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EXHIBIT 2.1
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RECEIVABLES PURCHASE AGREEMENT
between
FIRST MERCHANTS ACCEPTANCE CORPORATION,
as Seller,
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
as Purchaser
Dated as of June 17, 1997
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TABLE OF CONTENTS
ARTICLE I
Certain Definitions................... 1
ARTICLE II
Conveyance of Receivables................. 3
SECTION 2.01. Conveyance of Receivables........................ 3
SECTION 2.02. The Closing ..................................... 4
ARTICLE III
Representations and Warranties ............. 4
SECTION 3.01. Representations and Warranties of the Purchaser.. 4
SECTION 3.02. Representations and Warranties of Seller ........ 4
ARTICLE IV
Conditions ....................... 9
SECTION 4.01. Conditions to Obligation of the Purchaser ....... 9
SECTION 4.02. Conditions to Obligation of the Seller .......... 10
ARTICLE V
Covenants of the Seller ................ 11
SECTION 5.01. Protection of Right, Title and Interest ......... 11
SECTION 5.02. Other Liens or Interests ........................ 11
SECTION 5.03. Costs and Expenses .............................. 11
SECTION 5.04. Indemnification ................................. 11
ARTICLE VI
Miscellaneous Provisions ................ 12
SECTION 6.01. Obligations of Seller ........................... 12
SECTION 6.02. Repurchase Events ............................... 12
SECTION 6.03. Purchaser Assignment of Repurchased Receivables.. 12
SECTION 6.04. Assignment ...................................... 12
SECTION 6.05. Amendment ....................................... 12
SECTION 6.06. Waivers ......................................... 12
SECTION 6.07. Notices ......................................... 13
SECTION 6.08. Costs and Expenses .............................. 13
SECTION 6.09. Representations of the Seller and the Purchaser.. 13
SECTION 6.10. Headings and Cross-References ................... 13
SECTION 6.11. Governing Law ................................... 13
SECTION 6.12. Counterparts .................................... 13
EXHIBIT A
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SCHEDULE I
Schedule of Receivables............ I-1
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SCHEDULE II
Location of Receivable Files....... II-1
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RECEIVABLES PURCHASE AGREEMENT dated as of June 17, 1997, between FIRST
MERCHANTS ACCEPTANCE CORPORATION, a Delaware corporation, as seller (the
"Seller"), and GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware
corporation, as purchaser (the "Purchaser").
RECITALS
WHEREAS in the regular course of its business, the Seller has purchased
certain motor vehicle retail installment sale contracts secured by new and used
automobiles, light-duty trucks, vans and minivans from motor vehicle dealers
and/or Magna; and
WHEREAS the Seller and the Purchaser wish to set forth the terms pursuant
to which such contracts are to be sold by the Seller to the Purchaser on a
servicing released basis.
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 II
Certain Definitions
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 Receivables Purchase Agreement, as the same
may be amended and supplemented from time to time.
"Amount Financed" means with respect to a Receivable, the amount advanced
under the Receivable toward the purchase price of the Financed Vehicle and any
related costs, exclusive of any amount allocable to the premium of force-placed
physical damage insurance covering the Financed Vehicle.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate of
finance charges stated in the related Receivable.
"Assignment" shall mean the document of ▇▇▇▇ of sale and assignment
substantially in the form attached to this Agreement as Exhibit A.
"Basic Documents" means this Agreement, the Assignment and any other
agreements, documents and certificates delivered in connection herewith or
therewith.
"Contract" means a motor vehicle retail installment sale contract between
a Dealer and one or more Obligors named in the list of Receivables on Schedule
I hereto, together with all accounts, general intangibles, chattel paper,
documents and instruments (as those terms are defined in the Uniform Commercial
Code as enacted in the State of Illinois) and any contract rights related
thereto.
"Cutoff Date" means June 1, 1997.
"Dealer" means the dealer who sold a Financed Vehicle and who originated
the related Receivable and assigned it to First Merchants or Magna pursuant to
a Dealer Agreement.
"Dealer Agreement" means (a) an agreement between the Seller and a Dealer
pursuant to which such Dealer sells Contracts to the Seller or (b)
collectively, (i) an agreement between Magna and a
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Dealer pursuant to which such Dealer sells Contracts to Magna and (ii) an
agreement between Magna and the Seller pursuant to which Magna sells Contracts
to the Seller (or otherwise assigns Contracts to the Seller's designee).
"Dealer Underwriting Guide" means the underwriting manual used by the
Seller in the purchase of Receivables, as amended from time to time.
"Defaulted Receivable" means a Receivable with respect to which any of the
following shall have occurred: (i) a payment under the related Receivable is
120 or more days delinquent (and the related Obligor has not cured any
delinquency with respect to such Receivable during the calendar month in which
such Receivable became 120 days delinquent), (ii) the related Financed Vehicle
has been repossessed or (iii) the servicer has determined in good faith that
payments under the related Receivable are not likely to be resumed.
"Financed Vehicle" means an automobile, light-duty truck, van or minivan,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law or otherwise
(including, without limitation, as a result of any act or omission by the
related Obligor).
