EXHIBIT 10.97
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of September
1, 1996, by and between Aegis Auto Finance, Inc., a Delaware
corporation, having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as seller
(the "Seller"), and Aegis Auto Funding Corp., a Delaware
corporation, having its principal executive office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as
purchaser (the "Purchaser").
WHEREAS, the Seller has originated or acquired in the
ordinary course of business, certain Receivables (as defined
herein); and
WHEREAS, the Seller and the Purchaser wish to set forth
the terms pursuant to which Receivables owned by the Seller as of
the Closing Date (as defined herein) and as of each Funding Date
(as defined herein) are to be sold by the Seller to the Purchaser,
which Receivables will be sold by the Purchaser pursuant to the
Pooling and Servicing Agreement (as hereinafter defined), to the
Aegis Auto Receivables Trust 1996-3 (the "Trust") to be created
thereunder, which Trust will issue pass-through certificates
representing undivided interests in such Receivables and the other
property of the Trust (the "Certificates").
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 Article I of the Pooling and Servicing
Agreement dated as of September 1, 1996 (the "Pooling and
Servicing Agreement") among Aegis Auto Funding Corp. (as seller
thereunder), Norwest Bank Minnesota, National Association, as
trustee, and Norwest Bank Minnesota, National Association, as
backup servicer. 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):
"Additional Receivables" means all Receivables acquired by
the Purchaser from the Seller after the Closing Date and during the
Funding Period pursuant to this Agreement.
"Agreement" means this Purchase Agreement and all
amendments hereof and supplements hereto.
"Assignment" means the document of assignment
substantially in the form attached to this Agreement as Exhibit A.
"Backup Servicer" means Norwest Bank Minnesota,
National Association, in its capacity as Backup Servicer under the
Pooling and Servicing Agreement, and its successors in such
capacity, who shall be Eligible Servicers.
"Closing Date" means September 12, 1996.
"Cutoff Date" means September 1, 1996 with respect to the
Initial Receivables and the last Business Day of the calendar week
preceding the calendar week of a Funding Date with respect to any
Additional Receivables acquired on such Funding Date.
"Funding Account" means the trust account designated as
such, established and maintained pursuant to Sections 5.01 and
5.08 of the Pooling and Servicing Agreement.
"Funding Date" means each date occurring no more than
once per calendar week during the Funding Period on which
Additional Receivables are acquired by the Purchaser pursuant to
this Agreement and transferred to the Trust pursuant to the Pooling
and Servicing Agreement.
"Funding Event" means, with respect to a Funding Date,
the occurrence of the events required to occur in accordance with
Section 3.08 of the Pooling and Servicing Agreement.
"Funding Period" means the period beginning on the
Closing Date and ending on the earlier to occur of (i) the date on
which the amount in the Funding Account has been reduced to
zero or (ii) September 30, 1996.
"Initial Receivables" means all Receivables acquired by the
Purchaser from the Seller on the Closing Date pursuant to this
Agreement.
"Lock-Box Account" means the account(s) designated as
such, established and maintained pursuant to Section 5.01 of the
Pooling and Servicing Agreement.
"Purchaser" means Aegis Auto Funding Corp, a Delaware
corporation, its successors and assigns.
"Rating Agency" means each of Duff & ▇▇▇▇▇▇ Credit
Rating Co. and Fitch Investors Service, Inc., and any successors
thereto.
"Receivable" means any retail installment sales contract and
security agreement identified on the Schedule of Receivables.
"Receivable Review" means a review conducted by the
Review Firm to determine compliance with the requirements of
this Agreement, which review shall employ the procedures set
forth in the letter from the Review Firm attached to the Pooling
and Servicing Agreement as Exhibit P.
"Receivables Cash Purchase Price" means with respect to
any Receivable an amount equal to 100% of the Principal Balance
of such Receivable.
"Review Firm" means Ernst & Young LLP, its successors
and assigns.
"Schedule of Receivables" means the list of Receivables
annexed hereto as Exhibit B; provided that Exhibit B shall be
deemed to be amended on each Funding Date to add Additional
Receivables acquired by the Purchaser from the Seller on each
such date pursuant to this Agreement.
"Seller" means Aegis Auto Finance, Inc., a Delaware
corporation, its successors and assigns.
"Trust" means the Aegis Auto Receivables Trust 1996-3.
"Trustee" means Norwest Bank Minnesota, National
Association, its successors and assigns.
"UCC" means the Uniform Commercial Code, as in effect
from time to time in the relevant jurisdictions.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
Section 2.01. Purchase and Sale of Receivables. On the
Closing Date and on each Funding Date, subject to the terms and
conditions of this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller,
the Receivables and the other Trust Property relating thereto (as
defined in Section 2.01(a) below).
(a) Transfer of Receivables and Trust Property. On
the Closing Date (with respect to the Initial Receivables)
and each Funding Date (with respect to any Additional
Receivables), simultaneously with the transactions pursuant
to the Pooling and Servicing Agreement, the Seller shall
sell, transfer, assign and otherwise convey to the
Purchaser, without recourse, a 100% interest in (i) all
right, title and interest of the Seller in and to the
Receivables being purchased on such dates, all moneys
received thereon on and after the related Cutoff Date
allocable to principal, and all moneys received thereon
allocable to interest accrued thereon from and including the
related Cutoff Date, (ii) the security interests in the
Financed Vehicles granted by the Obligors pursuant to the
Receivables; (iii) the interest of the Seller in any Risk
Default Insurance Proceeds and any proceeds from claims
on any Insurance Policies (including the VSI Insurance
Policy) covering the Receivables, the Financed Vehicles or
the Obligors; (iv) the interest of the Seller in any Dealer
Recourse; and (v) the proceeds of any and all of the
foregoing. (All of the property identified in this subsection
(a) shall constitute "Trust Property"; provided that (A) the
minimum amount of Receivables sold to the Purchaser on
any Funding Date other than the last Funding Date shall
not be less than $500,000, (B) the Seller and the Purchaser
shall comply with the requirements specified in Section
2.01(c) hereof as a condition to any such purchase and (C)
the Funding Account shall contain available funds in an
amount at least equal to the Receivables Cash Purchase
Price for the Receivables to be acquired by the Purchaser
hereunder on such Funding Date immediately prior to the
Funding Event.)
(b) Receivables Purchase Price. (i) In
consideration for the Initial Receivables and the other Trust
Property relating thereto, the Purchaser shall, on the
Closing Date, pay to the Seller an amount equal to 100%
of the Receivables Cash Purchase Price for the Initial
Receivables in cash (the "Initial Receivables Purchase
Price").
(ii) In consideration for the Additional
Receivables and other Trust Property relating thereto, upon
one Business Day's prior notice given by the Purchaser to
the Trustee, the Purchaser shall cause the Trustee, on each
Funding Date, to pay to the Seller an amount equal to
100% of the Receivables Cash Purchase Price in cash by
federal wire transfer funds. The Seller acknowledges that
funds to purchase the Additional Receivables and other
Trust Property relating thereto on each Funding Date shall
be disbursed by the Trustee solely from the Funding
Account pursuant to Section 5.08 of the Pooling and
Servicing Agreement.
