EXHIBIT 10.53
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EXECUTION COPY
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CONTRACT PURCHASE AGREEMENT
CONTRACT PURCHASE AGREEMENT, dated as of October 2, 1998, by and between
AUTO LENDERS ACCEPTANCE CORPORATION, a Delaware corporation (the "SELLER"), and
FIFS ACQUISITION FUNDING COMPANY, L.L.C, a Delaware corporation (the
"PURCHASER").
WHEREAS, the Seller and the Purchaser desire to set forth their agreement
pursuant to which certain installment sales contracts are to be sold and
transferred by the Seller to the Purchaser;
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
DEFINITIONS
All capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Loan Agreement (as defined below). 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: This Purchase Agreement as such agreement may be amended,
modified and/or restated.
ASSIGNMENT: The document of assignment substantially in the form attached to
this Agreement as Exhibit A.
CONTRACT: A retail installment sale contract for a Financed Vehicle which
contract is, immediately prior to the transfer by the Seller hereunder, owned by
the Seller free and clear of all liens.
DISPOSITION: The transfer or other disposition by the Purchaser of the Purchased
Receivables in connection with the issuance and sale of securities secured by a
pledge, or the creation of an interest in, all of the Purchaser's right, title
and interest in and to the Purchased Receivables.
DISPOSITION PARTICIPANT: With respect to a Disposition, the trustee, custodian,
the rating agencies, the underwriter, the placement agent, the credit enhancer,
the purchaser of securities and/or any other party necessary or, in the good
faith belief of any of the foregoing, desirable to effect a Disposition.
LOAN AGREEMENT: That certain Loan and Security Agreement dated as of October 2,
1998 among the Purchaser, as Borrower, First Union Capital Markets, a division
of Wheat First Securities, Inc., as Deal Agent and Documentation Agent, Auto
Lenders Acceptance Corporation, as Servicer, First Union National Bank, as
Liquidity Agent and the Seller, as such agreement may be amended or supplemented
in accordance with the terms thereof.
PURCHASE PRICE: $53,000,000.
PURCHASED RECEIVABLE: Any Contract, any interest in which is transferred by the
Seller to the Purchaser under this Agreement, together with the Related Security
related to such Contract.
RELATED SECURITY: As to any Contract, (i) the interest of the Seller in all
security interests and liens in or on the Financed Vehicle and any accessions
thereto granted by an Obligor pursuant to such Contract; (ii) the interest of
the Seller in any proceeds from claims on all insurance policies covering such
Financed Vehicle or Obligor; (iii) the interest of the Seller in all rebates or
premiums and other amounts relating to insurance policies and other items
financed under such Contracts as of the Closing Date.
SELLER: Auto Lenders Acceptance Corporation, a Delaware corporation.
UCC: Shall have the meaning ascribed to it in the Loan Agreement.
ARTICLE II
PURCHASE AND SALE OF CONTRACTS
2.1 TRANSFER OF CONTRACTS.
The Seller hereby sells, transfers, assigns and otherwise conveys to the
Purchaser on the Closing Date, without recourse (i) all right, title and
interest of the Seller in and to each Contract listed on Schedule A hereto, and
all monies paid thereon, and due thereon, at or after the Closing Date, as
applicable, whether such amounts are considered accounts, general intangibles or
other property; (ii) all Related Security; and (iii) the proceeds of any and all
of the foregoing.
2.2 PAYMENT FOR CONTRACTS.
The Purchaser shall purchase and pay for the Contracts by causing the
Purchase Price thereof to be paid to the Seller in cash.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(a) ORGANIZATION, ETC. the Purchaser has been duly incorporated and is
validly existing as a limited liability company in good standing under the laws
of the State of Delaware, and has full corporate power and authority to execute
and deliver this Agreement and to perform the terms and provisions hereof.
(b) DUE AUTHORIZATION AND NO VIOLATION. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and is the valid, binding
and enforceable obligation of the Purchaser 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. The
consummation of the transactions contemplated by this Agreement, and the
fulfillment of the terms thereof, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under (in each
case material to the Purchaser), or (except as contemplated by the Loan
Agreement) result in the creation or imposition of any Lien, charge or
encumbrance (in each case material to the Purchaser) upon any of the property or
assets of the Purchaser pursuant to the terms of any indenture, mortgage, deed
of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Purchaser is a debtor or guarantor, nor
will such action result in any violation of the provisions of the Limited
Liability Company Agreement of the Purchaser.
