EXHIBIT 10-1
LOAN SALE AGREEMENT dated as of June 1, 1996 (this
"Agreement") between BANK ONE, ARIZONA, NA, a national
banking association, as seller (the "Seller") and BANC ONE
ABS CORPORATION, an Ohio corporation, as purchaser (the
"Purchaser").
WHEREAS, the Purchaser desires to purchase, and the Seller is willing to
sell, the receivables evidencing the motor vehicle installment sales contracts
identified on Schedule A to this Agreement and the Assignment (as hereinafter
defined) (the "Receivables"); and
WHEREAS, following such purchase the Purchaser intends to sell, transfer,
assign, set over and otherwise convey the Receivables to Bankers Trust Company,
as trustee (the "Trustee") on behalf of Banc One Auto Grantor Trust 1996-B (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
June 1, 1996 among the Purchaser, as seller, the Seller as servicer, and the
Trustee, as trustee (the "Pooling and Servicing Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in the Pooling
and Servicing Agreement, which also contains rules as to usage and construction
that shall be applicable herein. In addition, the following terms have the
following meanings:
"Agreement" is defined in the Preamble to this Agreement.
"Assignment" is defined in Section 2.1(a).
"Governmental Authority" means the United States of America, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and having jurisdiction over the applicable Person.
"Purchased Receivable" means any Receivable repurchased by the Seller
pursuant to Section 2.5.
"Purchaser" is defined in the Preamble to this Agreement.
"Receivables" is defined in the first WHEREAS clause of this Agreement.
"Receivable File" means the documents specified in Section 2.6.
"Requirements of Law" with respect to any Person shall mean the certificate
of incorporation or articles of association and bylaws or other organizational
or governing documents of such Person, and any law, treaty, rule or regulation,
or determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether Federal, State or local (including usury laws, the Federal Truth in
Lending Act and Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System).
"Sale Amount" is defined in Section 2.2.
"Secured Obligations" is defined in Section 2.1(d).
"Seller" is defined in the Preamble to this Agreement.
"Trust" is defined in the second WHEREAS clause of this Agreement.
"Trustee" is defined in the second WHEREAS clause of this Agreement.
"UCC" means the Uniform Commercial Code in effect in the State of Arizona.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 CONVEYANCE OF RECEIVABLES.
(a) Upon the terms and subject to the conditions set forth herein and in
consideration of the Purchaser's delivery to or upon the order of the Seller of
the Sale Amount described in Section 2.2, the Seller does hereby, as evidenced
by a duly executed written assignment in the form of Exhibit A (the
"Assignment"), sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (subject to the obligations herein) all its right,
title and interest in, to and under: (i) the Receivables existing on the Cutoff
Date and listed on Schedule A to this Agreement and the Assignment and all
monies due or to become due with respect thereto and the related computer file
or microfiche list, and all proceeds (including "proceeds" as defined in the
UCC, and Recoveries); (ii) all right, title and interest of the Seller in the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Seller in the Financed Vehicles; (iii)
the interest of the Seller in any proceeds with respect to the Receivables from
claims on any physical damage, theft, credit life or disability insurance
policies covering Financed Vehicles or Obligors; (iv) the interest of the Seller
in any proceeds from any Receivable repurchased by a Dealer, pursuant to a
Dealer Agreement, as a result of a breach of representation or warranty in the
related Dealer Agreement or a default by an Obligor resulting in the
repossession of the Financed Vehicle under such Dealer Agreement; and (v) the
proceeds of any and all of the foregoing. The foregoing does not constitute and
is not intended to result in the creation or assumption by the Purchaser of any
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obligation of the Seller or any other Person in connection with the Receivables
or under any agreement or instrument relating thereto, including any obligation
to Obligors or insurers.
(b) In connection with the foregoing sale, the Seller agrees to record and
file, from time to time, at its own expense, one or more financing statements
with respect to the Receivables and the other property described in Section
2.1(a) sold by the Seller hereunder meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect and
protect the interests of the Purchaser created hereby under the UCC against all
creditors of and purchasers from the Seller, and to deliver a file-stamped copy
of such financing statements or other evidence of such filings to the Purchaser
promptly after the same has been filed.
