Exhibit 10.3
==============================================================================
-----------------------------------,
as Seller,
and
POOLED AUTO SECURITIES SHELF LLC,
as Purchaser
--------------------------------------------------
FORM OF RECEIVABLES PURCHASE AGREEMENT
Dated as of _________, 200_
--------------------------------------------------
==============================================================================
TABLE OF CONTENTS
PAGE
Article One
DEFINITIONS
Section 1.01. Definitions................................................. 1
Section 1.02. Other Definitional Provisions............................... 2
Article Two
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables................................... 2
Section 2.02. Representations and Warranties of the Seller and the
Purchaser................................................. 4
Section 2.03. Representations and Warranties as to the Receivables........ 6
Section 2.04. Covenants of the Seller..................................... 10
Article Three
PAYMENT OF RECEIVABLES PURCHASE PRICE
Section 3.01. Payment of Receivables Purchase Price....................... 11
Article Four
TERMINATION
Section 4.01. Termination................................................. 11
Article Five
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment................................................... 11
Section 5.02. Protection of Right, Title and Interest to Receivables...... 12
Section 5.03. Governing Law............................................... 12
Section 5.04. Notices..................................................... 12
Section 5.05. Severability of Provisions.................................. 12
Section 5.06. Assignment.................................................. 13
Section 5.07. Further Assurances.......................................... 13
Section 5.08. No Waiver; Cumulative Remedies.............................. 13
Section 5.09. Counterparts................................................ 13
Section 5.10. Third-Party Beneficiaries................................... 13
Section 5.11. Headings.................................................... 13
Section 5.12. Seller Indemnification...................................... 14
Section 5.13. Merger, Consolidation or Assumption of the
Obligations of the Seller................................. 14
SCHEDULES
Schedule A - Schedule of Receivables.......................................A-1
This Receivables Purchase Agreement, dated as of ___________, 200_, is
between _______________________, a ______________ corporation, as seller, and
Pooled Auto Securities Shelf LLC, a Delaware limited liability company, as
purchaser.
WHEREAS, in the regular course of its business, the Seller has purchased
certain motor vehicle retail installment sale contracts secured by new and used
automobiles, mini-vans, sport-utility vehicles, light-duty trucks, motorcycles
and commercial vehicles;
WHEREAS, the Seller and the Purchaser wish to set forth the terms pursuant
to which such contracts are to be sold by the Seller to the Purchaser; and
WHEREAS, the Purchaser intends, concurrently with its purchases hereunder,
to convey all of its right, title and interest in and to $______________ of such
contracts to ______________ Trust 200_-_ (the "Issuer") pursuant to a [Sale and
Servicing Agreement dated as of _____________, 200_ (the "Sale and Servicing
Agreement"), by and among _________________ Trust 200_-_, as Issuer, Pooled Auto
Securities Shelf LLC, as Depositor, ___________________, as Servicer and
_______________, as Indenture Trustee] [Pooling and Servicing Agreement dated as
of ___________, 200_ (the "Pooling and Servicing Agreement") by and among Pooled
Auto Securities Shelf LLC, as Depositor, ___________________, as Servicer, and
____________________, as Trustee].
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 One
DEFINITIONS
SECTION 1.01. DEFINITIONS. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"AGREEMENT" means this Receivables Purchase Agreement and all amendments
hereof and supplements hereto.
"CLOSING DATE" means ___________, 200_.
"CUTOFF DATE" means ___________, 200_.
["INDENTURE" means the Indenture, dated as of ___________, 200_, between
the Issuer and the Indenture Trustee.]
["INDENTURE TRUSTEE" means ______________________, as indenture trustee
under the Indenture.]
"ISSUER" has the meaning given in the Recitals.
"OWNER TRUSTEE" means _____________________, as owner trustee under the
[Trust Agreement] [Pooling and Servicing Agreement].
["Pooling and Servicing Agreement" has the meaning given in the Recitals.]
