Exhibit 10.1.4
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FIRST TIER RECEIVABLES PURCHASE AGREEMENT
between
COMPASS BANK,
an Alabama state banking corporation,
as Seller,
COMPASS BANK,
a Texas state bank,
as Seller,
and
COMPASS AUTO RECEIVABLES CORPORATION,
as Purchaser
Dated as of June 30, 1998
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FIRST TIER RECEIVABLES PURCHASE AGREEMENT
This FIRST TIER RECEIVABLES PURCHASE AGREEMENT, dated as of June 30,
1998 (this "Agreement"), between COMPASS BANK, an Alabama state banking
corporation, COMPASS BANK, a Texas state bank (each, a "Seller" and,
collectively, "Sellers"), and COMPASS AUTO RECEIVABLES CORPORATION, a
Delaware corporation (the "Purchaser").
WHEREAS, in the regular course of its business, Sellers purchase Motor
Vehicle Contracts secured by new and used automobiles and light trucks from
motor vehicle dealers;
WHEREAS, Purchaser desires to purchase from Sellers a portfolio of
receivables arising in connection with Motor Vehicle Contracts purchased by
Sellers from Dealers; and
WHEREAS, Sellers are willing to sell such receivables to Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement,
dated as of the date hereof, between Compass Auto Receivables Trust 1998-A,
as Issuer, Asset Backed Securities Corporation, as Depositor, Compass Bank,
as Servicer and The Chase Manhattan Bank, as Indenture Trustee.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in
this Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (b)
terms defined in Article 9 of the UCC as in effect in the relevant
jurisdiction and not otherwise defined in this Agreement are used as
defined in that Article; (c) the words "hereof," "herein" and "hereunder"
and words of similar import refer to this Agreement as a whole and not to
any particular provision of this Agreement; (d) references to any Article,
Section, Schedule, Appendix or Exhibit are references to Articles,
Sections, Schedules,
Appendices and Exhibits in or to this Agreement and references to any
paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision
of such Section or definition; (e) the term "including" means "including
without limitation"; (f) except as otherwise expressly provided herein,
references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; (g)
references to any Person include that Person's successors and assigns; and
(h) headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
Effective as of the Closing Date and immediately prior to the
transactions pursuant to the Second Tier Receivables Purchase Agreement,
the Sale and Servicing Agreement and the Indenture, each Seller does hereby
sell, transfer, assign, set over and otherwise convey to Purchaser, without
recourse (subject to the obligations herein) (collectively, the "Seller
Assets"), all of Seller's right, title and interest in and to:
(a) the Receivables and (i) all monies received thereon and
allocable to principal on and after the Cutoff Date and (ii) all
monies received thereon and allocable to interest on and after July 1,
1998;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and, to the extent permitted by
law, any accessions thereto;
(c) any proceeds with respect to the Receivables from claims on
any Insurance Policies covering Financed Vehicles or the Obligors;
(d) any recourse against Dealers with respect to the Receivables
under the Dealer Agreements; and
(e) any and all proceeds of the foregoing.
The sale, transfer, assignment, setting over and conveyance made
hereunder shall not constitute and is not intended to result in an
assumption by Purchaser of any obligation of Sellers to the Obligors, the
Dealers or any other Person in connection
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with the Receivables and the other assets and properties conveyed hereunder
or any agreement, document or instrument related thereto.
SECTION 2.2. Receivables Purchase Price. In consideration for the
Seller Assets, Purchaser shall, on the Closing Date, pay to Compass Bank
$194,446,480.27 and to Compass Bank-Texas $182,387,783.78 in same day
funds, and shall receive a capital contribution of $12,384,000 from Compass
Bank and $11,616,000 from Compass Bank-Texas.
SECTION 2.3. True Sales. (a) Each of Sellers and Compass Auto intend
the transfer of the Sellers Assets to constitute true sales by Sellers to
Compass Auto providing Compass Auto with the full benefits of ownership
thereof, and neither party hereto intends the transactions contemplated
hereunder to be, or for any purpose to be characterized as, a loan from
Compass Auto to Sellers.
