Conveyance of the Receivables. By execution of this Agreement, the Seller does hereby transfer, assign, set over and otherwise convey to the Depositor, and the Depositor does hereby transfer, assign, set-over and otherwise convey to the Issuer, (i) all of its respective right, title and interest in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets"). The transfer by the Seller to the Depositor, by the Depositor to the Issuer of the Receivables set forth herein is absolute and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does not constitute and is not intended to result in the creation or assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner of any obligation of the Seller, the Servicer or any other Person in connection with the Receivables Documents or under any agreement or instrument relating thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition Date. In the event that, despite the express intent of the parties, any such conveyance is deemed to be a loan and not an absolute sale, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of the Depositor, and the Depositor hereby grants in favor of the Issuer a first priority perfected security interest in and to the Trust Estate and that with respect to such conveyance this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notes. (a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder. (b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Conveyance of the Receivables. By execution In consideration of this Agreementthe Purchaser's payment to the Seller of $[_____________] (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuer, (iobligations herein) all of its respective the Seller's right, title and interest in in, to and to each Receivable identified on under the List of Receivablesfollowing property whether now owned or existing or hereafter acquired or arising (collectively, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, "Purchased Property"):
(i) the Mortgages and other instruments or documents securing such Receivables; ;
(ii) monies received thereunder on or after the portions of its interest in any Insurance Policies relating to such Receivable; Cut-off Date;
(iii) each Assignment; 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 and in any other property securing a Receivable;
(iv) all rights to receive proceeds with respect to the Receivables from claims on any insurance policies covering Financed Vehicles or Obligors or from rebates of premiums and other amounts relating to insurance policies and other items financed under any Hedge Agreements; and the Receivables;
(v) Dealer Recourse, if any;
(vi) the Receivables Files;
(vii) all payments Liquidation Proceeds collected from whatever source on a Liquidated Receivable; and
(viii) all proceeds of any and every kind delivered with respect to, or derived from the foregoing and any and all other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing after and all rights to enforce the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")foregoing. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 2 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the Uniform Commercial Code as in effect from time to time in the State of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ml Asset Backed Corp)
Conveyance of the Receivables. By execution Subject to the terms and conditions of this Agreement, the Seller hereby sells, transfers and otherwise conveys to the Purchaser all of the Seller's right, title and interest in, to and under the following property whether now owned or existing or hereafter acquired or arising (collectively, the "Purchased Property"):
(i) the Receivables;
(ii) monies received thereunder on or after the Cutoff Date other than any subvention amounts paid by any vehicle manufacturer to the Receivables Servicer in respect of any Receivable;
(iii) 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;
(iv) rights to receive proceeds with respect to the Receivables from claims on any theft, physical damage, credit life, credit disability, or other insurance policies covering Financed Vehicles or Obligors;
(v) Dealer Recourse;
(vi) the Receivable Files;
(vii) payments and proceeds with respect to the Receivables;
(viii) all property (including the right to monies collected from whatever source on a Liquidated Receivable, net of any amounts required by law to be remitted to the Obligor) securing a Receivable;
(ix) rebates of premiums and other amounts relating to insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; and
(x) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing. In consideration of the Purchaser's payment to the Seller of $745,442,348.64 (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuerobligations herein), (i) all of its respective right, title and interest in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables Seller in, to and (y) at under the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")Purchased Property. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 3 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the Uniform Commercial Code as in effect from time to time in the state of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bear Stearns Asset Backed Whole Auto Loan Trust 2003-1)
Conveyance of the Receivables. By execution Subject to the terms and conditions of this Agreement, the Seller hereby sells, transfers and otherwise conveys to the Purchaser all of the Seller's right, title and interest in, to and under the following property whether now owned or existing or hereafter acquired or arising (collectively, the "Purchased Property"):
(i) the Receivables listed on Exhibit A and Exhibit B hereto and all monies received thereon, on and after October 1, 2004, exclusive of any amounts allocable to the premium for physical damage insurance force-placed by the Receivables Servicer covering any related Financed Vehicle;
(ii) the security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and, to the extent permitted by law, any accessions thereto;
(iii) any proceeds from claims on any physical damage, credit life, credit disability, warranties, debt cancellation agreements or other insurance policies covering Financed Vehicles or Obligors;
(iv) any proceeds from recourse against Dealers on the Receivables;
