Exhibit 10.3
FORM OF RECEIVABLES PURCHASE AGREEMENT
between
REGIONS BANK,
as Seller,
and
REGIONS ACCEPTANCE LLC,
as Depositor
Dated as of [___]
Table of Contents
Page
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Article I
Certain Definitions
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables...................................3
Section 2.02. The Closing.................................................4
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor.............4
Section 3.02. Representations and Warranties of the Seller................5
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor..................14
Section 4.02. Conditions to Obligation of the Seller.....................15
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and Interest....................17
Section 5.02. Other Liens or Interests...................................17
Section 5.03. Costs and Expenses.........................................17
Section 5.04. Hold Harmless..............................................18
Article VI
Miscellaneous Provisions
Section 6.01. Obligations of Seller......................................18
Section 6.02. Repurchase Events..........................................18
Section 6.03. Depositor Assignment of Repurchased Receivables............18
Section 6.04. Transfer to the Issuer.....................................18
Section 6.05. Amendment..................................................19
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Section 6.06. Waivers....................................................19
Section 6.07. Notices....................................................19
Section 6.08. Costs and Expenses.........................................20
Section 6.09. Representations of the Seller and the Depositor............20
Section 6.10. Confidential Information...................................20
Section 6.11. Headings and Cross-References..............................20
Section 6.12. GOVERNING LAW..............................................20
Section 6.13. Counterparts...............................................20
Section 6.14. Third Party Beneficiary....................................20
Section 6.15. No Proceedings.............................................20
Exhibit A Matters Addressed in Opinion of Seller's Counsel
Schedule I Initial Data Schedule
Schedule II Final Schedule of Receivables
Schedule III Perfection Representations, Warranties and Covenants
Schedule IV Location of Receivable Files
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RECEIVABLES PURCHASE AGREEMENT dated as of [___], between REGIONS
BANK, an Alabama state banking corporation as seller (the "Seller") and
REGIONS ACCEPTANCE LLC, a Delaware limited liability company, as depositor
(the "Depositor").
RECITALS
WHEREAS, in the regular course of its business, the Seller has
originated or purchased certain [retail installment sales contracts, retail
installment loans, purchase money notes or other notes] secured by [new and
used automobiles, light-duty trucks, motorcycles, recreational vehicles, vans,
minivans and/or sport utility vehicles];
WHEREAS, the Seller and the Depositor wish to set forth the terms
pursuant to which such contracts and loan notes are to be sold by the Seller
to the Depositor; and
WHEREAS, the Depositor intends, concurrently with its purchase
hereunder, to convey all of its right, title and interest in and to all of
such contracts and loan notes to [ISSUER] (the "Issuer") pursuant to a Sale
and Servicing Agreement dated as of [___] (the "Sale and Servicing
Agreement"), by and among the Issuer, the Depositor, the Seller, Regions Bank,
as Master Servicer, Administrator and Custodian, and [INDENTURE TRUSTEE], as
Indenture Trustee, and the Issuer intends to pledge all of its right, title
and interest in and to such contracts and loan notes to the Indenture Trustee
pursuant to the Indenture dated as of [___] (the "Indenture"), by and between
the Issuer and the Indenture Trustee.
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 meanings assigned
thereto in the Sale and Servicing Agreement or the Indenture. 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):
"8-K Filing" shall mean the filing by the Depositor, dated [___],
with the United States Securities and Exchange Commission on Form 8-K
concerning the Receivables listed on Schedule B hereto.
"Agreement" shall mean this Receivables Purchase Agreement, as the
same may be amended and supplemented from time to time.
"Conveyed Assets" shall have the meaning set forth in Section 2.01.
"Depositor" shall mean Regions Acceptance LLC, a Delaware limited
liability company and its successors and assigns.
"Indenture" shall have the meaning set forth in the recitals.
"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.
"Prospectus" shall have the meaning set forth in the Underwriting
Agreement.
"Prospectus Supplement" means the Prospectus Supplement dated [___]
relating to [ISSUER].
"Receivables" shall mean the Receivables listed on Schedule II hereto
(which Schedule may be in the form of microfiche).
"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.
"Registration Statement" means Registration Statement No. 333-100339
filed by the Depositor with the Securities and Exchange Commission in the form
in which it became effective on [___].
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Sale and Servicing Agreement" shall have the meaning set forth in
the recitals.
"Schedules of Receivables" shall mean the lists of Receivables
annexed hereto as Schedule I and Schedule II (which Schedules may be in the
form of microfiche).
"Seller" shall mean Regions Bank and its successors and assigns.
"Subsequent Receivable" shall mean any Receivable originated after
the Initial Cutoff Date.
"Transfer Date" shall mean the Closing Date.
"Underwriters" means each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.,
[____________], [___] and [___].
"Underwriting Agreement" means the Underwriting Agreement dated
[___] relating to [ISSUER] between the Depositor and the Underwriters.