(c) In connection with the sale and conveyance hereunder, the Seller
agrees, at its own expense, on or prior to the execution of this Agreement, to
indicate or cause to be indicated clearly and unambiguously in its accounting
and master data processing records that such Receivables and the other property
described in Section 2.1(a) have been sold to the Purchaser pursuant to this
Agreement as of the Cutoff Date.
(d) It is the express intent of the Seller and the Purchaser that the
conveyance of the Receivables by the Seller to the Purchaser pursuant to this
Agreement be construed as a sale of such Receivables by the Seller to the
Purchaser. It is, further, not the intention of the Seller and the Purchaser
that such conveyance be deemed a grant of a security interest in the Receivables
by the Seller to the Purchaser to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
a court of competent jurisdiction determines that the Receivables continue to be
property of the Seller, then (i) this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the UCC; and (ii) the
conveyance by the Seller provided for in this Agreement shall be deemed to be
and the Seller hereby grants to the Purchaser a security interest in and to all
of the Seller's right, title and interest in (x) all Receivables outstanding on
the Cutoff Date and all rights (but not the obligations) relating to such
Receivables, (y) all monies due or to become due with respect thereto and (z)
all proceeds of the foregoing, to secure the rights of the Purchaser to recover
all Collections and other property or payments received from time to time in
respect of the Receivables purported to be conveyed hereunder (the "Secured
Obligations"). The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Receivables,
such security interest would be deemed to be a perfected security interest of
first priority in favor of the Purchaser under applicable law and will be
maintained as such throughout the term of this Agreement. The Seller and the
Purchaser may rely upon an Opinion of Counsel addressed to them as to what is
required to provide the Purchaser with such security interest.
SECTION 2.2 CONSIDERATION FOR CONVEYANCE OF RECEIVABLES. In
consideration of the Seller's conveyance to the Purchaser of the Receivables,
the Purchaser shall deliver to the Seller on or prior to the Closing Date the
sale amount ("Sale Amount") for such Receivables as determined pursuant to
Exhibit B hereto, which is hereby incorporated herein.
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SECTION 2.3 REPRESENTATIONS AND WARRANTIES OF THE SELLER RELATING TO THE
SELLER. The Seller hereby represents and warrants to the Purchaser as of the
Closing Date that:
(a) ORGANIZATION AND GOOD STANDING. The Seller is a national banking
association validly existing under the laws of the United States and has, in all
material respects, full power and authority to own its properties and conduct
its consumer revolving lending business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement.
(b) DUE QUALIFICATION. The Seller is duly qualified to do business and is
in good standing as a foreign corporation (or is exempt from such requirements),
and has obtained all necessary licenses and approvals, in each jurisdiction in
which failure to so qualify or to obtain such licenses and approvals would
render any agreement relating to any Receivable unenforceable by the Seller or
the Purchaser, the Trustee or any Certificateholder or would have a material
adverse effect on the interests of the Purchaser, the Trustee or any
Certificateholder; PROVIDED, HOWEVER, that no representation or warranty is made
with respect to any qualifications, licenses or approvals which the Trustee or
the Purchaser has or may be required at any time to obtain, if any.
(c) DUE AUTHORIZATION. The execution and delivery by the Seller of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Seller.
(d) BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, receivership, liquidation and other similar laws
affecting enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies.
(e) NO CONFLICT. The execution and delivery by the Seller of this
Agreement, the performance by the Seller of the transactions contemplated by
this Agreement and the fulfillment by the Seller of the terms hereof applicable
to it will not violate the organizational documents of the Seller or result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any material
indenture, contract, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which it or any of its properties are bound.
(f) NO VIOLATION. The execution and delivery by the Seller of this
Agreement, the performance by the Seller of the transactions contemplated by
this Agreement and the fulfillment by the Seller of the terms hereof applicable
to it will not violate in any material respect any Requirements of Law
applicable to the Seller.
(g) NO PROCEEDINGS. There are no proceedings or investigations pending
or, to the best knowledge of the Seller, threatened against the Seller, before
any Governmental Authority (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation by the Seller of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling that,
in the reasonable judgment of the Seller, would materially and adversely affect
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the performance of its obligations under this Agreement or (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement.
