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Exhibit 10.1
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,
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ORIGINATOR
AND
ACC CONSUMER FINANCE CORPORATION
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RECEIVABLES ACQUISITION AGREEMENT
Dated as of ________ __, 199__
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ALL RIGHTS, TITLE AND INTEREST IN AND TO THIS AGREEMENT ON THE PART OF ADVANTA
AUTO FINANCE CORPORATION HAVE BEEN ASSIGNED TO AND ARE SUBJECT TO A SECURITY
INTEREST IN FAVOR OF _________________________, AS TRUSTEE, UNDER [A [POOLING
AND SERVICING AGREEMENT] [A TRUST AGREEMENT]] [AN INDENTURE] DATED AS OF
_____________, 199__ FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
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TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRANSFER OF RECEIVABLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.01. Transfer of Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. The Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.03. The Funding Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.01. Representations and Warranties of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.02. Representations and Warranties of the Originator . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.01. Conditions to Obligation of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.02. Conditions to Obligation of the Originator . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ORIGINATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.01. Protection of Right, Title and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.02. Other Liens or Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.03. Principal Executive Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.04. Trustee as Additional Insured. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.05. Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.06. No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.07. Location of Servicer Files. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.08. Transfer of Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.09. Originator's Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.10. Transfer of Additional Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.11. No Bankruptcy Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.12. Covenants Regarding Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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ARTICLE VI
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.01. Obligations of Originator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.02. Reacquisition Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.03. The Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.04. Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.05. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.06. Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.07. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.08. Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.09. Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.10. Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.11. Headings and Cross-References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.12. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.13. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
EXHIBIT A ASSIGNMENT
EXHIBIT B SCHEDULE OF RECEIVABLES
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RECEIVABLES ACQUISITION AGREEMENT
This RECEIVABLES ACQUISITION AGREEMENT is made as of this __th
day of ____, 199__, by and between ________________, a ___________
[corporation], having its principal executive office at _______________________
(the "Originator") and ACC Consumer Finance Corporation, a Delaware
corporation, having its principal place of business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "Depositor").
WHEREAS, the Originator and the Depositor wish to set forth
the terms pursuant to which (i) the Receivables (as hereinafter defined) are to
be pledged, transferred, assigned and otherwise conveyed by the Originator to
the Depositor, which Receivables will be transferred and assigned by the
Depositor, pursuant to the [[Pooling and Servicing Agreement] [Trust
Agreement]] (as hereinafter defined), to ACC Automobile Receivables Trust (the
"Trust") to be created thereunder, which Trust will issue [certificates as
security for the loan from the securityholders to the Originator (the "Class __
[Certificates] [Notes]"); and (ii) additional Receivables will from time to
time be pledged, transferred, assigned and otherwise conveyed by the Originator
to the Depositor, which Receivables will then be transferred and assigned by
the Depositor to the Trust on Funding Dates (as hereinafter defined); and
WHEREAS, all Receivables transferred pursuant to this
Agreement shall constitute Eligible Receivables (as hereinafter defined) as of
the Closing Date or the Funding Date, as the case may be, on which they are
transferred hereunder.
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained
herein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set
forth in the [[Pooling and Servicing Agreement] [Trust Agreement]] dated as of
_______, 199__ among the Depositor, the Originator, and _________________, as
trustee ("[Pooling and Servicing Agreement] [Trust Agreement]"). As used in
this Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally applicable
to the singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Acquisition Agreement
and all amendments hereof and supplements hereto.
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"Assignment" shall mean the document of assignment attached to
this Agreement as Exhibit A.
"Class __ [Certificate] [Note]" shall have the meaning
specified in the [Pooling and Servicing Agreement] [Trust Agreement].
"Closing Date" shall mean ________, 199__.
"Closing Date Receivables" shall mean the Receivables acquired
by the Depositor from the Originator pursuant to the Agreement on the Closing
Date.
"Collections" shall mean all amounts collected by the [Master
Servicer] or any Servicer or Subservicer (as defined in the [Pooling and
Servicing Agreement] [Trust Agreement]) (from whatever source) on or with
respect to the Receivables.
"Custodian Files" shall have the meaning specified in the
[Pooling and Servicing Agreement] [Trust Agreement].
"Cutoff Date" shall mean __________, 199__ with respect to the
Closing Date and the last Business Day of each calendar week preceding the
calendar week of a Funding Date, with respect to each Funding Date.
"Eligible Receivable" means any Receivable as to which all of
the representations set forth in Section 3.02(b) hereof are true.
"Funding Date" shall mean each date occurring no more than
once per calendar week during the period beginning on the Closing Date and
ending on _________, 199__.
"Funding Date Receivables" means, with respect to a Funding
Date, the Eligible Receivables to be pledged, transferred, assigned and
otherwise conveyed by the Originator to the Depositor on such date and
identified on Schedule I attached to an Assignment substantially in the form of
Exhibit A hereto delivered on such Funding Date.
"Funding Event" shall mean, with respect to a Funding Date,
the occurrence of the events described in the definition of Funding Date.
"[Master Servicer]" shall mean ___________________, a
_________ [corporation], its successors and assigns.
"Obligor" shall have the meaning specified in the [Pooling and
Servicing Agreement] [Trust Agreement].
"Originator" shall mean _____________, a ___________
[corporation], its successors and assigns.
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"Person" shall have the meaning specified in the [Pooling and
Servicing Agreement] [Trust Agreement].
"[Pooling and Servicing Agreement] [Trust Agreement]" shall
mean the [Pooling and Servicing Agreement] [Trust Agreement] by and among the
Originator; the Depositor; and ___________, as trustee, dated as of _________,
199__.
["Pre-Funding Review" means a review conducted by the Review
Firm prior to the Closing Date and each Funding Date with respect to
Receivables to be included in the Trust Fund as of such date and prior to the
Closing Date with respect to certain historical data included in the Prospectus
Supplement dated ____________, 199__ (the "Prospectus Supplement"). The Review
Firm will review the Receivable files to determine:
(A) with respect to a randomly selected,
statistically valid sample of such Receivables, whether such
Receivables constitute Eligible Receivables;
(B) with respect to each Receivable, the
existence and delivery to the Trustee of:
(1) the original retail installment sale
contract evidencing such Receivable,
(2) an original certificate or an
original or copy of a guarantee of title or a copy of
dealer guarantee of title, and
(3) a copy of an application for, or an
instrument certificate issued by the Risk Default
Insurer; and
(C) with respect to the Receivables to be
included in the Trust Fund as of the Closing Date or a Funding
Date, as the case may be, confirmation of certain figures
stated on a report substantially in the form of Exhibit to the
[Pooling and Servicing Agreement] [Trust Agreement].]
"Rating Agency" shall mean ___________________ or any
successors thereto.
"Receivable" shall mean any retail installment sale contract
and installment loan identified on Exhibit B hereto which shall be amended from
time to time on Funding Dates.