"PURCHASER" means Pooled Auto Securities Shelf LLC, in its capacity as
purchaser of the Receivables under this Agreement, and its successors and
assigns.
"RECEIVABLES PURCHASE PRICE" means $______________.
["SALE AND SERVICING AGREEMENT" has the meaning given in the Recitals.]
"SCHEDULE OF RECEIVABLES" means the schedule of receivables attached as
Schedule A hereto.
"SELLER" means ____________________, in its capacity as seller of the
Receivables under this Agreement, and its successors and assigns.
["TRUST AGREEMENT" means the trust agreement dated as of ___________,
200_, between Pooled Auto Securities Shelf LLC, as depositor and the Owner
Trustee.]
"WARRANTY RECEIVABLE" means a Receivable purchased by the Seller pursuant
to Section 2.03(c).
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All capitalized terms not otherwise defined in this Agreement shall
have the defined meanings used in the [Sale and Servicing Agreement] [Pooling
and Servicing Agreement].
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, subsection and
Schedule references contained in this Agreement are references to Sections,
subsections and Schedules in or to this Agreement unless otherwise specified;
the term "proceeds" shall have the meaning set forth in the applicable UCC; and
the word "including" means including without limitation.
Article Two
CONVEYANCE OF RECEIVABLES
SECTION 2.01. CONVEYANCE OF RECEIVABLES.
(a) The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Purchaser, and the Purchaser hereby purchases from the Seller,
without recourse (subject to the
2
Seller's obligations hereunder), all of the right, title and interest of the
Seller in, to and under the following:
(i) the Receivables listed in the Schedule of Receivables and all
monies due thereon or paid thereunder or in respect thereof (including
proceeds of the repurchase of Receivables by the Seller pursuant to Section
2.03(c)) on or after the Cutoff Date;
(ii) the security interests in the Financed Vehicles;
(iii) any proceeds of any physical damage insurance policies covering
the Financed Vehicles and in any proceeds of any credit life or credit
disability insurance policies relating to the Receivables or the Obligors;
(iv) any proceeds of Dealer Recourse;
(v) the right to realize upon any property (including the right to
receive future Liquidation Proceeds) that shall have secured a Receivable
and have been repossessed by or on behalf of the Issuer; and
(vi) the proceeds of any and all of the foregoing.
(b) In connection with the foregoing conveyance, the Seller agrees to
record and file, at its own expense, one or more financing statements with
respect to the Receivables now existing and hereafter created for the sale of
chattel paper (as defined in Section 9-106 of the UCC as in effect in the State
of California) meeting the requirements of applicable state law in such manner
as is necessary to perfect the sale of the Receivables to the Purchaser, and the
proceeds thereof (and any continuation statements as are required by applicable
state law), and to deliver a file-stamped copy of each such financing statement
(or continuation statement) or other evidence of such filings (which may, for
purposes of this Section, consist of telephone confirmation of such filings with
the file stamped copy of each such filings to be provided to the Purchaser in
due course), as soon as is practicable after receipt by the Seller thereof.
In connection with the foregoing conveyance, the Seller further agrees, at
its own expense, on or prior to the Closing Date (i) to annotate and indicate in
its computer files that the Receivables have been transferred to the Purchaser
pursuant to this Agreement, (ii) to deliver to the Purchaser a computer file or
printed or microfiche list containing a true and complete list of all such
Receivables, identified by account number and by the Principal Balance of each
Receivable as of the Cutoff Date, which file or list shall be marked as Schedule
A to this Agreement and is hereby incorporated into and made a part of this
Agreement and (iii) to deliver the Receivable Files to or upon the order of the
Purchaser.
The parties hereto intend that the conveyance hereunder be a sale. In the
event that the conveyance hereunder is not for any reason considered a sale, the
Seller hereby grants to the Purchaser a first priority perfected security
interest in all of its right, title and interest in, to and under the
Receivables, and all other property conveyed hereunder and listed in this
Section and all proceeds of any of the foregoing. The parties intend that this
Agreement constitute a security
3
agreement under applicable law. Such grant is made to secure the payment of all
amounts payable hereunder, including, without limitation, the Receivables
Purchase Price.
