Exhibit 99.3
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
between
REGIONS BANK,
as Seller,
and
REGIONS ACCEPTANCE LLC,
as Depositor
Dated as of March 1, 2003
Table of Contents
Page
----
Article I
Certain Definitions
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.................................3
Section 2.02. The Closing...............................................4
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor...........5
Section 3.02. Representations and Warranties of the Seller..............6
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor................15
Section 4.02. Conditions to Obligation of the Seller...................16
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and Interest..................17
Section 5.02. Other Liens or Interests.................................18
Section 5.03. Costs and Expenses.......................................18
Section 5.04. Hold Harmless............................................18
Article VI
Miscellaneous Provisions
Section 6.01. Obligations of Seller....................................19
Section 6.02. Repurchase Events........................................19
Section 6.03. Depositor Assignment of Repurchased Receivables..........19
Section 6.04. Transfer to the Issuer...................................19
Section 6.05. Amendment................................................19
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Section 6.06. Waivers..................................................20
Section 6.07. Notices..................................................20
Section 6.08. Costs and Expenses.......................................20
Section 6.09. Representations of the Seller and the Depositor..........20
Section 6.10. Confidential Information.................................21
Section 6.11. Headings and Cross-References............................21
Section 6.12. GOVERNING LAW............................................21
Section 6.13. Counterparts.............................................21
Section 6.14. Third Party Beneficiary..................................21
Section 6.15. No Proceedings...........................................21
Exhibit A Matters Addressed in Opinion of Seller's Counsel
Schedule I Schedule of Receivables
Schedule II Perfection Representations, Warranties and Covenants
Schedule III Location of Receivable Files
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RECEIVABLES PURCHASE AGREEMENT dated as of March 1, 2003 between
REGIONS BANK, an Alabama state banking corporation as seller (the "Seller")
and REGIONS ACCEPTANCE LLC, a Delaware limited liability company, as depositor
(the "Depositor").
RECITALS
WHEREAS, in the regular course of its business, the Seller has
originated and purchased certain motor vehicle retail installment sale
contracts and retail installment loan contracts secured by new and used
automobiles and light-duty trucks;
WHEREAS, the Seller and the Depositor wish to set forth the terms
pursuant to which such contracts are to be sold by the Seller to the
Depositor; and
WHEREAS, the Depositor intends, concurrently with its purchase
hereunder, to convey all of its right, title and interest in and to all of
such contracts to Wachovia Bank of Delaware, National Association, acting not
in its individual capacity but solely as Owner Trustee of Regions Auto
Receivables Trust 2003-1 (the "Issuer") pursuant to a Sale and Servicing
Agreement dated as of March 1, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Sale and Servicing Agreement"), by and among
the Issuer, the Depositor, the Seller, Regions Bank, as Master Servicer,
Administrator and Custodian, and The Bank of New York, as Indenture Trustee,
and the Issuer intends to pledge all of its right, title and interest in and
to such contracts to the Indenture Trustee pursuant to the Indenture dated as
of March 1, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Indenture"), by and between the Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
Article I
Certain Definitions
Terms not defined in this Agreement shall have the meanings assigned
thereto in the Sale and Servicing Agreement or the Indenture. As used in this
Agreement, the following terms shall, unless the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Purchase Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Alabama Act" shall have the meaning set forth in Section 2.01(b).
"Commission" means the Securities and Exchange Commission or any
successor agency thereto.
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"Conveyed Assets" shall have the meaning set forth in Section 2.01.
"Depositor" shall mean Regions Acceptance LLC, a Delaware limited
liability company and its successors and assigns.
"FDIC Rule" means 12 C.F.R. Section 360.6, and any successor
provision.
"Indenture" shall have the meaning set forth in the recitals.
"Insolvency Proceeding" shall mean a bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, conservatorship,
receivership or other proceeding under any federal or state bankruptcy,
insolvency or similar law.
"Lien Certificate" means with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
issued by the Registrar of Titles of the applicable State to a secured party
which indicates that the lien of the secured party on the Financed Vehicle is
recorded on the original certificate of title. In any jurisdiction in which
the original certificate of title is required to be given to the Obligor, the
term "Lien Certificate" shall mean only a certificate or notification issued
to a secured party.
"Prospectus" shall have the meaning set forth in the Underwriting
Agreement.
"Receivable" means any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche or electronic format).
"Registrar of Titles" means with respect to any State, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens
thereon.
"Registration Statement" means Registration Statement No. 333-100339
filed by the Depositor with the Commission in the form in which it became
effective on December 8, 2002.
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Sale and Servicing Agreement" shall have the meaning set forth in
the recitals.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Schedule I (which Schedule may be in the form of microfiche or
electronic format).
"Seller" shall mean Regions Bank and its successors and assigns.
"Underwriters" means each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxx & Company, Inc. and X.X. Xxxxxx Securities Inc.
"Underwriting Agreement" means the Underwriting Agreement dated March
11, 2003 relating to Regions Auto Receivables Trust 2003-1 among the Seller,
the Depositor and the Underwriters.
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Article II
Conveyance of Receivables
Section 2.01 Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon the order
of the Seller on the Closing Date of $571,304,298.68 in cash and and an
increase in the Bank's investment in the Depositor (the "Purchase Price"), the
Seller does hereby sell, transfer, set over and otherwise convey to the
Depositor, without recourse (subject to the obligations of the Seller set
forth herein) all right, title, and interest of the Seller in and to:
(i) the Receivables and all monies received thereon on and after
the Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by the related Obligors pursuant to the
Receivables and any other interest of the Seller in such Financed
Vehicles;
(iii) any Liquidation Proceeds and any other proceeds with
respect to the Receivables from claims on any physical damage, credit
life or disability insurance policies covering Financed Vehicles or
Obligors, including any vendor's single interest or other collateral
protection insurance policy;
(iv) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Seller;
(v) the proceeds from any Master Servicer's errors and omissions
protection policy, any fidelity bond and any blanket physical damage
policy, to the extent such proceeds relate to any Financed Vehicle;
(vi) all documents and other items contained in the Receivable
Files;
(vii) all accounts, money, chattel paper, securities,
instruments, documents, deposit accounts, certificates of deposit,
letters of credit, advices of credit, banker's acceptances,
uncertificated securities, general intangibles, contract rights,
goods and other property consisting of, arising from or relating to
any and all of the foregoing; and
(viii) the proceeds of any and all of the foregoing
(collectively, with the assets listed in clauses (i) through (vii)
above, the "Conveyed Assets").
