EXHIBIT 10.2
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FORM OF LOAN PURCHASE AGREEMENT,
between
▇▇▇▇▇▇▇ DEALER FINANCIAL SERVICES, INC.,
as Seller
and
▇▇▇▇▇▇▇ AUTO RECEIVABLES CORP.,
as Purchaser
Dated as of _______ __, 199_
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TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. Purchase and Sale of Receivables 3
2.2. The Closing 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Purchaser 4
3.2. Representations and Warranties of the Seller 6
ARTICLE IV
CONDITIONS
4.1. Conditions to Obligation of the Purchaser 13
4.2. Conditions to Obligation of the Seller 14
ARTICLE V
COVENANTS OF THE SELLER
5.1. Protection of Right, Title and Interest 15
5.2. Other Liens or Interests 16
5.3. Chief Executive Office 17
5.4. Costs and Expenses 17
5.5. Delivery of Receivable Files 17
5.6. Indemnification 17
5.7. Sale 17
5.8. No Petition 18
5.9. Collected Funds 18
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ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. Obligations of the Seller 18
6.2. Repurchase Events 18
6.3. Seller's Assignment of Purchased Receivables 19
6.4. [Reserved] 19
6.5. Trust 19
6.6. Amendment 19
6.7. Accountants' Letters 20
6.8. Waivers 20
6.9. Notices 20
6.10. Costs and Expenses 20
6.11. Representations of the Seller and the Purchaser 20
6.12. Confidential Information 21
6.13. Headings and Cross-References 21
6.14. Third Party Beneficiaries 21
6.15. Governing Law 21
6.16. Counterparts 21
EXHIBITS
Exhibit A Schedule of Receivables
Exhibit B Location of Receivables
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LOAN PURCHASE AGREEMENT, dated as of _______ __, 199_, by and between
▇▇▇▇▇▇▇ Dealer Financial Services, Inc., a Florida corporation, having its
principal executive office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Seller") and ▇▇▇▇▇▇▇ Auto Receivables Corp., a New York corporation,
having its principal executive office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Purchaser").
WHEREAS, in the regular course of the Seller's business, the Seller
purchased from certain subsidiaries of Oxford Resources Corp., certain motor
vehicle retail installment sale contracts and other motor vehicle installment
chattel paper secured by new and used automobiles (including passenger cars,
sport/utility vehicles, light trucks and minivans) pursuant to the Loan Sale
Agreement.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined), are to be sold by
the Seller to the Purchaser, which Receivables will be transferred by the
Purchaser, pursuant to the [Sale and Servicing Agreement] or [Pooling and
Servicing Agreement] (as hereinafter defined) to the ▇▇▇▇▇▇▇ Auto Trust 199_-_
(the "TRUST") to be created thereunder, which Trust will issue [notes (the
"NOTES") and certificates (the "Certificates")] representing beneficial
ownership interests in such Receivables and the other property of the Trust.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth
in the [Sale and Servicing Agreement] or [Pooling and Servicing Agreement]. As
used in this Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally applicable to
the singular and plural forms of the terms defined):
"AGREEMENT" shall mean this Loan Purchase Agreement and all amendments
and supplements hereof.
"CERTIFICATES" shall have the meaning assigned to such term in the
PREAMBLE.
"CLOSING DATE" shall mean ________ __, 199_.
"CUTOFF DATE" shall mean _______ __, 199_.
"DISTRIBUTION DATE" shall mean, for each Collection Period, the 15th
day of the following month or, if such 15th day is not a Business Day, the next
succeeding Business Day.
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"FINAL PROSPECTUS" shall have the meaning assigned to such term in the
Underwriting Agreement.
"INDENTURE" shall mean the Indenture dated as of _______ __, 199_
between the Trust and ____________, as trustee.
"LOAN SALE AGREEMENT" shall mean the Loan Sale Agreement dated as of
_______ __ 199_ among certain subsidiaries of Oxford Resources Corp. and the
Seller.
"NOTES" shall have the meaning assigned to said term in the PREAMBLE.
"ORIGINAL PURCHASE PRICE" shall mean $__________ by wire transfer in
immediately available funds, representing (i) the amount of money paid by
__________ to or at the direction of the Purchaser pursuant to the Underwriting
Agreement on the Closing Date minus (ii) the Reserve Fund Initial Deposit.
"ORIGINATOR" the subsidiaries of Oxford Resources Corp. that were
parties to the Loan Sale Agreement with respect to the receivables originated by
such subsidiary and the Seller with respect to Receivables originated by the
Seller.
"PRELIMINARY PROSPECTUS" shall have the meaning assigned to such term
in the Underwriting Agreement.
"PURCHASER" shall have the meaning assigned to such term in the
PREAMBLE.
"RECEIVABLE" shall mean each motor vehicle retail installment sale
contract for a Financed Vehicle which shall appear on the Schedule of
Receivables.
"REPURCHASE EVENT" shall have the meaning specified in Section 6.2
hereof.
"RESERVE FUND INITIAL DEPOSIT" equals $________.
"[SALE AND SERVICING AGREEMENT] OR [POOLING AND SERVICING AGREEMENT]"
shall mean the [Sale and Servicing Agreement] or [Pooling and Servicing
Agreement] dated as of _________ __, 199_, among ▇▇▇▇▇▇▇ Auto Receivables Corp.,
as seller, the Seller, as servicer and sponsor and the Trust.