(v) the Receivable Files (but only to the extent that they relate to the Receivables);
(vi) each Sale Agreement (but only to the extent that it relates to the Receivables) and each First Step Receivables Assignment (but only to the extent that it relates to the Receivables);
(vii) each Purchase and Sale Agreement (but only to the extent that it relates to the Receivables) and each Second Step Receivables Assignment (but only to the extent that it relates to the Receivables), including the right of the Seller to cause the Receivables Servicer to repurchase Receivables under certain circumstances;
(viii) any proceeds of the property described in clauses (i) and (ii) above;
(ix) each Deposit Account to the extent it relates to the Receivables and all funds to the extent they relate to the Receivables on deposit from time to time in such account and all investments and proceeds thereof (including all income thereon); and
(x) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing. In consideration of the Purchaser's payment to the Seller of $717,828,582.21 (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuerobligations herein), (i) all of its respective right, title and interest in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables Seller in, to and (y) at under the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")Purchased Property. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 3 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the Uniform Commercial Code as in effect from time to time in the State of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bear Stearns Asset Backed Whole Auto Loan Trust 2004-1)
Conveyance of the Receivables. By execution of this Agreement, the Seller does hereby transfer, assign, set over and otherwise convey to the DepositorTransferor, and the Transferor does hereby transfer, assign, set-over and otherwise convey to the Depositor and the Depositor does hereby transfer, assign, set-set over and otherwise convey to the Issuer, (i) all of its respective right, title and interest in and to each Receivable identified on the List Schedule of Receivables, including the related Receivables Files and related Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold Receivables, provided that the related Contract or transferred pursuant Mortgage Note has been delivered to Section 2.5the Custodian, (iii) the Mortgages Related Security and any other instruments property which secured such Receivable and which has been acquired by foreclosure or documents securing such Receivablesdeed in lieu of foreclosure or otherwise; (iiiii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; and (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")foregoing. The transfer by the Seller to the DepositorTransferor, by the Transferor to the Depositor and by the Depositor to the Issuer of the Receivables set forth herein is absolute and is intended by all parties hereto to be treated as a sale by the Seller to the DepositorTransferor, by the Transferor to the Depositor and by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does not constitute and is not intended to result in the creation or assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner of any obligation of the Seller, the Servicer Servicer, OAC or any other Person in connection with the Receivables Receivable Documents or under any agreement or instrument relating thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor Transferor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer Depositor will pay to the Depositor Transferor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price transferred and the Issuer will be paid on pay to the Addition Date related Depositor in cash the net proceeds of the sale of Notes with respect to Receivables transferred on such date. To each Receivable, with the extent that there is no Purchase Price or the cash portion of difference between the Purchase Price for of each Receivable and the Receivables is less than net proceeds of the fair market value thereof, the difference shall Notes related thereto to be deemed a capital contribution by the Seller Depositor to the DepositorIssuer. The Purchase Price shall purchase price or capital contribution due with respect to Receivables transferred on the Closing Date will be payable in full by wire transfer on the related Closing Date. The purchase price or capital contribution due with respect to Receivables transferred on any Addition Date to an account designated will be payable as and when agreed by the Seller Issuer, the Depositor, the Transferor and the Depositor respectively on or before Seller, but not later than the seventh day after such Addition Date. In the event that, despite the express intent of the parties, that any such conveyance is deemed to be a loan and not an absolute sale, each of the Sellerloan, the Depositor and the Issuer parties intend that such conveyance be deemed to constitute a security interest and granted by the Seller hereby grants Person described above as selling the Trust Estate pursuant to such conveyance in favor of the Depositor, and the Depositor hereby grants in favor of the Issuer a first priority perfected security interest in and to Person described above as purchasing the Trust Estate and in such conveyance, that with respect to such conveyance this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the DepositorTransferor, the Seller has filed, in the appropriate office or offices in the States State of Florida and MassachusettsDelaware, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor Transferor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor Transferor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Transferor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Transferor to the Depositor, the Transferor has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 financing statement executed by the Transferor as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Transferor as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Transferor's entire right, title and interest in the Receivables. In connection with such filing, the Transferor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and MassachusettsDelaware, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notes.