(b) The Seller and the Depositor intend that the transfer of the
assets by the Seller to the Depositor pursuant to this Agreement be a sale of
the ownership interest in such assets to the Depositor (for all non-tax
purposes), rather than the mere granting of a security interest to secure a
borrowing and in furtherance thereof:
(i) the Seller and the Depositor shall record each such transfer
as a sale or purchase (as the case may be) on its books and records
for legal purposes.
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(ii) the Conveyed Assets shall be deemed to no longer be the
property, assets or rights of the Seller. The Seller, its creditors,
or, in any Insolvency Proceeding with respect to the Seller or the
Seller's property, a bankruptcy trustee, conservator, receiver,
debtor, debtor in possession or similar person, shall have no rights,
legal or equitable, whatsoever to reacquire, reclaim, recover,
repudiate, disaffirm, redeem or recharacterize as property of the
Seller, in whole or in part, the Conveyed Assets;
(iii) in the event of an Insolvency Proceeding with respect to
the Seller or the Seller's property, such Conveyed Assets shall not
be deemed to be part of the Seller's property, assets, rights or
estate; and
(iv) the parties hereto intend that (A)(i) the Asset-Backed
Securities Facilitation Act of Alabama (Alabama Act No. 2001-779, the
"Alabama Act") shall apply to the transactions contemplated in this
Agreement and (ii) the transactions contemplated in this Agreement,
taken as a whole, shall constitute a "securitization transaction"
within the meaning of such term as set forth in the Alabama Act and
(B) (i) the FDIC Rule shall apply to the transactions contemplated by
this Agreement and the other Basic Documents and (ii) the transaction
contemplated by this Agreement and the other Basic Documents, taken
as a whole, constitute a "securitization" within the meaning of the
FDIC Rule.
In the event, however, that such transfer is deemed not to be a sale
but to be a mere security interest to secure a borrowing, the Seller hereby
grants, and the parties intend that the Seller shall have granted, to the
Depositor a security interest in the Conveyed Assets, which security interest
shall be perfected and of first priority, and this Agreement shall constitute
a security agreement under applicable law. Pursuant to the Sale and Servicing
Agreement and Section 6.04 hereof, the Depositor may transfer to the Issuer
(i) all or any portion of the assets assigned to the Depositor hereunder, (ii)
all or any portion of the Depositor's rights against the Seller under this
Agreement and (iii) all proceeds thereof. Such assignment may be made by the
Depositor with or without an assignment by the Depositor of its rights under
this Agreement, and without further notice to or acknowledgement from the
Seller. The Seller waives, to the extent permitted under applicable law, all
claims, causes of action and remedies, whether legal or equitable (including
any right of setoff), against the Depositor or any assignee of the Depositor
relating to such action by the Depositor in connection with the transactions
contemplated by the Sale and Servicing Agreement. Notwithstanding anything
herein to the contrary, nothing in this Section shall limit any contractual
rights in this Agreement or any other document executed in connection with
this Agreement that require or permit the transfer or return of the Conveyed
Assets to the Seller.
Section 2.02. The Closing. The sale and purchase of the Receivables
shall take place at a closing at the offices of Sidley Xxxxxx Xxxxx & Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date,
simultaneously with the closing under (a) the Sale and Servicing Agreement,
(b) the Indenture and (c) the Trust Agreement.
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Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Seller and the
Indenture Trustee as of the date hereof and the Closing Date:
(a) Organization and Good Standing. The Depositor is duly organized
and validly existing as a limited liability company in good standing under the
laws of the state of its formation, with all requisite power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted.
(b) Due Qualification. The Depositor is duly qualified to do business
as a foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do
so would materially and adversely affect the Depositor's ability to acquire
the Receivables or the validity or enforceability of the Receivables.
(c) Power and Authority. The Depositor has the limited liability
company power and authority to execute, deliver and perform this Agreement and
the other Basic Documents to which it is a party and to carry out their
respective terms; the Depositor has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Issuer,
and the Depositor shall have duly authorized such sale and assignment to the
Issuer by all necessary limited liability company action; and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which the Depositor is a party have been duly authorized by the Depositor by
all necessary limited liability company action.
(d) Binding Obligation. This Agreement and the other Basic Documents
to which the Depositor is a party, when duly executed and delivered by the
other parties hereto and thereto, shall constitute legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
to general principles of equity (whether applied in a proceeding at law or in
equity).
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
the limited liability company agreement or certificate of formation of the
Depositor, or any material indenture, agreement or other instrument to which
the Depositor is a party or by which it is bound, or violate any law, rules or
regulation applicable to the Depositor of any court or federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge, threatened against the Depositor
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the
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Depositor or its properties (i) asserting the invalidity of this Agreement
or any other Basic Document to which the Depositor is a party, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement or any other Basic Document to which the Depositor is a party
or (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement or any other Basic Document
to which the Depositor is a party.
(g) No Consents. The Depositor is not required to obtain the consent
of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
Section 3.02. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants as follows to the
Depositor and the Indenture Trustee as of the date hereof and as of the
Closing Date:
(i) Organization and Good Standing. The Seller is a banking
corporation duly organized and validly existing under the laws of the
jurisdiction of its organization and continues to hold a valid
certificate to do business as such, and has the power to own its
assets and to transact the business in which it is currently engaged.
The Seller is duly authorized to transact business and has obtained
all necessary licenses and approvals, and is in good standing in each
jurisdiction in which the character of the business transacted by it
or any properties owned or leased by it requires such authorization.