(h) ALL CONSENTS REQUIRED. All authorizations, consents, orders or other
actions of any Person or of any Governmental Authority required to be obtained
by the Seller in connection with the execution and delivery by the Seller of
this Agreement, the performance by the Seller of the transactions contemplated
by this Agreement and the fulfillment by the Seller of the terms hereof, have
been obtained.
(i) INSOLVENCY. No Insolvency Event with respect to the Seller has
occurred and the transfer of the Receivables by the Seller to the Purchaser has
not been made in contemplation of the occurrence thereof.
The representations and warranties set forth in this Section 2.3 shall
survive the transfer and assignment of the Receivables to the Purchaser and the
subsequent transfers and assignments of the Receivables to the Trustee, on
behalf of the Trust. Upon discovery by a responsible officer of the Seller of a
breach of any of the representations and warranties set forth in this
Section 2.3, the Seller shall give prompt written notice to the Purchaser within
three Business Days following such discovery. The Seller agrees to cooperate
with the Purchaser in attempting to cure any such breach.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES OF THE SELLER RELATING TO THE
RECEIVABLES. The Seller makes the following representations and warranties as
to the Receivables on which the Purchaser is deemed to have relied in acquiring
the Receivables. Unless otherwise indicated, such representations and
warranties speak as of the execution and delivery of the Agreement, but shall
survive the sale, transfer and assignment of the Receivables to the Purchaser
and any subsequent assignment or assignments by the Purchaser to the Trustee, on
behalf of the Trust.
(a) TITLE. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Purchaser and that the beneficial interest in and title to such
Receivables not be part of the debtor's estate in the event of the filing of a
petition for receivership by or against the Seller. No Receivable has been
sold, transferred, assigned or pledged by the Seller to any Person other than
the Purchaser. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each Receivable, free
and clear of all Liens and, immediately upon the transfer thereof, the Purchaser
shall have good and marketable title to each such Receivable, free and clear of
all Liens; and the transfer of the Receivables to the Purchaser has been
perfected under the UCC.
(b) ALL FILINGS MADE. All filings (including UCC filings) necessary in
any jurisdiction to give the Purchaser a perfected ownership interest in the
Receivables, and to give the Purchaser a first priority perfected security
interest in the Receivables, shall have been made.
(c) CHARACTERISTICS OF RECEIVABLES. Each Receivable (i) has been
originated either by a Dealer in the regular course of such Dealer's business
and purchased from such Dealer by
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the Seller in the ordinary course of the Seller's business or originated by the
Seller in the ordinary course of the Seller's business, and each Obligor was
approved in accordance with the Seller's standard underwriting procedures in
effect at the time such Receivable was originated, acquired or purchased, (ii)
has created or shall create a valid, subsisting and enforceable first priority
security interest in favor of the Seller in the Related Financed Vehicle, which
security interest is assignable by the Seller to the Purchaser, (iii) contains
customary and enforceable provisions under the laws of the State governing such
Receivables such that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the security, and
(iv) provides for equal monthly payments at a fixed rate of interest that fully
amortizes the Amount Financed by maturity and yields interest at the Annual
Percentage Rate assuming payments are made on the due date thereof.
(d) SCHEDULE OF RECEIVABLES. The information set forth in Schedule A to
this Agreement and the Assignment is true and correct in all material respects
as of the opening of business on the Cutoff Date and no selection procedures
adverse to the Certificateholders were utilized in selecting the Receivables.
The Computer Tape regarding the Receivables is true and correct in all material
respects as of the Cutoff Date.
(e) COMPLIANCE WITH LAW. Each Receivable complied at the time it was
originated or made and at the Closing Date complies in all material respects
with all requirements of applicable Federal, State and local laws and
regulations thereunder, including usury laws, the Federal Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act,
the Federal Reserve Board's Regulations B, Z and AA, State adaptations of the
Uniform Consumer Code, the Arizona Consumer Fraud Act, Title 6 of the Arizona
Revised Statutes and other applicable consumer credit laws and equal credit
opportunity and disclosure laws.