"Lien Certificate" means with respect to a Financed Vehicle, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Liquidated Receivable" means any Receivable with respect to which the
following shall have occurred: (i) the related Financed Vehicle has been
repossessed for 90 days or more, (ii) such Receivable is a Defaulted Receivable
with respect to which the servicer thereof has determined in good faith that
all amounts it expects to recover have been received or (iii) a payment under
the related Receivable is 150 or more days delinquent.
"Liquidation Proceeds" means, with respect to any Liquidated Receivable,
monies collected in respect thereof, from whatever source, including, without
limitation, rebates of service contracts, proceeds of dealer recourse and all
available rebates of state sales taxes, following the date on which such
Receivable became a Liquidated Receivable, net of the sum of any amounts
expended by the servicer in connection with such liquidation and any amounts
required by law to be remitted to the Obligor.
"Magna" means Magna Bank of St. Louis, a Missouri banking corporation, and
its successors and assigns.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under such Receivable.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including, without
limitation, any beneficiary thereof), unincorporated organization or government
or agency or political subdivision thereof.
"Purchaser" shall mean Greenwich Capital Financial Products, Inc., a
Delaware corporation, its successors and assigns.
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"Purchase Amount" means, with respect to any Receivable purchased
hereunder, the unpaid principal balance owed by the Obligor thereon plus
interest on such amount at the applicable APR to the last day of the month of
repurchase.
"Receivable" shall mean any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche).
"Receivable Files" means the following documents or instruments:
(a) the fully executed original of each Receivable (together with any
agreements modifying such Receivable, including, without limitation, any
extension agreement);
(b) the original credit application, or a copy thereof, fully executed
by each Obligor thereon;
(c) the original certificate of title or such other documents that a
custodian or servicer or the Seller shall keep on file in accordance with
its customary procedures evidencing the security interest of the Seller in
the Financed Vehicle; and
(d) any and all other documents that are set forth on Schedule III
hereto.
"Registrar of Titles" means with respect to any state, the governmental
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Schedule I.
"Seller" shall mean First Merchants Acceptance Corporation, a Delaware
corporation, its successors and assigns.
"Subsequent Transferee" shall have the meaning specified in Section 6.04.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Purchaser hereby agrees to pay to or upon the order of the Seller
the purchase price heretofore agreed to by the Seller and the Purchaser, in the
manner and at the time heretofore agreed to, and the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, with all
servicing rights released to Purchaser and without recourse (subject to the
obligations herein) all right, title, and interest of the Seller in and to:
(a) the Receivables and all monies received thereon on or after the Cutoff
Date;
(b) the security interests in the Financed Vehicles and any accessions
thereto granted by Obligors pursuant to the Receivables and any other interest
of the Seller in such Financed Vehicles;
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(c) any Liquidation Proceeds and any other proceeds with respect to the
Receivables from any source, including, without limitation, claims on any
physical damage, credit life or disability insurance policies covering Financed
Vehicles or Obligors, including, without limitation, any vendor's single
interest or other collateral protection insurance policy;
(d) all rights of the Seller against Dealers and Magna with respect to the
Receivables under the Dealer Agreements and Dealer assignments;
(e) any property that shall have secured a Receivable and that shall have
been acquired by or on behalf of the Seller;
(f) all documents and other items contained in the Receivable Files; and
(g) the proceeds of any and all of the foregoing.
The Seller and the Purchaser intend that the transfer of assets by the Seller
to the Purchaser pursuant to this Agreement be a sale of the ownership interest
in such assets to the Purchaser, rather than the mere granting of a security
interest to secure a borrowing. In the event, however, that such transfer is
deemed not to be a sale but to be a mere security interest to secure a
borrowing, the Seller shall be deemed to have hereby granted to the Purchaser a
perfected first priority security interest in all such assets, and this
Agreement shall constitute a security agreement under applicable law. Pursuant
to Section 6.04 hereof, the Purchaser may sell, transfer and reassign to a
Subsequent Transferee (i) all or any portion of the assets assigned to the
Purchaser hereunder, (ii) all or any portion of the Purchaser's rights against
the Seller under this Agreement and (iii) all proceeds thereof. Such
reassignment may be made by the Purchaser with or without a reassignment by the
Purchaser of its rights under this Agreement, and without further notice to or
acknowledgement from the Seller. The Seller waives, to the extent permitted
under applicable law, all claims, causes of action and remedies, whether legal
or equitable (including, without limitation, any right of setoff), against the
Purchaser or any assignee of the Purchaser relating to such action by the
Purchaser in connection with the transactions contemplated by this Agreement.
SECTION 2.02. The Closing. The sale and purchase of the Receivables
shall take place at the closing on June 17, 1997 (the "Closing Date").
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants as follows to the Seller as of the
date hereof and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is presently conducted.
(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 power and authority to
execute and deliver this Agreement and to carry out its terms; the Purchaser
had at all relevant times, and has, the power, authority and legal right to
acquire and own the Receivables; and the execution, delivery and
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performance of this Agreement have been duly authorized by the Purchaser by all
necessary corporate action.