(ii) Power and Authority. The Seller has the power and authority
to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement and the other Basic
Documents to which the Seller is a party, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement and the other Basic Documents to which the Seller is a
party. When executed and delivered, this Agreement and the other
Basic Documents to which the Seller is a party will constitute legal,
valid and binding obligations of the Seller enforceable in accordance
with their respective terms, except as enforcement of such terms may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies and except as enforcement of such terms may be
limited by receivership, conservatorship and supervisory powers of
bank regulatory agencies generally.
(iii) No Violation. The execution, delivery and performance by
the Seller of this Agreement and the other Basic Documents to which
the Seller is a party will not violate any provision of any existing
state, federal or, to the best knowledge of the Seller, local law or
regulation or any order or decree of any court applicable to the
Seller or any provision of the articles of association or
incorporation or the bylaws of the Seller, or constitute a breach of
any material mortgage, indenture, contract or other agreement to
which the Seller is a party or by which the Seller may be bound or
result in the creation
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or imposition of any lien upon any of the Seller's properties pursuant
to any such mortgage, indenture, contract or other agreement (other
than this Agreement).
(iv) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or
its properties (i) asserting the invalidity of this Agreement or any
other Basic Document to which the Seller is a party, (ii) seeking to
prevent the consummation of any of the transactions contemplated by
this Agreement or any other Basic Document to which the Seller is a
party or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement or any other Basic Document to which the Seller is a party.
(v) Chief Executive Office. The chief executive office of the
Seller is located at 000 00xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000.
(vi) No Consents. The Seller is not required to obtain the
consent of any other party or any consent, license, approval,
registration, authorization, or declaration of or with any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity, or enforceability of this
Agreement or any other Basic Document to which it is a party that has
not already been obtained.
(vii) No Notice. The Seller represents and warrants that it
acquired title to the Receivables in good faith, without notice of
any adverse claim.
(viii) Bulk Transfer. The Seller represents and warrants that the
transfer, assignment and conveyance of the Receivables by the Seller
pursuant to this Agreement are not subject to the bulk transfer laws
or any similar statutory provisions in effect in any applicable
jurisdiction.
(ix) Seller Information. No certificate of an officer, statement
or document furnished in writing or report delivered pursuant to the
terms hereof by the Seller contains any untrue statement of a
material fact or omits to state any material fact necessary to make
the certificate, statement, document or report not misleading.
(x) Ordinary Course. The transactions contemplated by this
Agreement and the other Basic Documents to which the Seller is a
party are in the ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the Seller
be made insolvent by the transfer of the Receivables, nor does the
Seller anticipate any pending insolvency.
(xii) Legal Compliance. The Seller is not in violation of, and
the execution and delivery by the Seller of this Agreement and the
other Basic Documents to which the Seller is a party and its
performance and compliance with the terms of this Agreement and the
other Basic Documents to which the Seller is a party will not
constitute a
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violation with respect to, any order or decree of any court or
any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would
materially and adversely affect the Seller's condition (financial or
otherwise) or operations or any of the Seller's properties or
materially and adversely affect the performance of any of its duties
under the Basic Documents.
(xiii) Creditors. The Seller did not sell the Receivables to the
Depositor with any intent to hinder, delay or defraud any of its
creditors.
(xiv) Official Records. This Agreement and the other Basic
Documents to which the Seller is a party constitute official records
of the Seller for purposes of Sections 11(d)(9), 11(n)(4)(I) and
Section 13(e) of the Federal Deposit Insurance Act, as amended.
(xv) Perfection Representation. The Seller makes all of the
representations, warranties and covenants set forth in Schedule II.
(b) The Seller makes the following representations and warranties
with respect to the Receivables, on which the Depositor relies in accepting
the Receivables and in transferring the Receivables to the Issuer under the
Sale and Servicing Agreement, and on which the Issuer relies in pledging the
same to the Indenture Trustee. Such representations and warranties speak as of
the execution and delivery of this Agreement and as of the Closing Date, but
shall survive the sale, transfer and assignment of the Receivables to the
Depositor, the subsequent sale, transfer and assignment of the Receivables by
the Depositor to the Issuer pursuant to the Sale and Servicing Agreement and
the pledge of the Receivables by the Issuer to the Indenture Trustee pursuant
to the Indenture.
(i) Characteristics of Receivables. Each Receivable (A) was
originated in the United States of America by the Seller or by a
Dealer located in the United States of America for the retail sale of
a Financed Vehicle, in each case, in the ordinary course of the
applicable Dealer's business in accordance with the Seller's credit
policies as of the date of origination or acquisition of the related
Receivable, is payable in United States dollars, has been fully and
properly executed by the parties thereto, has been originated by the
Seller through or purchased by the Seller from such Dealer under an
existing Dealer Agreement (or approved form of assignment) and, in
the case of each Receivable originated by a Dealer and sold to the
Seller, has been validly assigned by such Dealer to the Seller, (B)
has created or shall create a valid, subsisting and enforceable
security interest in favor of the Seller in the Financed Vehicle,
which security interest, by virtue of the related Lien Certificate,
shall be perfected and prior to any other interest in such Financed
Vehicle, and which security interest is assignable by the Seller and
reassignable by the assignee, except with respect to Receivables
representing less than 0.11% of the Initial Pool Balance, for which
the related Lien Certificates show World Omni named as the first lien
holder and which security interests have been assigned to the Seller
and are assignable by the Seller and reassignable by the assignee,
(C) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security,
(D) provides for fixed level monthly payments (provided that the
payment in the last month of the term of the Receivable may be
minimally different from the level scheduled payments)
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that fully amortize the Amount Financed by maturity and yield interest
at the APR borne by the Contract and (E) amortizes using the simple
interest method.
(ii) Compliance with Law. Each Receivable complied at the time it
was originated or made, and at the Closing Date complies, in all
material respects with all requirements of applicable federal, state
and, to the best knowledge of the Seller, local laws, rulings and
regulations thereunder.