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Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon the
order of the Seller on the Closing Date of (i) $[___] (the "Purchase Price") and
(ii) an uncertificated residual beneficial ownership interest in the Trust,
the Seller does hereby transfer, set over and otherwise convey to the
Depositor, without recourse (subject to the obligations of the Seller set
forth herein) all right, title, and interest of the Seller in and to:
(i) the Receivables and all monies received thereon after the
Initial Cutoff Date in the case of Receivables originated on or
before the Initial Cutoff Date and all monies received thereon on or
after the date of origination in the case of Receivables originated
after the Initial Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by the related 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 any vendor's single interest or
other collateral protection insurance policy;
(iv) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Seller;
(v) the proceeds from any Master Servicer's errors and
omissions protection policy, any fidelity bond and any blanket
physical damage policy, to the extent such proceeds relate to any
Financed Vehicle;
(vi) all documents and other items contained in the Receivable
Files;
(vii) the proceeds of any and all of the foregoing
(collectively, with the assets listed in clauses (i) through (vii)
above, the "Conveyed Assets").
(b) The Seller and the Depositor intend that the transfer of assets
by the Seller to the Depositor pursuant to this Agreement be a sale of the
ownership interest in such assets to the Depositor (for all non-tax purposes),
rather than the mere granting of a security interest to secure a borrowing.
The Seller and the Depositor shall record each such transfer as a sale or
purchase (as the case may be) on its books and records for legal purposes. In
the event, however, that such transfer is deemed not to be a sale but to be of
a mere security interest to secure a borrowing, the Seller shall be deemed to
have hereby granted to the Depositor a security interest in all accounts,
money, chattel paper, securities, instruments, documents, deposit accounts,
certificates of deposit, letters of credit, advices of credit, banker's
acceptances, uncertificated securities, general
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intangibles, contract rights, goods and other property consisting of, arising
from or relating to such Conveyed Assets, which security interest shall be
perfected and of first priority, and this Agreement shall constitute a
security agreement under applicable law. Pursuant to the Sale and Servicing
Agreement and Section 6.04 hereof, the Depositor may transfer to the Issuer
(i) all or any portion of the assets assigned to the Depositor hereunder, (ii)
all or any portion of the Depositor's rights against the Seller under this
Agreement and (iii) all proceeds thereof. Such assignment may be made by the
Depositor with or without an assignment by the Depositor 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
any right of setoff), against the Depositor or any assignee of the Depositor
relating to such action by the Depositor in connection with the transactions
contemplated by the Sale and Servicing Agreement.
Section 2.02. The Closing. The sale and purchase of the Receivables
shall take place at a closing at [___] on the Closing Date, simultaneously
with the closing under (a) the Sale and Servicing Agreement, (b) the Indenture
and (c) the Trust Agreement.
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Seller and the
Indenture Trustee as of the date hereof and the Transfer Date:
(a) Organization and Good Standing. The Depositor is duly organized
and validly existing as a limited liability company in good standing under the
laws of the State of Delaware, with all requisite power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is currently conducted.
(b) Due Qualification. The Depositor is duly qualified to do
business as a foreign limited liability company in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions where the
failure to do so would materially and adversely affect the Depositor's ability
to acquire the Receivables or the validity or enforceability of the Receivables.
(c) Power and Authority. The Depositor has the limited liability
company power and authority to execute, deliver and perform this Agreement and
the other Basic Documents to which it is a party and to carry out their
respective terms; the Depositor has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Issuer,
and the Depositor shall have duly authorized such sale and assignment to the
Issuer by all necessary limited liability company action; and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which the Depositor is a party have been duly authorized by the Depositor by
all necessary limited liability company action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which the Depositor is a party, when duly executed and delivered
by the other parties hereto and
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thereto, shall constitute legal, valid and binding obligations of the
Depositor, enforceable against the Depositor in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or 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).
(e) No Violation. 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 limited liability company agreement of the Depositor, or any indenture,
agreement or other instrument to which the Depositor is a party or by which it
is bound, or violate any law, rules or regulation applicable to the Depositor
of any court or federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge, threatened against the Depositor
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties (i)
asserting the invalidity of this Agreement or any other Basic Document to
which the Depositor 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 Depositor is a party or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, this
Agreement or any other Basic Document to which the Depositor is a party.
(g) No Consents. The Depositor 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.
(h) Perfection Representation. The Seller makes all of the
representations, warranties and covenants set forth in Schedule III.
Section 3.02. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants as follows to the
Depositor and the Indenture Trustee as of the date hereof and as of the
Transfer Date:
(i) Organization and Good Standing. The Seller is an Alabama
state banking corporation duly organized and validly existing as a
banking institution under the laws of the State of Alabama and
continues to hold a valid certificate to do business as such, and
has the power to own its assets and to transact the business in
which it is currently engaged. The Seller is duly authorized to
transact business and has obtained all necessary licenses and
approvals, and is in good standing in each jurisdiction in which the
character of the business transacted by it or any properties owned
or leased by it requires such authorization.
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(ii) Power and Authority. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and
all of the transactions contemplated under this Agreement and the
other Basic Documents to which the Seller is a party, and has taken
all necessary action to authorize the execution, delivery and
performance of this Agreement and the other Basic Documents to which
the Seller is a party. When executed and delivered, this Agreement
and the other Basic Documents to which the Seller is a party will
constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies and except
as enforcement of such terms may be limited by receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally.
