
shall deliver the Custodian Files to the Indenture Trustee on behalf of the
Noteholders at the Custodian's expense, or, to the extent such expenses are not
paid for by the Custodian, such expenses shall be reimbursed to the Indenture
Trustee pursuant to Section 5.03(a)(second) of the Indenture, at such place or
places as the Indenture Trustee may designate in writing to the Custodian, and
the Indenture Trustee or its agent, as the case may be, shall act as custodian
for such Custodian Files on behalf of the Noteholders until such time as a
successor custodian, approved by the Majority Holders pursuant to paragraph (b)
below has been appointed. If, within two (2) Business Days after the termination
of this Custodian Agreement, the Custodian has not delivered the Custodian Files
in accordance with the preceding sentence, the Indenture Trustee or its agent
may enter the premises of the Custodian and remove the Custodian Files from such
premises at the Custodian's expense, or, to the extent not paid for by the
Custodian, such expenses shall be reimbursed to the Indenture Trustee pursuant
to Section 5.03(a)(second) of the Indenture. The Indenture Trustee shall have no
responsibility or duty with respect to any Custodian Files while not in its
physical possession, it being understood and agreed that possession by the
Indenture Trustee of any Custodian File shall not be imputed to the Indenture
Trustee at any time such Custodian File is in transit to or from the Indenture
Trustee. In addition, the Indenture Trustee shall have no responsibility or duty
with respect to any Custodian File within its possession except to exercise the
same standard of care to which it affords similar property held for its own
account. The Indenture Trustee is not required to verify that it has received
all of the Custodian Files held by
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the Custodian. The indemnities provided to the Indenture Trustee under the Sale
and Servicing Agreement and in the Indenture shall apply to the Indenture
Trustee's care, handing and storage of the Custodian Files. In connection with
the administration of this Agreement, the parties may agree from time to time
upon the interpretation of the provisions of this Agreement as may in their
joint opinion be consistent with the general tenor and purposes of this
Agreement, any such interpretation to be signed by all parties and annexed
hereto.
(b) Following any termination or resignation of the Custodian, so long as
Bay View Acceptance is the Servicer, the Indenture Trustee and the Servicer may,
or, if Bay View Acceptance is no longer the Servicer, the Indenture Trustee may,
select and appoint a successor custodian with the consent of the Majority
Holders. If no successor Custodian shall have been appointed within thirty (30)
days of such resignation or termination, the Indenture Trustee may petition any
court of competent jurisdiction for a successor custodian. All fees and
reasonable out-of-pocket costs and expenses incurred by the successor custodian
shall be reimbursed to such successor custodian pursuant to Section
5.03(a)(fifth) of the Indenture.
Section 18. Governing Law. This Custodian Agreement shall be governed by
and construed in accordance with the laws of the State of New York, including
Sections 5-1401 and 5-1402 of the New York General Obligations law, but
otherwise without regard to the conflicts of laws principles thereof.
Section 19. Notices. All demands, notices and communications hereunder
shall be in writing, delivered or mailed, and shall be deemed to have been duly
given upon receipt (a) in the case of the Custodian, at the following address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, (b)
in the case of the Indenture Trustee, at the following address: 4 New York
Plaza, 6th Floor, New York, New York 10004, Attention: ITS Structured Finance,
(c) in the case of the Issuer, at the following address: Bay View Auto
Receivables Owner Trust c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Corporate Trust
Administration and (d) in the case of any other Person, at the address specified
for such Person in the Indenture.
Section 20. Binding Effect. This Custodian Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Concurrently with the appointment of a successor
Indenture Trustee under the Indenture, the parties hereto shall amend this
Custodian Agreement to make said successor Indenture Trustee, the successor to
the Indenture Trustee hereunder.
Section 21. Counterparts. For the purpose of facilitating the execution of
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original and together shall constitute and be one and the same instrument.
Section 22. Headings. The Section headings are not part of this Agreement
and shall not be used in its interpretation.
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Section 23. Nonpetition. Notwithstanding any prior termination of this
Agreement, the Custodian shall not, prior to the date which is one year and one
day after the payment in full of the Notes, acquiesce, petition or otherwise
invoke or cause the Issuer, the Depositor or any Noteholder to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer, the Depositor or any Noteholder under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer, the Depositor or any Noteholder or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Issuer, the Depositor or any Noteholder.