(iii) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms,
except (A) as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement
of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and
(B) as such Receivable may be modified by the application after the
Closing Date of the Soldiers and Sailors Civil Relief Act of 1940, as
amended, or by any similar applicable State law.
(iv) No Government Obligor. No Receivable is due from the United
States of America or any State or any agency, department, subdivision
or instrumentality thereof.
(v) Obligor Bankruptcy. To the best of the Seller's knowledge, at
the Cutoff Date, no Obligor is or has been, since the origination of
the related Receivable, the subject of a bankruptcy proceeding.
(vi) Schedule of Receivables. The information set forth in
Schedule I to this Agreement with respect to the Receivables is true
and correct in all material respects as of the beginning of business
on the Cutoff Date.
(vii) Marking Records. By the Closing Date, the Seller will have
caused its computer and accounting records relating to each
Receivable to be marked to show that the Receivables have been sold
to the Depositor by the Seller and transferred and assigned by the
Depositor to the Issuer in accordance with the terms of the Sale and
Servicing Agreement.
(viii) Computer Tape. The computer tape regarding the Receivables
made available by the Seller to the Depositor is complete and
accurate in all material respects as of the Closing Date.
(ix) No Adverse Selection. No selection procedures believed by
the Seller to be adverse to the Noteholders or the Certificateholders
were utilized in selecting the Receivables.
(x) Tangible Chattel Paper. Each Receivable constitutes tangible
chattel paper within the meaning of the UCC as in effect in the State
of origination.
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(xi) One Original. There is only one original executed copy of
each Receivable.
(xii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the Lien of the related Receivable in whole or in part. None of
the terms of any Receivable has been waived, altered or modified in
any respect since its origination, except by instruments or documents
identified in the related Receivable File; and no Receivable has been
granted an extension except as noted in the servicing records of such
Receivable and each such extension has been granted in accordance
with the Seller's extension policy set forth in Exhibit D-1 to the
Sale and Servicing Agreement. No Receivable has been modified as a
result of the application of the Soldiers' and Sailors' Civil Relief
Act of 1940, as amended.
(xiii) Lawful Assignment. No Receivable has been originated in,
or is subject to the laws of, any jurisdiction the laws of which
would make unlawful, void or voidable the sale, transfer and
assignment of such Receivable under this Agreement or the Sale and
Servicing Agreement, as applicable, or the pledge of such Receivable
under the Indenture.
(xiv) Title. It is the intention of the Seller that the transfers
and assignments herein contemplated constitute sales of the
Receivables from the Seller to the Depositor and that the beneficial
interest in and title to the Receivables not be part of the debtor's
estate in the event of the appointment of a receiver or conservator
for the Seller under any receivership, bankruptcy law, insolvency or
banking law. Immediately prior to the Closing Date, no Receivable has
been sold, transferred, assigned or pledged by the Seller to any
Person other than to the Depositor or pursuant to this Agreement (or
by the Depositor to any other Person other than to the Issuer
pursuant to the Sale and Servicing Agreement). Immediately prior to
the transfers and assignments herein contemplated, the Seller has
good and marketable title to each Receivable free and clear of all
Liens, and, immediately upon the transfer thereof, the Depositor
shall have good and marketable title to each Receivable, free and
clear of all Liens and, immediately upon the transfer thereof from
the Depositor to the Issuer in accordance with the terms of the Sale
and Servicing Agreement and the representations and warranties of the
Depositor set forth therein, the Issuer shall have good and
marketable title to each Receivable, free and clear of all Liens and,
immediately upon the pledge thereof from the Issuer to the Indenture
Trustee in accordance with the terms of the Indenture, the Indenture
Trustee shall have a first priority perfected security interest in
each Receivable.
(xv) Security Interest in Financed Vehicle. Immediately prior to
its sale, assignment and transfer to the Depositor pursuant to this
Agreement, each Receivable is secured by a first priority perfected
security interest in the related Financed Vehicle in favor of the
Seller as secured party, or all necessary and appropriate actions
have been commenced that will result in the valid perfection of a
first priority security interest in such Financed Vehicle in favor of
the Seller as secured party, except as noted in the following
sentence. The Lien Certificate for each Financed Vehicle shows, or if
a new or replacement Lien Certificate is being applied for with
respect to such Financed Vehicle
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such Lien Certificate shall be received within 120 days of the
Closing Date and shall show, the Seller or its predecessor in
interest named as the original secured party under each Receivable as
the holder of a first priority security interest in such Financed
Vehicle, except with respect to Receivables representing less than
0.11% of the Initial Pool Balance, for which the Lien Certificates
show World Omni named as the original secured party under such
Receivables as the holder of a first priority security interest in
such Financed Vehicle (which Lien Certificates and Receivables have
been validly assigned to the Seller, which in turn have been validly
assigned to the Depositor pursuant to this Agreement). Each Dealer's
security interest in any Receivable originated by such Dealer has
been validly assigned by the Dealer to the Seller. The Seller's
security interest has been validly assigned to the Depositor pursuant
to this Agreement.
(xvi) All Filings Made. All filings (including UCC filings)
required to be made in any jurisdiction to give the Issuer a first
perfected ownership interest in the Receivables and the Indenture
Trustee a first priority perfected security interest in the
Receivables have been made or will be made on the Closing Date.
(xvii) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, by any Obligor, whether arising out of transactions concerning
the Receivable or otherwise, and the operation of any terms of the
Receivable or the exercise by the Seller or the Obligor of any right
under the Receivable will not render the Receivable unenforceable in
whole or in part, and no such right of rescission, setoff,
counterclaim or defense, including the defense of usury, has been
asserted by any Obligor with respect thereto.
(xviii) No Default. There has been no default, breach, violation
or event permitting acceleration under the terms of any Receivable
(other than payment delinquencies of not more than 30 days) as of the
Cutoff Date, and no condition exists or event has occurred and is
continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no
waiver of any of the foregoing.