(iii) No Violation. The execution, delivery and performance by
the Seller of this Agreement and the other Basic Documents to which
the Seller is a party will not violate any provision of any existing
state, federal or, to the best knowledge of the Seller, local law or
regulation or any order or decree of any court applicable to the
Seller or any provision of the articles of association or
incorporation or the bylaws of the Seller, or constitute a breach of
any mortgage, indenture, contract or other agreement to which the
Seller is a party or by which the Seller may be bound or result in
the creation or imposition of any lien upon any of the Seller's
properties pursuant to any such mortgage, indenture, contract or
other agreement (other than this Agreement).
(iv) 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 or any other Basic Document to which the Seller is a
party.
(v) Chief Executive Office. The chief executive office of the
Seller is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
(vi) 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.
(vii) No Notice. The Seller represents and warrants that it
acquired title to the Receivables in good faith, without notice of
any adverse claim.
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(viii) Bulk Transfer. The Seller represents and warrants that
the transfer, assignment and conveyance of the Receivables by the
Seller pursuant to this Agreement are not subject to the bulk
transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction.
(ix) Seller Information. No certificate of an officer,
statement or document furnished in writing or report delivered
pursuant to the terms hereof by the Seller contains any untrue
statement of a material fact or omits to state any material fact
necessary to make the certificate, statement, document or report not
misleading.
(x) Ordinary Course. The transactions contemplated by this
Agreement and the other Basic Documents to which the Seller is a
party are in the ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the Seller
be made insolvent by the transfer of the Receivables, nor does the
Seller anticipate any pending insolvency.
(xii) Legal Compliance. The Seller is not in violation of, and
the execution and delivery by the Seller of this Agreement and the
other Basic Documents to which the Seller is a party and its
performance and compliance with the terms of this Agreement and the
other Basic Documents to which the Seller is a party will not
constitute a violation with respect to, any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would
materially and adversely affect the Seller's condition (financial or
otherwise) or operations or any of the Seller's properties or
materially and adversely affect the performance of any of its duties
under the Basic Documents.
(xiii) Creditors. The Seller did not sell the Receivables to
the Depositor with any intent to hinder, delay or defraud any of its
creditors.
(b) The Seller makes the following representations and warranties
with respect to the Receivables, on which the Depositor relies in accepting
the Receivables and in transferring the Receivables to the Issuer under the
Sale and Servicing Agreement, and on which the Issuer relies in pledging the
same to the Indenture Trustee. Such representations and warranties speak as of
the execution and delivery of this Agreement and as of the Transfer Date, but
shall survive the sale, transfer and assignment of the Receivables to the
Depositor, the subsequent sale, transfer and assignment of the Receivables by
the Depositor to the Issuer pursuant to the Sale and Servicing Agreement and
the pledge of the Receivables by the Issuer to the Indenture Trustee pursuant
to the Indenture.
(i) Characteristics of Receivables. Each Receivable (A) was
originated in the United States of America by the Seller or by a
Dealer located in the United States of America for the retail sale
of a Financed Vehicle, in each case, in the ordinary course of the
applicable Dealer's business in accordance with the Seller's credit
policies as of the date of origination or acquisition of the related
Receivable, is payable in United States dollars, has been fully and
properly executed by the parties thereto, has
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been originated by the Seller through or purchased by the Seller
from such Dealer under an existing Dealer Agreement (or approved
form of assignment) and, in the case of each Receivable originated
by a Dealer and sold to the Seller, has been validly assigned by
such Dealer to the Seller, (B) has created or shall create a valid,
subsisting and enforceable first priority perfected security interest
in favor of the Seller in the Financed Vehicle, which security
interest is assignable by the Seller and reassignable by the
assignee, (C) 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,
(D) provides for fixed level monthly payments (provided that the
payment in the last month of the term of the Receivable may be
minimally different from the level scheduled payments) that fully
amortize the Amount Financed by maturity and yield interest at the
APR and (E) amortizes using the simple interest method.
(ii) Compliance with Law. Each Receivable complied at the time
it was originated or made, and at the Closing Date complies, in all
material respects with all requirements of applicable federal, state
and, to the best knowledge of the Seller, local laws, rulings and
regulations thereunder.
(iii) 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 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 Transfer Date of the Soldiers and Sailors
Civil Relief Act of 1940, as amended, or by any similar applicable
State law.
(iv) No Government Obligor. No Receivable is due from the
United States of America or any State or any agency, department,
subdivision or instrumentality thereof.
(v) Obligor Bankruptcy. To the best of the Seller's knowledge,
at the Cutoff Date with respect to the Initial Receivables and at
the Subsequent Cutoff Date with respect to the Subsequent
Receivables, no Obligor is or has been, since the origination of the
related Receivable, the subject of a bankruptcy proceeding.
(vi) Schedules of Receivables. With respect to the Receivables,
the information set forth in Schedule II to this Agreement is true
and correct in all material respects as of the close of business on
the Closing Date.
(vii) Marking Records. By the Transfer Date, the Seller will
have caused its computer and accounting records relating to each
Receivable to be marked to show that the Receivables have been sold
to the Depositor by the Seller and transferred and assigned by the
Depositor to the Issuer in accordance with the terms of the Sale and
Servicing Agreement and pledged by the Issuer to the Indenture
Trustee in accordance with the terms of the Indenture.