(c) Delivery of Documents. Not later than
Wednesday of the week of any proposed Funding Date (or
the next Business Day if Wednesday is not a Business Day)
(each a "Delivery Date"), the Seller shall, with respect to
Additional Receivables, deliver to the Trustee (1) the
original retail installment sale contracts evidencing such
Receivables, (2) original titles or copies of dealer blanket
guarantees of title or applications for title for each
Financed Vehicle relating to such Receivables sold
hereunder, (3) an executed Assignment substantially in the
form of Exhibit A hereto with a Schedule I attached listing
all Receivables to be acquired on such Funding Date, (4)
an executed Certificate of Delivery substantially in the form
of Exhibit D-2 hereto, (5) a power of attorney substantially
in the form of Exhibit E hereto, (6) a release and UCC-3
Termination Statement executed by each warehouse lender
terminating such Person's prior security interests in such
Additional Receivables granted by Aegis Finance and (7)
an endorsement to the Risk Default Insurance Policy
confirming insurance regarding each Additional Receivable.
The Purchaser shall cause the Trustee, upon receipt of such
documents and the other items specified in Section
3.08(b)(ii) of the Pooling and Servicing Agreement on the
Delivery Dates, to pay from the Funding Account to the
Seller the Receivables Cash Purchase Price therefor on the
Funding Date.
(d) Security Interest. It is the intention of the
Seller and the Purchaser that the transfer and assignment of
the Seller's right, title and interest in and to the
Receivables and the other Trust Property shall constitute an
absolute sale by the Seller to the Purchaser. In the event
a court of competent jurisdiction were to recharacterize the
transfer of the Trust Property as a secured borrowing
rather than a sale, contrary to the intent of the Seller and
the Purchaser, the Seller does hereby grant, assign and
convey to the Purchaser, a security interest in and lien
upon all of its right, title and interest in and to the Trust
Property, and all proceeds of any thereof, said security
interest to be effective from the date of execution of this
Agreement.
Section 2.02. The Closing. The sale and purchase of the
Initial Receivables shall take place at a closing (the "Closing") at
the offices of ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date, simultaneously with:
(a) the closings under the Pooling and Servicing Agreement
pursuant to which (i) the Purchaser will assign and pledge all of its
right, title and interest in and to the Initial Receivables and other
Trust Property relating thereto to the Trustee for the benefit of the
Certificateholders; and (ii) the Trustee will deposit the foregoing
into the Trust; and (b) the purchase of the Certificates by the
purchasers thereof.
Section 2.03. The Funding Events. The sale and purchase
of the Additional Receivables on each Funding Date shall take
place at the offices of the Trustee or such other location as the
Seller and Purchaser may reasonably agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the
Seller.
(a) The Seller hereby represents and warrants to the Purchaser
and its respective successors and assigns and for the benefit of the
Trustee and the Trust as of the date hereof and as of each Funding
Date:
(i) Organization, Etc. The Seller is a
corporation duly organized, validly existing and in
good standing under the laws of the State of
Delaware.
(ii) Due Qualification. The Seller is in
good standing and duly qualified to do business and
has obtained all necessary licenses and approvals in
the States of Delaware and New Jersey and all
jurisdictions in which the ownership or lease of its
property or the conduct of its business shall require
such qualifications unless the failure of the Seller to
obtain such licenses and approvals would have no
material adverse effect on the Seller's ability to
fulfill its obligations hereunder.
(iii) Power and Authority. The Seller has
the power and authority to execute and deliver this
Agreement and to carry out its terms; the Seller has
full power and authority to sell and assign the
property to be sold and assigned to the Purchaser
and such sale and assignment is valid and binding
against the Seller, and the Seller has duly
authorized such sale and assignment to the
Purchaser by all necessary action; the execution,
delivery and performance of this Agreement have
been duly authorized by the Seller by all necessary
action, and this Agreement is the legal, valid and
binding obligation of the Seller enforceable in
accordance with its terms. The Seller has duly
executed and delivered this Agreement and any
other agreements and documents necessary to
effectuate the transactions contemplated hereby.
(iv) No Violation. The consummation of
the transactions contemplated hereby and the
fulfillment of the terms hereof, neither 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 certificate of
incorporation or bylaws of the Seller, or any
indenture, agreement or other instrument to which
the Seller is a party or by which it is bound; nor
result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument
(other than this Agreement); nor violate any law or,
to the best of Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of
any federal or state regulatory body, administrative
agency, or other governmental instrumentality
having jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no
proceedings or investigations pending or, to the best
knowledge of Seller, threatened before any court,
regulatory body, administrative agency or other
governmental instrumentality having jurisdiction
over the Seller or its properties: (A) asserting the
invalidity of this Agreement; (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 Seller of its
obligations under, or the validity or enforceability
of, this Agreement.
(vi) No Approvals. No approval,
authorization or other action by, or filing with, any
governmental authority of the United States of
America or any of the States is required or
necessary to consummate the transactions
contemplated hereby, except such as have been duly
obtained or made by the Closing Date. Seller
complies in all material respects with all applicable
laws, rules and orders with respect to itself, its
business and properties and the Receivables; and
Seller maintains all applicable permits, licenses and
certifications.
(vii) Taxes. The Seller has filed all
federal, state, county, local and foreign income,
franchise and other tax returns required to be filed
by it through the date hereof, and has paid all taxes
reflected as due thereon. There is no pending
dispute with any taxing authority that, if determined
adversely to the Seller, would result in the assertion
by any taxing authority of any material tax
deficiency, and the Seller has no knowledge of a
proposed liability for any tax to be imposed upon
the Seller's properties or assets for which there is
not an adequate reserve reflected in the Seller's
current financial statements.
(viii) Investment Company. The Seller is
not, and is not controlled by, an "investment
company" registered or required to be registered
under the Investment Company Act of 1940, as
amended.
(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. "Aegis Auto Finance,
Inc." is the only trade name under which the Seller
is currently operating its business; for the six (6)
years (or such shorter period of time during which
the Seller was in existence) preceding the Closing
Date, the only other trade name under which Seller
operated its business is "The Clearing House Corp."
(xi) Ability to Perform. There is no
material impairment in the ability of the Seller to
perform its obligations under this Agreement.
(xii) Valid Business Reasons; No
Fraudulent Transfers. The Seller has valid business
reasons for transferring the Receivables rather than
obtaining a secured loan with the Receivables as
collateral. At the time of each transfer: (i) the
Seller transferred the Receivables to the Purchaser
without any intent to hinder, delay, or defraud any
current or future creditor of the Seller; (ii) the
Seller was not insolvent and did not become
insolvent as a result of the transfer; (iii) the Seller
was not engaged and was not about to engage in
any business or transaction for which any property
remaining with the Seller was an unreasonably
small capital or for which the remaining assets of
the Seller were unreasonably small in relation to the
business of the Seller or the transaction; (iv) the
Seller 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
Purchaser to the Seller for the Receivables was
equivalent to the fair market value of such
Receivables.