(xix) Insurance. The Seller, in accordance with its customary
procedures, has required that the Obligor obtains physical damage
insurance covering each Financed Vehicle (i) in an amount at least
equal to the lesser of (a) the actual cash value of the related
Financed Vehicle or (b) the unpaid principal balance owing on such
Receivable, (ii) naming the Seller as a loss payee and (iii) insuring
against loss and damage due to fire, theft, transportation, collision
and other risks generally covered by comprehensive and collision
coverage and, under the terms of the related Receivable, the Obligor
is required to maintain such insurance.
(xx) Final Scheduled Maturity Date. No Receivable has a final
scheduled payment date later than six months prior to the Class C
Final Scheduled Payment Date.
(xxi) Certain Characteristics of the Receivables. As of the
Cutoff Date, (A) each Receivable had an original maturity of not less
than 12 or more than 72 months and (B) no Receivable was more than 30
days past due.
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(xxii) No Foreign Obligor. All of the Receivables are due from
Obligors who are citizens, or legal resident aliens, of the United
States of America.
(xxiii) No Extensions. The number or timing of scheduled payments
has not been changed on any Receivable on or before the Closing Date,
except as reflected on the computer tape delivered in connection with
the sale of the Receivables.
(xxiv) Scheduled Payments. Except with respect to Receivables
representing less than 5.703% of the Initial Pool Balance, each
Receivable had a first scheduled payment due on or prior to 45
calendar days after the Closing Date. Each Obligor has been
instructed to make all scheduled payments to the Seller or an
affiliate of the Seller. To the best knowledge of the Seller, each
Obligor has paid the entire down payment called for by the contract.
(xxv) No Fleet Sales. None of the Receivables have been included
in a "fleet" sale (i.e., a sale to any single Obligor of more than
seven Financed Vehicles).
(xxvi) Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains,
without limitation, (A) a fully executed original of the Receivable,
(B) the Lien Certificate together with such other documents that the
Seller shall keep on file in accordance with its customary procedures
evidencing the security interest of the Seller in the related
Financed Vehicle, and (C) any and all other documents that the Master
Servicer shall have kept on file (including any in electronic format)
in accordance with its customary procedures relating to a Receivable,
an Obligor or a Financed Vehicle. Each of such documents that is
required to be signed by the Obligor has been signed by the Obligor
as required, and each form described in clauses (A), (B) and (C)
above has been correctly prepared and completed in all material
respects. Notwithstanding the above, the complete Receivable File for
each Receivable, (x) shall fulfill the documentation requirements of
the Seller's credit policies as in effect on the date of origination
of such Receivable and (y) is in possession of the Master Servicer or
its designee or the Custodian or its designee, as applicable, at the
location set forth on Schedule C, on the Closing Date. Except with
respect to Receivables representing less than 0.11% of the Initial
Pool Balance, for which the related Lien Certificates show World Omni
named as the original secured party under such Receivables as the
holder of a first priority security interest in the related Financed
Vehicle (which Lien Certificates and security interests have been
validly assigned to the Seller), the blanket power of attorney
granted to the Indenture Trustee, a security agreement and the
original Lien Certificate are the only documents necessary to permit
the Indenture Trustee to submit the Lien Certificate for each
Financed Vehicle for retitling in the name of the Indenture Trustee
as secured party in the event such retitling were required or
otherwise permitted under the Basic Documents.
(xxvii) No Fraud or Misrepresentation. Each Receivable that was
originated by a Dealer and was sold by the Dealer to the Seller, to
the best of the Seller's knowledge, was so originated and sold
without fraud or misrepresentation on the part of such Dealer in
either case.
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(xxviii) Receivables Not Assumable. No Receivable is assumable by
another person in a manner which would release the Obligor thereof
from such Obligor's obligations to the Seller with respect to such
Receivable.
(xxix) Tax Liens. To the best of the Seller's knowledge, there is
no Lien against any Financed Vehicle for delinquent taxes.
(xxx) No Impairment. The Seller has not done anything to convey
any right to any person that would result in such person having a
right to payments due under a Receivable or otherwise to impair the
rights of the Depositor in any Receivable or the proceeds thereof.
(xxxi) Servicing. Each Receivable has been serviced in conformity
with all applicable laws, rules and regulation and in conformity with
the Seller's policies and procedures which are consistent with
customary, prudent industry standards.
(xxxii) Corporate Obligors. To the best of the Seller's
knowledge, Receivables representing less than 0.03% of the Initial
Pool Balance are due from Obligors who are not natural persons.
(xxxiii) No Liens. No Liens or claims have been filed for work,
labor, or materials relating to a Financed Vehicle that are prior to,
or equal or coordinate with, the security interest in the Financed
Vehicle granted by the related Receivable.
(xxxiv) APR. No Receivable has an APR of less than 4.001% and the
weighted average of the APRs of the Receivables is 7.198%.
(xxxv) Remaining Term. Each Receivable has a remaining term of at
least 6 months and no more than 72 months.
(xxxvi) Seasoning. The weighted average number of months since
the initial installment due date for the Receivables is 6 months.
(xxxvii) Remaining Balance. Each Receivable has a remaining
balance of at least $500 and no more than $50,000.
(xxxviii) New Vehicles. Receivables representing no less than
51.44% of the Initial Pool Balance are secured by Financed Vehicles
which were new at the date of origination.
(xxxix) No Repossessions. No Financed Vehicle has been
repossessed prior to the Closing Date.
(xl) Initial Payment. Except with respect to Receivables
representing less than 0.11% of the Initial Pool Balance, the Obligor
with respect to each Receivable originated prior to January 1, 2003
has made at least one scheduled payment.
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(xli) No Proceedings. As of the Closing Date, there are no
proceedings pending, nor to the best of the Seller's knowledge,
threatened, wherein the Obligor or any governmental agency has
alleged that any Receivable is illegal or unenforceable.