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(viii) Computer Tape. The computer tape regarding the
receivables listed on Schedule I hereto made available by the Seller
to the Depositor for use in preparing the Prospectus Supplement was
complete and accurate in all material respects as of the Initial
Cutoff Date and as of the date of the Prospectus Supplement and the
computer tape regarding the Receivables to be made available by the
Seller to the Depositor for use in preparing the 8-K Filing and
Schedule II hereto is complete and accurate in all material respects
as of the Closing Date.
(ix) No Adverse Selection. No selection procedures believed by
the Seller to be adverse to the Noteholders or the
Certificateholders were utilized in selecting the Receivables.
(x) Chattel Paper. Each Receivable constitutes chattel paper
within the meaning of the UCC as in effect in the State of
origination.
(xi) One Original. There is only one original executed copy of
each Receivable.
(xii) 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;
and no Receivable has been granted an extension except as noted in
the servicing records of such Receivable and each such extension has
been granted in accordance with the Seller's extension policy set
forth in Exhibit D-1 to the Sale and Servicing Agreement. No
Receivable has been modified as a result of the application of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(xiii) 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 under this Agreement or the Sale and
Servicing Agreement, as applicable, or the pledge of such Receivable
under the Indenture.
(xiv) 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 Depositor and that the
beneficial interest in and title to the Receivables not be part of
the debtor's estate in the event of the appointment of a receiver or
conservator for the Seller under any receivership, bankruptcy law,
insolvency or banking law. Immediately prior to the Closing Date, no
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than to the Depositor 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, and, immediately upon the
transfer thereof, the Depositor shall have good and marketable title
to each Receivable, free and clear of all Liens and, immediately
upon the transfer thereof from the Depositor to the Issuer in
accordance with the terms of the Sale and Servicing
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Agreement and the representations and warranties of the Depositor set
forth therein, the Issuer shall have good and marketable title to each
Receivable, free and clear of all Liens and, immediately upon the
pledge thereof from the Issuer to the Indenture Trustee in
accordance with the terms of the Indenture, the Indenture Trustee
shall have a first priority perfected security interest in each
Receivable.
(xv) Security Interest in Financed Vehicle. Immediately prior
to its sale, assignment and transfer to the Depositor pursuant to
this Agreement, each Receivable is secured by a first priority
perfected security interest in the related Financed Vehicle in favor
of the Seller as secured party, or all necessary and appropriate
actions have been commenced that will result in the valid perfection
of a first priority security interest in such Financed Vehicle in
favor of the Seller as secured party. 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 or its predecessor in interest named as
the original secured party under each Receivable as the holder of a
first priority security interest in such Financed Vehicle. Each
Dealer's security interest in any Receivable originated by such
Dealer has been validly assigned by the Dealer to the Seller. The
Seller's security interest has been validly assigned to the
Depositor pursuant to this Agreement.
(xvi) All Filings Made. All filings (including UCC filings)
required to be made in any jurisdiction to give the Issuer a first
perfected ownership interest in the Receivables and the Indenture
Trustee a first priority perfected security interest in the
Receivables have been made or will be made on the Closing Date.
(xvii) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim, dispute or defense, including the
defense of usury, whether arising out of transactions concerning the
Receivable or otherwise, and the operation of any terms of the
Receivable or the exercise by the Seller or the Obligor of any right
under the Receivable will not render the Receivable unenforceable in
whole or in part, and no such right of rescission, setoff,
counterclaim, dispute or defense, including the defense of usury,
has been asserted with respect thereto.
(xviii) 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 29
days) as of the Cutoff Date, 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. On or prior to the
applicable Transfer Date, no Financed Vehicle has been repossessed.
(xix) Insurance. The Seller, in accordance with its customary
procedures, has required that the Obligor obtains physical damage
insurance covering each Financed Vehicle (i) in an amount at least
equal to the lesser of (a) the actual cash value of the related
Financed Vehicle or (b) the unpaid principal balance owing on such
Receivable, (ii) naming the Seller as a loss payee and (iii)
insuring against loss and
10
damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage and, under
the terms of the related Receivable, the Obligor is required to
maintain such insurance.
(xx) Final Scheduled Maturity Date. No Receivable has a final
scheduled payment date later than six months prior to the
Certificate Final Scheduled Distribution Date.
(xxi) Certain Characteristics of the Receivables. As of the
Initial Cutoff Date (in the case of the Initial Receivables) or the
date of origination (in the case of the Subsequent Receivables), as
applicable, (A) each Receivable had an original maturity of not less
than 12 or more than 84 months and (B) no Receivable was more than
30 days past due.
(xxii) No Foreign Obligor. All of the Receivables are due from
Obligors who are citizens, or legal resident aliens, of the United
States of America.
(xxiii) 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.
(xxiv) Scheduled Payments. Each Receivable had a first
scheduled payment due on or prior to 67 calendar days after the
Closing Date. Each Obligor has been instructed to make all scheduled
payments to the Seller. To the best knowledge of the Seller, each
Obligor has paid the entire down payment called for by the contract.
