Exhibit 10.1.1
LOAN CONTRIBUTION AGREEMENT,
among
[---------------------------]
and
[-----------------]
as Contributors,
[-----------------]
as Sponsor
and
ACE SECURITIES CORP.
Dated as of [_______________]
TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
CONTRIBUTION OF RECEIVABLES
2.1. Contribution of Receivables...............................................................................3
2.2. The Closing...............................................................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Company.............................................................4
3.2. Representations and Warranties of each Contributor........................................................6
ARTICLE IV
CONDITIONS
4.1. Conditions to Obligation of the Company..................................................................13
4.2. Conditions to Obligation of the Contributors.............................................................14
ARTICLE V
COVENANTS OF THE CONTRIBUTORS
5.1. Protection of Right, Title and Interest..................................................................15
5.2. Other Liens or Interests.................................................................................17
5.3. Chief Executive Office...................................................................................16
5.4. Costs and Expenses.......................................................................................16
5.5. Delivery of Receivable Files.............................................................................16
5.6. Indemnification..........................................................................................17
5.7. Sale.....................................................................................................17
5.8. No Petition..............................................................................................17
5.9. Collected Funds..........................................................................................17
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. Obligations of Contributors..............................................................................18
6.2. Repurchase Events........................................................................................18
6.3. Assignment of Contributed Receivables....................................................................18
6.4. [Reserved]...............................................................................................18
6.5. Trust....................................................................................................18
6.6. Amendment................................................................................................19
6.7. Accountants' Letters.....................................................................................20
6.8. Waivers..................................................................................................21
6.9. Notices..................................................................................................20
6.10. Costs and Expenses.......................................................................................20
6.11. Representations of the Contributors and the Company......................................................21
6.12. Confidential Information.................................................................................21
6.13. Headings and Cross-References............................................................................21
6.14. Third Party Beneficiaries................................................................................21
6.15. Governing Law............................................................................................22
6.16. Counterparts.............................................................................................22
EXHIBITS
Exhibit A Schedule of Receivables
Exhibit B Location of Receivables
LOAN CONTRIBUTION AGREEMENT, dated as of [______________], by and
among [________________], a [__________] corporation and [_________], a
[________] corporation, having its principal executive offices at [________], a
"CONTRIBUTOR"), ACE SECURITIES CORP., a [_______] corporation (the "COMPANY"),
having its principal executive office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and [___________] as sponsor (the "Sponsor").
WHEREAS, in the regular course of each Contributor's business, such
Contributor purchases from motor vehicle dealers or otherwise originates certain
motor vehicle retail installment sale contracts secured by new and used
automobiles (including passenger cars, sport/utility vehicles, light trucks and
minivans).
WHEREAS, each Contributor and the Company wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined), are to be
contributed by such Contributor to the Company, which Receivables will be
transferred by the Company, pursuant to the Sale and Servicing Agreement (as
hereinafter defined) to the [_____________] (the "TRUST") to be created
thereunder, which Trust will issue notes (the "NOTES") and certificates (the
"CERTIFICATES") representing beneficial ownership interests in such Receivables
and the other property of the Trust.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth
in the Sale and Servicing Agreement. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of the
terms defined):
"AGREEMENT" shall mean this Loan Contribution Agreement and all
amendments and supplements hereof.
"CERTIFICATES" shall have the meaning assigned to such term in the
PREAMBLE.
"CLOSING DATE" shall mean [_____________].
"COMPANY" shall have the meaning assigned to such term in the
PREAMBLE.
"CONTRIBUTION EXCHANGE" shall mean 1,000 shares of common stock of the
Company.
"CONTRIBUTOR" shall have the meaning assigned to such term in the
PREAMBLE.
"CUTOFF DATE" shall mean [________________].
"DISTRIBUTION DATE" shall mean, for each Collection Period, the 15th
day of the following month or, if such 15th day is not a Business Day, the next
succeeding Business Day.
"INDENTURE" shall mean the Indenture dated as of [________________]
between the Trust and [________________], as trustee.
"NOTES" shall have the meaning assigned to said term in the PREAMBLE.
"PRELIMINARY PROSPECTUS" shall have the meaning assigned to such term
in the Underwriting Agreement.
"PROSPECTUS" shall have the meaning assigned to such term in the
Underwriting Agreement.
"PURCHASE EVENT" shall have the meaning specified in Section 6.2
hereof.
"RECEIVABLE" shall mean each motor vehicle retail installment sale
contract for a Financed Vehicle which shall appear on the Schedule of
Receivables.
"RELATING TO" shall mean with respect to any Receivable and any
Contributor, any Receivable transferred or assigned, or to be transferred or
assigned by such Contributor.
"RESERVE ACCOUNT INITIAL DEPOSIT" equals $[________________].
"SALE AND SERVICING AGREEMENT" shall mean the Sale and Servicing
Agreement dated as of [________________], among Ace Securities Corp., as
depositor, [________________], as servicer and sponsor and the Trust.
"SCHEDULE OF RECEIVABLES" shall mean the list of Receivables annexed
hereto as Exhibit A.
"SERVICER" shall mean [________________], in its capacity as Servicer
of the Receivables, its successors and assigns.
"SPONSOR" shall have the meaning assigned to such term in the
PREAMBLE.
"TRUST" shall mean the [________________] created by the Trust
Agreement.
"TRUST PROPERTY" shall have the meaning specified in Section 2.1
hereof.