(c) NO LITIGATION. No legal or governmental proceedings are pending to
which the Purchaser is a party or of which any property of the Purchaser is the
subject, and no such proceedings are threatened or contemplated by governmental
authorities or threatened by others other than such proceedings which will not
have a material adverse effect upon the general affairs, financial position, net
worth or results of operations (on an annual basis) of the Purchaser and will
not materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity and enforceability of, this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER.
(a) The Seller hereby represents and warrants to the Purchaser as of the
date hereof:
(i) ORGANIZATION, ETC. The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification.
(ii) POWER AND AUTHORITY. The Seller has full power and authority to
sell and assign the property to be sold and assigned to the Purchaser
hereunder and has duly
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authorized such sale and assignment to the Purchaser by all necessary
corporate action. This Agreement has been duly authorized, executed and
delivered by the Seller and shall constitute the legal, valid and binding
obligation of the Seller 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.
(iii) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement, and the fulfillment of the terms thereof,
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under (in each case material to the
Seller and its subsidiaries considered as a whole), or result in the
creation or imposition of any adverse claim, charge or encumbrance (in
each case material to the Seller and its subsidiaries considered as a
whole) upon any of the property or assets of the Seller pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument
under which the Seller is a debtor or guarantor, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Seller.
(iv) NO PROCEEDINGS. No legal or governmental proceedings are
pending to which the Seller is a party or of which any property of the
Seller is the subject, and no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, other
than such proceedings which will not have a material adverse effect upon
the validity or collectability of the Contracts, or upon the general
affairs, financial position, net worth or results of operations (on an
annual basis) of the Seller and its subsidiaries considered as a whole and
will not materially and adversely affect the performance by the Seller of
its obligations under, or the validity and enforceability of, this
Agreement.
(v) NO ADVERSE EVENTS. No event has occurred that would have a
material adverse effect on the Contracts, the ability of the Seller to
collect the Contracts or to perform its obligations hereunder or the
ability of the Purchaser to collect the Contracts.
(b) The Seller makes the following representations and warranties as to
the Contracts on which the Purchaser relies in purchasing the Contracts. Such
representations and warranties speak as of the execution and delivery of this
Agreement, and as of the Closing Date with respect to each Contract, but shall
survive the sale, transfer, and assignment of the Contracts to the Purchaser:
(i) On the Closing Date the Seller had a valid and enforceable first
priority security interest in the related Financed Vehicle, and such
security interest had been duly perfected and was prior to all other
present and future liens and security interests (except future tax liens
and liens that, by statute, may be granted priority over previously
perfected security interests) that now exist or may hereafter arise, and
the Seller had the full right to assign such security interest to the
Purchaser.
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(ii) On and after the Closing Date, there shall exist under such
Contract a valid, subsisting, and enforceable first priority perfected
security interest in the related Financed Vehicle (other than, as to the
priority of such security interest, any statutory lien arising by
operation of law after the Closing Date which is prior to such interest)
and, following the grant of all of the Seller's right, title and interest
in and to such security interest to the Purchaser, at such time as
enforcement of such security interest is sought there shall exist in favor
of the Purchaser a valid, subsisting, and enforceable first priority
perfected security interest (other than, as to the priority of such
security interest, any statutory lien arising by operation of law after
the Closing Date which is prior to such interest) in the related Financed
Vehicle.
(iii) If such Contract was originated in a state in which notation
of a security interest on the title document for the Financed Vehicle
securing such Contract is required or permitted to perfect such security
interest, the title document for such Financed Vehicle shows, or if a new
or replacement title document is being applied for with respect to such
Financed Vehicle the title document will show, the Seller as the sole
holder of a security interest in such Financed Vehicle. If such Contract
was originated in a state in which the filing of a financing statement
under the UCC is required to perfect a security interest in motor
vehicles, such filings or recordings have been duly made and show the
Seller as the sole holder of a first priority security interest in such
Financed Vehicle, and in either case the Purchaser has the same rights as
the Seller has or would have (if the Seller were still the owner of a
Purchased Receivable) against the Obligor and all creditors of the Obligor
claiming an interest in such Financed Vehicle.