"Receivables Cash Purchase Price" with respect to each
Eligible Receivable pledged, transferred, assigned and otherwise conveyed on
the Closing Date, and each Eligible Receivable pledged, transferred, assigned
and otherwise
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conveyed on a Funding Date, shall mean __% of the Principal Amount thereof plus
accrued interest from the respective Cutoff Date to the Closing Date or the
Funding Date, as the case may be.
"Replacement Receivable" shall mean a Receivable which (i)
previously secured a receivable originated by the Originator and (ii) was
repossessed due to a default on such prior receivable or a voluntary return of
such vehicle by the Obligor.
"Reacquisition Event" shall have the meaning specified in
Section 7.02 hereof.
["Review Firm" shall mean ________________, its successors and
assigns or another firm of independent certified public accountants selected by
the Depositor]
"Risk Default Insurance Policy" or "Risk Default Policy" means
auto loan protection insurance naming the Trustee as an insured, which covers
the Receivables, and which insurance is currently issued by
_______________________________.
"Risk Default Insurer" means _____________________, its
successors and assigns.
"Schedule of Receivables" shall mean the list of Receivables
annexed hereto as Exhibit B.
"Servicer Files" shall have the meaning specified in the
[Pooling and Servicing Agreement] [Trust Agreement].
"Trust" shall mean the ACC Automobile Receivables Trust.
"Trustee" shall mean ______________________, its successors
and assigns.
"UCC" shall mean the Uniform Commercial Code, as in effect
from time to time in the relevant jurisdictions.
"Underwriter" shall mean _______________, its successors and
assigns.
ARTICLE II
TRANSFER OF RECEIVABLES
Section 2.01. TRANSFER OF RECEIVABLES. On the Closing Date
and on each Funding Date, subject to the terms and conditions of this
Agreement, the Originator agrees to pledge, transfer, assign and otherwise
convey to the
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Depositor, and the Depositor agrees to acquire from the Originator, Eligible
Receivables and the other Trust Property relating thereto (as defined in
Section 2.01(a) below). The Receivables transferred on the Closing Date are
identified in an exhibit substantially in the form of Exhibit B hereto and
shall be covered by an Assignment substantially in the form of Exhibit A
hereto. The Receivables pledged, transferred, assigned and otherwise conveyed
on each Funding Date shall be identified on Schedule I to Exhibit B attached to
an Assignment substantially in the form of Exhibit A hereto.
(a) Initial Transfer of Receivables and Trust Property. On
the Closing Date and simultaneously with the transactions pursuant to
the [Pooling and Servicing Agreement] [Trust Agreement], the
Originator shall pledge, transfer, assign and otherwise convey to the
Depositor, without recourse, a 100% interest in (i) all right, title
and interest of the Originator in and to the Closing Date Receivables,
and all moneys due thereon (with respect to Precomputed Receivables),
on and after the Cutoff Date (ii) the security interest of the
Originator in the security interests in the Financed Vehicles granted
by the Obligors pursuant to the Closing Date Receivables and all
certificates of title to such Financed Vehicles; (iii) the interest of
the Originator in any proceeds from claims on any physical damage,
credit life, risk default or disability insurance policies covering
the Financed Vehicles or the Obligors from the Cutoff Date; and (iv)
the proceeds of any and all of the foregoing and any recourse in
equity or by contract against the Originator. (All of the property
identified in this subsection (a) and the following subsection (c)
shall constitute the "Trust Property.")
(b) Receivables Cash Purchase Price--Closing Date. In
consideration for the Receivables and Trust Property described in
Section 2.01(a), the Depositor shall, on the Closing Date, pay to the
Originator 100% of the Receivables Cash Purchase Price in cash by
federal wire transfer (same day) funds.
(c) Transfer of Receivables and Trust Property on Funding
Dates. On each Funding Date, the Originator shall pledge, transfer,
assign and otherwise convey to the Depositor, without recourse, a 100%
interest in (i) all right, title and interest of the Originator in and
to the Funding Date Receivables identified on an Exhibit substantially
in the form of Schedule I to Exhibit B hereto delivered on such
Funding Date, and all moneys received thereon subsequent to the
respective Cutoff Date; (ii) the security interest of the Originator
in the Financed Vehicles granted by the Obligors pursuant to such
Receivables and the certificates of title to such Financed Vehicles;
(iii) the interest of the Originator
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in any proceeds from claims on any physical damage, credit life, risk
default or disability insurance policies covering such Financed
Vehicles or such Obligors from the related Cutoff Date; and (iv) the
proceeds of any and all of the foregoing; provided, however, that (A)
the minimum amount of Receivables pledged, transferred, assigned or
otherwise conveyed to the Depositor on any Funding Date, other than
the Final Funding Date, shall be not less than $____________, (B) the
Depositor shall comply with the requirements specified in Section ___
of the [Pooling and Servicing Agreement] [Trust Agreement] as a
condition to any such pledge, transfer, assignment or other conveyance
and (C) the Pre-Funding Account shall contain available funds in an
amount at least equal to the Receivables Cash Purchase Price for such
Funding Date Receivables immediately prior to the Funding Event.
(d) Receivables Cash Purchase Price--Funding Date. In
consideration for the Funding Date Receivables and other Trust
Property relating thereto described in Section 2.1(c), upon one
Business Days' prior notice given by the Depositor to the Trustee, the
Depositor shall cause the Trustee, on each Funding Date, to pay to the
Originator an amount equal to 100% of the Receivables Cash Purchase
Price in cash by federal wire transfer funds. The Originator
acknowledges that the funds to effect the transfer of the Funding Date
Receivables and other Trust Property relating thereto on each Funding
Date shall be disbursed by the Trustee solely from the Pre-Funding
Account pursuant to Section ______ of the [Pooling and Servicing
Agreement] [Trust Agreement].
(e) Assignment by the Depositor In addition, concurrently
with the transfer by the Depositor of the Receivables to the Trust, on
the Closing Date, the Depositor shall assign to the Originator all of
the Depositor's remaining rights to the Trust Fund and all rights of
the Depositor under the [Pooling and Servicing Agreement] [Trust
Agreement].
Section 2.02. THE CLOSING. The transfer of the Receivables
shall take place at a closing (the "Closing") at the offices of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the
Closing Date, simultaneously with the closings under: (a) the [Pooling and
Servicing Agreement] [Trust Agreement] pursuant to which (i) the Depositor will
assign all of its right, title and interest in and to the Receivables and other
Trust Property to the Trustee for the benefit of the [Certificateholders]
[Noteholders]; and (ii) the Trustee will deposit the foregoing into the Trust
in exchange for the Class __ [Certificates] [Notes]; and (b) the purchase of
the [Certificates] [Notes] by the Class __ [Certificateholders] [Noteholders].
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Section 2.03. THE FUNDING EVENTS. The transfer of the
Funding Date Receivables on each Funding Date shall take place at the offices
of the Trustee or at such other location as the Depositor and the Originator
may reasonably agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents and warrants to the Originator and for the
benefit of the Trustee, the [Certificateholders] [Noteholders] and the Trust as
of the date hereof and as of the Closing Date and as of each Funding Date:
(a) Organization, Etc. The Depositor is a corporation duly
organized under the laws of the State of Delaware pursuant to its
Articles of Incorporation and is validly existing as a corporation and
in good standing under the laws of the State of Delaware, and has full
power and authority to execute and deliver this Agreement and to
perform the terms and provisions hereof and thereof.
