CONTRIBUTION AGREEMENT between EXETER HOLDINGS TRUST 2021-4 Transferee and EXETER AUTOMOBILE RECEIVABLES TRUST 2021-4 Transferor Dated as of October 24, 2021

 

 

between

 

 

EXETER HOLDINGS TRUST 2021-4
Transferee

 

 

and

 

 

EXETER AUTOMOBILE RECEIVABLES TRUST 2021-4
Transferor

 

 

 

 

 

 

Dated as of October 24, 2021

 

TABLE OF CONTENTS

 

 

SCHEDULES

 

 

 

THIS CONTRIBUTION AGREEMENT, dated as of October 24, 2021, is executed between Exeter Holdings Trust 2021-4, a Delaware statutory trust, as Transferee (“Transferee”) and Exeter Automobile Receivables Trust 2021-4, a Delaware statutory trust, as Transferor (“Transferor”).

 

 

WHEREAS, Transferee and Transferor desire to provide for the transfer and assignment by the Transferor to the Transferee, without recourse, of all of the Transferor’s right, title and interest in the Conveyed Assets (as defined below) in exchange for the issuance of the Holding Trust Certificate by the Transferee in the name of the Transferor.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt of which is acknowledged, Transferee and Transferor, intending to be legally bound, hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

SECTION 1.1  General.  The specific terms defined in this Article include the plural as well as the singular. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision, and Article, Section, Schedule and Exhibit references, unless otherwise specified, refer to Articles and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms used herein without definition shall have the respective meanings assigned to such terms in the Sale and Servicing Agreement, dated as of October 24, 2021 (the “Sale and Servicing Agreement”), by and among EFCAR, LLC, as Seller, Exeter Finance LLC, in its individual capacity and as Servicer, Exeter Holdings Trust 2021-4, as Holding Trust, Exeter Automobile Receivables Trust 2021-4, as Issuer, and Citibank, N.A., as Backup Servicer and as Indenture Trustee.

 

SECTION 1.2  Specific Terms.  Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

 

“Agreement” means this Contribution Agreement and all amendments hereof and supplements hereto.

 

“Closing Date” means November 17, 2021.

 

“Contract” means a motor vehicle retail installment sale contract or auto loan agreement.

 

“Contribution Agreement Collateral” has the meaning specified in Section 5.9.

 

“Conveyed Assets” means all property conveyed by the Transferor to the Transferee pursuant to Section 2.1(a)(1) through (11).

 

“Corporate Trust Office” shall mean, with respect to the Owner Trustee, the principal corporate trust office of Wilmington Trust Company located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, or at such other address as Wilmington Trust Company may designate by notice to the Depositor, or the principal corporate trust office of any successor Owner Trustee (the address of which such successor will notify the Depositor).

 

“Holding Trust” means Exeter Holdings Trust 2021-4.

 

“Indenture Trustee” means Citibank, N.A., as indenture trustee and any successor indenture trustee appointed and acting pursuant to the Indenture.

 

“Issuer” means Exeter Automobile Receivables Trust 2021-4.

 

“Owner Trustee” means Wilmington Trust Company, as Owner Trustee appointed and acting pursuant to the Trust Agreement and Holding Trust Agreement.

 

“Receivables” has the meaning assigned to such term in the Sale and Servicing Agreement.

 

“Related Documents” means the Notes, the Certificates, the Custodian Agreement, the Sale and Servicing Agreement, the Indenture, the Trust Agreement, the Holding Trust Agreement, the Asset Representations Review Agreement, the Lockbox Account Agreement, the Purchase Agreement and the Underwriting Agreement. The Related Documents to be executed by any party are referred to herein as “such party’s Related Documents,” “its Related Documents” or by a similar expression.

 

“Sale and Servicing Agreement” has the meaning specified in Section 1.1.

 

“Schedule of Representations” means the Schedule of Representations and Warranties attached hereto as Schedule A.

