EXHIBIT 10.6
EXECUTION COPY
SALE AND SERVICING AGREEMENT
by and among
BAY VIEW 2005 WAREHOUSE TRUST,
as Issuer,
BAY VIEW WAREHOUSE CORPORATION,
as Depositor
BAY VIEW ACCEPTANCE CORPORATION,
as Servicer and as Contributor
and
JPMORGAN CHASE BANK, N.A.,
as Indenture Trustee
and
Systems & Services Technologies, Inc.,
as Backup Servicer
Dated as of June 20, 2005
BAY VIEW 2005 WAREHOUSE TRUST
UP TO $450,000,000 WAREHOUSE FUNDING FACILITY
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS 2
Section 1.01. Defined Terms 2
ARTICLE II TRANSFER AND ACQUISITION OF RECEIVABLES 5
Section 2.01. Transfer and Acquisition of Receivables 5
Section 2.02. The Closing 6
Section 2.03. Funding Dates 6
ARTICLE III REPRESENTATIONS AND WARRANTIES 7
Section 3.01. Representations and Warranties of the Issuer 7
Section 3.02. Representations and Warranties of the Depositor 8
Section 3.03. Repurchase of Receivables 21
Section 3.04. Issuer's Assignment of Repurchased Receivables 22
Section 3.05. Survival of Representations and Warranties 22
ARTICLE IV CONDITIONS 23
Section 4.01. Conditions to Obligation of the Issuer 23
Section 4.02. Conditions to Obligation of the Depositor 25
ARTICLE V COVENANTS OF THE DEPOSITOR 25
Section 5.01. Protection of Right, Title and Interest 25
Section 5.02. Other Liens or Interest 26
Section 5.03. Principal Executive Office; Jurisdiction of Organization 27
Section 5.04. Costs and Expenses 27
Section 5.05. No Waiver 27
Section 5.06. Depositor's Records 27
Section 5.07. Cooperation by Depositor 27
Section 5.08. Notice of Breach 28
Section 5.09. Liability of Depositor; Indemnities 28
Section 5.10. Merger or Consolidation of, or Assumption of the Obligations of, Depositor 29
Section 5.11. Limitation on Liability of Contributor, Depositor and Others 30
Section 5.12. Contributor and Depositor May Own Notes 30
Section 5.13. Additional Covenants of the Depositor 31
ARTICLE VI ADMINISTRATION AND SERVICING OF RECEIVABLES 31
Section 6.01. Appointment and Duties of the Servicer 31
Section 6.02. Realization upon Receivables 33
Section 6.03. Insurance 34
Section 6.04. Maintenance of Security Interests in Vehicles 35
Section 6.05. Servicing Fee; Payment of Certain Expenses by Servicer 36
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Section 6.06. Weekly Servicer Report; Monthly Servicer Report; Pre-Funding
Servicer Report 37
Section 6.07. Annual Statement as to Compliance; Notice of Servicer Event of
Default; Annual and Quarterly Financial Statements 37
Section 6.08. Annual Independent Accountants' Report 38
Section 6.09. Access to Certain Documentation and Information Regarding
Receivables 39
Section 6.10. Recalculation of Monthly Servicer Report 39
Section 6.11. Fidelity Bond 41
Section 6.12. No Offset 41
Section 6.13. Delivery of Backup Tapes to Backup Servicer 41
Section 6.14. Covenants of Servicer 41
Section 6.15. Purchase of Receivables upon Breach 42
Section 6.16. Custodian Files 42
ARTICLE VII COLLECTIONS 43
Section 7.01. Collection of Receivable Payments; Modification and Amendment of
Receivables 43
ARTICLE VIII REPRESENTATIONS, WARRANTIES AND COVENANTS 45
Section 8.01. Covenants, Representations and Warranties of the Servicer 45
Section 8.02. Purchase of Receivables upon Breach of Representation and Warranty 49
Section 8.03. Representations of Backup Servicer 49
ARTICLE IX THE SERVICER AND BACKUP SERVICER 50
Section 9.01. Liability of Servicer; Indemnities 50
Section 9.02. Merger or Consolidation of, or Assumption of the Obligations of,
the Servicer and Backup Servicer 52
Section 9.03. Limitation on Liability of Servicer, the Backup Servicer and Others 53
Section 9.04. Delegation of Duties 54
Section 9.05. Servicer and Backup Servicer Not to Resign 54
Section 9.06. Backup Servicer's Reliance; Liability; Errors 55
ARTICLE X SERVICER EVENTS OF DEFAULT 56
Section 10.01. Servicer Event of Default 56
Section 10.02. Consequences of a Servicer Event of Default 59
Section 10.03. Appointment of Successor 60
Section 10.04. Notification 62
Section 10.05. Waiver of Past Defaults 62
ARTICLE XI ADMINISTRATION OF TRUST DUTIES 62
Section 11.01. Administrative Duties 62
ARTICLE XII TERMINATION OF AGREEMENT 63
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Section 12.01. Term 63
Section 12.02. Effect of Termination 63
ARTICLE XIII MISCELLANEOUS PROVISIONS 63
Section 13.01. Amendment 63
Section 13.02. Waivers 63
Section 13.03. Notices 63
Section 13.04. Severability of Provisions 66
Section 13.05. Rights Cumulative 66
Section 13.06. No Offset 66
Section 13.07. Powers of Attorney 66
Section 13.08. Assignment and Binding Effect 67
Section 13.09. Captions 67
Section 13.10. Legal Holidays 67
Section 13.11. Counterparts 67
Section 13.12. Governing Law 67
Section 13.13. Consent to Jurisdiction 67
Section 13.14. Trial by Jury Waived 68
Section 13.15. Parties 68
Section 13.16. Relationship of the Parties 68
Section 13.17. No Bankruptcy Petition Against the Issuer or the Depositor 69
Section 13.18. Third Party Beneficiaries 69
Section 13.19. Reports to Holders 69
Section 13.20. Obligations of Depositor 69
Section 13.21. Subsequent Pledge 69
Section 13.22. Protection of Title to Trust 69
Section 13.23. Limitation of Liability 72
Section 13.24. Integration 72
Section 13.25. Limitation on Recourse 72
Schedule I -- Initial Receivables
Schedule II -- Backup Servicer Fees
Exhibit A -- Form of Assignment and Assumption Agreement A-1
Exhibit B -- Form of Contract B-1
Exhibit C -- Contributor's Underwriting Guidelines C-1
Exhibit D -- Servicer's Monthly Report D-1
Exhibit E -- Bay View Acceptance Corporation's Collection Policy E-1
Exhibit F -- Form of Loan Master File and History Information F-1
Exhibit G -- Servicer's Weekly Report G-1
Exhibit H -- Pre-Funding Servicer Report H-1
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SALE AND SERVICING AGREEMENT
THIS SALE AND SERVICING AGREEMENT (as amended and supplemented from time
to time, the "Sale and Servicing Agreement" or the "Agreement") is made as of
June 20, 2005 , by and among BAY VIEW 2005 WAREHOUSE TRUST, a statutory trust
established under the laws of the State of Delaware, as issuer (the "Issuer"),
BAY VIEW WAREHOUSE CORPORATION, a corporation established under the laws of the
State of Delaware, as depositor (the "Depositor"), BAY VIEW ACCEPTANCE
CORPORATION ("BAY VIEW ACCEPTANCE"), a Nevada corporation, as servicer (the
"Servicer") and as contributor (the "Contributor"), JPMORGAN CHASE BANK, N.A.,
as indenture trustee (the "Indenture Trustee"), and Systems & Services
Technologies, Inc., as backup servicer (the "Backup Servicer"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in that certain Indenture dated as of even date herewith (the
"Indenture") by and between the Issuer and the Indenture Trustee.
PRELIMINARY STATEMENT
WHEREAS, the Indenture provides for the issuance by the Issuer of its
Automobile Receivables Backed Notes, Series 2005-1 (the "Notes") to the
Noteholders; and
WHEREAS, Bay View Acceptance has acquired and will acquire certain motor
vehicle receivables evidenced by retail installment contracts and security
agreements secured by security interests in the related Financed Vehicles; and
WHEREAS, pursuant to the Contribution Agreement and each Contributor
Assignment on the Closing Date and on each Funding Date, Bay View Acceptance, as
Contributor, will contribute the Initial Receivables and the related Subsequent
Receivables, respectively, to the Depositor; and
WHEREAS, pursuant to the terms of the Indenture, on the Closing Date, the
Issuer will pledge the Receivables and the security interests in the Financed
Vehicles and the other items of the Trust Estate to the Indenture Trustee for
the benefit of the Noteholders, the Agent and the Financial Institutions; and
WHEREAS, pursuant to the terms of the Custodian Agreement, the Depositor
is obligated to deliver or cause to be delivered to the Custodian, the documents
to be included in the Custodian File, which are to be held by the Custodian
pursuant to the terms of the Custodian Agreement; and
WHEREAS, the Issuer, the Depositor, the Servicer, the Indenture Trustee
and the Backup Servicer wish to enter into this Sale and Servicing Agreement and
each Depositor Assignment pursuant to which the Depositor will, on the Closing
Date and each Funding Date, transfer the Initial Receivables and the related
Subsequent Receivables, respectively, to the Issuer, and the Servicer will
perform the duties as described herein, including servicing and administering
collections on all of the Receivables transferred to the Issuer pursuant to the
terms of this Agreement and pledged to the Indenture Trustee pursuant to the
terms of the Indenture, realizing upon such Receivables, and administering
claims made under the Insurance Policies.
NOW THEREFORE, in consideration of the covenants and conditions contained
in this Sale and Servicing Agreement, the parties, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Capitalized terms used but not defined in
this Sale and Servicing Agreement shall have the respective meanings assigned to
them in the Indenture and the Contribution Agreement unless the context
otherwise requires, and the definitions of such terms are equally applicable
both to the singular and plural forms of such terms and to the masculine,
feminine and neuter genders of such terms.
"Actual Payment" means, with respect to a Collection Period and a
Receivable, all payments received from or on behalf of an Obligor with respect
to such Receivable, all of which amounts shall be deposited into the Local Bank
Account for deposit into the Collection Account. An Actual Payment does not
include Repurchase Prices.
"Backup Servicer Account" means Account Number ▇▇▇▇▇▇▇ in the name of the
Backup Servicer at Commerce Bank N.A (ABA# ▇▇▇▇▇▇▇▇▇).
"Backup Servicer Lockbox" means the locked postal box associated with the
Backup Servicer Account with respect to which Commerce Bank N.A. has been
granted exclusive access for the purpose of retrieving and processing payments
made on the Receivables.
"Backup Servicer Termination Fee" means the product of (x) 2 times (y) the
Monthly Fee (as set forth in item I.B. of Schedule II hereto) in effect at the
time of the Backup Servicer's termination pursuant to Section 6.01(a) hereof.
"Backup Servicing Fee" means the fee payable to the Backup Servicer as set
forth in Schedule II hereto including, if applicable, the Backup Servicer
Termination Fee.
"Chapter 13 Receivable" means a Receivable (a) the Obligor of which is
subject to a proceeding under Chapter 13 of the Bankruptcy Code, (b) the terms
of which have been set forth in a plan confirmed in that Chapter 13 proceeding,
under which plan, no default has occurred, and (c) on which at least one payment
has been made since the confirmation of the plan in the Chapter 13 proceeding.
"Collection Policy" means the servicing policies and procedures utilized
by the Servicer in connection with its servicing of the Receivables, a copy of
which is attached hereto as Exhibit E, or, with respect to the Backup Servicer
as successor Servicer, the servicing policies and procedures utilized by the
Backup Servicer in connection with its servicing of the Receivables.
"Collection Records" means all manually prepared or computer generated
records relating to collection efforts or payment histories with respect to the
Receivables.
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"Core State" means, as of any date of determination, any State in which
Bay View Acceptance has originated Receivables for more than 12 consecutive
months as of such date of determination.
"Custodian File" shall have the meaning specified in Section 4.01(d).
"Deposited Assets" means, with respect to each Receivable, all right,
title and interest of the Depositor in, to and under (i) the security interest
in the related Financed Vehicle granted by the related Obligor pursuant to such
Receivable and any accessions thereto, and any other interest of the Depositor
in the Financed Vehicles and accessions, including, without limitation, the
related Certificate of Title; (ii) any service warranties and service contracts
and any physical damage, credit life, risk default, disability, gap or other
insurance policies covering the related Financed Vehicle or the related Obligor
or refunds in connection therewith relating to the Receivables (including,
without limitation, State tax refunds) and any proceeds from the liquidation of
the Receivables or Financed Vehicles received after the related Cutoff Date;
(iii) all property (including the right to receive future Recoveries) that shall
secure a Receivable; (iv) the rights that relate to a Receivable under each
Dealer Agreement, including, but not limited to, any recourse against any
Dealer; (v) rebates or refunds of premiums and other amounts relating to
insurance policies and other items financed under the Receivables or otherwise
covering an Obligor or a Financed Vehicle; (vi) the original retail installment
contract and security agreement and any amendments thereof evidencing the
Receivables; (vii) all documentation in the Custodian File and other documents
maintained by the Contributor according to its customary procedures with respect
to the Receivables, Financed Vehicles or Obligors; (viii) the Depositor's rights
under the Contribution Agreement and each Contributor Assignment, including, but
not limited to, any recourse against the Contributor and any right to require
the Contributor to repurchase or make indemnity payments; and (ix) the proceeds
of any and all of the foregoing including all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other property
whether now existing or hereafter arising.
"Depositor Address" means ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Depositor Assignment" means the document of assignment substantially in
the form attached to this Agreement as Exhibit A.
"Determination Date" means with respect to a Collection Period, the 15th
day of the next calendar month, or if such 15th day is not a Business Day, the
next succeeding Business Day.
"Eligible Servicer" means the Servicer, the Backup Servicer or an entity
which, at the time of its appointment as Servicer, (a) is legally qualified and
has the capacity to service the Receivables, (b) has demonstrated the ability to
service a portfolio of motor vehicle retail installment sale contracts in
accordance with the standards of skill and care customary in the industry and
(c) is approved in writing by the Majority Holders. The determination of the
qualifications specified in subsections (a) and (b) of this definition shall be
made by the Majority Holders.
"FICO Score" means, with respect to any Receivable, the Fair, ▇▇▇▇▇ &
Company Inc. credit risk score with respect to such Receivable.
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"Ineligible Receivable" means any Receivable which: (a) was originated in
Maryland and which, at the time of the origination of such Receivable, had a
Receivable Balance of less than $25,000, until such time as all required
licenses and approvals are obtained, or (b) was originated in Pennsylvania until
such time as all the required licenses and approvals are obtained.
"Holiday Pay Receivables" means those Receivables that (A) have an
original FICO Score above 700; (B) have not been Delinquent Receivables within
the preceding six (6) months and (C) have been on the books for at least six (6)
months.
"Holiday Pay Receivables Program" means an extension program offered once
per year in the fourth quarter to Receivables meeting the requirements of
Holiday Pay Receivables; provided, however that the Agent reserves the right to
suspend the Holiday Pay Receivables Program at any time, in its sole discretion.
"Initial Receivable" means each Receivable transferred from the
Contributor to the Depositor and then from the Depositor to the Issuer, and a
security interest in which was simultaneously granted by the Issuer to the
Indenture Trustee on the Closing Date as set forth on Schedule I attached to the
Depositor Assignment dated as of the Closing Date.
"Insurance Policy" means with respect to a Receivable, any insurance
policy (including the insurance policies described in Section 6.03) benefiting
the holder of the Receivable and providing coverage for loss or physical damage,
credit life, credit disability, theft, mechanical breakdown, gap or similar
coverage with respect to the Financed Vehicle or the Obligor.
"Lendco Receivable" means a Receivable originated by, and purchased by the
Contributor from, Lendco Financial Services.
"Local Bank Account" shall have the meaning specified in Section 7.01(d).
"Monthly Servicer Report" means with respect to each Determination Date, a
report, completed by and executed by the Servicer, in accordance with Section
6.06(b), in the form of Exhibit D or otherwise in form and substance acceptable
to the Agent.
"Non-Core State" means any State which is not a Core State.
"Pool" means the aggregation of Receivables and related assets contained
from time to time in the Issuer's trust estate.
"Post Office Boxes" shall have the meaning specified in Section 7.01(d).
"Pre-Funding Servicer Report" means a report completed by and executed by
the Servicer in accordance with Section 6.06(c), in the form of Exhibit H or
otherwise in form and substance acceptable to the Agent.
"Reliening Expenses" shall have the meaning specified in Section 6.04(b).
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"Rule of 78s Method" means the method under which a portion of a payment
allocable to earned interest and the portion allocable to principal are
determined according to the sum of the month's digits or any equivalent method
commonly referred to as the "Rule of 78s."
"Rule of 78s Receivable" means any Receivable under which the portion of a
payment allocable to interest and the portion allocable to principal are
determined in accordance with the Rule of 78s Method.
"Servicer Event of Default" means an event described in Section 10.01.
"Servicing Fee" means, with respect to any Payment Date, the fee payable
to (i) the initial Servicer for services rendered during the related Collection
Period, which shall be equal to one-twelfth of the Servicing Fee Rate multiplied
by Aggregate Receivable Balance as of the first day of such Collection Period
and (ii) the Backup Servicer (both prior to and while acting as successor
Servicer) for services rendered during the related Collection Period, which
shall be equal to the Backup Servicing Fees applicable for such services and
such Collection Period.
"Servicing Fee Rate" means 1.0% per annum, so long as Bay View Acceptance
or an Affiliate of Bay View Acceptance is the Servicer and the per annum rate
negotiated with such successor Servicer if a successor Servicer is acting as the
Servicer.
"Subsequent Receivable" means, with respect to each Funding Date, each
Receivable contributed to the Depositor by the Contributor and then transferred
from the Depositor to the Issuer and a security interest simultaneously granted
to the Indenture Trustee by the Issuer on such Funding Date as set forth as
Schedule I to the related Depositor Assignment.
"Tangible Net Worth" shall have the meaning set forth in the Indenture.
"Ultra Receivable" means a Receivable originated by, and purchased by the
Contributor from, Ultra Funding, Ltd.
"Weekly Servicer Report" means a report completed by and executed by the
Servicer each week in accordance with Section 6.06(a), in the form of Exhibit G
or otherwise in form and substance acceptable to the Agent.
ARTICLE II
TRANSFER AND ACQUISITION OF RECEIVABLES
Section 2.01. Transfer and Acquisition of Receivables. On the Closing Date
and on each Funding Date, subject to the terms and conditions of this Agreement,
the Depositor agrees to transfer to the Issuer, and the Issuer agrees to acquire
from the Depositor, the Initial Receivables and the related Subsequent
Receivables, respectively, and the Deposited Assets relating thereto.
(a) Initial Transfer of Receivables. On the Closing Date,
simultaneously with the transactions set forth in the Indenture and the
Contribution Agreement, the Depositor shall transfer to the Issuer,
without recourse except as set forth herein (i) the Initial
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Receivables, and all moneys received thereon on or after the Initial
Cutoff Date and (ii) the related Deposited Assets.
(b) Consideration for Initial Receivables. In consideration of the
Receivables and the related Deposited Assets described in Section 2.01(a),
the Depositor shall, on the Closing Date, receive an amount equal to the
Receivables Purchase Price in immediately available funds.
(c) Transfer of Subsequent Receivables. On each Funding Date, upon
the simultaneous transfer of such assets from the Contributor to the
Depositor, the Depositor shall transfer to the Issuer, without recourse
except as set forth herein (i) the related Subsequent Receivables, and all
moneys received thereon on or after the applicable Cutoff Date and (ii)
the related Deposited Assets; provided, however, that Subsequent
Receivables may not be transferred by the Depositor to the Issuer or a
security interest granted by the Issuer to the Indenture Trustee unless
each of the conditions precedent in Section 2.12 of the Indenture has been
satisfied.
(d) Consideration for Subsequent Receivables. Upon two (2) Business
Days' prior written notice given by the Depositor to the Issuer and then
from the Issuer to the Indenture Trustee, the Depositor shall cause the
Issuer to cause the Indenture Trustee, on the applicable Funding Date, to
pay to the Issuer, which will pay the Depositor, which will pay to or at
the direction of the Contributor an amount equal to the Receivables
Purchase Price with respect to the related Subsequent Receivables in
immediately available funds.
(e) Transfer. It is the intention of the Depositor and the Issuer
that each transfer hereunder constitute an absolute transfer of the
Receivables and the Deposited Assets from the Depositor to the Issuer with
the intention of removing them from the Depositor's estate pursuant to
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, as the same may be
amended from time to time, or any successor provision thereto. If,
notwithstanding the express intention of the parties, this Agreement is
deemed not to constitute an absolute transfer of the Receivables and the
related Deposited Assets from the Depositor to the Issuer, this Agreement
shall be deemed to be a security agreement within the meaning of Article 8
and Article 9 of the Uniform Commercial Code as in effect in the State of
New York, and the conveyance provided for in this Section 2.01 shall be
deemed to be a grant by the Depositor to the Issuer of a valid first
priority perfected security interest in all of the Depositor's right,
title and interest in and to the Receivables and the Deposited Assets.
Section 2.02. The Closing. The transfer of the Initial Receivables shall
take place at a closing (the "Closing"), on the Closing Date, simultaneously
with the grant by the Issuer of all of its right, title and interest in and to
the Initial Receivables and related Deposited Assets to the Indenture Trustee
for the benefit of the Noteholders, and the issuance of the Notes pursuant to
the Indenture.
Section 2.03. Funding Dates. The transfer of Subsequent Receivables on a
Funding Date shall take place at such location as the Depositor, the Issuer and
the Indenture Trustee may
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reasonably agree. The transfer of Subsequent Receivables shall be made in
accordance with Sections 2.12 through 2.14 of the Indenture pursuant to which
(a) the Depositor will transfer all of its right, title and interest in and to
the Subsequent Receivables and the related Deposited Assets to the Issuer, and
(b) the Issuer will confirm the grant of all of its right, title and interest in
and to such Subsequent Receivables and the related Deposited Assets to the
Indenture Trustee for the benefit of the Noteholders, the Agent and the
Financial Institutions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Issuer. The Issuer
hereby represents and warrants to the Depositor, the Indenture Trustee, the
Servicer and the Backup Servicer as of the Closing Date and each Funding Date:
(a) Organization, Etc. The Issuer is a statutory trust duly formed,
validly existing and in good standing under the laws of the State of
Delaware with full power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof; the Issuer is
duly qualified to do business as a foreign business entity in good
standing, and has obtained all required licenses and approvals, if any, in
all jurisdictions in which the ownership or lease of property or the
conduct of its business (including, without limitation, the purchase of
the Receivables from the Depositor hereunder and under each Depositor
Assignment, the conveyance of the Receivables by the Issuer pursuant to
the Indenture, and the performance of its other obligations under this
Agreement, each Depositor Assignment and the other Transaction Documents
to which it is a party) requires such qualifications except those
jurisdictions in which failure to be so qualified would not have a
material adverse effect on the business or operations of the Issuer, on
the ability of the Issuer to perform its obligations under the Transaction
Documents, or on the Noteholders, the Receivables or the Trust Estate.