(iv) Immediately prior to the Closing Date: (i) such Contract had
not been sold, assigned, or pledged by the Seller to any Person; (ii) the
Seller had good and marketable title thereto free and clear of any
encumbrance, equity, pledge, charge, claim or security interest; (iii) the
Seller was the sole owner thereof and had full right to sell the Contract
to the Purchaser and upon the sale thereof to the Purchaser, the Purchaser
will have good and marketable title thereto and will own such Contracts
free and clear of any encumbrances. Such Contract was acquired by the
Seller, from an automobile or light truck dealer (a "DEALER") with which
the Seller does business, pursuant to a written agreement between the
Seller and such Dealer. Such Dealer had full right to assign to the Seller
such Contract and the security interest in the related Financed Vehicle.
The Seller has full right to sell to the Purchaser such Contract and the
security interest in the related Financed Vehicle.
(v) As of the Closing Date, there is no lien against the related
Financed Vehicle for delinquent taxes.
(vi) Such Contract, and the sale of the Financed Vehicle securing
such Contract, where applicable, complied, at the time it was made, and
now complies, in all material respects with applicable state and federal
laws (and regulations thereunder), including, without limitation, usury,
disclosure and consumer protection laws, equal credit opportunity, fair
credit reporting, truth-in-lending or other similar laws, the Federal
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Trade Commission Act, and applicable state laws regulating retail
installment sales contracts in general and motor vehicle retail
installment sales contracts and loans in particular, and the receipt of
interest on, and the ownership of, such Contract by the Purchaser will not
violate any such laws and the related Obligor has no right of rescission
or cancellation, claims or defenses, set-offs, or counterclaims of any
kind whatsoever as to or against the contract evidencing a related
Contract.
(vii) The Contract constitutes the entire agreement between the
Seller (as assignee of the related originator) and the related Obligor.
(viii) At the time of origination of such Contract, the proceeds of
such Contract were fully disbursed, and there is no requirement for future
advances thereunder, and all fees and expenses in connection with the
origination of such Contract have been paid.
(ix) As of the Closing Date, other than a Contract as to which any
payment or portion thereof required to be made by the Obligor thereof has
not been made for less than 31 days following the due date thereof and any
Contract that constitutes a Delinquent Contract or Defaulted Contract,
there is no default, breach, violation or event of acceleration existing
under any such Contract and no event which, with the passage of time or
with notice or with both, would constitute a default, breach, violation or
event of acceleration under any such Contract. The Seller has not, other
than as to any Contract that constitutes a Delinquent Contract or
Defaulted Contract, waived any such default, breach, violation or event of
acceleration.
(x) In connection with the Seller's acquisition of such Contract,
the Seller required the related Obligor to furnish evidence that the
related Financed Vehicle was covered by a comprehensive and collision
insurance policy naming the Seller as loss payee and insuring against loss
and damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage in an amount
equal to the actual cash value of the related Financed Vehicle.
(xi) Such Contract contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the realization against the related Financed Vehicle of the benefits
of the security.
(xii) The collection practices used with respect to such Contract
have been in all material respects legal, proper, prudent and customary in
the automobile installment sales contract or installment loan servicing
business as applied with respect to obligors with credit standings
comparable to that of the Obligor.
(xiii) [reserved].
(xiv) [reserved].
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(xv) [reserved].
(xvi) [reserved].
(xvii) The Seller has provided to the Servicer the sole original
counterpart of such Contract, as amended, and the related title document
or the application for title document, previously in the possession of the
Seller.
(xviii) Such Contract constitutes "chattel paper" for purposes of
Section 9-105(a)(ii) and 9-308 of the UCC. The Seller's electronic ledgers
have been marked as provided in the Loan Agreement with respect to such
Contract.
(xix) Such Contract was not originated in, nor is it subject to the
law of, any jurisdiction, the laws of which would make unlawful the sale,
transfer or assignment of such Contract, under this Agreement, including
any repurchase in accordance with this Agreement.