SECTION 3.02. Representations and Warranties of Seller. (a) The Seller
hereby represents and warrants as follows to the Purchaser as of the date
hereof and as of the Closing Date:
(1) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(2) 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.
(3) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller
had at all relevant times, and has, full power, authority and legal right
to sell, transfer and assign the property sold, transferred and assigned to
the Purchaser hereby and has duly authorized such sale, transfer and
assignment to the Purchaser by all necessary corporate action; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Seller by all necessary corporate action.
(4) No Violation. Upon giving effect to the release of the Lien
described in Section 3.02(b)(14), the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both) a
default under, the articles of incorporation or bylaws of the Seller, or
any indenture, agreement or other instrument to which the Seller is a party
or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement), or
violate any law or any 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.
(5) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller before
any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement or any other Basic Document to
which the Seller is a party, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any other Basic
Document to which the Seller is a party or (iii) 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.
(6) Valid Sale, Binding Obligations. This Agreement and the other
Basic Documents to which the Seller is a party, when duly executed and
delivered by the other parties hereto and thereto, shall constitute legal,
valid and binding obligations of the Seller, enforceable against the Seller
in accordance with their respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization and other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(7) Chief Executive Office. The chief executive office of the Seller
is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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(8) No Consents. The Seller is not required to obtain the consent of
any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau
or agency in connection with the execution, delivery, performance,
validity, or enforceability of this Agreement or any other Basic Document
to which it is a party that has not already been obtained.
(b) The Seller makes the following representations and warranties with
respect to the Receivables, on which the Purchaser relies in accepting the
Receivables and may rely in transferring the Receivables. Such representations
and warranties speak as of the execution and delivery of this Agreement and as
of the Closing Date, but shall survive the sale, transfer and assignment of the
Receivables to the Purchaser and the subsequent sale, transfer and assignment
of the Receivables by the Purchaser.
(1) Characteristics of Receivables. Each Receivable (A) was
originated in the United States of America by a Dealer for the retail sale
of a Financed Vehicle in the ordinary course of such Dealer's business, is
payable in United States dollars, has been fully and duly executed by the
parties thereto, has been validly purchased by the Seller from a Dealer or
Magna, as applicable, under an existing Dealer Agreement (and each Dealer
had all necessary licenses and permits to originate such Receivable), (B)
provides for level monthly payments (provided that the payment in the first
or last month in the life of the Receivable may be minimally different from
the level payment) that fully amortize the Amount Financed by maturity date
and yield interest at the APR, (C) permits partial prepayment, full
prepayment, or both partial and full prepayment of such Receivable; (D) has
created or shall create a valid, subsisting and enforceable first priority
security interest in favor of the Seller in the Financed Vehicle, which
security interest is assignable by the Seller to the Purchaser, and has
been validly assigned by the Seller to the Purchaser and (E) contains
customary and enforceable provisions such that the rights and remedies of
the holder thereof are adequate for realization against the collateral of
the benefits of the security.
(2) Compliance with Law. Each Receivable and the sale of the related
Financed Vehicle complied at the time it was originated or made, and at the
time of execution of this Agreement complies, in all material respects with
all requirements of applicable federal, state and local laws and
regulations thereunder, including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty
Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and
Sailors' Civil Relief Act of 1940, and state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other consumer
credit laws and equal credit opportunity and disclosure laws.
(3) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A)
as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B) as
such Receivable may be modified by the application after the Closing Date
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(4) No Government Obligor. No Receivable is due from the United
States of America or any State or any agency, department, subdivision or
instrumentality thereof.
(5) Obligor Bankruptcy. No Obligor had been identified on the records
of the Seller as being the subject of a current bankruptcy proceeding.
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(6) Schedule of Receivables. The information set forth in Schedule I
to this Agreement is true and correct in all material respects as of the
close of business on the Cutoff Date.
(7) Marking Records. By the Closing Date, the Seller shall have
caused its records relating to each Receivable, including, without
limitation, any computer records, to be clearly and unambiguously marked to
show that the Receivables have been sold to the Purchaser by the Seller.
(8) Computer Tape. The computer tape regarding the Receivables made
available by the Seller to the Purchaser is complete and accurate in all
respects as of the Cutoff Date.
(9) No Adverse Selection. No selection procedures believed by the
Seller to be adverse to the Purchaser were utilized in selecting the
Receivables.
(10) Chattel Paper. Each Receivable constitutes chattel paper within
the meaning of the UCC as in effect in the State of origination.
(11) One Original. There is only one original executed copy of each
Receivable.
(12) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from
the Lien of the related Receivable in whole or in part. None of the terms
of any Receivable has been waived, altered or modified in any respect since
its origination, except by instruments or documents identified in the
related Receivable File. No Receivable has been modified as a result of
the application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
(13) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable to the Purchaser under this Agreement or the pledge of such
Receivable by the Purchaser.
