EXHIBIT 10.1
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_______________________,
ORIGINATOR
AND
ADVANTA AUTO FINANCE CORPORATION
_________________________________
RECEIVABLES ACQUISITION AGREEMENT
Dated as of ________ __, 199__
_________________________________
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ALL RIGHTS, TITLE AND INTEREST IN AND TO THIS AGREEMENT ON THE PART OF ADVANTA
AUTO FINANCE CORPORATION HAVE BEEN ASSIGNED TO AND ARE SUBJECT TO A SECURITY
INTEREST IN FAVOR OF _________________________, AS TRUSTEE, UNDER [A [POOLING
AND SERVICING AGREEMENT] [A TRUST AGREEMENT]] [AN INDENTURE] DATED AS OF
_____________, 199__ FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS................................... 1
ARTICLE II TRANSFER OF RECEIVABLES............................... 4
Section 2.01. Transfer of Receivables....................... 4
Section 2.02. The Closing................................... 6
Section 2.03. The Funding Events............................ 6
ARTICLE III REPRESENTATIONS AND WARRANTIES........................ 6
Section 3.01. Representations and Warranties of
the Depositor....................................... 6
Section 3.02. Representations and Warranties of
the Originator...................................... 7
ARTICLE IV CONDITIONS............................................ 18
Section 4.01. Conditions to Obligation of the
Depositor........................................... 18
Section 4.02. Conditions to Obligation of the
Originator.......................................... 19
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE ORIGINATOR..................................................... 20
Section 5.01. Protection of Right, Title and
Interest............................................ 20
Section 5.02. Other Liens or Interests...................... 20
Section 5.03. Principal Executive Office.................... 21
Section 5.04. Trustee as Additional Insured................. 21
Section 5.05. Costs and Expenses............................ 21
Section 5.06. No Waiver..................................... 21
Section 5.07. Location of Servicer Files.................... 21
Section 5.08. Transfer of Receivables....................... 21
Section 5.09. Originator's Records.......................... 21
Section 5.10. Transfer of Additional
Receivables......................................... 21
Section 5.11. No Bankruptcy Petition........................ 22
Section 5.12. Covenants Regarding Operations................ 22
ARTICLE VI INDEMNIFICATION....................................... 23
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Page
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ARTICLE VII MISCELLANEOUS PROVISIONS.............................. 23
Section 7.01. Obligations of Originator..................... 23
Section 7.02. Reacquisition Events.......................... 23
Section 7.03. The Depositor................................. 23
Section 7.04. Trust......................................... 23
Section 7.05. Amendment..................................... 24
Section 7.06. Waivers....................................... 24
Section 7.07. Notices....................................... 24
Section 7.08. Costs and Expenses............................ 24
Section 7.09. Representations............................... 24
Section 7.10. Confidential Information...................... 24
Section 7.11. Headings and Cross-References................. 24
Section 7.12. Governing Law................................. 25
Section 7.13. Counterparts.................................. 25
EXHIBIT A ASSIGNMENT
EXHIBIT B SCHEDULE OF RECEIVABLES
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RECEIVABLES ACQUISITION AGREEMENT
This RECEIVABLES ACQUISITION AGREEMENT is made as of this __th day
of ____, 199__, by and between ________________, a ___________ [corporation],
having its principal executive office at _______________________ (the
"Originator") and Advanta Auto Finance Corporation, a Nevada corporation, having
its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Depositor").
WHEREAS, the Originator and the Depositor wish to set forth the
terms pursuant to which (i) the Receivables (as hereinafter defined) are to be
pledged, transferred, assigned and otherwise conveyed by the Originator to the
Depositor, which Receivables will be transferred and assigned by the Depositor,
pursuant to the [[Pooling and Servicing Agreement] [Trust Agreement]] (as
hereinafter defined), to Advanta Auto Receivables Trust 199__-__ (the "Trust")
to be created thereunder, which Trust will issue [certificates as security for
the loan from the securityholders to the Originator (the "Class __
[Certificates] [Notes]"); and (ii) additional Receivables will from time to time
be pledged, transferred, assigned and otherwise conveyed by the Originator to
the Depositor, which Receivables will then be transferred and assigned by the
Depositor to the Trust on Funding Dates (as hereinafter defined); and
WHEREAS, all Receivables transferred pursuant to this Agreement
shall constitute Eligible Receivables (as hereinafter defined) as of the Closing
Date or the Funding Date, as the case may be, on which they are transferred
hereunder.
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 [[Pooling and Servicing Agreement] [Trust Agreement]] dated as of
_______, 199__ among the Depositor, the Originator, and _________________, as
trustee ("[Pooling and Servicing Agreement] [Trust 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 Receivables Acquisition Agreement and
all amendments hereof and supplements hereto.
"Assignment" shall mean the document of assignment attached to this
Agreement as Exhibit A.
"Class __ [Certificate] [Note]" shall have the meaning specified in
the [Pooling and Servicing Agreement] [Trust Agreement].
"Closing Date" shall mean ________, 199__.
"Closing Date Receivables" shall mean the Receivables acquired by
the Depositor from the Originator pursuant to the Agreement on the Closing Date.
"Collections" shall mean all amounts collected by the [Master
Servicer] or any Servicer or Subservicer (as defined in the [Pooling and
Servicing Agreement] [Trust Agreement]) (from whatever source) on or with
respect to the Receivables.
"Custodian Files" shall have the meaning specified in the [Pooling
and Servicing Agreement] [Trust Agreement].
"Cutoff Date" shall mean __________, 199__ with respect to the
Closing Date and the last Business Day of each calendar week preceding the
calendar week of a Funding Date, with respect to each Funding Date.
"Eligible Receivable" means any Receivable as to which all of the
representations set forth in Section 3.02(b) hereof are true.
"Funding Date" shall mean each date occurring no more than once per
calendar week during the period beginning on the Closing Date and ending on
_________, 199__.
"Funding Date Receivables" means, with respect to a Funding Date,
the Eligible Receivables to be pledged, transferred, assigned and otherwise
conveyed by the Originator to the Depositor on such date and identified on
Schedule I attached to an Assignment substantially in the form of Exhibit A
hereto delivered on such Funding Date.
"Funding Event" shall mean, with respect to a Funding Date, the
occurrence of the events described in the definition of Funding Date.
"[Master Servicer]" shall mean ______________________________, a
_________ [corporation], its successors and assigns.
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"Obligor" shall have the meaning specified in the [Pooling and
Servicing Agreement] [Trust Agreement].
"Originator" shall mean ________________________, a ___________
[corporation], its successors and assigns.
"Person" shall have the meaning specified in the [Pooling and
Servicing Agreement] [Trust Agreement].
"[Pooling and Servicing Agreement] [Trust Agreement]" shall mean the
[Pooling and Servicing Agreement] [Trust Agreement] by and among the Originator;
the Depositor; and , as trustee, dated as of _________, 199__.