(b) Due Authorization. The execution, delivery and
performance by the Depositor of this Agreement have been duly
authorized by all necessary corporate action, do not require any
approval or consent of any governmental agency or authority, do not
and will not conflict with any material provision of the Articles of
Incorporation or Bylaws of the Depositor, and do not and will not
conflict with or result in a breach which would constitute a material
default under any agreement for borrowed money binding upon or
applicable to it or such of its property which is material to it, or
to the best of the Depositor's knowledge, any law or governmental
regulation or court decree applicable to it or such material property,
and this Agreement is the legal, valid and binding obligation of the
Depositor enforceable in accordance with its terms except as the same
may be limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or by
general equity principles.
(c) No Litigation. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is
presently pending, or to the knowledge of the Depositor threatened,
against the Depositor or its properties or with respect to this
Agreement, which, if adversely determined would, in the
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opinion of the Depositor, have a material adverse effect on the
transactions contemplated by this Agreement.
(d) Business Purpose. The Depositor will acquire and
transfer the Receivables for a bona fide business purpose.
Section 3.02. REPRESENTATIONS AND WARRANTIES OF THE
ORIGINATOR.
(a) The Originator hereby represents and warrants to the
Depositor and its successors and assigns and for the benefit of the
Trustee, the [Certificateholders] [Noteholders] and the Trust as of
the date hereof and as of each Funding Date:
(i) Organization, Etc. The Originator has been duly
organized and is validly existing as a _______________ in good
standing under the laws of the State of __________, with power
and authority to own its properties and to conduct its
business as such properties are currently owned and such
business is presently conducted and had at all relevant times,
and shall have, the power, authority and legal right to
acquire and own the Receivables.
(ii) Due Qualification. The Originator is duly
qualified to do business as a foreign entity in good standing,
and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualifications.
(iii) Power and Authority. The Originator has the
power and authority to execute and deliver this Agreement and
to carry out its terms; the Originator has full power and
authority to pledge, transfer, assign and otherwise convey the
property pledged, transferred, assigned and otherwise conveyed
to the Depositor and has duly authorized such pledge and
assignment to the Depositor by all necessary corporate action;
and the execution, delivery, and performance of this Agreement
have been duly authorized by all necessary corporate action
and the Agreement is the legal, valid and binding obligation
of the Originator enforceable in accordance with its terms
except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the
enforcement of creditor's rights or by general equity
principles. The Originator has delivered this Agreement and
any other agreements and
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documents necessary to effectuate the transfer contemplated
hereby.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms do not conflict with, result in any
breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Originator, or any
indenture, agreement or other instrument to which the
Originator is a party or by which it is bound; nor result in
the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); nor
violate any law or, to the best of the Originator's knowledge,
any order, rule or regulation applicable to the Originator of
any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality
having jurisdiction over the Originator or its properties.
(v) No Proceedings. There are no proceedings or
investigations pending or, to the Originator's best knowledge,
threatened before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Originator or its properties: (A)
asserting the invalidity of this Agreement; (B) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement; or (C) seeking any
determination or ruling that might materially and adversely
affect the performance by the Originator of its obligations
under, or the validity or enforceability of, this Agreement.
(vi) No Consents, Approvals. Neither the execution
nor the delivery by the Originator of this Agreement required
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the Originator, except
such as have been obtained, made or taken. The Originator
complies in all material respects with all applicable laws,
rules and orders with respect to itself, its business and
properties and the Receivables. The Originator maintains all
applicable permits and certifications.
(vii) No Unpaid Taxes. All tax returns required and
due to be filed by the Originator in any
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jurisdiction have in fact been filed, and all taxes,
assessments, fees and other governmental charges upon it or
any subsidiary or upon any of their respective properties,
income or franchises, shown to be due and payable on such
returns have been paid. To the best of the Originator's
knowledge all such tax returns were true and correct. Neither
the Originator nor any subsidiary knows of any proposed
additional tax assessment against it in any material amount or
of any basis therefor.
(viii) Adequate Provisions for Taxes. The provisions
for taxes on the Originator's books are in accordance with
generally accepted accounting principles.
(ix) Pension/Profit Sharing Plans. No contribution
failure has occurred with respect to any pension or profit
sharing plan and all such plans have been fully funded as of
the date of this Agreement.
(x) Trade Names. "________________________" is the
only trade name under which the Originator is currently
operating its business and under which the Originator operated
its business for the six years (or such shorter period of time
during which the Originator was in existence) preceding the
Closing Date.
(xi) Ability to Perform. There is no material
impairment in the ability of Originator to perform its
obligations under this Agreement.
(xii) Valid Business Reasons; No Fraudulent Transfers.
The Originator has valid business reasons to acquire and
pledge, transfer, assign and otherwise convey the Receivables
rather than to obtain a secured loan with the Receivables as
collateral and has undertaken the transaction contemplated
herein as principal rather than as agent of any other person.
At the time of the transfer: (i) the Originator transferred
the Receivables to the Depositor without any intent to hinder,
delay, or defraud any current or future creditor of the
Originator; (ii) the Originator was not insolvent or did not
become insolvent as a result of the transfer; (iii) the
Originator was not engaged and was not about to engage in any
business or transaction for which any property remaining with
the Originator was an unreasonably small capital or for which
the remaining assets of the Originator were unreasonably small
in relation
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to the business of the Originator or the transaction; (iv) the
Originator did not intend to incur, and did not believe or
reasonably should not have believed that it would incur, debts
beyond its ability to pay as they become due; and (v) the
consideration paid by the Depositor to the Originator for the
Receivables was equivalent to the fair market value of such
Receivables.
(xiii) Principal Executive Office. Since its inception
the Originator has maintained, and from the date of this
Agreement shall maintain, its principal executive office in
the State of __________ and there have been no other locations
of the Originator's principal executive office during the four
months preceding the Closing Date.
