EXHIBIT 4.5
Form of Purchase Agreement
PURCHASE AGREEMENT
between
CHEVY CHASE SPV
Purchaser
and
CHEVY CHASE BANK, F.S.B.
Seller
Dated as of [______________]
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS......................................................................1
SECTION 1.1 General....................................................................1
SECTION 1.2 Specific Terms.............................................................1
SECTION 1.3 Usage of Terms.............................................................2
SECTION 1.4 No Recourse................................................................2
SECTION 1.5 Action by or Consent of Noteholders........................................2
SECTION 1.6 Material Adverse Effect....................................................2
ARTICLE II. CONVEYANCE OF THE RECEIVABLES...................................................3
SECTION 2.1 Conveyance of Receivables..................................................3
SECTION 2.2 Further Encumbrance of Trust Property......................................3
ARTICLE III. The Receivables................................................................4
SECTION 3.1 Representations and Warranties of Seller...................................4
SECTION 3.2 Custody of Receivables Files...............................................4
SECTION 3.3 Representations and Warranties of Purchaser................................4
ARTICLE IV. COVENANTS OF SELLER.............................................................6
SECTION 4.1 Protection of Title of Purchaser...........................................6
SECTION 4.2 Other Liens or Interests...................................................9
SECTION 4.3 Costs and Expenses.........................................................9
SECTION 4.4 Indemnification............................................................9
ARTICLE V. REPURCHASES.....................................................................11
SECTION 5.1 Repurchase upon Breach....................................................11
SECTION 5.2 Reassignment of Purchased Receivables.....................................11
SECTION 5.3 Waivers...................................................................12
ARTICLE VI. MISCELLANEOUS..................................................................12
SECTION 6.1 Liability of Seller.......................................................
SECTION 6.2 Merger or Consolidation of Seller or Purchaser............................
SECTION 6.3 Limitation on Liability of Seller and Others..............................
SECTION 6.4 Seller May Own Notes......................................................12
SECTION 6.5 Amendment.................................................................13
SECTION 6.6 Notices...................................................................14
SECTION 6.7 Merger and Integration....................................................14
SECTION 6.8 Severability of Provisions................................................14
SECTION 6.9 Governing Law.............................................................14
SECTION 6.10 Counterparts..............................................................14
SECTION 6.11 Conveyance of the Receivables to the Issuer...............................15
SECTION 6.12 Nonpetition Covenant......................................................15
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SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties from CHEVY CHASE BANK, F.S.B. as to
the Receivables
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PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT, dated as of [_______________], executed among
Chevy Chase SPV, a [________], as purchaser ("Purchaser") and Chevy Chase Bank,
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F.S.B., a federally chartered savings bank, as Seller ("Seller").
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W I T N E S S E T H :
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WHEREAS, Purchaser has agreed to purchase from the Seller, and the
Seller, pursuant to this Agreement, is transferring to Purchaser the
Receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, Purchaser and the Seller, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this Article
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include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
[_________________], by and among Chevy Chase SPV (as Seller), Chevy Chase Bank,
F.S.B. (in its individual capacity and as Servicer), Chevy Chase Automobile
Receivables Trust 200_-_ (as Issuer), and U.S. Bank National Association (as
Indenture Trustee).
SECTION 1.2 Specific Terms. Whenever used in this Agreement, the
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following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" shall mean this Purchase Agreement and all amendments
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hereof and supplements hereto.
"Closing Date" means [_________________].
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"Indenture Trustee" means U.S. Bank National Association, as trustee
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and any successor Trustee appointed and acting pursuant to the Indenture.
"Issuer" means Chevy Chase Automobile Receivables Trust 200_-_.
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"Owner Trustee" means Wilmington Trust Company, as Owner Trustee
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appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Receivables listed on the Schedules of
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Receivables
attached hereto.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
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referred to in Section 1.1 hereof.
"Schedule of Representations" means the Schedule of Representations
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and Warranties attached hereto as Schedule B.
"Schedules of Receivables" means the schedule of Receivables sold and
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transferred pursuant to this Agreement which is attached hereto as Schedule A.
SECTION 1.3 Usage of Terms. With respect to all terms used in this
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Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4 No Recourse. Without limiting the obligations of Seller
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hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
SECTION 1.5 Action by or Consent of Noteholders. Whenever any
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provision of this Agreement refers to action to be taken, or consented to, by
Noteholders, such provision shall be deemed to refer to the Noteholder, as the
case may be, of record as of the Record Date immediately preceding the date on
which such action is to be taken, or consent given, by Noteholders. Solely for
the purposes of any action to be taken, or consented to, by Noteholders, any
Note registered in the name of the Seller or any Affiliate thereof shall be
deemed not to be outstanding; provided, however, that, solely for the purpose of
determining whether the Indenture Trustee is entitled to rely upon any such
action or consent, only Notes which the Owner Trustee or the Indenture Trustee,
respectively, knows to be so owned shall be so disregarded.