(b) Due Authorization. The execution, delivery and performance by
the Issuer of this Agreement have been duly authorized by all necessary
action, do not require any approval or consent of any Person, do not and
will not conflict with any provision of the Issuer Trust Agreement, and do
not and will not conflict with or result in a breach which would
constitute (with or without notice or lapse of time) a default under any
agreement, indenture, mortgage, deed of trust, or other instrument binding
upon or applicable to it or its property, or any law or governmental
regulation or court decree applicable to it or its property, do not and
will not result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any indenture, agreement, mortgage,
deed of trust, or other instrument (other than as expressly provided in
the Transaction Documents), and this Agreement is the legal, valid and
binding obligation of the Issuer enforceable in accordance with its terms
except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
(c) No Proceedings. There are no proceedings or investigations
pending, or to the Issuer's knowledge, threatened, before any court,
regulatory body, administrative
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agency or other governmental instrumentality having jurisdiction over the
Issuer or its properties: (A) asserting the invalidity of this Agreement,
any Depositor Assignment, the Indenture, the Notes, or any other
Transaction Document; (B) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this
Agreement, any Depositor Assignment, the Indenture or any other
Transaction Document to which it is a party; (C) seeking any determination
or ruling that might materially and adversely affect the performance by
the Issuer of its obligations under, or the validity or enforceability of,
this Agreement, any Depositor Assignment, the Indenture, the Notes or any
other Transaction Document to which it is a party; (D) which might
adversely affect the federal or State income, excise, franchise or similar
tax attributes of the Notes; or (E) that could reasonably be expected to
have a material adverse effect on the Receivables.
(d) Business Purpose. The Issuer will acquire the Receivables for a
bona fide business purpose and has undertaken the transactions
contemplated herein as principal rather than as agent for the Depositor or
any other person.
(e) Issuer's Records. The books and records of the Issuer will
disclose that the Depositor transferred the Receivables to the Issuer;
provided, however, the Issuer acknowledges that the Receivables will
appear as assets of the Contributor and its consolidated subsidiaries in
the consolidated financial statements of the Contributor (which financial
statements will include a footnote stating that the Receivables are not
available to satisfy the Contributor's or the Depositor's creditors).
(f) Valid Assignment. Each Receivable has been validly pledged by
the Issuer to the Indenture Trustee pursuant to the Indenture; and no
Receivable has been sold, transferred, assigned or pledged by the Issuer
to any Person other than the Indenture Trustee.
(g) Issuer's Address. The principal place of business of the Issuer
is located ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the executive
office of the Issuer is located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. All books and records of the
Issuer relating to the Trust Estate are (and have been since its date of
organization) stored at such principal place of business. The Depositor's
jurisdiction of organization is, and has been since its date of
organization, Delaware.
Section 3.02. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Issuer, the Indenture Trustee,
the Servicer and the Backup Servicer as of the Closing Date and each Funding
Date (except as otherwise provided):
(a) On the Closing Date, with respect to the Initial Receivables,
and on the related Funding Date, with respect to the Subsequent
Receivables:
(i) Characteristics of Receivables. Each Receivable (A) was
originated by the Contributor or a Dealer for the retail sale or
refinancing of a Financed Vehicle in the ordinary course of the
Contributor's or such Dealer's business, and the Contributor or
8
such Dealer had all necessary licenses and permits to originate
Receivables in the State where the Contributor or such Dealer was located
(except for any Ineligible Receivable), was fully and properly executed by
the parties thereto, and, in the case of Receivables originated by a
Dealer, was purchased by the Contributor from such Dealer under an
existing Dealer Agreement with the Contributor and was validly assigned by
such Dealer to the Contributor, (B) was purchased by the Depositor from
the Contributor pursuant to the Contribution Agreement and was validly
assigned by the Contributor to the Depositor, (C) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral security,
(D) is not a Rule of 78s Receivable or a pre-computed interest Receivable,
but is a fully amortizing simple interest receivable which provides for
level monthly payments (provided that the payment or payments in the first
Collection Period and the final Collection Period of the life of the
Receivable may be different from the level payment) which, if made when
due, shall fully amortize the Amount Financed over the original term, (E)
provides that, in the event such Receivable is prepaid, such prepayment
fully pays the principal balance and all accrued and unpaid interest
through the date of such prepayment at an interest rate equal to or
greater than the APR, (F) has not been amended, rewritten, modified or
deferred, nor any provisions thereof waived, except in accordance with the
Collection Policy and the provisions of the Transaction Documents, (F) is
payable in United States dollars and (H) does not entitle the Contributor
to reduce, nor has the Contributor reduced, the APR under such Receivable
to below 4%. No Subsequent Receivable will be a Chapter 13 Receivable, an
Ultra Receivable or a Lendco Receivable, as of its transfer date.
(ii) No Fraud or Misrepresentation. Each Receivable was originated
by a Dealer and was sold by the Dealer to the Contributor, or was
originated by the Contributor, and was transferred by the Contributor to
the Depositor without any fraud or material misrepresentation on the part
of such Dealer or the Contributor or on the part of the related Obligor.
(iii) Compliance with Law. All requirements of applicable federal,
State and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade Commission
Act, the Federal Trade Commission Credit Practices Rule, the ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, the Federal Reserve Board's Regulations "B" and "Z," the
Servicemembers' Civil Relief Act of 2003, Division 3 of the California
Vehicle Code, State unfair and deceptive trade practices laws and State
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of all of the Receivables, each and every
sale of Financed Vehicles have been complied with in all material
respects, and each Receivable and the sale of the Financed Vehicle
evidenced by each Receivable complied in all material respects at the time
such Receivable or sale was originated or made and now complies in all
material respects with all applicable legal requirements.
9
(iv) Origination. Each Receivable was originated in the United
States, and each Receivable (other than the Lendco Receivables and the
Ultra Receivables), at the time of origination, conformed to requirements
of the Contributor's then current "Underwriting Guidelines" (the most
recent copy of which is attached hereto as Exhibit C) and credit policies
applicable to such Receivable.
(v) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A)
as enforceability may be limited by bankruptcy, insolvency, reorganization
or 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 and (B) as such Receivable may be modified by the
application after the related Cutoff Date of the Servicemembers' Civil
Relief Act of 2003, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to
be granted thereby.
(vi) Obligors. Each Obligor is domiciled in the United States. None
of the Obligors is an Affiliate of Bay View Acceptance or is employed by
Bay View Acceptance. None of the Obligors is the United States of America
or any State or any agency, department, subdivision or instrumentality
thereof. No Receivable has been included in a "fleet" sale (i.e., a sale
to any single Obligor of more than five (5) Financed Vehicles).
(vii) Obligor Bankruptcy. As of the related Cutoff Date, no Obligor
has been identified on the Depositor's records as being the subject of a
current bankruptcy proceeding as a debtor, except for Obligors under
Chapter 13 Receivables.
(viii) Schedule of Receivables. The information pertaining to each
Receivable set forth in the Schedule of Receivables was true and correct
in all material respects as of the close of business on the related Cutoff
Date and at the Closing Date or the related Funding Date, as applicable.
(ix) Marked Records. By the Closing Date or the related Funding
Date, as applicable, each of the Contributor and the Depositor will have
caused the portions of its records relating to the Receivables to be
clearly and unambiguously marked to show that the Receivables constitute
part of the Trust Estate and are owned by the Issuer and pledged to the
Indenture Trustee.
(x) Computer Tape or Listing. The computer tape made available by
the Contributor to the Backup Servicer on the Closing Date or the related
Funding Date was complete and accurate as of the related Cutoff Date and
includes a description of the same Receivables that are described in the
related Schedule of Receivables.
(xi) Chattel Paper. The Receivables constitute chattel paper within
the meaning of the UCC.
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(xii) One Original. There is only one original executed copy of each
Receivable.
(xiii) Custodian Files Complete. There exists a Custodian File
pertaining to each Receivable, and such Custodian File contains: (A) a
fully executed original of the related retail installment contract, and an
acknowledgment 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 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 or hard copy of an
original credit application signed by the Obligor, (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, or reasonably required by the Issuer, from time to
time to be kept on file, 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. Each of
such documents which is required to be signed by the Obligor has been
signed by the Obligor in the appropriate spaces. All blanks on any form
have been properly filled in and each form has otherwise been correctly
prepared in all material respects. The complete Custodian File for each
Receivable is currently in the possession of the Custodian.
(xiv) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the Lien of the related Receivable
in whole or in part. No provisions of any Receivable have been waived,
altered or modified in any respect since its origination, except by
instruments or documents identified in the Custodian File held by the
Custodian and in accordance with the Collection Policy in all material
respects. Any modification to any Receivable necessary to comply with the
Servicemembers' Civil Relief Act of 2003, as amended, has been made in
compliance with the Act and any laws related thereto.
(xv) Lawful Assignment. No Receivable was originated in, or is
subject to the laws of any jurisdiction, the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement, the Contribution Agreement or the
Indenture. The Depositor has not entered into any agreement with any
account debtor that prohibits, restricts or conditions the assignment of
any portion of the Receivables. Each Receivable, by its terms, is
assignable.
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(xvi) Good Title. No Receivable has been sold, transferred, assigned
or pledged by the Depositor to any Person other than the Issuer.
Immediately prior to the conveyance of the Receivables to the Issuer
pursuant to this Agreement, the Depositor was the sole owner thereof and
had good and indefeasible title thereto, free of any Lien and, upon
execution and delivery of this Agreement and the applicable Depositor
Assignment by the Depositor, the Issuer shall have good and indefeasible
title to and will be the sole owner of such Receivables, free of any Lien.
No Dealer has a participation in, or other right to receive, proceeds of
any Receivable. The Depositor has not taken any action to convey any right
to any Person that would result in such Person having a right to payments
received under the related Insurance Policies or the related Dealer
Agreements or to payments due under such Receivables. Each Initial
Receivable has been validly assigned by the Depositor to the Issuer on the
Closing Date pursuant to this Agreement and each Subsequent Receivable
will be validly assigned to the Issuer on the related Funding Date
pursuant to this Agreement and the related Depositor Assignment.
(xvii) Security Interest in Financed Vehicle. Each Receivable from
each respective Obligor is secured by a valid, binding and enforceable
first priority perfected security interest in favor of the Contributor in
the Financed Vehicle. The Certificate of Title for each Financed Vehicle
shows or, if a new or replacement Certificate of Title is being applied
for with respect to such Financed Vehicle, the Certificate of Title will
be received within one hundred eighty (180) days of the Closing Date or
the related Funding Date, as applicable, and will show, the Contributor
named as the original secured party under each Receivable as the holder of
a first priority perfected security interest in such Financed Vehicle.
With respect to each Receivable for which the Certificate of Title has not
yet been returned from the applicable governmental authority, the Servicer
has received written evidence from the related Dealer that such
Certificate of Title showing the Contributor as first lienholder has been
applied for. If the Receivable was originated in a State in which the
filing or recording of a financing statement under the UCC is required to
perfect a security interest in motor vehicles, such filings or recordings
have been duly made and show the Contributor named as the original secured
party under the related Receivable. As of the related Cutoff Date, there
were no Liens or claims for taxes, work, labor, storage or materials
affecting a Financed Vehicle which are or may be Liens prior or equal to
the lien of the related Receivable. Each security interest in the Financed
Vehicles has been or, with respect to Subsequent Receivables, will be as
of the related Funding Date, validly assigned by the Depositor to the
Issuer pursuant to this Agreement and the related Depositor Assignment.
Immediately after the sale, assignment and transfer thereof to the Issuer,
although the related Certificates of Title will not indicate the Issuer as
secured party, each Receivable will be secured by an enforceable and
perfected first priority security interest in the Financed Vehicle in
favor of the Indenture Trustee as secured party for the benefit of the
Noteholders, the Agent and the Financial Institutions which security
interest is prior to all other Liens in such Financed Vehicle.
(xviii) All Filings Made. On the Closing Date or the related Funding
Date, as applicable, all filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction (A) to give the
Issuer a first priority perfected ownership interest in, and (B)
12
to give the Indenture Trustee a first priority perfected Lien on, the
Initial Receivables and the Subsequent Receivables, respectively, and the
proceeds thereof and the rest of the Trust Estate (other than the Financed
Vehicles) have been made, taken or performed or will be made, taken or
performed on or prior to the Closing Date or the related Funding Date, as
applicable, and as of the Closing Date or the related Funding Date, as
applicable, the Issuer has or will have, as applicable, such a first
priority perfected ownership interest and the Indenture Trustee has or
will have, as applicable, such a first priority perfected Lien.
(xix) No Impairment. The Depositor has not done anything to convey
any right to any Person that would result in such Person having a right to
payments due under the Receivables or otherwise to impair the rights of
the Issuer, the Indenture Trustee, the Agent or the Noteholders in any
Receivable or the proceeds thereof.
(xx) Receivable Not Assumable. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to the Depositor with respect to such Receivable.
(xxi) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been
asserted or threatened with respect to any Receivable. The operation of
the terms of any Receivable or the exercise of any right thereunder will
not render such Receivable unenforceable in whole or in part or subject to
any such right of rescission, setoff, counterclaim or defense.
(xxii) No Default. There has been no uncured default, breach,
violation or event permitting acceleration under the terms of any
Receivable (other than payment delinquencies of not more than sixty (60)
days as of the Initial Cutoff Date or the related Funding Date, as
applicable, or payment delinquencies of sixty (60) days or more that have
been cured on or prior to the Closing Date or related Funding Date, as
applicable), and no condition exists or event has occurred and is
continuing that with notice, the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration under the
terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the related Cutoff Date, no Financed Vehicle had been
repossessed from the related Obligor or repossessed by the Servicer from
any other Person.
(xxiii) Insurance. At the time of the origination of each Receivable
with a Receivable Balance of $50,000 or greater, the related Financed
Vehicle was covered by a comprehensive and collision Insurance Policy (A)
in an amount at least equal to the lesser of (a) its maximum insurable
value or (b) the principal amount due from the Obligor under the related
Receivable, (B) naming the Contributor and its successors and assigns as
loss payee and (C) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage. Each Receivable that finances the
cost of premiums for gap, credit life and credit accident and health
insurance is covered by such an Insurance Policy. The Financed Vehicle
relating to each Receivable that finances the cost of an extended service
contract is covered by such a service contract. Each Receivable requires
the Obligor to maintain physical loss and damage insurance, naming the
Contributor and its successors and
13
assigns as additional insured parties, and each Receivable permits the
holder thereof to obtain physical loss and damage insurance at the expense
of the Obligor if the Obligor fails to do so.
(xxiv) Receivables. (A) Each Receivable had an original maturity of
not less than eighteen (18) and not more than ninety-seven (97) months;
(B) each Receivable has an Annual Percentage Rate (exclusive of prepaid
finance charges) of at least 4%; (C) no Receivable was a Defaulted
Receivable or a Delinquent Receivable as of the Cutoff Date; (D) no funds
have been advanced by the Depositor, the Contributor, the Servicer, the
Issuer, any Dealer, or anyone acting on behalf of any of them in order to
cause any Receivable to qualify under subclause (B) of this clause (xxiv);
(E) none of the Receivables have been re-aged (except for Receivables
extended in compliance with Section 7.01(c)); (F) the Receivable Balance
of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects as of the related Cutoff Date; (G) no
more than five percent (5%) of the Aggregate Receivable Balance may be
Receivables with individual principal balances in excess of $100,000.00
(after giving effect to acquisitions on such Funding Date) and (H) the
application with respect to the Certificate of Title for each Receivable
has been applied for.
(xxv) Subsequent Receivables. The addition of Subsequent Receivables
on any Funding Date shall not occur unless each of the funding conditions
set forth in Section 2.12 of the Indenture have been satisfied and unless
each of the following representations and warranties are true and correct
on the related Cutoff Date (with each Receivable Balance or APR for any
Receivable measured as of its related Cutoff Date):
(A) no more than (i) 35% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have been originated in each
of California, Florida, and Tennessee;
(B) no more than 25% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have been originated in each
Core State other than California or Florida or Tennessee;
(C) no more than 10% (determined by the Aggregate Receivable
Balance) of all Receivables pledged to the Indenture Trustee, after taking
into consideration the Subsequent Receivables pledged to the Indenture
Trustee on such Funding Date, shall have been originated in each Non-Core
State;
(D) no more than 40% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have had a FICO Score at the
time of origination thereof equal to or below 700;
(E) no more than 15% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the
14
Subsequent Receivables pledged to the Indenture Trustee on such Funding
Date, shall have had a FICO Score at the time of origination thereof equal
to or below 660;
(F) no more than 5% (determined by the Aggregate Receivable Balance)
of all of the Receivables pledged to the Indenture Trustee, after taking
into consideration the Subsequent Receivables pledged to the Indenture
Trustee on such Funding Date, shall have had a FICO Score at the time of
origination thereof below 640;
(G) no more than 35% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have an original term of
more than 84 months;
(H) no more than 85% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have an original term of
more than 72 months;
(I) no more than 75% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have been, at the time of
origination thereof, associated with a Financed Vehicle which is a used
vehicle;
(J) no more than 20% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall be associated with a
Financed Vehicle which has a model year greater than 5 years prior to the
calendar year in which such Funding Date occurs;
(K) at least 95% (determined by the Aggregate Receivable Balance) of
all of the Receivables pledged to the Indenture Trustee, after taking into
consideration the Subsequent Receivables pledged to the Indenture Trustee
on such Funding Date, shall have been, at the time of origination thereof,
associated with a Financed Vehicle which is a passenger car, sport utility
vehicle or light-duty truck;
(L) no more than $50,000 of all of the Receivables pledged to the
Indenture Trustee, after taking into consideration the Subsequent
Receivables pledged to the Indenture Trustee on such Funding Date, shall
be Lendco Receivables or Ultra Receivables;
(M) no more than 0.50% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivable pledged to the
Indenture Trustee on such Funding Date, shall be Chapter 13 Receivables;
and
(N) the weighted average loan-to-value of the Aggregate Receivable
Balance in the Pool is less than 130%.
15
(xxvi) No Adverse Selection. No selection procedures adverse to the
Noteholders have been utilized in selecting such Receivable from all other
similar receivables originated or acquired by the Contributor.
(xxvii) Form of Contract. For any State wherein 10% or more,
determined by the Aggregate Receivable Balance, of all Receivables have
been pledged to the Indenture Trustee, each such Receivable contains
provisions that give the obligee substantially the same benefits as
provided in one of the form contracts attached as Exhibit B hereto, except
for such immaterial modifications or deviations from such form contracts
which appear in certain Receivables or which may appear in the future form
contracts of the Contributor or which the Depositor acquires from the
Contributor; any such modifications or deviations from the form loan
contracts will not have a material adverse effect on the Noteholders.
(xxviii) Loss or Destruction. As of the related Cutoff Date, no
Financed Vehicle related to a Receivable has been the subject of a total
loss or destruction.
(xxix) No Obligation to Dealers. The Issuer and its assignees will
assume no obligation to Dealers or other holders of the Receivables as a
result of its acquisition of the Receivables.
(xxx) No Future Obligation. The full Amount Financed of each
Receivable has been advanced to or on behalf of each Obligor, and there
are no requirements for future advances thereunder. The Obligor with
respect to each Receivable does not have any option under such Receivable
to borrow from the Depositor or any Affiliate additional funds secured by
the Financed Vehicle.
(xxxi) Prior Servicing. The servicing of each Receivable and the
collection practices relating thereto have been lawful and in accordance
with the standards set forth in the Collection Policy; other than the
Servicer and any back up servicer arrangement that has been entered into
in accordance with the provisions of the Transaction Documents, no other
person has the right to service any Receivable.
(xxxii) Licenses. The Contributor, at the time of origination of
each Receivable and as of Closing Date, with respect to the Initial
Receivables, and as of the applicable Funding Date, with respect to the
Subsequent Receivables, was in possession of all State and local licenses
(including all debt collection licenses) required for it to acquire and
own such Receivable and service such Receivable in accordance with the
Collection Policy in effect on such date and to perform its services as
Servicer under this Agreement, and none of such licenses has been
suspended, revoked or terminated, except where the failure of the
Contributor to obtain and maintain any such license could not have a
material adverse effect on the Issuer, any Noteholder, any Receivable or
other part of the Trust Estate or the Contributor's ability to perform its
obligations as Contributor, Custodian or Servicer under the Transaction
Documents.
(xxxiii) Payment Instructions. No Person has provided any payment
instructions to any Obligor that are inconsistent with the provisions of
Section 7.01(d) hereof.
16
Notwithstanding anything to the contrary herein, within thirty (30) days after
the Closing Date, the Depositor shall provide the forms of contracts required
pursuant to Section 3.02(a)(xxvii) hereof and the representations and warranties
made by the Depositor, prior to such delivery, pursuant to Section
3.02(a)(xxvii) hereof , shall be deemed to be true and correct in all respects.
(b) Organization and Good Standing. The Depositor has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted. The Depositor is not
organized under the laws of any jurisdiction other than Delaware.
(c) Due Qualification. The Depositor 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 its property or the conduct of its business
(including, without limitation, the purchase of the Receivables from the
Contributor under the Contribution Agreement and under each Contributor
Assignment, the conveyance of the Receivables by the Depositor hereunder
and under each Depositor Assignment, and the performance of its other
obligations under this Agreement, each Contributor Assignment, each
Depositor Assignment and the other Transaction Documents to which it is a
party) requires such qualification where the failure to be so qualified
would materially and adversely affect its business or operations, its
ability to perform its obligations under the Transaction Documents, the
Issuer, any Noteholder, the Receivables or any other part of the Trust
Estate.
(d) Power and Authority. The Depositor has the power and authority
to execute and deliver this Agreement and the other Transaction Documents
to which it is a party and to carry out its terms and their terms,
respectively; the Depositor has all power, authority and legal right to
acquire, own and transfer the Receivables and Deposited Assets to the
Issuer; and the execution, delivery and performance of this Agreement and
the other Transaction Documents to which it is a party have been duly
authorized by the Depositor by all necessary corporate action.
(e) Binding Obligations. This Agreement and the other Transaction
Documents to which the Depositor is a party, when duly executed and
delivered by the other parties hereto and thereto, shall constitute legal,
valid and binding obligations of the Depositor enforceable in accordance
with their respective terms, except as enforceability 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.