(xiii) Chief Executive Office. The Seller
maintains its chief executive office in the State of
New Jersey, and there have been no other locations
of the Seller's chief executive office since January
1995.
(xiv) Adverse Orders. There is no
injunction, writ, restraining order or other order of
any nature binding upon Seller that adversely affects
Seller's performance of this Agreement and the
transactions contemplated hereby and by the Pooling
and Servicing Agreement.
(b) The Seller makes the following
representations and warranties as to the Receivables for the
benefit of the Purchaser, the Certificateholders, the Trustee
and the Trust and on which the Purchaser relies in
accepting the Receivables on the Closing Date and each
Funding Date. Such representations and warranties speak
as of the Closing Date and each Funding Date, but shall
survive the sale, transfer and assignment of the Receivables
to the Purchaser and the subsequent assignment to the
Trustee pursuant to the Pooling and Servicing Agreement.
The Seller acknowledges and expressly agrees that any or
all of the Purchaser, the Trustee or the Certificateholders
may enforce the Seller's repurchase obligations or
substitution obligations in the case of Additional
Receivables pursuant to Section 7.02 hereof for any breach
of any of the following representations and warranties.
(i) Characteristics of Receivables. Each
Receivable (A) has been originated in the United
States of America by Seller or a Dealer for the
retail sale of a Financed Vehicle in the ordinary
course of Seller's 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 Seller from such Dealer or has been
financed for such Dealer under an existing
agreement with Seller, (B) has created a valid,
subsisting and enforceable first priority security
interest in favor of the Seller or the Dealer in the
Financed Vehicle, which security interest, if in
favor of the Dealer, has been assigned by the
Dealer to Seller, and which in either case has been
duly assigned by Seller to the Purchaser, (C) is
covered by the VSI Insurance Policy and by the
Risk Default Insurance Policy, (D) contains
customary and enforceable provisions such that the
rights and remedies of the holder thereof are
adequate for realization against the collateral of the
benefits of the security and (E) provides for level
monthly payments (provided that the payment in the
first or last month in the life of the Receivable may
be different from the level payment) that fully
amortize the Amount Financed over an original
term of no greater than 60 months and yield interest
at the Annual Percentage Rate.
(ii) Schedule of Receivables. The
information set forth on the Schedule of Receivables
is true, complete and correct in all material respects
as of the opening of business on the applicable
Cutoff Dates and no selection procedures adverse to
the Certificateholders have been utilized in selecting
the Receivables.
(iii) Compliance With Law. Each
Receivable and the sale of each Financed Vehicle
(A) complied at the time it was originated or made
and at the Closing Date or the applicable Funding
Date complies in all material respects with all
requirements of applicable federal, State and local
laws and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair
Credit 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, 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 Seller 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.
(iv) Binding Obligation. Each Receivable
represents the genuine, legal, valid and binding
payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance
with its terms.
(v) No Government Obligor. None of
the Receivables is due from the United States of
America or any State or local government or from
any agency, department or instrumentality of the
United States of America or any State or local
government.
(vi) Security Interest in Financed Vehicle.
Immediately prior to the sale, assignment and
transfer thereof, each Receivable is secured by a
validly perfected first priority security interest in
the Financed Vehicle in favor of the Seller as
secured party or all necessary and appropriate
actions have been commenced that would result in
the valid perfection of a first priority security
interest in the Financed Vehicle in favor of the
Seller as the secured party. The Seller has caused
each certificate of title (or copy of an application
for title) or such other document delivered by the
state title registration agency evidencing the security
interest in the Financed Vehicle, to be delivered to
the Custodian pursuant to Section 3.03(a)(ii) of the
Pooling and Servicing Agreement, together with
powers of attorney, duly executed by Seller in favor
of the Trustee, which powers of attorney are
sufficient to change the lien holder on the certificate
of title with respect to a Financed Vehicle.
(vii) 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.
(viii) No Waiver. No provision of a
Receivable has been waived, impaired, altered or
modified in any respect except in accordance with
the Servicing Agreement, the substance of which is
reflected in the Schedule of Receivables as it relates
to the information included thereon.
(ix) No Amendments. No Receivable has
been amended such that either the original
Scheduled Payment has been decreased or the
number of originally scheduled due dates has been
increased except as permitted under the terms of the
Risk Default Policy.
(x) No Defenses. No right of rescission,
setoff, recoupment, counterclaim or defense has
been asserted or threatened with respect to any
Receivable.
(xi) No Liens. No Liens or claims have
been filed for work, labor or materials relating to a
Financed Vehicle that are Liens prior to, or equal
or coordinate with, the security interest in the
Financed Vehicle granted by the Obligor pursuant
to the Receivable.
(xii) No Default. Except for payment
delinquencies continuing for a period of not more
than thirty (30) days as of the applicable 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 Seller has not waived
any of the foregoing. As of the date hereof and as
of each Funding Date, the Seller has no knowledge
of any facts regarding any particular Receivable
transferred on such date indicating that such
Receivable would not be paid in full.
(xiii) Insurance. Each Receivable is
covered, as of the Closing Date or the related
Funding Date when acquired, and throughout the
shorter of the term of the Trust or the term of the
Receivable, under the VSI Insurance Policy and the
Risk Default Insurance Policy, and each such
insurance policy is valid and remains in full force
and effect. The Seller, in accordance with its
customary procedures, has required that each
Obligor obtain, and has determined that each
Obligor has obtained, physical damage insurance
covering the Financed Vehicle as of the date of
execution of the Receivable insuring repair or
replacement of such Financed Vehicle subject to a
deductibility not in excess of $500.
(xiv) Title. It is the intention of the Seller
that the transfer and assignment of the Receivables
from the Seller to the Purchaser herein
contemplated be treated as an absolute sale for
financial accounting purposes, and that the
beneficial interest in and title to the Receivables not
be part of the property of the Seller for any purpose
under state or federal law. No Receivable has been
sold, transferred, assigned or pledged by the Seller
to any Person other than the Purchaser, except the
pledge to and liens for the benefit of certain of
Seller's creditors which will be released prior to
conveyance to the Purchaser hereunder.
Immediately prior to the transfer and assignment
herein contemplated, the Seller had good and
marketable title to each Receivable free and clear of
all Liens and rights of others; and, immediately
upon the transfer thereof, the Purchaser will have
good and marketable title to each Receivable, free
and clear of all Liens and rights of others; and the
transfer has been validly perfected under the UCC.