"SCHEDULE OF RECEIVABLES" shall mean the list of Receivables annexed
hereto as Exhibit A.
"SUBSEQUENT PAYMENTS" means any amounts released from the Reserve
Account to the Purchaser pursuant to the [Sale and Servicing Agreement] or
[Pooling and Servicing Agreement] at such time as the Purchaser receives such
amounts.
"TRUST" shall mean the ▇▇▇▇▇▇▇ Auto Trust 199_-_ created by the Trust
Agreement.
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"TRUST PROPERTY" shall have the meaning specified in Section 2.1
hereof.
"UCC" shall mean the Uniform Commercial Code, as in effect from time
to time in the relevant jurisdictions.
"UNDERWRITING AGREEMENT" shall mean the Underwriting Agreement dated
________ __, 199_, among ________________, the Purchaser and the Seller.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. PURCHASE AND SALE OF RECEIVABLES. On the Closing Date, subject to
the terms and conditions of this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller, the Receivables
and the other Trust Property relating thereto.
(a) TRANSFER OF RECEIVABLES. On the Closing Date and
simultaneously with the transactions to be consummated on the Closing Date
pursuant to the [Sale and Servicing Agreement] or [Pooling and Servicing
Agreement], the Seller shall sell, transfer, assign, grant, set over and
otherwise convey to the Purchaser, without recourse (subject to the obligations
herein), whether now or hereafter acquired:
(i) all right, title and interest of the Seller in
and to the Receivables and all monies received thereon (other than any
proceeds from any Dealer commission) on or after the Cutoff Date and,
with respect to Receivables which are Actuarial Receivables, all monies
received thereon prior to the Cutoff Date that are due on or after the
Cutoff Date;
(ii) all right, title and interest of the
Seller in and to the security interests of the Seller or
the related Originator in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other
interest of the Seller in such Financed Vehicles;
(iii) all right, title and interest of the Seller in
and to any proceeds from claims on any physical damage, repossession
loss, skip, credit life and credit accident, vendor's single interest
and health insurance policies or certificates relating to the Financed
Vehicles or the Obligors;
(iv) all right, title and interest of the Seller in
and to refunds for the costs of extended service contracts with respect
to Financed Vehicles, refunds of unearned premiums with respect to
credit life and credit accident and health insurance policies or
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certificates covering an Obligor or Financed Vehicle or his or her
obligations with respect to a Financed Vehicle and any recourse to
Dealers for any of the foregoing;
(v) the interest of the Seller in any proceeds
from any Receivable repurchased by a Dealer, pursuant to
a Dealer Agreement, as a result of a breach of representation or
warranty in the related Dealer Agreement or a default by an Obligor
resulting in the repossession of the Financed Vehicle under such Dealer
Agreement; and
(vi) the proceeds of any and all of the
foregoing (collectively, the "TRUST Property").
It is the intention of the parties hereto that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables and the other Trust Property from the Seller to the Purchaser,
conveying good title thereto free and clear of any Liens (however the parties
hereto understand that the Lien of the applicable Originator will be noted on
the certificate of title to the Financed Vehicles), and the Receivables and the
other Trust Property shall not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy or similar law. In the event that, notwithstanding the intent of the
Seller, the transaction and assignment contemplated hereby is held not to be a
sale, this Agreement shall constitute a grant of a security interest in the
property referred to in this Section 2.1 for the benefit of the Purchaser.
2.2. THE CLOSING. The sale and purchase of the Receivables shall take
place at a closing (the "CLOSING") at the offices of Stroock & Stroock & ▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date,
simultaneously with the closings under: (a) the [Sale and Servicing Agreement]
or [Pooling and Servicing Agreement] pursuant to which (i) the Purchaser will
assign all of its right, title and interest in and to the Receivables and the
other Trust Property to the Trust for the benefit of the Certificateholders and
(ii) the Trust will issue and deliver to the Purchaser in exchange for the
Receivables and the other Trust Property, the Notes and the Certificates and (b)
the Underwriting Agreement pursuant to which the Purchaser shall sell the Notes
and Certificates (other than those Certificates retained by the Purchaser) to
_________________.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser is duly
organized and is validly existing as a corporation in good standing under the
laws of the State of New York, with corporate power and authority to own its
properties and to conduct its business as such properties shall be currently
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owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire and own the
Receivables.
(b) DUE QUALIFICATION. The Purchaser 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 shall require such
qualifications.
(c) POWER AND AUTHORITY. The Purchaser has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms
and the execution, delivery and performance of this Agreement has been duly
authorized by the Purchaser by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement shall constitute a
legal, valid and binding obligation of the Purchaser enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
now or hereafter in effect relating to creditors' rights generally and subject
to general principles of equity (whether applied in a proceeding at law or in
equity).
(e) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
result in any of the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation, as
amended, or by-laws of the Purchaser, or any indenture, agreement, or other
instrument to which the Purchaser is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any indenture, agreement, or other instrument (other than the [Sale
and Servicing Agreement] or [Pooling and Servicing Agreement]); nor violate any
law, order, rule or regulation applicable to the Purchaser of any court or of
any Federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Purchaser's best knowledge, threatened against the Purchaser,
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its properties: (A)
asserting the invalidity of this Agreement, the Notes or the Certificates; (B)
seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement; (C)
seeking any determination or ruling that might materially and adversely affect
the performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement, the Notes or the Certificates; or (b) seeking
to affect adversely the Federal or state income tax or ERISA attributes of the
Trust, the Noteholders or the Certificateholders.