(f) BINDING OBLIGATION. As of the Cutoff Date, each Receivable represents
the legal, valid and binding payment obligation in writing of the Obligor
thereunder, enforceable by the holder thereof in accordance with its terms
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
now or hereafter in effect related to or affecting creditors' rights generally
and subject to general principles of equity (whether applied in a proceeding at
law or in equity).
(g) NO GOVERNMENT OBLIGOR. As of the Cutoff Date, none of the Receivables
is due from the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any State.
(h) SECURITY INTEREST IN FINANCED VEHICLE. Immediately prior to the sale,
assignment and transfer thereof, each Receivable shall be secured by a validly
perfected first priority security interest in the Related 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
security interest in the Related Financed Vehicle in favor of the Seller as
secured party.
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(i) RECEIVABLES IN FORCE. As of the Cutoff Date, no Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been released
from the Lien granted by the related Receivable in whole or in part unless
another vehicle has been substituted as collateral securing the Receivable
without any other modification to such Receivable.
(j) NO WAIVER. As of the Cutoff Date, no provision of a Receivable has
been waived except as reflected in the Receivable File relating to such
Receivable.
(k) NO DEFENSES. As of the Cutoff Date, the Seller has not received
notice that any right of rescission, setoff, counterclaim or defense has been
asserted or threatened with respect to any Receivable.
(l) NO LIENS. The Seller shall not have received notice of any Liens or
claims, including Liens for work, labor, materials or unpaid State or Federal
taxes relating to any Financed Vehicle securing the related Receivable, that are
or may be prior to or equal to the Lien granted by such Receivable.
(m) NO DEFAULT. No Receivable will have a payment that is more than [90]
days overdue as of the Cutoff Date and, except as permitted in this paragraph,
no default, breach, violation or event (in any such case) permitting
acceleration under the terms of any Receivable has occurred; and no continuing
condition that with notice or the lapse of time would constitute a default,
breach, violation or event (in any such case) permitting acceleration under the
terms of any Receivable has arisen as of the Cutoff Date; and the Seller has not
waived and shall not waive any of the foregoing.
(n) MATURITY OF RECEIVABLES. The weighted average original maturity of
the Receivables is _______ months as of the Cutoff Date; the weighted average
remaining term of the Receivables is _______ months as of the Cutoff Date; and
the latest scheduled maturity of any Receivable shall be no later than the Final
Scheduled Maturity Date.
(o) NO BANKRUPTCIES. No Obligor on any Receivable was noted in the
related Receivable File as having filed for bankruptcy in a proceeding which
remained undischarged as of the Cutoff Date.
(p) NO REPOSSESSIONS. As of the Cutoff Date, no Financed Vehicle securing
any Receivable is in repossession status.
(q) CHATTEL PAPER. Each Receivable constitutes "chattel paper" as defined
in the UCC.
(r) APR. The weighted average APR of the Receivables as of the Cutoff
Date is approximately _____%.
(s) PAID AHEAD. As of the Cutoff Date, no Receivable is more than six
months paid ahead.
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(t) PRINCIPAL BALANCE. The average principal balance of the Receivable as
of the Cutoff Date is $_________. The aggregate Cutoff Date Principal Balance
of the Receivables is $___________. As of the Cutoff Date, each Receivable has
a principal balance between $__________ and $___________.
(u) FINANCING. Approximately ____% of the Aggregate Cutoff Date Principal
Balance of the Receivables, constituting approximately ____% of the number of
Receivables as of the Cutoff Date, represents financing of new vehicles; the
remainder of the Receivables represents financing of used vehicles.
(v) INSURANCE. The Seller, in accordance with its customary procedures,
has determined that the Obligor, at the time the Related Receivable was
originated, obtained, applied for or made arrangements to obtain physical damage
insurance covering the Related Financed Vehicle and under the terms of the
Related Receivable the Obligor is required to maintain such insurance.
(w) LAWFUL ASSIGNMENT. No Receivable has been originated in, or as of the
Cutoff Date is subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable or this Agreement is unlawful, void
or voidable.
(x) NO INSURANCE PREMIUMS. As of the Cutoff Date, no portion of the
Amount Financed of any Receivable included amounts attributable to the payment
of any physical damage or theft insurance premium.
(y) ONE ORIGINAL. There is only one original executed copy of each
Receivable.