(xv) Lawful Assignment. No Receivable
has been originated in, or is subject to the laws of,
any jurisdiction under which the sale, transfer and
assignment of such Receivable under this
Agreement or pursuant to transfers of the
Certificates is or shall be unlawful, void or
voidable.
(xvi) All Filings Made. All filings
(including, without limitation, UCC filings)
necessary in any jurisdiction to give the Purchaser
a first perfected security interest in the Receivables
have been made.
(xvii) One Original. There is only one
original executed copy of each Receivable.
(xviii) Maturity of Receivables. Each
Receivable had an original maturity of not more
than 60 months; the weighted average original term
to maturity of the Initial Receivables was 54.22
months as of the Cutoff Date while the weighted
average remaining term to maturity as of the Cutoff
Date for such Initial Receivables was 53.58 months;
the remaining maturity of each Receivable was 60
months or less as of the Cutoff Date; the addition of
the Additional Receivables on each Funding Date
will not extend the weighted average remaining
term to maturity of all Receivables sold hereunder
by more than 1.00 month as of the applicable
Cutoff Dates.
(xix) Scheduled Payments. Each Initial
Receivable has a next scheduled payment due date
on or prior to November 20, 1996; no Receivables
had a payment that was more than 30 days overdue
as of the Cutoff Date; and each Receivable has a
final scheduled payment due no later than the Final
Scheduled Distribution Date.
(xx) Monthly Payments. Each Receivable
provides 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 the Risk Default Policy provides that
loan extensions will be allowed, subject to no more
than one extension during each 12 months in the
Receivable's term.
(xxi) Outstanding Principal Balance;
Annual Percentage Rate. Each Initial Receivable
had an outstanding Principal Balance as of the
applicable Cutoff Date of at least $1,121.37; and no
Initial Receivable has an outstanding Principal
Balance in excess of $34,659.46. As of their
Cutoff Date, the weighted average APR of the
Initial Receivables was 20.23% per annum. The
addition of the Additional Receivables on each
Funding Date will not decrease the weighted
average APR of all Receivables pledged hereunder
by more than 10 basis points.
(xxii) Financing. Each Receivable
represents a Simple Interest Receivable.
(xxiii) Bankruptcy Proceeding. No
Receivable as of the respective Cutoff Date is noted
in the Seller's records as a dischargeable debt under
a bankruptcy proceeding.
(xxiv) Chattel Paper, Valid and Binding.
Each Receivable constitutes "chattel paper" under
the UCC, and is the legal, valid and binding
obligation of the Obligor thereunder in accordance
with the terms thereof.
(xxv) States of Origination. At the time of
origination, each Receivable was originated in one
of the following states, which are the only states in
which the Receivables were originated: Alabama,
Arizona, California, Colorado, Connecticut,
Delaware, Florida, Georgia, Illinois, Indiana,
Kansas, Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Nevada, New Jersey, New
Mexico, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Texas,
Virginia and West Virginia. After the addition of
all Additional Receivables not more than 25% of
the Receivables will have been originated in any
one state.
(xxvi) Age of Financed Vehicles.
Approximately 6.15% of the Initial Receivables
relate to new Financed Vehicles and approximately
93.85% relate to used Financed Vehicles.
(xxvii) 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
such Receivable to borrow from any person
additional funds secured by the Financed Vehicle.
Each Receivable as of the Closing Date and each
related Funding Date is fully secured by the related
Financed Vehicle.
(xxviii) Underwriting Guidelines. Each
Receivable has been originated in accordance with
the Underwriting Guidelines and in accordance with
the underwriting guidelines acceptable to the Risk
Default Insurer. Such 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 Seller's existing
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, a Dealer located in one of the
states specified in paragraph (xxv) above.
(xxix) Financed Vehicle in Good Repair.
To the best of the Seller's knowledge, each
Financed Vehicle is in good repair and working
order.
(xxx) Principal Balance. No Receivable
has a Principal Balance which includes capitalized
interest, physical damage insurance or late charges.
(xxxi) Servicing. At the applicable Cutoff
Date, each Receivable was being serviced by the
Servicer.
(xxxii) Eligible Loan. Each Receivable
constitutes an "Instrument" and each Financed
Vehicle constitutes "Eligible Collateral" as defined
in and for purposes of the Risk Default Insurance
Policy. Neither the insured under the Risk Default
Insurance Policy nor any Person acting on behalf of
such insured has concealed or misrepresented any
material facts or circumstances regarding any matter
that would serve as a basis for the Risk Default
Insurer to void the Risk Default Insurance Policy.
(xxxiii) Original Principal Amount. The
original principal amount of each Receivable (A)
originated under the original "Zero Down" and the
"Reduced Income" programs, was not more than (1)
in the case of new Financed Vehicles, the lower of
(x) 105% of the manufacturer's suggested retail
price plus rebatable premiums on cancelable items
and (y) 120% of the manufacturer's suggested retail
price or (2) in the case of used Financed Vehicles,
the lower of (x) 105% 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 plus rebatable premiums
on cancelable items and (y) 120% of such ▇▇▇▇▇▇
"Blue Book" retail value; (B) originated under the
"First Time Buyer" program, was not more than (1)
in the case of new Financed Vehicles, 95% of the
manufacturer's suggested retail price plus rebatable
premiums on cancelable items of up to 15% of the
manufacturer's suggested retail price or (2) in the
case of used Financed Vehicles, 95% 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 plus
rebatable premiums on cancelable items of up to
15% of the manufacturer's suggested retail price
and (C) originated under the "Military Program"
was not more than 105% of the manufacturer's
suggested retail price or, in the case of used
Financed Vehicles, 105% of the ▇▇▇▇▇▇ "Blue
Book" retail value. Calculations made with respect
to the percentages referenced above are rounded to
the nearest whole percentage point. All of the
Additional Receivables will be originated in
accordance with the applicable Underwriting
Guidelines.
(xxxiv) No Proceedings. There are no
proceedings or investigations pending or, to the best
knowledge of the Seller, threatened before any
court, regulatory body, administrative agency or
other governmental instrumentality having
jurisdiction over the Seller or its respective
properties: (A) asserting the invalidity of any of the
Receivables; (B) seeking to prevent the enforcement
of any of the Receivables; or (C) seeking any
determination or ruling that might materially and
adversely affect the payment on or enforceability of
any Receivable.
(xxxv) Licensing. With respect to each
Receivable originated in the State of Pennsylvania,
the Seller and each prior holder of any such
Receivable were each properly licensed under
applicable Pennsylvania laws and regulations during
the respective times the Seller and each prior holder
of any such Receivable held such Receivable,
except where the failure to be so licensed would not
have a material adverse effect on the ability of the
Trust to collect principal or interest payments on
such Receivable or to realize upon the Financed
Vehicle underlying any such Receivable in
accordance with the terms thereof.
(xxxvi) Additional Receivables. Each
Additional Receivable shall have been identified and
approved by Aegis Finance on or prior to the
Closing Date, as evidenced by the Seller's dated
notation of approval on the loan application (or
other writing).