(xx) Such Contract is in full force and effect in accordance with
its respective terms and neither the Seller nor the related Obligor has
suspended or reduced any payments or obligations due or to become due
thereunder by reason of a default by the other party to such Contract;;
and there are no proceedings pending, or to the best of the Seller's
knowledge, threatened, wherein the related Obligor or any governmental
agency has alleged that such Contract is illegal or unenforceable.
(xxi) Each contract evidencing a Contract being acquired by the
Purchaser is substantially similar to one of the Seller's standard form
contracts except for immaterial modifications or deviations therefrom in
accordance with state law which will not have a material adverse effect on
the Purchaser or any pledgee from the Purchaser and will not reduce the
scheduled payments thereunder or other payments due under the Contracts.
(xxii) The Seller has duly fulfilled all obligations to be fulfilled
on the Seller's part under or in connection with the origination,
acquisition and disposition of such Contract, including, without
limitation, giving any notices or consents necessary to effect the
acquisition of such Contracts by the Purchaser, and has done nothing to
impair the rights of the Secured Parties in such Contracts or payments
with respect thereto. The Seller has obtained all necessary licenses,
permits and charters required to be obtained by the Seller, which failure
to obtain would render any Contract, this Agreement, the Note, or the Loan
Agreement unenforceable and would have a material adverse effect on the
Purchaser or any pledgees of the Purchaser.
(xxiii) [reserved].
(xxiv) The contract securing such Contract arose from a bona fide
sale in the ordinary course of the Dealer's business.
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(xxv) Such Contract represents the sale of goods described in the
contract evidencing the Contract.
(xxvi) Such Contract is exclusive and contains all the terms and
conditions of the related contract.
(xxvii) To the best of the Seller's knowledge, all signatures,
names, addresses, telephone numbers, figures and other statements of fact
set forth in the contract evidencing the Contract are genuine, true and
correct.
(xxviii) To the best of the Seller's knowledge, no part of the down
payment, or any installment, has been loaned by the originator to the
related Obligor.
(xxix) To the best of the Seller's knowledge, all credit information
provided to the Purchaser is true and correct and reported as received
from the Obligor.
(xxx) To the best of the Seller's knowledge, the Obligor is in fact
the primary or sole operator of the related Financed Vehicle.
(xxxi) Each Contract listed on the Contract List constitutes an
Eligible Contract.
(xxxii) Each Contract listed on the Delinquent Contract List is a
Delinquent Contract.
(xxxiii) Each Contract listed on the Defaulted Contract List is a
Defaulted Contract.
(xxxiv) The sale of any extended service agreement to the related
Obligor complied at the time of such sale with all applicable state and
federal laws (and regulations thereunder), including without limitation,
insurance, usury, disclosure and consumer protection laws, equal credit
opportunity, fair credit reporting, truth-in-lending or other similar
laws, the Federal Trade Commission Act, and applicable state laws
regulating extended service agreements and insurance, and the ownership of
any such extended service agreement will not violate any such laws.
(xxxv) [reserved].
(xxxvi) [reserved].
(xxxvii) The Deal Agent will be entitled to receive all amounts due
to an Obligor or lienholder upon cancellation by an Obligor of an extended
service agreement or any credit life insurance policy and accident and
health insurance policy relating to a Financed Vehicle or an Obligor.
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(xxxviii) All rights (but not obligations) of the Seller under each
extended service agreement and each credit life insurance policy and
accident and health insurance policy relating to a Financed Vehicle or an
Obligor have been assigned by the Seller to the Purchaser.
(xxxix) No Contract has been satisfied, subordinated, or rescinded,
nor has any Financed Vehicle been released, in whole or in part, from the
lien granted by the related Contract.
(xxxx) It is the intention of the Seller that the transfer and
assignment contemplated by this Agreement constitutes a sale of the
related Contracts from the Seller to the Purchaser and that the beneficial
interest in and title to the Contracts shall not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law.
ARTICLE IV
CONDITIONS
4.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASER.
The obligation of the Purchaser to purchase the Contracts 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 at the Closing Date
with respect to each Contract, with the same effect as if then made.
(b) DOCUMENTS TO BE DELIVERED BY THE SELLER.
(i) THE ASSIGNMENT. As provided herein, the Seller shall have
executed and delivered an Assignment, which shall be substantially in the
form of Exhibit A hereto.
