EXHIBIT 10.54
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EXECUTION COPY
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NIM COLLATERAL PURCHASE AGREEMENT
NIM COLLATERAL PURCHASE AGREEMENT, dated as of October 2, 1998, by and
between AUTO LENDERS ACCEPTANCE CORPORATION ("ALAC" or a "SELLER") and ALAC
RECEIVABLES CORP. ("ALACRC" or a "SELLER" and together with ALAC, the "Sellers")
and FIFS ACQUISITION FUNDING COMPANY, L.L.C. (the "PURCHASER").
WHEREAS, ALACRC is the owner of certain beneficial ownership interests
(the "CERTIFICATES") in the owner trusts (the "TRUSTS") issued pursuant to the
Trust Agreements identified in Appendix I attached hereto (the "TRUST
AGREEMENTS");
WHEREAS, ALACRC is the owner of certain rights in certain spread accounts
(the "SPREAD ACCOUNTS") and all monies, checks, securities, investments and
other documents related thereto (collectively, with the Spread Accounts, the
"SPREAD ACCOUNT COLLATERAL") created and described in the Master Spread Account
Agreement.
WHEREAS, ALACRC is the owner of certain rights to receive distributions in
respect of the Spread Accounts pursuant to Section 3.03(b) of the Master Spread
Account Agreement;
WHEREAS, ALAC is the owner of certain Charged Off Receivables (as
defined herein);
WHEREAS, ALAC is the servicer under the ALAC Securitizations and entitled
to receive from time to time under each of the Sale and Servicing Agreement
identified in Appendix I hereto (the "SALE AND SERVICING Agreements") the
Servicing Fee (as defined in each of the Sale and Servicing Agreements;
NOW THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Loan Agreement (as defined below). As used
in this Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally applicable to
the singular and plural forms of the terms defined).
AGREEMENT: This NIM Collateral Purchase Agreement as such agreement may be
amended, modified and/or restated.
ALAC SECURITIZATION DOCUMENT: Any document delivered in connection with the
ALAC Securitizations and to which any Seller, as the case may be, is a party.
CHARGED OFF RECEIVABLE: Any Contract that, prior to the Closing Date, has been
charged-off by ALAC in accordance with its credit and collection policy and is
listed on the Charged Off Receivables List.
CHARGED OFF RECEIVABLES LIST: Collectively, all schedules, as the same may be
amended, modified or supplemented, of Charged Off Receivables delivered by ALAC
to the Purchaser and to the Deal Agent, each such schedule identifying, in such
detail as agreed by ALAC and the Deal Agent, the related Contract by the Obligor
and setting forth for each such Contract: (i) a number identifying the Contract
and (ii) the Contract Principal Balance. Such list shall be attached hereto as
Exhibit A.
CONTRACT: A retail installment sale contract for a Financed Vehicle and all
rights and obligations thereunder.
FINANCED VEHICLE: An automobile or light duty truck, together with all
accessories thereto, securing an Obligor's indebtedness under a Contract.
LOAN AGREEMENT: That certain Loan and Security Agreement dated as of October 2,
1998 among the Purchaser, as borrower, First Union Capital Markets, a division
of Wheat First Securities, as Deal Agent and Custodian, Auto Lenders Acceptance
Corporation, as Servicer, First Union National Bank, as Liquidity Agent and the
Sellers, as such agreement may be amended or supplemented in accordance with the
terms thereof.
MASTER SPREAD ACCOUNT AGREEMENT: The Master Spread Account Agreement, dated
as of September 25, 1997 among ALACRC, Financial Security Assurance Inc. and
Norwest Bank Minnesota, National Association, as amended, supplemented,
modified or restated.
OBLIGOR: Any obligor under any Contract, whose recourse obligations thereunder
constitute a principal source of payments under any Contract, including any
guarantor of such obligations.
PURCHASE PRICE: With respect to the Certificates, $16,610,000, with respect to
the Spread Account Collateral, $3,100,000, with respect to the Servicing Strips,
$10,000 and with respect to the Charged Off Receivables, $10,000.
SELLERS: ALAC and ALACRC, as the case may be.