(xlii) Dealer Agreement. Each Dealer from whom the Seller
purchases or through which the Seller originates Receivables directly
has entered into a Dealer Agreement with the Seller providing for the
sale or origination of Receivables from time to time by such Dealer
to the Seller or uses an approved form of assignment. Each Dealer
Agreement and assignment form is substantially in the form attached
to the Sale and Servicing Agreement as Exhibit D, except for
immaterial modifications or deviations from the Dealer Agreement or
assignment form. Such modifications and deviations from the Dealer
Agreement or assignment form will not have a material adverse effect
on the Noteholders or Certificateholders. Such Dealer Agreement
and/or the assignment and the Seller's usual and customary related
documentation signed by or provided to the Dealer, constitutes the
entire agreement between the Seller and the related Dealer with
respect to the sale of such Receivable to the Seller. Each applicable
Dealer Agreement and form of assignment is in full force and effect,
there have been no material defaults by the Seller under such Dealer
Agreement; the Seller has fully performed all of its obligations
under such Dealer Agreement or form of assignment; the Seller has not
made any statements or representations to such Dealer (whether
written or oral) inconsistent with any term of such Dealer Agreement
or form of assignment; the purchase price for such Receivable has
been paid in full, other than any dealer reserve, by the Seller; and
any payment owed to such Dealer by the Seller is a corporate
obligation of the Seller.
(xliii) Seller's Obligations. The Seller has duly fulfilled all
obligations to be fulfilled on its part under or in connection with
the origination, acquisition and/or assignment of the Receivables.
(xliv) No Consent. To the best of the Seller's knowledge, no
notice to or consent from any Obligor is necessary to effect the
acquisition of the Receivables by the Depositor or the Trust or the
pledge of the Receivables by the Trust to the Indenture Trustee.
(xlv) No Transfer Taxes. The sale, transfer, assignment and
conveyance of the Receivables by the Seller pursuant to this
Agreement is not subject to and will not result in any tax, fee or
governmental charge payable by the Seller, the Issuer or the
Indenture Trustee to any federal, state or local government
("Transfer Taxes") other than Transfer Taxes which have been or will
be paid by the Seller as due. In the event the Issuer or the
Indenture Trustee receives actual notice of any Transfer Taxes
arising out of the transfer, assignment and conveyance of the
Receivables, on written demand by the Issuer or the Indenture
Trustee, or upon the Seller's otherwise being given notice thereof by
the Issuer or the Indenture Trustee, the Seller shall pay, and
otherwise indemnify and hold the Issuer and the Indenture Trustee
harmless, on an after-tax basis, from and against any and all such
Transfer Taxes (it being understood that the Noteholders, the
Indenture Trustee and the Issuer shall have no obligation to pay such
Transfer Taxes).
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(xlvi) Other Receivables. To the best of the Seller's knowledge,
no Obligor (together with any Affiliate) is the Obligor with respect
to Receivables representing more than 0.01% of the Initial Pool
Balance.
(xlvii) Initial Pool Balance. The Initial Pool Balance as of the
Cutoff Date is equal to $591,327,204.30.
(xlviii) Geographic Distribution. No more than 5.0% of the
Initial Pool Balance is attributable to Receivables with Obligors
having a billing address in any single State other than Alabama,
Arkansas, Mississippi, Texas and Georgia, which represent no more
than 48.35%, 20.01%, 7.18%, 5.74% and 5.10% of the Initial Pool
Balance, respectively.
(xlix) No Advances. No advances have been made to Obligors in
order to meet any representation or warranty herein set forth;
provided, however, that Receivables may have had up to two extensions
prior to the Cutoff Date, subject to the following: (A) each such
extension was made in conformity with the Extension Policy and (B)
each extended Receivable satisfies in all material respects all
applicable requirements under the Seller's credit and collection
policies as of the date of its origination.
(l) Amount Financed. At the time each Receivable was originated, the
Amount Financed was fully disbursed. There is no requirement for
future advances of principal thereunder, and all fees and expenses in
connection with the origination of such Receivable have been paid.
(li) No Consumer Leases. No Receivable constitutes a "consumer lease"
under either (a) the UCC as in effect in the jurisdiction whose law
governs the Receivable or (b) the Consumer Leasing Act, 15 U.S.C.
1667.
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor. The
obligation of the Depositor to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on
or prior to the Closing Date, indicate in its computer files that the
Receivables have been sold to the Depositor pursuant to this Agreement and
transferred and assigned by the Depositor to the Issuer in accordance with the
terms of the Sale and Servicing Agreement and deliver to the Depositor the
Schedule of Receivables, certified by the Seller's President, Vice President
or Treasurer to be true, correct and complete in all material respects.
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(c) Documents to be Delivered by the Seller on the Closing Date:
(i) Reserved.
(ii) Evidence of UCC Filing. On or prior to the Closing Date, the
Seller shall record and file, at its own expense, a UCC-1 financing
statement in the State of Alabama or other appropriate filing
jurisdiction, executed by the Seller, as seller or debtor, and naming
the Depositor, as secured party, describing the Receivables and the
other assets assigned to the Depositor pursuant to Section 2.01,
meeting the requirements of the laws of each such jurisdiction and in
such manner as is necessary to perfect the sale, transfer, assignment
and conveyance of the Receivables and such other assets to the
Depositor. The Seller shall deliver to the Depositor a file-stamped
copy or other evidence satisfactory to the Depositor of such filing
on or prior to the Closing Date.
(iii) Opinions of Seller's Counsel. On or prior to the Closing
Date, the Depositor shall have received the opinions of counsel to
the Seller, in form and substance satisfactory to the Depositor, as
to the matters set forth in Exhibit A hereto and such other matters
as the Depositor has heretofore requested or may reasonably request.
(iv) Other Documents. Such other documents as the Depositor may
reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Closing Date shall be consummated on such date.
Section 4.02. Conditions to Obligation of the Seller. The obligation
of the Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Depositor shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Depositor
shall have delivered to the Seller the purchase price specified in Section
2.01 hereof.