SECTION 1.6 Material Adverse Effect. Whenever a determination is to
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be made under this Agreement as to whether a given event, action, course of
conduct or set of facts or circumstances could or would have a material adverse
effect on the Noteholders (or any similar or analogous determination), such
determination shall be made without taking into account the funds available from
claims under the Policy.
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ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
SECTION 2.1 Conveyance of Receivables.
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Subject to the terms and conditions of this Agreement, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse (subject to the obligations set forth herein), all right, title
and interest of the Seller in and to the following property, wherever located
and in whatever form, whether tangible or intangible, whether now existing or
hereafter acquired:
(a) the Receivables listed in the Schedule of Receivables, including
all monies (including accrued interest) due or received thereon on or after
the Cut-Off Date and all property (including the right to receive future
Liquidation Proceeds) that secures a Receivable;
(b) the security interests of the Seller in the Financed Vehicles
granted by Obligors pursuant to the Receivables;
(c) the Note Account, the Reserve Account and the Collection Account
and funds deposited therein and all investments of such funds;
(d) the interest of the Seller in the documents and instruments
constructively delivered to the Indenture Trustee pursuant to Section 3.3
of the Sale and Servicing Agreement;
(e) the interest of the Seller in any Liquidation Proceeds and any
proceeds from claims on any physical damage, theft, vendor's single
interest, credit life, disability or hospitalization insurance policies
covering Financed Vehicles or Obligors; and
(f) the proceeds of any and all of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables and
other Trust Property from the Seller to the Purchaser and the beneficial
interest in and title to the Receivables and the other Trust Property shall not
be part of the Seller's estate in the event of the insolvency of the Seller. In
the event that, notwithstanding the intent of the Seller, the transfer and
assignment contemplated hereby is held not to be a sale, this Agreement shall
constitute a grant of a security interest in the property referred to in this
Section to the Purchaser and that this Agreement shall constitute a security
agreement under applicable law.
SECTION 2.2 Further Encumbrance of Trust Property. Immediately upon
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the conveyance to the Purchaser by the Seller of any item of the Trust Property
pursuant to Section 2.1, all right, title and interest of the Seller in and to
such item of Trust Property shall terminate, and all such right, title and
interest shall vest in the Purchaser.
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ARTICLE III.
The Receivables
SECTION 3.1 Representations and Warranties of Seller as to the
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Receivables. The Seller hereby represents and warrants that each of the
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representations and warranties set forth on the Schedule of Representations
attached hereto as Schedule B is true and correct. The Purchaser is hereby
deemed to have relied upon each of the representations and warranties set forth
on the Schedule of Representations in acquiring the Receivables. The Issuer is
hereby deemed to have relied upon each of the representations and warranties set
forth on the Schedule of Representations in acquiring the Receivables and
issuing the Notes. The Indenture Trustee is hereby deemed to have relied upon
each of the representations and warranties set forth on the Schedule of
Representations in authenticating the Notes. The Noteholders are hereby deemed
to have relied upon each of the representations and warranties set forth on the
Schedule of Representations in purchasing the Notes. Such representations speak
as of the Closing Date, but shall survive the sale, transfer and assignment of
the Receivables hereunder and the sale, transfer and assignment thereof by
Purchaser to the Issuer under the Sale and Servicing Agreement. The
representations and warranties contained in items 21 through 28 on Schedule B
may not be waived.
SECTION 3.2 Custody of Receivables Files. To assure uniform quality
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in servicing the Receivables and to reduce administrative costs, the Seller
acknowledges the revocable appointment of the Servicer by the Indenture Trustee,
and the acceptance of such appointment by the Servicer, as the agent of the
Indenture Trustee as custodian of the Receivables Files.
SECTION 3.3 Representations and Warranties of Purchaser. Purchaser
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makes the following representations and warranties, on which Seller relies in
selling, assigning, transferring and conveying the Receivables to Purchaser
hereunder. Such representations are made as of the execution and delivery of
this Agreement, but shall survive the sale, transfer and assignment of the
Receivables hereunder and the sale, transfer and assignment thereof by Purchaser
to the Issuer under the Sale and Servicing Agreement.
(a) Organization and Good Standing. Purchaser has been duly organized
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and is validly existing and in good standing as a [________] under the laws
of the State of [________], with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and has, full power, authority and legal right to acquire and own
the Receivables, and to transfer the Receivables to the Issuer pursuant to
the Sale and Servicing Agreement.
(b) Due Qualification. Purchaser is duly qualified to do business as
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a foreign corporation 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 Purchaser's ability to acquire the
Receivables, and to transfer the Receivables to the Issuer pursuant to the
Sale and Servicing Agreement, or the validity or enforceability of the
Receivables
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or to perform Purchaser's obligations hereunder and all of the documents
required pursuant hereto.
(c) Power and Authority. Purchaser has the power, authority and legal
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right to execute and deliver this Agreement and to carry out the terms
hereof and to acquire the Receivables hereunder; and the execution,
delivery and performance of this Agreement and all of the documents
required pursuant hereto have been duly authorized by Purchaser by all
necessary action.