(a) Each of the Club TrustDepositor, the Club Trustee, the Depositor Transferor and the Seller hereby agrees (i) on or prior to the Initial Addition Closing Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Upon the occurrence of an Assignment Event, as promptly as practicable but in no event more than 45 days thereafter, the Servicer shall, at its expense, with respect to each Mortgage Loan as to which an Assignment of Mortgage has not already been recorded, record an Assignment of Mortgage in favor of the Indenture Trustee (which may be a blanket assignment if permitted by applicable law) in the appropriate real property or other records, provided, further that, if recording information for the related Mortgage is not available, such assignment of the Mortgage need not be recorded until such recording information is received by the Servicer, whereupon, if an Assignment Event has occurred and is continuing, the Servicer shall promptly submit such assignment for recordation. The Indenture Trustee or the Custodian shall deliver to the Servicer any Assignments of Mortgage held in the Files and required by the Servicer for such filings. The Indenture Trustee is hereby appointed as the attorney-in-fact of the Servicer with the power to prepare, execute and record such Assignments of Mortgages in the event that the Servicer fails to do so on a timely basis as provided in this paragraph.
(c) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document File except as expressly provided in this Section 2.32.3 or the Custodial Agreement. In reviewing any File pursuant to this Section, the Custodian shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Indenture Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded.
Appears in 1 contract
Conveyance of the Receivables. By execution AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed Property.
(a) Subject to the terms and conditions of this Agreement, the Seller does hereby transfersells, assigntransfers, set over assigns, and otherwise convey conveys to the DepositorPurchaser without recourse (but without limitation of its obligations in this Agreement), and the Depositor does Purchaser hereby transferpurchases, assign, set-over and otherwise convey to the Issuer, (i) all of its respective right, title and interest of Seller in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, to:
(i) the Mortgages Receivables and other instruments all monies paid or documents securing such Receivables; payable thereon on or after the Cutoff Date (including amounts due on or before the Cutoff Date but received by Seller on or after the Cutoff Date);
(ii) the portions security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and any other interest of its interest Seller in any Insurance Policies relating to such Receivable; Financed Vehicles;
(iii) each Assignment; any proceeds and the right to receive proceeds with respect to the Receivables from claims on any physical damage, credit life or disability insurance policies, if any, covering Financed Vehicles or Obligors, including rebates of insurance premiums relating to the Receivables and any proceeds from the liquidation of the Receivables;
(iv) all rights under any Hedge of Seller against Dealers or Unaffiliated Originators pursuant to Dealer Agreements; and , Dealer Assignments or Unaffiliated Originator Receivables Purchase Agreements;
(v) all payments rights under any Service Contracts on the related Financed Vehicles;
(vi) the related Receivables Files and any and all other documents that Seller keeps on file in accordance with its customary procedures relating to the Receivables, the Obligors or the Financed Vehicles;
(vii) property (including the right to receive future Net Liquidation Proceeds) that secures a Receivable and that has been acquired by or on behalf of Purchaser pursuant to liquidation of such Receivable;
(viii) the proceeds of any and all of the foregoing after foregoing. It is the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets"). The transfer by the Seller to the Depositor, by the Depositor to the Issuer intention of the Receivables set forth herein is absolute and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does not constitute and is not intended to result in the creation or assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner of any obligation of the Seller, the Servicer or any other Person in connection with the Receivables Documents or under any agreement or instrument relating thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and Purchaser that the Depositor respectively on or before such Addition Date. In the event that, despite the express intent of the parties, any such conveyance is deemed to be a loan transfer and not an absolute sale, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of the Depositor, and the Depositor hereby grants in favor of the Issuer a first priority perfected security interest in and to the Trust Estate and that with respect to such conveyance assignment contemplated by this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments sale of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization Other Conveyed Property from Seller to Purchaser, conveying good title thereto free and clear of the Seller as the debtor any liens, and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and beneficial interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause and title to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization Other Conveyed Property shall not be part of Seller's estate in the event of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent filing of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take bankruptcy petition by or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office against Seller under any bankruptcy or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notes.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereundersimilar law.