(ii) EVIDENCE OF UCC FILING. The Seller shall have recorded and
filed, at its own expense, a UCC-1 financing statement in each
jurisdiction in which filing is required by applicable law, executed by
the Seller, as seller of the Contracts, and naming the Purchaser, as
purchaser of the Contracts, and the Deal Agent, as assignee, describing
the Contracts and the other property conveyed hereunder, meeting the
requirements of the laws of each jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of such
Contracts to the Purchaser. The Seller shall deliver to the Purchaser, the
Documentation Agent and the Deal Agent a file-stamped copy, or other
evidence satisfactory to the Purchaser, the Documentation Agent and the
Deal Agent of such filing.
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(iii) OTHER DOCUMENTS. All other documents in the possession of the
Seller relating to the Contracts and any other document requested by the
Deal Agent to be delivered shall have been delivered by the Seller.
4.2 CONDITIONS TO OBLIGATIONS OF THE SELLER.
The obligation of the Seller to sell the Contracts to the Purchaser is
subject to the satisfaction of the following conditions:
(a) REPRESENTATION AND WARRANTIES TRUE. The representations and warranties
of the Purchaser hereunder shall be true and correct at the Closing Date with
the same effect as if then made.
(b) CONTRACTS PURCHASE PRICE. At the Closing Date with respect to each
Contract, the Purchaser shall have delivered to the Seller the Purchase Price.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows:
5.1 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation statements and any required
documentation all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the ownership interest of the Purchaser
in the Purchased Receivables and in the proceeds thereof. The Seller shall
deliver (or cause to be delivered) to the Purchaser and the Deal Agent
filed-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) The Seller shall not change its name, identity, or corporate structure
in any manner that would, could, or might make any financing statement or
continuation statement filed by the Seller in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402 of the UCC,
unless it shall have given the Purchaser, the Documentation Agent and the Deal
Agent at least thirty days' prior written notice thereof and shall have filed
appropriate amendments to all previously filed financing statements or
continuation statements prior to such changes.
(c) The Seller shall give the Purchaser, the Deal Agent and the
Documentation Agent at least thirty days' prior written notice of any relocation
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
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statement and shall file any such amendment prior to any such relocation. The
Seller shall at all times maintain its principal executive office within the
United States of America.
(d) The Seller shall maintain its computer systems so that, from and after
the time of sale hereunder of the Contracts to the Purchaser, the Seller's
master computer records (including any back-up archives) that refer to a
Purchased Receivable shall indicate clearly the interest of the Purchaser in
such Purchased Receivable and that such Purchased Receivable is owned by the
Purchaser. Indication of the Purchaser's ownership of a Purchased Receivable
shall be deleted from or modified on the Seller's computer systems when, and
only when, the Purchased Receivable shall have been paid in full or repurchased.
(e) If at any time the Seller shall propose to sell, grant a security
interest in, or otherwise transfer any interest in automotive installment sale
contracts to any prospective purchaser, lender, or other transferee, the Seller
shall give to such prospective purchaser, lender, or other transferee computer
tapes, records, or print-outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Purchased Receivable,
the same shall indicate clearly that such Purchased Receivable has been sold to
and is owned by the Purchaser.
(f) Upon the written request of the Deal Agent, upon written request from
the Secured Parties, the Seller shall cause the following notation to be stamped
on the face of the retail installments sales contract evidencing such Contract:
AUTO LENDERS ACCEPTANCE CORPORATION HAS SOLD AND ASSIGNED ALL RIGHT, TITLE AND
INTEREST IN THIS CONTRACT TO FIFS ACQUISITION FUNDING COMPANY, L.L.C., WHICH HAS
GRANTED A SECURITY INTEREST IN THIS CONTRACT TO FIRST UNION CAPITAL MARKETS, A
DIVISION OF WHEAT FIRST SECURITIES INC., AS DEAL AGENT FOR CERTAIN SECURED
PARTIES."
(g) Upon the written request of the Deal Agent, upon written request from
the Secured Parties, the Seller shall give written notice by regular mail,
addressed to the Obligor under such Contract, in form acceptable to the
Purchaser, to the effect that such Purchased Receivable has been sold and
assigned to the Purchaser.