(d) No Consent Required. Purchaser is not required to obtain the
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consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement and all of the documents required pursuant
hereto, except for such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal, valid and
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binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by
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Purchaser of this Agreement, the consummation of the transactions
contemplated by this Agreement and all of the documents required pursuant
hereto and the fulfillment of the terms of this Agreement and all of the
documents required pursuant hereto do not and will 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) a default under, the [certificate
of incorporation] or bylaws of Purchaser, or conflict with or breach any of
the terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement, mortgage, deed of trust
or other instrument to which Purchaser is a party or by which Purchaser is
bound or to which any of its properties are subject, or result in the
creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or
other instrument (other than the Sale and Servicing Agreement), or violate
any law, order, rule or regulation, applicable to Purchaser or its
properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over Purchaser or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
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pending, or, to the knowledge of Purchaser, threatened against Purchaser,
before any court, regulatory body, administrative agency, or other tribunal
or governmental instrumentality having jurisdiction over Purchaser or its
properties: (i) asserting the invalidity of this Agreement or any of the
documents required pursuant hereto, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any of the documents required pursuant hereto, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by Purchaser of its obligations under, or the validity or
enforceability of, this Agreement or any of the documents required
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pursuant hereto or (iv) that may adversely affect the federal or state
income tax attributes of, or seeking to impose any excise, franchise,
transfer or similar tax upon, the transfer and acquisition of the
Receivables hereunder or the transfer of the Receivables to the Issuer
pursuant to the Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by
Purchaser hereunder, Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes,
certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust or similar vehicle formed by Purchaser, have been paid in
full. Seller and Purchaser agree that damages will not be an adequate remedy
for such breach and that this covenant may be specifically enforced by
Purchaser, Issuer or by the Indenture Trustee on behalf of the Noteholders and
Owner Trustee on behalf of the Issuer.
ARTICLE IV.
COVENANTS OF SELLER
SECTION 4.1 Protection of Title of Purchaser.
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(a) At or prior to the Closing Date, Seller shall have filed or
caused to be filed UCC-1 financing statements, naming Seller as seller or
debtor, naming Purchaser as purchaser or secured party and describing the
Receivables and the other property being sold by it to Purchaser as
collateral, with the office of the District of Columbia Recorder of Deeds
and the State Corporation Commission of the Commonwealth of Virginia. From
time to time thereafter, Seller shall file such financing statements and
cause to be filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain and
protect the interest of Purchaser under this Agreement, of the Issuer under
the Sale and Servicing Agreement and of the Indenture Trustee under the
Indenture in the Receivables and in the proceeds thereof. Seller shall
deliver (or cause to be delivered) to Purchaser, Issuer and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed
as provided above, as soon as available following such filing. In the event
that Seller fails to perform its obligations under this subsection,
Purchaser, Issuer or the Indenture Trustee may do so, at the expense of
such Seller. In furtherance of the foregoing, the Seller hereby authorizes
the Purchaser, the Issuer or the Indenture Trustee to file a record or
records (as defined in the applicable UCC), including, without limitation,
financing statements, in all jurisdictions and with all filing offices as
each may determine, in its sole discretion, are necessary or advisable to
perfect the security interest granted to the Purchaser pursuant to Section
2.1 of this Agreement. Such financing statements may describe the
collateral in the same manner as described herein or may contain an
indication or description of collateral that describes such property in any
other manner as such party may determine, in its sole discretion, is
necessary, advisable or prudent to ensure the perfection of the security
interest in the collateral granted to the Purchaser herein.
(b) Seller shall not change its name or identity in any manner that
would, could or might make any financing statement or continuation
statement filed by Seller (or by
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Purchaser, Issuer or the Indenture Trustee on behalf of Seller) in
accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-506 of the applicable UCC or any successor provision, unless
they have filed appropriate amendments to all previously filed financing
statements and continuation statements. If, as a result of a change of the
Seller's "location" (determined as provided in Section 9-307 of the UCC or
any successor provision) or jurisdiction of organization, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new
financing statement, then the Seller shall file or cause to be filed such
amendment or continuation statement or new financing statement within the
time period necessary to preserve fully and protect fully the interest of
the Purchaser, the Trust and the Indenture Trustee in the Receivables. The
Seller shall at all times maintain each office from which it shall service
Receivables, its principal place of business and "location" (determined as
provided in Section 9-307 of the UCC or any successor provision) within the
United States of America.
(c) Prior to the Closing Date, Seller has maintained accounts and
records as to each Receivable accurately and in sufficient detail to permit
(i) the reader thereof to know at any time as of or prior to the Closing
Date, the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the
Principal Balance as of the Closing Date. Seller shall maintain its
computer systems so that, from and after the time of sale under this
Agreement of the Receivables to Purchaser, and the conveyance of the
Receivables by Purchaser to the Issuer, Seller's master computer records
(including archives) that shall refer to a Receivable indicate clearly that
such Receivable has been sold to Purchaser and has been conveyed by
Purchaser to the Issuer. Indication of the Issuer's ownership of a
Receivable shall be deleted from or modified on Seller's computer systems
when, and only when, the Receivable shall become a Purchased Receivable or
shall have been paid in full.