(b) The Originator makes the following representations and
warranties as to all of the Receivables subject to this Agreement on
which the Depositor relies in accepting the Receivables. Such
representations and warranties speak as of the execution and delivery
of this Agreement and each Funding Date, as the case may be, but shall
survive the pledge, transfer, assignment and other conveyance hereby
of the Receivables to the Depositor and the subsequent assignment and
transfer to the Trustee pursuant to the [Pooling and Servicing
Agreement] [Trust Agreement]. The Originator hereby acknowledges and
expressly agrees that any or all of the Depositor, the Trustee or the
[Certificateholders] [Noteholders] may enforce the Originator's
obligations pursuant to Section 7.02 hereof for any breach of any of
the following representations and warranties:
Eligible Receivables. Each Receivable pledged, transferred,
assigned and otherwise conveyed hereunder shall have all of the following
characteristics (any such Receivable referred to hereinafter as an "Eligible
Receivable") as of the Closing Date or as of the Funding Date on which such
Receivable is pledged, transferred, assigned or otherwise conveyed hereunder,
as the case may be:
(i) Characteristics of Receivables. Each Receivable
(a) shall have been originated in the United States of America
by the Originator or a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of the Originator or
such Dealer's business, has been fully and properly executed
by the parties thereto, and, if originated by a Dealer, has
been purchased by the Originator from such Dealer or has been
financed for such Dealer under an existing agreement with the
Originator, (b) shall have created or shall create a valid,
subsisting, and enforceable first priority
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security interest in favor of the Dealer in the Financed
Vehicle, which security interest has been assigned by the
Dealer to the Originator and which security interest shall be
assigned by the Originator to the Depositor, (c) is covered by
a Risk Default Insurance Policy and by a VSI Insurance Policy,
as evidenced by certificate(s) of the insurer dated as of and
delivered to the Trustee on the Closing Date, (d) shall
contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the
security, (e) shall provide for level monthly payments
(provided that the payment in the first or last month in the
life of the Receivable may be minimally different from the
level payment) that fully amortize the Amount Financed by
maturity and yield interest at the Annual Percentage Rate, and
(f) provides in the case of Precomputed Receivables, in the
event that any such contract is prepaid, for a prepayment that
fully pays the principal amount plus unearned interest to the
next Scheduled Payment.
(ii) Schedule of Receivables. The information set
forth in Exhibit B to this Agreement with respect to the
Receivables acquired on such date shall be true and correct in
all material respects as of the close of business on the
Cutoff Date, and no selection procedures believed to be
adverse to the [Certificateholders] [Noteholders] have been
utilized in selecting the Receivables. The information on the
computer tape regarding the Receivables made available to the
Depositor and its assigns is true and correct in all material
respects.
(iii) Form of Receivables. Each of the Receivables is
substantially in the form of Exhibit C attached hereto.
(iv) Compliance with Law. Each Receivable and the
sale of the Financed Vehicle shall (A) have complied at the
time it was originated or made and at the Closing Date or
Funding Date, as the case may be, shall comply in all material
respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including, without
limitation, usury laws, the Fair Credit Reporting Act, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal
Reserve Board's Regulations B and Z, the
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California Consumer Credit Act, State adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code,
and other consumer credit laws and equal credit opportunity
and disclosure laws and (B) does not contravene any applicable
contracts to which the Originator is a party and no party to
such contract is in violation of any applicable law, rule or
regulation which is material to the Receivable or the sale of
the Financed Vehicle.
(v) Binding Obligation. Each Receivable shall
represent the genuine, legal, valid and binding payment
obligation in writing of the Obligor, enforceable by the
holder thereof in accordance with its terms.
(vi) No Government Obligor. None of the Receivables
shall be due from the United States of America or any State or
from any agency, department or instrumentality of the United
States of America or any State.
(vii) Security Interest in Financed Vehicle.
Immediately prior to the pledge, transfer, assignment and
other conveyance thereof, each Receivable shall be secured by
a validly perfected first security interest in the Financed
Vehicle in favor of the Originator as secured party or all
necessary and appropriate actions shall have been commenced
that would result in the valid perfection of a first security
interest in the Financed Vehicle upon completion of processing
by the applicable state agency. The Originator shall cause
each certificate of title to be delivered to the Custodian
pursuant to Section ____ of the [Pooling and Servicing
Agreement] [Trust Agreement], together with a power of
attorney, duly executed by the Originator in favor of the
Trustee, which power of attorney shall be sufficient to grant
a validly perfected first security interest in the Financed
Vehicles in favor of the Trustee, as Secured Party.
(viii) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed
Vehicle been released from the lien granted by the related
Receivable in whole or in part.
(ix) No Waiver. No provision of a Receivable has
been waived, impaired, altered or modified in any respect
except in accordance with the Servicing Agreement, the
substance of which is reflected in
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the Schedule of Receivables as it relates to the information
included thereon.
(x) No Amendments. No Receivable has been amended
such that either the original Scheduled Payment or the number
of the originally scheduled due dates have been increased
except as permitted under the terms of the Risk Default Policy
covering such Receivable.
(xi) No Defenses. No right of rescission,
recoupment, setoff, counterclaim or defense has been asserted
or threatened with respect to any Receivable.
(xii) No Liens. No liens or claims shall have been
filed for work, labor or materials relating to any Financed
Vehicle that would be Liens prior to, or equal or coordinate
with, the security interest in a Financed Vehicle granted by
the related Obligor pursuant to a Receivable, nor has any
Receivable been satisfied, subordinated or rescinded.
(xiii) No Default. Except for payment delinquencies
continuing for a period of not more than 30 days as of the
Cutoff Date, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred;
and no continuing condition that with notice or the lapse of
time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable has
arisen, and the Originator has not waived any of the
foregoing. There has not been any other default or
delinquency under the terms of the Receivable that remained
uncured for more than thirty (30) days after notice to the
Obligor. As of such date, the Originator has no knowledge of
any reason why any Receivable would not be paid in full.
(xiv) Insurance. The Originator, in accordance with
its customary procedures, has (A) required that each Obligor
obtain, and has determined that each Obligor has obtained,
physical damage insurance covering the Financed Vehicle as of
the execution of the Receivable insuring repair or replacement
of such Financed Vehicle subject to a deductibility not in
excess of $1,000; and (B) obtained a Risk Default Policy and a
VSI Policy covering each of the Receivables as of the Closing
Date or Funding Date, as the case may be, and until each
Receivable has been paid in full.
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(xv) Title. Immediately prior to the transfer and
assignment herein contemplated, the Originator had good and
marketable title to each Receivable free and clear of all
Liens and rights of others and, immediately upon the transfer
thereof, the Depositor will have good and marketable title to
each Receivable, free and clear of all Liens and rights of
others except for certain Originator investors' liens or liens
of certain financial institutions, all of which will be
released prior to conveyance hereunder, and the security
interest in the Financed Vehicle and other underlying
collateral has been validly perfected under the UCC and other
applicable law, if any.
(xvi) Lawful Assignment. No Receivable shall have
been originated in, or is subject to the laws of, any
jurisdiction under which the pledge, transfer, assignment or
other conveyance of such Receivable under this Agreement or
pursuant to transfers of the [Certificates] [Notes] would be
unlawful, void or voidable.
(xvii) All Filings Made. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction
to give the Depositor a first perfected ownership interest in
the Receivables shall have been made.
(xviii) One Original. There shall be only one original
of the retail installment sale contract evidencing each
Receivable.
(xix) Down Payment. At least __% of the Receivables
included in the Trust Fund may have a down payment of at least
__% of the total purchase price of the related Finance
Vehicle; up to __% of the Receivables included in the Trust
Fund may have a down payment of between __% and __% of the
total purchase of the related Financed Vehicle; provided, that
no Receivable included in the Trust Fund shall have a down
payment of less than __% of the purchase price of the related
Financed Vehicle.