(z) LOCATION OF RECEIVABLE FILES. The Receivable Files are kept at one or
more of the locations listed in Schedule B.
(aa) COMPUTER RECORDS. As of the Closing Date, the accounting and computer
records of the Seller relating to the Receivables have been marked to show the
transfer of the Receivables to the Purchaser.
SECTION 2.5 REPURCHASE UPON BREACH. The Seller shall inform the
Purchaser upon the discovery of any breach of the Seller's representations and
warranties made pursuant to Section 2.4. Unless any such breach shall have been
cured within 60 days following the discovery thereof by the Purchaser or receipt
by the Purchaser of written notice from the Seller of such breach, the Seller
shall be obligated to repurchase any Receivable in which the interests of the
Purchaser or the Certificateholders are materially and adversely affected by any
such breach as of the first day succeeding the end of such 60 day period that is
the last day of a Collection Period (or, at the Seller's option, the last day of
the first Collection Period following the discovery). In consideration of and
simultaneously with the repurchase of the Receivable, the Seller shall remit to
the Purchaser the Purchase Amount in the manner specified in Section 4.3 of the
Pooling and Servicing Agreement and the Purchaser shall execute such assignments
and other documents reasonably requested by the Seller in order to effect such
repurchase. The sole remedy of the Purchaser with respect to a breach of
representations and warranties pursuant
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to Section 2.4 and the agreement contained in this Section shall be to require
the Seller to repurchase Receivables pursuant to this Section, subject to the
conditions contained herein.
SECTION 2.6 CUSTODY OF RECEIVABLE FILES. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Purchaser
hereby revocably appoints the Seller, and the Seller hereby accepts such
appointment, to act as the agent of the Purchaser as custodian of the following
documents or instruments which are hereby constructively delivered to the
Purchaser with respect to each Receivable:
(a) the original executed copy of the Receivable;
(b) a record of the information supplied by the Obligor in the original
credit application;
(c) the original certificate of title or such documents that the Seller
shall keep on file, in accordance with its customary procedures, evidencing the
security interest of the Seller in the Financed Vehicle (it being understood
that the original certificates of title or other documents evidencing the
Seller's security interest in the Financed Vehicle generally are not delivered
to the Seller for [90 days] but that promptly upon delivery they shall be
delivered to the Seller as custodian hereunder); and
(d) any and all other documents that the Seller shall keep on file, in
accordance with its customary procedures, relating to a Receivable, an Obligor
or a Financed Vehicle.
SECTION 2.7 DUTIES OF SELLER TO SERVE AS CUSTODIAN.
(a) SAFEKEEPING. The Seller shall hold the Receivable Files on behalf of
the Purchaser and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable File as shall enable the Seller
to comply with this Agreement. In performing its duties as custodian the Seller
shall act with reasonable care, using that degree of skill and attention that
the Seller exercises with respect to all comparable automotive receivables that
the Seller services for itself or others, except that the Seller shall not be
obligated, and does not intend, to (i) pay any premium for force-placed
insurance concerning any Financed Vehicle or (ii) monitor any Obligor's
maintenance of insurance. The Seller shall conduct, or cause to be conducted,
periodic audits of the Receivable Files held by it under this Agreement and of
the related accounts, records and computer systems, in such a manner as shall
enable the Purchaser to verify the accuracy of the Seller's record keeping. The
Seller shall promptly report to the Purchaser any failure on its part to hold
the Receivable Files and maintain its accounts, records and computer systems as
herein provided and promptly take appropriate action to remedy any such failure.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Seller shall maintain each
Receivable File at one of its offices specified in Schedule B or at such other
office as shall be specified to the Purchaser by written notice not later than
90 days after any change in location. Upon reasonable prior notice, the Seller
shall make available to the Purchaser or its respective duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files
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and records and computer systems maintained by the Seller at such times during
normal business hours as the Purchaser shall instruct.
(c) RELEASE OF DOCUMENTS. Upon written instruction from the Purchaser,
the Seller shall release any Receivable File to the Purchaser or its designee,
as the case may be, at such place or places as the Purchaser may designate, as
soon as practicable and upon the release and delivery of any such document in
accordance with the instructions of the Purchaser, the Seller shall be released
from any further liability and responsibilities under this Section 2.7 with
respect to such documents unless and until such time as such document may be
returned to the Seller.