"UCC" shall mean the Uniform Commercial Code, as in effect from time
to time in the relevant jurisdictions.
"UNDERWRITING AGREEMENT" shall mean the Underwriting Agreement dated
[________________], among [________________], as representative of the several
underwriters specified therein, the Company and the Sponsor.
ARTICLE II
CONTRIBUTION OF RECEIVABLES
2.1. CONTRIBUTION OF RECEIVABLES. On the Closing Date, subject to the
terms and conditions of this Agreement, each Contributor agrees to contribute to
the Company, and the Company agrees to acquire from each Contributor, the
Receivables owned by such Contributor immediately prior to the Closing Date and
the other Trust Property relating thereto.
(a) TRANSFER OF RECEIVABLES. On the Closing Date and
simultaneously with the transactions to be consummated on the Closing Date
pursuant to the Sale and Servicing Agreement, each Contributor shall contribute,
transfer, assign, grant, set over and otherwise convey to the Company, without
recourse (subject to the obligations herein), whether now or hereafter acquired:
(i) all right, title and interest of such Contributor in and
to the Receivables owned by it immediately prior to the Closing
Date and listed in Exhibit A hereto and all monies received
thereon (other than any proceeds from any Dealer commission) on
or after the Cutoff Date and, with respect to Receivables which
are Actuarial Receivables, all monies received thereon prior to
the Cutoff Date that are due on or after the Cutoff Date;
(ii) all right, title and interest of such Contributor in
and to its security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables contributed by it and any
other interest of such Contributor in such Financed Vehicles;
(iii) all right, title and interest of such Contributor in
and to any proceeds from claims on any physical damage,
repossession loss, skip, credit life and credit accident,
vendor's single interest and health insurance policies or
certificates relating to the Financed Vehicles or the Obligors;
(iv) all right, title and interest of such Contributor in
and to refunds for the costs of extended service contracts with
respect to Financed Vehicles, refunds of unearned premiums with
respect to credit life and credit accident and health insurance
policies or certificates covering an Obligor or Financed Vehicle
or his or her obligations with respect to a Financed Vehicle and
any recourse to Dealers for any of the foregoing;
(v) the interest of such Contributor in any proceeds from
any Receivable repurchased by a Dealer, pursuant to a Dealer
Agreement, as a result of a breach of representation or warranty
in the related Dealer Agreement or a default by an Obligor
resulting in the repossession of the Financed Vehicle under such
Dealer Agreement; and
(vi) the proceeds of any and all of the foregoing
(collectively, the "TRUST Property").
It is the intention of the parties hereto that the transfer and
assignment contemplated by this Agreement shall constitute a contribution of the
Receivables and the other Trust Property from the Contributors to the Company,
conveying good title thereto free and clear of any Liens (however the parties
hereto understand that the Lien of the applicable Contributor will be noted on
the certificate of title to the Financed Vehicles), and the Receivables and the
other Trust Property shall not be part of any Contributor's estate in the event
of the filing of a bankruptcy petition by or against such Contributor under any
bankruptcy or similar law. In the event that, notwithstanding the intent of the
Contributors, the transaction and assignment contemplated hereby is held not to
be a contribution, this Agreement shall constitute a grant of a security
interest in the property referred to in this Section 2.1 for the benefit of the
Company.
2.2. THE CLOSING. The contribution of the Receivables shall take place
at a closing (the "CLOSING") at the offices of Stroock & Stroock & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date, simultaneously
with the closings under: (a) the Sale and Servicing Agreement pursuant to which
(i) the Company will assign all of its right, title and interest in and to the
Receivables and the other Trust Property to the Trust for the benefit of the
Noteholders and Certificateholders and (ii) the Trust will issue and deliver to
the Company in exchange for the Receivables and the other Trust Property, the
Notes and the Certificates (b) the Underwriting Agreement pursuant to which the
Company shall sell the Notes to the Underwriters.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Contributor as of the date hereof and as of the
Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Company is duly organized
and is validly existing as a corporation in good standing under the laws of the
State of [________________], with corporate power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire and own the
Receivables.
(b) DUE QUALIFICATION. The Company is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications where failure to do so would have a material adverse effect on
its business, the transaction contemplated by this Agreement or the Receivables.
(c) POWER AND AUTHORITY. The Company has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms and
the execution, delivery and performance of this Agreement has been duly
authorized by the Company by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement shall constitute a legal,
valid and binding obligation of the Company enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar laws now or
hereafter in effect relating to creditors' rights generally and subject to
general principles of equity (whether applied in a proceeding at law or in
equity).
(e) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
result in any of the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation, as
amended, or by-laws of the Company, or any indenture, agreement, or other
instrument to which the Company is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any indenture, agreement, or other instrument (other than the Sale
and Servicing Agreement); nor violate any law, order, rule or regulation
applicable to the Company of any court or of any Federal or State regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Company or its properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Company's best knowledge, threatened against the Company,
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company or its properties: (A)
asserting the invalidity of this Agreement, the Notes or the Certificates; (B)
seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement; (C)
seeking any determination or ruling that might materially and adversely affect
the performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Notes or the Certificates; or (b) seeking
to affect adversely the Federal or state income tax or ERISA attributes of the
Trust, the Noteholders or the Certificateholders.