(d) If at any ▇▇▇▇ ▇▇▇▇▇▇ shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any motor vehicle
receivables to any prospective purchaser, lender or other transferee,
Seller shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored
from archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold to
Purchaser, sold by Purchaser to Issuer, and is owned by the Issuer.
SECTION 4.2 Representations of Seller.
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(a) The Seller makes the following representations on which the
Purchaser is deemed to have relied in acquiring the Receivables and on
which the Issuer is deemed to have relied in acquiring the Receivables and
issuing the Notes and on which the Indenture Trustee is deemed to have
relied in authenticating the Notes. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date and
shall survive the sale of the Receivables to the Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture.
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(1) Due Organization And Good Standing. The Seller is duly organized
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and validly existing as a federally chartered stock savings bank in good
standing under the laws of the United States of America, with the corporate
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 has, the corporate power and
authority and legal right to acquire and own the Receivables.
(2) Due Qualification. The Seller is duly qualified to do business as
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a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of property or the conduct of its business require such qualifications,
except where the failure to be so qualified or to have obtained such
licenses or approvals would not have a material adverse effect on the
transactions contemplated by this Agreement.
(3) Power And Authority. The Seller has the corporate power and
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authority to execute and deliver this Agreement and to carry out its terms,
the Seller has full power and authority to sell and assign the property to
be sold and assigned to the Purchaser and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action; and the
execution, delivery, and performance of this Agreement has been duly
authorized by the Seller by all necessary corporate action.
(4) Valid Sale; Binding Obligations. This Agreement evidences a valid
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sale, transfer, and assignment of the Receivables, enforceable against
creditors of and purchasers from the Seller; and is a legal, valid, and
binding obligation of the Seller enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights or other obligees' rights in general or the rights of
creditors or obligees of federally chartered stock savings banks, the
deposits of which are insured by the FDIC, and by general principles of
equity, regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(5) No Violation. The consummation of the transactions contemplated
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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, nor
constitute (with or without notice or lapse of time) a default under, the
charter or by-laws of the Seller, or any indenture, agreement, or other
instrument to which the Seller is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, or other instrument
(other than this Agreement); nor violate any law or, to the best of the
Seller's knowledge, any order, rule, or regulation applicable to the Seller
of any court or of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Seller or its properties.
(6) No Proceedings. There are no proceedings or investigations
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pending or, to the Seller's best knowledge, threatened before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or the Notes, (B)
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seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement, (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or the Notes, or (D) which might
adversely affect the federal income tax attributes of the Notes.
(7) No Consent Required. The Seller is not required to obtain the
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consent of any other Person or any consent, license, approval or
authorization of, or make any registration or declaration with, any
governmental authority or agency in connection with the execution, delivery
and performance of this Agreement (except as have been obtained), other
than as may be required under the Blue Sky laws of any state or the
Securities Act.
(8) No Insolvency. The execution and delivery of this Agreement and
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the consummation of the transactions contemplated hereby were not made in
contemplation of the insolvency of the Seller or after the commission of
any act of insolvency by the Seller.
(9) Official Record. This Agreement and all other documents related
hereto to which the Seller is a party have been approved by the Seller's
board of directors, which approval is reflected in the minutes of such
board, and shall continuously from the time of each such document's
execution, be maintained as an official record of the Seller.
SECTION 4.3 Other Liens or Interests. Except for the conveyances
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hereunder, Seller will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on the Receivables
or any interest therein, and Seller shall defend the right, title, and interest
of Purchaser and the Issuer in and to the Receivables against all claims of
third parties claiming through or under Seller.
SECTION 4.4 Costs and Expenses. Seller shall pay all reasonable costs
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and disbursements in connection with the performance of its obligations
hereunder and under any documents required for the transactions contemplated
hereby.
SECTION 4.5 Indemnification.
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(a) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Indenture Trustee, the Owner Trustee, and the Noteholders from
and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from any breach of any of Seller's
representations and warranties contained herein.
(b) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Indenture Trustee, the Owner Trustee and the Noteholders from
and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership or
operation by Seller or any affiliate thereof of a Financed Vehicle;
provided that the Seller shall have no obligation to indemnify any Person
against any credit losses on any Receivable serviced by the Seller in
accordance with the requirements of the Sale and Servicing Agreement.
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(c) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Indenture Trustee, the Owner Trustee and the Noteholders from
and against any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from any action taken, or failed to
be taken, by it in respect of any portion of the Receivables other than in
accordance with this Agreement or the Sale and Servicing Agreement.