 

SECTION 1.3  Usage of Terms.  With respect to all terms used in this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other gender; references to “writing” include printing, typing, lithography, and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all subsequent amendments thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Agreement or the Sale and Servicing Agreement; references to Persons include their permitted successors and assigns; and the terms “include” or “including” mean “include without limitation” or “including without limitation.”

 

SECTION 1.4  [Reserved].

 

SECTION 1.5  No Recourse.  Without limiting the obligations of Transferor hereunder, no recourse may be taken, directly or indirectly, under this Agreement or any certificate

 

or other writing delivered in connection herewith or therewith, against any stockholder, officer, director or manager, as such, of Transferor, or of any predecessor or successor of Transferor.

 

SECTION 1.6  Action by or Consent of Noteholders and Certificateholders.  Whenever any provision of this Agreement refers to action to be taken, or consented to, by the Noteholders or the Certificateholders, such provision shall be deemed to refer to the Noteholder or the Certificateholder, as the case may be, of record as of the Record Date immediately preceding the date on which such action is to be taken, or consent given, by Noteholders or Certificateholders. Solely for the purposes of any action to be taken, or consented to, by Noteholders, any Note registered in the name of the Transferee or any Affiliate thereof shall be deemed not to be outstanding; provided, however, that, solely for the purpose of determining whether the Indenture Trustee is entitled to rely upon any such action or consent, only Notes which the Indenture Trustee knows to be so owned shall be so disregarded.

 

ARTICLE II

TRANSFER OF THE CONVEYED ASSETS

 

SECTION 2.1  Transfer of the Conveyed Assets.

 

 

 

 

 

 

 

 

 

 

 

 

It is the intention of Transferor and Transferee that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Conveyed Assets from Transferor to Transferee.

 

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES

 

SECTION 3.1  Representations and Warranties of Transferor.  Transferor makes the following representations and warranties as of the date hereof and as of the Closing Date on which Transferee relies in purchasing the Conveyed Assets. Such representations are made as of the execution and delivery of this Agreement, but shall survive the sale, transfer and assignment of the Conveyed Assets hereunder and the pledge thereof by the Transferee to the Indenture Trustee under the Indenture. Transferor and Transferee agree that the Indenture Trustee will thereafter be entitled to enforce this Agreement against Transferor in the Indenture Trustee’s own name on behalf of the Noteholders.

 

 

 

and had at all relevant times, and now has, power, authority and legal right to acquire, own and sell the Conveyed Assets to be transferred to Transferee.

 

 

 

 

 

 

 

 

 

In the event of any breach of a representation and warranty made by Transferor hereunder, Transferee covenants and agrees that it will not take any action to pursue any remedy that it may have hereunder, in law, in equity or otherwise, until a year and a day have passed since the date on which all Notes, Certificates, pass-through certificates or other similar securities issued by Transferor, or a trust or similar vehicle formed by Transferor (other than the Transferee), have been paid in full. Transferor and Transferee agree that damages will not be an adequate remedy for such breach.

 

SECTION 3.2  Representations and Warranties of Transferee.  Transferee makes the following representations and warranties as of the date hereof and as of the Closing Date, on which Transferor relies in selling, assigning, transferring and conveying the Conveyed Assets to Transferee hereunder. Such representations are made as of the execution and delivery of this Agreement, but shall survive the sale, transfer and assignment of the Conveyed Assets hereunder and the pledge thereof by the Transferee to the Indenture Trustee under the Indenture.

 

 

 

in all jurisdictions where the failure to do so would materially and adversely affect Transferee’s ability to acquire the Conveyed Assets, or the validity or enforceability of the Conveyed Assets or to perform Transferee’s obligations hereunder and under the Transferee’s Related Documents.

 

 

 

 

 

 

Agreement or any of the Related Documents or (iv) that may adversely affect the federal or state income tax attributes of, or seeking to impose any excise, franchise, transfer or similar tax upon, the transfer and acquisition of the Conveyed Assets hereunder or the pledge thereof to the Indenture Trustee under the Indenture.