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(g) ALL CONSENTS. All authorizations, licenses, consents,
orders or approvals of or registrations or declarations with any court,
regulatory body, administrative agency or other government instrumentality
required to be obtained, effected or given by the Purchaser in connection with
the execution and delivery by the Purchaser of this Agreement and the
performance by the Purchaser of the transactions contemplated by this Agreement,
have been duly obtained, effected or given and are in full force and effect,
except where failure to obtain the same would not have a material adverse effect
upon the rights of the Issuer, the Noteholders or the Certificateholders.
(h) INSOLVENCY. The Purchaser is not insolvent, will not be
made insolvent after giving effect to the conveyance set forth in Article II of
this Agreement and is not aware of any pending insolvency of the Purchaser.
3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER.
(a) The Seller hereby severally represents and
warrants to the Purchaser as of the date hereof and as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING. The
Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the state
of its incorporation designated in the preamble hereof,
with corporate power and authority to own its properties
and to conduct its business as such properties shall be
currently owned and such business is presently conducted
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
shall require such qualifications where the failure to do so would have
a material adverse effect on its business or the transaction
contemplated in this Agreement.
(iii) POWER AND AUTHORITY. The Seller has the
corporate power and authority to execute and deliver this Agreement and
to carry out its terms; the Seller has full power and authority to sell
and assign the property sold and assigned to the Purchaser and has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Seller by all necessary
corporate action.
(iv) VALID SALE; BINDING OBLIGATION. This
Agreement effects a valid sale, transfer and assignment
of the Receivables and the other Trust Property conveyed
by the Seller to the Purchaser pursuant to Section 2.1,
enforceable against creditors of and purchasers from the
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Seller; and this Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable in accordance
with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws now or
hereafter in effect relating to creditors' rights
generally and subject to general principles of equity
(whether applied in a proceeding at law or in equity).
(v) NO VIOLATION. The consummation of the
transactions contemplated by this Agreement and the fulfillment of the
terms hereof do not result in any material breach of any of the terms
and provisions of, nor constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation, as amended, or
by-laws of the Seller, or any indenture, agreement, or other instrument
to which the Seller is a party or by which it is bound; nor result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, or other
instrument (other than the [Sale and Servicing Agreement] or [Pooling
and Servicing Agreement]); nor violate any law, order, rule or
regulation applicable to the Seller of any court or of any Federal or
State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(vi) NO PROCEEDINGS. There are no proceedings or
investigations pending, or to the Seller's best knowledge, threatened
against the Seller, before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over
the Seller or its properties: (A) asserting the invalidity of this
Agreement, the Notes or the Certificates; (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement; (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Notes or the Certificates; or
(D) seeking to adversely affect the Federal or State tax or ERISA
attributes of the Trust, the Noteholders or the Certificateholders.
(vii) ALL CONSENTS. All authorizations, licenses,
consents, orders or approvals of or registrations or declarations with
any court, regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by the
Seller in connection with the execution and delivery by the Seller of
this Agreement and the performance by the Seller of the transactions
contemplated by this Agreement, have been duly obtained, effected or
given and are in full force and effect, except where failure to obtain
the same would not have a material adverse effect upon the rights of
the Issuer, the Noteholders or the Certificateholders.
(vii) INSOLVENCY. The Seller is not insolvent, will
not be made insolvent after giving effect to the conveyance set forth
in Article II of this Agreement, and is not aware of any pending
insolvency of the Seller.
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(ix) SECURITY INTERESTS. The Financial
Vehicles sold by the Seller to the Purchaser hereunder
are not subject to any security interest.
(x) CHIEF EXECUTIVE OFFICES. The principal
place of business and chief executive office of the
Seller is as specified in the preamble of this Agreement.
(b) The Seller makes the following representations and
warranties relating to the Receivables and the other related Trust Property on
which the Purchaser relies in accepting such Receivables and the other Trust
Property relating thereto. Such representations and warranties speak as of the
execution and delivery of this Agreement, but shall survive the sale, transfer,
and assignment of such Receivables and the other Trust Property relating thereto
to the Purchaser and the subsequent assignment and transfer thereof pursuant to
the [Sale and Servicing Agreement] or [Pooling and Servicing Agreement] and
Indenture:
(i) TITLE. It is the intention of the Seller that the
transfer and assignment contemplated by the Loan Sale Agreement
constitute a sale of the Receivables conveyed by the Originators to the
Purchaser and that the beneficial interest in and title to such
Receivables not be part of the debtor's estate in the event of the
filing of a petition for receivership by or against the Seller. No
Receivable has been sold or transferred, by any Originator to any
Person other than the Seller and no Receivable is subject to any lien
other than pursuant to the Loan Sale Agreement. Immediately prior to
the transfer and assignment therein contemplated, each Originator had
good and marketable title to each related Receivable, free and clear of
all Liens and, immediately upon the transfer thereof, the Seller had
good and marketable title to each such Receivable, free and clear of
all Liens; and the transfer of the Receivables to the Seller has been
perfected under the UCC. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables conveyed by the Seller to the Purchaser pursuant to Section
2.1 and that the beneficial interest in and title to such Receivables
not be part of the debtor's estate in the event of the filing of a
petition for receivership by or against the Seller. No Receivable has
been sold or transferred, by the Seller to any Person other than the
Trust and no Receivable is subject to any lien other than payment to
the Basic Documents. 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, immediately upon the
transfer thereof, the Purchaser shall have good and marketable title to
each such Receivable, free and clear of all Liens; and the transfer of
the Receivables to the Purchaser has been perfected under the UCC.