(d) Seller agrees to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Indenture Trustee, the Owner Trustee
and the Noteholders from and against any taxes that may at any time be
asserted against Purchaser, the Issuer, the Indenture Trustee, the Owner
Trustee and the Noteholders with respect to the transactions contemplated
in this Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible or intangible personal property,
privilege, or license taxes (but not including any taxes asserted with
respect to, and as of the date of, the sale, transfer and assignment of the
Receivables to Purchaser and by Purchaser to the Issuer or the issuance and
original sale of the Notes, or asserted with respect to ownership of the
Receivables which shall be indemnified by Seller pursuant to clause (e)
below, or federal, state or other income taxes, arising out of
distributions on the Notes or transfer taxes arising in connection with the
transfer of the Notes) and costs and expenses in defending against the
same, arising by reason of the acts to be performed by Seller under this
Agreement or imposed against such Persons.
(e) Seller shall defend, indemnify, and hold harmless Purchaser, the
Issuer, the Indenture Trustee, the Owner Trustee and the Noteholders from
and against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon Purchaser, the Issuer, the
Indenture Trustee, the Owner Trustee or the Noteholders through the
negligence, willful misfeasance, or bad faith of Seller in the performance
of its duties under this Agreement or by reason of reckless disregard of
Seller's obligations and duties under this Agreement.
(f) Seller shall defend, indemnify, and hold harmless Purchaser from
and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or performance
of Seller's trusts and duties as Servicer under the Sale and Servicing
Agreement, except to the extent that such cost, expense, loss, claim,
damage, or liability shall be due to the willful misfeasance, bad faith, or
negligence (except for errors in judgment) of Purchaser.
Indemnification under this Section 4.5 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive payment of
the Notes. The indemnity obligations hereunder shall be in addition to any
obligation that Seller may otherwise have.
ARTICLE V.
REPURCHASES
SECTION 5.1 Repurchase upon Breach. The Seller, the Purchaser, the
----------------------
Indenture Trustee or the Owner Trustee, as the case may be, shall inform the
other parties to this
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Agreement promptly, by notice in writing, upon the discovery of any breach of
the Seller's representations and warranties made pursuant to Section 3.1;
provided, that the Indenture Trustee shall have no duty to inquire concerning,
or to investigate, the breach of any of such representations and warranties.
Unless the breach shall have been cured by the last day of the Collection Period
following the Collection Period during which the Seller becomes aware of, or
receives written notice of, such breach, the Seller shall repurchase as of such
day (or, at the Seller's option, as of the last day of the month in which such
breach was discovered) any Receivable materially and adversely affected by such
breach and any Receivable in which the interest of the Noteholders is materially
and adversely affected by such breach (unless such Receivable is otherwise being
purchased pursuant to Section 11.1 of the Sale and Servicing Agreement). In
consideration of the purchase of the Receivable, the Seller shall remit the
Purchase Amount, in the manner specified in Section 5.3 of the Sale and
Servicing Agreement. The sole remedy of the Purchaser, the Trust, the Owner
Trustee, Indenture Trustee or the Noteholders with respect to a breach of the
Seller's representations and warranties contained in Section 3.1 shall be to
require the Seller to repurchase Receivables pursuant to this Section 5.1.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by Seller, Seller shall indemnify the
Issuer, the Indenture Trustee, the Owner Trustee and the Noteholders from and
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such breach and subsequent repurchase.
SECTION 5.2 Reassignment of Purchased Receivables. Upon deposit in
-------------------------------------
the Collection Account of the Purchase Amount of any Receivable repurchased by
Seller under Section 5.1 hereof, Purchaser and the Issuer shall take such steps
as may be reasonably requested by Seller in order to assign to Seller all of
Purchaser's and the Issuer's right, title and interest in and to such Receivable
conveyed to Purchaser and the Issuer directly relating thereto, without
recourse, representation or warranty, except as to the absence of Liens created
by or arising as a result of actions of Purchaser or the Issuer. Such assignment
shall be a sale and assignment outright, and not for security. If, following the
reassignment of a Receivable, in any enforcement suit or legal proceeding, it is
held that Seller may not enforce any such Receivable on the ground that it shall
not be a real party in interest or a holder entitled to enforce the Receivable,
Purchaser and the Issuer shall, at the expense of Seller, take such steps as
Seller deems reasonably necessary to enforce the Receivable, including bringing
suit in Purchaser's or in the Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of Purchaser, or
-------
the Issuer as assignee of Purchaser, in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or future
exercise thereof or the exercise of any other power, right or remedy.
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ARTICLE VI.
MISCELLANEOUS
SECTION 6.1 Liability of the Seller. The Seller shall be liable in
-----------------------
accordance herewith only to the extent of the obligations specifically
undertaken and the representations made by the Seller under this Agreement.
SECTION 6.2 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
----------------------
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party, or (c) which may succeed to the properties and assets
of the Seller substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Seller under this Agreement, shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any of the
parties to this Agreement; provided, further, that (x) the Seller shall have
delivered to the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation, merger, or succession and such
agreement of assumption comply with this Section 6.2, and (y) all conditions
precedent, if any, provided for in this Agreement relating to such merger,
consolidation or succession have been complied with. Notwithstanding the above,
no such transaction shall result in the Seller becoming subject to the
provisions of the United States Bankruptcy Code or similar laws of any State.