["Pre-Funding Review" means a review conducted by the Review Firm
prior to the Closing Date and each Funding Date with respect to Receivables to
be included in the Trust Fund as of such date and prior to the Closing Date with
respect to certain historical data included in the Prospectus Supplement dated
____________, 199__ (the "Prospectus Supplement"). The Review Firm will review
the Receivable files to determine:
(A) with respect to a randomly selected, statistically valid
sample of such Receivables, whether such Receivables constitute
Eligible Receivables;
(B) with respect to each Receivable, the existence and
delivery to the Trustee of:
(1) the original retail installment sale contract
evidencing such Receivable,
(2) an original certificate or an original or copy of a
guarantee of title or a copy of dealer guarantee of title, and
(3) a copy of an application for, or an instrument
certificate issued by the Risk Default Insurer; and
(C) with respect to the Receivables to be included in the
Trust Fund as of the Closing Date or a Funding Date, as the case may
be, confirmation of certain figures stated on a report substantially
in the form of Exhibit to the [Pooling and Servicing Agreement]
[Trust Agreement].]
"Rating Agency" shall mean ___________________________ or any
successors thereto.
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"Receivable" shall mean any retail installment sale contract and
installment loan identified on Exhibit B hereto which shall be amended from time
to time on Funding Dates.
"Receivables Cash Purchase Price" with respect to each Eligible
Receivable pledged, transferred, assigned and otherwise conveyed on the Closing
Date, and each Eligible Receivable pledged, transferred, assigned and otherwise
conveyed on a Funding Date, shall mean __% of the Principal Amount thereof plus
accrued interest from the respective Cutoff Date to the Closing Date or the
Funding Date, as the case may be.
"Replacement Receivable" shall mean a Receivable which (i)
previously secured a receivable originated by the Originator and (ii) was
repossessed due to a default on such prior receivable or a voluntary return of
such vehicle by the Obligor.
"Reacquisition Event" shall have the meaning specified in Section
7.02 hereof.
["Review Firm" shall mean ________________, its successors and
assigns or another firm of independent certified public accountants selected by
the Depositor]
"Risk Default Insurance Policy" or "Risk Default Policy" means auto
loan protection insurance naming the Trustee as an insured, which covers the
Receivables, and which insurance is currently issued by
_______________________________.
"Risk Default Insurer" means _____________________, its successors
and assigns.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Exhibit B.
"Servicer Files" shall have the meaning specified in the [Pooling
and Servicing Agreement] [Trust Agreement].
"Trust" shall mean the Advanta Auto Receivables Trust 199__-__.
"Trustee" shall mean _______________________________, its successors
and assigns.
"UCC" shall mean the Uniform Commercial Code, as in effect from time
to time in the relevant jurisdictions.
"Underwriter" shall mean _______________, its successors and
assigns.
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ARTICLE II
TRANSFER OF RECEIVABLES
Section 2.01. Transfer of Receivables. On the Closing Date and on
each Funding Date, subject to the terms and conditions of this Agreement, the
Originator agrees to pledge, transfer, assign and otherwise convey to the
Depositor, and the Depositor agrees to acquire from the Originator, Eligible
Receivables and the other Trust Property relating thereto (as defined in Section
2.01(a) below). The Receivables transferred on the Closing Date are identified
in an exhibit substantially in the form of Exhibit B hereto and shall be covered
by an Assignment substantially in the form of Exhibit A hereto. The Receivables
pledged, transferred, assigned and otherwise conveyed on each Funding Date shall
be identified on Schedule I to Exhibit B attached to an Assignment substantially
in the form of Exhibit A hereto.
(a) Initial Transfer of Receivables and Trust Property. On the
Closing Date and simultaneously with the transactions pursuant to the
[Pooling and Servicing Agreement] [Trust Agreement], the Originator shall
pledge, transfer, assign and otherwise convey to the Depositor, without
recourse, a 100% interest in (i) all right, title and interest of the
Originator in and to the Closing Date Receivables, and all moneys due
thereon (with respect to Precomputed Receivables), on and after the Cutoff
Date (ii) the security interest of the Originator in the security
interests in the Financed Vehicles granted by the Obligors pursuant to the
Closing Date Receivables and all certificates of title to such Financed
Vehicles; (iii) the interest of the Originator in any proceeds from claims
on any physical damage, credit life, risk default or disability insurance
policies covering the Financed Vehicles or the Obligors from the Cutoff
Date; and (iv) the proceeds of any and all of the foregoing and any
recourse in equity or by contract against the Originator. (All of the
property identified in this subsection (a) and the following subsection
(c) shall constitute the "Trust Property.")
(b) Receivables Cash Purchase Price--Closing Date. In consideration
for the Receivables and Trust Property described in Section 2.01(a), the
Depositor shall, on the Closing Date, pay to the Originator 100% of the
Receivables Cash Purchase Price in cash by federal wire transfer (same
day) funds.
(c) Transfer of Receivables and Trust Property on Funding Dates. On
each Funding Date, the Originator shall pledge, transfer, assign and
otherwise convey to the Depositor, without recourse, a 100% interest in
(i)
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all right, title and interest of the Originator in and to the Funding Date
Receivables identified on an Exhibit substantially in the form of Schedule
I to Exhibit B hereto delivered on such Funding Date, and all moneys
received thereon subsequent to the respective Cutoff Date; (ii) the
security interest of the Originator in the Financed Vehicles granted by
the Obligors pursuant to such Receivables and the certificates of title to
such Financed Vehicles; (iii) the interest of the Originator in any
proceeds from claims on any physical damage, credit life, risk default or
disability insurance policies covering such Financed Vehicles or such
Obligors from the related Cutoff Date; and (iv) the proceeds of any and
all of the foregoing; provided, however, that (A) the minimum amount of
Receivables pledged, transferred, assigned or otherwise conveyed to the
Depositor on any Funding Date, other than the Final Funding Date, shall be
not less than $____________, (B) the Depositor shall comply with the
requirements specified in Section ___ of the [Pooling and Servicing
Agreement] [Trust Agreement] as a condition to any such pledge, transfer,
assignment or other conveyance and (C) the Pre-Funding Account shall
contain available funds in an amount at least equal to the Receivables
Cash Purchase Price for such Funding Date Receivables immediately prior to
the Funding Event.
(d) Receivables Cash Purchase Price--Funding Date. In consideration
for the Funding Date Receivables and other Trust Property relating thereto
described in Section 2.1(c), upon one Business Days' prior notice given by
the Depositor to the Trustee, the Depositor shall cause the Trustee, on
each Funding Date, to pay to the Originator an amount equal to 100% of the
Receivables Cash Purchase Price in cash by federal wire transfer funds.