(b) If (but only to the extent) that the transfer of the Sellers
Assets hereunder is characterized by a court or other Governmental
Authority as a loan rather than a sale, Sellers shall be deemed hereunder
to have granted to Compass Auto a security interest in all of Sellers'
right, title and interest in and to the Sellers Assets . Such security
interest shall secure all of Sellers' obligations (monetary or otherwise)
under this Agreement and the other Basic Documents to which it is a party,
whether now or hereafter existing or arising, due or to become due, direct
or indirect, absolute or contingent. Compass Auto shall have, with respect
to the property described in this Section 2.3, and in addition to all the
other rights and remedies available to Compass Auto under this Agreement
and applicable law, all the rights and remedies of a secured party under
any applicable UCC, and this Agreement shall constitute a security
agreement under applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Sellers.
Each Seller hereby makes the following representations and warranties
upon which Purchaser may rely. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Receivables to Purchaser.
(a) Organization and Good Standing. Seller has been duly
organized and is validly existing as an Alabama state banking
corporation or a Texas state bank, as applicable, in good standing
under the laws of the
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jurisdiction of its organization, with the power and authority to own
its properties and to conduct its business as such properties are
presently 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 Seller Assets pursuant to Article II.
(b) Due Qualification. 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 origination and the servicing of the Receivables)
requires qualifications.
(c) Power and Authority. Seller has the power, authority and
legal right to execute and deliver this Agreement and to carry out its
terms and to sell and assign the Seller Assets; and the execution,
delivery and performance of this Agreement has been duly authorized by
Seller by all necessary corporate action.
(d) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby, other than the
filing of UCC financing statements.
(e) Valid Sale; Binding Obligation. Seller intends this
Agreement to effect a valid sale, transfer and assignment of the
Receivables and the other properties and rights included in the Seller
Assets conveyed by Seller to Purchaser hereunder, enforceable against
creditors of and purchasers from Seller; and this Agreement
constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject, as
to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws affecting enforcement of the rights of creditors
generally and to equitable limitations on the availability of specific
remedies.
(f) No Violation. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions
contemplated hereby shall not conflict with, result in any material
breach of any of the terms and provisions of, constitute (with or
without notice or lapse of time) a material default under or result in
the creation or imposition of any Lien upon any of its material
properties pursuant to the terms of, (i) the articles of organization
or bylaws of Seller, (ii) any material indenture,
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contract, lease, mortgage, deed of trust or other instrument or
agreement to which Seller is a party or by which Seller is bound, or
(iii) any law, order, rule or regulation applicable to Seller of any
federal or state regulatory body, any court, administrative agency, or
other governmental instrumentality having jurisdiction over Seller.
(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge threatened, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over Seller 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
Seller of its obligations under, or the validity or enforceability of,
this Agreement or the transactions contemplated herein.
(h) Chief Executive Office. The chief executive office of Seller
is located at the address set forth in Section 5.6.
(i) No Untrue Statement. None of the statements of Seller in the
Prospectus Supplement (excluding any reference to or information
contained in the Prospectus or any information deemed incorporated by
reference in the Prospectus Supplement from the Prospectus or the
Registration Statement) contains any untrue statement or alleged
untrue statement of any material fact or omits to state a material
fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
SECTION 3.2. Representations and Warranties as to Each Receivable.
Each Seller hereby makes the following representations and warranties
as to each Receivable conveyed by it to Purchaser hereunder on which
Purchaser is relying in acquiring the Receivables. Unless otherwise
indicated, such representations and warranties shall speak as of the
Closing Date, but shall survive the sale, transfer and assignment of the
Receivables to Purchaser hereunder, from Purchaser to Company under the
Second Tier Receivables Purchase Agreement and from Company to Issuer under
the Sale and Servicing Agreement, and the pledge thereof to Indenture
Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. The Receivable has been
properly executed by the parties thereto and (i) has been originated
by a Dealer in the ordinary course of such Dealer's business and has
been purchased by a Seller, in either case in the ordinary course of
such Seller's
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business and in accordance with such Seller's underwriting standards
to finance the retail sale by a Dealer of the related Financed
Vehicle, (ii) is secured by a valid, subsisting, binding and
enforceable first priority security interest in favor of the Seller in
the Financed Vehicle (subject to administrative delays and clerical
errors on the part of the applicable government agency and to any
statutory or other lien arising by operation of law after the Closing
Date that is prior to such security interest), which security interest
is assignable together with such Receivable, and has been so assigned
to Purchaser, and subsequently assigned by Purchaser to the Issuer,
(iii) are fixed rate simple interest Motor Vehicle Contracts that
provide for level monthly payments over their respective remaining
terms (except for the last payment that may be different from the
level payments), (iv) provides for interest at the Contract Rate
specified in the Schedule of Receivables, (v) was originated in the
United States and (vi) constitutes "chattel paper" as defined in the
UCC. The Receivables consist of 35,744 Motor Vehicle Contracts
having, as of the Cutoff Date: (i) an average remaining Principal
Balance of $11,231.56; (ii) an aggregate original Principal Balance of
$564,308,624.88; (iii) an average original Principal Balance of
$15,787.51; (iv) a weighted average Contract Rate of 9.84%; (v) a
Contract Rate range of 8.00 to 19.50%; (vi) a weighted average
original term of 57.78 months; and (vii) a weighted average remaining
term of 42.27 months.