(xxv) No Fleet Sales. None of the Receivables have been
included in a "fleet" sale (i.e., a sale to any single Obligor of
more than seven Financed Vehicles).
(xxvi) 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, (B) the original Lien Certificate together with such
other documents that the Seller shall keep on file in accordance
with its customary procedures evidencing the security interest of
the Seller in the related Financed Vehicle, and (C) any and all
other documents that the Master Servicer shall have kept on file in
accordance with its customary procedures relating to a Receivable,
an Obligor or a Financed Vehicle. Each of such documents that 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) and (C) above have been properly filled in and each
form has otherwise been correctly prepared in all material respects.
Notwithstanding the above, the complete Receivable File for each
Receivable, (x) shall fulfill the documentation requirements of the
Seller's credit policies as in effect on the date of origination of
such Receivable and (y) is in possession of the Master Servicer or
the Custodian or its designee, as applicable, on the Transfer Date.
The blanket power of attorney granted to the Indenture Trustee, a
security agreement and the original Lien Certificate are the only
documents necessary to permit the Indenture Trustee to submit the
Lien Certificate for each Financed Vehicle for retitling in the name
of the Indenture
11
Trustee as secured party in the event such retitling were required or
otherwise permitted under the Basic Documents.
(xxvii) No Fraud or Misrepresentation. Each Receivable that was
originated by a Dealer and was sold by the Dealer to the Seller, to
the best of the Seller's knowledge, was so originated and sold
without fraud or misrepresentation on the part of such Dealer in
either case.
(xxviii) 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.
(xxix) Tax Liens. To the best of the Seller's knowledge, there
is no Lien against any Financed Vehicle for delinquent taxes.
(xxx) 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 Depositor in any Receivable or the proceeds thereof.
(xxxi) 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.
(xxxii) Corporate Obligors. Less than [___]% of the Receivables
are due from Obligors who are not natural persons.
(xxxiii) 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.
(xxxiv) APR. No Receivable has an APR of less than [___]% and
the weighted average coupon on the pool of Receivables is at least
[___]%.
(xxxv) Remaining Term. Each Receivable has a remaining term of
at least three months and no more than 72 months.
(xxxvi) Seasoning. The weighted average number of months since
the initial installment due date for the Receivables is at least
[___] months.
(xxxvii) Remaining Balance. Each Receivable has a remaining
balance of at least $[___] and no more than $[___].
(xxxviii) New Vehicles. At least [___]% of the aggregate
principal balance of the Receivables is secured by Financed Vehicles
which were new at the date of origination.
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(xxxix) Initial Payment. The Obligor with respect to each
Receivable originated prior to [___] has made at least one scheduled
payment.
(xl) No Proceedings. As of the Transfer Date, there are no
proceedings pending, nor to the best of the Seller's knowledge,
threatened, wherein the Obligor or any governmental agency has
alleged that any Receivable is illegal or unenforceable.
(xli) Dealer Agreement. Each Dealer from whom the Seller
purchases Receivables directly has entered into a Dealer Agreement
with the Seller providing for the sale of Receivables from time to
time by such Dealer to the Seller or uses an approved form of
assignment. Each Dealer Agreement and assignment form is
substantially in the form attached to the Sale and Servicing
Agreement as Exhibit D, except for immaterial modifications or
deviations from the Dealer Agreement or assignment form. Such
modifications and deviations from the Dealer Agreement or assignment
form will not have a material adverse effect on the Noteholders or
Certificateholders. Such Dealer Agreement and/or the assignment and
related documentation signed by or provided to the Dealer,
constitutes the entire agreement between the Seller and the related
Dealer with respect to the sale of such Receivable to the Seller.
Each applicable Dealer Agreement and form of assignment is in full
force and effect, there have been no material defaults by the Seller
under such Dealer Agreement; the Seller has fully performed all of
its obligations under such Dealer Agreement or form of assignment;
the Seller has not made any statements or representations to such
Dealer (whether written or oral) inconsistent with any term of such
Dealer Agreement or form of assignment; the purchase price for such
Receivable has been paid in full, other than any dealer reserve, by
the Seller; and any payment owed to such Dealer by the Seller is a
corporate obligation of the Seller.
(xlii) Seller's Obligations. The Seller has duly fulfilled all
obligations to be fulfilled on its part under or in connection with
the origination, acquisition and/or assignment of the Receivables.
(xliii) No Consent. To the best of the Seller's knowledge, no
notice to or consent from any Obligor is necessary to effect the
acquisition of the Receivables by the Depositor or the Trust or the
pledge of the Receivables by the Trust to the Indenture Trustee.
(xliv) No Transfer Taxes. The sale, transfer, assignment and
conveyance of the Receivables by the Seller pursuant to this
Agreement is not subject to and will not result in any tax, fee or
governmental charge payable by the Seller, the Issuer or the
Indenture Trustee to any federal, state or local government
("Transfer Taxes") other than Transfer Taxes which have been or will
be paid by the Seller as due. In the event the Issuer or the
Indenture Trustee receives actual notice of any Transfer Taxes
arising out of the transfer, assignment and conveyance of the
Receivables, on written demand by the Issuer or the Indenture
Trustee, or upon the Seller's otherwise being given notice thereof
by the Issuer or the Indenture Trustee, the Seller shall pay, and
otherwise indemnify and hold the Issuer and the Indenture Trustee
harmless, on an after-tax basis,
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from and against any and all such Transfer Taxes (it being understood
that the Noteholders, the Indenture Trustee and the Issuer shall
have no obligation to pay such Transfer Taxes).