(14) Title. It is the intention of the Seller that the transfers and
assignments herein contemplated constitute sales of the Receivables from
the Seller to the Purchaser and that the beneficial interest in and title
to the Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned or
pledged by the Seller to any Person other than to the Purchaser or pursuant
to this Agreement. Immediately prior to the transfers and assignments
herein contemplated, the Seller has good and marketable title to each
Receivable free and clear of all Liens (other than the Lien of the Seller's
senior lenders identified in the Consent dated as of June 17, 1997 under
the Fourth Amended and Restated Loan and Security Agreement dated as of
February 28, 1996, by and among the Seller and such secured lenders, which
Lien is being released simultaneously with the transfers and assignments
herein contemplated) and, immediately upon the transfer thereof, the
Purchaser shall have good and marketable title to each Receivable, free and
clear of all Liens.
(15) Security Interest in Financed Vehicle. Immediately prior to its
sale, assignment and transfer to the Purchaser pursuant to this Agreement,
each Receivable shall be secured by a validly perfected first priority
security interest in the related Financed Vehicle in favor of the Seller as
secured party and, upon the sale thereof to the Purchaser on the Closing
Date, the Purchaser has a valid and effective assignment of such security
interest. The Lien Certificate for each Financed Vehicle shows, or if a
new or replacement Lien Certificate is being applied for with respect to
such Financed Vehicle such Lien Certificate shall be received within 120
days of the Closing Date and shall show, the Seller named as the original
secured party under each Receivable as the holder of a first priority
security interest in such Financed Vehicle. With respect to each
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Receivable for which the Lien Certificate has not yet been returned from
the Registrar of Titles, the Seller has received written evidence that such
Lien Certificate showing the Seller as first lienholder has been applied
for. Each Dealer's security interest in any Receivable originated by such
Dealer has been validly assigned by the Dealer (or Magna, as applicable) to
the Seller. The Seller's security interest has been validly assigned to
the Purchaser pursuant to this Agreement.
(16) All Filings Made. All filings (including, without limitation,
UCC filings) required to be made in any jurisdiction to give the Purchaser
a first priority perfected ownership interest in the Receivables have been
made.
(17) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, and no such right has been
asserted or threatened with respect to any Receivable.
(18) No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no
waiver of any of the foregoing. As of the Cutoff Date, no Financed Vehicle
has been repossessed.
(19) Final Scheduled Maturity Date. No Receivable has a final
scheduled payment date after [ ].
(20) Certain Characteristics of the Receivables. As of the Cutoff
Date, (A) each Receivable had an original maturity of not more than 66
months; (B) no Receivable was more than 30 days past due; and (C) no funds
have been advanced by the Seller, any Dealer or anyone acting on behalf of
either of them in order to cause any Receivable to qualify under clause (B)
above.
(21) No Foreign Obligor. All of the Contracts are due from Obligors
who are citizens, or legal resident aliens, of the United States of
America.
(22) Insurance. The Seller has determined that the Obligor, at the
time of origination of its Receivable, obtained physical damage insurance
covering the Financed Vehicle and with appropriate deductibles in
accordance with Seller's underwriting guidelines and that such physical
damage insurance was in full force and effect as of its origination date.
(23) No Extensions. The number or timing of scheduled payments has not
been changed on any Receivable on or before the Closing Date, except as
reflected on the computer tape delivered in connection with the sale of the
Receivables.
(24) Scheduled Payments. Each Contract has a first scheduled payment
due on or prior to 45 calendar days after the origination date thereof.
Each Obligor has been instructed to make all scheduled payments to a
lockbox at LaSalle National Bank.
(25) Dealer Agreements. The representations and warranties of the
Dealer in the Dealer Agreement with respect to each Receivable purchased by
the Seller pursuant to such Dealer Agreement were true and correct in all
material respects as of the date the Seller (or Magna, as the case may be)
acquired such Receivable from that Dealer.
(26) No Fleet Sales. No Receivable has been included in a "fleet"
sale (i.e., a sale to any single Obligor of more than five Financed
Vehicles).
(27) Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains,
without limitation, (A) a fully executed original of the Receivable,
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(B) a certificate of insurance, application form for insurance signed by the
Obligor, or a signed representation letter from the Obligor named in the
Receivable pursuant to which the Obligor has agreed to obtain physical damage
insurance for the related Financed Vehicle, (C) the original Lien Certificate
or application therefor together with an assignment of the Lien Certificate
executed by the Seller to the Purchaser or, with respect to any Receivable
originated by a Dealer, an assignment of the Lien Certificate executed by such
Dealer to the Seller (or Magna, as the case may be) and by the Seller to the
Purchaser (or, in the case of Receivables sold by Dealers to Magna, from Magna
to the Seller and from the Seller to the Purchaser), (D) an original credit
application signed by the Obligor and (E) the other documents that are set
forth on Schedule III hereto. Each of such documents which is required to be
signed by the Obligor has been signed by the Obligor in the appropriate spaces.
All blanks on any form described in clauses (A), (B), (C), (D) and (E) above
have been properly filled in and each form has otherwise been correctly
prepared. Notwithstanding the above, the complete Receivable File for each
Receivable, shall (x) fulfill the documentation requirements of the Dealer
Underwriting Guide as in effect on the Closing Date and (y) be in possession of
the servicer and/or custodian, as applicable, on such date.