(f) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Transaction Documents to which it is a
party and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party shall not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, the
certificate of incorporation or by-laws of the Depositor, or any material
agreement, mortgage, deed of
17
trust or other material instrument to which the Depositor 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, or violate any
material law, order, rule or regulation applicable to the Depositor of any
court or of any federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor
or any of its properties, or in any way materially adversely affect the
interests of the Noteholders or the Indenture Trustee in any Receivable or
any other part of the Trust Estate, or affect the Depositor's ability to
perform its obligations under this Agreement or any other Transaction
Document to which it is a party.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge, threatened against the
Depositor, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction over
the Depositor or its properties (i) asserting the invalidity of this
Agreement or any of the other Transaction Documents, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the other
Transaction Documents, (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, this
Agreement or any of the other Transaction Documents, (iv) seeking to
adversely affect the federal income tax or other federal, State or local
tax attributes of the Notes, or (v) that could reasonably be expected to
have a material adverse effect on the Receivables.
(h) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, corporation or other organization, or of any
court, governmental agency or body or official, required in connection
with the execution and delivery by the Depositor of this Agreement or any
other Transaction Document to which it is a party have been or will be
taken or obtained on or prior to the Closing Date.
(i) Depositor Address. The Depositor Address is, and has been since
its date of incorporation, the chief place of business and the office
where the Depositor keeps its records concerning the Receivables and the
Deposited Assets. The Depositor's chief executive office is and has been
since its date of incorporation ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Depositor's jurisdiction of incorporation is, and
has been since its date of incorporation, Delaware.
(j) Solvency of the Depositor:
(i) The Depositor does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and every
covenant contained in this Agreement.
(ii) The transactions contemplated by the Transaction
Documents are being consummated by the Depositor in furtherance of
its ordinary business purposes, with no contemplation of insolvency
and with no intent to hinder, delay or defraud any of its present or
future creditors.
18
(iii) Neither on the date of the transactions contemplated by
the Transaction Documents or immediately before or after such
transactions, nor as a result of the transactions, will the
Depositor:
(A)be insolvent such that the sum of its debts is
greater than all of its respective property, at a fair
valuation;
(B) be engaged in or about to engage in, business or a
transaction for which any property remaining with the
Depositor will be an unreasonably small capital or the
remaining assets of the Depositor will be unreasonably small
in relation to its respective business or the transaction; and
(C) have intended to incur or believed it would incur,
debts that would be beyond its respective ability to pay as
such debts mature or become due. The Depositor's assets and
cash flow enable it to meet its present obligations in the
ordinary course of business as they become due.
(iv) Both immediately before and after the transactions
contemplated by the Transaction Documents (a) the present fair
salable value of the Depositor's assets was or will be in excess of
the amount that will be required to pay its probable liabilities as
they then exist and as they become absolute and matured; and (b) the
sum of the Depositor's assets was or will be greater than the sum of
its debts, valuing its assets at a fair salable value.
(v) There are no proceedings or investigations pending, or to
the knowledge of the Depositor, threatened, against or affecting the
Depositor in or before any court, governmental authority or agency
or arbitration board or tribunal (including, but not limited to any
such proceeding or investigation with respect to any environmental
or other liability resulting from the ownership of the Receivables)
which, individually or in the aggregate, involve the possibility of
materially and adversely affecting the properties, business,
prospects, profits or condition (financial or otherwise) of the
Depositor, or the ability of the Depositor to perform its
obligations under this Agreement. The Depositor is not in default
with respect to any order of any court, governmental authority or
agency or arbitration board or tribunal.
(k) Taxes. All tax returns or extensions required to be filed by the
Depositor in any jurisdiction (other than jurisdictions in which the
failure to file would not have a material adverse effect on the Depositor,
the Depositor's ability to perform its obligations under the Transaction
Documents, the Issuer, any Noteholder or any Receivable or any other part
of the Trust Estate) have in fact been filed, and all taxes, assessments,
fees and other governmental charges upon the Depositor, or upon any of the
properties, income or franchises shown to be due and payable on such
returns have been, or will be, paid or are being contested in good faith
by appropriate proceedings with respect to which the Agent has received
written notice. To the knowledge of the Depositor, all such tax returns
are true and correct and the Depositor has no knowledge of any proposed
additional tax
19
assessment against it in any material amount nor of any basis therefor.
The provisions for taxes on the books of the Depositor are in accordance
with generally accepted accounting principles.
(l) Consolidated Returns. The Contributor, the Depositor and the
Issuer are members of an affiliated group within the meaning of Section
1504 of the Internal Revenue Code which will file a consolidated federal
income tax return at all times until termination of the Transaction
Documents.
(m) Intent of Transactions. It is the intention of the Depositor
that the Receivables and the Deposited Assets are owned by the Issuer as
of the Closing Date or the related Funding Date, as applicable, and that
the beneficial interest in and title to the Receivables and the Deposited
Assets are not part of the Depositor's estate in the event of the filing
of a bankruptcy petition by or against the Depositor under any bankruptcy
law.
(n) Notes as Debt. For federal, State and local income tax purposes,
each of the Contributor and the Depositor, its shareholders and
stockholders and the Issuer shall treat the Receivables and the Deposited
Assets as owned by the Issuer, shall include in the computation of the
Depositor's gross income for such purposes the income from the Receivables
and the Deposited Assets, shall treat the Notes as debt of the Depositor
and its consolidated subsidiaries for such purposes, and shall cause the
Contributor and its consolidated subsidiaries to deduct the interest paid
or accrued with respect to the Notes in accordance with its applicable
method of accounting for such purposes.
(o) ERISA. The Depositor is in compliance with the Employee
Retirement Income Security Act of 1974, as amended.
(p) Certificates, Statements and Reports. The officers'
certificates, statements, reports and other documents prepared by the
Depositor and furnished by the Depositor to the Issuer, the Indenture
Trustee or the Agent pursuant to this Agreement or any other Transaction
Document to which the Depositor is a party, and in connection with the
transactions contemplated hereby or thereby, when taken as a whole, do not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained herein or therein
not misleading.
(q) Stock of Depositor. The Contributor is the registered owner of
all of the shares of common stock of the Depositor, all of which are fully
paid and nonassessable and owned of record, free and clear of all
mortgages, assignments, pledges, security interests, warrants, options and
rights to purchase other than those (if any) granted pursuant to the
Transaction Documents.
(r) Accuracy of Information. All information heretofore furnished by
the Depositor for purposes of or in connection with any of the Transaction
Documents or any transaction contemplated hereby or thereby is, and all
such information hereafter furnished by the Depositor will be, true and
accurate in every material respect on the date such information is stated
or certified and does not and will not contain any material
20
misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading.
(s) Material Adverse Change. Since December 31, 2004, no event has
occurred that would have a material adverse effect on (i) the financial
condition or operations of Depositor, (ii) the ability of the Depositor to
perform its obligations under the Transaction Documents, or (iii) the
collectibility of the Receivables generally or any material portion of the
Receivables.
(t) Compliance with Laws. The Depositor has complied in all respects
with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where
the failure to so comply could not reasonably be expected to have a
material adverse effect on the Issuer, any Noteholder, any Receivable or
other part of the Trust Estate.
Section 3.03. Repurchase of Receivables. (a) The Depositor hereby
covenants and agrees to deliver to the Issuer, the Contributor, the Servicer,
the Agent and the Indenture Trustee prompt written notice of the occurrence of a
breach of any of the representations and warranties of the Depositor contained
or deemed to be contained in Section 3.02(a) hereof with respect to a Receivable
transferred hereunder. Upon discovery by the Depositor, the Issuer, the
Indenture Trustee, the Agent or the Servicer of (a) a Nonconforming Receivable,
or (b) the failure to deliver any document required to be included in any
Custodian File or file any UCC Financing Statement required to be filed pursuant
to the Transaction Documents, the party discovering such breach or failure to
deliver shall give prompt written notice to each of the other foregoing parties.
Except as specifically provided in this Agreement or the Indenture, the
Indenture Trustee has no obligation to review or monitor the Receivables or the
Deposited Assets for compliance with the representations and warranties or
delivery requirements set forth herein. If (i) the breach of representations or
warranties causing such Receivable to be a Nonconforming Receivable has a
material adverse effect on such Receivable or its collectibility or the
Noteholders and shall not have been (A) cured within thirty (30) days following
notice thereof or (B) waived by the Majority Holders following notice thereof or
(ii) the failure to deliver to the Custodian such Custodian File documents or
UCC Financing Statements shall not have been cured within the time period
required herein (other than the Certificates of Titles, with respect to which
the Contributor shall have three (3) Business Days after the one hundred eighty
(180) day period set forth in Section 3.02(a)(xvii)), the Depositor shall
deposit or cause to be deposited the Repurchase Price with respect to such
Receivable in the Collection Account within two (2) Business Days following the
applicable cure period, if any; provided, that a breach of a representation and
warranty set forth in paragraphs (ii), (iii), (v), (vii), (ix), (xiv), (xv),
(xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxviii), (xxx) and (xxxii)
of Section 3.02(a) automatically shall be deemed to have a material adverse
effect on the applicable Receivable or the Noteholders. The Issuer shall
transfer to the Depositor the Receivable (and the Deposited Assets relating
solely to such Receivable) affected by such breach or failure to deliver;
provided, that such transfer and assignment shall only be made upon receipt by
the Issuer of notice from the Servicer that the Repurchase Price has been
remitted to the Servicer and deposited into the Collection Account. The Issuer
shall be entitled to enforce the obligations of the Depositor, the Contributor
and each applicable Dealer under this Agreement, the Contribution Agreement and
the applicable Dealer Agreement, respectively, to remit the Repurchase Price to
the Servicer for
21
deposit into the Collection Account. The Indenture Trustee and the Agent are
authorized to take action on behalf of the Issuer (i) to enforce the obligations
of the Depositor to repurchase such Receivable under this Agreement, (ii) to
enforce the obligations of the Contributor to repurchase such Receivable under
the Contribution Agreement and (iii) to enforce the obligation of a Dealer to
repurchase such Receivable under the applicable Dealer Agreement.
(b) The obligations of the Depositor, the Contributor and the Issuer to
remove any Receivable (and the Deposited Assets relating solely to such
Receivable) and to remit the Repurchase Price with respect to a Nonconforming
Receivable which has a material adverse affect on the Noteholders or on such
Receivable or its collectibility or as to which a failure to deliver has
occurred and is continuing shall constitute the sole remedy, except for the
indemnification provisions expressly set forth in the Indenture, this Agreement
and the Contribution Agreement, against the Depositor, the Contributor and the
Issuer for such breach or failure to deliver, available to the Indenture Trustee
or the Noteholders.
Notwithstanding the foregoing, the Depositor shall indemnify the Owner
Trustee (as such and in its individual capacity), the Issuer, the Indenture
Trustee, the Backup Servicer, the Agent, the Noteholders and their respective
officers, directors, employees and agents against all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel, which may be asserted against or incurred by any of them, as a result
of third-party claims arising out of the events or facts giving rise to a
repurchase event set forth in Section 3.03(a).
Section 3.04. Issuer's Assignment of Repurchased Receivables. With respect
to any Receivable reacquired by the Depositor pursuant to this Agreement, the
Issuer shall assign, without recourse, representation or warranty, to the
Depositor all the Issuer's right, title and interest in and to such Receivable,
and all security and documents relating thereto.
Section 3.05. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement are made as of the
execution and delivery of this Agreement, and shall survive the sale, transfer
and assignment of the related Receivables and the other related Deposited Assets
hereunder and under the related Depositor Assignment, as applicable, to the
Issuer, and the pledge thereof by the Issuer to the Indenture Trustee under the
Indenture. The Depositor and the Issuer agree that the Issuer will assign to the
Indenture Trustee all of the Issuer's rights under this Agreement and each
Depositor Assignment and that the Indenture Trustee shall thereafter be entitled
to enforce this Agreement and each Depositor Assignment directly against the
Depositor in the Indenture Trustee's own name on behalf of the Noteholders;
provided, however, that the representations and warranties of the Depositor in
this Agreement shall not be construed as a warranty or guaranty by the Depositor
as to the future payments by any Obligor.
22
ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligation of the Issuer. The obligation of
the Issuer to accept any transfer of Receivables hereunder is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Depositor hereunder
shall be true and correct on the Closing Date and each Funding Date, as
the case may be, with the same effect as if then made, and the Depositor
shall have performed all obligations to be performed by it hereunder on or
prior to the Closing Date or Funding Date, as the case may be.
(b) The Depositor shall, at its own expense, on or prior to the
Closing Date and each Funding Date, as applicable, indicate in its files
that the applicable Receivables have been transferred to the Issuer
pursuant to this Agreement and pledged to the Indenture Trustee pursuant
to the Indenture, and the Depositor shall deliver to the Issuer a related
Schedule of Receivables certified by an Authorized Officer of the
Depositor to be true, correct and complete. Further, the Depositor hereby
agrees that the computer files and other physical records of the
Receivables maintained by the Depositor will bear an indication reflecting
that the Receivables were transferred to the Issuer and pledged to the
Indenture Trustee.
(c) The following documents must be delivered by the Depositor on or
in connection with the Closing Date and each Funding Date, as applicable.
(i) The Depositor Assignment. As of the Closing Date and each
Funding Date, the Depositor shall execute a Depositor Assignment,
substantially in the form of Exhibit A hereto, with respect to the
Receivables and the related Deposited Assets being transferred by
the Depositor on such date (as identified on the Schedule of
Receivables attached to such Depositor Assignment).
(ii) Evidence of UCC Filings. On or prior to the Closing Date
and each Funding Date, as applicable, the Depositor shall provide
the Issuer evidence that the Depositor has obtained, at the expense
of the Depositor, (A) executed releases and UCC-3 releases or
termination statements in each jurisdiction in which required by
applicable law, if any, to release any prior security interests in
the Receivables and the related Deposited Assets granted by the
Depositor and (B) UCC-1 financing statements in each jurisdiction in
which required by applicable law, executed by the Depositor, as
seller or debtor, and naming the Issuer, as purchaser or secured
party, identifying the Receivables and the related Deposited Assets
as collateral, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the
transfer of such Receivables to the Issuer.
23
(iii) Other Documents. The Depositor must deliver such other
documents and legal opinions as the Issuer or the Agent may
reasonably request.
(d) Documents to be Delivered by the Depositor in Connection with
the Closing Date and each Funding Date. On or prior to the Closing Date or
a Funding Date, as applicable, the Depositor shall deliver to the
Custodian the following documents with respect to each Receivable
transferred on such date (collectively, with respect to each such
Receivable, a "Custodian File"): (a) a fully executed original of the
related retail installment contract, and an acknowledgment 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 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 or hard copy of an original credit application signed by the
Obligor, (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, or reasonably
required by the Issuer, from time to time to be kept on file, 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.
On or prior to the Closing Date or a Funding Date, as applicable,
the Depositor shall deliver or cause to be delivered to the Custodian the
original Certificate of Title or copies of correspondence to the
appropriate governmental authority, and all enclosures thereto, for
issuance of the original Certificate of Title for the related Financed
Vehicles.
If any original Certificate of Title is not delivered to the
Servicer due to the fact that such Certificate of Title has not yet been
issued by the applicable governmental authority and delivered to or on
behalf of the Contributor, such Certificate of Title shall be delivered by
the Contributor to the Servicer promptly following receipt thereof by the
Contributor but in no event later than one hundred eighty (180) days
following the Closing Date or the related Funding Date, as applicable;
provided, however, that for any original Certificate of Title not so
delivered to Custodian prior to the expiration of such 180-day period, or
if any other item of the Custodian File is not included therein, the
Depositor shall be deemed to be in breach of its representations and
warranties contained in Section 3.02(a) hereof, and the related Receivable
shall be repurchased by the Depositor pursuant to Section 3.03(a) hereof.
24
(e) Other Transactions. The transactions contemplated by the
Indenture, the Contribution Agreement, this Agreement and the other
Transaction Documents shall be consummated on the Closing Date or, with
respect to a Subsequent Transfer, shall have been consummated on the
related Funding Date.
Section 4.02. Conditions to Obligation of the Depositor. The obligation of
the Depositor to transfer the Receivables to the Issuer on the Closing Date or
each Funding Date, as the case may be, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Issuer hereunder shall
be true and correct on the Closing Date or such Funding Date, as the case
may be, with the same effect as if then made, and the Issuer shall have
performed all obligations to be performed by it hereunder on or prior to
the Closing Date or such Funding Date, as the case may be.
(b) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Depositor and the Agent, and the
Depositor and the Agent shall have received from the Issuer copies of all
documents relevant to the transactions herein contemplated as the
Depositor or the Agent may have requested.
(c) The Depositor shall have received the related Receivables
Purchase Price on the Closing Date and each Funding Date.
ARTICLE V
COVENANTS OF THE DEPOSITOR
The Depositor agrees with the Issuer as follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Depositor shall cause all financing statements and
continuation statements and any other necessary documents covering the right,
title and interest of the Issuer in and to the Receivables and the related
Deposited Assets to be promptly filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law to fully preserve and protect the right, title and interest of the Issuer
hereunder and the Indenture Trustee under the Indenture to the Receivables and
the other property of the Trust Estate. The Depositor shall deliver or cause to
be delivered to or at the direction of the Issuer (with copies to the Agent),
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recordation, registration or filing. The Issuer shall cooperate fully with the
Depositor in connection with the obligations set forth above and will execute
any and all documents reasonably required to fulfill the intent of this Section
5.01(a). In the event the Depositor fails to perform its obligations under this
subsection, the Issuer or the Indenture Trustee may do so at the expense of the
Depositor.
(b) Name and Other Changes. At least thirty (30) days prior to the
Depositor making any change in its name, identity, jurisdiction of organization
or structure which would make any financing statement or continuation statement
filed in accordance with paragraph (a) above
25
seriously misleading within the applicable provisions of the UCC or any title
statute, the Depositor shall give the Issuer, the Agent and the Indenture
Trustee written notice of any such change, and, no later than five (5) days
after the effective date thereof, the Depositor shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Issuer's interest in the Receivables and the Deposited Assets. At least sixty
(60) days prior to the date of any relocation of its principal executive office
or State of incorporation, the Depositor shall give the Indenture Trustee, the
Agent and the Issuer written notice thereof and the Depositor shall, within five
(5) days after the effective date thereof, file any amendment of any previously
filed financing or continuation statement or new financing statement necessary
or desirable to continue the perfection of the Issuer's interest in the
Receivables and the Deposited Assets. The Depositor shall at all times maintain
its principal executive office within the United States of America. The
Depositor shall not become or seek to become organized under the laws of more
than one jurisdiction. The Depositor at all times shall be and remain a
wholly-owned subsidiary of Bay View Acceptance.
(c) Accounts and Records. The Depositor shall maintain accounts and
records as to each Receivable accurately and in sufficient detail to permit the
reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each).
(d) Sale of Other Receivables. If at any time the Depositor shall propose
to sell, grant a security interest in, or otherwise transfer any interest in any
automobile, van, sport utility vehicle or light duty truck installment sale
contracts (other than the Receivables) to any prospective purchaser, lender, or
other transferee, the Depositor shall give to such prospective purchaser, lender
or other transferee computer tapes, records, or print-outs (including any
restored from backup archives) that, if they shall refer in any manner
whatsoever to any Receivable or Financed Vehicle, shall indicate clearly that
such Receivable or Financed Vehicle has been transferred to the Issuer and
pledged to the Indenture Trustee unless such Receivable has been paid in full or
repurchased.
(e) Access to Records. The Depositor shall, upon reasonable notice, permit
the Issuer, the Agent, the Indenture Trustee, the Servicer and their respective
agents at any time during normal business hours to inspect, audit, and make
copies of and abstracts from the Depositor's records regarding any Receivable.
(f) Other Actions. The Depositor shall from time to time, at its expense,
promptly execute and deliver all further instruments and documents (including,
without limitation, powers of attorney for the benefit of the Servicer) and take
all further action that may be necessary or desirable to permit the Servicer to
perform its obligations under this Agreement, including, without limitation the
Servicer's obligation to preserve and maintain the perfected security interest
of the Indenture Trustee in the Receivables, the Financed Vehicles and the other
Deposited Assets.
Section 5.02. Other Liens or Interest. Except for the transfers hereunder,
the Depositor will not sell, pledge, assign or transfer to any other person, or
grant, create, incur, assume or suffer to exist any Lien on, any interest, and
the Depositor shall defend the right, title, and interest of the Issuer in, to
and under the Initial Receivables and Subsequent Receivables and
26
other Deposited Assets against all claims of third parties claiming through or
under the Depositor; provided, however, that the Depositor's obligations under
this Section 5.02 shall terminate upon the termination of the Indenture in
accordance with its terms.
Section 5.03. Principal Executive Office; Jurisdiction of Organization.
The Depositor shall maintain its principal executive office, principal place of
business, location of all books and records relating to the Receivables and
other Deposited Assets and sole jurisdiction of organization at the locations
and in the jurisdiction, respectively, set forth in Section 3.02(i).
Section 5.04. Costs and Expenses. The Depositor agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the transfer to the Issuer of the Depositor's right, title
and interest in and to the Receivables and the Deposited Assets and the pledge
thereof to the Indenture Trustee.
Section 5.05. No Waiver. The Depositor shall not waive any default,
breach, violation or event permitting acceleration under the terms of any
Receivable; provided, however, nothing in this Section 5.05 shall affect the
rights of and the restrictions on the Servicer with respect to such matters as
set forth in this Agreement.
Section 5.06. Depositor's Records. The books and records of the Depositor
will disclose that the Depositor transferred the Receivables to the Issuer;
provided, however, the Depositor may show the Receivables as assets of the
consolidated companies that include the Contributor, the Depositor and the
Issuer as long as such financial statements indicate the transfers consummated
hereunder, under the Contribution Agreement, under each Contributor Assignment
and Depositor Assignment and under the Indenture and indicate that such assets
will not be available to satisfy the claims of any creditor of the Contributor
or the Depositor. In the event that the Issuer shall be deemed a separate
taxable entity for federal income tax purposes, the Contributor will file or
will cause to be filed all tax returns and reports in a manner consistent with
the transfer to the Issuer of the Receivables for federal income tax purposes.
Section 5.07. Cooperation by Depositor. (a) The Depositor will cooperate
fully and in a timely manner with the Issuer, the Servicer, the Agent and the
Indenture Trustee in connection with (i) the filing of any claims with an
insurer or any agent of any insurer under any Insurance Policy affecting an
Obligor or any of the Financed Vehicles; (ii) supplying any additional
information as may be requested by the Issuer, the Agent, the Servicer, the
Indenture Trustee or any such agent or insurer in connection with the processing
of any such claim; and (iii) the execution or endorsement of any check or draft
made payable to the Depositor representing proceeds from any such claim. The
Depositor shall take all such actions as may be requested by the Issuer, the
Servicer, the Agent or the Indenture Trustee to protect the rights of the Issuer
or the Indenture Trustee on behalf of the Noteholders in and to any proceeds
under any and all of the foregoing insurance policies. The Depositor shall not
take or cause to be taken any action which would impair the rights of the Issuer
or the Indenture Trustee on behalf of the Noteholders in and to any proceeds
under any of the foregoing insurance policies.