(h) The Seller shall permit the Purchaser and its agents and the Deal
Agent and its agents at any time during normal business hours to inspect, audit,
and make copies of and abstracts from the Seller's records regarding any
Purchased Receivable.
(i) The Seller shall, or shall cause the Servicer to, provide a list to
the Deal Agent of all outstanding Purchased Receivables, such list to be
delivered to the Deal Agent, as of the end of each month, on the fifteenth
Business Day after the end of each such month, beginning with October, 1998.
Upon request, the Seller shall furnish to the Purchaser and the Deal Agent,
within five Business Days, a list of all Purchased Receivables (by contract
number and name of Obligor) previously sold to the Purchaser pursuant to this
Agreement.
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(j) The Seller will not amend, and shall not permit any amendment to any
extended service agreement relating to the Financed Vehicles related to the
Purchased Receivables which would adversely affect its ability and right to
receive refunds under such contracts, or which would adversely affect the rights
of any of the Deal Agent, the Liquidity Agent, the Secured Parties, or the
Purchaser.
(k) The Seller agrees, for the benefit of the Deal Agent, to take all
reasonable measures to enforce any right to a refund due to it under any
extended service agreement related to the Purchased Receivables.
5.2 OTHER LIENS OR INTERESTS.
Except for the conveyances hereunder, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any adverse claim on any interest in the Purchased Receivables,
and the Seller shall defend the right, title, and interest of the Purchaser in,
to and under the Purchased Receivables against all claims of third parties
claiming through or under the Seller.
5.3 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 Purchaser's
right, title and interest in and to the Purchased Receivables, including,
without limitation, Financed Vehicles and the Seller shall take, at its expense,
any additional action required by the Purchaser or the Deal Agent in order to
protect the Purchaser's and the Deal Agent's (on behalf of the Secured Parties)
interests in the Purchased Receivables, including, without limitation, the
Financed Vehicles and, in connection therewith, shall execute and file such
financing statements, or amendments thereto, continuation statements, and such
other instruments, documents, or notices as may be requested by the Purchaser or
the Deal Agent.
5.4 INDEMNIFICATION.
The Seller shall indemnify the Purchaser, the Deal Agent and each Secured
Party under the Loan Agreement for any liability as a result of the failure of a
Purchased Receivable to be originated in compliance with all requirements of law
and for any breach of any of its representations and warranties contained
herein. These indemnity obligations shall be in addition to any obligation that
the Seller may otherwise have.
5.5 SALE.
Seller agrees to treat this conveyance for all purposes (including without
limitation tax and financial accounting purposes) as a sale on all relevant
books, records, tax returns, financial statements and other applicable
documents.
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5.6 SELLER'S RECEIPT OF PAYMENT.
Seller agrees that any amounts received by Seller in respect of any of the
Purchased Receivables after the Closing Date applicable thereto shall be
received in trust for the benefit of the Purchaser, shall be segregated from
other funds of the Seller and shall immediately be paid over to the Collection
Account in the same form as so received (with any necessary endorsement).
5.7 THE SELLER TO COOPERATE WITH DISPOSITION OF PURCHASED
Receivables.