(28) No Fraud or Misrepresentation. Each Receivable was originated by a
Dealer and was sold by the Dealer to the Seller (or Magna, as the case may be),
to the best of the Seller's knowledge, without fraud or misrepresentation on
the part of such Dealer in either case.
(29) Receivables Not Assumable. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such Obligor's
obligations to the Seller with respect to such Receivable.
(30) No Impairment. The Seller has not done anything to convey any right
to any Person that would result in such Person having a right to payments due
under a Receivable or otherwise to impair the rights of the Purchaser in any
Receivable or the proceeds thereof.
(31) Tax Liens. There is no Lien against any Financed Vehicle for
delinquent taxes.
(32) No Corporate Obligor. All of the Purchased Contracts are due
from Obligors who are natural persons.
(33) No Liens. No Liens or claims have been filed for work, labor, or
materials relating to a Financed Vehicle that are prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted by the
related Receivable.
(34) Servicing. Each Receivable has been serviced in conformity with all
applicable laws, rules and regulation and in conformity with the Seller's
policies and procedures which are consistent with customary, prudent industry
standards.
(35) No Omissions. There have been no material omissions or misstatements
in any document provided or statement made to the Purchaser in writing
concerning the Seller or the Receivables by or on behalf of the Seller in
connection with the transactions contemplated by this Agreement.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Obligation of the Purchaser. The obligation
of the Purchaser to purchase the Receivables is subject to the satisfaction
of the following conditions:
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(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Seller shall have performed
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 that the Receivables
have been sold to the Purchaser pursuant to this Agreement and deliver to the
Purchaser the Schedule of Receivables, certified by the Seller's President, a
Vice President or the Treasurer to be true, correct and complete.
(c) Delivery of Receivables to Custodian. The Seller shall deliver the
original Receivables and assignments thereof to the custodian on or prior to
the Closing Date.
(d) Release of Lenders. The Seller shall obtain the executed consent and
release of the secured lenders as described in Section 3.02(b)(14) and the
related UCC-3, in each case in form and substance satisfactory to the
Purchaser, at or prior to the time of closing.
(e) Documents To Be Delivered on the Closing Date:
(1) The ▇▇▇▇ of Sale. On the Closing Date, the Seller shall execute
and deliver a ▇▇▇▇ of Sale and Assignment of Receivables with respect to
the Receivables, substantially in the form of Exhibit A hereto.
(2) Evidence of UCC Filing. On or prior to the Closing Date, the
Seller shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by the Seller, as seller or debtor, and naming the Purchaser, as
purchaser or secured party, describing the Receivables and the other assets
sold, transferred and assigned to the Purchaser pursuant to Section 2.01
hereof, 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 the Receivables and such other assets to the Purchaser.
The Seller shall deliver to the Purchaser a file-stamped copy or other
evidence satisfactory to the Purchaser of such filing on or prior to the
Closing Date.
(3) Certificate of Custodian. On or prior to the Closing Date, the
Purchaser shall receive a certificate of the custodian in form and
substance satisfactory to the Purchaser.
(4) Paying Agent. On or prior to the Closing Date, arrangements with a
paying agent satisfactory to the Purchaser shall be consummated.
(5) Opinions of Seller's Counsel. On or prior to the Closing Date,
the Purchaser shall have received the opinions of counsel to Seller, in
form and substance satisfactory to the Purchaser, as to the matters set
forth in Exhibit B hereto and such other matters as the Purchaser has
heretofore requested or may reasonably request.
(6) Power of Attorney. Seller shall have executed and delivered to
Purchaser a Limited Power of Attorney, substantially in the form of Exhibit
C hereto, on or prior to the Closing Date.
(7) Other Documents. Such other documents as the Purchaser may
reasonably request.
(f) Other Transactions. Arrangements with respect to the custody and
servicing of the Receivables, satisfactory to the Purchaser, shall be
consummated on the Closing Date.
SECTION 4.02. 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:
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(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Purchaser shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser shall
have delivered to the Seller the purchase price for the Receivables.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Purchaser as follows:
SECTION 5.01. 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
Seller and the Purchaser, respectively, in and to the Receivables and related
property conveyed pursuant to Section 2.01 hereof to be promptly 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 in and to the
Receivables and the related 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 shall
execute any and all documents reasonably required to fulfill the intent of this
paragraph.
(b) Name Change. If the Seller makes any change in its name, identity
or corporate structure that would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute, the Seller
shall give the Purchaser written notice thereof at least 60 days prior to such
change and shall promptly file such financing statements or amendments as may
be necessary to continue the perfection of the Purchaser's interest in the
Receivables and the related property.
SECTION 5.02. Other Liens or Interests5.02. Other Liens or Interests.
Except for the conveyances hereunder and pursuant to the Basic Documents, the
Seller shall not sell, pledge, assign or transfer to any Person, or grant,
create, incur, assume, or suffer to exist any Lien on, or any interest in, to
or under the Receivables, and the Seller shall defend the right, title and
interest of the Purchaser in, to and under the Receivables against all claims
of third parties claiming through or under the Seller.