The Seller or its successor hereunder shall provide the Indenture Trustee, the
Servicer and the Rating Agencies with prompt notice of any such transaction.
SECTION 6.3 Limitation on Liability of Seller and Others. No recourse
--------------------------------------------
under or upon any obligation or covenant of this Agreement, or of any Note or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, shareholder, officer or director as such, of the
Seller or of any successor corporation, either directly or through the Seller,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise. This Agreement and the
obligations created hereunder are solely corporate obligations, and no personal
liability whatever shall attach to, or is or shall be incurred by the
incorporators, shareholders, officers or directors, as such, of the Seller, or
any of them, because of the issuance of the Notes, or under or by reason of the
obligations, covenants or agreements contained in this Agreement or in any of
the Notes or implied therefrom. Any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, shareholder, officer or
director, as such, because of the issuance of the Notes, or under or by reason
of the obligations, covenants or agreements contained in this Agreement or in
any of the Notes or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Agreement
and the issuance of the Notes. The Seller and any director, officer, employee or
agent of the Seller may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
SECTION 6.4 Seller May Own Notes. Subject to the provisions of the
--------------------
Sale and Servicing Agreement, Seller and any Affiliate of Seller may in their
individual or any other capacity become the owner or pledgee of Notes with the
same rights as they would have if they were not Seller or an Affiliate thereof.
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SECTION 6.5 Amendment.
---------
(a) This Agreement may be amended by Seller and Purchaser without the
consent of the Indenture Trustee, the Owner Trustee or any of the
Noteholders (i) to cure any ambiguity or (ii) to correct any provisions in
this Agreement; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Issuer, the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests
of any Noteholder.
(b) This Agreement may also be amended from time to time by Seller
and Purchaser, with the consent of the Indenture Trustee and, if required,
the Noteholders, in accordance with the Sale and Servicing Agreement, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Noteholders; provided, however, the Seller
-------- -------
provides the Indenture Trustee with an Opinion of Counsel, (which may be
provided by the Seller's internal counsel) that no such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that
shall be required to be made on any Note.
(c) Prior to the execution of any such amendment or consent, Seller
shall have furnished written notification of the substance of such
amendment or consent to each Rating Agency.
(d) It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Noteholders shall
be subject to such reasonable requirements as the Indenture Trustee may
prescribe, including the establishment of record dates. The consent of a
Holder of a Note given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder
and on all future Holders of such Note and of any Note issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Note.
SECTION 6.6 Notices. All demands, notices and communications to
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Seller or Purchaser hereunder shall be in writing, personally delivered, or sent
by telecopier (subsequently confirmed in writing), reputable overnight courier
or mailed by certified mail, return receipt requested, and shall be deemed to
have been given upon receipt (a) in the case of Seller, to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: [Chief Financial Officer], or (b)
in the case of Purchaser, to Chevy Chase SPV, [_________________], Attention:
[Chief Financial Officer], or such other address as shall be designated by a
party in a written notice delivered to the other party or to the Issuer, Owner
Trustee or the Indenture Trustee, as applicable.
SECTION 6.7 Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement and any documents required for the transactions
contemplated hereby set forth the entire understanding of the parties relating
to the subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement and any documents required
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for the transactions contemplated hereby. This Agreement may not be modified,
amended, waived or supplemented except as provided herein.
SECTION 6.8 Severability of Provisions. If any one or more of the
--------------------------
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9 Governing Law. This Agreement shall be construed in
-------------
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 6.10 Counterparts. For the purpose of facilitating the
------------
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.11 Conveyance of the Receivables to the Issuer. Seller
-------------------------------------------
acknowledges that Purchaser intends, pursuant to the Sale and Servicing
Agreement, to convey the Receivables, together with its rights under this
Agreement, to the Issuer on the date hereof. Seller acknowledges and consents to
such conveyance and pledge and waives any further notice thereof and covenants
and agrees that the representations and warranties of Seller contained in this
Agreement and the rights of Purchaser hereunder are intended to benefit the
Issuer, the Owner Trustee, the Indenture Trustee, and Noteholders. In
furtherance of the foregoing, Seller covenants and agrees to perform its duties
and obligations hereunder, in accordance with the terms hereof for the benefit
of the Issuer, the Owner Trustee, the Indenture Trustee, and Noteholders and
that, notwithstanding anything to the contrary in this Agreement, Seller shall
be directly liable to the Issuer, the Owner Trustee, the Indenture Trustee, and
Noteholders (notwithstanding any failure by the Servicer or the Purchaser to
perform its respective duties and obligations hereunder or under any documents
required for the transactions contemplated hereby) and that the Indenture
Trustee may enforce the duties and obligations of Seller under this Agreement
against Seller for the benefit of the Issuer, the Owner Trustee, the Indenture
Trustee, and Noteholders.