(b) The Depositor shall, within one (1) Business Day of receipt thereof,
endorse any check or draft payable to the Depositor representing insurance
proceeds and in the event there are no other payees on such check or draft,
forward, via hand delivery, such endorsed check or
27
draft to the Servicer for deposit into the Local Bank Account (or, if the Backup
Servicer is acting as successor Servicer, for deposit into the Backup Servicer
Account). The Depositor will hold in trust and remit to the Local Bank Account
(or, if the Backup Servicer is acting as successor Servicer, for deposit into
the Backup Servicer Account), within one (1) Business Day of receipt thereof,
any funds received with respect to the Receivables after the related Cutoff
Date.
Section 5.08. Notice of Breach. The Depositor shall notify in writing the
Indenture Trustee, the Noteholders, the Agent, and the Issuer promptly upon
becoming aware of any breach of the representations and warranties or covenants
of the Depositor or the Issuer contained herein or in any other Transaction
Documents.
Section 5.09. Liability of Depositor; Indemnities. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Depositor under this Agreement.
(i) The Depositor shall indemnify, defend, and hold harmless the
Indenture Trustee, the Agent, the Noteholders, the Servicer, the Backup
Servicer, the Owner Trustee (as such and in its individual capacity) and
the Issuer from and against any taxes (other than income or capital gains
taxes related to the sale of the Notes) that may at any time be asserted
against the Indenture Trustee or the Issuer with respect to, as of the
Closing Date (with respect to the Initial Receivables) and as of the
related Funding Date (with respect to the Subsequent Receivables), the
sale of the related Receivables to the Issuer or the issuance and original
sale of the Notes or asserted with respect to ownership of the
Receivables, including any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes and costs and
expenses in defending against the same.
(ii) The Depositor shall indemnify, defend, and hold harmless the
Indenture Trustee, the Agent, the Noteholders, the Servicer, the Backup
Servicer, the Owner Trustee (as such and in its individual capacity) and
the Issuer and their respective officers, directors, employees and agents,
from and against any loss, liability, or expense incurred by reason of the
Depositor's bad faith, willful misconduct or negligence in the performance
of its duties under this Agreement or any other Transaction Document to
which it is a party, or by reason of reckless disregard of the Depositor's
obligations and duties under this Agreement or any other Transaction
Document to which it is a party, or the Depositor's violation of federal
or State securities laws in connection with the initial sale of the Notes.
(iii) The Depositor shall indemnify, defend, and hold harmless the
Indenture Trustee, the Agent, the Noteholders, the Servicer, the Backup
Servicer, the Owner Trustee (as such and in its individual capacity) and
the Issuer and their respective officers, directors, employees and agents,
from and against any loss, liability, or expense incurred 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 of the Depositor
set forth in Article V hereof and Section 3.02 hereof.
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Indemnification under this Section 5.09 shall survive the termination of
this Agreement (or, in the case of indemnification of the Indenture Trustee or
the Backup Servicer, shall survive the resignation or removal of the Indenture
Trustee or Backup Servicer, respectively) and shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Depositor shall have made any indemnity payment to the Indenture Trustee, the
Agent, the Noteholders, the Servicer, the Backup Servicer, the Owner Trustee (as
such or in its individual capacity) or the Issuer pursuant to this Section and
any such Person thereafter shall collect any of such amounts from others, then
such Person shall repay such amounts to the Depositor, without interest. If the
Depositor fails to indemnify any applicable Person pursuant to this Section
5.09, then such Person shall notify the Contributor of such failure and the
Contributor shall pay the amount of such indemnification to the applicable
Person within two (2) Business Days of receipt of such notice.
Notwithstanding anything to the contrary contained in this Agreement, the
obligations of the Depositor under this Section 5.09 are solely the corporate
obligations of the Depositor, and shall be payable by the Depositor, as provided
in this Section 5.09. The Depositor shall only be required to pay (a) any fees,
expenses, indemnities or other liabilities that it may incur under this Section
5.09 to the extent the Depositor has funds available that would be in excess of
amounts that would be necessary to pay the debt and other obligations of the
Depositor incurred in accordance with the Depositor's certificate of
incorporation and all financing documents to which the Depositor is a party and
(b) any expenses, indemnities or other liabilities that it may incur under this
Section 5.09 only to the extent it receives funds designated for such purposes
or to the extent it has funds available that would be in excess of amounts that
would be necessary to pay the debt and other obligations of the Depositor
incurred in accordance with the Depositor's certificate of incorporation and all
financing documents to which the Depositor is a party. In addition, no amount
owing by the Depositor hereunder in excess of the liabilities that it is
required to pay in accordance with the preceding sentence shall constitute a
"claim" (as defined in Section 101(5) of the Bankruptcy Code) against it. No
recourse shall be had for the payment of any amount owing hereunder or for the
payment of any fee hereunder or any other obligation of, or claim against, the
Depositor arising out of or based upon this Section 5.09, against any
stockholder, employee, officer, agent, director or authorized person of the
Depositor or of any Affiliate thereof (other than with respect to any obligation
of the Contributor as set forth in the last sentence of the foregoing
paragraph); provided, however, that the foregoing shall not relieve any such
Person or entity of any liability they might otherwise have as a result of
fraudulent actions or willful misconduct or omissions taken by them.
Section 5.10. Merger or Consolidation of, or Assumption of the Obligations
of, Depositor. Subject to Section 5.13 hereof, any Person (i) into which the
Depositor may be merged or consolidated, (ii) resulting from any merger,
conversion, or consolidation to which the Depositor shall be a party, (iii)
succeeding to the business of the Depositor, or (iv) exercising control directly
or indirectly of the Depositor, which Person in any of the foregoing cases
executes an agreement of assumption acceptable, in their respective absolute
discretion, to each of the Agent and the Indenture Trustee, to perform every
obligation of the Depositor under this Agreement and the other Transaction
Documents to which the Depositor is a party, will be the successor to the
Depositor under this Agreement without the execution or filing of any document
or any further act on the part of any of the parties to this Agreement;
provided, however, that (a) immediately after giving effect to such transaction,
(1) no representation or warranty made
29
pursuant to Section 3.02(a) would have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation of
such transaction) and (2) no event that, after notice or lapse of time, or both,
would become a Servicer Event of Default, an Event of Default or a Termination
Event, shall have occurred and be continuing, (b) the Depositor shall have
delivered to the Agent and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, conversion, merger, or
succession and such agreement or assumption comply with this Section and Section
5.13(iii) and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (c) the
Depositor shall have delivered to the Agent and the Indenture Trustee an Opinion
of Counsel either (1) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Noteholders in the Receivables, and reciting the
details of such filings, or (2) stating that, in the opinion of such counsel, no
such action shall be necessary to preserve and protect such interest, and (d)
the organizational documents of the Person surviving or resulting from such
transaction shall contain provisions the same in substantive effect as those of
the Depositor's articles of incorporation in respect of the issuance of debt,
the independent director and bankruptcy remoteness. The Depositor shall provide
written notice of any merger, consolidation, conversion, or succession pursuant
to this Section and Section 5.13(iii) to the Agent. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (a) through (e) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), (iii) or (iv)
above.
Section 5.11. Limitation on Liability of Contributor, Depositor and
Others. Each of the Contributor and the Depositor and any director or officer or
employee or agent of the Depositor or the Contributor may rely in good faith on
the written advice of counsel, Opinion of Counsel, Officer's Certificate, or on
any document of any kind, prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. Neither the Contributor nor the
Depositor shall be under any obligation to appear in, prosecute, or defend any
legal action that shall not be incidental to its obligations under this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, that the Contributor or the Depositor, as the case may be,
may undertake any reasonable action that it may in good ▇▇▇▇▇ ▇▇▇▇ necessary or
desirable in respect of this Agreement and the rights and duties of the parties
to this Agreement and the interests of the Noteholders under this Agreement. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs, and liabilities of the Contributor
or the Depositor, as the case may be.
Section 5.12. Contributor and Depositor May Own Notes. The Contributor or
the Depositor and any Person controlling, controlled by, or under common control
with the Contributor or the Depositor may in their individual or any other
capacities become the owner or pledgee of Notes with the same rights as it would
have if it were not the Contributor or the Depositor or an Affiliate thereof,
except as otherwise specifically provided herein. Notes so owned by or pledged
to the Contributor and the Depositor or such controlling, controlled or commonly
controlled Person shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
among all of the Notes, as the case may be.
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Section 5.13. Additional Covenants of the Depositor. The Depositor shall
not do any of the following, without (a) the prior written consent of the
Majority Holders, and (b) the prior written consent of the Indenture Trustee,
who shall, without any exercise of its own discretion, also provide its written
consent to the Depositor upon receipt by it of a copy of the written consent of
the Majority Holders:
(i) engage in any business or activity other than those set forth in
the certificate of incorporation and bylaws of the Depositor or amend the
Depositor's certificate of incorporation and by laws other than in
accordance with its terms as in effect on the date hereof;
(ii) incur any indebtedness, or assume or guaranty any indebtedness
of any other entity;
(iii) dissolve or liquidate, in whole or in part, consolidate or
merge with or into any other entity or convey or transfer its properties
and assets substantially as an entirety to any entity; or
(iv) without the affirmative vote of 100% of the members of the
board of directors of the Depositor, including the independent directors,
institute proceedings to be adjudicated bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against it, or
file a petition seeking or consent to reorganization or relief under any
applicable federal or State law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Depositor or a substantial part of its
property, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay its debts generally as they become due, or
take corporate action in furtherance of any such action.
ARTICLE VI
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 6.01. Appointment and Duties of the Servicer.
(a) The Issuer hereby appoints Bay View Acceptance as the Servicer for an
initial term commencing on the Closing Date, which term shall be automatically
extended for successive 364-day terms, until the Notes are paid in full, unless
the Agent, in its sole discretion, delivers a Servicer Termination Notice as set
forth below. The Servicer hereby agrees that, as of the date hereof, the
Servicer shall become bound, for the initial term beginning on the Closing Date
and for the duration of each successive term to continue as the Servicer subject
to and in accordance with the other provisions of this Agreement. At any time
during the initial term or any subsequent term, the Agent may, in its sole
discretion, deliver to the Servicer a written notice (a "Servicer Termination
Notice") providing that the then current Servicer's duties as Servicer shall
terminate at the end of the then current term.
(b) The Backup Servicer, if not then acting as successor Servicer, may be
terminated as Backup Servicer at any time, with or without cause and without
payment of the Backup Servicer Termination Fee. If the Backup Servicer is acting
as successor Servicer, (i) the Backup
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Servicer may be terminated pursuant to the terms of Section 10.02, or (ii) the
Agent may terminate the term of the Backup Servicer at any time for any reason,
subject to the payment of the Backup Servicer Termination Fee, upon sixty (60)
days' written notice to the Backup Servicer. The Agent may terminate the term of
the Backup Servicer upon five (5) days' written notice, and the Backup Servicer
shall not be entitled to the Backup Servicer Termination Fee, if the Agent has
determined in its reasonable credit judgment that the Backup Servicer has
engaged in willful misconduct or gross negligence in the performance of its
duties hereunder.
(c) The Servicer shall service, administer and make collections on the
Receivables, and perform the other actions required of the Servicer under this
Agreement. The Servicer agrees that its servicing of the Receivables shall be
carried out in accordance with its customary and usual collection procedures.
The Servicer's duties shall include, without limitation, collection and posting
of all payments, responding to inquiries of Obligors on the Receivables,
investigating delinquencies, sending monthly statements to Obligors, reporting
any required tax information to Obligors, policing and foreclosing on the
collateral (including the Financed Vehicles), accounting for collections and
furnishing the Weekly Servicer Report, the Monthly Servicer Report, the
Pre-Funding Servicer Report and annual statements to the Backup Servicer, the
Indenture Trustee and the Agent with respect to distributions, and performing
the other duties specified herein (it being understood that if the Backup
Servicer is acting as successor Servicer, it shall not be required to issue
Weekly Servicer Reports). The Servicer shall also administer and enforce all
rights and responsibilities of the holder of the Receivables provided for in the
Dealer Agreements and the Insurance Policies, to the extent that such Dealer
Agreements and Insurance Policies relate to the Receivables, the Financed
Vehicles or the Obligors (it being understood that if the Backup Servicer is
acting as successor Servicer, it shall have no duty to enforce such 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 such servicing,
administration and collection that it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer is hereby authorized and
empowered by the Indenture Trustee, on behalf of the Trust, to execute and
deliver, on behalf of the Noteholders and the Indenture Trustee, 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 under any Receivable or waive the right to collect the unpaid
balance of any Receivable from the Obligor, except that the Servicer may forego
collection efforts if the amount subject to collection is Supplemental Servicing
Fees or any other fees that are property of the Servicer or are otherwise de
minimis (i.e., less than twenty dollars ($20)) or if it would forego collection
in accordance with its customary procedures. The Servicer is hereby authorized
to commence, in its own name or in the name of the Indenture Trustee, on behalf
of the Trust, a legal proceeding to enforce a Receivable pursuant to Section
6.02 or to commence or participate in any other legal proceeding (including,
without limitation, a bankruptcy proceeding) relating to or involving a
Receivable, an Obligor or a Financed Vehicle. If the Servicer commences or
participates in such a legal proceeding in its own name, the Indenture Trustee
shall thereupon be deemed to have automatically assigned such Receivable to the
Servicer solely for purposes of commencing or participating in any such
proceeding as a party or claimant, and the Servicer is authorized and
32
empowered by the Indenture Trustee, on behalf of the Trust, to execute and
deliver in the Servicer's name any notices, demands, claims, complaints,
responses, affidavits or other documents or instruments in connection with any
such proceeding. The Indenture Trustee, on behalf of the Trust, shall furnish,
at the Servicer's expense, the Servicer with any powers of attorney and other
documents which the Servicer may reasonably request in writing and which the
Servicer deems necessary or appropriate and take any other steps which the
Servicer may deem necessary or appropriate to enable the Servicer to carry out
its servicing and administrative duties under this Agreement; provided, however,
that if the Backup Servicer is the successor Servicer, it shall be reimbursed
for all out-of-pocket expenses incurred in connection with the enforcement of
the Receivables and shall not be responsible for expenses incurred in connection
with such powers of attorney necessary to satisfy its administrative and
servicing duties hereunder. The Servicer shall furnish to the Owner Trustee, the
Indenture Trustee, and the Agent from time to time such additional information
regarding the Backup Servicer, the Issuer or the Transaction Documents as the
Owner Trustee, the Backup Servicer, the Indenture Trustee or the Agent shall
reasonably request.
Section 6.02. Realization upon Receivables. (a) On behalf of the
Noteholders and the Issuer and consistent in all material respects with the
standards, policies and procedures required by the Collection Policy, the
Servicer shall repossess (or otherwise comparably convert the ownership of) and
liquidate any Financed Vehicle securing a Receivable with respect to which the
Servicer has determined that payments thereunder are not likely to be resumed,
as soon as is practicable after default on such Receivable but in no event later
than the date on which ten percent (10%) or more of a Scheduled Obligor Payment
remains unpaid for one hundred eighty (180) or more days from the date on which
it is due and payable. 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 6.01, which practices and
procedures may include reasonable efforts to realize upon any recourse to the
Dealers (it being understood that if the Backup Servicer is acting as successor
Servicer, it shall have no duty to enforce such remedy), selling 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 upon such
a Receivable. The foregoing is subject to the provision 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 there is a
reasonable likelihood that such repair and/or repossession shall increase the
proceeds of liquidation of the related Receivable by an amount greater than the
amount of such expenses. All amounts received upon liquidation of a Financed
Vehicle shall be remitted directly by the Servicer to the Local Bank Account
(or, if the Backup Servicer is acting as successor Servicer, for deposit into
the Backup Servicer Account) as soon as practicable, but in no event later than
two (2) Business Days after receipt thereof. The Servicer shall be entitled to
recover all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle, but only out of the cash proceeds of such
Financed Vehicle, any deficiency obtained from the Obligor or any amounts
received from the related Dealer, which amounts may be retained by the Servicer
(and shall not be required to be deposited into the Local Bank Account (or, if
the Backup Servicer is acting as successor Servicer, into the Backup Servicer
Account)) to the extent of such expenses. The Servicer shall recover such
reasonable expenses based on the information contained in the Monthly Servicer
Report delivered on the related Determination Date. The Servicer shall pay on
behalf of the Issuer any personal property taxes
33
assessed on repossessed Financed Vehicles; the Servicer shall be entitled to
reimbursement of any such tax from Recoveries with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement, the act of commencement shall be deemed to be an automatic
assignment from the Indenture Trustee to the Servicer of the rights under such
Dealer Agreement for purposes of collection only. If, however, in any
enforcement suit or legal proceeding, it is held that the Servicer may not
enforce a Dealer Agreement on the grounds that it is not a real party in
interest or a Person entitled to enforce the Dealer Agreement, the Indenture
Trustee, at the Servicer's expense, or the Issuer, at the Issuer's expense,
shall take such steps as the Servicer deems reasonably necessary to enforce the
Dealer Agreement, including bringing suit in its name or the name of the Issuer,
the Depositor, the Contributor or the Indenture Trustee for the benefit of the
Noteholders. All amounts recovered (less the expenses of such enforcement) shall
be remitted directly by the Servicer to the Local Bank Account (or, if the
Backup Servicer is acting as successor Servicer, to the Backup Servicer Account)
as soon as practicable, but in no event later than two (2) Business Days after
receipt thereof.
Section 6.03. Insurance. (a) The Servicer shall monitor the status of each
Insurance Policy in accordance with its customary servicing procedures (it being
understood that if the Backup Servicer is acting as successor Servicer, it shall
have no duty to monitor the status of any Insurance Policy). If the Servicer
shall determine that an Obligor has failed to obtain or maintain a physical loss
and damage Insurance Policy covering the related Financed Vehicle which
satisfies the conditions set forth in Section 3.02(a) of the Contribution
Agreement and Section 3.02(a) of this Agreement (including during the
repossession of such Financed Vehicle), the Servicer may, but shall not be
required to, in accordance with its customary practice, enforce the rights of
the holder of the Receivable thereunder to require the Obligor to obtain such
physical loss and damage insurance.
(b) To the extent applicable, the Servicer shall not take any action which
would result in noncoverage under any of the Insurance Policies referred to in
Section 6.03(a) which, but for the actions of the Servicer, would have been
covered thereunder. The Servicer, on behalf of the Indenture Trustee, shall take
such reasonable action as shall be necessary to permit recovery under any of the
foregoing Insurance Policies. Any amounts collected by the Servicer under any of
the foregoing Insurance Policies shall be deposited into the Local Bank Account
(or, if the Backup Servicer is acting as successor Servicer, to the Backup
Servicer Account) within two (2) Business Days of receipt.
(c) The Servicer may ▇▇▇ to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Issuer and Indenture
Trustee on behalf of the Trust. 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 Issuer and Indenture
Trustee under such Insurance Policy to the Servicer for purposes of collection
only. If, however, in any enforcement suit or legal proceeding it is held that
the Servicer may not enforce an Insurance Policy on the grounds that it is not a
real party in interest or a holder entitled to enforce the Insurance Policy, the
Indenture Trustee, at the Servicer's expense, or the Contributor, at the
Contributor's expense, shall take such steps as the Servicer deems reasonably
necessary to
34
enforce such Insurance Policy, including bringing suit in its name or the name
of the Indenture Trustee for the benefit of the Noteholders.
Section 6.04. Maintenance of Security Interests in Vehicles. (a)
Consistent with the policies and procedures required by this Agreement, the
Servicer shall take such steps as are necessary to maintain perfection of the
security interest created in the name of the Contributor by each Receivable in
the related Financed Vehicle on behalf of the Indenture Trustee, including but
not limited to obtaining the execution by the Obligors and the recording,
registering, filing, rerecording, re-filing, and re-registering of all security
agreements, financing statements and continuation statements as are necessary to
maintain the security interest granted by the Obligors under the respective
Receivables. The Indenture Trustee hereby authorizes the Servicer, and the
Servicer agrees, to take any and all steps necessary to re-perfect such security
interest on behalf of the Indenture Trustee as necessary because of the
relocation of a Financed Vehicle or for any other reason. In the event that the
assignment of a Receivable to the Indenture Trustee 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 Indenture Trustee, the parties
hereto agree that the Contributor's designation as the secured party on the
Certificate of Title is, with respect to each secured party, as applicable, in
its capacity as agent of the Indenture Trustee. The Servicer shall provide
copies of all such filings to the Indenture Trustee, the Agent and the
Custodian. If the Backup Servicer is acting as successor Servicer, it shall be
reimbursed pursuant to Section 5.03(b) of the Indenture for any costs incurred
by it in performing its duties pursuant to this Section 6.04.
(b) Upon the occurrence of a Termination Event, Servicer Event of Default
or Event of Default, the Servicer (if the Servicer is Bay View Acceptance or a
successor to the business of Bay View Acceptance) (the "Original Servicer"), at
the written direction of the Majority Holders, shall take or cause to be taken
such action as may, in the judgment of the Majority Holders, be necessary or
desirable to perfect or re-perfect the security interests in the Financed
Vehicles securing the Receivables in the name of the Indenture Trustee on behalf
of the Issuer and the Noteholders by amending the title documents of such
Financed Vehicles or by such other reasonable means as may be necessary or
prudent, and shall deliver to the Indenture Trustee any Custodian File or
portion thereof that has been released by the Indenture Trustee to the Servicer
and is then in the possession of the Servicer, including any original
Certificates of Title. The Servicer shall, and if the Servicer has been removed
or otherwise fails to, the Contributor shall pay or reimburse all costs and
expenses related to such perfection or re-perfection (the "Reliening Expenses")
on demand. If the Servicer is the Backup Servicer or any other Person acting in
the capacity of successor Servicer, upon the occurrence of a Termination Event,
Servicer Event of Default or Event of Default, such successor Servicer at the
written direction of the Majority Holders shall take or cause to be taken such
action as may, in the opinion of counsel to the Agent, which opinion shall be an
expense of the Majority Holders (but shall be reimbursable to the Majority
Holders in accordance with the Indenture), be necessary or desirable to perfect
or re-perfect the security interests in the Financed Vehicles securing the
Receivables in the name of the Indenture Trustee on behalf of the Issuer and the
Noteholders by amending the title documents of such Financed Vehicles or by such
other reasonable means as may, as set forth in such opinion of counsel to the
Agent, be necessary or prudent and shall deliver to the Indenture Trustee any
Custodian File or portion thereof that has been released by
35
the Indenture Trustee to the Servicer and is then in the possession of the
Servicer, including any original Certificates of Title. The Original Servicer
shall pay or reimburse all Reliening Expenses on demand. If such successor
Servicer is the Backup Servicer, such successor Servicer may, if it so chooses,
attempt to employ a third party to perform the perfection and re-perfection
duties under this Section 6.04(b) either prior to, or after the occurrence of, a
Termination Event, Servicer Event of Default or Event of Default and, if after
making reasonable efforts to employ such a third party such successor Servicer
is unable to enter into an agreement with such a third party to perform such
duties, the Agent shall identify and employ a third party to perform the
perfection and re-perfection duties under this Section 6.04(b) and such
successor Servicer shall only be required to provide such reasonable cooperation
and assistance to such third party as may be necessary in connection with the
perfection and re-perfection duties under this Section 6.04(b). In any case,
such successor Servicer shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance, or cooperating and
assisting in the performance, of any of the duties under this Section 6.04(b) if
the repayment of such funds or adequate written indemnity against such risk or
liability is not reasonably assured to it prior to the expenditure or risk of
such funds or incurrence of financial liability. In addition, prior to the
occurrence of a Termination Event, Servicer Event of Default or Event of
Default, the Agent may instruct the Servicer to take or cause to be taken such
action, and instruct the Indenture Trustee to use its best efforts to cooperate
and assist the Servicer with any such action, as may, in the judgment of the
Majority Holders or the Agent, be reasonably necessary to perfect or re-perfect
the security interest in the Financed Vehicles securing the Receivables in the
name of the Indenture Trustee on behalf of the Issuer and the Noteholders,
including by amending the Certificates of Title related to such Financed
Vehicles to reflect the security interest of the Indenture Trustee in the
related Financed Vehicle or by such other reasonable means as may be necessary
or prudent.