SECTION 5.03. Costs and Expenses5.03. 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 and the related property.
SECTION 5.04. Indemnification5.04. Indemnification. Seller shall protect,
defend, indemnify and hold Purchaser and its assigns and their attorneys,
accountants, employees, officers and directors harmless from and against all
losses, liabilities, claims, damages and expenses of every kind and character,
as incurred, resulting from or relating to or arising out of (i) the
inaccuracy, nonfulfillment or breach of any representation, warranty, covenant
or agreement made by Seller in this Agreement, (ii) any legal action,
including, without limitation, any counterclaim, that has either been settled
by the litigants (which settlement, if Seller is not a party thereto shall be
with the consent of Seller) or has proceeded to judgment by a court of
competent jurisdiction, in either case to the extent it is based upon alleged
facts that, if true, would constitute a breach of any representation, warranty,
covenant or agreement made by Seller in this Agreement, (iii) any actions or
omissions of Seller or any employee or agent of Seller (including, without
limitation, any Dealer) occurring prior to the Closing Date with respect to any
of the
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Receivables or Financed Vehicles or (iv) any failure of a Receivable to be
originated in compliance with all requirements of law. These indemnity
obligations shall be in addition to any obligation that the Seller may
otherwise have.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Obligations of Seller. The obligations of the Seller
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 6.02. Repurchase Events. The Seller hereby covenants and agrees
with the Purchaser for the benefit of the Purchaser that the occurrence of a
breach of any of the Seller's representations and warranties contained in
Section 3.02(b) in any material respect shall constitute an event obligating
the Seller to repurchase the Receivables to which the breach is applicable
("Repurchase Events"), at the unpaid principal balance of the repurchased
receivable plus accrued interest at the APR to the date of repurchase, from the
Purchaser unless any such breach shall have been cured by the last day of the
calendar month following the discovery or notice thereof by or to the Seller.
The repurchase amount shall be paid by Seller within five business days after
the end of any such calendar month. Subject to Section 5.04, the repurchase
obligation of the Seller shall constitute the sole remedy available to the
Purchaser against the Seller with respect to any Repurchase Event.
SECTION 6.03. Purchaser Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all of the Purchaser's right, title and interest in and
to such Receivables and all security and documents relating thereto.
SECTION 6.04. Assignment. The Purchaser shall not sell, transfer or
assign any of its obligations under this Agreement to any other Person. Seller
acknowledges that Purchaser may, in its sole discretion, sell, transfer and
assign to a third party all or any portion of the assets sold, transferred and
assigned to the Purchaser hereunder and, in connection therewith may also
assign all or any portion of the Purchaser's rights against the Seller under
this Agreement. Seller also acknowledges that any sale, transfer or assignment
described in this Section may be made without the consent or approval of Seller
and without limiting the obligations of Seller hereunder (including, without
limitation, the covenant of Seller under Section 6.02 hereof) to the Purchaser.
The Seller waives, to the extent permitted under applicable law, all claims,
causes of action and remedies, whether legal or equitable (including, without
limitation, any right of setoff), against the Purchaser and any party to whom
Purchaser sells, transfers or assigns its rights hereunder relating to such
action by the Purchaser. In particular, without limiting the generality of the
foregoing, (i) the representations and warranties of the Seller set forth in
Section 3.02(b) speak solely as of the date of execution and delivery of this
Agreement and as of the Closing Date, but shall survive the subsequent sale,
transfer or assignment of the assets transferred to Purchaser hereunder, and
any party to whom such assets are subsequently transferred (a "Subsequent
Transferee") shall be entitled to rely thereon; and (ii) following notice to
the Seller (in accordance with Section 6.07 hereof), of a sale, transfer or
assignment to a Subsequent Transferee, the Seller will be obligated to make all
deliveries of documents, certificates and notices which Seller is required to
make to the Purchaser by the terms of this Agreement to the Subsequent
Transferee.
Any Subsequent Transferee will, following the sale, transfer or assignment
of assets to it, have the same rights to sell, transfer or assign the assets so
transferred as the Purchaser does hereunder.
SECTION 6.05. Amendment. This Agreement may only be amended by a
written amendment duly executed and delivered by the Seller and the Purchaser.
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SECTION 6.06. Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or the Assignment
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.
SECTION 6.07. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, to: (a) in the case of the Seller, First
Merchants Acceptance Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; (b) in the case of the Purchaser,
Greenwich Capital Financial Products, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇ with a copy to the attention of the
General Counsel;
SECTION 6.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement, and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser in connection with the perfection as against third parties of the
Purchaser's right, title and interest in and to the Receivables and the
enforcement of any obligation of the Seller hereunder.
SECTION 6.09. 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 shall survive the closing under Section
2.02 and the transfers and assignments referred to in Section 6.04.
SECTION 6.10. 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.
SECTION 6.11. Governing Law. This Agreement and the Assignment shall be
construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder or thereunder shall be determined in
accordance with such laws.