SECTION 6.12 Nonpetition Covenant. Neither Purchaser nor Seller shall
--------------------
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Purchaser or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Purchaser or the Issuer or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of the Purchaser or the Issuer.
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IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CHEVY CHASE SPV, as Purchaser
By
----------------------------------------
Name:
Title:
CHEVY CHASE BANK, F.S.B.,
as Seller
By
----------------------------------------
Name:
Title:
Accepted:
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By
------------------------------
Name:
Title:
[Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES FROM CHEVY CHASE BANK, F.S.B.,
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF
---------------------------------
CHEVY CHASE BANK, F.S.B. ("CHEVY CHASE")
----------------------------------------
1. CHARACTERISTICS OF RECEIVABLES. Each Receivable (a) shall have been
originated or purchased by the Seller, (b) shall have been fully and properly
executed by the parties thereto, (c) is a fully-amortizing simple interest
installment contract or installment loan which provides for level monthly
payments over its original term, provided that some Receivables may include a
payment in the last month in the life of the Receivable which due to
delinquencies or partial prepayments may be different from the level monthly
payment, (d) shall have created or shall create a valid, subsisting, and
enforceable first priority security interest in favor of the Seller in the
Financed Vehicle, which security interest shall be assignable and shall have
been validly assigned by the Seller to the Trust, and by the Trust to the
Indenture Trustee, (e) 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 and (f) is
payable in United States dollars. No Receivable is a Balloon Receivable.
2. SCHEDULE OF RECEIVABLES. The information set forth in the Schedule of
Receivables shall be true and correct in all material respects as of the opening
of business on the Cut-Off Date. The Seller shall have caused its electronic
ledger relating to each related Receivable to be clearly and unambiguously
marked to show that such Receivable has been sold to the Trust for the benefit
of the Noteholders pursuant to this Agreement.
3. COMPLIANCE WITH LAW. Each Receivable and each sale of the related
Financed Vehicle shall have complied at the time it was originated or made and
at the execution of this Agreement 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 Federal Truth-in-
Lending Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the ▇▇▇▇▇▇▇▇ ▇▇▇▇ Warranty Act, the Federal Reserve
Board's Regulations B and Z, and State adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code, and other applicable consumer credit
laws and equal credit opportunity and disclosure laws.
4. BINDING OBLIGATION. Each Receivable represents the genuine, legal,
valid, and binding payment obligation in writing of the related Obligor,
enforceable by the holder thereof in accordance with its terms. All parties to
such Receivable have full legal capacity to execute and deliver such Receivable
and all other documents related thereto and to grant the security interest
granted thereby and the terms of such Receivable have not been waived or
modified in any respect (other than modifications or extensions of payments
granted in the ordinary course of the Servicer's collection procedures and the
term of which does not extend beyond the last day of the Collection Period
immediately preceding the latest Final Scheduled Payment Date).
5. NO GOVERNMENT OBLIGOR. None of the Receivables shall be due from the
United States of America or any State or local government or from any agency,
department, or instrumentality of the United States of America or any State or
local government. NO BANKRUPT OBLIGOR. None of the Receivables shall be due
from an Obligor who has commenced a voluntary case under the United States
Bankruptcy Code or consented to the entry of or failed to have stayed within 60
days of entry an order for relief against it in an involuntary case under the
United States Bankruptcy Code.
6. COMPOSITION OF RECEIVABLES. Each Receivable is secured by a Financed
Vehicle which is a new or used automobile, light duty truck or van.
7. MATURITY OF RECEIVABLES. Each Receivable shall have an original term
to stated maturity of at least [__] months and not more than [__] months.
8. MINIMUM AND MAXIMUM ANNUAL PERCENTAGE RATE. Each Receivable shall have
an Annual Percentage Rate no less than [_____]% and no more than [_____]%.
9. MINIMUM AND MAXIMUM PRINCIPAL BALANCE. Each Receivable shall have a
Principal Balance as of the Cut-Off Date no less than $[_____] and no more than
$[_____].
10. STATES OF OBLIGOR RESIDENCE. Except with respect to Receivables with
an aggregate Principal Balance as of the Cut-Off Date representing [_____]% of
the Original Pool Balance, the Obligor under each Receivable has a billing
address in Texas, Georgia, Virginia, Maryland or North Carolina.
11. LOCATION OF RECEIVABLE FILES. The Receivable Files shall be kept by
the Servicer as custodian for the Indenture Trustee at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location or locations as may be
designated from time to time by notice to the Indenture Trustee.
12. ADVANCE PAYMENTS. As of the day prior to the Cut-Off Date, no
Receivable has been paid more than 180 days in advance.
13. NO ADVERSE SELECTION. The Receivables were selected from retail
installment sales contracts and motor vehicle installment loans in the Seller's
portfolio that had met the applicable conditions specified in this Schedule B
utilizing no selection procedures adverse to the Noteholders relative to similar
retail installment sales contracts and motor vehicle installment loans in the
Seller's portfolio.