(c) The Seller makes the following additional
representations, warranties and covenants for the benefit of
the Purchaser, the Certificateholders and the Trust on
which the Purchaser relies in accepting the Receivables on
the Closing Date and each Funding Date, which
representations, warranties and covenants shall survive the
Closing Date and each Funding Date.
(i) Location of Servicer Files. The
Servicer Files are kept by the Servicer at the
location listed in Exhibit C hereto, with the
exception of (A) the original titles or other
documents evidencing the security interest of the
Seller in the Financed Vehicle and (B) the original
Receivables, which documents shall be kept at an
office of the Custodian.
(ii) Evidence of Security Interest. On the
Closing Date (in the case of the Initial Receivables)
and the applicable Funding Date (in the case of each
Additional Receivable), the Seller shall deliver or
cause to be delivered to the Trustee, as Custodian,
(A) an original certificate of title or (B) if the
applicable state title registration agency does not
deliver certificates of title to lienholders, such other
document delivered to the Seller by the state title
registration agency evidencing the security interest
of the Seller in the Financed Vehicle, or (C) a
guarantee of title or a copy of an application for
title if no certificate of title or other evidence of the
security interest in the Financed Vehicle has yet
been issued, for each Financed Vehicle relating to
each Receivable sold, transferred, assigned and
conveyed hereunder; provided, however, that any
original certificate of title or other document
evidencing the security interest of the Seller in the
Financed Vehicle not so delivered on the Closing
Date or the Funding Date, as the case may be, due
to the fact that such title or other document has not
yet been issued by a state title registration agency
and delivered to the Seller as of such date, shall be
delivered by the Seller to the Trustee within one
hundred twenty (120) days after the Closing Date or
Funding Date, as the case may be, or such later
date permitted by the Rating Agencies in
accordance with Section 3.03(a) of the Pooling and
Servicing Agreement; provided, further, that failure
to so deliver any original certificate of title or other
document evidencing the security interest of the
Seller in the Financed Vehicle to the Trustee shall
be deemed to be a breach by the Seller of its
representations and warranties contained in this
Section 3.01, and such occurrence shall constitute
a breach pursuant to Section 7.02 herein.
(iii) Insurance Claims. The Seller shall
provide to the Purchaser, within five (5) Business
Days of receipt or distribution thereof, (A) copies of
all documents received from the Risk Default
Insurer contesting the eligibility of any claim made
under a Risk Default Policy and (B) copies of all
documents regarding the resolution of alleged
ineligible claims.
(iv) Business Purpose. The Seller will
sell, transfer, assign and otherwise convey (for state
law, tax and financial accounting purposes) the
Receivables for a bona fide business purpose.
(v) Financial Accounting Purposes. The
Seller and the Purchaser, as owner of the
Receivables, each intend to treat the transactions
contemplated by this Agreement as an absolute sale
of the Receivables by the Seller for financial
accounting purposes. The Seller and the Trustee
intend to cause to be filed all returns or reports in
a manner consistent with such treatment.
(vi) Valid Transfer. This Agreement
constitutes a valid transfer by the Seller to the
Purchaser of all of the Seller's right, title and
interest in the Receivables and the other Trust
Property.
(vii) Seller's Obligations. The Seller has
submitted all necessary documentation for payment
of the Receivables to the Obligors and has fulfilled
all of its applicable obligations hereunder required
to be fulfilled as of the Closing Date or Funding
Date, as the case may be.
(viii) Insurance Policies. The Seller will
not cancel, nor permit the cancellation of, the Risk
Default Insurance Policy or VSI Insurance Policy,
in each case as it relates to the Receivables.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligation of the Purchaser.
The obligation of the Purchaser to purchase the Receivables is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Seller hereunder shall
be true and correct on the Closing Date and each Funding
Date and the Seller shall have performed all obligations to
be performed by each of them hereunder on or prior to the
Closing Date and each Funding Date.
(b) Files Marked; Files and Records owned by
Trust. The Seller shall, at its own expense, on or prior to
the Closing Date and each Funding Date indicate in its files
that the Receivables have been sold to the Purchaser
pursuant to this Agreement and the Seller shall deliver to
the Purchaser a Schedule of Receivables certified by the
Chairman, the President, the Vice President or the
Treasurer of the Seller to be true, correct and complete.
Further, the Seller hereby agrees that the computer files
and other physical records of the Receivables maintained by
the Seller will bear an indication reflecting that the
Receivables have been sold to the Purchaser and thereafter
sold, transferred and assigned to the Trustee for deposit in
the Trust.
(c) Documents to be Delivered by the Seller at
the Closing and Each Funding Date.
(i) The Assignment. At the Closing and each Funding Date,
the Seller will execute and deliver an Assignment substantially in
the form of Exhibit A hereto with respect to the Receivables then
being sold.
(ii) Custodian files. At the Closing and
each Funding Date, the Seller shall deliver to the
Trustee, as custodian, for the benefit of the
Purchaser and its assigns the Custodian Files, which
delivery shall be accompanied by a Certificate of
Delivery substantially in the form of Exhibit D-1
(for Initial Receivables) or D-2 (for Additional
Receivables) as appropriate.
(iii) Evidence of UCC Filings. The Seller
shall record and file, at its own expense, (A) on or
prior to the Closing Date and each Funding Date,
UCC-3 termination statements in each jurisdiction
required by applicable law, to release any prior
security interests in the Receivables granted by the
Seller, and (B) on or prior to the Closing Date and
each Funding Date, UCC financing statements in
each jurisdiction in which required by applicable
law, executed by the Seller as seller or debtor, and
naming the Purchaser as purchaser or secured party,
naming the Trustee as assignee of such 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
sale, transfer, assignment and conveyance of such
Receivables to the Purchaser and the sale, transfer,
assignment and conveyance thereof to the Trustee.
The Seller shall deliver file-stamped copies, or
other evidence satisfactory to the Purchaser and the
Trustee of such filing, to the Purchaser and the
Trustee on or prior to the Closing Date and each
Funding Date.
(iv) Evidence of Insurance and Payment.
On the Closing Date and each Funding Date the
Seller shall deliver to the Trustee on the Purchaser's
behalf evidence of payment in full of all premiums
due under the Risk Default Insurance Policy and the
VSI Insurance Policy with respect to the
Receivables being sold on such date.
(v) Other Documents. Such other
documents, including without limitation powers of
attorney with respect to the Receivables, as the
Purchaser may reasonably request.
Section 4.02. Conditions to Obligation of the Seller. The
obligation of the Seller to sell the Receivables to the Purchaser on
the Closing Date and each Funding Date is subject to the condition
that at the Closing Date the Purchaser will deliver to the Seller the
Initial Receivables Purchase Price for the Initial Receivables, as
provided in Section 2.01(b)(i) and on each Funding Date will
deliver or cause the Trustee to deliver the Receivables Cash
Purchase Price for the Additional Receivables being sold on each
such date as provided in Section 2.01(b)(ii).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser 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, the Pooling and Servicing Agreement shall govern:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing
statements and continuation statements and any other
necessary documents covering the right, title and interest of
the Purchaser 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 Purchaser
hereunder to the Receivables and the other Trust Property.