(g) ALL CONSENTS. All authorizations, licenses, consents, orders
or approvals of or registrations or declarations with any court, regulatory
body, administrative agency or other government instrumentality required to be
obtained, effected or given by the Company in connection with the execution and
delivery by the Company of this Agreement and the performance by the Company of
the transactions contemplated by this Agreement, have been duly obtained,
effected or given and are in full force and effect, except where failure to
obtain the same would not have a material adverse effect upon the rights of the
Issuer, the Noteholders or the Certificateholders.
(h) INSOLVENCY. The Company is not insolvent, will not be made
insolvent after giving effect to the conveyance set forth in Article II of this
Agreement and is not aware of any pending insolvency of the Company.
3.2 REPRESENTATIONS AND WARRANTIES OF EACH CONTRIBUTOR;
REPRESENTATIONS AND WARRANTIES OF THE SPONSOR.
(a) Each Contributor hereby severally represents and warrants to
the Company as of the date hereof and as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING. Such Contributor is duly
organized and is validly existing as a corporation in good
standing under the laws of the state of its incorporation
designated in the preamble hereof, with corporate power and
authority to own its properties and to conduct its business as
such properties shall be currently owned and such business is
presently conducted and had at all relevant times, and shall
have, power, authority and legal right to acquire, own and
contribute the Receivables.
(ii) DUE QUALIFICATION. Such Contributor is duly qualified
to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications where
the failure to do so would have a material adverse effect on its
business or the transaction contemplated in this Agreement.
(iii) POWER AND AUTHORITY. Such Contributor has the
corporate power and authority to execute and deliver this
Agreement and to carry out its terms; such Contributor has full
power and authority to contribute and assign the property
contributed and assigned to the Company and has duly authorized
such contribution and assignment to the Company by all necessary
corporate action; and the execution, delivery and performance of
this Agreement has been duly authorized by such Contributor by
all necessary corporate action.
(iv) VALID CONTRIBUTION; BINDING OBLIGATION. This Agreement
effects a valid contribution, transfer and assignment of the
Receivables and the other Trust Property conveyed by such
Contributor to the Company pursuant to Section 2.1, enforceable
against creditors of and purchasers from such Contributor; and
this Agreement constitutes a legal, valid and binding obligation
of such Contributor enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and
similar laws now or hereafter in effect relating to creditors'
rights generally and subject to general principles of equity
(whether applied in a proceeding at law or in equity).
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not result in any material breach of any of the terms
and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation,
as amended, or by-laws of such Contributor, or any indenture,
agreement, or other instrument to which such Contributor is a
party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, or other instrument
(other than the Sale and Servicing Agreement); nor violate any
law, order, rule or regulation applicable to such Contributor of
any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Contributor or its properties.
(vi) NO PROCEEDINGS. There are no proceedings or
investigations pending, or to such Contributor's best knowledge,
threatened against such Contributor, before any court, regulatory
body, administrative agency, or other governmental
instrumentality having jurisdiction over such Contributor or its
properties: (A) asserting the invalidity of this Agreement, the
Notes or the Certificates; (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement; (C) seeking any determination or
ruling that might materially and adversely affect the performance
by such Contributor of its obligations under, or the validity or
enforceability of, this Agreement, the Notes or the Certificates;
or (D) seeking to adversely affect the Federal or State tax or
ERISA attributes of the Trust, the Noteholders or the
Certificateholders.
(vii) ALL CONSENTS. All authorizations, licenses, consents,
orders or approvals of or registrations or declarations with any
court, regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by
such Contributor in connection with the execution and delivery by
such Contributor of this Agreement and the performance by such
Contributor of the transactions contemplated by this Agreement,
have been duly obtained, effected or given and are in full force
and effect, except where failure to obtain the same would not
have a material adverse effect upon the rights of the Issuer, the
Noteholders or the Certificateholders.
(viii) INSOLVENCY. Such Contributor is not insolvent, will
not be made insolvent after giving effect to the conveyance set
forth in Article II of this Agreement, and is not aware of any
pending insolvency of such Contributor.
(ix) SECURITY INTERESTS. The Financed Vehicles relating to
such Contributor are not subject to any security interest, other
than pursuant to this Agreement.
(x) CHIEF EXECUTIVE OFFICES. The principal place of business
and chief executive office of each Contributor is as specified in
the preamble of this Agreement.
(b) Each Contributor makes the following representations and
warranties relating only with respect to the Receivables and the other related
Trust Property conveyed by such Contributor on which the Company relies in
accepting such Receivables and the other Trust Property relating thereto. Such
representations and warranties speak as of the execution and delivery of this
Agreement, but shall survive the contribution, transfer, and assignment of such
Receivables and the other Trust Property relating thereto to the Company and the
subsequent assignment and transfer thereof pursuant to the Sale and Servicing
Agreement and Indenture:
(i) TITLE. It is the intention of each Contributor that the
transfer and assignment herein contemplated constitute a
contribution of the Receivables conveyed by such Contributor to
the Company pursuant to Section 2.1 and that the beneficial
interest in and title to such Receivables not be part of the
debtor's estate in the event of the filing of a petition for
receivership by or against such Contributor. No Receivable has
been transferred by such Contributor to any Person other than the
Company and no Receivable is subject to any lien other than
pursuant to this Agreement. Immediately prior to the transfer and
assignment herein contemplated, such Contributor had good and
marketable title to each Receivable, free and clear of all Liens
and, immediately upon the transfer thereof, the Company shall
have good and marketable title to each such Receivable, free and
clear of all Liens; and the transfer of the Receivables to the
Company has been perfected under the UCC.