SECTION 2.8 INSTRUCTIONS; AUTHORITY TO ACT. The Seller shall be deemed
to have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by an authorized officer of the
Purchaser.
SECTION 2.9 CUSTODIAN'S INDEMNIFICATION. The Seller as custodian shall
indemnify and hold harmless the Purchaser, any assignee of the Purchaser and
each of their officers, directors, employees and agents for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses (including reasonable attorneys' fees and expenses) that may be imposed
on, incurred by or asserted against the Purchaser, any assignee of the Purchaser
or any of their respective officers, directors, employees and agents as the
result of any improper act or omission in any way relating to the maintenance
and custody by the Seller as custodian of the Receivable Files where the final
determination that any such improper act or omission by the Seller which
resulted in such liability, obligation, loss, damage, payment, cost or expense
is established by a court of law, by an arbitrator or by way of settlement
agreed to by the Seller; PROVIDED, HOWEVER, that the Seller shall not be liable
to the Purchaser or any such assignee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Purchaser
or any assignee of the Purchaser, including the Trustee. This provision shall
not be considered to limit the Seller's or any other party's rights,
obligations, liabilities, claims or defenses which arise as a matter of law or
pursuant to any other provision of this Agreement.
SECTION 2.10 EFFECTIVE PERIOD AND TERMINATION. The Seller's appointment
as custodian shall become effective as of the Cutoff Date and shall continue in
full force and effect until terminated by the Purchaser pursuant to this Section
2.10. As soon as practicable after any termination of such appointment, the
Seller shall deliver the Receivable Files with respect to which the Seller's
appointment as custodian has been terminated to the Purchaser or to the
Purchaser's agent at such place or places as the Purchaser may reasonably
designate in writing. If the Seller shall be terminated as custodian hereunder
for any reason but shall continue to serve as Servicer under the Pooling and
Servicing Agreement, the Purchaser shall, or shall cause its agent to, make the
Receivable Files with respect to which the Seller's appointment as custodian has
been terminated available to the Servicer during normal business hours upon
reasonable notice so as to permit the Servicer to perform its obligations as
Servicer under the Pooling and Servicing Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.1 DUTIES OF SERVICER. The Servicer shall service the
Receivables pursuant to the terms, conditions and provisions of the Pooling and
Servicing Agreement.
ARTICLE IV
OTHER MATTERS RELATING TO THE SELLER
SECTION 4.1 LIABILITY OF THE SELLER. The Seller shall be liable in all
respects for the obligations, covenants, representations and warranties of the
Seller arising under or related to this Agreement. The Seller shall be liable
only to the extent of the obligations specifically undertaken by it pursuant to
this Agreement.
SECTION 4.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, THE SELLER.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person unless the corporation formed by such consolidation or
into which the Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Seller substantially as an entirety
shall be, if the Seller is not the surviving entity, a corporation, banking
corporation or banking association organized and existing under the laws of the
United States or any State and such corporation, banking corporation or banking
association shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Purchaser, in form reasonably satisfactory to the
Purchaser, the performance of every covenant and obligation of the Seller
hereunder.
(b) The obligations of the Seller hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Seller hereunder except in
each case in accordance with the provisions of the foregoing paragraph.
SECTION 4.3 LIMITATIONS ON LIABILITY OF THE SELLER. Subject to Section
4.1, neither the Seller nor any of the directors, officers, employees or agents
of the Seller shall be under any liability to the Purchaser, the Trust, the
Trustee, the Certificateholder or any other Person for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement; PROVIDED, HOWEVER, that this provision shall not protect the Seller
or any such Person against any liability which would otherwise be imposed by
reason of wilful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of reckless disregard of obligations and duties
hereunder. The Seller and any director, officer, employee or agent of the
Seller may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person (other than the Seller) respecting any
matters arising hereunder.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 AMENDMENT. This Agreement may only be amended by the
parties hereto in writing.