SECTION 2.02. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
PURCHASER.
(a) The Seller hereby represents and warrants to the Purchaser as of the
date of this Agreement and the Closing Date that:
(i) ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of __________, and has power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and shall
have, power, authority and legal right to acquire, own and sell the
Receivables.
(ii) DUE QUALIFICATION. The Seller 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 the [Sale and Servicing Agreement] [Pooling and
Servicing Agreement]) shall require such qualifications.
(iii) POWER AND AUTHORITY. The Seller shall have 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 Seller by all necessary corporate action.
(iv) BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of the Seller, enforceable against it in accordance with
its terms, except as enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation 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.
(v) NO VIOLATION. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
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 incorporation or bylaws of the Seller, or
conflict with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Seller is a party or
by which it may be bound or any of its properties are subject; 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
(other than this Agreement); nor violate any law or, to the knowledge of
the Seller, any order, rule or regulation applicable to it or its
properties of any court or of any federal or
4
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of the Seller, threatened against the Seller,
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(b) The Purchaser hereby represents and warrants to the Seller as of the
date of this Agreement and the Closing Date that:
(i) ORGANIZATION AND GOOD STANDING. The Purchaser is a limited
liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and shall have, power, authority and legal right to acquire, own and
sell the Receivables.
(ii) DUE QUALIFICATION. The Purchaser is duly qualified to do business
as a foreign limited liability company 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 shall require
such qualifications.
(iii) POWER AND AUTHORITY. The Purchaser shall have 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 Purchaser by all necessary action.
(iv) BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against it in accordance
with its terms, except as enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation 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.
(v) NO VIOLATION. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof 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 limited
liability company agreement or certificate of formation of the Purchaser,
or conflict with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Purchaser is a party
or by which it may be bound or any of its
5
properties are subject; 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 (other than this Agreement); nor
violate any law or, to the knowledge of the Purchaser, any order, rule or
regulation applicable to it or its properties of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or any
of its properties.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of the Purchaser, threatened against the
Purchaser, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that, in the reasonable judgment of the Purchaser,
would materially and adversely affect the performance by the Purchaser of
its obligations under this Agreement.
(c) The representations and warranties set forth in this Section shall
survive the sale of the Receivables by the Seller to the Purchaser and the sale
of the Receivables by the Purchaser to the Issuer. Upon discovery by the Seller
or the Purchaser of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the others.
SECTION 2.03. REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES.
(a) ELIGIBILITY OF RECEIVABLES. The Seller hereby represents and warrants
to the Purchaser as of the Cutoff Date that:
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) shall have
been originated in the United States by a Dealer for the retail sale of the
related Financed Vehicle in the ordinary course of such Dealer's business,
shall have been fully and properly executed by the parties thereto, shall
have been purchased by the Seller from such Dealer under an existing
agreement with the Seller and shall have been validly assigned by such
Dealer to the Seller in accordance with its terms, (B) shall have created
or shall create a valid, subsisting and enforceable first priority security
interest in favor of the Seller in the related Financed Vehicle, (C) shall
contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization against
the collateral of the benefits of the security, (D) shall provide for level
Monthly Payments (provided that the payment in the first or last month in
the life of the Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed over its original term and
shall provide for a finance charge or shall yield interest at its APR, (E)
shall provide for, in the event that such Receivable is prepaid, a
prepayment that fully pays the Principal Balance and includes accrued but
unpaid interest at least through the date of prepayment in an amount
calculated by using an interest rate at least equal to its APR, (F) shall
have an Obligor that is not a federal, state or local governmental entity
and (G) is a retail installment contract.
6
(ii) SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables shall be true and correct in all material respects
as of the opening of business on the Cutoff Date, and no selection
procedures believed to be adverse to the Securityholders were utilized in
selecting the Receivables from those motor vehicle receivables of the
Seller which met the selection criteria set forth in this Agreement.