(ii) ALL FILINGS MADE. All filings (including UCC filings)
necessary in any jurisdiction to give the Company a first
priority perfected security interest in the Receivables, shall
have been presented to the Trustee, on behalf of the Company, for
filing in the appropriate filing office. Upon such filing, the
Company will have a first priority protected security interest in
the Trust Property.
(iii) CHARACTERISTICS OF RECEIVABLES. Each Receivable (A)
has been originated by a Dealer in the regular course of such
Dealer's business and purchased from such Dealer by a Contributor
in the ordinary course of such Contributor's business or
otherwise originated by such Contributor in the ordinary course
of such Contributor's business, and each Obligor was approved in
accordance with such Contributor's standard underwriting
procedures in effect at the time such Receivable was originated
or purchased, (B) is being conveyed by the related Contributor to
the Company, (C) has created or shall create a valid, subsisting
and enforceable first priority security interest in favor of the
related Contributor in the related Financed Vehicle, which
security interest has been assigned by such Contributor to the
Company and which is assignable by the Company to the Trust and
by the Trust to the Trustee, (D) contains customary and
enforceable provisions under the laws of the State governing such
Receivable such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of
the benefits of the security; and (E) provides for level monthly
payments that fully amortizes the Amount Financed by maturity
(except for the last payment, which may be different from the
level payment and except, with respect to a Balloon Loan, to the
extent of the Balloon Payment).
(iv) COMPLIANCE WITH LAW. Each Receivable, the sale of the
Financed Vehicle and the sale of any physical damage and credit
life and credit accident and health insurance and any extended
service contracts complied in all material respects at the time
it was originated or made and at the Closing Date (after giving
effect to the transactions contemplated by the Basic Documents)
complies in all material respects with all requirements of
applicable Federal, state and local laws and regulations
thereunder, including usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal
Reserve Board's Regulations B and Z, the Soldier's and Sailor's
Civil Relief Act of 1940, state adaptations of the National
Consumer Act and the Uniform Consumer Credit Code (if
applicable), and other consumer credit laws and equal credit
opportunity and disclosure laws.
(v) BINDING OBLIGATION. Each Receivable represents the
legal, valid and binding payment obligation in writing of the
Obligor thereunder, enforceable by the holder thereof in
accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws now or
hereafter in effect related to or affecting creditors' rights
generally and subject to general principles of equity (whether
applied in a proceeding at law or in equity) and all parties to
such Receivable had full legal capacity to execute and deliver
such Receivable and all other documents related thereto and to
grant the security interest purported to be granted thereby.
(vi) NO GOVERNMENT OBLIGOR. None of the Receivables is due
from the United States of America or any State or from any
agency, department or instrumentality of the United States of
America or any State.
(vii) SECURITY INTEREST IN FINANCED VEHICLE. Immediately
prior to the contribution, assignment, and transfer thereof under
the Agreement, (i) each Receivable shall be secured by a validly
perfected first priority security interest in the Financed
Vehicle in favor of such Contributor as secured party, or (ii)
application has been made with the appropriate governmental
authority for a valid perfected first priority security interest
in the Financed Vehicle in favor of such Contributor, and such
security interest is or shall be prior to all other Liens upon
and security interests in such Financed Vehicle which now exist
or may hereafter arise or be created (except, as to priority, for
any tax liens or mechanics' liens which may arise after the
Closing Date).
(viii) RECEIVABLES IN FORCE. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed
Vehicle been released from the Lien granted by the related
Receivable in whole or in part unless another vehicle has been
substituted as collateral securing the Receivable without any
other modification to such Receivable.
(ix) NO WAIVER. No provision of a Receivable has been
modified or waived except as reflected in the Receivable File
relating to such Receivable.
(x) NO AMENDMENTS. No Receivable has been amended, except as
would have been permitted pursuant to Section 4.2 of the Sale and
Servicing Agreement if such Receivable had been owned by the
Trust.
(xi) NO DEFENSES. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with
respect to any Receivable. The operation of the terms of any
Receivable or the exercise of any right thereunder will not
render such Receivable unenforceable in whole or in part or
subject to any such right of rescission, setoff, counterclaim, or
defense.
(xii) NO LIENS. As of the Cutoff Date, there are no Liens or
claims, including Liens for work, labor, materials or unpaid
state or federal taxes relating to any Financed Vehicle securing
the related Receivable, that are or may be prior to or equal to
the Lien granted by such Receivable.
(xiii) NO DEFAULT. Except for payment delinquencies
continuing for a period of not more than thirty days as of the
Cutoff Date and, except as permitted in this paragraph, no
default, breach, violation or event (in any such case) permitting
acceleration under the terms of any Receivable has occurred; and
no continuing condition that with notice or the lapse of time
would constitute a default, breach, violation or event (in any
such case) permitting acceleration under the terms of any
Receivable has arisen; and such Contributor has not waived and
shall not waive any of the foregoing.
(xiv) NO BANKRUPTCIES. No Obligor on any Receivable was
noted in the related Receivable File as having filed for
bankruptcy in a proceeding which remained undischarged as of the
Cutoff Date.
(xv) NO REPOSSESSIONS. As of the Cutoff Date, no Financed
Vehicle securing any Receivable is in repossession status.