The Seller shall deliver to the Purchaser 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
Purchaser shall cooperate fully with the Seller in
connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill
the intent of this Section 5.01(a).
(b) Name Change. At least fifteen days before
the Seller 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
Seller shall give the Purchaser and the Trustee notice of
any such change and no later than five (5) days after the
effective date thereof, shall file such financing statements
or amendments as may be necessary to continue the
perfection of the Purchaser'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, the Seller will not sell, pledge, assign or transfer the
Receivables to any other person, or grant, create, incur, assume or
suffer to exist any Lien on any interest therein, and the Seller shall
defend the right, title, and interest of the Purchaser in, to and
under such Receivables against all claims of third parties claiming
through or under the Seller; provided, however, that the Seller's
obligations under this Section 5.02 shall terminate upon the
termination of the Trust pursuant to the Pooling and Servicing
Agreement.
Section 5.03. Chief Executive Office. The Seller shall
give written notice to the Purchaser and the Trustee at least 30
days prior to relocating its chief executive office and shall make
such filings under the UCC as shall be necessary to maintain the
perfection of the security interest (as defined in the UCC) in the
Receivables granted in favor of the Purchaser hereunder.
Section 5.04. Trustee as Named Insured; Pledge of
Proceeds. The Seller shall cause the Trustee to be identified as
the named insured or additional insured under the Risk Default
Insurance Policy and as an additional insured, as its interests may
appear, under the VSI Insurance Policy as of the Closing Date.
The Seller hereby assigns to the Trustee for the benefit of the
Certificateholders, any interest it may have in any and all proceeds
with respect to a Receivable under the terms of any of the
foregoing insurance policies.
Section 5.05. Costs and Expenses. The Seller agrees to
pay all reasonable costs and disbursements in connection with the
perfection, as against all third parties, of the sale to the Purchaser
of the Seller's right, title and interest in and to the Receivables.
Section 5.06. No Waiver. The Seller 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, have been delivered
to the location listed in Exhibit C hereto. The Custodian Files,
including the original titles (or other evidence of the security
interest in the Financed Vehicles) and the originals of the
Receivables shall be delivered to the principal executive office of
the Custodian as specified in the Pooling and Servicing Agreement.
Section 5.08. Sale of Receivables. The Seller will take no
action inconsistent with the Purchaser's ownership of the
Receivables. If a third party, including a potential purchaser of
the Receivables, should inquire, the Seller will promptly indicate
that ownership of the Receivables has been transferred to the
Purchaser, and by the Purchaser to the Trust.
Section 5.09. The Seller's Records. This Agreement and
all related documents describe the transfer of the Receivables from
the Seller as an absolute sale by the Seller to the Purchaser and
evidence the clear intention by the Seller to effectuate an absolute
sale and assignment of such Receivables. The financial statements
and tax returns of the Seller will disclose that, under generally
accepted accounting principles, or for tax purposes, respectively,
the Seller transferred ownership of the Receivables.
Section 5.10. Financial Statements. The Seller will
furnish to the Purchaser and each Certificateholder, (A) within 90
days after the end of its fiscal year, an unaudited balance sheet as
at the end of such fiscal year and the related statements of income
and cash flow for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year
and (B) within 45 days after the end of each of the first three
quarterly accounting periods in each fiscal year, an unaudited
balance sheet of the Seller as at the end of such quarterly period
setting forth in each case in comparative form the figures for the
corresponding periods of the previous fiscal year.
Section 5.11. Compliance with Laws, Etc. The Seller will
comply in all material respects with all applicable laws, rules,
regulations, judgments, decrees and orders (including those
relating to the Receivables and any other agreements related
thereto), where the failure so to comply, individually or in the
aggregate for all such failures, would have a reasonable likelihood
of having a material adverse effect on the business or properties of
the Seller.
Section 5.12. Preservation of Existence. The Seller will
preserve and maintain its existence, rights, franchises and
privileges in the jurisdiction of its organization, and qualify and
remain qualified in good standing in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualifications would have a reasonable likelihood of
having a material adverse effect on the business or properties of
the Seller.
Section 5.13. Keeping of Records and Books of Account.
The Seller shall maintain and implement administrative and
operating procedures (including, an ability to recreate records
evidencing its Receivables in the event of the destruction of the
originals thereof), and shall keep and maintain, or cause to be kept
or maintained, all documents, books, records and other
information which, in the reasonable determination of Purchaser
and the Trustee, are necessary or advisable in accordance with
prudent industry practice and custom for transactions of this type
for the collection of all Receivables. Seller shall maintain or cause
to be maintained at all times accurate and complete books, records
and accounts relating to the Receivables, which books and records
shall be marked to indicate the sales of all Receivables hereunder.
Section 5.14. Separate Existence of Purchaser. The
Seller hereby acknowledges that the Trustee, on behalf of the
Trust, is entering into the transactions contemplated by the Pooling
and Servicing Agreement in reliance upon Purchaser's identity as
a legal entity separate from the Seller and Seller's other affiliates.
Seller will, and will cause each other affiliate to, take all
reasonable steps to continue their respective identities as separate
legal entities and to make it apparent to third Persons that each is
an entity with assets and liabilities distinct from those of Purchaser
and that Purchaser is not a division of the Seller or any other
Person.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Indemnification. The Seller shall indemnify
the Purchaser, the Trustee and each Certificateholder 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 breach of
any of its representations and warranties contained herein. In
addition, the Seller shall indemnify the Trustee, the Trust, the
Backup Servicer, the Custodian and each Certificateholder to the
extent of the Purchaser's indemnity obligations under Section 8.02
of the Pooling and Servicing Agreement and under the fourth
sentence of Section 11.07 of the Pooling and Servicing Agreement,
which provisions are incorporated herein by this reference as if
such provisions were fully set forth herein and as if the "Seller"
thereunder were the Seller hereunder. The Seller hereby
acknowledges that any of the Trustee, the Custodian, the Backup
Servicer or the Certificateholders may enforce the obligation of the
Seller under this Section 6.01. These indemnity obligations shall
be in addition to any obligation that the Seller may otherwise have.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Obligations of the Seller. The obligations
of the Seller under this Agreement shall not be affected by reason
of any invalidity, illegality or irregularity of any Receivable.
Section 7.02. Repurchase or Substitution Upon Breach.