(iii) COMPLIANCE WITH LAW. Each Receivable and each sale of the
related Financed Vehicle shall have complied at the time it was originated
or made, and shall comply at the time of execution of this Agreement in all
material respects with all requirements of applicable federal, state and
local laws, and regulations thereunder, including 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 ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty
Act, Federal Reserve Board Regulations B and Z, state adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit, equal credit opportunity and disclosure laws.
(iv) BINDING OBLIGATION. Each Receivable shall constitute the genuine,
legal, valid and binding payment obligation in writing of the related
Obligor, enforceable by the holder thereof in accordance with its terms,
except as enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation 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.
(v) NO BANKRUPT OBLIGORS. According to the records of the Seller, as
of the Cutoff Date, no Obligor is the subject of a bankruptcy proceeding.
(vi) SECURITY INTEREST IN FINANCED VEHICLES. According to the records
of the Seller, as of the Cutoff Date, no Financed Vehicle has been
repossessed and not reinstated and immediately prior to the sale,
assignment and transfer thereof, each Receivable shall be secured by a
validly perfected first priority security interest in the related Financed
Vehicle in favor of the Seller as secured party or all necessary and
appropriate action with respect to such Receivable shall have been taken to
perfect a first priority security interest in such Financed Vehicle in
favor of the Seller as secured party.
(vii) RECEIVABLES IN FORCE. No Receivable shall have been satisfied,
subordinated or rescinded, nor shall any Financed Vehicle have been
released in whole or in part from the lien granted by the related
Receivable.
(viii) NO WAIVERS. No provision of a Receivable shall have been waived
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(ix) NO AMENDMENTS. No Receivable shall have been amended in such a
manner that the number of Scheduled Payments has been increased or that the
related
7
Amount Financed has been increased or such Receivable fails to meet all of
the other representations and warranties made by the Seller herein with
respect thereto.
(x) NO DEFENSES. No facts shall be known to the Seller which would
give rise to any right of rescission, setoff, counterclaim or defense, nor
shall the same have been asserted or threatened, with respect to any
Receivable.
(xi) NO LIENS. To the knowledge of the Seller, no liens or claims
shall have been filed, including liens for work, labor or materials
relating to a Financed Vehicle, that shall be liens prior to, or equal or
coordinate with, the security interest in such Financed Vehicle granted by
the related Receivable.
(xii) NO DEFAULTS. Except for payment defaults continuing for a period
of not more than 30 days as of the Cutoff Date, no default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have occurred and no continuing condition that with notice
or the lapse of time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable shall have
arisen; and the Seller shall not have waived any of the foregoing except as
otherwise permitted hereunder.
(xiii) INSURANCE. Pursuant to the Receivables, each Obligor has been
required to obtain physical damage insurance covering the related Financed
Vehicle and the Obligor is required under the terms of the related
Receivable to maintain such insurance.
(xiv) GOOD TITLE. It is the intention of the Seller that the transfer
and assignment herein contemplated, taken as a whole, constitute a sale of
the Receivables from the Seller to the Purchaser and that the beneficial
interest in and title to the Receivables not be part of the debtor's estate
in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Purchaser,
and no provision of a Receivable shall have been waived, except as provided
in clause (viii) above; immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title to each
Receivable, free and clear of all Liens and rights of others; immediately
upon the transfer and assignment thereof, the Purchaser shall have good and
marketable title to each Receivable, free and clear of all Liens and rights
of others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) LAWFUL ASSIGNMENT. No Receivable shall have been originated in,
or shall be subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable under this Agreement or pursuant
to the transfer of the Securities shall be unlawful, void or voidable.
(xvi) ALL FILINGS MADE. All filings (including UCC filings) necessary
in any jurisdiction to give the [Indenture Trustee] [Owner Trustee] a first
priority perfected ownership interest in the Receivables shall have been
made.
8
(xvii) ONE ORIGINAL. There shall be only one original executed copy of
each Receivable.
(xviii) CHATTEL PAPER. Each Receivable constitutes "chattel paper" as
defined in the UCC.