SERVICING STRIPS: The rights of ALAC to receive, pursuant to the terms and
conditions of each of the Sale and Servicing Agreements, the Servicing Fee (as
defined in each Sale and Servicing
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Agreement) payable on each Distribution Date (as defined in each Sale and
Servicing Agreement) under each Sale and Servicing Agreement, to the extent of
an amount equal to 1.00% of the Pool Balance (as defined in each Sale and
Servicing Agreement).
UCC: Shall have the meaning ascribed to it in the Loan Agreement.
ARTICLE II
PURCHASE AND SALE OF NIM COLLATERAL
Each Seller hereby sells, transfers and conveys to the Purchaser all of
such Seller's right, title and interest in and to the NIM Collateral owned by
such Purchaser on the Closing Date. The Purchaser shall purchase and pay the
Purchase Price for such NIM Collateral on the Closing Date in cash.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Sellers as of the date
hereof:
(a) ORGANIZATION, ETC. The Purchaser has been duly incorporated and is
validly existing as a limited liability company in good standing under the laws
of the State of Delaware, and has full corporate power and authority to execute
and deliver this Agreement and to perform the terms and provisions hereof.
(b) DUE AUTHORIZATION AND NO VIOLATION. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and is the valid, binding
and enforceable obligation of the Purchaser 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. The
consummation of the transactions contemplated by this Agreement, and the
fulfillment of the terms thereof, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under (in each
case material to the Purchaser), or (except as contemplated by the Loan
Agreement) result in the creation or imposition of any Lien, charge or
encumbrance (in each case material to the Purchaser) upon any of the property or
assets of the Purchaser pursuant to the terms of any indenture, mortgage, deed
of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Purchaser is a debtor or guarantor, nor
will such action result in any violation of the provisions of the Limited
Liability Company Agreement of the Purchaser.
(c) NO LITIGATION. No legal or governmental proceedings are pending to
which the Purchaser is a party or of which any property of the Purchaser is the
subject, and no such proceedings are threatened or contemplated by governmental
authorities or threatened by others
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other than such proceedings which will not have a material adverse effect upon
the general affairs, financial position, net worth or results of operations (on
an annual basis) of the Purchaser and will not materially and adversely affect
the performance by the Purchaser of its obligations under, or the validity and
enforceability of, this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
(a) Each Seller hereby represents and warrants to the Purchaser as of the
date hereof:
(i) ORGANIZATION, ETC. It has been duly incorporated and is validly
existing under the laws of the jurisdiction of its incorporation and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification.
(ii) POWER AND AUTHORITY. It has full power and authority to sell
and assign the property to be sold and assigned to the Purchaser hereunder
and has duly authorized such sale and assignment to the Purchaser by all
necessary corporate action. This Agreement has been duly authorized,
executed and delivered by such Seller and shall constitute the legal,
valid and binding obligation of such Seller 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.
(iii) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement, and the fulfillment of the terms thereof,
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under (in each case material to
such Seller and its respective subsidiaries considered as a whole), or
result in the creation or imposition of any adverse claim, charge or
encumbrance (in each case material to such Seller and its respective
subsidiaries considered as a whole) upon any of the property or assets of
such Seller pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which such Seller is a debtor or guarantor,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-laws of such Seller.
(iv) NO PROCEEDINGS. No legal or governmental proceedings are
pending to which such Seller is a party or of which any property of such
Seller is the subject, and no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, other
than such proceedings which will not have a material adverse effect upon
the validity or collectability of the portion of the NIM Collateral
transferred by it hereunder, or upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of such
Seller and its subsidiaries considered as a whole and will not materially
and adversely affect the performance by such Seller of its obligations
under, or the validity and enforceability of, this Agreement.
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(v) Immediately prior to the Closing Date: (i) none of the NIM
Collateral had been sold, assigned, or pledged by the Seller owning such
NIM Collateral to any Person; (ii) each Seller had good and marketable
title thereto free and clear of any encumbrance, equity, pledge, charge,
claim or security interest; (iii) each Seller was the sole owner thereof
and had full right to sell the portion of the NIM Collateral transferred
by it hereunder to the Purchaser and upon the sale thereof to the
Purchaser, the Purchaser will have good and marketable title thereto and
will own such NIM Collateral free and clear of any encumbrances.
ARTICLE IV
CONDITIONS
4.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASER.
The obligation of the Purchaser to purchase the NIM Collateral is subject
to the satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Sellers hereunder shall be true and correct as of the Closing
Date.