(c) Opinion of Counsel. The Depositor shall have furnished to the
Seller and the Underwriters an Opinion of Counsel, dated the Closing Date, to
the effect that:
(i) the Depositor has been duly formed and is validly existing as
a limited liability company in good standing under the laws of the
State of Delaware, with all limited liability company power and
authority to execute and deliver the Basic Documents and to perform
its obligations thereunder;
(ii) each of this Agreement, the Sale and Servicing Agreement and
the Trust Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes a valid and binding obligation of
the Depositor, enforceable against the
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Depositor in accordance with its terms except as limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer, receivership, conservatorship or
similar laws relating to or affecting creditors' rights generally or
the rights of creditors of Alabama state banks in particular and to
general equitable principles (regardless of whether considered in a
proceeding in equity or at law), including concepts of commercial
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief;
(iii) no authorization, consent, approval or order of, or filing
with, any Delaware court or any Delaware governmental agency or
administrative body is required to be obtained by the Depositor
solely as a result of the execution and delivery by the Depositor of
the Basic Documents or the performance by the Depositor of its
obligations thereunder, except for any filings that may be required
by the Uniform Commercial Code of the State of Delaware;
(iv) the execution, delivery and performance by the Depositor of
this Agreement, the Sale and Servicing Agreement, the Trust
Agreement, the Underwriting Agreement and the Order to Authenticate
and Deliver the Certificates do not violate (i) any Delaware law,
rule or regulation, or (ii) the limited liability company agreement
or certificate of formation of the Depositor; and
(v) the Registration Statement has been declared effective under
the Securities Act and, to the best of the knowledge and information
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Closing Date shall be consummated on such date.
Article V
Covenants of the Seller
The Seller agrees with the Depositor and the Indenture Trustee as
follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause at its own expense all financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Seller, the Depositor, the Trust
and the Indenture Trustee, respectively, in and to the Receivables and the
other property included in the Trust Estate to be promptly filed and at all
times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Depositor hereunder, the Trust under the Sale and
Servicing Agreement and the Indenture Trustee under the Indenture in and to
the Receivables and the other property included in the Trust Estate. The
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Seller shall deliver to the Depositor and the Indenture Trustee file stamped
copies of, or filing receipts for, any document recorded, registered or filed
as provided above, as soon as available following such recordation,
registration or filing. The Depositor shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this paragraph.
(b) Name Change. If the Seller makes any change in its name,
identity, location or corporate structure that would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above seriously misleading within the applicable provisions of the UCC or any
title statute, the Seller shall give the Depositor, the Indenture Trustee and
the Owner Trustee written notice thereof at least 45 days prior to such change
and shall promptly file such financing statements or amendments as may be
necessary to continue the perfection of the Depositor's interest in the
property conveyed pursuant to Section 2.01.
Section 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Seller shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Seller shall defend the right, title and interest of the Depositor,
the Trust and the Indenture Trustee in, to and under the Receivables against
all claims of third parties claiming through or under the Seller.
Section 5.03. Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties claiming through or under the Seller, of the
Depositor's, the Issuer's and the Indenture Trustee's right, title and
interest in and to the Receivables and the other property included in the
Trust Estate.
Section 5.04. Hold Harmless. The Seller shall protect, defend,
indemnify and hold the Depositor, the Issuer, the Noteholders, the
Certificateholders and their respective assigns and their employees, officers,
directors and agents harmless from and against all losses, liabilities, claims
and damages of every kind and character, including any legal or other expenses
reasonably incurred, as incurred, resulting from or relating to or arising out
of (i) the inaccuracy, nonfulfillment or breach of any representation,
warranty, covenant or agreement made by the Seller in this Agreement, (ii) any
legal action, including, without limitation, any counterclaim, that has either
been settled by the litigants or has proceeded to judgment by a court of
competent jurisdiction, in either case to the extent it is based upon alleged
facts that, if true, would constitute a breach of any representation,
warranty, covenant or agreement made by the Seller in this Agreement, (iii)
any actions or omissions of the Seller occurring prior to the Closing Date
with respect to any of the Receivables or Financed Vehicles or (iv) any
failure of a Receivable to be originated in compliance with all applicable
requirements of law. These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
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Article VI
Miscellaneous Provisions
Section 6.01. Obligations of Seller. The obligations of the Seller
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
Section 6.02. Repurchase Events. The Seller hereby covenants and
agrees with the Depositor for the benefit of the Depositor, the Indenture
Trustee, the Issuer, the Owner Trustee, the Certificateholders and the
Noteholders that the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.02(b) that materially
and adversely affects the interests of the Issuer, the Indenture Trustee, the
Owner Trustee, the Certificateholders or the Noteholders in any Receivable,
without regard to any limitation set forth in such representation or warranty
concerning the knowledge of the Seller as to the facts stated therein, shall
constitute an event obligating the Seller to repurchase the Receivables to
which such failure or breach is applicable (each, a "Repurchase Event"), at
the Purchase Amount, from the Depositor or from the Issuer, as applicable,
unless any such failure or breach shall have been cured by the last day of the
first Collection Period commencing after the discovery or notice thereof by or
to the Seller or the Master Servicer.
Section 6.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Seller all of the Depositor's right, title and interest in
and to such Receivables and all security and documents relating thereto.
Section 6.04. Transfer to the Issuer. The Seller acknowledges and
agrees that (1) the Depositor will, pursuant to the Sale and Servicing
Agreement, transfer and assign the Receivables and assign its rights under
this Agreement with respect thereto to the Issuer and, pursuant to the
Indenture, the Issuer will pledge the Receivables to the Indenture Trustee,
and (2) the representations and warranties contained in this Agreement and the
rights of the Depositor under this Agreement, including under Section 6.02,
are intended to benefit the Issuer, the Noteholders and the Holders of the
Certificates. The Seller hereby consents to such transfers and assignments and
agrees that enforcement of a right or remedy hereunder by the Indenture
Trustee, the Owner Trustee or the Issuer shall have the same force and effect
as if the right or remedy had been enforced or executed by the Depositor.