 

ARTICLE IV

COVENANTS OF SELLER

 

SECTION 4.1  Protection of Title of Transferee.

 

 

 

 

SECTION 4.2  Other Liens or Interests.  Except for the conveyances hereunder and the pledge pursuant to the Indenture, Transferor will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on the Conveyed Assets or any interest therein, and Transferor shall defend the right, title, and interest of Transferee in and to the Conveyed Assets against all claims of third parties claiming through or under Transferor.

 

SECTION 4.3  Costs and Expenses.  Transferor shall pay all reasonable costs and disbursements in connection with the performance of its obligations hereunder and under its Related Documents.

 

ARTICLE V

MISCELLANEOUS

 

SECTION 5.1  Liability of Transferor.  Transferor shall be liable in accordance herewith only to the extent of the obligations in this Agreement specifically undertaken by Transferor and the representations and warranties of Transferor.

 

SECTION 5.2  Merger or Consolidation of Transferor or Transferee.  Any corporation or other entity (i) into which Transferor or Transferee may be merged or consolidated, (ii) resulting from any merger or consolidation to which Transferor or Transferee is a party or (iii) succeeding to the business of Transferor or Transferee, in the case of Transferor, which entity has a certificate of incorporation or other similar organizational document containing provisions relating to limitations on business and other matters substantively identical to those contained in Transferor’s certificate of trust, provided that in any of the foregoing cases such entity shall execute an agreement of assumption to perform every obligation of Transferor or Transferee, as the case may be, under this Agreement and, whether or not such assumption agreement is executed, shall be the successor to Transferor or Transferee, as the case may be, hereunder (without relieving Transferor or Transferee of their responsibilities hereunder, if it survives such merger or consolidation) without the execution or filing of any document or any further action by any of the parties to this Agreement. Transferor or Transferee shall promptly inform the other party, the Indenture Trustee and the Owner Trustee and, as a condition to the consummation of the transactions referred to in clauses (i), (ii) and (iii) above, (x) immediately after giving effect to such transaction, no representation or warranty made pursuant to Sections 3.1 and 3.2 of this Agreement shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and be continuing, (y) Transferor or Transferee, as applicable, shall have delivered written notice of such consolidation, merger or purchase and assumption to the Rating Agencies prior to the consummation of such transaction and shall have delivered to the other party and the Indenture Trustee an Officer’s Certificate of the Transferor or a certificate signed by or on behalf of the Transferee, as applicable, and an Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section 5.2 and that all conditions precedent, if any,

 

provided for in this Agreement relating to such transaction have been complied with, and (z) Transferor or Transferee, as applicable, shall have delivered to the other party and the Indenture Trustee an Opinion of Counsel, stating, in the opinion of such counsel, either (A) all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Indenture Trustee in the Conveyed Assets and reciting the details of the filings or (B) no such action shall be necessary to preserve and protect such interest.

 

SECTION 5.3  Limitation on Liability of Transferor and Others.  Transferor and any director, manager, officer, employee or agent thereof may rely in good faith on the advice of counsel or on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising under this Agreement. Transferor shall not be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its obligations under this Agreement or its Related Documents and that in its opinion may involve it in any expense or liability.

 

SECTION 5.4  [Reserved].

 

SECTION 5.5  Amendment.

 

 

 

Certificate, unless the Holders of all of the outstanding Notes of each class and the Certificateholders, in each case, affected thereby have consented thereto.

 

 

 

 

SECTION 5.6  Notices.  All demands, notices and communications to Transferor or Transferee hereunder shall be in writing, personally delivered, or sent by telecopier (subsequently confirmed in writing), reputable overnight courier or mailed by certified mail, return receipt requested, and shall be deemed to have been given upon receipt, in the case of Transferor or Transferee, to the Corporate Trust Office or such other address as shall be designated by Transferor or Transferee in a written notice delivered to the other party.