In consideration of the Purchase Price and other consideration received
hereunder, the Seller hereby agrees and covenants that in connection with each
Disposition in which the Purchaser disposes of any of the Purchased Receivables
sold to it by the Seller, the Seller shall:
(a) make such representations and warranties concerning the Purchased
Receivables as of the initial transfer date of the related Disposition to such
Disposition Participants as may be reasonably requested in connection with the
Disposition; PROVIDED that the Seller shall not be required to make any
representations or warranties that would increase the scope or substance of such
representations and warranties beyond the substance of those set forth herein;
(b) negotiate in good faith with the Purchaser and other Disposition
Participants to provide such additional representations and warranties
concerning the Purchased Receivables that may be reasonably requested in the
future by Disposition Participants;
(c) supply, at the Purchaser's sole cost and expense, such information,
opinions of counsel, letters from law and/or accounting firms and other
documentation and certificates regarding the origination and servicing of the
Purchased Receivables as the Purchaser or any Disposition Participant shall
reasonably request to effect a Disposition;
(d) make itself available for and engage in good faith consultation with
the Purchaser and Disposition Participants concerning information to be
contained in any document, agreement, private placement memorandum, or filing
with the Securities and Exchange Commission relating to the Seller or the
Purchased Receivables in connection with a Disposition and shall use reasonable
efforts, at the Purchaser's sole cost and expense, to compile any information
and prepare any reports and certificates, into a form, whether written or
electronic, suitable for inclusion in such documentation; and
(e) take such further actions as may be reasonably requested of or deemed
appropriate by the Purchaser or a Disposition Participant in order to effect a
Disposition, including without limitation, delivery of any additional documents
to the Custodian for inclusion with the Contract Files;
PROVIDED that notwithstanding anything in this Agreement to the contrary, (a)
the Seller shall have no liability for the Purchased Receivables arising from or
relating to the ongoing ability or willingness of Obligor under any Purchased
Receivable to pay under the Purchased Receivables,
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(b) none of the indemnities hereunder shall constitute a guarantee by the Seller
of the collectibility of the loans, (c) the Seller shall have no obligation with
respect to the inability or unwillingness of a Obligor under any Purchased
Receivable to pay principal, interest or other amount owing by such obligor
under the Loans, and (d) the Seller shall only be required to enter into
documentation in connection with Dispositions that is consistent with industry
practice with respect to Dispositions among similarly situated third party
sellers.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 OBLIGATION OF SELLER.
The obligations of the Seller under this Agreement shall not be affected
by reason of the invalidity, illegality or irregularity of any Contract.
6.2 REPURCHASE EVENT.
The Seller hereby covenants and agrees with the Purchaser (for the benefit
of the Deal Agent, for the benefit of the Secured Parties), that the Seller
shall promptly repurchase from the Purchaser any Purchased Receivable, for an
amount equal to the Contract Principal Balance thereof, together with accrued
interest thereon through the date of repurchase in cash, with respect to which
the following event ("REPURCHASE EVENT") shall have occurred: any representation
and warranty of the Seller contained in Section 3.2(b) shall have been breached
with respect to such Purchased Receivable as of the Closing Date. This
repurchase obligation of the Seller shall constitute the sole remedy of the
Purchaser and the Deal Agent under the Loan Agreement against the Seller with
respect to any Repurchase Event. With respect to all Purchased Receivables
repurchased by the Seller pursuant to this Agreement, the Purchaser shall
assign, without recourse, representation or warranty, to the Seller all of the
Purchaser's right, title and interest in and to such Purchased Receivables, and
all security and documents relating thereto.
6.3 TERMINATION.
The obligations of the Seller hereunder shall terminate at such time as
all amounts due and payable by the Purchaser under the Loan Agreement are paid
in full.
6.4 AMENDMENT.
This Agreement may be amended from time to time by a written instrument
duly executed and delivered by the Seller and the Purchaser; PROVIDED, however,
that no such amendment shall be effective without a prior written consent of the
Deal Agent.
6.5 COLLATERAL ASSIGNMENT.
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Notwithstanding anything to the contrary contained herein, the Seller (i)
acknowledges and consents that the Purchaser has assigned its rights hereunder
and its interest herein as collateral pursuant to the Loan Agreement for the
benefit of the Secured Parties, and (ii) agrees to attorn to the Deal Agent in
the event of its succession to the rights and interest of the Purchaser
hereunder by reason of foreclosure or otherwise.
6.6 POWER OF ATTORNEY.
The parties recognize that, notwithstanding the sale and assignment of a
Contract to the Purchaser pursuant to this Agreement, it may not be practicable
under applicable state recordation procedures to substitute the Purchaser for
the Seller as the lienholder identified on the certificate of title or similarly
recorded instrument pertaining to the related Financed Vehicle. Accordingly,
with respect to each Purchased Receivable, the Seller hereby grants to the
Purchaser, and to any servicing agent who may service such Purchased Receivable
for the Purchaser, an irrevocable power of attorney, coupled with interest, to
enforce, in the name, place and stead of the Seller, all rights and remedies of
the holder of such Purchased Receivable and of the security interests in the
related Financed Vehicle. The Seller agrees to provide, promptly upon the
request of the Purchaser or such servicer, any additional documentation which
they may reasonably require to evidence, or otherwise to more perfectly vest,
the irrevocable power of attorney granted hereby.