(a) The Seller hereby covenants and agrees to deliver to the
Purchaser, the Trustee and each Certificateholder prompt written
notice of (i) the occurrence of a breach of any of the
representations and warranties of the Seller contained or deemed
to be contained in Section 3.01(b) hereof with respect to any
Receivable or (ii) the failure of the Seller to deliver original
certificates of title or other documents evidencing the security
interest of the Seller in the Financed Vehicle pursuant to Section
4.01(c)(ii). If (x) such breach shall not have been cured by the
thirtieth day following discovery thereof or (y) the non-delivery
shall not have been cured by the seventh Business Day following
receipt by a responsible officer of the Seller of notice by certified
mail thereof, the Seller shall be obligated to repurchase such
Receivable hereunder from the Purchaser at the Purchase Amount
on a date which shall be no later than the fifth Business Day
following the applicable cure period. The Seller shall be obligated
to repurchase the Receivable to which such breach or non-delivery
relates even if the Purchaser shall not have breached its respective
representations and warranties with respect to such Receivable
under the Pooling and Servicing Agreement and even if the
Purchaser fails to comply with any repurchase obligation it may
have under the Pooling and Servicing Agreement. The Seller shall
remit the Purchase Amount to the Trustee on behalf of the
Purchaser. For purposes of this Section, the Purchase Amount of
a Receivable which is not consistent with the warranty pursuant to
Section 3.01(b)(i)(E) shall include such additional amount as shall
be necessary to provide the full amount of principal and interest as
contemplated therein.
(b) The foregoing notwithstanding, the Seller shall also
have the option of substituting, within the five Business Day period
following the applicable cure period, a Receivable conforming to
the requirements hereof (a "Substitute Receivable") for any breach
or failing Receivable instead of repurchasing such Receivable,
provided any such substitution occurs within ninety (90) days of
the Closing Date. It shall be a condition of any such substitution
that (i) the outstanding Principal Balance of the Substitute
Receivable as of the date of substitution shall be less than or equal
to the outstanding Principal Balance of the replaced Receivable as
of the date of substitution; provided that an amount equal to the
difference, if any, between the outstanding Principal Balance of the
replaced Receivable and the outstanding Principal Balance of the
Substitute Receivable shall be paid in cash to Purchaser for deposit
into the Collection Account pursuant to the Pooling and Servicing
Agreement; (ii) the remaining term to maturity of the Substitute
Receivable shall not be greater than that of the replaced
Receivable; (iii) the Cutoff Date with respect to the Substitute
Receivable shall be deemed to be the first day of the month of the
substitution; (iv) the Substitute Receivable otherwise satisfies the
conditions of Section 3.01(b) hereof (the Seller shall be deemed to
make all representations and warranties contained in
Section 3.01(b) and (c) hereof with respect to the Substitute
Receivable as of the date of substitution); and (v) the Seller shall
have delivered to the Purchaser and the Trustee all of the
documents specified in Section 4.01(c) hereof with respect to the
Substitute Receivable on or before the date of substitution.
(c) Except as provided in subsection (b) above, the
repurchase obligation of the Seller shall constitute the sole remedy
of the Certificateholders, the Trustee or the Purchaser against the
Seller for its breach hereunder; provided, that the Seller hereby
acknowledges that any of the Purchaser, the Certificateholders or
the Trustee may enforce the Seller's obligation to repurchase or
substitute for nonconforming Receivables pursuant to this Section
7.02.
Section 7.03. Purchaser's Assignment of Nonconforming
Receivables. With respect to all Receivables repurchased or
substituted for by the Seller pursuant to this Agreement, the
Purchaser shall assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest
in and to such Receivables, and all security and documents relating
thereto.
Section 7.04. Trust. The Seller acknowledges that the
Purchaser will assign the Receivables to the Trust for the benefit
of the Certificateholders, pursuant to the Pooling and Servicing
Agreement, and that the representations and warranties contained
in this Agreement and the rights of the Purchaser under Section
7.02 hereof are intended to benefit such Trust and each
Certificateholder. The Seller 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 Seller and the Purchaser; provided however,
that for so long as any Certificates are outstanding no amendment
which in any manner (x) relates to the Seller's obligations under
Section 7.02 or (y) would have a materially adverse effect on the
interests of the Certificateholders, shall be effective without the
prior written consent of each Certificateholder.
Section 7.06. Waivers. No failure or delay on the part of
the Purchaser in exercising any power, right or remedy under this
Agreement or the Assignments 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 preamble
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 Seller will pay all
expenses, including reasonable fees and expenses of counsel,
incident to the performance of its obligations under this Agreement
and the Seller agrees to pay all reasonable out-of-pocket costs and
expenses in connection with the enforcement of any obligation of
the Seller hereunder.
Section 7.09 Acknowledgement Concerning Insurance
Proceeds. The Seller hereby acknowledges and agrees for the
benefit of the Purchaser, the Trustee and the Certificateholders that
any checks representing Risk Default Insurance Proceeds or
proceeds from claims on any Insurance Policies in respect of the
Receivables that at any time may be made payable to the Seller
will be so made payable for reasons of administrative and claims
processing convenience only and that, notwithstanding that such
checks may be made so payable, the Seller shall have no right,
title or interest in such proceeds.
Section 7.10. Limited Recourse to Purchaser. The Seller
agrees that the obligations of the Purchaser hereunder are payable
solely from the Purchaser's interests in the Trust Property and that
the Seller may not look to any other property or assets of the
Purchaser in respect of such obligations.
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 laws of the State of New York without regard or reference to
principles of conflicts of laws of such state.
Section 7.13. Counterparts. This Agreement may be
executed in two or more 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 Purchase Agreement to be executed by their respective officers
thereunto duly authorized as of the date and year first above
written.
AEGIS AUTO
FINANCE, INC., as Seller
By
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
President
AEGIS AUTO
FUNDING CORP., a
Delaware corporation,
as Purchaser
By
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
President
EXHIBIT A
ASSIGNMENT
For value received in accordance with the Purchase
Agreement dated as of September 1, 1996, (the "Purchase
Agreement"), by and between the undersigned ("the Seller"), and
Aegis Auto Funding Corp., a Delaware corporation (the
"Purchaser"), the undersigned does hereby sell, assign, transfer
and otherwise convey unto the Purchaser, without recourse, (i) all
right, title and interest of the undersigned in and to the Receivables
identified on the Schedule attached hereto, all moneys received
thereon on and after the Cutoff Date allocable to principal, and all
moneys received thereon allocable to interest accrued thereon from
and including the Cutoff Date therefor; (ii) the security interests of
the Seller in the Financed Vehicles granted by the Obligors
pursuant to the Receivables; (iii) the interest of the Seller in any
Risk Default Insurance Proceeds and any proceeds from claims on
any Insurance Policies (including the VSI Insurance Policy)
covering the Receivables, the Financed Vehicles or Obligors from
the Cutoff Date; (iv) the interest of the Seller in any Dealer
Recourse; and (v) the proceeds of any and all of the foregoing.
The foregoing sale does not constitute and is not intended to result
in any assumption by the Purchaser of any obligation of the
undersigned to the Obligors, insurers or any other person in
connection with the Receivables, Custodian Files, Servicer Files,
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 Purchase Agreement and is to be
governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Purchase
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of [CLOSING DATE]
[FUNDING DATE].