The Originator acknowledges that the funds to effect the transfer of the
Funding Date Receivables and other Trust Property relating thereto on each
Funding Date shall be disbursed by the Trustee solely from the Pre-Funding
Account pursuant to Section ______ of the [Pooling and Servicing
Agreement] [Trust Agreement].
(e) Assignment by the Depositor In addition, concurrently with the
transfer by the Depositor of the Receivables to the Trust, on the Closing
Date, the Depositor shall assign to the Originator all of the Depositor's
remaining rights to the Trust Fund and all rights of the Depositor under
the [Pooling and Servicing Agreement] [Trust Agreement].
Section 2.02. The Closing. The transfer of the Receivables shall
take place at a closing (the "Closing") at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date,
simultaneously
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with the closings under: (a) the [Pooling and Servicing Agreement] [Trust
Agreement] pursuant to which (i) the Depositor will assign all of its right,
title and interest in and to the Receivables and other Trust Property to the
Trustee for the benefit of the [Certificateholders] [Noteholders]; and (ii) the
Trustee will deposit the foregoing into the Trust in exchange for the Class __
[Certificates] [Notes]; and (b) the purchase of the [Certificates] [Notes] by
the Class __ [Certificateholders] [Noteholders].
Section 2.03. The Funding Events. The transfer of the Funding Date
Receivables on each Funding Date shall take place at the offices of the Trustee
or at such other location as the Depositor and the Originator may reasonably
agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Originator and for the benefit
of the Trustee, the [Certificateholders] [Noteholders] and the Trust as of the
date hereof and as of the Closing Date and as of each Funding Date:
(a) Organization, Etc. The Depositor is a corporation duly organized
under the laws of the State of Nevada pursuant to its Articles of
Incorporation and is validly existing as a corporation and in good
standing under the laws of the State of Nevada, and has full power and
authority to execute and deliver this Agreement and to perform the terms
and provisions hereof and thereof.
(b) Due Authorization. The execution, delivery and performance by
the Depositor of this Agreement have been duly authorized by all necessary
corporate action, do not require any approval or consent of any
governmental agency or authority, do not and will not conflict with any
material provision of the Articles of Incorporation or Bylaws of the
Depositor, and do not and will not conflict with or result in a breach
which would constitute a material default under any agreement for borrowed
money binding upon or applicable to it or such of its property which is
material to it, or to the best of the Depositor's knowledge, any law or
governmental regulation or court decree applicable to it or such material
property, and this Agreement is the legal, valid and binding obligation of
the Depositor enforceable in accordance with its terms except as the same
may be limited by insolvency, bankruptcy, reorganization or
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other laws relating to or affecting the enforcement of creditors' rights
or by general equity principles.
(c) No Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is presently pending, or
to the knowledge of the Depositor threatened, against the Depositor or its
properties or with respect to this Agreement, which, if adversely
determined would, in the opinion of the Depositor, have a material adverse
effect on the transactions contemplated by this Agreement.
(d) Business Purpose. The Depositor will acquire and transfer the
Receivables for a bona fide business purpose.
Section 3.02. Representations and Warranties of the Originator.
(a) The Originator hereby represents and warrants to the Depositor
and its successors and assigns and for the benefit of the Trustee, the
[Certificateholders] [Noteholders] and the Trust as of the date hereof and
as of each Funding Date:
(i) Organization, Etc. The Originator has been duly organized
and is validly existing as a _______________ in good standing under
the laws of the State of __________, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is presently conducted and had at
all relevant times, and shall have, the power, authority and legal
right to acquire and own the Receivables.
(ii) Due Qualification. The Originator is duly qualified to do
business as a foreign entity in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(iii) Power and Authority. The Originator has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Originator has full power and authority to pledge,
transfer, assign and otherwise convey the property pledged,
transferred, assigned and otherwise conveyed to the Depositor and
has duly authorized such pledge and assignment to the Depositor by
all necessary corporate action; and the execution,
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delivery, and performance of this Agreement have been duly
authorized by all necessary corporate action and the Agreement is
the legal, valid and binding obligation of the Originator
enforceable in accordance with its terms except as the same may be
limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditor's rights or by
general equity principles. The Originator has delivered this
Agreement and any other agreements and documents necessary to
effectuate the transfer contemplated hereby.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms do
not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of
the Originator, or any indenture, agreement or other instrument to
which the Originator 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 this Agreement); nor violate any law or, to
the best of the Originator's knowledge, any order, rule or
regulation applicable to the Originator of any court or of any
federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Originator
or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending or, to the Originator's best knowledge, threatened before
any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Originator
or its properties: (A) asserting the invalidity of this Agreement;
(B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement; or (C) seeking any determination or
ruling that might materially and adversely affect the performance by
the Originator of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) No Consents, Approvals. Neither the execution nor the
delivery by the Originator of this Agreement required the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any
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governmental authority or agency under any existing federal or state
law governing the Originator, except such as have been obtained,
made or taken. The Originator complies in all material respects with
all applicable laws, rules and orders with respect to itself, its
business and properties and the Receivables. The Originator
maintains all applicable permits and certifications.
(vii) No Unpaid Taxes. All tax returns required and due to be
filed by the Originator in any jurisdiction have in fact been filed,
and all taxes, assessments, fees and other governmental charges upon
it or any subsidiary or upon any of their respective properties,
income or franchises, shown to be due and payable on such returns
have been paid. To the best of the Originator's knowledge all such
tax returns were true and correct. Neither the Originator nor any
subsidiary knows of any proposed additional tax assessment against
it in any material amount or of any basis therefor.
(viii) Adequate Provisions for Taxes. The provisions for taxes
on the Originator's books are in accordance with generally accepted
accounting principles.
(ix) Pension/Profit Sharing Plans. No contribution failure has
occurred with respect to any pension or profit sharing plan and all
such plans have been fully funded as of the date of this Agreement.
(x) Trade Names. "_______________________________" is the only
trade name under which the Originator is currently operating its
business and under which the Originator operated its business for
the six years (or such shorter period of time during which the
Originator was in existence) preceding the Closing Date.
(xi) Ability to Perform. There is no material impairment in
the ability of Originator to perform its obligations under this
Agreement.
(xii) Valid Business Reasons; No Fraudulent Transfers. The
Originator has valid business reasons to acquire and pledge,
transfer, assign and otherwise convey the Receivables rather than to
obtain a secured loan with the Receivables as collateral and has
undertaken the transaction
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contemplated herein as principal rather than as agent of any other
person. At the time of the transfer: (i) the Originator transferred
the Receivables to the Depositor without any intent to hinder,
delay, or defraud any current or future creditor of the Originator;
(ii) the Originator was not insolvent or did not become insolvent as
a result of the transfer; (iii) the Originator was not engaged and
was not about to engage in any business or transaction for which any
property remaining with the Originator was an unreasonably small
capital or for which the remaining assets of the Originator were
unreasonably small in relation to the business of the Originator or
the transaction; (iv) the Originator did not intend to incur, and
did not believe or reasonably should not have believed that it would
incur, debts beyond its ability to pay as they become due; and (v)
the consideration paid by the Depositor to the Originator for the
Receivables was equivalent to the fair market value of such
Receivables.