(i) ALL FILINGS MADE. All filings (including UCC
filings) necessary in any jurisdiction to give the Purchaser a first
priority perfected security interest in the Receivables, shall have
been presented to the Trustee, or behalf of the Purchaser, for filing
in the appropriate filing office. Upon such filing, the Purchaser will
have a first priority protected security interest in the Trust
Property.
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(iii) CHARACTERISTICS OF RECEIVABLES. Each Receivable
(A) has been either originated by a Dealer in the regular course of
such Dealer's business and purchased from such Dealer by an Originator
in the ordinary course of the Originator's business or otherwise
originated by the Originator in the ordinary course of the
Originator's business, and each Obligor was approved in accordance
with the Seller's standard underwriting procedures in effect at the
time such Receivable was originated or purchased, (B) has created or
shall create a valid, subsisting and enforceable first priority
security interest in favor of the related Originator in the related
Financed Vehicle, which security interest has been assigned by the
related Originator to the Seller and by the Seller to the Purchaser and
which is assignable by the Purchaser to the Trust and by the Trust to
the Trustee, (C) contains customary and enforceable provisions
under the laws of the state governing such Receivable such that the
rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security; and (D)
provides for level monthly payments that fully amortizes the Amount
Financed by maturity (except for the last payment, which may be
different from the level payment and except, with respect to a Balloon
Loan, to the extent of the Balloon Payment).
(iv) SCHEDULE OF RECEIVABLES. The information set
forth in Schedule A to this Agreement is true and correct in all
material respects as of the close of business on the Cutoff Date and no
selection procedures believed by the Seller to be adverse to the
Noteholders or the Certificateholders were utilized in selecting the
Receivables. The Computer Tape regarding the Receivables is true and
correct in all material respects as of the Cutoff Date.
(v) COMPLIANCE WITH LAW. Each Receivable, the sale of
the Financed Vehicle and the sale of any physical damage and credit
life and credit accident and health insurance and any extended service
contracts complied in all material respects at the time it was
originated or made and at the Closing Date (after giving effect to the
transactions contemplated by the Basic Documents) complies 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 Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the
Federal Reserve Board's Regulations B and Z, the Soldier's and Sailor's
Civil Relief Act of 1940, state adaptations of the National Consumer
Act and the Uniform Consumer Credit Code (if applicable), and other
consumer credit laws and equal credit opportunity and disclosure laws.
(vi) BINDING OBLIGATION. Each Receivable represents
the legal, valid and binding payment obligation in writing of the
Obligor thereunder, enforceable by the holder thereof in accordance
with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance,
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reorganization and similar laws now or hereafter in effect related to
or affecting creditors' rights generally and subject to general
principles of equity (whether applied in a proceeding at law or in
equity) and all parties to such Receivable had full legal capacity to
execute and deliver such Receivable and all other documents related
thereto and to grant the security interest purported to be granted
thereby.
(vii) NO GOVERNMENT OBLIGOR. None of the
Receivables is due from the United States of America or
any State or from any agency, department or instrumentality of the
United States of America or any State.
(viii) SECURITY INTEREST IN FINANCED VEHICLE.
Immediately prior to the sale, assignment, and transfer thereof under
the Agreement, (i) each Receivable shall be secured by a validly
perfected first priority security interest in the Financed Vehicle in
favor of the Seller as secured party, or (ii) application has been made
with the appropriate governmental authority for a valid perfected first
priority security interest in the Financed Vehicle in favor of the
Seller, and such security interest is or shall be prior to all other
Liens upon and security interests in such Financed Vehicle which now
exist or may hereafter arise or be created (except, as to priority, for
any tax liens or mechanics' liens which may arise after the Closing
Date).
(ix) RECEIVABLES IN FORCE. 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.
(x) NO WAIVER. No provision of a Receivable
has been modified or waived except as reflected in the
Receivable File relating to such Receivable.
(xi) NO AMENDMENTS. No Receivable has been amended,
except as would have been permitted pursuant to Section 4.2 of the
[Sale and Servicing Agreement] or [Pooling and Servicing Agreement] if
such Receivable had been owned by the Trust.
(xii) NO DEFENSES. No right of rescission,
setoff, counterclaim or defense has been asserted or
threatened with respect to any Receivable. The operation
of the terms of any Receivable or the exercise of any right thereunder
will not render such Receivable unenforceable in whole or in part or
subject to any such right of rescission, setoff, counterclaim, or
defense.
(xiii) NO LIENS. As of the Cutoff Date, there are no
Liens or claims, including Liens for work, labor, materials or unpaid
state or federal taxes relating to any Financed Vehicle securing the
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related Receivable, that are or may be prior to or equal to the Lien
granted by such Receivable.