(b) Individual Characteristics. The Receivables have the
following individual characteristics as of the Cutoff Date: (i) each
Receivable is secured by a Motor Vehicle; (ii) each Receivable being
sold by Seller to Purchaser hereunder has a Contract Rate of at least
8% and no more than 20%; (iii) each Receivable had a remaining term,
as of the Cutoff Date, of not less than six months and not more than
60 months; (iv) each Receivable had an original term of not less than
12 months and not more than 84 months; (v) each Receivable has a
remaining Principal Balance of not less than $500.00 and not more than
$50,000.00; (vi) no Receivable was more than 30 days past due as of
the Cutoff Date; (vii) no Financed Vehicle had been repossessed
without reinstatement as of the Cutoff Date; (viii) have not been
identified in the computer files of any Seller as relating to Obligors
who were in bankruptcy proceedings as of the Cutoff Date; (ix) no
Receivable is subject to a force placed Physical Damage Insurance
Policy on the related Financed Vehicle; and (x) the Dealer of the
Financed Vehicle has no participation in, or other right to receive,
any proceeds of the Receivable. The Receivables were selected using
selection procedures that were not intended by Seller to be adverse to
the Purchaser or to the Noteholders.
(c) Financed Vehicles. Approximately 34.85% of the aggregate
principal balance of the Receivables, as of the Cutoff Date, were
secured by
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new Financed Vehicles and approximately 65.15% of the aggregate
principal balance of the Receivables as of the Cutoff Date, were
secured by used Financed Vehicles.
(d) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables is true and
correct in all material respects as of the close of business on the
Cutoff Date.
(e) Compliance with Law. The Receivable complied at the time it
was originated or made, and complies as of the date hereof, in all
material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including, to the extent
applicable, usury laws, the Federal Truth in Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, the Fair Debt Collection Practices Act, Federal Reserve
Board Regulations B and Z and any other consumer credit, consumer
protection, equal opportunity and disclosure laws.
(f) Binding Obligation. The Receivable constitutes the legal,
valid and binding payment obligation of the Obligor, enforceable in
all material respects by the holder thereof in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally; and the Receivable is not subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury.
(g) Receivables in Force. As of the Cutoff Date, no Receivable
has been satisfied, subordinated or rescinded, nor has any Financed
Vehicle been released from the Lien granted by the related Receivable
in whole or in part unless another vehicle has been substituted as
collateral securing the Receivable without any other modification to
such Receivable.
(h) No Liens. Seller has not received notice of any Liens or
claims, or of any liens for work, labor, materials or unpaid state or
federal taxes, relating to the Financed Vehicle securing the
Receivable, that are or may be prior to or equal to the Lien granted
by the Receivable.
(i) No Default. Except for payment delinquencies 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
the Receivable exists and no continuing condition that with notice or
lapse of time, or both, would constitute a default, breach, violation
or event permitting acceleration
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under the terms of the Receivable has arisen. As of the Cutoff Date,
no provision of a Receivable has been waived except as reflected in
the Receivable File relating to such Receivable.
(j) Insurance. The Receivable requires the Obligor to insure the
Financed Vehicle under a Physical Damage Insurance Policy, pay the
premiums for such insurance and keep such insurance in full force and
effect. Seller, in accordance with its customary procedures has
determined that the Obligor, at the time the Receivable was
originated, obtained a Physical Damage Insurance Policy.
(k) Good Title. No Receivable has been sold, transferred,
assigned, or pledged by Seller to any Person other than Purchaser.
Immediately prior to the transfer and assignment herein contemplated,
Seller had good and marketable title to the Receivable free and clear
of any Lien and had full right and power to transfer and assign the
Receivable to Purchaser and immediately upon the transfer and
assignment of the Receivable to Purchaser, Purchaser shall have good
and marketable title to the Receivable, free and clear of any Lien.