SECTION 5.2 NOTICES. All demands, notices and communications upon or to
the Seller or the Purchaser under this Agreement shall be in writing and
personally delivered or mailed by certified mail, return receipt requested (or
in the form of telex or facsimile notice, followed by written notice delivered
as aforesaid) and shall be deemed to have been duly given upon receipt: (a) in
the case of the Purchaser, to Banc One ABS Corporation,
___________________________________________, Attention: Chief Financial Officer
(telephone: (___) ________; facsimile: (___) ________); and (b) in the case of
the Seller, to Bank One, Arizona, NA, ___________________________, __________,
Arizona, ____, Attention: __________, (telephone: (___) ________; facsimile:
(___) ________); or, as to each of the foregoing, at such other address as shall
be designated by written notice to the other parties.
SECTION 5.3 ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, this Agreement may be assigned by the Purchaser at any time
without the consent of the Seller upon five (5) Business Days prior written
notice to the Seller and Seller. Except as provided in Section 4.2, the
obligations of the Seller hereunder may not be assigned without the prior
written consent of the Purchaser. The Seller hereby acknowledges and consents
to the assignment by the Purchaser of any or all of the Purchaser's rights and
obligations under this Agreement to the Trustee for the benefit of the Trust and
the Certificateholders.
SECTION 5.4 LIMITATIONS ON RIGHTS OF OTHERS. Except as provided in
Section 5.3, the provisions of this Agreement are solely for the benefit of the
parties hereto and nothing in this Agreement, whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 5.5 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 5.6 SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 5.7 HEADINGS. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions
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hereof. References to Articles, Sections, Exhibits or Schedules are references
to Articles, Sections, Exhibits or Schedules in or to this Agreement unless
otherwise specified.
SECTION 5.8 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified except as provided herein.
SECTION 5.9 GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Arizona, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
BANC ONE ABS CORPORATION,
in its capacity as Purchaser
By:
-------------------------------------
Its:
------------------------------------
BANK ONE, ARIZONA, NA, in its
capacity as Seller
By:
-------------------------------------
Its:
------------------------------------
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EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Loan Sale Agreement (the
"Agreement") dated as of June 1, 1996, between BANK ONE, ARIZONA, NA (the
"Seller") and BANC ONE ABS CORPORATION (the "Purchaser"), the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse (subject to its obligations under the Agreement) all its right, title
and interest in, to and under: (i) the Receivables existing on the Cutoff Date
and listed on Schedule A hereto, and all moneys due or to become due with
respect thereto and the related computer file or microfiche list, and all
proceeds (including "proceeds" as defined in the UCC, and Recoveries thereon);
(ii) all right, title and interest of the Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Seller in the Financed Vehicles; (iii) the interest of the
Seller in any proceeds with respect to the Receivables from claims on any
physical damage, theft, credit life or disability insurance policies covering
Financed Vehicles or Obligors; (iv) the interest of the Seller in any proceeds
from any Receivable repurchased by a Dealer, pursuant to a Dealer Agreement, as
a result of a breach of representation or warranty in the related Dealer
Agreement or a default by an Obligor resulting in the repossession of the
Financed Vehicle under such Dealer Agreement; and (v) the proceeds of any and
all of the foregoing.
The foregoing sale does not constitute and is not intended to result in the
creation or assumption by the Purchaser of any obligations of the Seller or any
other Person in connection with the Receivables or under any agreement or
instrument relating thereto, including any obligation to Obligors or insurers.
This assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Agreement and is to be governed by the Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in the Agreement, which also contains rules as to usage that
shall be applicable herein.
IN WITNESS WHEREOF, the undersigned has caused this assignment to be duly
executed as of June 1, 1996.
BANK ONE, ARIZONA, NA, as Seller
By:
-------------------------------------
Its:
------------------------------------
SCHEDULE A
DESCRIPTION OF RECEIVABLES
[To be provided by Seller for Receivables to be transferred
as of the Cutoff Date]
SCHEDULE B
LOCATION OF RECEIVABLE FILES
[Complete address of each location where actual Receivable Files will be
maintained, including title and telephone number of person responsible for the
Receivable Files]
EXHIBIT B
[Calculation formula for determining amount to be paid by Banc One ABS
Corporation to Bank One, Arizona, NA for purchase of Receivables]