(b) DOCUMENTS TO BE DELIVERED BY THE SELLERS.
(i) EVIDENCE OF UCC FILING. Each Seller shall have recorded and
filed, at its own expense, a UCC-1 financing statement in each
jurisdiction in which filing is required by applicable law, executed by
such Seller and naming the Purchaser as purchaser of the NIM Collateral
transferred by such Seller, and the Deal Agent, as assignee, describing
the NIM Collateral transferred by such Seller and the other property
conveyed hereunder, meeting the requirements of the laws of each
jurisdiction and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of such Contracts to the Purchaser.
The Sellers shall deliver to the Purchaser and the Deal Agent a
file-stamped copy, or other evidence satisfactory to the Purchaser and the
Deal Agent of such filing.
(ii) OTHER DOCUMENTS. All other documents in the possession of the
Sellers relating to the Contracts and any other document requested by the
Deal Agent to be delivered shall have been delivered by the Sellers.
4.2 CONDITIONS TO OBLIGATIONS OF THE SELLERS.
The obligation of the Sellers to sell the NIM Collateral to the Purchaser
is subject to the satisfaction of the following conditions:
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(a) REPRESENTATION AND WARRANTIES TRUE. The representations and warranties
of the Purchaser hereunder shall be true and correct as of the Closing Date.
(b) CONTRACTS PURCHASE PRICE. At the Closing Date, the Purchaser shall
have delivered to the Sellers the Purchase Price.
ARTICLE V
COVENANTS OF THE SELLER
5.1 DISTRIBUTIONS.
Each Seller agrees that it shall promptly (but in no event later than two
Business Days) deposit any funds distributed to it with respect to the NIM
Collateral to the Collection Account.
5.2 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) Each of the Sellers shall execute and file such financing statements
and cause to be executed and filed such continuation statements and any required
documentation all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the ownership interest of the Purchaser
in the NIM Collateral and in the proceeds thereof. The Sellers shall deliver (or
cause to be delivered) to the Purchaser and the Deal Agent filed-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) None of the Sellers shall change its name, identity, or corporate
structure in any manner that would, could, or might make any financing statement
or continuation statement filed by the Sellers in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402 of the UCC,
unless it shall have given the Purchaser and the Deal Agent at least thirty
days' prior written notice thereof and shall have filed appropriate amendments
to all previously filed financing statements or continuation statements prior to
such changes.
(c) Each of the Sellers shall give the Purchaser and the Deal Agent at
least thirty days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
file any such amendment prior to any such relocation. Each of the Sellers shall
at all times maintain its principal executive office within the United States of
America.
(d) The Sellers will not amend, and shall not permit any amendment to any
ALAC Securitization Document or the Master Spread Account Agreement relating to
the NIM Collateral which would adversely affect their respective ability and
right to receive refunds with respect thereto, or which would adversely affect
the rights of any of the Deal Agent, the Liquidity Agent, the Secured Parties,
or the Purchaser.
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5.3 OTHER LIENS OR INTERESTS.
Except for the conveyances hereunder, the Sellers will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any adverse claim on any interest in the NIM Collateral, and the
Sellers shall defend the right, title, and interest of the Purchaser in, to and
under the NIM Collateral against all claims of third parties claiming through or
under the Sellers.
5.4 COSTS AND EXPENSES.
The Sellers agree to take, at their joint and several expense, any
additional action required by the Purchaser or the Deal Agent in order to
protect the Purchaser's and the Deal Agent's (on behalf of the Secured Parties)
interests in the NIM Collateral.
5.5 INDEMNIFICATION.
The Sellers shall jointly and severally indemnify the Purchaser, the Deal
Agent and each Secured Party under the Loan Agreement for any liability as a
result of the failure by any Seller to fully perform hereunder and pursuant to
the terms of the Sale and Servicing Agreements, the Spread Account Agreements
and each other ALAC Securitization Document. These indemnity obligations shall
be in addition to any obligation that the Sellers may otherwise have.
5.6 SERVICING OBLIGATIONS.
ALAC agrees to continue to act as Servicer under each of the ALAC
Securitizations, to provide reports with respect thereto and to enter into
further agreements with the Purchaser or its assignees relating to such
servicing obligations as may be reasonably requested.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 OBLIGATION OF SELLERS.