(xiii) Principal Executive Office. Since its inception the
Originator has maintained, and from the date of this Agreement shall
maintain, its principal executive office in the State of __________
and there have been no other locations of the Originator's principal
executive office during the four months preceding the Closing Date.
(b) The Originator makes the following representations and
warranties as to all of the Receivables subject to this Agreement on which
the Depositor relies in accepting the Receivables. Such representations
and warranties speak as of the execution and delivery of this Agreement
and each Funding Date, as the case may be, but shall survive the pledge,
transfer, assignment and other conveyance hereby of the Receivables to the
Depositor and the subsequent assignment and transfer to the Trustee
pursuant to the [Pooling and Servicing Agreement] [Trust Agreement]. The
Originator hereby acknowledges and expressly agrees that any or all of the
Depositor, the Trustee or the [Certificateholders] [Noteholders] may
enforce the Originator's obligations pursuant to Section 7.02 hereof for
any breach of any of the following representations and warranties:
Eligible Receivables. Each Receivable pledged, transferred, assigned
and otherwise conveyed hereunder shall have all of the following characteristics
(any such Receivable referred to hereinafter as an "Eligible Receivable") as of
the Closing Date or as of the Funding Date on which such
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Receivable is pledged, transferred, assigned or otherwise conveyed hereunder, as
the case may be:
(i) Characteristics of Receivables. Each Receivable (a) shall
have been originated in the United States of America by the
Originator or a Dealer for the retail sale of a Financed Vehicle in
the ordinary course of the Originator or such Dealer's business, has
been fully and properly executed by the parties thereto, and, if
originated by a Dealer, has been purchased by the Originator from
such Dealer or has been financed for such Dealer under an existing
agreement with the Originator, (b) shall have created or shall
create a valid, subsisting, and enforceable first priority security
interest in favor of the Dealer in the Financed Vehicle, which
security interest has been assigned by the Dealer to the Originator
and which security interest shall be assigned by the Originator to
the Depositor, (c) is covered by a Risk Default Insurance Policy and
by a VSI Insurance Policy, as evidenced by certificate(s) of the
insurer dated as of and delivered to the Trustee on the Closing
Date, (d) shall contain customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the
security, (e) shall provide for level monthly payments (provided
that the payment in the first or last month in the life of the
Receivable may be minimally different from the level payment) that
fully amortize the Amount Financed by maturity and yield interest at
the Annual Percentage Rate, and (f) provides in the case of
Precomputed Receivables, in the event that any such contract is
prepaid, for a prepayment that fully pays the principal amount plus
unearned interest to the next Scheduled Payment.
(ii) Schedule of Receivables. The information set forth in
Exhibit B to this Agreement with respect to the Receivables acquired
on such date shall be true and correct in all material respects as
of the close of business on the Cutoff Date, and no selection
procedures believed to be adverse to the [Certificateholders]
[Noteholders] have been utilized in selecting the Receivables. The
information on the computer tape regarding the Receivables made
available to the Depositor and its assigns is true and correct in
all material respects.
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(iii) Form of Receivables. Each of the Receivables is
substantially in the form of Exhibit C attached hereto.
(iv) Compliance with Law. Each Receivable and the sale of the
Financed Vehicle shall (A) have complied at the time it was
originated or made and at the Closing Date or Funding Date, as the
case may be, shall comply in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including, without limitation, usury laws,
the Fair Credit Reporting Act, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity 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 California
Consumer Credit Act, 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 and (B) does
not contravene any applicable contracts to which the Originator is a
party and no party to such contract is in violation of any
applicable law, rule or regulation which is material to the
Receivable or the sale of the Financed Vehicle.
(v) Binding Obligation. Each Receivable shall represent the
genuine, legal, valid and binding payment obligation in writing of
the Obligor, enforceable by the holder thereof in accordance with
its terms.
(vi) No Government Obligor. None of the Receivables shall be
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.
(vii) Security Interest in Financed Vehicle. Immediately prior
to the pledge, transfer, assignment and other conveyance thereof,
each Receivable shall be secured by a validly perfected first
security interest in the Financed Vehicle in favor of the Originator
as secured party or all necessary and appropriate actions shall have
been commenced that would result in the valid perfection of a first
security interest in the Financed Vehicle upon completion of
processing by the applicable state agency. The Originator shall
cause each certificate of title to be delivered to the Custodian
pursuant to Section ____ of the
13
[Pooling and Servicing Agreement] [Trust Agreement], together with a
power of attorney, duly executed by the Originator in favor of the
Trustee, which power of attorney shall be sufficient to grant a
validly perfected first security interest in the Financed Vehicles
in favor of the Trustee, as Secured Party.
(viii) 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.
(ix) No Waiver. No provision of a Receivable has been waived,
impaired, altered or modified in any respect except in accordance
with the Servicing Agreement, the substance of which is reflected in
the Schedule of Receivables as it relates to the information
included thereon.
(x) No Amendments. No Receivable has been amended such that
either the original Scheduled Payment or the number of the
originally scheduled due dates have been increased except as
permitted under the terms of the Risk Default Policy covering such
Receivable.
(xi) No Defenses. No right of rescission, recoupment, setoff,
counterclaim or defense has been asserted or threatened with respect
to any Receivable.
(xii) No Liens. No liens or claims shall have been filed for
work, labor or materials relating to any Financed Vehicle that would
be Liens prior to, or equal or coordinate with, the security
interest in a Financed Vehicle granted by the related Obligor
pursuant to a Receivable, nor has any Receivable been satisfied,
subordinated or rescinded.
(xiii) No Default. Except for payment delinquencies continuing
for a period of not more than 30 days as of the Cutoff Date, no
default, breach, violation or event permitting acceleration under
the terms of any Receivable has occurred; and no continuing
condition that with notice or the lapse of time would constitute a
default, breach, violation or event permitting acceleration under
the terms of any Receivable has arisen, and the Originator has not
waived any of the foregoing. There has not been any other default or
delinquency
14
under the terms of the Receivable that remained uncured for more
than thirty (30) days after notice to the Obligor. As of such date,
the Originator has no knowledge of any reason why any Receivable
would not be paid in full.
(xiv) Insurance. The Originator, in accordance with its
customary procedures, has (A) required that each Obligor obtain, and
has determined that each Obligor has obtained, physical damage
insurance covering the Financed Vehicle as of the execution of the
Receivable insuring repair or replacement of such Financed Vehicle
subject to a deductibility not in excess of $1,000; and (B) obtained
a Risk Default Policy and a VSI Policy covering each of the
Receivables as of the Closing Date or Funding Date, as the case may
be, and until each Receivable has been paid in full.