(xvi) CHATTEL PAPER. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(xvii) INSURANCE; OTHER. The related Contributor, in
accordance with its customary procedures, has confirmed (A) that
each Obligor has obtained insurance covering the Financed Vehicle
as of the date of execution of the Receivable insuring against
loss and damage due to fire, theft, collision and other risks
generally covered by comprehensive and collision coverage and
that each Receivable requires the Obligor to maintain such
insurance naming the applicable Contributor and its successors
and assigns as a loss payee, (B) each Receivable that finances
the cost of premiums for credit life and credit accident and
health insurance is covered by an insurance policy or certificate
of insurance naming the applicable Contributor as loss payee
(lienholder) under each such insurance policy and certificate of
insurance and (C) as to each Receivable that finances the cost of
an extended service contract, the respective Financed Vehicle
which secures the Receivable is covered by an extended service
contract.
(xviii) LAWFUL ASSIGNMENT. No Receivable has been originated
in, or as of the Closing Date is subject to the laws of, any
jurisdiction under which the contribution, transfer and
assignment of such Receivable or this Agreement or the pledge of
such Receivable to the Trustee under the Indenture (i) is
unlawful, void, voidable or unenforceable in accordance with its
terms or (ii) would render such Receivable void, voidable or
unenforceable in accordance with its terms. No Contributor has
entered into any agreement with any account debtor that
prohibits, restricts or conditions the assignment of all or any
portion of the Receivable.
(xix) NO INSURANCE PREMIUMS. As of the Cutoff Date, no
portion of the principal balance of any Receivable included
amounts attributable to the payment of any physical damage or
theft insurance premium.
(xx) ONE ORIGINAL. There is only one manually executed
original copy of each Receivable.
(xxi) COMPUTER RECORDS. As of the Closing Date, the
accounting and computer records relating to the Receivables of
such Contributor have been marked to show the absolute ownership
by the Owner Trustee on behalf of the Trust of the Receivables.
(c) The Sponsor makes the following representations and
warranties relating to the Receivables and the other related Trust Property on
which the Company relies in accepting such Receivables and the other Trust
Property relating thereto. Such representations and warranties speak as of the
execution and delivery of this Agreement, but shall survive the contribution,
transfer, and assignment of such Receivables and the other Trust Property
relating thereto to the Company and the subsequent assignment and transfer
thereof pursuant to the Sale and Servicing Agreement and Indenture:
(i) SCHEDULE OF RECEIVABLES. The information set forth in
Exhibit A to this Agreement is true and correct in all material
respects as of the close of business on the Cutoff Date and no
selection procedures believed by such Contributor to be adverse
to the Noteholders or the Certificateholders were utilized in
selecting the Receivables. The Computer Tape regarding the
Receivables is true and correct in all material respects as of
the Cutoff Date.
(ii) MATURITY OF RECEIVABLES. Each Receivable has an
original maturity of not more than [__] months; the weighted
average original maturity of the Receivables is [__] months as of
the Cutoff Date; the remaining term of each Receivable is [__]
months or less as of the Cutoff Date; the weighted average
remaining term of the Receivables is [__] months as of the Cutoff
Date; and the latest scheduled maturity of any Receivable shall
be no later than the Final Scheduled Maturity Date.
(iii) APR. The weighted average Annual Percentage Rate of
the Receivables as of the Cutoff Date is approximately [__]%.
(iv) PRINCIPAL BALANCE. Each Receivable has an outstanding
principal balance as of the Cutoff Date of not less than
$[______] or more than $[______]. The average principal balance
of the Receivables as of the Cutoff Date is $[______]. The
aggregate principal balance of the Receivables as of the Cutoff
Date is $[______].
(v) FINANCING. Approximately [____]% of the aggregate
principal balance of the Receivables, constituting approximately
[____]% of the number of Receivables, as of the Cutoff Date,
represents financing of new vehicles; the remainder of the
Receivables represents financing of used vehicles. Approximately
[____]% of the aggregate principal balance of the Receivables,
constituting approximately [____]% of the number of Receivables,
as of the Cutoff Date, represents financing of Balloon Loans.
Approximately [____]% of the aggregate Principal Balance of the
Receivables, constituting approximately [____]% of the number of
Receivables, as of the Cutoff Date, represents financing of
Simple Interest Receivables; the remainder of the Receivables
represents financing of Actuarial Receivables.
(vi) PAID-AHEAD. Not more than 1.0% of the aggregate
Principal Balance of the Receivables is paid-ahead more than six
months.
(vii) ORIGINATION OF RECEIVABLES. Based on the billing
address of the Obligors and the principal balance of Receivables
as of the Cutoff Date, approximately [____]% of the Receivables
were originated by Dealers in [_______]. Each Obligor has been
approved by the Contributor based on the Contributor's standard
underwriting procedures as in effect at the time the related
Receivable was entered into. Based on the billing address of the
Obligors and the principal balance of the Receivables as of the
Cutoff Date, not more than 10% of the Receivables were originated
in any one state other than [______].
ARTICLE IV
CONDITIONS
4.1. CONDITIONS TO OBLIGATION OF THE COMPANY. The obligation of the
Company to accept the contribution of the Receivables is subject to the
satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of each Contributor and the Sponsor hereunder shall be true and
correct in all material respects on the Closing Date with the same effect as if
then made, and each Contributor shall have performed in all material respects
all obligations to be performed by it hereunder on or prior to the Closing Date.
(b) COMPUTER FILES MARKED. Each Contributor shall, at its own
expense, on or prior to the Closing Date, indicate in its computer files that
the Receivables have been contributed to the Company pursuant to this Agreement
and will be sold to the Trust pursuant to the Sale and Servicing Agreement and
shall deliver to the Company the Schedule of Receivables certified by the
Chairman, the President, any Vice President or the Treasurer of such Contributor
to be true, correct and complete.