(xx) Maturity of Receivables. Each Receivable shall
have an original maturity of not more than 61 months; the
weighted average original term to maturity of the Receivables
to be acquired on the Closing Date shall be _____ months as of
the Cutoff Date, while the weighted average remaining term to
maturity as of such Cutoff Date for such Receivables is _____
months; the remaining maturity of each Receivable shall be 61
months or less as of the respective Cutoff Date.
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(xxi) Scheduled Payments. Each Receivable which is
acquired on the Closing Date shall have an outstanding
Principal Balance of at least $__________, a next scheduled
payment due date on or prior to _________, 199__ and no
Receivable whenever acquired shall have a payment that is more
than 30 days overdue as of the applicable Cutoff Date; and
shall have a final scheduled payment date no later than the
Final Scheduled Distribution Date.
(xxii) Monthly Payments. Each Receivable shall provide
for level monthly payments (provided that the payment in the
first or last month in the life of the Receivable may be
minimally different from such level payment) which fully
amortize the amount financed over the original term;
[provided, however, that, as permitted by the terms of the
Risk Default Policy, each Receivable may be extended for one
month for each 12 months in the Receivable's term provided,
that extensions are limited to two, one month extensions in
any consecutive 12 month period; provided, further, that a
Receivable cannot be extended unless six consecutive payments
have been made by the Obligor; further provided, however, that
at the time the extension is made, a sufficient amount of
interest due must be collected to forward the due date of the
Receivable.]
(xxiii) Remaining Maturity. Each Receivable shall have
a remaining maturity of __ months or less as of the respective
Cutoff Date, and the latest scheduled maturity of any
Receivable acquired on the final Funding Date is no later than
________, 20__.
(xxiv) Financing. ___% of the Receivables shall
represent Precomputed Receivables.
(xxv) Bankruptcy Proceeding. No Receivable as of the
Cutoff Date shall be noted in the Originator's records as a
dischargeable debt under a bankruptcy proceeding.
(xxvi) Chattel Paper, Valid and Binding. Each
Receivable constitutes "chattel paper" as deemed in the UCC
and is legal, valid and binding in accordance with its terms.
(xxvii) State of Origination. At the time of
origination, each Receivable was originated by the Originator
or a Dealer located in the State of _________; provided,
however, that no more than
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___% of the Principal Balance of the Receivable included in
the Trust Fund on the Closing Date or any Funding Date shall
be Replacement Receivables.
(xxviii) Age of Financed Vehicles. Approximately _____%
of the Receivables acquired on the Closing Date relate to new
Financed Vehicles and approximately ___% related to used
Financed Vehicles.
(xxix) No Future Advances. The full principal amount
of each Receivable has been advanced to each Obligor or
advanced in accordance with the directions of each such
Obligor, and there is no requirement for future advances
thereunder. The Obligor with respect to the Receivable does
not have any options under their Receivable to borrow from any
person additional funds secured by the Financed Vehicle. The
Principal Balance of each Receivable as of the Closing Date is
fully secured by the related Financed Vehicle.
(xxx) Underwriting Guidelines. Each Receivable has
been originated in accordance with the underwriting guidelines
of the Originator, a copy of which has been provided to the
Underwriter, and in accordance with the underwriting
guidelines established by the Risk Default Insurer, which
guidelines include, but are not limited to, the following:
(A) the purchase of the Financed Vehicle by the
Obligor, at the time of funding of the Receivable,
was affordable to the Obligor based upon the
Originator's underwriting guidelines with respect
to discretionary income; and
(B) at the time of funding of the Receivable,
the Financed Vehicle was purchased from, and the
Receivable originated by, the Originator or a
Dealer located in the State of ___________.
(xxxi) Financed Vehicle in Good Repair. Each Financed
Vehicle is in good repair and working order.
(xxxii) Principal Balance. No Receivable has a
Principal Balance which includes capitalized interest,
physical damage insurance and/or late charges.
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(xxxiii) Servicing. At the Closing Date, each Receivable
was being serviced by a Servicer.
(xxxiv) Eligible Loan. Each Receivable constitutes an
"Eligible Loan" as defined in and for purposes for the Risk
Default Policy.
(xxxv) Original Principal Amount. With respect to
Receivables acquired on the Closing Date or a Funding Date, as
the case may be, the original principal amount of each
Receivable was not more than (A) in the case of new Financed
Vehicles, ___% of the manufacturer's suggested retail price
or, (B) in the case of used Financed Vehicles, ___% of the
retail value of the Financed Vehicle at the time of
origination of the Receivable as set forth in the ▇▇▇▇▇▇ "Blue
Book" for the appropriate region.
(xxxvi) Agreement. The representations and warranties
of the Originators in this Agreement shall be true.
(xxxvii) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the
Originator threatened before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Originator or its properties: (A)
asserting the invalidity of any of the Receivables; (B)
seeking to prevent the enforcement of any of the Receivables;
of (C) seeking any determination or ruling that might
materially and adversely affect the payment on or
enforceability of any Receivable.
(xxxviii) Location of Servicer Files. The Servicer Files
shall be kept at the location listed in Schedule A hereto
provided that the Servicer Files shall not include (A) the
original titles or the original or copies of the dealer
blanket guarantees of title with respect to the Financed
Vehicles, (B) the original retail installment sale contracts
evidencing the Receivables and (C) original instrument
certificates or copies of applications for instrument
certificates under the Risk Default Insurance Policy, which
documents shall be kept at an office of the Custodian.
(xxxix) Balance of Receivables. No Receivable which is
acquired on the Closing Date shall have an outstanding
Principal Balance in excess of $__________ as of the Cutoff
Date with respect to the Closing Date.
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(xl) Insurance Coverage. Each Receivable shall be
covered, as of the Closing Date or as of a Funding Date, as
the case may be, and throughout the shorter of the term of the
Trust or the term of the Receivable, under a Risk Default
Insurance Policy and a VSI Insurance Policy, as evidenced by
copies of applications for, or original instrument
certificates from the Risk Default Insurer delivered to the
Trustee on the Closing Date or a Funding Date, as the case may
be; provided, however, that any original instrument
certificate of Risk Default Insurance not so delivered on the
Closing Date or a Funding Date, as the case may be, shall be
delivered from the Originator to the Trustee within 45 days
after the Closing Date or a Funding Date, as the case may be;
provided, further, that for any original instrument
certificate not so delivered to the Trustee, the Originator
shall be deemed to be in breach of its representations and
warranties contained in this Section 3.02, and, unless such
breach is cured within the cure period defined in Section 7.02
hereof, such occurrence shall cause a Reacquisition Event (as
defined in Section 7.02). Prior to the Closing Date or a
Funding Date, as the case may be, a request shall have been
made to have the Trustee named as an additional insured as of
the Closing Date or as of a Funding Date, as the case may be,
and as of such date, the Trustee shall be an additional named
insured on each such policy of insurance; provided, however,
that the Originator shall assign to the Trustee for the
benefit of the [Certificateholders] [Noteholders] any proceeds
received by the Originator as a named insured under either of
such insurance policies with respect to a Receivable from the
applicable Cutoff Date; provided, further, that the Trustee
shall have no duties or obligations of a named insured on any
such policy of insurance.