(b) Neither Simultaneously with the Custodian nor Indenture Trustee conveyance of the Receivables and the Other Conveyed Property to Purchaser, Purchaser shall pay or cause to be paid to or upon the order of Seller an amount equal to the book value of the Receivables on the books and records of Seller (the "Book Value"), by wire transfer of immediately available funds. Notwithstanding the foregoing, if Seller so elects by written or oral notice to Purchaser, Seller shall have any responsibility for reviewing any Receivables Document except the right to receive an amount of immediately available funds less than the Book Value, in which event the difference between the Book Value and the amount of immediately available funds actually paid to Seller shall be treated as expressly provided in this Section 2.3a contribution by Seller to the capital of Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Advanta Automobile Receivables 1998-1)
Conveyance of the Receivables. By execution Subject to the terms and conditions of this Agreement, the Seller hereby sells, transfers and otherwise conveys to the Purchaser all of the Seller's right, title and interest in, to and under the following property whether now owned or existing or hereafter acquired or arising (collectively, the "Purchased Property"):
(i) the Receivables;
(ii) monies received thereunder on or after the Cutoff Date other than any subvention amounts paid by any vehicle manufacturer to the Receivables Servicer in respect of any Receivable;
(iii) 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;
(iv) rights to receive proceeds with respect to the Receivables from claims on any physical damage, credit life, credit disability, warranties, debt cancellation agreements or other insurance policies covering Financed Vehicles or Obligors;
(v) Dealer Recourse;
(vi) the Receivables Files;
(vii) payments and proceeds with respect to the Receivables;
(viii) all property (including the right to monies collected from whatever source on a Liquidated Receivable, net of any amounts required by law to be remitted to the Obligor) securing a Receivable;
(ix) rebates of premiums and other amounts relating to insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; and
(x) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing. In consideration of the Purchaser's payment to the Seller of $717,013,412.43 (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuerobligations herein), (i) all of its respective right, title and interest in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables Seller in, to and (y) at under the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")Purchased Property. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 3 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the Uniform Commercial Code as in effect from time to time in the state of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bear Stearns Asset Backed Whole Auto Loan Trust 2004-1)
Conveyance of the Receivables. By execution of and the Other Conveyed Property ------------------------------------------------------------- to the Issuer. Sellers acknowledge that Purchaser intends, pursuant to the Sale ------------- and Servicing Agreement, to convey the Receivables and the Other Conveyed Property, together with its rights under this Agreement, the Seller does hereby transfer, assign, set over and otherwise convey to the Depositor, and the Depositor does hereby transfer, assign, set-over and otherwise convey to the Issuer, (i) all of its respective right, title and interest in and to each Receivable identified Issuer on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business date hereof and on the Cut-Off Date, Subsequent Transfer Date in the case of Subsequent Receivables. Sellers acknowledge and consent to such conveyance and pledge and waive any further notice thereof and covenant and agree that the Initial Receivables representations and (y) at warranties of Sellers contained in this Agreement and the close rights of business on each Additional Cut-Off DatePurchaser hereunder are intended to benefit the Insurer, the Issuer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and the Certificateholder. In furtherance of the foregoing, Sellers covenant and agree to perform their duties and obligations hereunder, in accordance with the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets"). The transfer by the Seller to the Depositor, by the Depositor to the Issuer of the Receivables set forth herein is absolute and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee terms hereof for the benefit of the Owners of the Notes. The foregoing does not constitute and is not intended to result in the creation or assumption by Insurer, the Issuer, the CustodianOwner Trustee, the Indenture Trustee or any Owner of any obligation of the SellerTrust Collateral Agent, the Servicer or any other Person in connection with Noteholders and the Receivables Documents or under any agreement or instrument relating theretoCertificateholder and that, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay notwithstanding anything to the Seller contrary in cash a purchase price equal to the Purchase Price of each Receivable transferredthis Agreement, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference Sellers shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition Date. In the event that, despite the express intent of the parties, any such conveyance is deemed to be a loan and not an absolute sale, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of the Depositor, and the Depositor hereby grants in favor of the Issuer a first priority perfected security interest in and to the Trust Estate and that with respect to such conveyance this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor directly liable to the Issuer, the Depositor has filedOwner Trustee, in the appropriate office or offices in Trust Collateral Agent, the States of Florida Noteholders and Massachusetts, a UCC-1 financing statement executed the Certificateholder (notwithstanding any failure by the Depositor as debtorServicer, naming the Issuer as secured party, naming Backup Servicer or the Indenture Trustee as assignee of the secured party Purchaser to perform their respective duties and listing the Receivables obligations hereunder or under Related Documents) and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, Collateral Agent may enforce the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof duties and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge obligations of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, Sellers under this Agreement against Sellers for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filingInsurer, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notes.