(xv) Title. Immediately prior to the transfer and assignment
herein contemplated, the Originator had good and marketable title to
each Receivable free and clear of all Liens and rights of others
and, immediately upon the transfer thereof, the Depositor will have
good and marketable title to each Receivable, free and clear of all
Liens and rights of others except for certain Originator investors'
liens or liens of certain financial institutions, all of which will
be released prior to conveyance hereunder, and the security interest
in the Financed Vehicle and other underlying collateral has been
validly perfected under the UCC and other applicable law, if any.
(xvi) Lawful Assignment. No Receivable shall have been
originated in, or is subject to the laws of, any jurisdiction under
which the pledge, transfer, assignment or other conveyance of such
Receivable under this Agreement or pursuant to transfers of the
[Certificates] [Notes] would be unlawful, void or voidable.
(xvii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Depositor a first perfected ownership interest in the Receivables
shall have been made.
(xviii) One Original. There shall be only one original of the
retail installment sale contract evidencing each Receivable.
15
(xix) Down Payment. At least __% of the Receivables included
in the Trust Fund may have a down payment of at least __% of the
total purchase price of the related Finance Vehicle; up to __% of
the Receivables included in the Trust Fund may have a down payment
of between __% and __% of the total purchase of the related Financed
Vehicle; provided, that no Receivable included in the Trust Fund
shall have a down payment of less than __% of the purchase price of
the related Financed Vehicle.
(xx) Maturity of Receivables. Each Receivable shall have an
original maturity of not more than 61 months; the weighted average
original term to maturity of the Receivables to be acquired on the
Closing Date shall be __ months as of the Cutoff Date, while the
weighted average remaining term to maturity as of such Cutoff Date
for such Receivables is __ months; the remaining maturity of each
Receivable shall be 61 months or less as of the respective Cutoff
Date.
(xxi) Scheduled Payments. Each Receivable which is acquired on
the Closing Date shall have an outstanding Principal Balance of at
least $__________, a next scheduled payment due date on or prior to
_________, 199__ and no Receivable whenever acquired shall have a
payment that is more than 30 days overdue as of the applicable
Cutoff Date; and shall have a final scheduled payment date no later
than the Final Scheduled Distribution Date.
(xxii) Monthly Payments. Each Receivable shall provide for
level monthly payments (provided that the payment in the first or
last month in the life of the Receivable may be minimally different
from such level payment) which fully amortize the amount financed
over the original term; [provided, however, that, as permitted by
the terms of the Risk Default Policy, each Receivable may be
extended for one month for each 12 months in the Receivable's term
provided, that extensions are limited to two, one month extensions
in any consecutive 12 month period; provided, further, that a
Receivable cannot be extended unless six consecutive payments have
been made by the Obligor; further provided, however, that at the
time the extension is made, a sufficient amount of interest due must
be collected to forward the due date of the Receivable.]
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(xxiii) Remaining Maturity. Each Receivable shall have a
remaining maturity of __ months or less as of the respective Cutoff
Date, and the latest scheduled maturity of any Receivable acquired
on the final Funding Date is no later than ________, 20__.
(xxiv) Financing. ___% of the Receivables shall represent
Precomputed Receivables.
(xxv) Bankruptcy Proceeding. No Receivable as of the Cutoff
Date shall be noted in the Originator's records as a dischargeable
debt under a bankruptcy proceeding.
(xxvi) Chattel Paper, Valid and Binding. Each Receivable
constitutes "chattel paper" as deemed in the UCC and is legal, valid
and binding in accordance with its terms.
(xxvii) State of Origination. At the time of origination, each
Receivable was originated by the Originator or a Dealer located in
the State of _________; provided, however, that no more than ___% of
the Principal Balance of the Receivable included in the Trust Fund
on the Closing Date or any Funding Date shall be Replacement
Receivables.
(xxviii) Age of Financed Vehicles. Approximately _____% of the
Receivables acquired on the Closing Date relate to new Financed
Vehicles and approximately ___% related to used Financed Vehicles.
(xxix) No Future Advances. The full principal amount of each
Receivable has been advanced to each Obligor or advanced in
accordance with the directions of each such Obligor, and there is no
requirement for future advances thereunder. The Obligor with respect
to the Receivable does not have any options under their Receivable
to borrow from any person additional funds secured by the Financed
Vehicle. The Principal Balance of each Receivable as of the Closing
Date is fully secured by the related Financed Vehicle.
(xxx) Underwriting Guidelines. Each Receivable has been
originated in accordance with the underwriting guidelines of the
Originator, a copy of which has been provided to the Underwriter,
and in accordance with the underwriting guidelines established by
the Risk Default Insurer, which
17
guidelines include, but are not limited to, the following:
(A) the purchase of the Financed Vehicle by the Obligor, at
the time of funding of the Receivable, was affordable to
the Obligor based upon the Originator's underwriting
guidelines with respect to discretionary income; and
(B) at the time of funding of the Receivable, the Financed
Vehicle was purchased from, and the Receivable originated
by, the Originator or a Dealer located in the State of
___________.
(xxxi) Financed Vehicle in Good Repair. Each Financed Vehicle
is in good repair and working order.
(xxxii) Principal Balance. No Receivable has a Principal
Balance which includes capitalized interest, physical damage
insurance and/or late charges.
(xxxiii) Servicing. At the Closing Date, each Receivable was
being serviced by a Servicer.
(xxxiv) Eligible Loan. Each Receivable constitutes an
"Eligible Loan" as defined in and for purposes for the Risk Default
Policy.
(xxxv) Original Principal Amount. With respect to Receivables
acquired on the Closing Date or a Funding Date, as the case may be,
the original principal amount of each Receivable was not more than
(A) in the case of new Financed Vehicles, ___% of the manufacturer's
suggested retail price or, (B) in the case of used Financed
Vehicles, ___% of the retail value of the Financed Vehicle at the
time of origination of the Receivable as set forth in the ▇▇▇▇▇▇
"Blue Book" for the appropriate region.
(xxxvi) Agreement. The representations and warranties of the
Originators in this Agreement shall be true.
(xxxvii) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Originator
threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction
18
over the Originator or its properties: (A) asserting the invalidity
of any of the Receivables; (B) seeking to prevent the enforcement of
any of the Receivables; of (C) seeking any determination or ruling
that might materially and adversely affect the payment on or
enforceability of any Receivable.
(xxxviii) Location of Servicer Files. The Servicer Files shall
be kept at the location listed in Schedule A hereto provided that
the Servicer Files shall not include (A) the original titles or the
original or copies of the dealer blanket guarantees of title with
respect to the Financed Vehicles, (B) the original retail
installment sale contracts evidencing the Receivables and (C)
original instrument certificates or copies of applications for
instrument certificates under the Risk Default Insurance Policy,
which documents shall be kept at an office of the Custodian.