The obligations of the Sellers under this Agreement shall not be affected
by reason of the invalidity, illegality or irregularity of any ALAC
Securitization Document.
6.2 [RESERVED].
6.3 TERMINATION.
The obligations of the Sellers to sell any right, title or interest in the
NIM Collateral to the Purchaser, and of the Purchaser to purchase such right,
title or interest from the Sellers, pursuant to this Agreement shall terminate
at such time as all amounts due and payable by the Purchaser under the Loan
Agreement are paid in full.
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6.4 AMENDMENT.
This Agreement may be amended from time to time by a written instrument
duly executed and delivered by the Sellers and the Purchaser; PROVIDED, HOWEVER,
that no such amendment shall be effective without a prior written consent of the
Deal Agent.
6.5 COLLATERAL ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, the Sellers (i)
acknowledges and consents that the Purchaser has assigned its rights hereunder
and its interest herein as collateral pursuant to the Loan Agreement for the
benefit of the Secured Parties, and (ii) agrees to attorn to the Deal Agent in
the event of its succession to the rights and interest of the Purchaser
hereunder by reason of foreclosure or otherwise.
6.6 [RESERVED].
6.7 WAIVERS.
No failure or delay on the part of any party in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any power, right or remedy preclude any
other further exercise thereof or the exercise of any other power, right or
remedy.
6.8 NOTICES.
All communications and notices directed to either party pursuant to this
Agreement shall be in writing addressed or delivered to it at its address set
forth under its name on the signature pages hereof and to the Deal Agent at:
First Union Capital Markets, a division of Wheat First Securities, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Conduit
Administration or at such other address as may be designated by it by notice to
other party and, if mailed or transmitted by facsimile transmission, shall be
deemed given when mailed or transmitted.
6.9 COSTS AND EXPENSES.
The Sellers will pay all expenses incident to the performance of their
obligations under this Agreement and the Sellers agrees to pay all reasonable
out-of-pocket costs and expenses of the Purchaser, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the NIM Collateral and the enforcement of any obligation of the
Sellers hereunder.
6.10 HEADINGS AND CROSS REFERENCES.
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The various headings in this Agreement are included for convenience only
and shall not affect the meaning or interpretation of any provisions of this
Agreement.
6.11 GOVERNING LAW.
This Agreement and the Assignment shall be governed by and construed in
accordance with the laws of the State of Georgia.
6.12 COUNTERPARTS.
This Agreement may be executed in two or more counterparts and by
different parties on separate counterparts, each of which shall be an original,
but all of which together shall constitute one and the same instrument.
6.13 NO PROCEEDINGS.
For so long as the Term Loan shall remain outstanding, each Seller agrees
that it will not file any involuntary petition or otherwise institute any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy or similar law against
the Purchaser.
6.14 THIRD PARTY BENEFICIARY.
Each of the parties hereto agree that the Deal Agent, as agent, is a third
party beneficiary of this Agreement.
6.15 ASSIGNMENT.
This Agreement may not be assigned by either party hereto without the
prior written consent of the Deal Agent.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunder to duly authorized as of the
date and year first above written.
SELLER: AUTO LENDERS ACCEPTANCE CORPORATION
By_______________________________________
Name:____________________________________
Title:___________________________________
Auto Lenders Acceptance Corporation
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Duck
Facsimile No.:
Confirmation No.:
SELLER: ALAC RECEIVABLES CORP.
By_______________________________________
Name:____________________________________
Title:___________________________________
ALAC Receivables Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Duck
Facsimile No.:
Confirmation No.:
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PURCHASER: FIFS ACQUISITION FUNDING COMPANY, L.L.C.
By FIALAC Holdings, Inc., as Manager
By_______________________________________
Name: ▇▇▇▇▇▇ ▇. Duck
Title: Vice President of FIALAC
Holdings, Inc.
FIFS Acquisition Funding Company, L.L.C.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Duck
Facsimile No.:
Confirmation No.:
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Exhibit A
Charge Off Receivables List
Appendix I
The Trust Agreements
1. Amended and Restated Trust Agreement, dated as of September 25, 1997,
between ALAC Receivables Corp., ALAC, LLC and Bankers Trust (Delaware).
2. Amended and Restated Trust Agreement, dated as of January 13, 1998,
between ALAC Receivables Corp., ALAC, LLC and Bankers Trust (Delaware).