Section 6.05. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, but without the
consent of the Noteholders or the Certificateholders, by a written amendment
duly executed and delivered by the Seller and the Depositor, for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights of
Noteholders or Certificateholders; provided that such amendment shall not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or Certificateholder; provided further, that such
action shall be deemed not to adversely affect in any material respect the
interests of any Noteholder or Certificateholder and no Opinion of Counsel to
that effect shall be required if the person requesting the amendment obtains a
letter from the Rating Agencies stating that the amendment would not result in
the downgrading or withdrawal of the ratings of
19
then assigned to the Notes and the Certificates. This Agreement may also
be amended by the Seller and the Depositor, with prior written notice to
the Rating Agencies and the prior written consent of Holders of Notes holding
not less than a majority of the Outstanding Amount of the Notes and Holders of
Certificates evidencing at least a majority of the percentage interests in the
Certificates (excluding, for purposes of this Section 6.05, Certificates held
by the Depositor or any of its affiliates), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of Noteholders or the Certificateholders
or (ii) reduce the aforesaid percentage of the Notes or the Certificates that
is required to consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and Certificates.
Section 6.06. Waivers. No failure or delay on the part of the
Depositor, the Issuer or the Indenture Trustee in exercising any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or remedy preclude any
other or further exercise thereof or the exercise of any other power, right or
remedy.
Section 6.07. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered, faxed and followed
by first class mail, or mailed by certified mail, return receipt requested,
and shall be deemed to have been duly given upon receipt (a) in the case of
the Depositor, to 000 00xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxx Xxxx, (b) in the case of the Master Servicer, Administrator and
Custodian, to 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, with a copy to
Regions Bank Office of the General Counsel, 000 00xx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: R. Xxxx Deer, (c) in the case of the Seller, 000
00xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000; Attention: Xxxxxx Xxxx, with a
copy to Regions Bank, Office of the General Counsel, 000 00xx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: R. Xxxx Deer; (d) in the case of the
Issuer or the Owner Trustee, at the Corporate Trust Office (as defined in the
Trust Agreement), Attention: Corporate Trust Administration; (e) in the case
of S&P, to 00 Xxxxx Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Backed Surveillance Department; and (f) in the case of Xxxxx'x, to 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Department;
or, as to each of the foregoing, at such other address as shall be designated
by written notice to the other parties.
Section 6.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, in connection with the perfection of the Depositor's, the Issuer's
and the Indenture Trustee's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder as
contemplated by the Basic Documents.
Section 6.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section
2.02 and the transfers and assignments referred to in Section 6.04.
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Section 6.10. Confidential Information. The Depositor agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors or any other personally identifiable information of an Obligor,
except in connection with the enforcement of the Depositor's rights hereunder,
under the Receivables, under the Sale and Servicing Agreement or any other
Basic Document, or as required by any of the foregoing or by law.
Section 6.11. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to section names or numbers are to such Sections of this
Agreement.
Section 6.12. GOVERNING LAW. THIS AGREEMENT, AND ALL QUESTIONS
RELATING TO ITS VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ALABAMA (EXCLUSIVE OF THE CONFLICT OF LAW PROVISIONS THEREOF) APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 6.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 6.14. Third Party Beneficiary. The Indenture Trustee is an
express third party beneficiary of this Agreement and shall be entitled to
enforce the provisions of this Agreement as if it were a party hereto.
Section 6.15. No Proceedings. So long as this Agreement is in effect,
and for one year plus one day following its termination, each of the Seller
and the Depositor agrees that it will not file any involuntary petition or
otherwise institute any bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy law or similar law against the Trust.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the date and
year first above written.
REGIONS BANK, as Seller
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
REGIONS ACCEPTANCE LLC, as Depositor
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Treasurer
22
EXHIBIT A
MATTERS ADDRESSED IN OPINION OF SELLER'S COUNSEL
SCHEDULE I
Schedule of Receivables
-----------------------
[On file with the Indenture Trustee]
SCHEDULE II
Perfection Representations, Warranties and Covenants
----------------------------------------------------
1. General. The Receivables Purchase Agreement creates a valid and
continuing security interest (as defined in the UCC) in all of the Seller's
right, title and interest in and to the Receivables in favor of the
Depositor's which, (a) is enforceable upon execution of the Receivables
Purchase Agreement against creditors of and purchasers from the Seller as such
enforceability may be limited by applicable debtor relief laws, now or
hereafter in effect, and by general principles of equity (whether considered
in a suit at law or in equity), and (b) upon filing of the financing
statements described in clause 4 below will be prior to all other Liens (other
than Liens permitted pursuant to clause 5 below).
2. Characterization. The Receivables constitute "tangible chattel
paper" within the meaning of UCC Section 9-102. Except with respect to
Receivables representing less than 0.11% of the Initial Pool Balance, for
which the related Lien Certificates show World Omni named as the original
secured party under such Receivables as the holder of a first priority
security interest in the related Financed Vehicle (which Lien Certificates and
security interests have been validly assigned to the Seller), the Seller has
taken all steps necessary to perfect its security interest against the Obligor
in the Financed Vehicles securing the Receivables.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Receivables Purchase Agreement, the Seller owns and has good
and marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. The Seller has caused or will have caused, within ten
days of the Closing Date, the filing of all appropriate financing statements
in the proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest granted to the Depositor under
the Receivables Purchase Agreement in the Receivables.
5. Priority. Other than the security interests granted to the
Depositor pursuant to the Receivables Purchase Agreement, the Seller has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables, the Seller has not authorized the filing of and is not
aware of any financing statements against the Seller that includes a
description of collateral covering the Receivables other than any financing
statement (i) relating to the security interests granted to the Depositor
under the Receivables Purchase Agreement (ii) that has been terminated, or
(iii) that has been granted pursuant to the terms of the Basic Documents. None
of the tangible chattel paper that constitutes or evidences the Receivables
has any marks or notations indicating that they are pledged, assigned or
otherwise conveyed to any Person other than Indenture Trustee.
SCHEDULE III
Location of Receivable Files
----------------------------
World Omni Financial Corp.
d/b/a CenterOne Financial Services
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