The Servicer hereby makes, constitutes and appoints the Indenture Trustee
acting through its duly appointed officers or any of them, its true and lawful
attorney, for it and in its name and on its behalf, for the sole and exclusive
purpose of authorizing said attorney to execute and deliver 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 show the
Indenture Trustee as lienholder or secured party on the Certificate of Title
relating to a Financed Vehicle. Notwithstanding anything herein to the contrary,
the Indenture Trustee shall be under no obligation to file or prepare financing
statements or continuation statements, or to take any action or to execute any
further documents or instruments in order to create, preserve or perfect the
security interest granter hereunder, such obligations being solely the
obligations of the Servicer.
Section 6.05. Servicing Fee; Payment of Certain Expenses by Servicer. On
each Payment Date, the Servicer shall be entitled to receive out of the
Collection Account the Servicing Fee and any late fees, prepayment charges,
including any administration fees or similar charges owed by an Obligor under a
Receivable, for the related Collection Period pursuant to Section 5.03(b) of the
Indenture. 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, expenses incurred in connection with distributions and reports to
Noteholders). The Servicer shall be liable for the fees and expenses of the
Independent Accountants.
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Section 6.06. Servicer Report; Monthly Servicer Report; Pre-Funding
Servicer Report.
(a) No later than 1:00 p.m. New York time on the second Business Day prior
to any proposed Funding Date, the Servicer shall deliver to the Indenture
Trustee, the Backup Servicer, the Agent and the Issuer a Weekly Servicer Report
for the preceding week executed by a Responsible Officer of the Servicer
containing, among other things, (i) all information necessary whether the
conditions for a Subsequent Transfer on the next Funding Date will be satisfied,
and (ii) a certification that all Receivables are Eligible Receivables, that the
Collateral Test Amount is not less than zero (0), that the Issuer is in
compliance with Section 3.15 of the Indenture, and whether any Termination Event
or Event of Default has occurred (it being understood that if the Backup
Servicer is acting as successor Servicer, it shall not be required to issue
Weekly Servicer Reports).
(b) No later than 1:00 p.m. New York time on each Determination Date, the
Servicer shall deliver to the Indenture Trustee, the Backup Servicer, the Agent
and the Issuer a Monthly Servicer Report for the related Collection Period
executed by a Responsible Officer of the Servicer containing, among other
things, (i) all information necessary (including whether a Termination Event has
occurred) to enable the Indenture Trustee to make any withdrawal and deposit
required by Section 5.03(a) of the Indenture, to give any notice required by
Section 7.02 of the Indenture and make the distributions required by Section
5.03(b) of the Indenture, (ii) all information necessary to enable the Indenture
Trustee to send the statements to Noteholders required by Section 5.05 of the
Indenture, (iii) a listing of each Receivable which became a Defaulted
Receivable during the related Collection Period, identified by account number,
and (iv) a certification that all Receivables are Eligible Receivables, that the
Collateral Test has been met, and that the Issuer is in compliance with Section
3.15 of the Indenture (it being understood that if the Backup Servicer is acting
as successor Servicer, this clause (iv) shall require only a certification that
the Collateral Test has been met). In addition to the information set forth in
the preceding sentence, the Monthly Servicer Report shall also contain the
following information: (i) the Aggregate Receivables Balance, the Average
Delinquency Ratio, the Average Default Ratio and the Excess Spread for such
Determination Date; (ii) whether any Termination Event has occurred as of such
Determination Date; and (iii) whether any Termination Event that may have
occurred as of a prior Determination Date is deemed cured as of such
Determination Date.
(c) No later than 1:00 p.m. New York time, the Servicer shall deliver to
the Indenture Trustee, the Backup Servicer and the Agent a Pre-Funding Servicer
Report executed by a Responsible Officer of the Servicer in the form attached
hereto as Exhibit H.
Section 6.07. Annual Statement as to Compliance; Notice of Servicer Event
of Default; Annual and Quarterly Financial Statements. (a) The Servicer shall
deliver to the Indenture Trustee, the Agent, the Backup Servicer and the Issuer,
on or before April 30th of each year, an Officer's Certificate signed by any
Authorized Officer of the Servicer, for such fiscal year, stating that (i) a
review of the activities of the Servicer during the preceding 12-month period
(or such other period as shall have elapsed from the Closing Date to the date of
the first such certificate) and of its performance under this Agreement has been
made under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement throughout such period, or, if there has been
37
a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
(b) Each party hereto shall deliver to the other parties hereto and the
Agent promptly (and in no event later than two (2) Business Days) after a
Responsible Officer of such Person has obtained knowledge or notice thereof,
written notice of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Event of Default under Section 10.01.
(c) Bay View Acceptance will deliver to the Indenture Trustee, the Backup
Servicer and the Agent, on or before April 30th of each year, a copy of the
consolidated balance sheet of Bay View Acceptance and its subsidiaries as at the
end of such fiscal year, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with generally accepted
accounting principles, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Agent, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit.
(d) Bay View Acceptance shall deliver to the Indenture Trustee, the Backup
Servicer and the Agent within forty-five (45) days after the end of each fiscal
quarter, a consolidated balance sheet of Bay View Acceptance and its
subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of such fiscal year then ended setting forth
in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by an Authorized
Officer of Bay View Acceptance as fairly presenting the financial condition,
results of operations, shareholders' equity and cash flows of Bay View
Acceptance and its subsidiaries in accordance with generally accepted accounting
principles, subject only to normal year-end audit adjustments and the absence of
footnotes.
Section 6.08. Annual Independent Accountants' Report. (a) The Servicer
shall cause, at its expense, the Independent Public Accountants to deliver to
the Indenture Trustee, the Agent, and the Backup Servicer, on or before April
30th of each year, with respect to such fiscal year, a statement (the
"Accountant's Report") addressed to the Board of Directors of the Servicer, to
the effect that such firm has audited the financial statements of the Servicer
and issued its report thereon and that such audit: (i) 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; (ii) included tests relating to the
servicing of automobile installment sales contracts serviced for others in
accordance with the requirements of the Uniform Single Attestation Program for
Mortgage Bankers (the "Program"), to the extent the procedures in the Program
are applicable to the servicing obligations set forth in this Agreement; (iii)
included an examination of the delinquency and loss statistics relating to the
Servicer's portfolio of automobile installment sales contracts; and (iv) except
as described in the statement, disclosed no exceptions or errors in the records
relating to automobile, van, sport utility vehicle and light truck loans
serviced for others that, in the firm's opinion, generally
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accepted auditing standards requires such firm to report. The Accountants'
Report shall further state that: (1) a review in accordance with agreed upon
procedures was made of three randomly selected Monthly Servicer Reports; (2)
except as disclosed in the Accountants' Report, no exceptions or errors in the
Monthly Servicer Reports so examined were found; and (3) the delinquency and
loss information relating to the Receivables contained in the Monthly Servicer
Reports were found to be accurate.
(b) Notwithstanding the foregoing, if the Backup Servicer is acting as
successor Servicer, it shall only be required to deliver to the Indenture
Trustee, the Agent and the Noteholders, on or before April 15th of each year,
with respect to the most recently ended fiscal year of the Backup Servicer, a
copy of its annual SAS-70 and its audited financial statements for such fiscal
year.
Section 6.09. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Indenture
Trustee, the Backup Servicer, the Agent and the Noteholders reasonable access to
the documentation regarding the Receivables. Each of the Depositor, the Issuer
and the Servicer will permit any authorized representative or agent designated
by the Indenture Trustee, the Backup Servicer, the Agent or any Noteholder to
visit and inspect any of the properties of the Depositor, the Issuer or
Servicer, as the case may be, to examine the corporate books and financial
records of the Depositor, the Issuer or Servicer, as the case may be, its
records relating to the Receivables, and make copies thereof or extracts
therefrom and to discuss the affairs, finances, and accounts of the Depositor,
the Issuer or the Servicer, as the case may be, with its principal officers, as
applicable, and its independent accountants. In each case, such access shall be
afforded without charge but only upon reasonable request and during normal
business hours. Nothing in this Section 6.09 shall derogate from the obligation
of the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Servicer to provide
access as provided in this Section 6.09 as a result of such obligation shall not
constitute a breach of this Section 6.09. Any Noteholder, by its acceptance of a
Note (or by acquisition of its beneficial interest therein), shall be deemed to
have agreed to keep confidential and not to use for its own benefit any
information obtained by it pursuant to this Section 6.09, except as may be
required by applicable law.
Section 6.10. Recalculation of Monthly Servicer Report. (a) On or before
each Determination Date, the Servicer will deliver to the Indenture Trustee, the
Agent and the Backup Servicer the Monthly Servicer Report, and to the Backup
Servicer a computer diskette (or other electronic transmission) in a format
acceptable to the Backup Servicer containing such information with respect to
the Receivables as of the close of business on the last day of the preceding
Collection Period as is necessary for preparation of the Monthly Servicer
Report. The Backup Servicer shall use such computer diskette (or other
electronic transmission) to compare against the information specified in Section
6.10(b)(iii) contained in the Monthly Servicer Report delivered by the Servicer,
and the Backup Servicer shall certify to the Agent that it has recalculated the
Monthly Servicer Report in accordance with this Section 6.10 and shall notify
the Servicer, the Agent and the Indenture Trustee of any discrepancies, in each
case, on or before the related Payment 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 Payment Date, but
in the absence of a reconciliation, the Monthly Servicer Report shall
39
control for the purpose of calculations and payments with respect to the related
Payment Date. In the event that the Backup Servicer and the Servicer are unable
to reconcile discrepancies with respect to a Monthly Servicer Report by the
related Payment Date, (i) the Backup Servicer will notify the Indenture Trustee,
and (ii) the Servicer shall cause a firm of Independent Public Accountants, at
the Servicer's expense, to audit the Monthly Servicer Report and, prior to the
fifth calendar day of the following month, reconcile the discrepancies. The
effect, if any, of such reconciliation shall be reflected in the Monthly
Servicer Report for such next succeeding Determination Date. In addition, the
Servicer shall, if so requested by the Majority Holders, deliver to the Backup
Servicer (i) within five (5) Business Days of demand therefor a computer tape
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 and (ii) within fifteen (15) Business Days of demand therefor a copy
of such other information as is reasonably requested by the Majority Holders for
the purpose of reconciling such discrepancies. Other than the duties
specifically set forth in this Agreement, the Backup Servicer shall have no
obligations hereunder, including, without limitation, to supervise, verify,
monitor or administer the performance of the Servicer. The Backup Servicer shall
have no liability for any actions taken or omitted by the Servicer. The duties
and obligations of the Backup Servicer shall be determined solely by the express
provisions of this Agreement and no implied covenants or obligations shall be
read into this Agreement against the Backup Servicer.
(b) The Backup Servicer shall review each Monthly Servicer Report
delivered pursuant to Section 6.10(a) and shall, based upon the information
provided from the Servicer under Section 6.10(a):
(i) confirm that such Monthly Servicer Report is complete on its
face;
(ii) load or open the computer diskette or other electronic file
(which shall be in a format acceptable to the Backup Servicer) received
from the Servicer pursuant to Section 6.10(a) hereof, confirm that such
computer diskette is in a readable form and compare the Receivable Balance
of the Receivables on an aggregate basis to that set forth in such Monthly
Servicer Report and give notice of any discrepancy to the Agent; and
(iii) recalculate the Monthly Available Funds, the Principal Payment
Amount, the Note Interest, the Backup Servicer Fee, the Servicing Fee, the
Indenture Trustee Fee, and the amount on deposit in the Spread Account in
the Monthly Servicer Report based solely on the balances and calculations
specifically set forth in the Monthly Servicer Report, and compare such
calculations to those set forth in the Monthly Servicer Report. To the
extent of any discrepancy, the Backup Servicer shall give notice thereof
to the Agent. The Backup Servicer's obligation shall be limited to the
mathematical recalculation of the amounts set forth in this Section
6.10(b)(iii) based on the Monthly Servicer Report.
In addition, the Servicer shall, if so requested by the Backup Servicer,
deliver to the Backup Servicer its Collection Records and its monthly records
promptly after demand thereof, and a computer tape 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.
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Section 6.11. Fidelity Bond. The Servicer hereby represents and warrants
that it has obtained and shall continue to maintain in full force and effect a
fidelity bond in such form and amount as is customary for prudent servicers
acting as custodian of funds and documents in respect of consumer contracts
similar to the Receivables on behalf of institutional investors.
Section 6.12. No Offset. Prior to the termination of this Agreement, the
obligations of the Servicer under this Agreement shall not be subject to any
defense, counterclaim or right of offset which the Servicer has or may have
against the Issuer, whether in respect of this Agreement, any Receivable, or
otherwise; provided, however, that no other claim, defense or right of the
Servicer shall be limited by this Section 6.12.
Section 6.13. Delivery of Backup Tapes to Backup Servicer. (a) In addition
to the information to be delivered by the Servicer to the Backup Servicer on or
before each Determination Date pursuant to Section 6.10(a), the Servicer shall
deliver to the Backup Servicer, or its designated agent, a computer diskette (or
other electronic transmission), in a format acceptable to the Backup Servicer or
its designated agent, as the case may be, with the loan master file and history
information in the form attached hereto as Exhibit F on or prior to the Closing
Date in the case of the Initial Receivables, and on or prior to the related
Funding Date in the case of Subsequent Receivables (or, if there are less than
two Funding Dates during any calendar month, on each Determination Date and on
the last calendar day of such month, or, if such day is not a Business Day, on
the next succeeding Business Day), which loan master file and history
information shall be sufficiently detailed to enable the Backup Servicer to
maintain records sufficient to assume the role of successor Servicer pursuant to
this Agreement.
(b) In addition to the information required to be delivered by the
Servicer to the Backup Servicer or its designated agent on or before each
Determination Date pursuant to Section 6.10(a) and on or prior to the Closing
Date and each Funding Date pursuant to Section 6.13(a), the Servicer shall
deliver the loan master file and history information to the Backup Servicer or
its designated agent on the Determination Date occurring in July, 2005 (with
respect to the period from and including the Initial Cutoff Date to the last day
of the related Collection Period) and on the Determination Date occurring every
six months thereafter in the form attached hereto as Exhibit F in writing and on
a computer diskette (or other electronic transmission) in a format acceptable to
the Backup Servicer or its designated agent, as the case may be, and as at such
other times as may be requested by the Agent or the Backup Servicer upon prior
written notice to the Servicer, provided that the Backup Servicer or the Agent,
as applicable, shall deliver a copy of any such notice by the Backup Servicer or
the Agent to the Backup Servicer or the Agent simultaneously with its delivery
of such notice to the Servicer. The Backup Servicer shall have no obligation to
verify the information delivered to it pursuant to this Section 6.13(b); the
Backup Servicer shall be responsible only for loading each computer diskette and
confirming that each such computer diskette is in readable form.
Section 6.14. Covenants of Servicer. The Servicer hereby makes the
following covenants to the other parties hereto on which the Indenture Trustee
shall rely in accepting the Receivables in trust. Except for a release to an
insurer in exchange for insurance proceeds paid by such insurer resulting from a
claim for the total insured value of a vehicle, the Servicer shall not (i)
release the Financed Vehicle securing each such Receivable from the security
interest granted by such Receivable in whole or in part except in the event of
payment in full by or on
41
behalf of the Obligor thereunder or repossession, (ii) impair the rights of the
Noteholders in the Receivables, (iii) change the Annual Percentage Rate with
respect to any Receivable, except as may be required by applicable law or as
permitted by Section 7.01(b) or (iv) otherwise modify any Receivable except as
permitted by this Agreement. In addition, the Servicer shall service the
Receivables as required by the terms of this Agreement and in material
compliance with its current servicing procedures for servicing all of its
comparable motor vehicle contracts.
Section 6.15. Purchase of Receivables upon Breach. The Servicer, the
Depositor, the Issuer or the Indenture Trustee shall inform the other parties to
this Agreement and the Agent promptly, in writing, upon the discovery of any
breach of Section 6.01, 6.02, 6.03, 6.04, 6.11, 6.14 or 7.01 hereof; provided,
however, that the failure to give such notice shall not affect any obligation of
the Servicer hereunder. Unless the breach shall have been cured by the last day
of the first full Collection Period following such actual knowledge or receipt
of notice by an Authorized Officer of the Servicer, the Servicer shall purchase
as of the Business Day preceding the Determination Date relating to the
respective Collection Period any Receivable that is materially and adversely
affected by such breach or which materially and adversely affects the interests
of any Noteholder (which shall include any Receivable as to which a breach of
Section 6.02 has occurred). In consideration of the purchase of such Receivable,
the Servicer shall remit the Repurchase Price in the manner specified in Section
3.03(a) hereof. The Indenture Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
repurchase of any Receivable pursuant to this Section. The purchase obligation
set forth in this Section shall, except as provided below, be the sole remedy of
the Indenture Trustee, the Issuer and the Noteholders with respect to any of the
aforementioned breaches by the applicable Servicer; provided, however, that the
Servicer shall indemnify the Issuer, the Indenture Trustee, the Backup Servicer
and the Noteholders and each of their respective officers, employees, directors,
agents and representatives against all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach. No predecessor or
successor Servicer shall be responsible for the acts or omissions of such
predecessor or successor Servicer. Upon receipt of the Repurchase Price and any
related indemnity payments, the Indenture Trustee shall execute and deliver all
instruments of transfer or assignment, without recourse, as are prepared by the
Servicer and delivered to the Indenture Trustee and are necessary to vest in the
Servicer or such designee the Issuer's right, title and interest in the
Receivable. Indemnification by the Servicer under this Section 6.15 shall
survive the termination of this Agreement (or, in the case of indemnification of
the Indenture Trustee or the Backup Servicer, shall survive the resignation or
removal of the Indenture Trustee or Backup Servicer, respectively).
If the Servicer fails to repurchase any Receivable or make any indemnity
payment which it is so required to acquire or make pursuant to this Section by
the date specified, the Indenture Trustee shall be obligated promptly to notify
the Contributor and the Agent of such failure, and the Contributor shall be
obligated to purchase the Receivable or make such payment within five (5)
Business Days following such notification and to deposit the Repurchase Price
into the Collection Account or make such payment.
Section 6.16. Custodian Files. The Servicer hereby agrees to hold each
Custodian File and each document part thereof in the Servicer's possession at
any time and for any reason in
42
trust for the benefit of the Indenture Trustee and the Noteholders. The Servicer
agrees to promptly deliver to the Custodian each Custodian File and each and
every document part thereof when the Servicer's need therefor in connection with
its duties hereunder no longer exists, unless the associated Receivable has been
liquidated and the Servicer has certified the same to the Custodian in
accordance with the provisions of the Custodian Agreement. The Servicer agrees
to hold the Custodian Files and documents contained therein that are in its
possession in accordance with the same standards required of the Custodian under
the Custodian Agreement. The Servicer agrees that all Custodian Files in its
possession shall be held at its chief executive office as specified in Section
8.01(b)(x) hereof or at such other location identified from time to time to the
Indenture Trustee and the Agent; provided, however, that the Servicer may
temporarily move a Custodian File without such identification as necessary to
conduct its servicing activities for a period not to exceed thirty (30) days. If
the Backup Servicer is acting as the successor Servicer and performs any duties
pursuant to this Section 6.16, it shall be reimbursed pursuant to Section
5.03(b) of the Indenture for any costs incurred by it in performing such duties.
ARTICLE VII
COLLECTIONS
Section 7.01. Collection of Receivable Payments; Modification and
Amendment of Receivables. (a) Consistent with the standards, policies and
procedures required by this Agreement, the Servicer shall 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 automobile receivables that it services for
itself or others and otherwise act with respect to the Receivables, the Dealer
Agreements, the Insurance Policies and the rest of the Trust Estate in such
manner as will, in the reasonable judgment of the Servicer, maximize the amount
to be received by the Indenture Trustee with respect thereto (it being
understood that if the Backup Servicer is acting as successor Servicer, it shall
have no duty to enforce any Dealer Agreements). 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 Obligor's regular due date to a date
within thirty (30) days in which such due date occurs or (ii) re-amortize the
scheduled payments on the Receivable following a partial prepayment of
principal, but not to extend the final maturity of the Receivable. In no event
shall the Servicer reduce the APR on any Receivable below 4%.
(c) The Servicer may grant payment extensions on a Receivable (excluding
those modifications permitted by Section 7.01(b)) in accordance with its
customary procedures if the Servicer believes in good faith that such extension
is necessary to avoid a default on such Receivable, will maximize the amount to
be received with respect to such Receivable, and is otherwise in the best
interests of the Noteholders; provided that in no event shall a Receivable be
extended such that any payment thereon would be due after the month immediately
following the month in which the Maturity Date occurs; provided, further, that
no extensions may be granted by the Servicer until at least three consecutive
Scheduled Obligor Payments have been received
43
by Servicer under the related Receivables; provided, further, that no more than
one extension per year shall be permitted on any Receivable and no more than 3
extensions total shall be permitted on any Receivable; provided, further, that
no extension may be granted on any Receivable within 6 months following the date
of origination thereof; and provided, further, that as of the last day of any
Collection Period, the aggregate Receivable Balance of Receivables the term of
which has been extended during the twelve month period ending on the last day of
such Collection Period shall not exceed 3.0% of the Aggregate Receivable Balance
(excluding any Holiday Pay Receivables extended under the Holiday Pay
Receivables Program) measured as of the last day of such Collection Period.