No Receivable has been originated in, or as of the Cutoff Date is
subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable or this Agreement is
unlawful, void or voidable.
(l) One Original. There is only one original executed copy of
each Receivable.
(m) Location of Receivable Files. The Receivable Files are kept
at one or more of the locations listed in Schedule B to the Sale and
Servicing Agreement.
(n) No Government Obligor. The Obligor on the Receivable is not
the United States of America or any state thereof or any local
government, or any agency, department, political subdivision or
instrumentality of the United States of America or any state thereof
or any local government.
(o) Marking Records. By the Closing Date, Seller shall have
caused the portion of Seller's electronic master record of Motor
Vehicle relating to the Receivables to be marked to show that the
Receivable is owned by Issuer in accordance with the terms of this
Agreement.
(p) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section 3.3 of
the Sale and Servicing Agreement is accurate and complete in all
material respects.
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SECTION 3.3. Repurchase upon Breach. The applicable Seller,
Purchaser or assignee, transferee or designee of Purchaser, as the case may
be, shall inform the other party to this Agreement promptly, in writing,
upon the discovery of any breach or failure to be true of the
representations or warranties made by such Seller in Section 3.2; provided
that the failure to give such notice shall not affect any obligation of
such Seller. If the breach or failure shall not have been cured by the
last day of the Collection Period in which the 60th day (or if such Seller
elects, the 30th day) occurs after the date on which such Seller becomes
aware of, or receives written notice from Purchaser of, such breach or
failure, and such breach or failure materially and adversely affects the
interests of Issuer and the Noteholders, the applicable Seller shall
repurchase each such Receivable from Purchaser as of such last day of such
Collection Period at a purchase price equal to the Purchase Amount for such
Receivable as of such last day of such Collection Period. In consideration
of the purchase of a Receivable hereunder, the applicable Seller shall
(unless otherwise directed by Purchaser in writing) deposit the Purchase
Amount of such Receivable, no later than the close of business on the next
Deposit Date, into the Collection Account. The sole remedy of Purchaser
with respect to a breach or failure to be true of the warranties made by a
Seller pursuant to Section 3.2 shall be to require such Seller to
repurchase Receivables pursuant to this Section.
ARTICLE IV
COVENANTS OF SELLERS
Each Seller covenants and agrees with Purchaser as follows:
SECTION 4.1. Protection of Title to Seller Assets. (a) Seller
shall execute and file such financing statements and cause to be executed
and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect
the interest of Purchaser, Owner Trustee and Indenture Trustee in the
Receivables and the proceeds thereof. Seller shall deliver (or cause to be
delivered) to Purchaser file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such
filing.
(b) Seller shall not change its name, identity or corporate structure
in any manner that could make any financing statement or continuation
statement filed in accordance with Section 4.1 seriously misleading within
the meaning of (S) 9-402(7) of the UCC, unless it shall have given
Purchaser, Owner Trustee and Indenture Trustee written notice thereof
within 30 days after any such change and filed appropriate amendments to
all previously filed financing statements or continuation statements within
60 days after any such change.
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(c) Seller shall give Purchaser, Owner Trustee and Indenture Trustee
written notice of any relocation of its principal executive office within
30 days after any such relocation 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 promptly file any such amendment or new
financing statement within 60 days after any such relocation.
(d) Promptly after taking the actions described in Section 4.1(b),
(c) or Section 4.4, the applicable Seller shall deliver to Indenture
Trustee and Owner Trustee an Opinion of Counsel either (A) stating that, in
the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary to preserve and
protect the interest of Indenture Trustee in the Receivables, 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.
SECTION 4.2. Liability of Sellers; Indemnities. Each Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by such Seller under this Agreement.
(a) Each Seller shall indemnify, defend and hold harmless
Purchaser, Issuer, Owner Trustee and Indenture Trustee and their
respective officers, directors, employees and agents from and against
any taxes that may at any time be asserted against any such Person
with respect to, and on the date of, the sale of the Receivables by it
to Purchaser, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes
(but not including any taxes asserted with respect to federal or other
income taxes arising out of this Agreement and the other Basic
Documents) and costs and expenses in defending against the same.
(b) Each Seller shall indemnify, defend and hold harmless
Purchaser, Issuer, Owner Trustee, Indenture Trustee, and their
respective officers, directors, employees and agents from and against
any and all costs, expenses, losses, claims, damages and liabilities
to the extent arising out of, or imposed upon such Person through or
as a result of, (i) such Seller's willful misfeasance, bad faith or
gross negligence in the performance of its duties under this
Agreement, and (ii) the failure of any Receivable conveyed by it to
Purchaser hereunder, or the sale of the related Financed Vehicle, to
comply with all requirements of applicable law.