(a) Each of the Club Trust, the Club Owner Trustee, the Depositor Trust Collateral Agent, the Noteholders and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunderCertificateholder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Purchase Agreement (Americredit Financial Services Inc)
Conveyance of the Receivables. By execution In consideration of this Agreementthe Purchaser's payment to the Seller of $1,766,358,574 (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuer, (iobligations herein) all of its respective the Seller's right, title and interest in in, to and to each Receivable identified on under the List of Receivablesfollowing property whether now owned or existing or hereafter acquired or arising (collectively, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, "Purchased Property"):
(i) the Mortgages and other instruments or documents securing such Receivables; ;
(ii) monies received thereunder on or after the portions of its interest in any Insurance Policies relating to such Receivable; Cut-off Date;
(iii) each Assignment; 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 and in any other property securing a Receivable;
(iv) all rights to receive proceeds with respect to the Receivables from claims on any insurance policies covering Financed Vehicles or Obligors or from rebates of premiums and other amounts relating to insurance policies and other items financed under any Hedge Agreements; and the Receivables;
(v) Dealer Recourse, if any;
(vi) the Receivables Files;
(vii) all payments Liquidation Proceeds collected from whatever source on a Liquidated Receivable;
(viii) the Purchase and Sale Agreements, and to the extent different, the Receivables Servicing Agreements, in each case to the extent related to one or more of the Receivables, including but not limited to each obligation of a Receivables Seller to repurchase Receivables for breaches of representations and warranties and each obligation of a Receivables Servicer to purchase or repurchase Receivables as a remedy for certain breaches under the Receivables Servicing Agreements; and
(ix) all proceeds of any and every kind delivered with respect to, or derived from the foregoing and any and all other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing after and all rights to enforce the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")foregoing. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 2 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the Uniform Commercial Code as in effect from time to time in the State of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Merrill Auto Trust Securitization 2005-1)
Conveyance of the Receivables. By execution of this Agreement, the Seller does hereby transfer, assign, set over and otherwise convey to the DepositorTransferor, and the Transferor does hereby transfer, assign, set-over and otherwise convey to the Depositor and the Depositor does hereby transfer, assign, set-set over and otherwise convey to the Issuer, (i) all of its respective right, title and interest in and to each Receivable identified on the List Schedule of Receivables, including the related Receivables Files and related Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold Receivables, provided that the related Contract or transferred pursuant Mortgage Note has been delivered to Section 2.5the Custodian, (iii) the Mortgages Related Security and any other instruments property which secured such Receivable and which has been acquired by foreclosure or documents securing such Receivablesdeed in lieu of foreclosure or otherwise; (iiiii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; and (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")foregoing. The transfer by the Seller to the DepositorTransferor, by the Transferor to the Depositor and by the Depositor to the Issuer of the Receivables set forth herein is absolute and is intended by all parties hereto to be treated as a sale by the Seller to the DepositorTransferor, by the Transferor to the Depositor and by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does not constitute and is not intended to result in the creation or assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner of any obligation of the Seller, the Servicer Servicer, OAC or any other Person in connection with the Receivables Receivable Documents or under any agreement or instrument relating thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor Transferor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, the Depositor will pay to the Transferor in cash a purchase price equal to the Purchase Price of each Receivable transferred and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related purchase price due with respect to Receivables transferred on such datethe Closing Date will be payable on the Closing Date. To The purchase price due with respect to Receivables transferred on any Addition Date will be payable as and when agreed by the extent that there is no Purchase Price or Issuer, the cash portion of Depositor, the Purchase Price for Transferor and the Receivables is less Seller, but not later than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before seventh day after such Addition Date. In the event that, despite the express intent of the parties, that any such conveyance is deemed to be a loan and not an absolute sale, each of the Sellerloan, the Depositor and the Issuer parties intend that such conveyance be deemed to constitute a security interest and granted by the Seller hereby grants Person described above as selling the Trust Estate pursuant to such conveyance in favor of the Depositor, and the Depositor hereby grants in favor of the Issuer a first priority perfected security interest in and to Person described above as purchasing the Trust Estate and in such conveyance, that with respect to such conveyance this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the DepositorTransferor, the Seller has filed, in the appropriate office or offices in the States State of Florida and MassachusettsNorth Carolina, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor Transferor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor Transferor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Transferor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Transferor to the Depositor, the Transferor has filed, in the appropriate office or offices in the State of New York, a UCC-1 financing statement executed by the Transferor as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Transferor as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Transferor's entire right, title and interest in the Receivables. In connection with such filing, the Transferor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and MassachusettsNorth Carolina, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notes.