(d) The Servicer shall direct Obligors to make all payments on the
Receivables to be made directly to one or more post office boxes established and
maintained in the name of the Indenture Trustee on behalf of the Noteholders
designated by the Servicer prior to the Closing Date and set forth on Exhibit G
hereto (the "Post Office Boxes") (or, if the Backup Servicer is acting as
successor Servicer, to the Backup Servicer Lockbox); provided, however, that
with respect to Obligors who have amounts debited from a bank account, payments
shall be directed to a bank account set forth on Exhibit G hereto at the Local
Bank (the "Local Bank Account") (or, if the Backup Servicer is acting as
successor Servicer, to the Backup Servicer Account). Until the occurrence of a
Servicer Event of Default, or until a Termination Event shall have occurred and
be continuing and the Majority Lenders elect to direct the Indenture Trustee
that the Servicer shall no longer have access to the Post Office Boxes, the
Indenture Trustee agrees that the Servicer shall have access to the Post Office
Boxes at all times. The Servicer shall remove all payments on the Receivables
from the Post Office Boxes on each Business Day and shall deposit such amounts
in the Local Bank Account (or, if the Backup Servicer is acting as successor
Servicer, for deposit into the Backup Servicer Account) by the end of each such
Business Day; provided, that if the Servicer is unable to remove any such
payments from the Post Office Boxes by 2:00 p.m. (Pacific time) on any Business
Day because such payments have not been delivered by such time or the Post
Office Boxes are inaccessible as a result of circumstance beyond the control of
the Servicer, then the Servicer shall remove such payments and deposit them into
the Local Bank Account (or the Backup Servicer Account, as applicable) prior to
2:00 p.m. (Pacific time) on the first Business Day upon which such payments were
available for removal from the Post Office Boxes. The Servicer shall remit to
the Local Bank Account (or, if the Backup Servicer is acting as successor
Servicer, to the Backup Servicer Account) by the end of each Business Day on
which the Servicer receives any other payments made by or on behalf of the
Obligors with respect to a Receivable, including all Actual Payments, Insurance
Proceeds, Recoveries, Principal Reduction Amounts, Repurchase Prices and all
proceeds relating to the repossession or disposition of the Financed Vehicles
(including recourse payments received from Dealers with respect to a breach of a
representation or warranty of such Dealers under the Dealer's Agreements and any
State tax refunds), to the extent such payments are received by the Servicer by
2:00 p.m. (Pacific time), or by the end of the following Business Day, with
respect to any such payments received after such time.
(e) The Servicer shall cause to be deposited into the Collection Account
all Collections in the Local Bank Account (or, if the Backup Servicer is acting
as successor Servicer, in the Backup Servicer Account) that are cleared funds
within two (2) Business Days of deposit therein.
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(f) With respect to each Receivable (other than a Repurchased Receivable),
payments actually received from or on behalf of the Obligor shall be applied
hereunder: first, to interest and principal in accordance with the simple
interest method to the extent necessary to bring such Receivable current;
second, in connection with the redemption of a defaulted Receivable, to
reimburse the Servicer for reasonable and customary out-of-pocket expenses
incurred by the Servicer in connection with such Receivable; third, to
Supplemental Servicing Fees; and fourth, to principal in accordance with the
simple interest method.
(g) On each Transfer Date, to the extent that Monthly Available Funds
would not otherwise be sufficient to satisfy amounts through clause Thirteenth
of Section 5.03(b) of the Indenture on the related Payment Date, the Servicer
may, but will not be required to, advance and remit to the Indenture Trustee for
deposit in the Collection Account, in such manner as will ensure that the
Indenture Trustee will have immediately available funds on account thereof by
11:00 a.m. New York City time on the next succeeding Payment Date, an amount (a
"Servicer Advance") equal to any payment due under any Receivable during the
prior Collection Period but unpaid during such Collection Period. In
consideration of each Servicer Advance the Servicer will be entitled to retain
any late payment fees recovered from the Obligor with respect to any Receivables
payment covered by a Servicer Advance. In addition, the Servicer will be
reimbursed for Servicer Advances from funds in the Collection Account in
accordance with Section 5.03 of the Indenture.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 8.01. Covenants, Representations and Warranties of the Servicer.
The Servicer hereby makes the following representations, warranties and
covenants to the Issuer, the Depositor, the Backup Servicer, the Agent and the
Indenture Trustee and the Noteholders on which the Issuer and the Indenture
Trustee rely in accepting the Receivables in trust and in connection with the
performance by the Indenture Trustee and the Backup Servicer of their respective
obligations hereunder. The representations and warranties speak as of the
execution and delivery of this Agreement, on the Closing Date, and as of each
Funding Date, but shall survive each sale of the Receivables to the Issuer and
the subsequent pledge thereof to the Indenture Trustee pursuant to the
Indenture:
(a) The Servicer covenants that, except as expressly otherwise permitted
pursuant to the terms of this Agreement:
(i) Liens in Force. The Financed Vehicle securing each Receivable
shall not 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.
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of the Indenture Trustee or the Noteholders in the Receivables, the
Dealer Agreements, the Insurance Policies or any other part of the Trust
Estate.
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(iii) 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 of the Indenture
Trustee and the restrictions on transferability imposed by this Agreement
and the Indenture) or (B) file or authorize the filing of any UCC
financing statements with respect to the Receivables in any jurisdiction
that names the Issuer as a debtor and any Person other than the Indenture
Trustee 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.
(iv) Compliance with Law. The Servicer shall comply with all
applicable laws in connection with performing its obligations hereunder.
(v) Closing Date Certificates. The Servicer shall act in a manner
that conforms with those representations and warranties contained in the
Certificates executed by it and delivered to ▇▇▇▇▇▇ ▇▇▇▇▇ LLP in
connection with certain Opinions of Counsel with respect to certain
bankruptcy law matters delivered on the Closing Date. The Indenture
Trustee and the Agent, on behalf of the Noteholders, has received a
certification that the weighted average loan-to-value of the Aggregate
Receivable Balance in the Pool is less than 130% on the Closing Date.
(b) The Servicer represents and warrants as follows:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under the laws of
its jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to enter
into and perform its obligations under this Agreement.
(ii) 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 and the
other Transaction Documents to which it is a party) requires or shall
require such qualification.
(iii) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and the Transaction Documents to
which the Servicer is a party and to carry out its terms and their terms,
respectively, and the execution, delivery and performance of this
Agreement and the Transaction Documents to which the Servicer is a party
have been duly authorized by the Servicer by all necessary corporate
action.
(iv) Binding Obligation. This Agreement and the other Transaction
Documents to which the Servicer is a party shall constitute legal, valid
and binding obligations of the Servicer enforceable in accordance with
their respective terms, except
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as enforceability 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.
(v) No Violation. The execution, delivery and performance by the
Servicer of this Agreement, the consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to
which the Servicer is a party, and the fulfillment of the terms of this
Agreement and the Transaction Documents to which the Servicer is a party,
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) a
default under, the articles of incorporation or bylaws of the Servicer, or
any indenture, loan agreement, mortgage, deed of trust or other material
instrument or agreement to which the Servicer is a party or by which it is
bound or any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, loan agreement, mortgage, deed of trust or other
material instrument or agreement 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, or in any way materially adversely affect the interest of the
Noteholders or the Indenture Trustee in any Receivable or any other asset
included in the Trust Estate or adversely affect the Servicer's ability to
perform its obligations under this Agreement or any other Transaction
Document to which it is a party.
(vi) 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 (A) asserting the invalidity of this Agreement, any of the
Transaction Documents or the Notes, (B) seeking to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated by
this Agreement or any of the Transaction Documents, (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction Documents, (D)
seeking to adversely affect the federal income tax or other federal, State
or local tax attributes of the Notes or (E) that could have a material
adverse effect on the Notes. To the Servicer's knowledge, there are no
proceedings or investigations pending or 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 relating to the Servicer which might adversely affect the
federal income tax or other federal, State or local tax attributes of the
Notes.
(vii) No Consents. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement or the other
Transaction Documents to which it is a party.
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(viii) Approvals. The Servicer (i) is not in violation of any laws,
ordinances, governmental rules or regulations to which it is subject,
which violation materially and adversely affects the business or condition
(financial or otherwise) of the Servicer and its subsidiaries, the
Servicer's ability to perform its obligations hereunder or under any other
Transaction Document or any Receivable, (ii) has not failed to obtain any
licenses, permits, franchises or other governmental authorizations
necessary to the ownership of its property or to the conduct of its
business which failure to obtain will materially and adversely affect the
business or condition (financial or otherwise) of the Servicer and its
subsidiaries, the Servicer's ability to perform its obligations hereunder
or under any other Transaction Document or any Receivable and (iii) is not
in violation of any term of any agreement, charter instrument, bylaw or
instrument to which it is a party or by which it may be bound, which
violation or failure to obtain materially and adversely affect the
business or condition (financial or otherwise) of the Servicer and its
subsidiaries, the Servicer's ability to perform its obligations hereunder
or under any other Transaction Document or any Receivable.
(ix) Investment Company. The Servicer is not an investment company
which is required to register under the Investment Company Act of 1940, as
amended.
(x) Chief Executive Office; Jurisdiction of Organization. The chief
executive office of the Servicer is located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and its sole jurisdiction of organization
is the State of Nevada. The Servicer has not had any other chief executive
office during the five-year period immediately preceding the Closing Date.
All books and records relating to the Receivables and the other assets
included in the Trust Estate are located (and have been located for the
five-year period immediately preceding the Closing Date) at the chief
executive office of the Servicer.
(xi) Taxes. The Servicer has filed on a timely basis all tax returns
required to be filed by it and paid all taxes, to the extent that such
taxes have become due.
(xii) No Injunctions. There are no existing injunctions, writs,
restraining orders or other similar orders which might adversely affect
the performance by the Servicer or its obligations under, or the validity
and enforceability of, this Agreement or any other Transaction Document to
which it is a party.
(xiii) Practices. The practices used or to be used by the Servicer,
to monitor collections with respect to the Receivables and repossess and
dispose of the Financed Vehicles related to the Receivables will be, in
all material respects, in conformity with the requirements of all
applicable federal and State laws, rules and regulations, and this
Agreement. The Servicer is in possession of all State and local licenses
(including all debt collection licenses) required for it to perform its
services hereunder, and none of such licenses has been suspended, revoked
or terminated.
(xiv)
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Section 8.02. Purchase of Receivables upon Breach of Representation and
Warranty. (a) The Contributor, the Depositor, the Servicer, the Backup Servicer,
the Issuer, the Agent or the Indenture Trustee, as the case may be, shall inform
all such other Persons and other parties to this Agreement promptly, in writing,
upon the discovery of any breach of the Servicer's covenants or representations
and warranties pursuant to Section 8.01; provided, however, that the failure to
give any such notice shall not derogate from any obligation of the Servicer
hereunder to repurchase any Receivable; further, provided, that the Issuer, the
Indenture Trustee, the Agent and the Backup Servicer shall have no duty to
inquire or to investigate the breach of any of such covenants or representations
and warranties. Unless the breach shall have been cured by the last day of the
first full calendar month following the discovery by or notice to the Servicer
of the breach, the Servicer shall have an obligation, and the Indenture Trustee
shall (provided that a Responsible Officer either has actual knowledge or has
received written notice thereof) make demand upon the Servicer, to repurchase as
of the Business Day preceding the Determination Date relating to the respective
Collection Period any Receivable materially and adversely affected by the
breach. In consideration of the purchase of the Receivable, the Servicer shall
remit the Repurchase Price in the manner specified in Section 3.03(a) of the
Contribution Agreement and Section 3.03(a) of this Agreement. The sole remedy
(except as set forth in Section 8.02(b)) of the Indenture Trustee and the
Noteholders with respect to a breach of the Servicer's covenants or
representations and warranties pursuant to Section 8.01 shall be the right to
require the Servicer to repurchase Receivables pursuant to this Section 8.02 and
to offset the purchase price against amounts owed to the Servicer hereunder.
(b) In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Servicer, the Servicer shall
indemnify the Contributor, the Depositor, the Indenture Trustee, the Backup
Servicer, the Issuer, the Owner Trustee (as such and in its individual
capacity), the Agent, the Custodian and the Noteholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any 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 Section
8.01. Indemnification by the Servicer under this Section 8.02(b) shall survive
the termination of this Agreement (or, in the case of indemnification of the
Indenture Trustee or the Backup Servicer, shall survive the resignation or
removal of the Indenture Trustee or Backup Servicer, respectively).
(c) Notwithstanding anything herein to the contrary, the Backup Servicer
as successor Servicer shall have no duty to repurchase any Receivable pursuant
to Section 8.02(a) or to make any indemnification provided for in Section
8.02(b) with respect to the covenant set forth in Section 8.01(a)(v) and the
representation set forth in Section 8.01(b)(x).
Section 8.03. Representations of Backup Servicer. The Backup Servicer
makes the following representations and warranties to the Issuer, the Servicer
and the Agent, on which the Issuer relies in accepting the Receivables in trust,
and the Servicer relies in connection with the performance of its obligations
hereunder. The representations and warranties speak as of the execution and
delivery of this Agreement, on the Closing Date, and as of each Funding Date,
but shall survive each sale of the Receivables to the Issuer and the subsequent
pledge thereof to the Indenture Trustee pursuant to the Indenture:
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(a) The Backup Servicer has been duly organized and is validly
existing and in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its business
as such properties shall be currently owned and such business is presently
conducted.
(b) The Backup Servicer has the power and authority to execute and
deliver this Agreement and to carry out its terms; and the execution,
delivery, and performance of this Agreement shall have been duly
authorized by the Backup Servicer by all necessary corporate action.
(c) This Agreement shall constitute a legal, valid, and binding
obligation of the Backup Servicer enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms thereof shall not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of association or by-laws of the Backup Servicer, or any material
indenture, agreement, or other instrument to which the Backup Servicer is
a party or by which it shall be bound; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of
any such indenture, agreement, or other instrument; nor violate any law or
any order, rule, or regulation applicable to the Backup Servicer of any
court or of any federal or State regulatory body, administrative agency,
or other governmental instrumentality having jurisdiction over the Backup
Servicer or its properties.
(e) There are no proceedings or investigations pending or, to the
Backup Servicer's best knowledge, threatened before any court, regulatory
body, administrative agency, or other governmental instrumentality having
jurisdiction over the Backup Servicer or its properties (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Backup Servicer of its obligations under, or the
validity or enforceability of, this Agreement.
ARTICLE IX
THE SERVICER AND BACKUP SERVICER
Section 9.01. Liability of Servicer; Indemnities. (a) The Servicer shall
be liable hereunder only to the extent of the obligations in this Agreement and
the other Transaction Documents to which it is a party specifically undertaken
by the Servicer and the representations made by the Servicer.
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(b) The Servicer shall defend, indemnify and hold harmless the Issuer, the
Owner Trustee (as such and in its individual capacity), the Depositor, the
Indenture Trustee, the Backup Servicer, the Agent, their respective officers,
directors, agents and employees and the Noteholders from and against any and all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel and expenses of litigation arising out of or
resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of any Financed Vehicle.
(c) The Servicer shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee (as such and in its individual capacity), the Depositor, the
Indenture Trustee, the Backup Servicer, the Agent, their respective officers,
directors, agents and employees and the Noteholders 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 such parties through (i) the breach by the Servicer of its
obligations under this Agreement or any other Transaction Document to which the
Servicer is a party in its capacity as Servicer, or (ii) the negligence, willful
misfeasance, or bad faith of the Servicer in the performance of its duties under
this Agreement or any other Transaction Document to which the Servicer is a
party in its capacity as Servicer.
(d) The Servicer shall indemnify, defend, and hold harmless the Issuer,
the Owner Trustee (as such and in its individual capacity), the Depositor, the
Indenture Trustee, the Backup Servicer, the Agent and their respective officers,
directors, agents and employees and the Noteholders from and against any taxes
(other than income or capital gains taxes related to the sale of the Notes) that
may at any time be asserted against the Indenture Trustee, the Owner Trustee (as
such and in its individual capacity), or the Issuer with respect to the
transactions contemplated herein, including, without limitation, any sales,
gross receipts, general corporation, tangible personal property, privilege,
franchise, or license taxes (but, in the case of the Issuer, not including any
taxes asserted with respect to, and as of the date of, the sale of the
Receivables to the Issuer or the issuance and original sale of the Notes, or
asserted with respect to ownership of the Receivables, or federal or other
income taxes arising out of the transactions contemplated by this Agreement) and
costs and expenses in defending against the same.
(e) The Servicer shall indemnify, defend and hold harmless the Indenture
Trustee and the Backup Servicer and their respective officers, directors,
employees and agents, from and against any and all costs, expenses, losses,
claims, damages and liabilities (including attorneys fees and expenses), arising
out of or incurred in connection with the acceptance or performance of the
trusts and duties herein, under the Indenture and any related Transaction
Documents; provided, however, that the Servicer shall not be liable to the
Indenture Trustee or the Backup Servicer for any portion of any such amount
resulting from the willful misconduct, bad faith or negligence of the Indenture
Trustee or the Backup Servicer, respectively.
(f) The Servicer shall indemnify, defend and hold harmless the Owner
Trustee, its officers, directors, employees and agents, from and against any and
all costs, expenses, losses, claims, damages and liabilities (including
attorneys fees and expenses), arising out of or incurred in connection with,
from and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee in any way
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relating to or arising out of this Agreement, the other Transaction Documents,
the Trust Estate, the administration of the Trust Estate or the action or
inaction of the Owner Trustee hereunder, provided, however, that the Servicer
shall not be liable to the Owner Trustee for any portion of any such amount
resulting from the willful misconduct, bad faith or gross negligence of the
Owner Trustee.
(g) For purposes of this Section 9.01, in the event of the termination of
the rights and obligations of the Servicer (or any successor thereto pursuant to
Section 9.02) as Servicer pursuant to Section 10.01, a non-extension of the
servicing term referred to in Section 6.01(a) or a resignation by such Servicer
pursuant to this Agreement, such Servicer shall remain the Servicer until a
successor Servicer has accepted its appointment pursuant to Section 10.03. The
provisions of this Section 9.01(g) shall in no way affect the survival pursuant
to Section 9.01(h) of the indemnification by the Servicer provided by Sections
9.01(b), (c), (d), (e) and (f).
(h) Notwithstanding anything herein to the contrary, indemnification by
the Servicer under Sections 9.01(d), (e) and (f) shall not apply to the Backup
Servicer in its capacity as successor Servicer. Indemnification under this
Article shall survive the termination of this Agreement (or, in the case of
indemnification of the Indenture Trustee or the Backup Servicer, shall survive
the resignation or removal of the Indenture Trustee or Backup Servicer,
respectively) 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 Article and the recipient thereafter collects any of such
amounts from others, the recipient shall promptly repay such amounts collected
to the Servicer, without interest.
(i) Notwithstanding any other provision of this Agreement, the obligations
of the Servicer described in this Section shall not terminate or be deemed
released upon the resignation or termination of the Servicer and shall survive
any termination of this Agreement to the extent that such obligations arise from
the Servicer's actions hereunder while acting as Servicer.
Section 9.02. Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer and Backup Servicer. (a) The Servicer shall not merge or
consolidate with any other Person or permit any other Person to become the
successor to the Servicer's business without the written consent of the Majority
Holders. The Servicer shall not merge or consolidate with any other Person,
convey or transfer 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 or
succession, the successor or surviving entity shall be an Eligible Servicer and
shall be capable of fulfilling the duties of the Servicer contained in this
Agreement. 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) which acquires by conveyance or transfer substantially all of the
assets of the Servicer, or (iv) succeeding to the business of the Servicer, in
any of the foregoing cases shall execute an agreement of assumption acceptable
to the Majority Holders to perform every obligation of the Servicer under this
Agreement and the other Transaction Documents to which it is a party and,
whether or not such assumption agreement is executed, shall be the successor to
the Servicer under this Agreement and the other Transaction Documents to which
it is a party without the execution or filing of any paper or any further act on
the part of any of the parties to this Agreement, anything in this Agreement to
the contrary notwithstanding. The Servicer shall
52
provide written notice of any merger, consolidation or succession pursuant to
this Section 9.02(a) to the Issuer, the Owner Trustee, the Depositor, the
Noteholders, the Agent and the Indenture Trustee. Notwithstanding the foregoing,
as a condition to the consummation of the transactions referred to in clauses
(i), (ii), (iii) and (iv) above, (w) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 8.01 shall
have been breached (for purposes hereof, such representations and warranties
shall speak as of the date of the consummation of such transaction), no Servicer
Event of Default and no event which, after notice or lapse of time or both,
would become a Servicer Event of Default, shall have occurred and be continuing,
(x) the Servicer shall have delivered to the Indenture Trustee and the Agent 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 9.02(a) and that all conditions precedent, if any, provided for in
this Agreement and the other Transaction Documents to which it is a party
relating to such transaction have been complied with, and (y) the Servicer shall
have delivered to the Agent and the Indenture Trustee an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed (or listing which such documents will need to be executed and filed)
that are necessary fully to preserve and protect the interest of the Issuer and
the Indenture Trustee in the Receivables, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Opinion of Counsel
required by this Section shall be an expense of the Servicer.
(b) Any Person (i) into which the Backup Servicer may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
the Backup Servicer shall be a party, or (iii) which may succeed to the
properties and assets of the Backup Servicer substantially as a whole, which
Person in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Backup Servicer hereunder, shall be the
successor to the Backup Servicer under this Agreement without further act on the
part of any of the parties to this Agreement; provided, however, that nothing
herein shall be deemed to release the Backup Servicer from any obligation
hereunder. In the event that the resulting entity does not meet the eligibility
requirements for the Indenture Trustee set forth in the Indenture, the Backup
Servicer, upon the written request of the Majority Holders, shall resign from
its obligations and duties under this Agreement.
Section 9.03. Limitation on Liability of Servicer, the Backup Servicer and
Others. (a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the
Contributor, the Depositor, the Issuer, the Noteholders or the Agent, except as
provided in this Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement in the good faith business
judgment of the Servicer; provided, however, that this provision shall not
protect the Servicer against any liability that would otherwise be imposed by
reason of bad faith, willful misconduct in the performance of duties, or by
reason of negligence in the performance of its duties or by reason of reckless
disregard of its obligations and duties under this Agreement or any other
Transaction Document to which it is a party. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on the written
advice of counsel or on any document of any kind prima facie properly executed
and submitted by the Agent, the Noteholders, the Indenture Trustee and the
Backup Servicer respecting any matters arising under this Agreement and any such
written
53
advice of counsel shall be full and complete authorization for any action taken
or omitted by the Servicer in reliance in good faith and in accordance with such
advice.