(xix) ADDITIONAL REPRESENTATIONS AND WARRANTIES. (A) Each Receivable
shall have an original maturity of at least __ months and not more than __
months and, as of the Cutoff Date, a remaining maturity of not less than __
months nor greater than __ months; (B) each Receivable shall provide for
payment of a finance charge or shall yield interest calculated on the basis
of an APR ranging from ____% to ____%; (C) each Receivable shall have had
an original principal balance of not less than $________ nor more than
$_________ and, as of the Cutoff Date, an average unpaid principal balance
of $_________; (D) each Receivable was originated on or before ___________,
200_; (E) each Financed Vehicle shall be a new or used automobile,
mini-van, sport-utility, light-duty truck, motorcycle or commercial
vehicle; (F) the Obligor under each Receivable had a current billing
address in the United States as of the Cutoff Date; and (G) no Receivable
shall have a Scheduled Payment that is more than 30 days past due as of the
Cutoff Date.
(b) NOTICE OF BREACH. The representations and warranties set forth in this
Section shall speak as of the execution and delivery of this Agreement, but
shall survive the sale, transfer and assignment of the Receivables to the
Purchaser and any subsequent assignment or transfer pursuant to the [Sale and
Servicing Agreement] [Pooling and Servicing Agreement]. The Purchaser, the
Seller, the Issuer, [or] the Owner Trustee [or the Indenture Trustee] as the
case may be, shall inform the other parties promptly, in writing, upon discovery
of any breach of the Seller's representations and warranties pursuant to this
Section which materially and adversely affects the interests of the
Securityholders in any Receivable.
(c) REPURCHASE OF RECEIVABLES. In the event of a breach of any
representation or warranty set forth in Section 2.03(a) which materially and
adversely affects the interests of the Securityholders in any Receivable and
unless the breach shall have been cured by the last day of the second Collection
Period following the Collection Period in which the discovery of the breach is
made or notice is received, as the case may be (or, at the option of the Seller,
the last day in the first Collection Period following the Collection Period in
which such discovery is made), the Seller shall repurchase such Receivable. In
consideration of the purchase of any such Receivable, the Seller shall remit an
amount equal to the Warranty Purchase Payment in respect of such Receivable to
the Purchaser and shall be entitled to receive the Released Warranty Amount. In
the event that, as of the date of execution and delivery of this Agreement, any
Liens or claims shall have been filed, including Liens for work, labor or
materials relating to a Financed Vehicle, that shall be prior to, or equal or
coordinate with, the lien granted by the related Receivable (whether or not the
Seller has knowledge thereof), and such breach materially and adversely affects
the interests of the Noteholders in such Receivable, the Seller shall repurchase
such Receivable on the terms and in the manner specified above. Upon any such
repurchase, the Purchaser shall, without further action, be deemed to transfer,
assign, set-over
9
and otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Purchaser in, to and under
such repurchased Receivable, all monies due or to become due with respect
thereto and all proceeds thereof. The Purchaser, the Issuer, the [Owner Trustee]
[or the Indenture Trustee], as applicable, shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the Seller to effect the conveyance of such
Receivable pursuant to this Section. The sole remedy of the Purchaser, the
Issuer, the Trustees or the Securityholders with respect to a breach of the
Seller's representations and warranties pursuant to Section 2.03(a) or with
respect to the existence of any such Liens or claims shall be to require the
Seller to repurchase the related Receivables pursuant to this Section.
SECTION 2.04. COVENANTS OF THE SELLER. The Seller hereby covenants that:
(a) SECURITY INTERESTS. Except for the conveyances hereunder, the Seller
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Receivable, whether now
existing or hereafter created, or any interest therein; the Seller will
immediately notify the Purchaser of the existence of any Lien on any Receivable
and, in the event that the interests of the Securityholders in such Receivable
are materially and adversely affected, such Receivable shall be repurchased from
the Purchaser by the Seller in the manner and with the effect specified in
Section 2.03(c), and the Seller shall defend the right, title and interest of
the Purchaser in, to and under the Receivables, whether now existing or
hereafter created, against all claims of third parties claiming through or under
the Seller; provided, however, that nothing in this subsection shall prevent or
be deemed to prohibit the Seller from suffering to exist upon a Receivable any
Lien for municipal or other local taxes if such taxes shall not at the time be
due and payable or if the Seller shall currently be contesting the validity of
such taxes in good faith by appropriate proceedings and shall have set aside on
its books adequate reserves with respect thereto.