(xiv) NO DEFAULT. Except for payment
delinquencies continuing for a period of not more than
thirty days as of the Cutoff Date and, except as permitted
in this paragraph, no default, breach, violation or event (in any such
case) permitting acceleration under the terms of any Receivable has
occurred; and no continuing condition that with notice or the lapse of
time would constitute a default, breach, violation or event (in any
such case) permitting acceleration under the terms of any Receivable
has arisen; and the Seller has not waived and shall not waive any of
the foregoing.
(xv) MATURITY OF RECEIVABLES. Each Receivable has an
original maturity of not more than __ months; the weighted average
original maturity of the Receivables is __ months as of the Cutoff
Date; the remaining term of each Receivable is __ months or less as of
the Cutoff Date; the weighted average remaining term of the Receivables
is __ months as of the Cutoff Date; and the latest scheduled maturity
of any Receivable shall be no later than the Final Scheduled Maturity
Date.
(xvi) NO BANKRUPTCIES. No Obligor on any
Receivable was noted in the related Receivable File as having filed
for bankruptcy in a proceeding which remained undischarged as of the
Cutoff Date.
(xvii) NO REPOSSESSIONS. As of the Cutoff
Date, no Financed Vehicle securing any Receivable is in
repossession status.
(xviii) CHATTEL PAPER. Each Receivable
constitutes "chattel paper" as defined in the UCC.
(xix) APR. The weighted average Annual
Percentage Rate of the Receivables as of the Cutoff Date
is approximately __ %.
(xx) PRINCIPAL BALANCE. Each Receivable has an
outstanding principal balance as of the Cutoff Date of not less than
$__ or more than $__. The average principal balance of the Receivables
as of the Cutoff Date is $__. The aggregate principal balance of the
Receivables as of the Cutoff Date is $__.
(xxi) FINANCING. Approximately __ % of the aggregate
principal balance of the Receivables, constituting approximately __ %
of the number of Receivables, as of the Cutoff Date, represents
financing of new vehicles; the remainder of the Receivables represents
financing of used vehicles. Approximately __ % of the aggregate
principal balance of the Receivables, constituting approximately __ %
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of the number of Receivables, as of the Cutoff Date, represents
financing of Balloon Loans. Approximately __ % of the aggregate
Principal Balance of the Receivables, constituting approximately __ %
of the number of Receivables, as of the Cutoff Date, represents
financing of Simple Interest Receivables; the remainder of the
Receivables represents financing of Actuarial Receivables.
(xxii) PAID-AHEAD. Approximately __ % of the
aggregate Principal Balance of the Receivables, constituting
approximately __ % of the number of Receivables are paid-ahead for a
period of one to six months. No Receivable is paid- ahead more than
eight months.
(xxiii) INSURANCE; OTHER. The related Originator, in
accordance with its customary procedures, has confirmed (A) that each
Obligor has obtained insurance covering the Financed Vehicle as of the
date of execution of the Receivable insuring against loss and damage
due to fire, theft, collision and other risks generally covered by
comprehensive and collision coverage and that each Receivable requires
the Obligor to maintain such insurance naming the applicable Originator
and its successors and assigns as a loss payee, (B) each Receivable
that finances the cost of premiums for credit life and credit accident
and health insurance is covered by an insurance policy or certificate
of insurance naming the applicable Originator as loss payee
(lienholder) under each such insurance policy and certificate of
insurance and (C) as to each Receivable that finances the cost of an
extended service contract, the respective Financed Vehicle which
secures the Receivable is covered by an extended service contract.
(xxiv) LAWFUL ASSIGNMENT. No Receivable has been
originated in, or as of the Closing Date is subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Receivable or this Agreement or the pledge of such Receivable to the
Trustee under the Indenture (i) is unlawful, void, voidable or
unenforceable in accordance with its terms or (ii) would render such
Receivable void, voidable or unenforceable in accordance with its
terms. No Originator has entered into
any agreement with any account debtor that prohibits, restricts or
conditions the assignment of all or any portion of the Receivable.
(xxv) NO INSURANCE PREMIUMS. As of the Cutoff
Date, no portion of the principal balance of any Receivable included
amounts attributable to the payment of any physical damage or theft
insurance premium.
(xxvi) ONE ORIGINAL. There is only one manually
executed original copy of each Receivable.
(xxvii) ORIGINATION OF RECEIVABLES. Based on
the billing address of the Obligors and the principal
balance of Receivables as of the Cutoff Date, approximately __ % of the
Receivables were originated in __, approximately, approximately __ % of
the Receivables were originated in __ and approximately __ % of the
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Receivables were originated in __, each Obligor has been approved by
the Originator based on the Originator's standard underwriting
procedures as in effect at the time the related Receivable was entered
into. Based on the billing address of the Obligors and the principal
balance of the Receivables as of the Cutoff Date, not more than 10% of
the Receivables were originated in any one state other than __, __ or
__.
(xxviii) RECEIVABLE FILES. The Receivable Files
are kept at the Purchaser's or an affiliate's office
listed in Exhibit B.
(xxix) COMPUTER RECORDS. As of the Closing
Date, the accounting and computer records relating to the
Receivables of the Seller have been marked to show the
absolute ownership by the Owner Trustee on behalf of the
Trust of the Receivables.