(xxxix) Balance of Receivables. No Receivable which is
acquired on the Closing Date shall have an outstanding Principal
Balance in excess of $__________ as of the Cutoff Date with respect
to the Closing Date.
(xl) Insurance Coverage. Each Receivable shall be covered, as
of the Closing Date or as of a Funding Date, as the case may be, and
throughout the shorter of the term of the Trust or the term of the
Receivable, under a Risk Default Insurance Policy and a VSI
Insurance Policy, as evidenced by copies of applications for, or
original instrument certificates from the Risk Default Insurer
delivered to the Trustee on the Closing Date or a Funding Date, as
the case may be; provided, however, that any original instrument
certificate of Risk Default Insurance not so delivered on the
Closing Date or a Funding Date, as the case may be, shall be
delivered from the Originator to the Trustee within 45 days after
the Closing Date or a Funding Date, as the case may be; provided,
further, that for any original instrument certificate not so
delivered to the Trustee, the Originator shall be deemed to be in
breach of its representations and warranties contained in this
Section 3.02, and, unless such breach is cured within the cure
period defined in Section 7.02 hereof, such occurrence shall cause a
Reacquisition Event (as defined in Section 7.02). Prior to the
Closing Date or a Funding Date, as the case may be, a request shall
have been made to have the Trustee
19
named as an additional insured as of the Closing Date or as of a
Funding Date, as the case may be, and as of such date, the Trustee
shall be an additional named insured on each such policy of
insurance; provided, however, that the Originator shall assign to
the Trustee for the benefit of the [Certificateholders]
[Noteholders] any proceeds received by the Originator as a named
insured under either of such insurance policies with respect to a
Receivable from the applicable Cutoff Date; provided, further, that
the Trustee shall have no duties or obligations of a named insured
on any such policy of insurance.
(xli) Original Titles. On the Closing Date or a Funding Date,
as the case may be, the Originator shall deliver or cause to be
delivered to the Trustee an original certificate or a copy of a
dealer blanket guarantee of title for each Financed Vehicle relating
to each Receivable pledged, transferred, assigned and conveyed
hereunder; provided, however, that any original certificate of title
not so delivered on the Closing Date or a Funding Date, as the case
may be, due to the fact that such title has not yet been issued by a
state title registration agency and delivered to the Originator as
of the Closing Date or Funding Date, as the case may be, shall be
delivered by the Originator to the Trustee within 135 days after the
Closing Date or a Funding Date, as the case may be; provided,
further, that for any original certificate of title not so delivered
to the Trustee, the Originator shall be obligated to reacquire such
Receivable pursuant to Section 7.02 hereof.
(xlii) Dealer Blanket Guarantee of Title. A dealer blanket
guarantee of title has been executed for each Receivable conveyed
hereunder.
(xliii) Not Previously Past Due. No Receivable has been more
than three times past due over 60 days or more than two times past
due over 90 days, nor has any Receivable been more than 30 days past
due as of the Closing Date or a Funding Date, as the case may be.
(xliv) No Litigation. No Receivable has been in litigation or
restructured.
(xlv) No Charge Off. No Receivable has been charged off for
accounting purposes by the Originator.
20
(xlvi) Normal Procedures. Each Receivable has been
administered pursuant to the Originator's normal credit,
administration, collection and charge-off procedures, which
procedures are satisfactory to the Depositor.
(xlvii) No Fraud, Misrepresentation. No Receivable has been
originated with any fraud or misrepresentation.
(xlviii) Payments Received. The Originator has not received
any payment from any payor other than the Obligor.
(xlix) Prepayment. The prepayment from the Obligor under a
related Precomputed Receivable is equal to or greater than the
Principal Balance of such Precomputed Receivable at the Closing Date
or at any date of determination thereafter, as applicable.
(l) Eligibility Criteria. Each Receivable meets the
eligibility criteria with respect to each of the Risk Default
Insurance Policy and the VSI Insurance Policy, including, but not
limited to, the receipt in full of the applicable down payment with
respect to such Receivable and no deferment with respect to such
down payment has been granted.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligation of the Depositor. The
obligation of the Depositor to take receipt of the Receivables under this
Agreement is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Originator hereunder shall be true and correct on the
Closing Date or the Funding Date, as the case may be, with the same effect
as if then made, and the Originator shall have performed all obligations
to be performed by it hereunder on or prior to the Closing Date or the
Funding Date, as the case may be.
(b) Files Marked; Files and Records owned by Trust. The Originator
shall, at its own expense, on or prior to the Closing Date or the Funding
Date, as the case may be, indicate in its files that receivables created
in connection with the Receivables have been assigned to the Depositor
pursuant to this Agreement and the Originator
21
shall deliver to the Depositor the Schedule of Receivables certified by
the Originator to be true, correct and complete. Further, the Originator
hereby agrees that the computer files and other physical records of the
Receivables maintained by the Originator will bear an indication
reflecting that the Receivables and all documents held by the Originator
pursuant to a certain Servicing Agreement or otherwise are pledged to the
Trust.
(c) Documents to be Delivered by the Originator at the Closing and
on each Funding Date.
(i) The Assignment. At the Closing and on each Funding Date,
the Originator will execute and deliver the Assignment. The
Assignment shall be substantially in the form of Exhibit A hereto.
(ii) Original Receivables,- Original Titles. At the Closing
and on each Funding Date, the Originator shall deliver to the
Trustee for the benefit of the Depositor and its assigns (A) the
original retail installment sale contracts evidencing such
Receivable, (B) the original certificate or a copy of dealer blanket
guarantee of title for each Financed Vehicle relating to each such
Receivable sold hereunder, and (C) original or copies of
applications for instrument certificates under the Risk Default
Policy, which delivery shall be accompanied by a Certificate of
Delivery substantially in the form of Exhibit E-1 to the Initial
Purchase Agreement; provided, however, that any original certificate
of title not so delivered at Closing due to the fact that such title
has not yet been issued by a state title registration agency and
delivered to the Originator as of the Closing Date or a Funding
Date, as the case may be, shall be delivered by the Originator to
the Depositor, for immediate delivery to the Trustee, within 135
days of the Closing Date or a Funding Date, as the case may be;
provided, further, that for any certificate of title not so
delivered to the Trustee, the Originator shall be obligated to
reacquire such Receivable pursuant to Section 7.02 hereof.
(iii) Evidence of UCC Filings. On or prior to the Closing
Date, the Originator shall record and file, at its own expense, (A)
UCC-3 termination statements in each jurisdiction in which required
by applicable law, to release any prior security interests in the
Receivables granted by the Originator and (B) a UCC financing
statement in
22
each jurisdiction in which required by applicable law, executed by
the Originator, as seller or debtor, and naming the Depositor, as
purchaser or secured party, identifying the Receivables and the
other Trust Property as collateral, meeting the requirements of the
laws of each such jurisdiction and in such manner as is necessary to
perfect the pledge, transfer, assignment and conveyance of such
Receivables to the Depositor. The Originator shall deliver a
file-stamped copy, or other evidence satisfactory to the Depositor
of such filing, to the Depositor on or prior to the Closing Date.