(a) Each of the Club TrustDepositor, the Club Trustee, the Depositor Transferor and the Seller hereby agrees (i) on or prior to the Initial Addition Closing Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Upon the occurrence of an Assignment Event, as promptly as practicable but in no event more than 45 days thereafter, the Servicer shall, at its expense, with respect to each Mortgage Loan as to which an Assignment of Mortgage has not already been recorded, record an Assignment of Mortgage in favor of the Indenture Trustee (which may be a blanket assignment if permitted by applicable law) in the appropriate real property or other records, provided, further that, if recording information for the related Mortgage is not available, such assignment of the Mortgage need not be recorded until such recording information is received by the Servicer, whereupon, if an Assignment Event has occurred and is continuing, the Servicer shall promptly submit such assignment for recordation. The Indenture Trustee or the Custodian shall deliver to the Servicer any Assignments of Mortgage held in the Files and required by the Servicer for such filings. The Indenture Trustee is hereby appointed as the attorney-in-fact of the Servicer with the power to prepare, execute and record such Assignments of Mortgages in the event that the Servicer fails to do so on a timely basis as provided in this paragraph.
(c) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document File except as expressly provided in this Section 2.32.3 or the Custodial Agreement. In reviewing any File pursuant to this Section, the Custodian shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Indenture Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded.
Appears in 1 contract
Conveyance of the Receivables. By execution Subject to the terms and conditions of this Agreement, the Seller hereby sells, transfers and otherwise conveys to the Purchaser all of the Seller's right, title and interest in, to and under the following property whether now owned or existing or hereafter acquired or arising (collectively, the "Purchased Property"):
(i) the Receivables listed on Exhibit A hereto and all monies received thereon, on and after September 1, 2003, exclusive of any amounts allocable to the premium for physical damage insurance force-placed by the Receivables Servicer covering any related Financed Vehicle;
(ii) the security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and, to the extent permitted by law, any accessions thereto;
(iii) any proceeds from claims on any physical damage, credit life, credit disability, warranties, debt cancellation agreements or other insurance policies covering Financed Vehicles or Obligors;
(iv) any proceeds from recourse against Dealers on the Receivables;
(v) the Receivable Files;
(vi) the Sale Agreement and the First Step Receivables Assignment;
(vii) the Purchase and Sale Agreement and the Second Step Receivables Assignment, including the right of the Seller to cause the Receivables Servicer to repurchase Receivables under certain circumstances;
(viii) any proceeds of the property described in clauses (i) and (ii) above;
(ix) the Deposit Account to the extent it relates to the Receivables and all funds to the extent they relate to the Receivables on deposit from time to time in such account and all investments and proceeds thereof (including all income thereon); and
(x) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing. In consideration of the Purchaser's payment to the Seller of $1,000,000,365.63 (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuerobligations herein), (i) all of its respective right, title and interest in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables Seller in, to and (y) at under the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")Purchased Property. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 3 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the Uniform Commercial Code as in effect from time to time in the State of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bear Stearns Asset Backed Whole Auto Loan Trust 2003-1)
Conveyance of the Receivables. By execution In consideration of this Agreementthe Purchaser's payment to the Seller of $800,049,820.04 (the "Purchase Price"), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuer, (iobligations herein) all of its respective the Seller's right, title and interest in in, to and to each Receivable identified on under the List of Receivablesfollowing property whether now owned or existing or hereafter acquired or arising (collectively, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, "Purchased Property"):
(i) the Mortgages and other instruments or documents securing such Receivables; ;
(ii) monies received thereunder on or after the portions of its interest in any Insurance Policies relating to such Receivable; Cut-off Date;
(iii) each Assignment; 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;
(iv) all rights to receive proceeds with respect to the Receivables from claims on any insurance policies covering the Financed Vehicles or Obligors or from rebates of premiums and other amounts relating to insurance policies and other items financed under any Hedge Agreements; and the Receivables;
(v) Dealer Recourse, if any;
(vi) the Receivables Files;
(vii) all payments Liquidation Proceeds collected from whatever source on a Liquidated Receivable; and
(viii) all proceeds of any and every kind delivered with respect to, or derived from the foregoing and any and all other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing after and all rights to enforce the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")foregoing. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 2 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, "proceeds" as defined in the UCC as in effect from time to time in the State of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Merrill Auto Trust Securitization 2007-1)