(b) DELIVERY OF PAYMENTS. The Seller agrees to deliver in kind upon
receipt to the Servicer under the [Sale and Servicing Agreement] [Pooling and
Servicing Agreement] (if other than the Seller) all payments received by the
Seller in respect of the Receivables as soon as practicable after receipt
thereof by the Seller.
(c) NO IMPAIRMENT. The Seller shall take no action, nor omit to take any
action, which would impair the rights of the Purchaser in any Receivable, nor
shall it, except as otherwise provided in this Agreement or the [Sale and
Servicing Agreement] [Pooling and Servicing Agreement], reschedule, revise or
defer payments due on any Receivable.
10
Article Three
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01. PAYMENT OF RECEIVABLES PURCHASE PRICE. In consideration of
the sale of the Receivables from the Seller to the Purchaser as provided in
Section 2.01, on the Closing Date the Purchaser agrees to pay the Seller an
amount equal to the Receivables Purchase Price.
Article Four
TERMINATION
SECTION 4.01. TERMINATION. The respective obligations and responsibilities
of the Seller and the Purchaser created hereby shall terminate, except for the
indemnity obligations of the Seller as provided herein, upon the termination of
the Issuer as provided in the [Trust Agreement] [Pooling and Servicing
Agreement].
Article Five
MISCELLANEOUS PROVISIONS
SECTION 5.01. AMENDMENT.
(a) This Agreement may be amended from time to time by the Purchaser and
the Seller, without the consent of the Securityholders, to cure any ambiguity,
to correct or supplement any provision herein which may be inconsistent with any
other provision herein or to add any other provision with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement or the [Sale and Servicing Agreement] [Pooling and
Servicing Agreement]; provided, however, that such action shall not, [as
evidenced by an Opinion of Counsel to the Purchaser delivered to the Indenture
Trustee], adversely affect in any material respect the interests of the
Securityholders.
(b) This Agreement may also be amended from time to time by the Purchaser
and the Seller [with the consent of the Indenture Trustee, the consent of the
Holders of Notes evidencing at least a majority of the Outstanding Amount of the
Notes and] the consent of the Holders (as such term is defined in the [Trust
Agreement] [Pooling and Servicing Agreement]) of Certificates evidencing at
least a majority of all the percentage interests evidenced by the Certificates,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement.
11
SECTION 5.02. PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES.
(a) The Seller, at its expense, shall cause this Agreement and/or all
financing statements and continuation statements and any other necessary
documents covering the Purchaser's right, title and interest to the Receivables
and other property conveyed by the Seller to the Purchaser hereunder to be
promptly recorded, registered and 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 fully to preserve and protect the right, title and interest of the
Purchaser hereunder to all of the Receivables and such other property. The
Seller shall deliver to the Purchaser file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
intent of this subsection.
(b) Within 30 days after the Seller makes any change in its name, identity
or corporate structure which would make any financing statement or continuation
statement filed in accordance with Section 5.02(a) seriously misleading within
the meaning of Section 9-402(7) of the UCC as in effect in the applicable state,
the Seller shall give the Purchaser notice of any such change and shall execute
and file such financing statements or amendments as may be necessary to continue
the perfection of the Purchaser's security interest in the Receivables and the
proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of any
relocation of any office from which the Seller keeps records concerning the
Receivables or of its principal executive office and whether, 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 execute and file such financing
statements or amendments as may be necessary to continue the perfection of the
interest of the Purchaser in the Receivables and the proceeds thereof.