(xli) Original Titles. On the Closing Date or a
Funding Date, as the case may be, the Originator shall deliver
or cause to be delivered to the Trustee an original
certificate or a copy of a dealer blanket guarantee of title
for each Financed Vehicle relating to each Receivable pledged,
transferred, assigned and conveyed hereunder; provided,
however, that any original certificate of title not so
delivered on the Closing Date or a Funding Date, as the case
may be, due to the fact that such title has not yet been
issued by a state title registration agency and delivered to
the Originator as of the Closing Date or Funding Date, as the
case may be, shall be delivered by the
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Originator to the Trustee within 135 days after the Closing
Date or a Funding Date, as the case may be; provided, further,
that for any original certificate of title not so delivered to
the Trustee, the Originator shall be obligated to reacquire
such Receivable pursuant to Section 7.02 hereof.
(xlii) Dealer Blanket Guarantee of Title. A dealer
blanket guarantee of title has been executed for each
Receivable conveyed hereunder.
(xliii) Not Previously Past Due. No Receivable has been
more than three times past due over 60 days or more than two
times past due over 90 days, nor has any Receivable been more
than 30 days past due as of the Closing Date or a Funding
Date, as the case may be.
(xliv) No Litigation. No Receivable has been in
litigation or restructured.
(xlv) No Charge Off. No Receivable has been charged
off for accounting purposes by the Originator.
(xlvi) Normal Procedures. Each Receivable has been
administered pursuant to the Originator's normal credit,
administration, collection and charge-off procedures, which
procedures are satisfactory to the Depositor.
(xlvii) No Fraud, Misrepresentation. No Receivable has
been originated with any fraud or misrepresentation.
(xlviii) Payments Received. The Originator has not
received any payment from any payor other than the Obligor.
(xlix) Prepayment. The prepayment from the Obligor
under a related Precomputed Receivable is equal to or greater
than the Principal Balance of such Precomputed Receivable at
the Closing Date or at any date of determination thereafter,
as applicable.
(l) Eligibility Criteria. Each Receivable meets the
eligibility criteria with respect to each of the Risk Default
Insurance Policy and the VSI Insurance Policy, including, but
not limited to, the receipt in full of the applicable down
payment with respect to such Receivable and no deferment with
respect to such down payment has been granted.
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ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligation of the Depositor. The
obligation of the Depositor to take receipt of the Receivables under this
Agreement is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Originator hereunder shall be
true and correct on the Closing Date or the Funding Date, as the case
may be, with the same effect as if then made, and the Originator shall
have performed all obligations to be performed by it hereunder on or
prior to the Closing Date or the Funding Date, as the case may be.
(b) Files Marked; Files and Records owned by Trust. The
Originator shall, at its own expense, on or prior to the Closing Date
or the Funding Date, as the case may be, indicate in its files that
receivables created in connection with the Receivables have been
assigned to the Depositor pursuant to this Agreement and the
Originator shall deliver to the Depositor the Schedule of Receivables
certified by the Originator to be true, correct and complete.
Further, the Originator hereby agrees that the computer files and
other physical records of the Receivables maintained by the Originator
will bear an indication reflecting that the Receivables and all
documents held by the Originator pursuant to a certain Servicing
Agreement or otherwise are pledged to the Trust.
(c) Documents to be Delivered by the Originator at the
Closing and on each Funding Date.
(i) The Assignment. At the Closing and on each
Funding Date, the Originator will execute and deliver the
Assignment. The Assignment shall be substantially in the form
of Exhibit A hereto.
(ii) Original Receivables,- Original Titles. At the
Closing and on each Funding Date, the Originator shall deliver
to the Trustee for the benefit of the Depositor and its
assigns (A) the original retail installment sale contracts
evidencing such Receivable, (B) the original certificate or a
copy of dealer blanket guarantee of title for each Financed
Vehicle relating to each such Receivable sold hereunder, and
(C) original or copies of applications for instrument
certificates under the Risk Default Policy, which delivery
shall be accompanied by a Certificate of Delivery
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substantially in the form of Exhibit E-1 to the Initial
Purchase Agreement; provided, however, that any original
certificate of title not so delivered at Closing due to the
fact that such title has not yet been issued by a state title
registration agency and delivered to the Originator as of the
Closing Date or a Funding Date, as the case may be, shall be
delivered by the Originator to the Depositor, for immediate
delivery to the Trustee, within 135 days of the Closing Date
or a Funding Date, as the case may be; provided, further, that
for any certificate of title not so delivered to the Trustee,
the Originator shall be obligated to reacquire such Receivable
pursuant to Section 7.02 hereof.
(iii) Evidence of UCC Filings. On or prior to the
Closing Date, the Originator shall record and file, at its own
expense, (A) UCC-3 termination statements in each jurisdiction
in which required by applicable law, to release any prior
security interests in the Receivables granted by the
Originator and (B) a UCC financing statement in each
jurisdiction in which required by applicable law, executed by
the Originator, as seller or debtor, and naming the Depositor,
as purchaser or secured party, identifying the Receivables and
the other Trust Property as collateral, meeting the
requirements of the laws of each such jurisdiction and in such
manner as is necessary to perfect the pledge, transfer,
assignment and conveyance of such Receivables to the
Depositor. The Originator shall deliver a file-stamped copy,
or other evidence satisfactory to the Depositor of such
filing, to the Depositor on or prior to the Closing Date.
(iv) Evidence of Insurance and Payment. On the
Closing Date and on each Funding Date, the Originator shall
deliver to the Depositor (i) certificates of the respective
insurance companies indicating that each Receivable is covered
by Risk Default Insurance and VSI Insurance and (ii) evidence
of payment in full of all premiums due under either or both of
the Risk Default Insurance and VSI Insurance Policies with
respect to the Receivables.
(v) Other Documents. Such other documents as the
Depositor may reasonably request.
(d) Other Transactions. The transactions contemplated by
the [Pooling and Servicing Agreement] [Trust Agreement] shall be
consummated on the Closing Date.
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(e) [Review of Receivables. Prior to the Closing Date and
each Funding Date, the Depositor shall have received satisfactory
results from the Review ▇▇▇▇ of the Pre-Funding Review. The Depositor
further agrees to give written notice of the results of the
Pre-Funding Review to the Originator.]
Section 4.02. CONDITIONS TO OBLIGATION OF THE ORIGINATOR. The
obligation of the Originator to pledge, transfer, assign or otherwise convey
the Receivables on the Closing Date or a Funding Date, as the case may be, to
the Depositor is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The warranties of
the Depositor hereunder shall be true and correct on the Closing Date
or the Funding Date, as the case may be, and the Depositor shall have
performed all obligations to be performed by it hereunder on or prior
to the Closing Date or the Funding Date, as the case may be.