AEGIS AUTO
FINANCE INC.
By
Name:
Title:
EXHIBIT B
SCHEDULE OF RECEIVABLES
EXHIBIT C
LOCATION OF SERVICER FILES
American Lenders Facilities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT D-1
CERTIFICATE OF DELIVERY
(Initial Receivables)
In connection with the transfer of certain auto loan
receivables to the Aegis Auto Receivables Trust 1996-3 (the
"Trust") to be formed pursuant to a Pooling and Servicing
Agreement (the "Agreement") to be entered into among Aegis
Auto Funding Corp., a Delaware corporation, as seller (the
"Seller"), Norwest Bank Minnesota, National Association, as
Backup Servicer (the "Backup Servicer"), and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"), the
undersigned hereby certifies that the documents listed below are
included in the Custodian Files delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President of the Trustee for each of the Receivables listed on
the Schedule hereto. Unless otherwise defined herein, capitalized
terms have the meanings set forth in the Agreement or the
Purchase Agreement (as defined in the Agreement).
(i) The original of the Receivable and
any amendments thereto.
(ii) The original certificate of title or
other document evidencing the security interest in
the Financed Vehicles, or a guarantee of title or a
copy of an application for title if no certificate of
title or other document evidencing the security
interest in the Financed Vehicle has yet been issued.
(iii) A copy of the Risk Default
Insurance Policy and the VSI Insurance Policy and
endorsements to the Risk Default Insurance Policy
and the VSI Insurance Policy confirming insurance
(as reflected on a master list of insured Receivables)
regarding each Receivable.
AEGIS AUTO
FINANCE, INC.
Dated: , 1996 By
Name:
Title:
EXHIBIT D-2
CERTIFICATE OF DELIVERY
(Additional Receivables)
In connection with the transfer of certain auto loan
receivables to the Aegis Auto Receivables Trust 1996-3 (the
"Trust") to be formed pursuant to a Pooling and Servicing
Agreement (the "Agreement") to be entered into among Aegis
Auto Funding Corp., a Delaware corporation, as seller (the
"Seller"), Norwest Bank Minnesota, National Association, as
Backup Servicer (the "Backup Servicer"), and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"), the
undersigned hereby certifies that the documents listed below are
included in the Custodian Files delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President of the Trustee for each of the Additional
Receivables listed on the Schedule hereto. Unless otherwise
defined herein, capitalized terms have the meanings set forth in the
Agreement or the Purchase Agreement (as defined in the
Agreement).
(i) The original of each Additional
Receivable and any amendments thereto.
(ii) The original certificate of title or
other document evidencing the security interest in
the Financed Vehicle, or a guarantee of title or a
copy of an application for title if no certificate of
title or other document evidencing the security
interest in the Financed Vehicle has yet been issued.
(iii) A copy of an endorsement to the
Risk Default Insurance Policy and the VSI
Insurance Policy confirming insurance (as reflected
on a master list of insured Receivables) regarding
each Receivable.
AEGIS AUTO
FINANCE, INC.
Dated: , 1996 By
Name:
Title:
EXHIBIT E
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
Aegis Auto Finance, Inc., a Delaware corporation ("Aegis
Finance"), having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, in connection with the
transfer of its interests in certain automobile receivables and
certain security interests and liens created in the Collateral (as
defined below) has and hereby affirms that it has made, constituted
and appointed, and by these presents does make, constitute and
appoint Norwest Bank Minnesota, National Association, a national
banking association, as trustee of the Aegis Auto Receivables
Trust 1996-3 ("Trustee"), having its principal place of business at
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, and its successors or assigns in such capacity, Aegis
Finance's true and lawful attorney-in-fact for and in Aegis
Finance's name, place and stead to act:
FIRST: To execute and/or endorse any loan agreement,
promissory note, security agreement, financing statement,
certificate of title or other document, instrument, or agreement, or
any amendment, modification or supplement of any of the
foregoing and perform any act and covenant in any way which
Aegis Finance itself could do (to the fullest extent that the Aegis
Finance is permitted by law to act through an agent), which is
necessary or appropriate to modify, amend, renew, extend,
release, terminate and/or extinguish (i) any and all liens and
security interests granted to or created in favor of Aegis Finance
in and to or affecting any of the motor vehicles described in
Schedule "A" (the "Collateral") annexed hereto and by this
reference made a part hereof, or (ii) any indebtedness secured by
any such lien or security interest or any right or obligation of the
obligor of such indebtedness or Aegis Finance, in each case upon
such terms and conditions deemed, in the sole discretion of said
attorney-in-fact, necessary or appropriate in connection with such
modification, amendment, renewal, extension, release, termination
and/or extinguishment.
SECOND: To agree and to contract with any person, in
any manner and upon terms and conditions deemed, in the sole
discretion of said attorney-in-fact, necessary or appropriate for the
accomplishment of any such modification, amendment, renewal,
extension, release, termination and/or extinguishment of any such
lien, security interest, indebtedness, right or obligation referred to
above with respect to the Collateral; to perform, rescind, reform,
release or modify any such agreement or contract or any similar
agreement or contract made by or on behalf of the principal; to
execute, acknowledge, seal and deliver any contract, agreement,
certificate of title or other document, agreement or instrument
creating, evidencing, securing or secured by any such lien,
security interest, indebtedness, right or obligation; and to take all
such other actions and steps, pay or receive such moneys and to
execute, acknowledge, seal and deliver all such other certificates,
documents and agreements as said attorney-in-fact may deem
necessary or appropriate to consummate any such modification,
amendment, renewal, extension, release, termination and/or
extinguishment of any such security interest, lien, indebtedness,
right or obligation, or in furtherance of any of the transactions
contemplated by the foregoing.
THIRD: With full and unqualified authority to delegate
any or all of the foregoing powers to any person or persons whom
said attorney-in-fact shall select.
FOURTH: This power of attorney shall not be affected by
the subsequent disability or incompetence of the principal.
FIFTH: This power of attorney shall be irrevocable and
coupled with an interest.
SIXTH: To induce any third party to act hereunder, Aegis
Finance hereby agrees that any third party receiving a duly
executed copy or facsimile of this instrument may act hereunder,
and that any notice of revocation or termination hereof or other
revocation or termination hereof by operation of law shall be
ineffective as to such third party.
IN WITNESS WHEREOF, Aegis Finance has executed this
Power of Attorney as of this [Funding Date].
AEGIS AUTO
FINANCE, INC.
By
Name:
Title:
The foregoing instrument was acknowledged before me this
[Funding Date], by
, the of Aegis Auto Finance, Inc.
WITNESS my hand and official seal.
__________________
______________
Notary Public
[NOTARIAL SEAL]
My commission expires:
SCHEDULE A
DESCRIPTION OF COLLATERAL