 

Copies of all demands, notices and communications provided to the Indenture Trustee, the Noteholders or the Backup Servicer pursuant to this Agreement shall be provided to the Certificateholders.

 

SECTION 5.7  Merger and Integration.  Except as specifically stated otherwise herein, this Agreement and Related Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and the Related Documents. This Agreement may not be modified, amended, waived or supplemented except as provided herein.

 

SECTION 5.8  Severability of Provisions.  If any one or more of the covenants, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, provisions or terms shall be deemed severable from the remaining covenants, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.

 

SECTION 5.9  Intention of the Parties.  The execution and delivery of this Agreement shall constitute an acknowledgment by Transferor and Transferee that they intend that the assignment and transfer herein contemplated constitute a sale and assignment outright, and not for security, of the Conveyed Assets, conveying good title thereto free and clear of any Liens, from Transferor to Transferee. In the event that such conveyance is determined to be made as security for a loan made by Transferee to Transferor, the Transferor hereby grants to Transferee a security interest in all of Transferor’s right, title and interest in and to the following property whether now owned or existing or hereafter acquired or arising, and this Agreement shall constitute a security agreement under applicable law (collectively, the “Contribution Agreement Collateral”).

 

 

 

 

 

 

 

 

 

 

 

SECTION 5.10  Governing Law; Jurisdiction.  This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of or relating in any way to this Agreement shall be governed by, the law of the State of New York, without giving effect to its conflict of law provisions (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law). The parties hereto agree to the non-exclusive jurisdiction of any federal courts located within the state of New York.

 

SECTION 5.11  Waiver of Jury Trial.  THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.

 

SECTION 5.12  Counterparts.  For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument. Each of the parties hereto further agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

 

SECTION 5.13  Subsequent Conveyance of the Conveyed Assets.  Transferor acknowledges that Transferee intends, pursuant to the Indenture, to pledge the Conveyed Assets, together with its rights under this Agreement, to the Indenture Trustee on the Closing Date.  Additionally, Transferee acknowledges that Transferor intends, pursuant to the Indenture, to pledge the Holding Trust Certificate, together with its rights under this Agreement, to the Indenture Trustee on the Closing Date.  Transferor and Transferee acknowledge and consent to each such pledge and waive any further notice thereof, and covenant and agree that the representations and warranties of Transferee contained in this Agreement and the rights of Transferor hereunder are intended to benefit the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders. In furtherance of the foregoing, Transferee covenants and agrees to perform its duties and obligations hereunder, in accordance with the terms hereof for the benefit of the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders and that, notwithstanding anything to the contrary in this Agreement, Transferee shall be directly liable to the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders (notwithstanding any failure by the Servicer, the Backup Servicer or the Transferor to perform its respective duties and obligations hereunder or under Related Documents) and that the Indenture Trustee may enforce the duties and obligations of Transferee under this Agreement against Transferee for the benefit of the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders.

 

SECTION 5.14  Nonpetition Covenant.  Neither Transferee nor Transferor shall petition or otherwise invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the other party under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the other party or any substantial part of their respective property, or ordering the winding up or liquidation of the affairs of the other party.

 

SECTION 5.15  Limitation of Liability of Owner Trustee.  It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as trustee of Transferee and Transferor, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, covenants, undertakings and agreements herein made on the part of the Transferee and Transferor is made and intended not as personal representations, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only the Transferee and Transferor, as applicable, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) Wilmington Trust Company has made no investigation as to the accuracy or completeness of any representations or warranties made by the Transferee and Transferor in this Agreement and (e) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Transferee or Transferor or be liable for the breach or failure of any obligation, duty, representation, warranty or covenant made or undertaken by the Transferee or Transferor under this Agreement or any other related documents.

 

[Remainder of Page Intentionally Left Blank]

 

IN WITNESS WHEREOF, the parties have caused this Contribution Agreement to be duly executed by their respective officers as of the day and year first above written.

 

SCHEDULE A