(c) RESERVED.
(d) DOCUMENTS TO BE DELIVERED BY THE CONTRIBUTORS AT THE CLOSING.
(i) EVIDENCE OF UCC FILING. On or prior to the Closing Date,
each Contributor shall present to the Trustee, on behalf of the
Company, for filing, at its own expense, a UCC-1 financing
statement in each jurisdiction in which such filing is required
by applicable law, executed by such Contributor, as transferor or
debtor, and naming the Company, as transferee or secured party,
naming the Receivables and the other Trust Property conveyed
hereafter as collateral, meeting the requirements of the laws of
each such jurisdiction and in such manner as is necessary to
perfect the transfer, assignment and conveyance of such
Receivables to the Company. Each Contributor shall deliver a
file-stamped copy, or other evidence satisfactory to the Company
of such filing, to the Company as soon as practicable after the
Closing Date.
(ii) OTHER DOCUMENTS. Such other documents as the Company
may reasonably request.
(e) OTHER TRANSACTIONS. The transactions contemplated by the Sale
and Servicing Agreement and the Underwriting Agreement shall be consummated on
the Closing Date.
4.2. CONDITIONS TO OBLIGATION OF THE CONTRIBUTORS. The obligation of
the Contributors to contribute the Receivables to the Company is subject to the
satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Company hereunder shall be true and correct
in all material respects on the Closing Date with the same effect
as if then made, and the Company shall have performed all
obligations in all material respects to be performed by it
hereunder on or prior to the Closing Date.
(b) ISSUANCE OF SHARES. At the Closing Date, the Company
will issue shares of common stock to each Contributor in an
amount so that each Contributor receives a percentage of the
Contribution Exchange equal to (x) the aggregate principal
balance of the Receivables, as of the Cutoff Date, contributed
hereunder by such Contributor divided by (y) the aggregate
principal balance of all Receivables, as of the Cutoff Date,
contributed hereunder by the Contributors.
(c) TRANSFER AND ASSUMPTION OF INDEBTEDNESS. At the Closing
Date, the Company will assume unsecured indebtedness of each
Contributor to [________] in a principal amount with respect to
each Contributor equal to the product of (i) the amount received
by the Company pursuant to the Underwriting Agreement (net of the
Reserve Account Initial Deposit) and (ii) (x) the aggregate
principal balance of the Receivables, as of the Cutoff Date,
contributed hereunder by such Contributor, divided by (y) the
aggregate principal balance of all Receivables, as of the Cutoff
Date, contributed hereunder by the Contributors. Simultaneously
with the transactions contemplated in the Sale and Servicing
Agreement, the indebtedness assumed by the Company above will be
extinguished. [________] will deliver evidence thereof on the
Closing Date.
ARTICLE V
COVENANTS OF THE CONTRIBUTORS
Each Contributor severally agrees with the Company as follows;
PROVIDED, HOWEVER, that to the extent that any provision of this ARTICLE V
conflicts with any provision of the Sale and Servicing Agreement, the Sale and
Servicing Agreement shall govern:
5.1. PROTECTION OF RIGHT, TITLE AND INTEREST. (a) FILINGS. Such
Contributor shall cause all financing statements and continuation statements and
any other necessary documents covering the right, title and interest of the
Company in and to the Receivables contributed by it and the other related Trust
Property to be promptly filed, and at all times to be kept recorded, registered
and filed, all in such manner and in such places as may be required by law fully
to preserve and protect the right, title and interest of the Company hereunder
to such Receivables and the other Trust Property. Each Contributor shall deliver
to the Company 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 Company shall cooperate fully with
each Contributor in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of this
Section 5.1(a).
(b) NAME AND OTHER CHANGES. If any Contributor makes any change
in its name, identity or corporate structure which would make any financing
statement or continuation statement filed pursuant hereto seriously misleading
within the applicable provisions of the UCC or any title statute, such
Contributor shall give the Owner Trustee, the Trustee, and the Company written
notice of any such change and shall file appropriate amendments to all
previously filed financing statements or continuation statements within thirty
days of the effectiveness thereof. Upon any relocation of its principal
executive office, such Contributor shall give the Owner Trustee, the Trustee,
and the Company written notice thereof within a reasonable period of time (not
to exceed 30 days) thereafter if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and such Contributor shall within such time file any such amendment or
new financing statement.
(c) ACCOUNTS AND RECORDS. The Servicer shall maintain accounts
and records as to each Receivable accurately and in sufficient detail to permit
the reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each).
(d) MAINTENANCE OF COMPUTER SYSTEMS. The Servicer shall maintain
its computer systems and each Contributor shall maintain its files so that, from
and after the time of contribution hereunder of the Receivables to the Company,
the Servicer's master computer records (including any back-up archives) and such
Contributor's files that refer to a Receivable shall indicate clearly the
interest of the Company in such Receivable and that such Receivable is owned by
the Company. Indication of the Company's ownership of a Receivable shall be
deleted from or modified on the Servicer's computer systems and such
Contributor's files when, and only when, the Receivable shall have been paid in
full, by the Contributor or Servicer, or sold to the Trust under the Sale and
Servicing Agreement.