(xxx) RECEIVABLES. The only Receivables sold to the
Purchaser by the Seller pursuant to this Agreement are Receivables
originated by subsidiaries of ▇▇▇▇▇▇▇ Bank, N.A.
ARTICLE IV
CONDITIONS
4.1. CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation of the
Purchaser to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) COMPUTER FILES MARKED. The Seller shall, at its own expense, on or
prior to the Closing Date, indicate in its computer files and cause each
Originator to indicate in its computer files that the Receivables have been sold
to the Purchaser pursuant to this Agreement and will be sold to the Trust
pursuant to the [Sale and Servicing Agreement] or [Pooling and Servicing
Agreement] and shall deliver to the Purchaser the Schedule of Receivables
certified by the Chairman, the President, any Vice President or the Treasurer of
the Seller to be true, correct and complete.
(c) RECEIVABLE FILES DELIVERED. The Seller shall deliver the
Receivable Files relating to the Receivables to the Purchaser at the offices
specified in Schedule B to the [Sale and Servicing Agreement] or [Pooling and
Servicing Agreement] on or prior to the Closing Date.
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(d) DOCUMENTS TO BE DELIVERED BY THE SELLER AT THE CLOSING.
(i) EVIDENCE OF UCC FILING. On or prior to the
Closing Date, the Seller shall present to the Trustee, on behalf of the
Purchaser, for filing, at its own expense, a UCC-3 financing statement
in each jurisdiction in which it or an Originator has granted a
security interest covering any Receivable to be conveyed by the Seller
to the Purchaser hereunder, executed by the related secured party. On
or prior to the Closing Date, the Seller shall present to the Trustee,
on behalf of the Purchaser, for filing, at its own expense, a UCC-1
financing statement in each jurisdiction in which such filing is
required by applicable law, executed by the Seller, as seller or debtor
(and the related Originator with respect to the transfer of Receivables
to the Seller under the Loan Sale Agreement), and naming the Purchaser,
as purchaser or secured party, naming the Receivables and the other
Trust Property conveyed hereafter as collateral,
meeting the requirements of the laws of each such jurisdiction and in
such manner as is necessary to perfect the sale, transfer, assignment
and conveyance of such Receivables to the Purchaser. The Seller shall
deliver a file-stamped copy, or other evidence satisfactory to the
Purchaser of such filings, to the Purchaser as soon as practicable
after the Closing Date.
(ii) OTHER DOCUMENTS. Such other documents as
the Purchaser may reasonably request.
(e) OTHER TRANSACTIONS. The transactions contemplated by the [Sale and
Servicing Agreement] or [Pooling and Servicing Agreement] and the Underwriting
Agreement shall be consummated on the Closing Date.
4.2. CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the satisfaction
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Purchaser hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Purchaser shall have performed all obligations in all material respects to be
performed by it hereunder on or prior to the Closing Date.
(b) RECEIVABLES PURCHASE PRICE. At the Closing Date, the Purchaser
will pay to the Seller the Purchase Price represented by the aggregate principal
balance of the Receivables sold hereunder by the Seller. At such time as any
Subsequent Payments are to be made, the Purchaser will pay to the Seller the
Subsequent Payment to be made, represented by the aggregate principal balance of
the Receivables sold hereunder by the Seller.
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ARTICLE V
COVENANTS OF THE SELLERS
The Seller severally agrees with the Purchaser as follows; PROVIDED,
HOWEVER, that to the extent that any provision of this ARTICLE V conflicts with
any provision of the [Sale and Servicing Agreement] or [Pooling and Servicing
Agreement], the [Sale and Servicing Agreement] or [Pooling and Servicing
Agreement] shall govern:
5.1. PROTECTION OF RIGHT, TITLE AND INTEREST. (a) FILINGS. The Seller
shall cause all financing statements and continuation statements and any other
necessary documents covering the right, title and interest of the Purchaser in
and to the Receivables sold by it and the other related Trust Property to be
promptly filed, and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to preserve
and protect the right, title and interest of the Purchaser hereunder to such
Receivables and the other Trust 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
recordation, 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 Section
5.1(a).
(b) NAME AND OTHER CHANGES. If the Seller makes any change in its
name, identity or corporate structure which would make any financing statement
or continuation statement filed pursuant hereto seriously misleading within the
applicable provisions of the UCC or any title statute, the Seller shall give the
Owner Trustee, the Trustee, and the Purchaser written notice of any such change
and shall file appropriate amendments to all previously filed financing
statements or continuation statements within thirty days of the effectiveness
thereof. Upon any relocation of its principal executive office, the Seller shall
give the Owner Trustee, the Trustee, and the Purchaser written notice thereof
within a reasonable period of time (not to exceed 30 days) thereafter 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 the Seller shall within such
time file any such amendment or new financing statement.
(c) ACCOUNTS AND RECORDS. The Servicer shall maintain accounts and
records as to each Receivable accurately and in sufficient detail to permit the
reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each).
(d) MAINTENANCE OF COMPUTER SYSTEMS. The Seller shall maintain its
computer systems and files so that, from and after the time of sale hereunder of
the Receivables to the Purchaser, the Servicer's master computer records
(including any back-up archives) and the Seller's files that refer to a
Receivable shall indicate clearly the interest of the Purchaser in such
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Receivable and that such Receivable is owned by the Purchaser. Indication of the
Purchaser's ownership of a Receivable shall be deleted from or modified on the
Servicer's computer systems and the Seller's files when, and only when, the
Receivable shall have been paid in full, by the Seller or Servicer, or sold to
the Trust under the Sale and Servicing Agreement.