(b) The Backup Servicer (i) shall not be liable for its actions or
omissions hereunder except for its negligence or willful misconduct, (ii) shall
not be responsible for any recitals, statements, representations, or warranties
made herein, except those expressly made by it as Backup Servicer and (iii) may
conclusively rely upon, and shall be fully protected in acting or refraining
from acting in reliance upon, any document, certificate, instrument, opinion,
certificate, report, notice, statement, consent, resolution, entitlement order,
approval or conversation believed by it to be genuine and made by the proper
person and upon opinions of counsel or other experts reasonably selected by it.
The Backup Servicer shall not be liable for an error of judgment made in good
faith by a Responsible Officer of the Backup Servicer, unless it shall be proven
that the Backup Servicer was negligent in ascertaining the pertinent facts with
respect to such error of judgment.
(c) The Backup Servicer shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if the
repayment of such funds or adequate written indemnity satisfactory to it against
such risk or liability is not reasonably assured to it prior to the expenditure
or risk of such funds or incurring of financial liability.
(d) The Backup Servicer shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document.
(e) The Backup Servicer may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees appointed with due care, and shall not be
responsible for any willful misconduct or negligence on the part of any agent,
attorney, custodian or nominee so appointed.
(f) To the extent that the Backup Servicer is required to be indemnified
by the Depositor pursuant to Sections 5.09 hereof, such amounts shall be
reimbursable from the Collection Account pursuant to Section 5.03(b) of the
Indenture. To the extent that the Backup Servicer is required to be indemnified
by the Servicer pursuant to 9.01 hereof and does not receive payment for the
applicable indemnified amount from the Servicer, such amounts shall be
reimbursable from the Collection Account pursuant to Section 5.03(b) of the
Indenture.
Section 9.04. Delegation of Duties. The Servicer may delegate duties under
this Agreement with the prior written consent of the Majority Holders. The
Servicer may at any time perform the specific duty of repossession of Financed
Vehicles through sub-contractors who are in the business of servicing automotive
receivables and may perform other specific duties through such sub-contractors;
provided however, that no such delegation or subcontracting duties by the
Servicer shall relieve the Servicer of its responsibility with respect to such
duties.
Section 9.05. Servicer and Backup Servicer Not to Resign. Subject to the
provisions of Section 9.02, neither the Servicer nor the Backup Servicer shall
resign from the obligations and duties imposed on it by this Agreement as
Servicer or Backup Servicer except upon a
54
determination that by reason of a change in legal requirements, the performance
of its duties under this Agreement would cause it to be in violation of such
legal requirements in a manner which would result in a material adverse effect
on the Servicer or the Backup Servicer, as the case may be, and the Majority
Holders do not elect to waive the obligations of the Servicer or the Backup
Servicer, as the case may be, to perform the duties which render it legally
unable to act or to delegate those duties to another Person. Any such
determination permitting the resignation of the Servicer or Backup Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered and
acceptable to the Majority Holders. No resignation of the Servicer shall become
effective until the Backup Servicer or a successor Servicer acceptable to the
Majority Holders that is an Eligible Servicer shall have assumed the
responsibilities and obligations of the Servicer. No resignation of the Backup
Servicer shall become effective until a Person acceptable to the Majority
Holders that is an Eligible Servicer shall have assumed the responsibilities and
obligations of the Backup Servicer; provided, however, that in the event a
successor Backup Servicer is not appointed within sixty (60) days after the
Backup Servicer has given notice of its resignation as permitted by this Section
9.05, the Backup Servicer may petition a court of competent jurisdiction for the
appointment of a successor. Notwithstanding anything else herein to the
contrary, in no event shall the Indenture Trustee be liable for any transition
expenses, servicing fee or for any differential in the amount of the servicer
fee paid hereunder and the amount necessary to induce any successor Servicer to
act as successor Servicer under this Sale and Servicing Agreement and the
transactions set forth or provided for herein or be liable for or be required to
make any servicer advances, nor shall the Indenture Trustee be required to act
as successor Servicer or perform any duties of the successor Servicer hereunder.
Section 9.06. Backup Servicer's Reliance; Liability; Errors. (a) The
Backup Servicer may reasonably rely on any records and documentation provided,
produced or supplied by the Servicer. The Backup Servicer shall have no
liability in connection with the malfeasance or nonfeasance of the Servicer or
the inaccuracy of any data provided, produced or supplied by the Servicer. The
Backup Servicer shall have no liability for any errors perpetuated by it in the
performance of its duties hereunder or under the Transaction Documents as a
result of a latent defect in any underlying records or data provided to it by
the Servicer except for such latent defects that remain undiscovered or
uncorrected as a result of the willful misconduct, bad faith or negligence of
the Backup Servicer in the performance of its duties hereunder or under the
Transaction Documents.
(b) The Backup Servicer may accept and reasonably rely on all accounting
and servicing records and other documentation provided to the Backup Servicer,
including documents prepared or maintained by the Servicer, or any party
providing services related to the Receivables (each, a "third party"). The
Backup Servicer shall have no duty, responsibility, obligation or liability
(collectively "liability") for the acts or omissions of any third party. If any
error, inaccuracy or omission (collectively "error") exists in any information
provided to the Backup Servicer and such error causes or materially contributes
to the Backup Servicer making or continuing any error (a "continuing error"),
the Backup Servicer shall have no liability for such continuing error; provided,
however, that this provision shall not protect the Backup Servicer against any
liability arising from its willful misconduct, bad faith or negligence in
discovering or correcting or failing to discover or correct any error or in the
performance of its duties contemplated herein.
55
(c) If the Backup Servicer becomes aware of any error or continuing error
which in the opinion of the Backup Servicer impairs its ability to perform its
services hereunder the Backup Servicer may undertake such data or records
reconstruction as it deems appropriate to correct any such error or continuing
error and to prevent future continuing error. To the extent it is not otherwise
reimbursed under this Agreement, the Backup Servicer shall be entitled to
recover its costs incurred in correcting any such error or continuing error from
the Servicer; provided, however, that the Backup Servicer shall not be entitled
to recover any such costs unless it shall have received the written consent of
the Indenture Trustee prior to taking any such corrective action pertaining to
the error.
ARTICLE X
SERVICER EVENTS OF DEFAULT
Section 10.01. Servicer Event of Default. For purposes of this Agreement,
any of the following shall constitute a "Servicer Event of Default":
(a) Any failure by the Servicer to deposit, or deliver to the
Indenture Trustee for deposit, to the Local Bank Account (or, if the
Backup Servicer is acting as successor Servicer, the Backup Servicer
Account), the Collection Account or the Spread Account any amount required
to be so deposited or delivered therein or any proceeds or payment
required to be so delivered under the terms of this Agreement (including
deposits of the Repurchase Price pursuant to Section 7.01) that continues
unremedied for a period of two (2) Business Days after such deposit,
delivery or payment is required to be made by the Servicer;
(b) Failure by the Servicer to deliver to the Indenture Trustee and
the Agent the Monthly Servicer Report required by Section 6.06 within two
(2) Business Days after the applicable Determination Date, or any
statement required by Section 6.07 or any report required by Section 6.08
shall not have been delivered within five (5) days after the date such
statement or report, as the case may be, is required to be delivered;
(c) Failure on the part of the Servicer (so long as the Backup
Servicer is not acting as successor Servicer), or failure on the part of
the Depositor or the Contributor, as the case may be, to repurchase a
Receivable in accordance with Section 3.03(a), Section 6.15 or Section
8.02 hereof and, in the case of the Contributor pursuant to Section
3.03(a) of the Contribution Agreement, as the case may be, which failure
shall continue unremedied for a period of two (2) Business Days after the
same is required to be repurchased in accordance with such Sections;
(d) Failure on the part of the Servicer to observe its covenants and
agreements set forth in Section 9.02 or, failure on the part of the
Depositor to observe its covenants and agreements in Section 5.10;
(e) Failure on the part of the Servicer, or failure on the part of
the Depositor or the Contributor duly to observe or perform any other
covenants or agreements of the Servicer, the Contributor or the Depositor,
as the case may be, set forth in this Agreement
56
or any other Transaction Document which failure (i) materially and
adversely affects the rights of the Noteholders, and (ii) continues
unremedied for a period of twenty (20) days after (A) the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer, the Contributor or the Depositor, as the
case may be, by the Indenture Trustee, the Issuer or the Backup Servicer
or (B) discovery by a Responsible Officer of the Servicer;
(f) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Contributor or
the Servicer (or, so long as the Contributor is obligated to perform as
the Servicer, the Depositor or any other Affiliate of the Servicer, if the
Servicer's ability to service the Receivables is adversely affected
thereby) in an involuntary case under the federal bankruptcy laws, as now
or hereafter in effect, or another present or future, federal or State,
bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Contributor, the Servicer (or the Depositor or any other
Affiliate of the Servicer, if applicable) or of any substantial part of
their respective properties or ordering the winding up or liquidation of
the affairs of the Contributor, the Servicer (or the Depositor or any
other Affiliate of the Servicer, if applicable) and the continuance of any
such decree or order unstayed and in effect for a period of sixty (60)
consecutive days or the commencement of an involuntary case under the
federal bankruptcy laws, as now or hereinafter in effect, or another
present or future federal or State bankruptcy, insolvency or similar law
and such case is not dismissed within sixty (60) days;
(g) The commencement by the Contributor or the Servicer (or, so long
as the Contributor is obligated to perform as the Servicer, the Depositor
or any other Affiliate of the Servicer, if the Servicer's ability to
service the Receivables is adversely affected thereby) of a voluntary case
under the federal bankruptcy laws, as now or hereafter in effect, or any
other present or future, federal or State, bankruptcy, insolvency or
similar law, or the consent by the Contributor or the Servicer (or the
Depositor or any other Affiliate of the Servicer, if applicable) to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the
Contributor or the Servicer (or the Depositor or any other Affiliate of
the Servicer, if applicable) or of any substantial part of their
respective property or the making by Contributor or the Servicer (or the
Depositor or any other Affiliate of the Servicer, if applicable) of an
assignment for the benefit of creditors or the failure by the Contributor
or the Servicer (or the Depositor or any other Affiliate of the Servicer,
if applicable) generally to pay its debts as such debts become due or the
taking of corporate action by Contributor or the Servicer (or the
Depositor or any other Affiliate of the Servicer, if applicable) in
furtherance of any of the foregoing;
(h) Any representation, warranty or statement of the Servicer, and
for so long as the Contributor is obligated to perform as the Servicer,
the Depositor or the Contributor, made in this Agreement or with respect
to the Contributor or the Depositor, made in the Contribution Agreement
or, in each case, 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
Trust Estate or
57
any Noteholder and, within twenty (20) days after written notice thereof
shall have been given to the Servicer, the Contributor or the Depositor
(as the case may be) by the Indenture Trustee, the Issuer, the Backup
Servicer or the Agent, the circumstances or condition in respect of which
such representation, warranty or statement was incorrect shall not have
been eliminated or otherwise cured;
(i) Failure on the part of the Servicer to be legally qualified to
service the Receivables;
(j) Any material change made by the Servicer to its Collection
Policy with respect to the Receivables without prior written consent of
the Agent;
(k) The occurrence of a Termination Event or Event of Default which
has not been waived by the Majority Holders; (l) The Agent shall have
delivered a Servicer Termination Notice pursuant to Section 6.01(a) or for
any reason, Bay View Acceptance ceases to act as Servicer hereunder;
(m) Tangible Net Worth of the Servicer is at any time less than
$35,000,000;
(n) Failure on the part of the Servicer to have paid-in capital of
$50 million or greater;
(o) Failure on the part of the Servicer to maintain monthly "Minimum
Liquidity" (available cash and borrowing capacity for working capital
purposes) of $5 million or greater;
(p) The occurrence of a "Servicer Event of Default" under and as
defined in any sale and servicing agreement, pooling and servicing
agreement or any similar agreement (a "Similar Servicing Agreement") with
respect to which the Contributor or any of its Affiliates is designated as
servicer, subservicer, master servicer or any similar capacity
(irrespective of whether it is then acting in such capacity) unless such
"Servicer Event of Default" has been permanently waived and (i) none of
the Contributor or any of its applicable Affiliates has been terminated as
servicer, subservicer, master servicer or other similar capacity under
such Similar Servicing Agreement as a result of such Servicer Event of
Default and (ii) the Contributor or any applicable Affiliate of the
Contributor that acts as servicer, subservicer, master servicer or any
similar capacity under such Similar Servicing Agreement retains its right
(if any) thereunder to access each collections of receivables thereunder
without the prior written consent of third parties, unless such rights are
terminated by the Servicer independent of such Servicer Event of Default;
or
(q) If the Backup Servicer is acting as successor Servicer, the
failure of the Backup Servicer to be controlled by or under the common
control of JPMorgan Chase Bank, N.A.
58
Section 10.02. Consequences of a Servicer Event of Default. If a Servicer
Event of Default shall occur and be continuing, the Indenture Trustee shall, at
the written direction of the Majority Holders or the Agent, by notice given in
writing to the Servicer and Backup Servicer, terminate all of the rights and
obligations of the Servicer under this Agreement; provided, however, that the
Backup Servicer, acting as successor Servicer, may not be terminated pursuant to
this Section 10.02 for a Servicer Event of Default set forth in ▇▇▇▇▇▇▇
▇▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (o) or (p); provided, further, however, that
the Backup Servicer, acting as successor Servicer, may be terminated pursuant to
clause (p) above if it is also the servicer under the agreements referenced
therein with respect to which Bay View Acceptance is the contributor. On or
after the receipt by the Servicer of such written notice (unless otherwise
directed by the Majority Holders or the Agent and subject to Section 10.03(a)),
unless otherwise excluded or modified herein all authority, power, obligations
and responsibilities of the Servicer under this Agreement, whether with respect
to the Notes or the Trust Estate or otherwise, automatically shall pass to, be
vested in and become obligations and responsibilities of the Backup Servicer;
provided, however, that the Backup Servicer shall have no liability with respect
to any obligation which was required to be performed by the prior Servicer prior
to the date that the Backup Servicer becomes the Servicer or any claim of a
third party based on any alleged action or inaction of the prior Servicer; and
provided further, that the Backup Servicer shall have no obligation to assume
the responsibilities of Servicer with fewer than 30 days prior written notice.
The Backup Servicer is authorized and empowered by this Agreement to execute and
deliver, on behalf of the prior 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 the rest of the Trust Estate and related documents or otherwise. The prior
Servicer agrees, if so directed by the Majority Holders or by the Agent, to
continue to act as Servicer until the successor Servicer assumes the
responsibilities of Servicer, and agrees to cooperate with the Backup Servicer
in effecting the termination of the responsibilities and rights of the prior
Servicer under this Agreement, including, without limitation, the execution of
one or more specific powers of attorney pursuant to Section 10.03(g) at the
request of the successor Servicer and the transfer to the Backup Servicer for
administration by it of all cash amounts that shall at the time be held by the
prior Servicer for deposit, or have been deposited by the prior Servicer, in the
Collection Account or thereafter received with respect to the Receivables and
the delivery to the Backup Servicer or the Custodian, as applicable, of all
Custodian Files and Collection Records and a computer tape in readable form
containing all information necessary to enable the Backup Servicer or another
successor Servicer to service the Receivables and the rest of the Trust Estate.
The Servicer agrees that the Indenture Trustee and the Backup Servicer shall
eliminate the Servicer's access to all Post Office Boxes in accordance with
certain instructions to be executed by the Servicer giving the Indenture Trustee
and Backup Servicer access to the Post Office Boxes, provided that the Indenture
Trustee shall not be liable for any access gained by the Servicer to the Post
Office Boxes after the Indenture Trustee has used its best efforts to prohibit
such access. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Custodian Files to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section 10.02 shall be paid by the prior Servicer upon
presentation of reasonable documentation of such costs and expenses. In
addition, any successor Servicer shall be entitled to payment from the immediate
predecessor Servicer for reasonable transition expenses incurred in connection
with acting as successor
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Servicer. The prior Servicer shall grant the Depositor, the Indenture Trustee,
the Backup Servicer and the Agent reasonable access to the prior Servicer's
premises, computer files, personnel, records and equipment at the prior
Servicer's expense. If requested by the Majority Holders, the Backup Servicer or
any other successor Servicer shall terminate any arrangements relating to the
Local Bank Account with the Local Bank or the Post Office Boxes, and direct the
Obligors to make all payments under the Receivables directly to the successor
Servicer at the prior Servicer's expense (in which event the successor Servicer
shall process such payments directly or through a lock-box account established
in accordance with the instructions of the Agent or the Majority Holders or, if
the Backup Servicer is acting as successor Servicer, through the Backup Servicer
Lockbox). The Indenture Trustee shall send copies of all notices given pursuant
to this Section 10.02 to the Noteholders and the Agent. The Indenture Trustee
and the Backup Servicer may set off and deduct any amounts owed by the
terminated Servicer from any amounts payable to the terminated Servicer. When
the Trustee or the Backup Servicer incurs expenses after the occurrence of a
Servicer Event of Default specified in Section 10.01, the expenses are intended
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable federal or State bankruptcy, insolvency or similar
law.
Section 10.03. Appointment of Successor. (a) Upon the Servicer's receipt
of a notice of termination pursuant to Section 10.02, or upon the resignation of
the Servicer pursuant to Section 9.05, unless the Majority Holders direct
otherwise, the Backup Servicer shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the transactions
set forth or provided for in this Agreement, and shall be subject to all the
responsibilities, restrictions, duties, liabilities and termination provisions
relating thereto placed on the Servicer by the terms and provisions of this
Agreement; provided, however that the Backup Servicer shall not be liable for
any acts, omissions or obligations of the Servicer prior to such succession or
for any breach by the Servicer of any of its representations and warranties
contained in this Agreement or in any related document or agreement. The
Indenture Trustee and such successor shall take such action reasonably requested
by the parties hereto, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) Notwithstanding the above, if the Backup Servicer shall be legally
unable to act as Servicer, the Indenture Trustee, at the written direction of
the Majority Holders, shall appoint any Eligible Servicer as the successor to,
the Servicer. Pending such appointment, the outgoing Servicer shall continue to
act as Servicer until a successor has been appointed and accepted such
appointment. Subject to Section 9.05, 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
10.02, or the resignation of the Servicer pursuant to Section 9.05.
(c) Any successor Servicer other than the Backup Servicer shall be
entitled to such compensation (whether payable out of the Collection Account or
otherwise) as the Servicer would have been entitled to under the Agreement if
the Servicer had not resigned or been terminated hereunder. The Backup Servicer
shall be entitled to the applicable Backup Servicing Fees owing to it in
accordance with Schedule II hereto.
(d) Any successor Servicer may accept and reasonably rely on all
accounting and servicing records and other documentation provided to such
successor Servicer in connection
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with succession to Servicer duties, including documents prepared or maintained
by the Contributor, the Depositor or the prior Servicer, or any party providing
services related to the Receivables (each, a "Third Party"). The Contributor, in
its capacity as Servicer, shall indemnify and hold harmless the successor
Servicer and its officers, directors, employees and agents, the Issuer, the
Indenture Trustee, the Owner Trustee (as such and in its individual capacity),
the Noteholders and the Agent against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the successor Servicer, the Issuer, the Indenture
Trustee, the Owner Trustee (as such and in its individual capacity), the
Noteholders and the Agent may sustain in any way (i) solely related to the
negligence or misconduct of the Servicer or any such Third Party based upon any
matter related to or arising out of this Agreement except for any claims,
losses, penalties, fines, forfeitures, legal fees, and related costs and
judgments arising from such successor Servicer's own negligence or willful
misconduct; or (ii) solely related to the conduct of such successor Servicer
undertaken at the direction of any party hereto or which result from the
transfer of servicing to the successor Servicer. The successor Servicer shall
have no duty, responsibility, obligation or liability (collectively "liability")
for the acts or omissions of any Third Party. If any error, inaccuracy or
omission (collectively "error") exists in any information provided to a
successor Servicer and such error causes or materially contributes to such
successor Servicer making or continuing any error (a "continuing error"), such
successor Servicer shall have no liability for such continuing error; provided,
however, that this provision shall not protect such successor Servicer against
any liability arising from its willful misconduct, bad faith or gross negligence
in discovering or correcting or failing to discover or correct any error or in
the performance of its duties contemplated herein.
(e) Notwithstanding any other provision of the Agreement to the contrary,
any successor Servicer shall not inherit any of the indemnification obligations
of any prior servicer including the original servicer.
(f) Any successor Servicer shall have (1) no obligation to perform any
repurchase or advancing obligations, if any, of the prior Servicer, (2) no
obligation to pay any taxes required to be paid by the prior Servicer, (3) no
obligation to pay any of the fees and expenses of any other party in this
transaction and (4) no obligation to pay any fees, expenses or indemnities under
Sections 8.02(b) or Section 9.01(d), (e) or (f).
(g) In order to permit the successor Servicer to more effectively perform
its duties and obligations under Section 6.04(b) of this Agreement, the Servicer
hereby makes, constitutes and appoints the successor Servicer, acting by or
through any one or more of its officers or employees, as the true and lawful
attorney-in-fact for the Servicer and in the name place and stead of the
Servicer, and for the use and benefit of the Servicer, to take any actions
necessary to fulfill the successor Servicer's obligations under Section 6.04(b),
including without limitation, the preparation, execution and/or delivery to the
relevant governmental authorities of any filings, notations of release or
discharge, termination statements, Certificates of Title, affidavits, releases,
satisfactions of lien, certificates and other documents, instruments or showings
as may be required to cause the Certificate of Title relating to such Financed
Vehicles to be issued to reflect the security interest of the Indenture Trustee
in such Financed Vehicles.
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Section 10.04. Notification. Upon any termination of, or appointment of a
successor to, the Servicer pursuant to this Article, the Indenture Trustee shall
give prompt written notice thereof to the Noteholders at their respective
addresses appearing in the Note Register, and to the Agent.
Section 10.05. Waiver of Past Defaults. The Supermajority Holders may
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences, except an event resulting from the failure to
make any required deposits to, or payments from, the Collection Account in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
ARTICLE XI
ADMINISTRATION OF TRUST DUTIES
Section 11.01. Administrative Duties.
(a) Administrative Duties with Respect to the Basic Documents. The
Contributor shall perform all its duties and, unless otherwise specified, the
administrative duties of the Issuer under the Transaction Documents. In
addition, the Contributor shall consult with the Owner Trustee, the Indenture
Trustee and the Agent, as the Contributor deems appropriate regarding the duties
of the Issuer under the Transaction Documents. The Contributor shall monitor the
performance of the Issuer and shall advise the Owner Trustee, the Indenture
Trustee and the Agent, when action is necessary to comply with the Issuer's
duties under the Transaction Documents.
(b) Duties with Respect to the Issuer. (i) In addition to the duties of
the Servicer set forth in this Agreement or any of the other Transaction
Documents, the Contributor shall perform such calculations and shall prepare for
execution by the Issuer, or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to this Agreement or any of the other Transaction Documents or under
State or federal tax or securities laws and shall take all appropriate action
that it is the duty of the Issuer to take pursuant to this Agreement or any of
the Transaction Documents, including, without limitation, pursuant to Section
5.1 (with respect to the preparation and filing of tax returns) of the Issuer
Trust Agreement.