(e) SALE OF OTHER RECEIVABLES. If at any time any Contributor
shall propose to sell, grant a security interest in, or otherwise transfer any
interest in any automobile receivables (other than the Receivables) to any
prospective purchaser, lender, or other transferee, such Contributor shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from back-up archives) that, if
they shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has been contributed to and is owned by the Company
unless such Receivable has been paid in full or repurchased.
(f) ACCESS TO RECORDS. The Servicer and each Contributor shall
permit the Company and its agents at their own cost and expense at any time
during normal business hours and upon reasonable written notice to inspect,
audit, and make copies of and abstracts from the applicable Contributor's
records regarding any Receivable.
(g) LIST OF RECEIVABLES. Upon request, the Servicer shall furnish
to the Company, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then owned by the Company, together with a
reconciliation of such list to the Schedule of Receivables.
5.2. OTHER LIENS OR INTERESTS. Except for the conveyances hereunder
and pursuant to the Sale and Servicing Agreement, each Contributor will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any interest therein, and each Contributor
shall defend the right, title, and interest of the Company in, to and under such
Receivables and each related Financed Vehicle against all claims of third
parties claiming through or under such Contributor; PROVIDED, HOWEVER, that such
Contributor's obligations under this Section 5.2 shall terminate upon the
termination of the Trust pursuant to the Sale and Servicing Agreement.
5.3. CHIEF EXECUTIVE OFFICE. During the term of the Receivables, each
Contributor other than [_____] will maintain its principal place of business and
chief executive office in the State of [__________] and [_____] will maintain
its principal place of business and chief executive office in the State of
[________].
5.4. COSTS AND EXPENSES. Each Contributor agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Company's right, title and interest in and to the Receivables.
5.5. DELIVERY OF RECEIVABLE FILES. On or prior to the Closing Date,
each Contributor shall deliver the Receivable Files relating thereto to the
Company at the location specified in Exhibit B hereto and shall cause the
Receivable Files to be marked to indicate the transfer thereof to the Company.
5.6. INDEMNIFICATION. (a) Each Contributor shall indemnify the Company
for any liability as a result of the failure of a Receivable originated by it to
be originated in compliance with all requirements of law and for any material
breach of any of its representations and warranties contained herein.
(b) Each Contributor shall defend, indemnify, and hold harmless
the Company from and against any and all reasonable costs, expenses, losses,
damages, claims, and liabilities, resulting from the use, ownership, or
operation by such Contributor or any affiliate thereof of a Financed Vehicle
related to a Receivable originated by it.
(c) Each Contributor shall defend, indemnify, and hold harmless
the Company from and against any and all taxes, except for taxes on the net
income of the Company, that may at any time be asserted against the Company with
respect to the transactions contemplated herein with respect to the Receivables
originated by it, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes and
reasonable costs and expenses in defending against the same.
(d) Each Contributor shall defend, indemnify, and hold harmless
the Company from and against any and all reasonable costs, expenses, losses,
damages, claims and liabilities to the extent that such reasonable cost,
expense, loss, damage, claim or liability resulted from the gross negligence,
willful misfeasance, or bad faith of such Contributor in the performance of its
duties under the Agreement, or by reason of reckless disregard of such
Contributor's obligations and duties under this Agreement.
5.7. CONTRIBUTION Each Contributor agrees to treat this conveyance as
a contribution on all relevant books, records and other applicable documents.
5.8. NO PETITION. Each Contributor, by entering into this Agreement,
hereby covenants and agrees that it will not at any time institute against the
Company, or join in any institution against the Company of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to this Agreement.
5.9. COLLECTED FUNDS. Each Contributor hereby covenants that on the
Closing Date it will deposit or cause to be deposited all collected funds
received prior to the Closing Date and conveyed to the Company hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. OBLIGATIONS OF CONTRIBUTORS. The obligations of the Contributors
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
6.2. PURCHASE EVENTS. The Sponsor hereby covenants and agrees with the
Company for the benefit of the Company, the Owner Trustee, the Trustee, the
Noteholders and the Certificateholders, that the occurrence of a breach of any
representations and warranties contained in Section 3.2(b) or 3.2(c) hereof
(without regard to any limitations regarding knowledge) shall constitute events
obligating the Sponsor to purchase the affected Receivables hereunder ("Purchase
Events"), at the Purchase Amount from the Trust. The provisions of this Section
6.2 are intended to grant the Trustee a direct right against the Sponsor to
demand performance hereunder, and in connection therewith the Sponsor waives any
requirement of prior demand against the Company and waives any defaults it would
have against the Company with respect to such repurchase obligation. Any such
purchase shall take place in the manner specified in Section 3.2 of the Sale and
Servicing Agreement. The sole remedy of the Noteholders, the Certificateholders,
the Trust, the Owner Trustee, the Trustee or the Company against the Sponsor,
with respect to any Purchase Event shall be to enforce the Sponsor's obligation
to purchase such Receivables pursuant to this Agreement; PROVIDED, HOWEVER, that
the Sponsor shall indemnify the Owner Trustee, the Trustee, the Trust, the
Noteholders and the Certificateholders against all reasonable costs, reasonable
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them,
as a result of third party claims arising out of the events or facts giving rise
to such breach. Upon receipt of the Purchase Amount, the Company shall cause the
Trust to release the related Receivables File to the Sponsor and to execute and
deliver all instruments of transfer or assignment, without recourse, as are
necessary to vest in the Sponsor title to the Receivable.