Conveyance of the Receivables. By execution of this Agreement, the Seller does hereby transfer, assign, set over and otherwise convey to the Depositor, and the Depositor does hereby transfer, assign, set-over and otherwise convey to the Issuer, (i) all of its respective right, title and interest in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) the portions of its interest in any Insurance Policies relating to such Receivable; (iii) each Assignment; (iv) all rights under any Hedge Agreements; and (v) all payments on and proceeds of any of the foregoing after the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets"). The transfer by the Seller to the Depositor, by the Depositor to the Issuer of the Receivables set forth herein is absolute and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the NotesNoteholders. The foregoing does not constitute and is not intended to result in the creation or assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Noteholder of any obligation of the Seller, the Servicer or any other Person in connection with the Receivables Documents or under any agreement or instrument relating thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition Date. In the event that, despite the express intent of the parties, any such conveyance is deemed to be a loan and not an absolute sale, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of the Depositor, and the Depositor hereby grants in favor of the Issuer a first priority perfected security interest in and to the Trust Estate and that with respect to such conveyance this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in each of the States of Florida Massachusetts and MassachusettsFlorida, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in each of the States of Florida Delaware and MassachusettsFlorida, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the NotesNoteholders, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the NotesNoteholders, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the NotesNoteholders.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Conveyance of the Receivables. By execution In consideration of this Agreementthe Purchaser’s payment to the Seller of $391,005,553 (the “Purchase Price”), the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the DepositorPurchaser, and the Depositor does hereby transfer, assign, set-over and otherwise convey without recourse (subject to the Issuer, (iobligations herein) all of its respective the Seller’s right, title and interest in in, to and to each Receivable identified on under the List of Receivablesfollowing property whether now owned or existing or hereafter acquired or arising (collectively, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, “Purchased Property”):
(i) the Mortgages and other instruments or documents securing such Receivables; ;
(ii) monies received thereunder on or after the portions of its interest in any Insurance Policies relating to such Receivable; Cut-off Date;
(iii) each Assignment; 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;
(iv) all rights to receive proceeds with respect to the Receivables from claims on any insurance policies covering the Financed Vehicles or Obligors or from rebates of premiums and other amounts relating to insurance policies and other items financed under any Hedge Agreements; and the Receivables;
(v) Dealer Recourse, if any;
(vi) the Receivables Files;
(vii) all payments Liquidation Proceeds collected from whatever source on a Liquidated Receivable; and
(viii) all proceeds of any and every kind delivered with respect to, or derived from the foregoing and any and all other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing after and all rights to enforce the applicable Cut-Off Date (the property in clauses (i)-(v), being the "Assets")foregoing. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents Purchased Property or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Purchased Property and other rights and property pursuant to this Section 2 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller’s right, title and interest in, to and under the Purchased Property whether now owned or existing or hereafter acquired or arising and all proceeds thereof (including, without limitation, “proceeds” as defined in the UCC as in effect from time to time in the State of New York) and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate Purchase Price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, . The Seller hereby authorizes the Purchaser or its agents to file such financing statements and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In continuation statements as the Purchaser may deem advisable in connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed security interest granted by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary pursuant to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notespreceding sentence.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Merrill Auto Trust Securitization 2008-1)
Conveyance of the Receivables. By execution In consideration of this Agreementthe Purchaser's payment to the Seller of $ , the Seller does hereby irrevocably sell, transfer, assign, set over assign and otherwise convey to the Depositor, and the Depositor does hereby transfer, assign, set-over and otherwise convey Purchaser without recourse (subject to the Issuer, obligations herein) (ix) all of its respective right, title and interest of the Seller in and to each Receivable identified on the List of Receivables, including the related Receivables Documents, from time to time existing (x) at the close of business on the Cut-Off Date, in the case of the Initial Receivables and (y) at the close of business on each Additional Cut-Off Date, in the case of Additional Receivables sold or transferred pursuant to Section 2.5, (i) the Mortgages and other instruments or documents securing such Receivables; (ii) monies received thereunder on or after the portions of its interest in any Insurance Policies relating to such ReceivableCut-off Date; (iii) each Assignmentthe security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and any other interest of the Seller in the Financed Vehicles; (iv) rights to receive proceeds with respect to the Receivables from claims on any theft, physical damage, credit life, credit disability, or other insurance policies covering Financed Vehicles or Obligors; (v) the Receivable Files relating to the Receivables; (vi) payments and proceeds with respect to the Receivables held by the Servicer; (vii) all rights property (including the right to receive Liquidation Proceeds) securing a Receivable; (viii) rebates of premiums and other amounts relating to insurance policies