14. NO DEFAULT. Except for payment defaults continuing for a period of not
more than 59 days, as of the Cut-Off Date, no default, breach, violation or
event permitting acceleration under the terms of any Receivable shall exist; no
continuing condition that with notice or lapse of time would constitute a
default, breach, violation or event permitting acceleration under the terms of
any Receivable shall exist; and the Seller shall not have waived any of the
foregoing.
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15. INSURANCE. The Servicer, in accordance with its customary procedures,
shall have (i) required that the Obligor obtain physical damage and theft
insurance covering the Financed Vehicle as of the date of related contract and
(ii) obtained vendor's single interest insurance covering the Financed Vehicle.
16. RECEIVABLES IN FORCE. No Receivable shall have been satisfied,
subordinated, or rescinded, nor shall any Financed Vehicle have been released
from the lien granted by the related Receivable in whole or in part.
17. NO DEFENSES. No facts exist which would give rise to any right of
rescission, setoff, counterclaim or defense nor shall have any right of
rescission, setoff, counterclaim, or defense been asserted or threatened with
respect to any Receivable.
18. NO LIENS. No liens or claims shall have been filed, including liens
for work, labor, materials or taxes relating to a Financed Vehicle, that shall
be liens prior to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by the Obligor pursuant to the Receivable.
19. NO ASSIGNMENT. The Seller has not taken any action to convey any right
to any Person that would result in such Person having a right to payments due
under the Receivable that is senior to or equal with that of the Trust.
20. LAWFUL ASSIGNMENT. No Receivable shall have been originated in, or
shall be subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Receivable under this Agreement or transfers of
the Notes would be unlawful, void, or voidable.
21. CONTINUING SECURITY INTEREST. This Agreement creates a valid and
continuing security interest (as defined in Uniform Commercial Code as in effect
in the Commonwealth of Virginia) in the Receivables in favor of the Trust, which
security interest is prior to all other liens, and is enforceable as such
against creditors of and purchasers from the Seller and the Trust.
22. SECURITY INTEREST IN FINANCED VEHICLE. Immediately prior to the sale,
assignment, and transfer thereof to the Purchaser, each Receivable shall be
secured by a validly perfected first priority security interest in the Financed
Vehicle in favor of the Seller as secured party and all necessary and
appropriate actions with respect to such Receivable shall have been taken to
perfect a first priority security interest in the Financed Vehicle in favor of
the Seller as secured party, which security interest is assignable and has been
so assigned to the Purchaser, by the Purchaser to the Trust and by the Trust to
the Indenture Trustee.
23. NO OTHER FILINGS. The Seller has not authorized the filing of and is
not aware of any financing statements against the Purchaser, the Indenture
Trustee or the Trust that include a description of collateral covering the
Receivables other than any financing statement relating to the security interest
granted to the Purchaser hereunder, to the Trust under the Sale and Servicing
Agreement or to the Indenture Trustee under the Indenture or that has been
terminated. The Seller is not aware of any judgment or tax lien filings against
the Seller.
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24. TITLE. It is the intention of the Seller that the transfer and
assignment herein contemplated, taken as a whole, constitutes a sale of the
Receivables and other property of the Trust from the Seller to the Purchaser and
that the beneficial interest in and title to the Receivables and other Trust
property not be part of the receivership or conservatorship estate in the event
of the appointment of a receiver or conservator for the Seller. No Receivable
has been sold, transferred, assigned, or pledged by the Seller to any Person
other than the Purchaser. Immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title to each Receivable
free and clear of all Liens, and, immediately upon the transfer thereof, the
Purchaser shall have good and marketable title to each Receivable, free and
clear of all Liens and rights of others, except for the rights of the
Noteholders; and the transfer has been perfected under the Uniform Commercial
Code of the Commonwealth of Virginia or the District of Columbia.
25. ALL FILINGS MADE. All filings (including, without limitation, Uniform
Commercial Code filings) necessary in any jurisdiction to give the Purchaser,
the Trust and the Indenture Trustee a first priority perfected security interest
in the Receivables shall have been made.
26. ONE ORIGINAL. There shall be only one original executed copy of each
Receivable, and immediately prior to the constructive delivery thereof to the
Indenture Trustee pursuant to Section 3.3 of the Sale and Servicing Agreement,
such copy shall have been in the custody and possession of the Seller.
27. CHATTEL PAPER; HOME OFFICE. The Receivables constitute "tangible
chattel paper" within the meaning of the Uniform Commercial Code as in effect in
the Commonwealth of Virginia. The home office of the Seller is located in the
Commonwealth of Virginia as designated in the Seller's federal charter.
28. RECEIVABLES, FINANCING STATEMENTS. The Receivables do not have any
marks or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Purchaser, the Trust or the Indenture
Trustee. All financing statements filed or to be filed against the Seller in
favor of the Purchaser in connection herewith describing the Receivables contain
a statement to the following effect: "A purchase of or security interest in any
collateral described in this financing statement will violate the rights of the
Purchaser."
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