(b) Receivables Cash Purchase Price. At the Closing Date or
the Funding Date, as the case may be, the Depositor will deliver to
the Originator the Receivables Cash Purchase Price, as provided in
Section 2.01(b).
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ORIGINATOR
The Originator agrees with the Depositor as follows; provided,
however, that to the extent that any provision of this Article V conflicts with
any provision of the [Pooling and Servicing Agreement] [Trust Agreement], the
[Pooling and Servicing Agreement] [Trust Agreement] shall govern:
Section 5.01. PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) Filings. The Originator shall cause all financing
statements and continuation statements and any other necessary
documents covering the right, title and interest of the Depositor in
and to the Receivables, and the other Trust Property to be promptly
filed, and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Depositor
hereunder to the Receivables and the other Trust Property. The
Originator shall deliver to the Depositor file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following
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such recordation, registration or filing. The Depositor shall
cooperate fully with the Originator in connection with the obligations
set forth above and will execute any and all documents reasonably
required to fulfill the intent of this Section 5.01(a).
(b) Name Change. Within 15 days after the Originator makes
any change in its name, identity or corporate structure which would
make any financing statement or continuation statement filed in
accordance with paragraph (a) above seriously misleading within the
applicable provisions of the UCC or any title statute, the Originator
shall give the Depositor notice of any such change and no later than
five days after the effective date thereof, shall file such financing
statements or amendments as may be necessary to continue the
perfection of the Depositor's security interest in the Trust Property.
Section 5.02. OTHER LIENS OR INTERESTS. Except for the
conveyances hereunder and pursuant to the [Pooling and Servicing Agreement]
[Trust Agreement], the Originator will not pledge, transfer, assign or
otherwise convey to any other person, or grant, create, incur, assume or suffer
to exist any lien on any interest therein, and the Originator shall defend the
right, title, and interest of the Depositor in, to and under such Receivables
against all claims of third parties claiming through or under the Originator;
provided, however, that the Originator's obligations under this Section 5.02
shall terminate upon the termination of the Trust pursuant to the [Pooling and
Servicing Agreement] [Trust Agreement].
Section 5.03. PRINCIPAL EXECUTIVE OFFICE. Since its
inception, the Originator has maintained, and from the date of this Agreement,
shall maintain, its principal executive office in the State of _____.
Section 5.04. TRUSTEE AS ADDITIONAL INSURED. The Originator
shall cause notice to be given to the insurers under the Risk Default Policy
and the VSI Policy to identify the Trustee as an additional named insured, as
its interest may appear, under each such policy. The Originator hereby assigns
to the Trustee for the benefit of the [Certificateholders] [Noteholders] any
and all proceeds received by the Originator as named insured with respect to a
Receivable under the terms of either of the foregoing insurance policies for
claims made from the Cutoff Date.
Section 5.05. COSTS AND EXPENSES. The Originator agrees to
pay all reasonable costs and disbursements in connection with the perfection,
as against all third parties, of the Depositor's right, title and interest in
and to the Receivables.
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Section 5.06. NO WAIVER. The Originator shall not waive any
default, breach, violation or event permitting acceleration under the terms of
any Receivable.
Section 5.07. LOCATION OF SERVICER FILES. The Servicer Files,
exclusive of the original titles to the Financed Vehicles and exclusive of the
originals of the Receivables, are to be kept at the location listed in Exhibit
D hereto. The original titles and the originals of the Receivables are to be
kept at the principal executive office of the Custodian as specified in the
[Pooling and Servicing Agreement] [Trust Agreement].
Section 5.08. TRANSFER OF RECEIVABLES. The Originator will
take no action inconsistent with the pledge, transfer and assignment of the
Receivables to the Depositor If a third party, including a potential purchaser
of the Receivables, should inquire, the Originator will promptly indicate that
the Receivables have been pledged, transferred and assigned to the Depositor
Section 5.09. ORIGINATOR'S RECORDS. This Agreement and all
related documents describe the transfer of the Receivables from the Originator
as a pledge by the Originator to the Depositor
Section 5.10. TRANSFER OF ADDITIONAL RECEIVABLES. The
Originator shall use its best efforts in good faith to make available for
pledge, transfer, assignment and other conveyance to the Depositor in
accordance with Section 2.01 hereof additional Receivables originated or
acquired by the Originator or its Affiliates which are Eligible Receivables.
This covenant shall be for the benefit of the Depositor, the Trustee and the
[Certificateholders] [Noteholders], and any other such Person may enforce its
legal or eligible rights, remedies or claims hereunder.
Section 5.11. NO BANKRUPTCY PETITION. The Originator
covenants and agrees that prior to the date which is one year and one day after
the payment in full of all securities issued by the Depositor or by a trust for
which the Depositor was the depositor which securities were rated by any
nationally recognized statistical rating organization it will not institute any
bankruptcy procedures, or other proceedings under any federal or state
bankruptcy law.
Section 5.12. COVENANTS REGARDING OPERATIONS.
(a) The Originator shall not engage in any business or
activity other than in connection with or relating to the issuance of
the Class __ [Certificates] [Notes], except as otherwise may be
permitted herein or in the Articles of Incorporation of the
Originator.
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(b) The Originator shall not consolidate or merge with or
into any other entity or convey or transfer its properties and assets
substantially as an entirety to any entity unless (i) the entity (if
other than the Originator) formed or surviving such consolidation or
merger, or that acquires by conveyance or transfer the properties and
assets of the Originator substantially as an entirety, shall be
organized and existing under the laws of the United States of America
or any State thereof or the District of Columbia, and shall expressly
assume in form satisfactory to the Rating Agency, the due and punctual
payment of the Class __ [Certificates] [Notes] then outstanding and
the performance of every covenant on the part of the Originator to be
performed or observed pursuant to this Agreement and the [Pooling and
Servicing Agreement] [Trust Agreement], (ii) immediately after giving
effect to such transaction, no default or event of default under this
Agreement shall have occurred and be continuing and (iii) the
Originator shall have delivered to the Rating Agency and the Trustee
an officer's certificate and an opinion of counsel, each stating that
such consolidation, merger, conveyance or transfer comply with this
Agreement.
(c) So long as any Class A [Certificates] [Notes] are
outstanding, the Originator shall not dissolve or liquidate, in whole
or in part, except (i) as permitted in paragraph (b) above or (ii)
with the prior written consent of the Trustee and prior written
confirmation from the Rating Agency (a copy of which shall be provided
to the Trustee by the Originator) that such dissolution or liquidation
will have no adverse effect on the rating assigned to the Class __
[Certificates] [Notes].
(d) The funds and other assets of the Originator shall not
be commingled with those of any other corporation, entity or Person,
including, but not limited to, the parents or affiliates of the
Originator.