(xlv) Other Receivables. Neither the Obligor on any Receivable
nor any of its affiliates is the obligor on Receivables with an
aggregate principal amount representing more than [___]% of the
Original Pool Balance.
(xlvi) Aggregate Balance. The Original Pool Balance is equal to
$[___].
(xlvii) Geographic Distribution. As of the Initial Cutoff Date
[___]%, [___]%, [___]%, [___]%, [___]% and [___]% of the Receivables
(based on principal balance and location of the applicable Dealer)
were located in [___], [___], [___], [___], [____] and [___],
respectively.
(xlviii) No Advances. No advances have been made to Obligors in
order to meet any representation or warranty herein set forth;
provided, however, that Receivables may have had up to three
extensions prior to the Cutoff Date, subject to the following: (A)
each such extension was made in conformity with the Extension Policy
and (B) each extended Receivable satisfies in all material respects
all applicable requirements under the Seller's credit and collection
policies as of the date of its origination.
(xlix) Amount Financed. At the time each Receivable was
originated, the Amount Financed was fully disbursed. There is no
requirement for future advances of principal thereunder, and all
fees and expenses in connection with the origination of such
Receivable have been paid.
(l) Official Record. This Agreement is and shall remain at all
times prior to the termination hereof an official record of the
Seller as referred to in Section 13(e) of the Federal Deposit
Insurance Act, as amended by 12 U.S.C. Section 1823(e).
(li) No Consumer Leases. No Receivable constitutes a "consumer
lease" under either (a) the UCC as in effect in the jurisdiction
whose law governs the Receivable or (b) the Consumer Leasing Act, 15
U.S.C. 1667.
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor. The
obligation of the Depositor 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 in all material
respects on the Transfer 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 Transfer Date.
(b) Computer Files Marked. The Seller shall, at its own expense,
on or prior to the Transfer Date, indicate in its computer files that the
Receivables have been sold to the Depositor pursuant to this Agreement and
deliver to the Depositor the Schedules of Receivables, certified by the
Seller's President, Vice President or Treasurer to be true, correct and
complete.
(c) Documents to be Delivered by the Seller on the Transfer Date:
(i) Reserved.
(ii) 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 of the State of [___] and [____] County
[___], executed by the Seller, as seller or debtor, and naming the
Depositor, as secured party, describing the Receivables and the
other assets assigned to the Depositor pursuant to Section 2.01,
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 Depositor. The Seller shall deliver to the Depositor a
file-stamped copy or other evidence satisfactory to the Depositor of
such filing on or prior to the Transfer Date.
(iii) Opinions of Seller's Counsel. On or prior to the Closing
Date, the Depositor shall have received the opinions of counsel to
the Seller, in form and substance satisfactory to the Depositor, as
to the matters set forth in Exhibit A hereto and such other matters
as the Depositor has heretofore requested or may reasonably request.
(iv) Other Documents. Such other documents as the Depositor may
reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale
and Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Transfer Date shall be consummated on such date.
Section 4.02. Conditions to Obligation of the Seller. The obligation
of the Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the
Transfer Date with the same effect as if then made, and the Depositor shall
have performed all obligations to be performed by it hereunder on or prior to
the Transfer Date.
(b) Receivables Purchase Price. On the Transfer Date, the Depositor
shall have delivered to the Seller the purchase price specified in Section
2.01 hereof.
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(c) Opinion of Counsel. The Depositor shall have furnished to the
Seller an Opinion of Counsel, dated the Closing Date, to the effect that:
(i) the Depositor has been duly incorporated and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware, with full limited liability company
power and authority to own its properties and conduct its business
as described in the Prospectus;
(ii) each of this Agreement, the Sale and Servicing Agreement
and the Trust Agreement has been duly authorized, executed and
delivered by the Depositor and constitutes a legal, valid and
binding obligation of the Depositor, enforceable against the
Depositor in accordance with its terms except as limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, receivership, conservatorship or similar laws relating
to or affecting creditors' rights generally or the rights of
creditors, or of the FDIC as insurer, regulator, conservator or
receiver, of banks the accounts of which are insured by the FDIC in
particular and except that such counsel need express no opinion as
to the availability of equitable remedies or the enforceability of
rights of indemnification for violations of federal securities laws;
(iii) no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required
for the consummation by the Depositor of the transactions
contemplated herein or in this Agreement, the Sale and Servicing
Agreement, the Trust Agreement or the Indenture (collectively, the
"Basic Documents"), except such as may be required under the blue
sky or securities laws of any jurisdiction in connection with the
purchase and sale of the Notes and Certificates by the Underwriters,
the filing of the UCC-1 financing statements relating to the
conveyance of the Receivables and the other Trust Property by the
Seller to the Depositor and of the Receivables and the other Trust
Property by the Depositor to the Trust and by the Trust to the
Indenture Trustee for the benefit of the Noteholders and the filing
of the UCC-1 financing statements relating to the security interests
in the Eligible Investments included in the Reserve Account, and
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; and
(iv) none of the issue and sale of the Notes and Certificates,
the execution and delivery of this Agreement, the Sale and Servicing
Agreement, the Trust Agreement or this Agreement, the consummation
of any other of the transactions herein or therein contemplated or
the fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or constitute a default under,
the limited liability company agreement of the Depositor or the
terms of any indenture or other agreement or instrument known to
such counsel and to which the Depositor is a party or by which it is
bound, or any judgment, order or decree known to such counsel to be
applicable to the Depositor of any court, regulatory body,
administrative agency, governmental body, or arbitrator having
jurisdiction over the Depositor.