Section 24. Assignment. No party to this Agreement may assign its rights
or delegate its obligations under this Agreement without the express written
consent of the other parties hereto, except as otherwise expressly set forth in
this Agreement.
Section 25. Limitation of Liability. Notwithstanding any other provision
herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Issuer under the Issuer Trust Agreement, and in
no event shall Wilmington Trust Company or the Owner Trustee have any liability
in respect of the obligations of the Issuer hereunder or under any other
Transaction Document, as to all of which recourse shall be had solely to the
assets of the Issuer, and for all purposes of this Agreement and each other
Transaction Document the Owner Trustee and Wilmington Trust Company shall be
entitled to the benefits of the Issuer Trust Agreement.
Section 26. Integration. (a) This Agreement and each other Transaction
Document contain the final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns (including
any trustee in bankruptcy). This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms and
shall remain in full force and effect until terminated in accordance with its
terms; provided, however, that the rights and remedies with respect to (i) any
breach of any representation and warranty made by the Custodian and (ii) the
indemnification and payment provisions of Section 15 shall be continuing and
shall survive any termination of this Agreement.
Section 27. Severability of Provisions. If one or more of the provisions
of this Agreement shall be held invalid for any reason, such provisions shall be
deemed severable from the remaining provisions of this Agreement and shall in no
way affect the validity or enforceability of such remaining provisions. To the
extent permitted by law, the parties hereto hereby waive any law which renders
any provision of this Agreement prohibited or unenforceable.
Section 28. Rights Cumulative. All rights and remedies under this
Agreement are cumulative, and none is intended to be exclusive of another. No
delay or omission in insisting
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upon the strict observance or performance of any provision of this Agreement, or
in exercising any right or remedy, shall be construed as a waiver or
relinquishment of such provision, nor shall it impair such right or remedy.
Every right and remedy may be exercised from time to time and as often as deemed
expedient.
Section 29. CONSENT TO JURISDICTION. (a) TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND TO OR IN CONNECTION WITH ANY OF THE
TRANSACTION DOCUMENTS OR THE TRANSACTION OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
OR DETERMINED IN SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT. THE PARTIES
HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO ASSERT BY WAY OF MOTION,
AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE RELATED DOCUMENTS OR THE
SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS.
(b) To the extent permitted by applicable law, the parties hereto shall
not seek and hereby waive the right to any review of the judgment of any such
court by any court of any other nation or jurisdiction which may be called upon
to grant an enforcement of such judgment.
(c) Each of the Issuer and the Custodian agrees that until such time as
the Notes have been paid in full each of the Issuer and the Custodian shall have
appointed an agent registered with the Secretary of State of the State of New
York, with an office in the County of New York in the State of New York, as its
true and lawful attorney and duly authorized agent for acceptance of service of
legal process. Each of the Issuer and the Custodian agrees that service of such
process upon such Person shall constitute personal service of such process upon
it.
Section 30. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH
ANY OF THE TRANSACTION DOCUMENTS OR THE TRANSACTION. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HERETO HAS
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REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY
BY, AMONG OTHER THINGS, THIS WAIVER.
Section 31. Third Party Beneficiary. This Agreement shall inure to the
benefit of the Agent and the Noteholders and their respective successors and
assigns. Without limiting the generality of the foregoing, all covenants and
agreements in this Agreement which expressly confer rights upon the Issuer, the
Noteholders, the Agent or the Indenture Trustee shall be for the benefit of and
run directly to the Noteholders and the Agent, and the Noteholders and the Agent
shall be entitled to rely on and enforce such covenants to the same extent as if
it were a party hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Custodian
Agreement to be executed in its name and on its behalf by a duly authorized
officer on the day and year first above written.
JPMORGAN CHASE BANK, as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Custodian Agreement
BAY VIEW ACCEPTANCE CORPORATION,
as Custodian
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
Signature Page to Custodian Agreement
BAY VIEW AUTO RECEIVABLES OWNER TRUST, as
Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
Signature Page to Custodian Agreement