(iv) Evidence of Insurance and Payment. On the Closing Date
and on each Funding Date, the Originator shall deliver to the
Depositor (i) certificates of the respective insurance companies
indicating that each Receivable is covered by Risk Default Insurance
and VSI Insurance and (ii) evidence of payment in full of all
premiums due under either or both of the Risk Default Insurance and
VSI Insurance Policies with respect to the Receivables.
(v) Other Documents. Such other documents as the Depositor may
reasonably request.
(d) Other Transactions. The transactions contemplated by the
[Pooling and Servicing Agreement] [Trust Agreement] shall be consummated
on the Closing Date.
(e) [Review of Receivables. Prior to the Closing Date and each
Funding Date, the Depositor shall have received satisfactory results from
the Review ▇▇▇▇ of the Pre-Funding Review. The Depositor further agrees to
give written notice of the results of the Pre-Funding Review to the
Originator.]
Section 4.02. Conditions to Obligation of the Originator. The
obligation of the Originator to pledge, transfer, assign or otherwise convey the
Receivables on the Closing Date or a Funding Date, as the case may be, to the
Depositor is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The warranties of the
Depositor hereunder shall be true and correct on the Closing Date or the
Funding Date, as the case may be, and the Depositor shall have performed
all obligations to be performed by it hereunder on or prior to the Closing
Date or the Funding Date, as the case may be.
23
(b) Receivables Cash Purchase Price. At the Closing Date or the
Funding Date, as the case may be, the Depositor will deliver to the
Originator the Receivables Cash Purchase Price, as provided in Section
2.01(b).
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ORIGINATOR
The Originator agrees with the Depositor as follows; provided,
however, that to the extent that any provision of this Article V conflicts with
any provision of the [Pooling and Servicing Agreement] [Trust Agreement], the
[Pooling and Servicing Agreement] [Trust Agreement] shall govern:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Originator shall cause all financing statements and
continuation statements and any other necessary documents covering the
right, title and interest of the Depositor in and to the Receivables, and
the other 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 Depositor hereunder to the Receivables and the other Trust
Property. The Originator shall deliver to the Depositor 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 Depositor shall cooperate fully with the
Originator in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of
this Section 5.01(a).
(b) Name Change. Within 15 days after the Originator makes any
change in its name, identity or corporate structure which 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 Originator shall give the Depositor
notice of any such change and no later than five days after the effective
date thereof, shall file such financing statements or amendments as may be
necessary to continue the perfection of the Depositor's security interest
in the Trust Property.
Section 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the [Pooling and
24
Servicing Agreement] [Trust Agreement], the Originator will not pledge,
transfer, assign or otherwise convey to any other person, or grant, create,
incur, assume or suffer to exist any lien on any interest therein, and the
Originator shall defend the right, title, and interest of the Depositor in, to
and under such Receivables against all claims of third parties claiming through
or under the Originator; provided, however, that the Originator's obligations
under this Section 5.02 shall terminate upon the termination of the Trust
pursuant to the [Pooling and Servicing Agreement] [Trust Agreement].
Section 5.03. Principal Executive Office. Since its inception, the
Originator has maintained, and from the date of this Agreement, shall maintain,
its principal executive office in the State of _____.
Section 5.04. Trustee as Additional Insured. The Originator shall
cause notice to be given to the insurers under the Risk Default Policy and the
VSI Policy to identify the Trustee as an additional named insured, as its
interest may appear, under each such policy. The Originator hereby assigns to
the Trustee for the benefit of the [Certificateholders] [Noteholders] any and
all proceeds received by the Originator as named insured with respect to a
Receivable under the terms of either of the foregoing insurance policies for
claims made from the Cutoff Date.
Section 5.05. Costs and Expenses. The Originator agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Depositor's right, title and interest in and to the
Receivables.
Section 5.06. No Waiver. The Originator shall not waive any default,
breach, violation or event permitting acceleration under the terms of any
Receivable.
Section 5.07. Location of Servicer Files. The Servicer Files,
exclusive of the original titles to the Financed Vehicles and exclusive of the
originals of the Receivables, are to be kept at the location listed in Exhibit D
hereto. The original titles and the originals of the Receivables are to be kept
at the principal executive office of the Custodian as specified in the [Pooling
and Servicing Agreement] [Trust Agreement].
Section 5.08. Transfer of Receivables. The Originator will take no
action inconsistent with the pledge, transfer and assignment of the Receivables
to the Depositor If a third party, including a potential purchaser of the
Receivables, should inquire, the Originator will promptly indicate that the
Receivables have been pledged, transferred and assigned to the Depositor
25
Section 5.09. Originator's Records. This Agreement and all related
documents describe the transfer of the Receivables from the Originator as a
pledge by the Originator to the Depositor
Section 5.10. Transfer of Additional Receivables. The Originator
shall use its best efforts in good faith to make available for pledge, transfer,
assignment and other conveyance to the Depositor in accordance with Section 2.01
hereof additional Receivables originated or acquired by the Originator or its
Affiliates which are Eligible Receivables. This covenant shall be for the
benefit of the Depositor, the Trustee and the [Certificateholders]
[Noteholders], and any other such Person may enforce its legal or eligible
rights, remedies or claims hereunder.
Section 5.11. No Bankruptcy Petition. The Originator covenants and
agrees that prior to the date which is one year and one day after the payment in
full of all securities issued by the Depositor or by a trust for which the
Depositor was the depositor which securities were rated by any nationally
recognized statistical rating organization it will not institute any bankruptcy
procedures, or other proceedings under any federal or state bankruptcy law.
Section 5.12. Covenants Regarding Operations.
(a) The Originator shall not engage in any business or activity
other than in connection with or relating to the issuance of the Class __
[Certificates] [Notes], except as otherwise may be permitted herein or in
the Articles of Incorporation of the Originator.
(b) The Originator shall not consolidate or merge with or into any
other entity or convey or transfer its properties and assets substantially
as an entirety to any entity unless (i) the entity (if other than the
Originator) formed or surviving such consolidation or merger, or that
acquires by conveyance or transfer the properties and assets of the
Originator substantially as an entirety, shall be organized and existing
under the laws of the United States of America or any State thereof or the
District of Columbia, and shall expressly assume in form satisfactory to
the Rating Agency, the due and punctual payment of the Class __
[Certificates] [Notes] then outstanding and the performance of every
covenant on the part of the Originator to be performed or observed
pursuant to this Agreement and the [Pooling and Servicing Agreement]
[Trust Agreement], (ii) immediately after giving effect to such
transaction, no default or event of default under this Agreement shall
have occurred and be continuing and (iii) the Originator shall have
delivered to the Rating Agency and the Trustee an officer's
26
certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance or transfer comply with this Agreement.