(v) the Registration Statement, and each amendment thereto, as
of its effective date (other than any financial, numerical or
statistical information contained
16
or incorporated by reference therein, as to which such counsel need
express no opinion) complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
(d) Other Transactions. The transactions contemplated by the Sale
and Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Transfer Date shall be consummated on such date.
Article V
Covenants of the Seller
The Seller agrees with the Depositor and the Indenture Trustee as
follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause at its own expense all
financing statements and continuation statements and any other necessary
documents covering the right, title and interest of the Seller, the Depositor,
the Trust and the Indenture Trustee, respectively, in and to the Receivables
and the other property included in the Trust Estate 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, the Trust under the Sale and
Servicing Agreement and the Indenture Trustee under the Indenture in and to
the Receivables and the other property included in the Trust Estate. The
Seller shall deliver to the Depositor and the Indenture Trustee 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 Seller in
connection with the obligations set forth above and will 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 Depositor, the Indenture Trustee and the Owner
Trustee written notice thereof at least 45 days prior to such change and shall
promptly file such financing statements or amendments as may be necessary to
continue the perfection of the Depositor's interest in the property conveyed
pursuant to Section 2.01.
Section 5.02. 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 Depositor,
the Trust and the Indenture Trustee in, to and under the Receivables against
all claims of third parties claiming through or under the Seller.
Section 5.03. Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties claiming through or
17
under the Seller, of the Depositor's, the Issuer's and the Indenture
Trustee's right, title and interest in and to the Receivables and the other
property included in the Trust Estate.
Section 5.04. Hold Harmless. The Seller shall protect, defend,
indemnify and hold the Depositor, the Issuer, the Underwriters and their
respective assigns and their employees, officers, directors and agents
harmless from and against all losses, liabilities, claims and damages of every
kind and character, including any legal or other expenses reasonably incurred,
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 the Seller in this Agreement, (ii) any legal action,
including, without limitation, any counterclaim, that has either been settled
by the litigants 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 the Seller in this Agreement, (iii) any actions
or omissions of the Seller occurring prior to the Transfer Date with respect
to any of the Receivables or Financed Vehicles or (iv) any failure of a
Receivable to be originated in compliance with all applicable 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 Depositor for the benefit of the Depositor, the Indenture
Trustee, the Issuer, the Owner Trustee, the Certificateholders and the
Noteholders that the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.02(b) that materially
and adversely affects the interests of the Issuer, the Indenture Trustee, the
Owner Trustee, the Certificateholders or the Noteholders in any Receivable,
without regard to any limitation set forth in such representation or warranty
concerning the knowledge of the Seller as to the facts stated therein, shall
constitute an event obligating the Seller to repurchase the Receivables to
which such failure or breach is applicable (each, a "Repurchase Event"), at
the Purchase Amount, from the Depositor or from the Issuer, as applicable,
unless any such failure or breach shall have been cured by the last day of the
first Collection Period commencing after the discovery or notice thereof by or
to the Seller or the Master Servicer.
Section 6.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Seller all of the Depositor's right, title and interest in
and to such Receivables and all security and documents relating thereto.
Section 6.04. Transfer to the Issuer. The Seller acknowledges and
agrees that (1) the Depositor will, pursuant to the Sale and Servicing
Agreement, transfer and assign the Receivables and assign its rights under
this Agreement with respect thereto to the Issuer and,
18
pursuant to the Indenture, the Issuer will pledge the Receivables to the
Indenture Trustee, and (2) the representations and warranties contained in this
Agreement and therights of the Depositor under this Agreement, including under
Section 6.02, are intended to benefit the Issuer, the Noteholders and the
Certificateholder. The Seller hereby consents to such transfers and assignments
and agree that enforcement of a right or remedy hereunder by the Indenture
Trustee, the Owner Trustee or the Issuer shall have the same force and effect
as if the right or remedy had been enforced or executed by the Depositor.