Indemnification under this Section 4.2 shall survive the termination of
this Agreement and shall include reasonable fees and expenses of counsel
and other
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expenses of litigation. If a Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from others,
such Person shall promptly repay such amounts to such Seller.
SECTION 4.3. Cooperation of Sellers. Sellers covenant to Company
that Sellers shall cooperate with Company and the firm of independent
certified public accountants retained with respect to the issuance of the
Notes in making available all information and taking all steps reasonably
necessary to permit the accountants' letters required hereunder to be
delivered within the times set for delivery herein.
SECTION 4.4. Merger or Consolidation. Each Seller shall keep in
full effect its existence, rights and franchises as a corporation and shall
obtain and preserve its qualification to do business as a foreign
corporation, in each jurisdiction necessary to protect the validity and
enforceability of this Agreement or any of the Receivables and to perform
its duties under this Agreement. Any Person into which a Seller may be
merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Seller shall be a party, or any
Person succeeding to the business of such Seller, in all events shall be
the successor of such Seller under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. Such Seller shall
send notice of any such merger or consolidation to Indenture Trustee and
the Rating Agencies.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Sellers. The obligations of each Seller
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 5.2. Reassignment of Purchased Receivables. With respect to
all Receivables repurchased by a Seller pursuant to this Agreement,
Purchaser shall assign, without recourse, representation or warranty, to
such Seller all of Purchaser's right, title and interest in and to such
Receivables, and all security and documents relating thereto.
SECTION 5.3. Subsequent Transfer to Company, Issuer and Indenture
Trustee. Each Seller acknowledges that:
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(a) (i) Purchaser shall, pursuant to the Second Tier Receivables
Purchase Agreement, sell the Seller Assets to Company and assign its
rights under this Agreement to Company, and (ii) Company shall,
pursuant to the Sale and Servicing Agreement, sell the Seller Assets
and assign its rights under the Second Tier Receivables Purchase
Agreement and all obligations of Sellers and all rights of Compass
Auto hereunder to Issuer, and that the representations and warranties
contained in this Agreement and the rights of Purchaser under Section
3.3 are intended to benefit Company, Issuer, Owner Trustee, the
Indenture Trustee, the Noteholders and the Certificateholders. Seller
hereby consents to such sales and assignments.
(b) Issuer shall, pursuant to the Indenture, pledge the
Receivables and its rights under the Sale and Servicing Agreement to
the Indenture Trustee for the benefit of the Noteholders. The
representations and warranties contained in this Agreement and the
rights of Purchaser under this Agreement, including under Section 3.3,
are intended to benefit the Indenture Trustee and the Noteholders.
Seller hereby consents to such pledge.
SECTION 5.4. Amendment. (a) This Agreement may be amended by
Sellers and the Purchaser, without the consent of any of the Noteholders or
the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions in this Agreement or (iii) for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions in this Agreement provided that any such action under this
clause (iii) shall not, as evidenced by an Opinion of Counsel delivered to
Owner Trustee, Indenture Trustee and the Rating Agencies, adversely affect
in any material respect the interests of any Noteholder or Company.
(b) This Agreement may also be amended from time to time by Sellers
and Purchaser, with the consent of the Holders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes (which consent of
any Holder of a Note given pursuant to this Section 5.4(b) or pursuant to
any other provision of this Agreement shall be conclusive and binding on
such Holder and on all future Holders of such Note and of any Note issued
upon the transfer thereof or in exchange thereof whether or not notation of
such consent is made upon the Note), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders; provided, that the Rating Agency Condition shall have been
satisfied with respect to such amendment prior to the execution thereof;
and provided, further, that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables, payments that shall be required to
be made on any Note, the Class A-1 Interest Rate, the Class A-2 Interest
Rate or the Class A-3 Interest Rate or (ii) reduce the aforesaid
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percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the Holders of all the Notes then
outstanding.
(c) Prior to the execution of any such amendment or consent under
Section 5.4(a) or (b), Purchaser shall furnish prior written notification
of such amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent
under Section 5.4(b), Indenture Trustee shall furnish a copy of such
amendment or consent to each Noteholder and the Owner Trustee (who will
forward a copy to each Certificateholder).