(e) SALE OF OTHER RECEIVABLES. If at any time the Seller shall propose
to sell, grant a security interest in, or otherwise transfer any interest in any
automobile receivables (other than the Receivables) to any prospective
purchaser, lender, or other transferee, the Seller shall give to such
prospective purchaser, lender, or other transferee computer tapes, records, or
print-outs (including any restored from back-up archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Purchaser unless such
Receivable has been paid in full or repurchased.
(f) ACCESS TO RECORDS. The Servicer and each Originator shall permit
the Purchaser and its agents at their own cost and expense at any time during
normal business hours and upon reasonable written notice to inspect, audit, and
make copies of and abstracts from the applicable Originator's records regarding
any Receivable.
(g) LIST OF RECEIVABLES. Upon request, the Servicer shall furnish to
the Purchaser, within five Business Days, a list of all Receivables (by contract
number and name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of Receivables.
5.2. OTHER LIENS OR INTERESTS. Except for the conveyances hereunder
and pursuant to the Sale and Servicing Agreement, each Originator and 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 interest therein, and each
Originator and the Seller shall defend the right, title, and interest of the
Purchaser in, to and under such Receivables and each related Financed Vehicle
against all claims of third parties claiming through or under the Seller;
PROVIDED, HOWEVER, that the Seller's obligations under this Section 5.2 shall
terminate upon the termination of the Trust pursuant to the [Sale and Servicing
Agreement] or [Pooling and Servicing Agreement].
5.3. CHIEF EXECUTIVE OFFICE. During the term of the Receivables, each
Originator will maintain its principal place of business and chief executive
office in the State of New York and the Seller will maintain its principal place
of business in Florida.
5.4. COSTS AND EXPENSES. The Seller agrees to pay all reasonable costs
and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in and to the Receivables.
5.5. DELIVERY OF RECEIVABLE FILES. On or prior to the Closing Date,
the Seller shall deliver the Receivable Files relating thereto to the Purchaser
at the location specified in Exhibit B hereto and shall cause the Receivable
Files to be marked to indicate the sale thereof to the Purchaser.
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5.6. INDEMNIFICATION. (a) The Seller shall indemnify the Purchaser for
any liability as a result of the failure of a Receivable originated by it to be
originated in compliance with all requirements of law and for any material
breach of any of its representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all reasonable costs, expenses, losses,
damages, claims, and liabilities, resulting from the use, ownership, or
operation by the Seller or any affiliate thereof of a Financed Vehicle related
to a Receivable originated by it.
(c) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all taxes, except for taxes on the net income
of the Purchaser, that may at any time be asserted against the Purchaser with
respect to the transactions contemplated herein with respect to the Receivables
originated by it, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes and
reasonable costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all reasonable costs, expenses, losses,
damages, claims and liabilities to the extent that such reasonable cost,
expense, loss, damage, claim or liability resulted from the gross negligence,
willful misfeasance, or bad faith of the Seller in the performance of its duties
under the Agreement, or by reason of reckless disregard of the Seller's
obligations and duties under this Agreement.
5.7. SALE. The Seller agrees to treat this conveyance as a sale on all
relevant books, records and other applicable documents.
5.8. NO PETITION. The Seller, by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against the
Purchaser, or join in any institution against the Purchaser of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to this Agreement.
5.9. COLLECTED FUNDS. The Seller hereby covenants that on the Closing
Date it will deposit or cause to be deposited all collected funds received prior
to the Closing Date and conveyed to the Purchaser hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
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6.1. OBLIGATIONS OF THE SELLER . The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2. REPURCHASE EVENTS. The Seller hereby covenants and agrees with
the Purchaser for the benefit of the Purchaser, the Owner Trustee, the Trustee,
the Noteholders and the Certificateholders, that the occurrence of a breach of
any representations and warranties contained in Section 3.2(b) hereof (without
regard to any limitations regarding knowledge) shall constitute events
obligating the Seller to repurchase the affected Receivables hereunder
("Repurchase Events"), at the Purchase Amount from the Trust. The provisions of
this Section 6.2 are intended to grant the Trustee a direct right against the
Seller to demand performance hereunder, and in connection therewith the Seller
waives any requirement of prior demand against the Purchaser and waives any
defaults it would have against the Purchaser with respect to such repurchase
obligation. Any such purchase shall take place in the manner specified in
[Section 3.2 of the [Sale and Servicing Agreement]] [Section ____ of the Pooling
and Servicing Agreement]. The sole remedy of the Noteholders, the
Certificateholders, the Trust, the Owner Trustee, the Trustee or the Purchaser
against the Seller, with respect to any Repurchase Event shall be to enforce the
Seller's obligation to purchase such Receivables pursuant to this Agreement;
PROVIDED, HOWEVER, that the Seller shall indemnify the Owner Trustee, the
Trustee, the Trust, the Noteholders and the Certificateholders against all
reasonable costs, reasonable expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel, which may be asserted against
or incurred by any of them, as a result of third party claims arising out of the
events or facts giving rise to such breach. Upon receipt of the Purchase Amount,
the Purchaser shall cause the Trust to release the related Receivables File to
the Seller and to execute and deliver all instruments of transfer or assignment,
without recourse, as are necessary to vest in the Seller title to the
Receivable.