SECTION 6.12. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first above written.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By:_____________________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:_____________________________________
Name:
Title:
18
▇▇▇▇ OF SALE AND ASSIGNMENT OF RECEIVABLES
For value received, in accordance with the Receivables Purchase Agreement
dated as of June 17, 1997 (the "Receivables Purchase Agreement"), between the
undersigned and Greenwich Capital Financial Products, Inc. (the "Purchaser"),
the undersigned does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse, all right, title and interest of the
undersigned in and to (i) the Receivables and all monies received thereon on or
after June 1, 1997; (ii) the security interests in the Financed Vehicles and
any accessions thereto granted by Obligors pursuant to the Receivables and any
other interest of the Seller in such Financed Vehicles; (iii) any Liquidation
Proceeds and any other proceeds with respect to the Receivables from claims on
any physical damage, credit life or disability insurance policies covering
Financed Vehicles or Obligors, including, without limitation, any vendor's
single interest or other collateral protection insurance policy; (iv) all
rights of the Seller against Dealers with respect to the Receivables under the
Dealer Agreements and Dealer assignments executed in connection with the
Receivables and the Dealer Agreements; (v) any property that shall have secured
a Receivable and that shall have been acquired by or on behalf of the Seller;
(vi) all documents and other items contained in the Receivable Files; and (vii)
the proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by the Purchaser of
any obligation of the undersigned to the Obligors, insurers or any other person
in connection with the Receivables, the Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This ▇▇▇▇ of Sale and Assignments of Receivables is made pursuant to and
upon the representations, warranties and agreements on the part of the
undersigned contained in the Receivables Purchase Agreement and is to be
governed by the Receivables Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meaning assigned to them in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this ▇▇▇▇ of Sale and
Assignment of Receivables to be duly executed as of June 17, 1997.
FIRST MERCHANTS ACCEPTANCE CORPORATION,
By:_____________________________________
Name:
Title:
19
EXHIBIT B
Opinions of Counsel
A. The Seller shall have furnished to the Purchaser the opinion of
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Seller, dated the Closing Date
and satisfactory in form and substance to the Purchaser, substantially to the
effect that:
(1) the Seller has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its properties and conduct
its business as presently owned and conducted, and is duly qualified to
do business as a foreign corporation and is in good standing under the
laws of the State of Illinois;
(2) the Receivables Purchase Agreement and each other Basic Document
to which the Seller is a party has been duly authorized, executed and
delivered by the Seller and constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect);
(3) no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation
of the transactions contemplated or in the Receivables Purchase
Agreement, except such other approvals (which shall be specified in such
opinion) as have been obtained and such filings as have been made or are
in the process of being made;
(4) none of the sale of the Receivables by the Seller to the
Purchaser pursuant to the Receivables Purchase Agreement, the
consummation of any other of the transactions therein contemplated or the
fulfillment of the terms thereof shall conflict with, result in a breach
or violation of, or constitute a default under, any law binding on the
Seller or the charter, resolutions or bylaws of the Seller or the terms
of any indenture or other agreement or instrument known to such counsel
and to which the Seller is a party or by which it is bound, or any
judgment, order or decree known to such counsel to be applicable to the
Seller of any court, regulatory body, administrative agency, governmental
body, or arbitrator having jurisdiction over the Seller;
(5) there are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
before any court, administrative agency or other tribunal (1) asserting
the invalidity of the Receivables Purchase Agreement, (2) seeking to
prevent the consummation of any of the transactions contemplated by the
Receivables Purchase Agreement or the execution and delivery thereof or
(3) that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of,
the Receivables Purchase Agreement;
(6) the provisions of the Receivables Purchase Agreement are
effective to transfer to the Purchaser all right, title and interest of
the Seller in and to the Receivables and other assets and property
described in clauses (a) through (g) of Section 2.01 of the Receivables
Purchase Agreement ("Other Transferred Property"), and upon filing of the
UCC-3 partial release statements with respect to the interests of the
Sellers' secured lenders in the Receivables (which shall be specified in
such opinion), the Receivables shall be owned by the Purchaser free and
clear of any Lien;
(7) the provisions of the Receivables Purchase Agreement are
effective to create, in favor of the Purchaser, a valid security interest
in the Receivables and the Other Transferred
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Property that is subject to Article 9 of the New York Uniform Commercial
Code (the "UCC Collateral");
(8) the UCC-1 financing statements naming the Seller as seller and
the Purchaser as purchaser are in appropriate form for filing with the
Secretary of State of the State of Illinois and the County Clerk of Lake
County, Illinois; the interest of the Purchaser in the Receivables and
the proceeds thereof, and, to the extent that the filing of a financing
statement is effective to perfect an interest in the Other Transferred
Property under Article 9 of the Illinois Uniform Commercial Code, the
Other Transferred Property, shall be perfected upon the filing of such
financing statements in such filing offices; and upon the filing of the
UCC-3 partial release statements with respect to the interests of the
Sellers' secured lenders in such filing offices, no other interest of any
other purchaser from or creditor of the Seller is equal or prior to the
interest of the Trustee in the Receivables and such other Trust Property;
(9) the Contracts included in the Receivables are "chattel paper"
under Article 9 of the Illinois Uniform Commercial Code; and
(10) to the best knowledge of such counsel, the Seller has obtained
all material licenses, permits and other governmental authorizations that
are necessary to the conduct of its business; such licenses, permits and
other governmental authorizations are in full force and effect, and the
Seller is in all material respects complying therewith; and the Seller is
otherwise in compliance with all laws, rules, regulations and statutes of
any jurisdiction to which it is subject, except where non-compliance
would not have a material adverse effect on the Seller.