(c) So long as any Class A [Certificates] [Notes] are outstanding,
the Originator shall not dissolve or liquidate, in whole or in part,
except (i) as permitted in paragraph (b) above or (ii) with the prior
written consent of the Trustee and prior written confirmation from the
Rating Agency (a copy of which shall be provided to the Trustee by the
Originator) that such dissolution or liquidation will have no adverse
effect on the rating assigned to the Class __ [Certificates] [Notes].
(d) The funds and other assets of the Originator shall not be
commingled with those of any other corporation, entity or Person,
including, but not limited to, the parents or affiliates of the
Originator.
ARTICLE VI
INDEMNIFICATION
The Originator shall indemnify the Depositor for any liability as a
result of the failure of a Receivable to be originated in compliance with all
requirements of law and for any by each of any of its representations and
warranties contained herein. These indemnity obligations shall be in addition to
any obligation that the Originator may otherwise have.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Obligations of Originator. The obligations of the
Originator under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
Section 7.02. Reacquisition Events. The Originator hereby covenants
and agrees with the Depositor for the benefit of the Depositor, the Trustee and
the [Certificateholders] [Noteholders] that upon the occurrence of (i) a breach
of any of the Originator's representations and warranties contained in Section
3.02(b) hereof with respect to a Receivable or (ii) the failure of the
Originator to deliver original certificates of title pursuant to Section
4.01(c)(ii), and unless (i) such breach shall have been cured by the thirtieth
day following the discovery or receipt by the Originator of notice from the
Depositor or the Trustee thereof or (ii) such failure to deliver shall have been
cured by the
27
seventh Business Day following receipt by the Originator of notice from the
Depositor or the Trustee of such non-delivery, the Originator shall be obligated
to reacquire such Receivable hereunder from the Depositor ("Reacquisition
Event"), at the Repurchase Price as defined in the Initial Purchase Agreement on
a date which shall be no later than (i) the fifth Business Day following such
30-day cure period or (ii) relating to the non-delivery on the fifth Business
Day following such seven Business Day cure period. The reacquisition obligation
of the Originator shall constitute the sole remedy to the [Certificateholders]
[Noteholders], or to the Trustee, or to the Depositor against the Originator
with respect to any Reacquisition Event. The Originator acknowledges that the
Trustee and the [Certificateholders] [Noteholders] are beneficiaries with
respect to the rights of the Depositor hereunder and that the Trustee or the
[Certificateholders] [Noteholders] may enforce the rights of the Depositor with
respect thereto.
Section 7.03. The Depositor's Assignment of Reacquired Receivables.
With respect to all Receivables reacquired by the Originator pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Originator all the Depositor's right, title and interest in and
to such Receivables, and all security and documents relating thereto.
Section 7.04. Trust. The Originator acknowledges that the Depositor
will, pursuant to the [Pooling and Servicing Agreement] [Trust Agreement],
assign the Receivables to the Trust and assign its rights under this Agreement
to the Trustee for the benefit of the [Certificateholder] [Noteholder]s, and
that the representations and warranties contained in this Agreement and the
rights of the Depositor under Section 7.02 hereof are intended to benefit such
Trust and any [Certificateholders] [Noteholders] and the Trustee and any
[Certificateholders] [Noteholders] shall have the right to enforce the same. The
Originator hereby consents to such transfers and assignments.
Section 7.05. Amendment. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Originator and
the Depositor; provided, however, that any such amendment that materially
adversely affects the rights of the [Certificateholder] [Noteholder] under the
[Pooling and Servicing Agreement] [Trust Agreement] must be consented to by the
]Holders of at least 51% of the Class __ [Certificates] [Notes].
Section 7.06. Waivers. No failure or delay on the part of the
Depositor 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
28
any such power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy.
Section 7.07. Notices. All communications and notices pursuant
hereto to any 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.
Section 7.08. Costs and Expenses. The Originator will pay all
expenses, including fees and expenses of counsel, incident to the performance of
its obligations under this Agreement and the Originator agrees to pay all
reasonable out-of-pocket costs in connection with the enforcement of any
obligation of the Originator hereunder.
Section 7.09. Representations. The respective agreements,
representations, warranties and other statements by the Originator and the
Depositor set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the closing under Section 2.02 hereof.
Section 7.10. Confidential Information. The Depositor 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 Depositor's rights
hereunder, under the Receivable, under any [Pooling and Servicing Agreement]
[Trust Agreement] or as required by law.
Section 7.11. 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 7.12. Governing Law. This Agreement and the Assignment shall
be governed by and construed in accordance with the internal laws of the State
of [New York].
Section 7.13. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
29
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.
[ORIGINATOR]
By_________________________________________
Name:
Title:
ADVANTA AUTO FINANCE CORPORATION
By_________________________________________
Name:
Title:
30
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Receivables Acquisition
Agreement dated as of _______, 199__, by and between the undersigned and Advanta
Auto Finance Corporation ("the Depositor") (the "Receivables Acquisition
Agreement"), the undersigned (the "Originator") does hereby (A) pledge,
transfer, assign and otherwise convey unto the Depositor, without recourse
(capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Receivables Acquisition Agreement), (i) all right, title
and interest of the undersigned in and to the Receivables identified on the
Schedule attached as Exhibit B to the Receivables Acquisition Agreement and all
moneys due thereon, on and after the Cutoff Date; (ii) the interest of the
Originator in the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Receivables and the certificates of title to such
Financed Vehicles; (iii) the interest of the Originator in any proceeds from
claims on any physical damage, credit. life, risk default or disability
insurance policies covering the Financed Vehicles or Obligors; and (iv) the
proceeds of any and all of the foregoing and any recourse in equity or by
contract against the Originator and (B) grant to the Trustee a security interest
in the Reserve Fund (as defined in the [[Pooling and Servicing Agreement] [Trust
Agreement]) and the Residual Interest (as defined in the [Pooling and Servicing
Agreement] [Trust Agreement]). The Originator hereby acknowledges that the
Trustee is entitled to hold such Reserve Fund and Residual Interest pending
distributions as stated in Section _____ of the [Pooling and Servicing
Agreement] [Trust Agreement]. The foregoing assignment does not constitute and
is not intended to result in any assumption by the Depositor of any obligation
of the undersigned to the Obligors, insurers or any other person in connection
with the Receivables, Custodian Files (as defined in the [Pooling and Servicing
Agreement] [Trust Agreement]), Servicer Fees (as defined in the [Pooling and
Servicing Agreement] [Trust Agreement]), any insurance policies or any agreement
or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Receivables Acquisition Agreement and is to be governed by the Receivables
Acquisition Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _________, 199__.
[ORIGINATOR]
By_________________________________________
Name:
Title:
A-2
EXHIBIT B
SCHEDULE OF RECEIVABLES