6.3. ASSIGNMENT OF PURCHASED RECEIVABLES. With respect to all
Receivables purchased by the Sponsor pursuant to this Agreement, the Company
shall assign, without recourse except as provided herein, representation or
warranty, to the Sponsor all the Company's right, title and interest in and to
such Receivables, and all security and documents relating thereto.
6.4. [Reserved]
6.5. TRUST. Each Contributor and the Sponsor acknowledge that the
Company will, pursuant to the Sale and Servicing Agreement, sell the Receivables
to the Trust and assign its rights under this Agreement to the Trust for the
benefit of the Noteholders and Certificateholders and that the representations
and warranties contained in this Agreement and the rights of the Company under
this Agreement, including under Sections 6.2 and 6.3 hereof are intended to
benefit such Trust and the Noteholders and Certificateholders. Each Contributor
and the Sponsor also acknowledge that the Trust on behalf of the Noteholders and
Certificateholders as assignee of the Company's rights hereunder may directly
enforce, without making any prior demand on the Company, all the rights of the
Company hereunder including the rights under Section 6.2 and 6.3 hereof. Each
Contributor and the Sponsor hereby consent to such sale and assignment.
6.6. AMENDMENT. This Agreement may be amended by the Company, the
Contributors and the Sponsor, with the consent of the Trustee and the Owner
Trustee (which consent may not be unreasonably withheld), but without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity or defect, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Owner Trustee and the Trustee, adversely affect in any material
respect the interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Company,
the Contributors and the Sponsor, with the consent of the Trustee and the Owner
Trustee, the consent of the Holders of Notes evidencing not less than a majority
of the Outstanding Amount of the Notes and the consent of the Holders (as
defined in the Trust Agreement) of Certificates evidencing not less than a
majority of the Percentage Interest for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made for the benefit of the Noteholders or the Certificateholders or (b)
reduce the aforesaid percentage of the Outstanding Amount of the Notes and the
Percentage Interest, the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
the Holders (as defined in the Trust Agreement) of all the outstanding
Certificates affected thereby.
Prior to the execution of any such amendment or consent, the Trustee
and Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Rating Agencies. Promptly after the execution of any
such amendment or consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to each Certificateholder and the
Trustee shall furnish written notification to each Noteholder.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent to the execution and
delivery of such amendment have been satisfied and the Opinion of Counsel.
6.7. ACCOUNTANTS' LETTERS. (a) [_____________] will review the
characteristics of the Receivables described in the Schedule of Receivables set
forth as Exhibit A hereto and will compare those characteristics to the
information with respect to the Receivables contained in the Preliminary
Prospectus and the Prospectus; (b) each Contributor will cooperate with the
Company and [_______________] in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in Section 6.7(a) above and to deliver the letters required of them under
the Underwriting Agreement; (c) [_____________] will deliver to the Company a
letter, dated the date of the Prospectus, in the form previously agreed to by
the Contributor and the Company, with respect to the financial and statistical
information contained in the Preliminary Prospectus under the caption
"Delinquency Experience" and "Historical Loss Experience," certain information
relating to the Receivables on magnetic tape obtained from each Contributor and
with respect to such other information as may be agreed in the form of letter;
and (d) [_____________] will deliver to the Company a letter, dated the Closing
Date, in the form previously agreed to by each Contributor and the Company, with
respect to the financial and statistical information contained in the Prospectus
under the caption "Delinquency Experience" and "Historical Loss Experience,"
certain information relating to the Receivables on magnetic tape obtained from
such Contributor and with respect to such other information as may be agreed in
the form of letter.
6.8. WAIVERS. No failure or delay on the part of the Company in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
6.9. NOTICES. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or telex and addressed or delivered to
it at its address (or in case of telex, at its telex number at such address)
shown in the opening portion of this Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex.
6.10. COSTS AND EXPENSES. The Contributors will pay all expenses
incident to the performance of their respective obligations under this Agreement
and each Contributor agrees to pay all reasonable out-of-pocket costs and
expenses of the Company, excluding fees and expenses of counsel, in connection
with the perfection as against third parties of the Company's right, title and
interest in and to the Receivables and security interests in the Financed
Vehicles and the enforcement of any obligation of any Contributor hereunder.
6.11. REPRESENTATIONS OF THE CONTRIBUTORS AND THE COMPANY. The
respective agreements, representations, warranties and other statements by the
respective Contributors and the Company set forth in or made pursuant to this
Agreement shall remain in full force and effect and will survive the closing
under Section 2.2 hereof.
6.12. CONFIDENTIAL INFORMATION. The Company agrees that it will
neither use nor disclose to any person the names and addresses of the Obligors,
except in connection with the enforcement of the Company's rights hereunder,
under the Receivables, under the Sale and Servicing Agreement or as required by
law.
6.13. HEADINGS AND CROSS-REFERENCES. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.14. THIRD PARTY BENEFICIARIES. The parties hereto hereby expressly
agree that each of the Owner Trustee for the benefit of the Certificateholders
shall be third party beneficiaries and the Trustee for the benefit of the
Noteholders with respect to this Agreement, PROVIDED, HOWEVER, that no third
party other than the Owner Trustee or Trustee shall be deemed a third party
beneficiary of this Agreement.
6.15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
6.16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
[ ]
By: ___________________________
Name:
Title:
[ ]
By: ___________________________
Name:
Title:
ACE SECURITIES CORP.
By: ___________________________
Name:
Title:
EXHIBIT A
Schedule of Receivables
[Delivered to the Trustee at Closing]
EXHIBIT B
Location of Receivables