B. The Seller shall have furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esquire, General Counsel of the Seller, dated the Closing Date and
satisfactory in form and substance to the Purchaser, to the effect that:
(1) the Seller and all of its subsidiaries are duly qualified to do
business as foreign corporations and are in good standing under the laws
of each jurisdiction wherein each of them owns or leases material
properties or conducts material business and which requires such
qualification;
(2) the Seller has no subsidiaries in any form, whether wholly owned
or other than wholly owned, direct or indirect, other than First
Merchants Auto Receivables Corporation and First Merchants Auto
Receivables Corporation II, both Delaware corporations and wholly owned
subsidiaries of the Seller;
(3) the Seller has obtained all material licenses, permits and other
governmental authorizations that are necessary to the conduct of its
business; such licenses, permits and other governmental authorizations
are in full force and effect, and the Seller is in all material respects
complying therewith; and the Seller is otherwise in compliance with all
laws, rules, regulations and statutes of any jurisdiction to which it is
subject, except where non-compliance would not have a material adverse
effect on the Seller; and
(4) none of the execution and delivery of the Receivables Purchase
Agreement or the consummation of any of the transactions therein
contemplated or the fulfillment of the terms thereof shall conflict with,
result in a breach or violation of, or constitute a default under, any
law or the charter, resolutions or bylaws of the Seller or the terms of
any indenture or other agreement or instrument known to such counsel and
to which or the Seller is a party or by which it is bound or any
judgment, order or decree known to such counsel to be applicable to the
Seller of any court, regulatory body, administrative agency, governmental
body, or arbitrator having jurisdiction over the Seller.
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Exhibit C
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, pursuant to section 4.01(e)(6) of a certain
Receivables Purchase Agreement dated June 17, 1997, between FIRST MERCHANTS
ACCEPTANCE CORPORATION, a Delaware corporation herein termed the "Seller", and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation herein
termed the "Attorney", the undersigned Seller does hereby constitute and
appoint the Attorney, its successors and assigns, as the true and lawful
attorney-in-fact of the Seller and with full power by an instrument in writing
to appoint a substitute or substitutes, to demand, reduce to possession,
collect, receive, receipt for, endorse, compromise, settle or assign without
recourse any and all indebtedness, notes, commercial paper, promises to pay,
retail installment sale contracts, chattel paper, instruments, choses in action
and other obligations described that certain ▇▇▇▇ of Sale and Assignment of
Receivables dated June 17, 1997, from the Seller to the Attorney, herein termed
the "Receivables", together with all monies due or to become due under said
Receivables, and any and all claims, choses in action, and rights and causes of
action relating thereto, including, without limitation, any and all real estate
and personal property, security instruments and insurance policies held as
security for said Receivables, and all other property of every kind identified
in said ▇▇▇▇ of Sale; to cancel or release the Receivables and release any
security, in whole or in part and in connection therewith to execute,
acknowledge or handle proper discharges, releases, satisfactions, certificates
of title, other lien certificates or other instruments in writing which may
become necessary in order to carry the foregoing powers into effect, the Seller
hereby ratifying and confirming all acts and things lawfully and reasonably
done by the Attorney or its substitute or substitutes in pursuance of the
authority herein granted.
IN WITNESS WHEREOF, the Seller has executed this instrument 16th day of
June, 1997.
Attest: FIRST MERCHANTS ACCEPTANCE CORPORATION
___________________________ By:______________________________
Its:_______________ Secretary Its:_____________________________ President
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SCHEDULE I
Schedule of Receivables
I-1
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SCHEDULE II
Location of Receivable Files
II-1
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SCHEDULE III
Receivable File Schedule
1. All documents obtained or created in connection with the credit
investigation.
2. All evidence of borrower verification of the Receivable.
3. All Obligor records including without limitation (i) file copy of
Receivable; (ii) copy Dealer assignment (if applicable); (iii) warranty
copy; (iv) credit life insurance policy; (v) proof of auto insurance; (vi)
▇▇▇▇ of sale; (vii) buyer's guide (as is form); (viii) odometer statement;
(ix) title application; (x) contract verification sheet; (xi)
participation worksheet; (xii) checklist; (xiii) underwriting worksheet;
(xiv) approval; (xv) purchase trans printout; (xvi) original application;
(xvii) credit investigation; (xviii) credit bureau reports; (xix) check
stubs; and (xx) copies of drivers license reference sheets.
4. Original document envelope together with all documents maintained
therein.
5. All insurance verification forms and documents relating to insurance
follow-ups and all mail received from insurance.
6. Any and all other documents that the Servicer shall keep on file in
accordance with its customary procedures relating to a Receivable, an
Obligor or a Financed Vehicle.
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