and other items financed under any Hedge Agreementsthe Receivables in effect as of the Cut-off Date; and (vix) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing after and (y) all rights of the applicable Cut-Off Date Seller under (A) the property in clauses Purchase Agreement dated as of October 29, 2001 between Chrysler Financial Company L.L.C., as seller, and Bear, Stearns International Limited, as xxxxxxser, and (i)-(vB) the Receivables Servicing Agreement (including without limitation the representations and warranties of DCS thereunder), being but in the "Assets"case of (A) and (B), only to the extent such rights relate to the Receivables. The transfer by the Seller to the Depositorsale, by the Depositor to the Issuer of the Receivables set forth herein is absolute transfer, assignment and is intended by all parties hereto to be treated as a sale by the Seller to the Depositor, by the Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee for the benefit of the Owners of the Notes. The foregoing does conveyance made hereunder shall not constitute and is not intended to result in the creation or an assumption by the Issuer, the Custodian, the Indenture Trustee or any Owner Purchaser of any obligation of the Seller, Seller to the Servicer Obligors or any other Person in connection with the Receivables Documents or under any agreement agreement, document or instrument relating related thereto, including any obligation to make future advances. In consideration of such transfers, the Depositor will pay to the Seller in cash a purchase price equal to the Purchase Price of each Receivable transferred, and the Issuer will pay to the Depositor in cash a purchase price equal to the Purchase Price of each Receivable transferred. The Purchase Price will be paid on the Addition Date related to Receivables transferred on such date. To the extent that there is no Purchase Price or the cash portion of the Purchase Price for the Receivables is less than the fair market value thereof, the difference shall be deemed a capital contribution by the Seller to the Depositor. The Purchase Price shall be payable in full by wire transfer on the related Addition Date to an account designated by the Seller and the Depositor respectively on or before such Addition DatePurchaser intend that the sale, transfer, assignment and conveyance of the Receivables and other rights and property pursuant to this Section 3 shall be a sale and not a secured borrowing. In However, in the event that, despite the express intent of the parties, any that such conveyance transfer is deemed to be a loan and not an absolute saletransfer for security, each of the Seller, the Depositor and the Issuer intend that such conveyance be deemed to constitute a security interest and the Seller hereby grants in favor of to the Depositor, and the Depositor hereby grants in favor of the Issuer Purchaser a first priority perfected security interest in all of the Seller's right, title and interest in, to and under the Receivables and all proceeds thereof and all other rights and property transferred hereunder to secure a loan in an amount equal to the Trust Estate purchase price, and that with respect to in such conveyance event, this Agreement shall constitute a security agreement under applicable law, and that any subsequent conveyances pursuant to this Agreement shall be deemed to be assignments of such secured party's security interest. In connection with the sale, transfer, assignment, and conveyance from the Seller to the Depositor, the Seller has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Seller as debtor, naming the Depositor as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Seller as the debtor and the Depositor as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Seller's entire right, title and interest in the Receivables. In connection with such filing, the Seller agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Depositor's interest in the Receivables. In connection with the sale, transfer, assignment, and conveyance from the Depositor to the Issuer, the Depositor has filed, in the appropriate office or offices in the States of Florida and Massachusetts, a UCC-1 financing statement executed by the Depositor as debtor, naming the Issuer as secured party, naming the Indenture Trustee as assignee of the secured party and listing the Receivables and the other property described above as collateral. The characterization of the Depositor as the debtor and the Issuer as the secured party in such financing statements is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale of the Depositor's entire right, title and interest in the Trust Estate. In connection with such filing, the Depositor agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Issuer's interest in the Trust Estate. In connection with the pledge of the Trust Estate from the Issuer to the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has filed, in the appropriate office or offices in the State of Delaware, a UCC-1 Financing Statement executed by the Issuer as debtor, naming the Indenture Trustee, for the benefit of the Owners of the Notes, as the secured party and listing the Receivables and the other property described above as collateral. In connection with such filing, the Issuer agrees that it shall cause to be filed all necessary continuation statements thereof and to take or cause to be taken such actions and execute such documents as are necessary to perfect and protect the Indenture Trustee's interest in the Trust Estate for the benefit of the Owners of the Notes.
(a) Each of the Club Trust, the Club Trustee, the Depositor and the Seller hereby agrees (i) on or prior to the Initial Addition Date, in the case of the Initial Receivables and (ii) on or prior to the applicable Addition Date, in the case of Additional Receivables, to make the appropriate entries in its general accounting records, to indicate that Receivables have been transferred to the Indenture Trustee and constitute part of the Issuer in accordance with the terms of the trust created thereunder.
(b) Neither the Custodian nor Indenture Trustee shall have any responsibility for reviewing any Receivables Document except as expressly provided in this Section 2.3
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bear Stearns Asset Backed Fund Inc Whole Auto Loan Tr 2002-1)