(e) It shall not be necessary for the consent of Noteholders
pursuant to Section 5.4(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and
of evidencing the authorization of the execution thereof by Noteholders
shall be entitled, upon request, to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Section 5.4 and that all conditions precedent in this
Section 5.4 to the execution and delivery of such amendment has been
satisfied subject to such reasonable requirements as the Indenture Trustee
may prescribe.
SECTION 5.5. No Waiver, Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of Purchaser, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, remedy, power or
privilege 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 5.6. Notices. All demands, notices and communications
pursuant to this Agreement to any party shall be in writing, personally
delivered, sent by overnight courier or mailed by certified mail, return
receipt requested, and shall be deemed to have been duly given upon
receipt: (a) in the case of Compass Bank, to Compass Bank, ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Structured Finance,
and with a copy to the General Counsel thereof, (b) in the case of Compass
Bank-Texas, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager,
Structured Finance, and with a copy to the General Counsel thereof, and (c)
in the case of Purchaser, to Compass Auto Receivables Corporation, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Structured
Finance, and with a copy to the General Counsel thereof.
13
SECTION 5.7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
create or render unenforceable such provision in any other jurisdiction.
SECTION 5.8. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 5.9. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.4, and Section 2.1 of the
Second Tier Receivables Purchase Agreement, Section 2.1 of the Sale and
Servicing Agreement and in the Granting Clause of the Indenture, this
Agreement may not be assigned by Sellers or Compass Auto without the prior
written consent of Owner Trustee and Indenture Trustee and unless the
Rating Agency Condition shall have been satisfied.
SECTION 5.10. Costs and Expenses. Sellers shall pay all expenses
incident to the performance of its obligations under this Agreement and
Purchaser agrees to pay expenses incident to the performance of its
obligations under this Agreement and all expenses in connection with the
perfection as against third parties of Purchaser's right, title and
interest in and to the Receivables.
SECTION 5.11. Representations to Sellers. The respective
agreements, representations, warranties and other statements by Sellers and
Purchaser set forth in or made pursuant to this Agreement shall remain in
full force and effect and shall survive the Closing Date.
SECTION 5.12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 5.13. 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.
14
[SIGNATURE PAGES FOLLOW]
15
IN WITNESS WHEREOF, the parties hereby have caused this First Tier
Receivables Purchase Agreement to be executed by their respective officers
thereunto duly authorized as of the date and year first above written.
COMPASS BANK, an Alabama state banking corporation,
as Seller
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
COMPASS BANK, a Texas state bank, as Seller
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and Treasurer
COMPASS AUTO RECEIVABLES CORPORATION,
as Purchaser
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS........................................................... 1
SECTION 1.1. Definitions............................................. 1
SECTION 1.2. Other Interpretive Provisions........................... 1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES...................................... 2
SECTION 2.1. Purchase and Sale of Receivables........................ 2
SECTION 2.2. Receivables Purchase Price.............................. 3
SECTION 2.3. True Sales.............................................. 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES........................................ 3
SECTION 3.1. Representations and Warranties of Sellers............... 3
SECTION 3.2. Representations and Warranties as to Each Receivable... 5
SECTION 3.3. Repurchase upon Breach.................................. 9
ARTICLE IV
COVENANTS OF SELLERS.................................................. 9
SECTION 4.1. Protection of Title to Seller Assets.................... 9
SECTION 4.2. Liability of Sellers; Indemnities....................... 10
SECTION 4.3. Cooperation of Sellers.................................. 11
SECTION 4.4. Merger or Consolidation................................. 11
ARTICLE V
MISCELLANEOUS PROVISIONS.............................................. 11
SECTION 5.1. Obligations of Sellers.................................. 11
SECTION 5.2. Reassignment of Purchased Receivables................... 11
SECTION 5.3. Subsequent Transfer to Company, Issuer and
Indenture Trustee....................................... 11
SECTION 5.4. Amendment............................................... 12
SECTION 5.5. No Waiver, Cumulative Remedies.......................... 13
i
SECTION 5.6. Notices................................................. 13
SECTION 5.7. Severability............................................ 14
SECTION 5.8. Headings................................................ 14
SECTION 5.9. Assignment.............................................. 14
SECTION 5.10. Costs and Expenses...................................... 14
SECTION 5.11. Representations to Sellers.............................. 14
SECTION 5.12. Governing Law........................................... 14
SECTION 5.13. Counterparts............................................ 14
ii