(ii) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Contributor may enter into transactions with or
otherwise deal with any of its Affiliates; provided, however, that the terms of
any such transaction or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Contributor's good faith business
judgment, no less favorable to the Issuer in any material respect.
(c) Records. The Contributor shall maintain appropriate books of account
and records relating to its duties performed under Section 11.01(a) and (b)
hereof, which books of
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account and records shall be accessible for inspection by the Owner Trustee, the
Indenture Trustee and the Agent at any time during normal business hours.
ARTICLE XII
TERMINATION OF AGREEMENT
Section 12.01. Term. This Sale and Servicing Agreement shall remain in
effect until termination of the Indenture in accordance with its terms.
Section 12.02. Effect of Termination. Upon termination of this Sale and
Servicing Agreement in accordance with its terms, the Servicer shall, at the
direction of the Issuer, promptly return all files and any related files and
correspondence in its possession as are related to the management of the
Receivables and the services provided hereunder. If the Backup Servicer is
acting as the successor Servicer, it shall be reimbursed pursuant to Section
5.03(b) of the Indenture for any costs incurred by it in performing its duties
pursuant to this Section 12.02.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment. This Agreement may only be amended by mutual
written consent of the parties hereto and with the prior written consent of the
Majority Holders; provided, however, that, no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of, or
change the allocation or priority of, collections of payments on the Receivables
or payments that shall be required to be made on any Note without the consent of
each Noteholder affected thereby, or (b) reduce the percentage of Noteholders,
if any, required to consent to any such amendment, without the consent of the
Holder of all Notes then outstanding or eliminate the right of the Noteholders
to consent to any change described in clause (a) affecting the Noteholders
without the consent of the Noteholders; provided, further, that no such
amendment shall amend or modify any provision of Section 3.02(a) hereof without
the consent of the Supermajority Holders. No amendment made to the Transaction
Documents to which the Servicer has duties thereunder without the Servicer's
written consent, shall be effective as to the Servicer, to the extent such
amendment is disadvantageous in any respect to the Servicer.
Section 13.02. Waivers. The provisions of this Agreement may only be
waived by written consent of the Majority Holders and the Issuer, the Depositor,
the Contributor and/or the Servicer, if any such party is adversely affected
thereby. The failure of any party hereto at any time to require performance by
any other party hereto of any provision of this Agreement shall in no way affect
that party's right to enforce such provision, nor shall the waiver by any party
of any breach of any provision of this Agreement be taken or held to be a waiver
of any further breach of the same provision or any other provision.
Section 13.03. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered
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or certified mail, postage prepaid, or by telephonic facsimile transmission and
overnight delivery service, postage prepaid, in any case addressed as follows:
To the Servicer: Bay View Acceptance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Backup Servicer: Systems & Services Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Executive Vice
President and General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A.
Asset Backed Finance
Suite IL1-0594
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp.
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Conduit Administration
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
To the Initial Purchasers: Falcon Asset Securitization
Asset Backed Finance
Suite IL1-0079
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
64
Fairway Finance Company, LLC
Address: c/o Lord Securities Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇@▇▇▇▇▇▇▇.▇▇▇
Copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp.
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Conduit Administration
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
To the Indenture Trustee JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Structured Finance - Bay View 2005
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuer: Bay View 2005 Warehouse Trust
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bay View Acceptance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Counsel
65
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Depositor: Bay View Warehouse Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bay View Acceptance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices to each of the Noteholders shall be sent to the address specified
for such Person in the Indenture or the Note Purchase Agreement. Such notice,
request, consent or other communication shall be deemed given when so delivered.
Section 13.04. 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 13.05. 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 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 13.06. No Offset. Prior to the termination of this Agreement, the
obligations of the Depositor and the Servicer under this Agreement shall not be
subject to any defense, counterclaim or right of offset which such Person may
have against the Issuer, the Contributor, the Depositor, the Servicer, any
Noteholder, the Agent or the Indenture Trustee, whether in respect of this
Agreement, any Receivable or otherwise.
Section 13.07. Powers of Attorney. The Issuer shall, from time to time,
provide to the employees of the Servicer, the Backup Servicer and the Indenture
Trustee limited, revocable
66
powers of attorney or other such written authorizations as may be appropriate to
enable the Servicer, the Backup Servicer and the Indenture Trustee to perform
its respective obligations under this Agreement and the Indenture; provided,
however, that the Issuer shall not be required to provide such powers with
respect to any matter for which the Issuer does not have authority to perform
itself.
Section 13.08. Assignment and Binding Effect. Except with respect to the
grant of this Agreement by the Issuer to the Indenture Trustee under the
Indenture and as expressly provided herein, this Agreement may be assigned only
with the written consent of the parties hereto and the Majority Holders;
however, in the event of an assignment, all provisions of this Agreement shall
be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 13.09. Captions. The article, paragraph and other headings
contained in this Agreement are for reference purposes only, and shall not limit
or otherwise affect the meaning hereof.
Section 13.10. Legal Holidays. In the case where the date on which any
action required to be taken, document required to be delivered or payment
required to be made is not a Business Day, such action, delivery or payment need
not be made on that date, but may be made on the next succeeding Business Day.
Section 13.11. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts including by facsimile or other electronic means,
each of which counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
Section 13.12. Governing Law. This Agreement shall be deemed entered into
with and shall be governed by and interpreted in accordance with the laws of the
State of New York (including New York General Obligations Law Sections 5-1401
and 5-1402 but otherwise without regard to the conflict of laws principles
thereof).
Section 13.13. 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
67
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, the Contributor, the Servicer, and the Depositor
agrees that until such time as the Notes have been paid in full, each of the
Issuer, the Contributor, the Servicer, and the Depositor shall have appointed,
with prior written notice to the Agent, 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 (which as of the date of this
Agreement is Registered Agent Solutions located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ 12203). Each of the Issuer, the Contributor, the Servicer, and the Depositor
agrees that service of such process upon such Person shall constitute personal
service of such process upon it. The Backup Servicer has 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
(which as of the date of this Agreement is National Corporate Research, Ltd.
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ 10122). The Backup Servicer agrees
that service of such process upon such Person shall constitute personal service
of such process upon it.
Section 13.14. TRIAL BY JURY WAIVED. 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
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 13.15. Parties. Except as set forth in Section 13.18 hereof, this
Agreement shall inure solely to the benefit of and shall be binding upon the
parties hereto, and their respective successors, legal representatives and
assigns, and no other person shall have or be construed to have any equitable
right, remedy or claim under or in respect of or by virtue of this Agreement or
any provision contained herein.
Section 13.16. Relationship of the Parties. The relationship of the
parties to this Agreement is that of independent contractors. Neither this
Agreement nor any of the activities contemplated hereby shall be deemed to
create any partnership, joint venture, agency or employer/employee relationship
among the Servicer and the Issuer.
68
Section 13.17. No Bankruptcy Petition Against the Issuer or the Depositor.
The parties hereto agree that, prior to the date that is one year and one day
after the payment in full of all Outstanding Notes, none of them will institute
against the Issuer, the Depositor or any Noteholder or join any other Person in
instituting against the Issuer, the Depositor or any Noteholder any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under the laws of the United States or any State of the United
States. This Section 13.17 shall survive the termination of this Agreement.
Section 13.18. Third Party Beneficiaries. This Agreement shall inure to
the benefit of the Agent and the Indenture Trustee on behalf of the Noteholders,
the Agent and the Financial Institutions 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, any
Noteholder, the Agent or the Indenture Trustee shall be for the benefit of and
run directly to such Noteholder, the Agent and the Indenture Trustee, and such
Noteholder, the Agent and the Indenture Trustee shall be entitled to rely on and
enforce such covenants to the same extent as if it or they were a party hereto.
Except as expressly stated otherwise herein or in the other Transaction
Documents, any right of the Agent or the Majority Holders to direct, appoint,
consent to, approve of, or take any action under this Agreement, shall be a
right exercised by the Agent or the Majority Holders in its or their sole and
absolute discretion.
Section 13.19. Reports to Holders. Any report, notice or financial
statement delivered pursuant to this Agreement by the Servicer to the
Noteholders shall be provided by such Persons to each Noteholder at the address
last provided to the Servicer by the Indenture Trustee or such Noteholder.
Section 13.20. Obligations of Depositor. The obligations of the Depositor
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
Section 13.21. Subsequent Pledge. The Depositor acknowledges that (i) the
Issuer will grant the Receivables and related Deposited Assets along with the
Issuer's rights and benefits under this Agreement to the Indenture Trustee
pursuant to the terms of the Indenture and (ii) the terms and provisions hereof
are intended to benefit the Noteholders. The Depositor hereby consents to such
grant. The parties hereto hereby acknowledge that the representations and
warranties contained in this Agreement and the rights of the Issuer under this
Agreement are intended to benefit the Indenture Trustee on behalf of the
Noteholders, the Agent and the Financial Institutions. The Depositor
acknowledges that the Indenture Trustee on behalf of the Noteholders, the Agent
and the Financial Institutions, as assignees of the Issuer's rights hereunder
may directly enforce, without making any prior demand on the Issuer, all the
rights of the Issuer hereunder, including, without limitation, the rights under
Section 3.03(a) hereof.
Section 13.22. Protection of Title to Trust. (a) Neither the Issuer, the
Contributor nor the Depositor shall change its name, identity, jurisdiction of
organization or corporate structure in any manner that would, could, or might
make any financing statement or continuation statement filed by the Issuer, the
Depositor or the Contributor in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-506 of the UCC, unless it shall have
given the Indenture Trustee, the Noteholders and the Agent at least sixty (60)
days' prior written notice
69
thereof and shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements and shall have delivered
an Opinion of Counsel (A) stating that, in the opinion of such counsel, all
amendments to all previously filed financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the Issuer and the Indenture Trustee in the Receivables
and the other items of the Trust Estate, and reciting the details of such
filings or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. Neither the Issuer,
the Contributor nor the Depositor shall become or seek to become organized under
the laws of more than one jurisdiction.
(b) Each of the Issuer, the Depositor and the Contributor shall give the
Indenture Trustee and the Agent at least sixty (60) days' prior written notice
of any relocation of its principal executive office or State of incorporation
and shall promptly file any amendment of any previously filed financing or
continuation statement or any new financing statement necessary or desirable to
continue the perfection of the Depositor's, the Issuer's or the Indenture
Trustee's interests in the Receivables and the rest of the Trust Estate and
shall have delivered an Opinion of Counsel (A) stating that, in the opinion of
such counsel, all amendments to all previously filed financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Indenture Trustee in the Receivables
and the other items of the Trust Estate, and reciting the details of such
filings or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Servicer shall at
all times maintain each office from which it shall service Receivables, its
principal executive office and its jurisdiction of incorporation, within the
United States of America.
(c) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(d) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables and Deposited
Assets to the Issuer, the Servicer's master computer records (including any
back-up archives) that refer to a Receivable and Deposited Assets shall indicate
clearly (including by means of tagging the Issuer) the interest of the Issuer in
such Receivable and that such Receivable is owned by the Issuer. Indication of
the Issuer's ownership of a Receivable shall be deleted from or modified on the
Servicer's computer systems when, and only when, the Receivable shall have been
paid in full or repurchased.
(e) If at any time the Contributor or the Depositor or the Servicer shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in automotive receivables to any prospective purchaser, lender, or
other transferee, the Servicer shall give to such prospective purchaser, lender,
or other transferee computer tapes, records, or print-outs (including any
restored from back-up archives) that, if they shall refer in any manner
whatsoever to any
70
Receivable, shall indicate clearly (including by means of tagging) that such
Receivable has been sold and is owned by the Issuer.
(f) The Servicer shall permit the Indenture Trustee, the Agent and their
respective 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. If the Backup Servicer is acting as successor Servicer, the
Indenture Trustee and the Agent shall give reasonable notice of any such audit
or inspection and such inspection shall be conducted in a manner that does not
cause undue disruption or interference with the Backup Servicer's business.
(g) Upon request, the Servicer shall furnish to the Indenture Trustee and
the Agent, within two (2) Business Days, a list of all Receivables (by account
number and name of Obligor) then held as part of the Trust Estate, together with
a reconciliation of such list to the schedule of Receivables attached to each
Depositor Assignment as Schedule I and to each of the Monthly Servicer Reports
furnished before such request indicating removal of Receivables from the Trust
Estate.
(h) The Servicer shall deliver to the Indenture Trustee and the Agent:
(1) upon the execution and delivery of this Agreement, each
Depositor Assignment and each amendment to any such document, an Opinion
of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements (and releases of financing statements) and
continuation statements have been executed that are necessary fully to
preserve and protect the interest of the Indenture Trustee in the
Receivables and the rest of the Trust Estate, and reciting the details of
the expected filings thereof or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interest; and
(2) within ninety (90) days after the beginning of each calendar
year beginning with calendar year 2006, an Opinion of Counsel, dated as of
a date during such 90-day period, either (A) stating that, in the opinion
of such Counsel, all financing statements and continuation statements have
been filed that are necessary fully to preserve and protect the interest
of the Indenture Trustee in the Receivables and the rest of the Trust
Estate, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (B) stating that,
in the opinion of such Counsel, no such action shall be necessary to
preserve and protect such interest. Such Opinion of Counsel shall also
describe the filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to
preserve and protect the interest of the Indenture Trustee in the
Receivables, until March 31 in the following calendar year.
(i) If the Backup Servicer is acting as the successor Servicer, it shall
be reimbursed pursuant to Section 5.03(b) of the Indenture for any costs
incurred by it in performing its duties pursuant to this Section.
71
Section 13.23. 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 representations, warranties, or 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 13.24. Integration. 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.
Section 13.25. Limitation on Recourse. Notwithstanding any provision
herein to the contrary, the obligations of the Depositor and the Issuer shall
not be a general obligation of, or construed as permitting recourse to, such
entity; it being understood that the sole recourse of any party with respect to
the payment obligations of the Depositor or the Issuer shall be the Monthly
Available Funds and such obligations shall be paid in accordance with the
priority of payments set forth in Section 5.03(b) of the Indenture.
Section 13.26. Repurchase Option. The Depositor may, within the 10-day
period immediately following the securitization of a portion of the Pool,
repurchase Delinquent Receivables from the Pool in an amount not to exceed the
aggregate amount of Receivables securitized/sold out of the Pool in connection
with the securitization/whole loan sale multiplied by the lesser of: (a) the
amount of Delinquent Receivables in the Pool immediately prior to such
securitization divided by the aggregate amount of Receivables in the Pool
immediately prior to such securitization, and (b) two percent (2%) of the
Receivables in the Pool at the time of such repurchase.
72
IN WITNESS WHEREOF, the Issuer, the Depositor, the Indenture Trustee and
the Servicer and the Backup Servicer have caused this Sale and Servicing
Agreement to be duly executed by their respective authorized officers as of the
date and year first above written.
BAY VIEW 2005 WAREHOUSE TRUST, as Issuer
By: Wilmington Trust Company,
not in its individual capacity but solely
as Owner Trustee on behalf of the Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Financial Services Officer
Signature Page to Sale and Servicing Agreement
BAY VIEW WAREHOUSE CORPORATION, as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as Indenture Trustee
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: Vice President
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
as Backup Servicer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BAY VIEW ACCEPTANCE CORPORATION, as
Servicer and as Contributor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
EXHIBIT A
FORM OF ASSIGNMENT
This Assignment and Assumption Agreement ("Assignment") is made as of
_____________, 200_ (the "Deposit Date"), by and between Bay View Warehouse
Corporation, a Delaware corporation ("Assignor"), and Bay View 2005 Warehouse
Trust, a Delaware statutory trust ("Assignee"), with reference to the following
facts:
RECITALS:
A. In connection with the deposit of certain receivables and related
assets of Assignor in conjunction with the issuance on the Closing Date of
variable funding notes (the "Notes") by the Assignee, Assignee and the Assignor
have executed the Sale and Servicing Agreement dated as of June 20, 2005 (the
"Sale and Servicing Agreement").
B. In connection with the Sale and Servicing Agreement, the Assignor
desires to assign and transfer to Assignee all of Assignor's right, title and
interest in and to each of the Receivables listed in Schedule I hereto and the
related Deposited Assets (the "Assets").
C. Assignee desires to accept the Assignment and transfer of the Assets
on the Deposit Date.
D. Terms used but not defined herein have the meanings ascribed to them
in the Sale and Servicing Agreement.
Now Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and in consideration of the mutual
covenants set forth herein, the Assignor and Assignee hereby agree as follows:
1. Assignment. The Assignor hereby assigns, conveys, grants and
transfers, without recourse except as provided in the Sale and Servicing
Agreement, to Assignee (and the successors and assigns of Assignee) the
following property:
1.1. The Assignor's right, title and interest in and to the
Receivables described and listed on Schedule I hereto and related Financed
Vehicles and Deposited Assets.
1.2. All of Assignor's right, title and interest in and to the
Financed Vehicles.
1.3. All of Assignor's rights, title and interest in the other
Deposited Assets relating to each such Receivable.
2. Further Assurances. The Assignor and Assignee each hereby agree to
provide such further assurances and to execute and deliver such documents and to
perform all such other acts as are necessary or appropriate to consummate and
effectuate this Assignment, including, without limitation, those set forth in
Section 5.01 of the Sale and Servicing Agreement.
3. Distinct Entities. The Assignor and Assignee hereby acknowledge that
for all purposes the Assignor and Assignee are each separate and distinct legal
entities. Accordingly,
A-1
the Assignor shall not be liable to any third party for the debts, obligations
and liabilities of the Assignee; and Assignee shall not be liable to any third
party for the debts, obligations and liabilities of the Assignor.
4. Governing Law. This Assignment shall be governed by and interpreted 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 law principles thereof.
5. Authority. The Assignor and Assignee each hereby represent respectively
that they have full power and authority to enter into this Assignment.
6. Counterparts. This Assignment may be executed in multiple counterparts,
each of which shall be deemed an original but all of which, taken together,
shall constitute one and the same instrument.
7. Successors and Assigns. The Assignor and Assignee each agree that this
Assignment will be binding and will inure to the benefit of the Assignor and its
successors and assigns and the Assignee and its successors and assigns.
8. Third Party Beneficiaries. This Assignment shall inure to the benefit
of the Indenture Trustee on behalf of the Noteholders and their respective
successors and assigns.
9. Limitation of Liability. Notwithstanding any other provision herein or
elsewhere, this Assignment 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 representations, warranties, or obligations of the Issuer hereunder or under
any 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.
A-2
IN WITNESS WHEREOF, this Assignment has been executed as of the date first
above written.
BAY VIEW WAREHOUSE CORPORATION,
Assignor
By: _____________________________________
Name: ______________________________
Title: _____________________________
BAY VIEW 2005 WAREHOUSE TRUST,
Assignee
By: Wilmington Trust Company, not
in its individual capacity but solely
as Owner Trustee on
behalf of the Issuer
By: _____________________________________
Name: ______________________________
Title: _____________________________
A-3
SCHEDULE I
LOAN SCHEDULE
SCHEDULE II
BACKUP SERVICING FEES
I. FEES
A. Standby Servicing (2)
1. One-Time Setup Fee $ 5,000
2. Monthly Fee $ 3,000 per month
B. Successor Servicing (3)
1. One Time Boarding Fee $ 5.00 per loan
2. Monthly Fee (4) (5) the greater of 100 bsp or
$ 5.00 per month
3. Minimum Monthly Fee $ 3,000
II. EXPENSES
A. STANDBY SERVICING AND TRANSFER EXPENSES
SST shall be reimbursed for all costs and expenses incurred in connection with
its Standby Servicing duties and the transfer of contracts to SST for successor
servicing. Such costs and expenses include, but are not limited to, those
related to travel, obligor mailings, freight and file shipping.
B. SUCCESSOR SERVICING EXPENSES (3)
SST shall be reimbursed for all out-of-pocket expenses including, but not
limited to, those associated with asset recovery, liquidation, sales, travel,
lodging, legal proceedings related to replevin actions or obligor bankruptcies,
statement and mailing costs, title processing, bank charges, field calls, and
insurance tracking, if any. Additionally, SST shall receive an administrative
fee amounting to 8% of the funds advanced by SST to cover any such expenses
during any monthly collection period. In order to avoid this administrative fee,
Bank One (or another party, as appropriate) may at any time during the term
establish and fund an advance account to be utilized by SST to cover all such
expenses and costs provided in this section for any monthly collection period.
Any such advance account must be fully funded on a monthly basis in an amount
sufficient to cover the out-of-pocket expenses projected by SST for each
subsequent monthly collection period.
III. MISCELLANEOUS (3)
A. CLAIM FILING COSTS
In the event SST files insurance claims in connection with any contract serviced
by SST, SST shall receive $25.00 per filing.
B. ADMINISTRATIVE FEES/SERVICING CHARGES
SST shall receive all administrative fees, including extension processing fees,
NSF fees and late charges received by SST during any monthly collection period.
C. DEFICIENCY COLLECTIONS
Under separate agreement, SST may provide deficiency collections services on a
contingency fee basis.
D. LEGAL FEES AND EXPENSES AT COST
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(2) Standby services limited to: (i) monthly receipt of an electronic loan data
transmission, including all relevant obligor contact information including
address and phone numbers, loan balance, payment information, and comment
histories (ii) receipt of and verification some information supplied on the
month-end servicer statement.
(3) These items shall only apply to SST's performance of successor servicing
duties.
(4) Basis points are annualized (i.e., applicable basis points/12) and shall be
based on beginning of month outstanding principal balance of each individual
Active Contract, as defined below.
(5) SST shall receive this fee for all "Active Contracts" for any full or
partial month where it functions as the Servicer. Active Contract is defined as
any contract other than: (i) prepaid, fully satisfied contracts; (ii) contracts
in which the asset has been liquidated and SST has posted the liquidation
proceeds or any other anticipated proceeds (e.g., credit enhancement insurance);
or (iii) contracts in which SST has completed all work in connection with
processing and receiving insurance payoffs. There shall be a $0.50 monthly
servicing fee for each contract that is not an Active Contract until such time
as SST is duly instructed to write the obligor's balance down to $0.00.
EXHIBIT B
FORM OF CONTRACT
EXHIBIT C
CONTRIBUTOR'S UNDERWRITING GUIDELINES
EXHIBIT D
MONTHLY SERVICER REPORT
EXHIBIT E
BAY VIEW ACCEPTANCE CORPORATION'S COLLECTION POLICY
EXHIBIT F
FORM OF LOAN MASTER FILE
AND HISTORY INFORMATION
EXHIBIT G
WEEKLY SERVICER REPORT
EXHIBIT H
PRE-FUNDING SERVICER REPORT