ARTICLE VI
INDEMNIFICATION
The Originator shall indemnify the Depositor for any liability
as a result of the failure of a Receivable to be originated in compliance with
all requirements of law and for any by each of any of its representations and
warranties contained herein. These indemnity obligations shall be in addition
to any obligation that the Originator may otherwise have.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. OBLIGATIONS OF ORIGINATOR. The obligations of
the Originator under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
Section 7.02. REACQUISITION EVENTS. The Originator hereby
covenants and agrees with the Depositor for the benefit of the Depositor, the
Trustee and the [Certificateholders] [Noteholders] that upon the occurrence of
(i) a breach of any of the Originator's representations and warranties
contained in Section 3.02(b) hereof with respect to a Receivable or (ii) the
failure of the Originator to deliver original certificates of title pursuant to
Section 4.01(c)(ii), and unless (i) such breach shall have been cured by the
thirtieth day following the discovery or receipt by the Originator of notice
from the Depositor or the Trustee thereof or (ii) such failure to deliver shall
have been cured by the seventh Business Day following receipt by the Originator
of notice from the Depositor or the Trustee of such non-delivery, the
Originator shall be obligated to reacquire such Receivable hereunder from the
Depositor ("Reacquisition Event"), at the Repurchase Price as defined in the
Initial Purchase Agreement on a date which shall be no later than (i) the fifth
Business Day following such 30-day cure period or (ii) relating to the
non-delivery on the fifth Business Day following such seven Business Day cure
period. The reacquisition obligation of the Originator shall constitute the
sole remedy to the [Certificateholders] [Noteholders], or to the Trustee, or to
the Depositor against the Originator with respect to any Reacquisition Event.
The Originator acknowledges that the Trustee and the [Certificateholders]
[Noteholders] are beneficiaries with respect to the rights of the Depositor
hereunder and that the Trustee or the [Certificateholders] [Noteholders] may
enforce the rights of the Depositor with respect thereto.
Section 7.03. THE DEPOSITOR'S ASSIGNMENT OF REACQUIRED
RECEIVABLES. With respect to all Receivables reacquired by the Originator
pursuant to this Agreement, the Depositor shall assign, without recourse,
representation or warranty, to the Originator all the Depositor's right, title
and interest in and to such Receivables, and all security and documents
relating thereto.
Section 7.04. TRUST. The Originator acknowledges that the
Depositor will, pursuant to the [Pooling and Servicing Agreement] [Trust
Agreement], assign the Receivables to the Trust and assign its rights under
this Agreement to the Trustee for the benefit of the [Certificateholder]
[Noteholder]s, and that the
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representations and warranties contained in this Agreement and the rights of
the Depositor under Section 7.02 hereof are intended to benefit such Trust and
any [Certificateholders] [Noteholders] and the Trustee and any
[Certificateholders] [Noteholders] shall have the right to enforce the same.
The Originator hereby consents to such transfers and assignments.
Section 7.05. AMENDMENT. This Agreement may be amended from
time to time by a written amendment duly executed and delivered by the
Originator and the Depositor; provided, however, that any such amendment that
materially adversely affects the rights of the [Certificateholder] [Noteholder]
under the [Pooling and Servicing Agreement] [Trust Agreement] must be consented
to by the ]Holders of at least 51% of the Class __ [Certificates] [Notes].
Section 7.06. WAIVERS. No failure or delay on the part of the
Depositor in exercising any power, right or remedy under this Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
Section 7.07. NOTICES. All communications and notices
pursuant hereto to any party shall be in writing or by telegraph or telex and
addressed or delivered to it at its address (or in case of telex, at its telex
number at such address) shown in the opening portion of this Agreement or at
such other address as may be designated by it by notice to the other party and,
if mailed or sent by telegraph or telex, shall be deemed given when mailed,
communicated to the telegraph office or transmitted by telex.
Section 7.08. COSTS AND EXPENSES. The Originator will pay all
expenses, including fees and expenses of counsel, incident to the performance
of its obligations under this Agreement and the Originator agrees to pay all
reasonable out-of-pocket costs in connection with the enforcement of any
obligation of the Originator hereunder.
Section 7.09. REPRESENTATIONS. The respective agreements,
representations, warranties and other statements by the Originator and the
Depositor set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the closing under Section 2.02 hereof.
Section 7.10. CONFIDENTIAL INFORMATION. The Depositor agrees
that it will neither use nor disclose to any person the names and addresses of
the Obligors, except in connection with the enforcement of the Depositor's
rights hereunder, under the Receivable, under any [Pooling and Servicing
Agreement] [Trust Agreement] or as required by law.
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Section 7.11. HEADINGS AND CROSS-REFERENCES. The various
headings in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References in this Agreement to section names or numbers are to such sections
of this Agreement.
Section 7.12. GOVERNING LAW. This Agreement and the
Assignment shall be governed by and construed in accordance with the internal
laws of the State of [New York].
Section 7.13. COUNTERPARTS. This Agreement may be executed in
two or more counterparts and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
[ORIGINATOR]
By
--------------------------------------
Name:
Title:
ACC CONSUMER FINANCE CORPORATION
By
--------------------------------------
Name:
Title:
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EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Receivables
Acquisition Agreement dated as of _______, 199__, by and between the
undersigned and Advanta Auto Finance Corporation ("the Depositor") (the
"Receivables Acquisition Agreement"), the undersigned (the "Originator") does
hereby (A) pledge, transfer, assign and otherwise convey unto the Depositor,
without recourse (capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Receivables Acquisition Agreement),
(i) all right, title and interest of the undersigned in and to the Receivables
identified on the Schedule attached as Exhibit B to the Receivables Acquisition
Agreement and all moneys due thereon, on and after the Cutoff Date; (ii) the
interest of the Originator in the security interests in the Financed Vehicles
granted by the Obligors pursuant to the Receivables and the certificates of
title to such Financed Vehicles; (iii) the interest of the Originator in any
proceeds from claims on any physical damage, credit. life, risk default or
disability insurance policies covering the Financed Vehicles or Obligors; and
(iv) the proceeds of any and all of the foregoing and any recourse in equity or
by contract against the Originator and (B) grant to the Trustee a security
interest in the Reserve Fund (as defined in the [[Pooling and Servicing
Agreement] [Trust Agreement]) and the Residual Interest (as defined in the
[Pooling and Servicing Agreement] [Trust Agreement]). The Originator hereby
acknowledges that the Trustee is entitled to hold such Reserve Fund and
Residual Interest pending distributions as stated in Section _____ of the
[Pooling and Servicing Agreement] [Trust Agreement]. The foregoing assignment
does not constitute and is not intended to result in any assumption by the
Depositor of any obligation of the undersigned to the Obligors, insurers or any
other person in connection with the Receivables, Custodian Files (as defined in
the [Pooling and Servicing Agreement] [Trust Agreement]), Servicer Fees (as
defined in the [Pooling and Servicing Agreement] [Trust Agreement]), any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Receivables Acquisition Agreement and is to be governed by the
Receivables Acquisition Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of _________, 199__.
[ORIGINATOR]
By
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EXHIBIT B
SCHEDULE OF RECEIVABLES
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A-1
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Name:
Title:
A-2