Section 6.05. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, but without the
consent of the Noteholders or the Certificateholders, by a written amendment
duly executed and delivered by the Seller and the Depositor, for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights of
Noteholders or Certificateholders; provided that such amendment shall not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or Certificateholder; provided further, that such
action shall be deemed not to adversely affect in any material respect the
interests of any Noteholder or Certificateholder and no Opinion of Counsel to
that effect shall be required if the person requesting the amendment obtains a
letter from the Rating Agencies stating that the amendment would not result in
the downgrading or withdrawal of the ratings of then assigned to the Notes and
the Certificates. This Agreement may also be amended by the Seller and the
Depositor, with prior written notice to the Rating Agencies and the prior
written consent of [Holders of Notes evidencing at least a majority of the
Outstanding Amount of the Class [A] Notes, Holders of Class [B] Notes
evidencing at least a majority of the Class [B] Note Balance and Holders of
Class [C] Certificates evidencing at least a majority of the Class [C]
Certificate Balance (excluding, for purposes of this Section 6.05,
Certificates held by the Seller or any of its affiliates)], for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of Noteholders or
Certificateholders or (ii) reduce the aforesaid percentage of [the Class [A]
Notes, the Class [B] Notes or the Class [C] Certificates] that is required to
consent to any such amendment, without the consent of the Holders of all the
outstanding Notes and Certificates.
Section 6.06. Waivers. No failure or delay on the part of the
Depositor, the Issuer or the Indenture Trustee in exercising any power, right
or remedy under this Agreement or the ▇▇▇▇ of Sale 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, faxed and followed
by first class mail, or mailed by certified mail, return receipt requested,
and shall be deemed to have been duly given upon receipt (a) in the case of
the Depositor, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) in the
case of the Master Servicer, Administrator and Custodian, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (c) in the case of the Seller, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; (d) in the case of the Issuer or the
Owner Trustee, at the Corporate Trust
19
Administration Department (as defined in the Trust Agreement); (e) in
the case of [RATING AGENCY], to [ADDRESS], Attention: [___], and (f) in the
case of [RATING AGENCY], to [ADDRESS], Attention: [___]; or, as to each of the
foregoing, at such other address as shall be designated by written notice to
the other parties.
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
Depositor, in connection with the perfection of the Depositor's, the Issuer's
and the Indenture Trustee's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder as
contemplated by the Basic Documents.
Section 6.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller 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 and the transfers and assignments referred to in Section 6.04.
Section 6.10. Confidential Information. The Depositor agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors or any other personally identifiable information of an Obligor,
except in connection with the enforcement of the Depositor's rights hereunder,
under the Receivables, under the Sale and Servicing Agreement or any other
Basic Document, or as required by any of the foregoing or by law.
Section 6.11. 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 6.12. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 6.14. Third Party Beneficiary. The Indenture Trustee is an
express third party beneficiary of this Agreement and shall be entitled to
enforce the provisions of this Agreement as if it were a party hereto.
Section 6.15. No Proceedings. So long as this Agreement is in effect,
and for one year plus one day following its termination, each of the Seller
and the Depositor agrees that it will not file any involuntary petition or
otherwise institute any bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy law or similar law against the Trust.
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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.
REGIONS BANK, as Seller
By:_________________________________
Name:
Title:
REGIONS ACCEPTANCE LLC, as Depositor
By:_________________________________
Name:
Title:
21
EXHIBIT A
MATTERS ADDRESSED IN OPINION OF SELLER'S COUNSEL
[As set forth in Section 8(e) and Section 8(k) of the Underwriting Agreement.]
SCHEDULE I
Initial Data Schedule
[On file with the Indenture Trustee]
SCHEDULE II
Final Schedule of Receivables
[On file with the Indenture Trustee]
24
SCHEDULE III
Perfection Representations, Warranties and Covenants
1. General. The Receivables Purchase Agreement creates a valid and
continuing security interest (as defined in the UCC) in all of the Seller's
right, title and interest in and to the Receivables in favor of the
Depositor's which, (a) is enforceable upon execution of the Receivables
Purchase Agreement against creditors of and purchasers from the Seller as such
enforceability may be limited by applicable debtor relief laws, now or
hereafter in effect, and by general principles of equity (whether considered
in a suit at law or in equity), and (b) upon filing of the financing
statements described in clause 4 below will be prior to all other Liens (other
than Liens permitted pursuant to clause 5 below).
2. Characterization. The Receivables constitute "tangible chattel
paper" within the meaning of UCC Section 9-102. The Seller has taken all steps
necessary to perfect its security interest against the Obligor in the Financed
Vehicles securing the Receivables.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Receivables Purchase Agreement, the Seller owns and has good
and marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. The Seller has caused or will have caused, within ten
days of the Closing Date, the filing of all appropriate financing statements
in the proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest granted to the Depositor under
the Receivables Purchase Agreement in the Receivables.
5. Priority. Other than the security interests granted to the
Depositor pursuant to the Receivables Purchase Agreement, the Seller has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables, the Seller has not authorized the filing of and is not
aware of any financing statements against the Seller that includes a
description of collateral covering the Receivables other than any financing
statement (i) relating to the security interests granted to the Depositor
under the Receivables Purchase Agreement (ii) that has been terminated, or
(iii) that has been granted pursuant to the terms of the Basic Documents. None
of the tangible chattel paper that constitutes or evidences the Receivables
has any marks or notations indicating that they are pledged, assigned or
otherwise conveyed to any Person other than Indenture Trustee.
SCHEDULE IV
Location of Receivable Files
[___]