6.7 WAIVERS.
No failure or delay on the part of any party in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any power, right or remedy preclude any
other further exercise thereof or the exercise of any other power, right or
remedy.
6.8 NOTICES.
All communications and notices directed to either party pursuant to this
Agreement shall be in writing addressed or delivered to it at its address set
forth under its name on the signature pages hereof and to the Deal Agent at:
First Union Capital Markets, a division of Wheat First Securities, Inc., One
First Union Center, TW-6, Charlotte, North Carolina 28288, Attn: Conduit
Administration or at such other address as may be designated by it by notice to
other party and, if mailed or transmitted by facsimile transmission, shall be
deemed given when mailed or transmitted.
6.9 COSTS AND EXPENSES.
The Seller will pay all expenses incident to the performance of its
obligations under this Agreement and the Seller agrees to pay all reasonable
out-of-pocket costs and expenses of the Purchaser, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Purchased Receivables and the enforcement of any obligation of the
Seller hereunder.
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6.10 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 provisions of this
Agreement.
6.11 GOVERNING LAW.
This Agreement and the Assignment shall be governed by and construed in
accordance with the laws of the State of Georgia.
6.12 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.
6.13 NO PROCEEDINGS.
The Seller agrees that it will not file any involuntary petition or
otherwise institute any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceeding under any federal or state bankruptcy
or similar law against the Purchaser.
6.14 THIRD PARTY BENEFICIARY.
Each of the parties hereto agree that the Deal Agent, as agent, is a third
party beneficiary of this Agreement.
6.15 ASSIGNMENT.
This Agreement may not be assigned by either party hereto without the
prior written consent of the Deal Agent.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunder to duly authorized as of the
date and year first above written.
AUTO LENDERS ACCEPTANCE CORPORATION
By______________________________________
Name:___________________________________
Title:__________________________________
Auto Lenders Acceptance Corporation
300 Interstate North Parkway
Atlanta, Georgia 30339
Attention: Bennie H. Duck
Facsimile No.: (770) 956-3800
Confirmation No.: (770) 956-3825
FIFS ACQUISITION FUNDING COMPANY, L.L.C.
By FIALAC Holdings, Inc., as Manager
By:____________________________________
Name: Bennie H. Duck
Title: Vice President of FIALAC Holdings,
Inc.
FIFS Acquisition Funding Company, L.L.C.
300 Interstate North Parkway
Atlanta, Georgia 30339
Attention: Bennie H. Duck
Facsimile No.: (770) 956-3800
Confirmation No.: (770) 956-3825
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CLTLIB01 497690.6
Exhibit A
Assignment
FOR VALUE RECEIVED, in accordance with the Contract Purchase Agreement
dated as of October 2, 1998 (the "PURCHASE AGREEMENT") between the undersigned
and the Purchaser (the "PURCHASER"), the undersigned does hereby sell, assign,
transfer and otherwise convey unto the Purchaser, without recourse, all right,
title and interest of the undersigned in and to:
(A) all motor vehicle installment sales contracts, any interest in which
the undersigned has transferred to the Purchaser under the Purchase Agreement
(the "PURCHASED RECEIVABLE") and all monies paid thereon, and due thereon, at or
after the Closing Date as applicable, whether such amounts are considered
accounts, general intangibles or other property;
(B) together with (i) the interest of the undersigned in all security
interests and liens in or on the Financed Vehicle and any accessions thereto
granted by an Obligor pursuant to the Purchased Receivables, and all monies paid
thereon, and due thereon, at or after the Closing Date, as applicable whether
such amounts are considered accounts, general intangibles or other property,
(ii) the interest of the undersigned in any proceeds from claims on any physical
damage, credit life, credit disability, credit insurance or other insurance
policies covering such Financed Vehicle or Obligor, (iii) the interest of the
undersigned in all rebates of premiums and other amounts relating to insurance
policies and other items financed under the Purchased Receivables as of the
Closing Date, and (iv) the proceeds of any and all of the foregoing.
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
meanings ascribed to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed, effective as of the Closing Date.
AUTO LENDERS ACCEPTANCE CORPORATION
By:___________________________________
Name:_________________________
Title:_________________________
SCHEDULE A
Contract List