SECTION 5.03. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 5.04. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, in the case
of (i) the Purchaser, to Pooled Auto Securities Shelf LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: _________________;
(ii) the Seller, to ________________, _________________, ________________,
_____________, Attention: ________________; and (iii) the Indenture Trustee, to
___________, _______________, _______________, ___________, Attention: Corporate
Trust Department; or, as to any of such Persons, at such other address as shall
be designated by such Person in a written notice to the other Persons.
SECTION 5.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such
12
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or any amendment or supplement
hereto.
SECTION 5.06. ASSIGNMENT. This Agreement may not be assigned by the
Purchaser or the Seller except as contemplated by this Section and the [Sale and
Servicing Agreement] [Pooling and Servicing Agreement]; provided, however, that
simultaneously with the execution and delivery of this Agreement, the Purchaser
shall assign all of its right, title and interest herein to the Issuer, [which
in turn, will pledge its rights to the Indenture Trustee for the benefit of the
Noteholders as provided in Section 2.01 of the Sale and Servicing Agreement], to
which the Seller hereby expressly consents. The Seller agrees to perform its
obligations hereunder for the benefit of the Issuer [and that the Indenture
Trustee may enforce the provisions of this Agreement, exercise the rights of the
Purchaser and enforce the obligations of the Seller hereunder without the
consent of the Purchaser].
SECTION 5.07. FURTHER ASSURANCES. The Seller and the Purchaser agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
or by the Issuer or the Indenture Trustee more fully to effect the purposes of
this Agreement, including, without limitation, the execution of any financing
statements, amendments, continuation statements or releases relating to the
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
SECTION 5.08. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Issuer or the Seller,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
SECTION 5.09. 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.
SECTION 5.10. THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto, [and] the Issuer [and the
Indenture Trustee for the benefit of the Noteholders], [both of] which shall be
considered to be [a] third-party beneficiar[ies] hereof. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder].
SECTION 5.11. HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
13
SECTION 5.12. SELLER INDEMNIFICATION.
(a) PURCHASER, ISSUER AND SECURITYHOLDERS. The Seller shall indemnify and
hold harmless the Purchaser, the Issuer and the Securityholders from and against
any loss, liability, expense or damage suffered or sustained by reason of any
acts, omissions or alleged acts or omissions arising out of activities of the
Seller pursuant to this Agreement or as a result of the transactions
contemplated hereby, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim; provided, however, that the Seller shall not indemnify the Purchaser, the
Issuer or the Securityholders if such acts, omissions or alleged acts or
omissions constitute negligence or willful misconduct by the Purchaser, the
Issuer or the Securityholders.
(b) TRUSTEES. The Seller shall indemnify, defend and hold harmless the
Trustee[s] 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, and was imposed upon the Trustee[s] through the
negligence, willful misfeasance or bad faith of the Seller in the performance of
its duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement.
SECTION 5.13. MERGER, CONSOLIDATION OR ASSUMPTION OF THE OBLIGATIONS OF
THE SELLER.
(a) The Seller shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(i) the Person formed by such consolidation or into which the Seller
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Seller substantially as an entirety shall be
organized and existing under the laws of the United States, any state
thereof or the District of Columbia, and, if the Seller is not the
surviving entity, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Purchaser [and the Indenture
Trustee], in form satisfactory to the Purchaser [and the Indenture
Trustee], the performance of every covenant and obligation of the Seller
hereunder and shall benefit from all the rights granted to the Seller
hereunder; and
(ii) the Seller shall have delivered to the Purchaser [and the
Indenture Trustee] an Officer's Certificate of the Seller and an Opinion of
Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
(b) The obligations of the Seller hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Seller hereunder except in
each case in accordance with the provisions of Section 5.06 and this Section.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
__________________________________________,
as Seller
By:_________________________________________
Name:
Title:
POOLED AUTO SECURITIES SHELF LLC,
as Purchaser
By:_________________________________________
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, [and] the Purchaser [and the Indenture Trustee]
A-1