6.3. SELLER'S ASSIGNMENT OF PURCHASED RECEIVABLES. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser
shall assign, without recourse except as provided herein, representation or
warranty, to the Seller all the Purchaser's right, title and interest in and to
such Receivables, and all security and documents relating thereto.
6.4. [Reserved]
6.5. TRUST. The Seller acknowledges that the Purchaser will, pursuant
to the [Sale and Servicing Agreement] or [Pooling and Servicing Agreement], sell
the Receivables to the Trust and assign its rights under this Agreement to the
Trust for the benefit of the Noteholders and Certificateholders and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under this Agreement, including under Sections 6.2 and 6.3 hereof are
intended to benefit such Trust and the Noteholders and Certificateholders. The
Seller also acknowledges that the Trust on behalf of the Noteholders and
Certificateholders as assignee of the Purchaser's rights hereunder may directly
enforce, without making any prior demand on the Purchaser, all the rights of the
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Purchaser hereunder including the rights under Section 6.2 and 6.3 hereof. The
Seller hereby consents to such sale and assignment.
6.6. AMENDMENT. This Agreement may be amended by the Purchaser and the
Seller, with the consent of the Trustee and the Owner Trustee (which consent may
not be unreasonably withheld), but without the consent of any of the Noteholders
or the Certificateholders, to cure any ambiguity or defect, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; PROVIDED, HOWEVER, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Purchaser
and the Seller, with the consent of the Trustee and the Owner Trustee, the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the Holders (as defined in
the Trust Agreement) of Certificates evidencing not less than a majority of the
Certificate Balance 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 or the Certificateholders;
PROVIDED, HOWEVER, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made for
the benefit of the Noteholders or the Certificateholders or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance, the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all the outstanding Notes and the Holders
(as defined in the Trust Agreement) of all the outstanding Certificates affected
thereby.
Prior to the execution of any such amendment or consent, the Trustee
and Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Rating Agencies. Promptly after the execution of any
such amendment or consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to each Certificateholder and the
Trustee shall furnish written notification to each Noteholder.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent to the execution and
delivery of such amendment have been satisfied and the Opinion of Counsel.
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6.7. ACCOUNTANTS' LETTERS. (a) ______________ will review the
characteristics of the Receivables described in the Schedule of Receivables set
forth as Exhibit A hereto and will compare those characteristics to the
information with respect to the Receivables contained in the Preliminary
Prospectus and the Final Prospectus; (b) the Seller will cooperate with the
Purchaser and ______________ in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in Section 6.7(a) above and to deliver the letters required of them under
the Underwriting Agreement; (c) ______________ will deliver to the Purchaser a
letter, dated the date of the Final Prospectus, in the form previously agreed to
by the Seller and the Purchaser, with respect to the financial and statistical
information contained in the Preliminary Prospectus under the caption
"Delinquency Experience" and "Historical Net Loss Experience," certain
information relating to the Receivables on magnetic tape obtained from the
Seller and with respect to such other information as may be agreed in the form
of letter; and (d) ______________ will deliver to the Purchaser a letter, dated
the Closing Date, in the form previously agreed to by the Seller and the
Purchaser, with respect to the financial and statistical information contained
in the Final Prospectus under the caption "Delinquency Experience" and
"Historical Loss Experience," certain information relating to the Receivables on
magnetic tape obtained from the Seller and with respect to such other
information as may be agreed in the form of letter.
6.8. WAIVERS. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
6.9. NOTICES. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or telex and addressed or delivered to
it at its address (or in case of telex, at its telex number at such address)
shown in the opening portion of this Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex.
6.10. COSTS AND EXPENSES. The Seller will pay all expenses incident to
the performance of their respective obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Receivables and security interests in the Financed Vehicles and
the enforcement of any obligation of the Seller hereunder.
6.11. REPRESENTATIONS OF THE SELLER AND THE PURCHASER. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to this Agreement shall remain in
full force and effect and will survive the closing under Section 2.2 hereof.
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6.12. CONFIDENTIAL INFORMATION. The Purchaser agrees that it will
neither use nor disclose to any person the names and addresses of the Obligors,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Receivables, under the [Sale and Servicing Agreement] or [Pooling and
Servicing Agreement] or as required by law.
6.13. HEADINGS AND CROSS-REFERENCES. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.14. THIRD PARTY BENEFICIARIES. The parties hereto hereby expressly
agree that each of the Owner Trustee for the benefit of the Certificateholders
shall be third party beneficiaries and the Trustee for the benefit of the
Noteholders with respect to this Agreement, PROVIDED, HOWEVER, that no third
party other than the Owner Trustee or Trustee shall be deemed a third party
beneficiary of this Agreement.
6.15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
6.16. 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.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
▇▇▇▇▇▇▇ DEALER FINANCIAL SERVICES, INC.
By: ___________________________
Name:
Title:
▇▇▇▇▇▇▇ AUTO RECEIVABLES CORP.
By: ___________________________
Name:
Title:
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EXHIBIT A
Schedule of Receivables
EXHIBIT B
Location of Receivables