EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
between
ADVANTA AUTO FINANCE CORPORATION
Seller
and
ADVANTA AUTO RECEIVABLES CORP. I
Purchaser
dated as of
March 1, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 General.................................................................. 1
SECTION 1.2 Specific Terms........................................................... 1
SECTION 1.3 Usage of Terms........................................................... 3
SECTION 1.4 Certain References....................................................... 4
SECTION 1.5 No Recourse.............................................................. 4
SECTION 1.6 Action by or Consent of Noteholders and
Certificateholders....................................................... 4
SECTION 1.7 Material Adverse Effect.................................................. 4
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Initial Receivables and the Initial
Other Conveyed Property.................................................. 5
SECTION 2.2 Conveyance of the Subsequent Receivables and the
Subsequent Other Conveyed Property....................................... 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller................................. 7
SECTION 3.2 Representations and Warranties of Purchaser.............................. 9
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 Protection of Title of Purchaser......................................... 12
SECTION 4.2 Other Liens or Interests................................................. 13
SECTION 4.3 Costs and Expenses....................................................... 13
SECTION 4.4 Indemnification.......................................................... 14
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ARTICLE V
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty........................ 16
SECTION 5.2 Reassignment of Purchased Receivables.................................... 16
SECTION 5.3 Waivers.................................................................. 17
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Liability of Seller...................................................... 17
SECTION 6.2 Merger or Consolidation of Seller or Purchaser........................... 17
SECTION 6.3 Limitation on Liability of Seller and Others............................. 18
SECTION 6.4 Seller May Own Notes or Certificates..................................... 18
SECTION 6.5 Amendment................................................................ 18
SECTION 6.6 Notices.................................................................. 19
SECTION 6.7 Merger and Integration................................................... 19
SECTION 6.8 Severability of Provisions............................................... 20
SECTION 6.9 Intention of the Parties................................................. 20
SECTION 6.10 Governing Law............................................................ 20
SECTION 6.11 Counterparts............................................................. 20
SECTION 6.12 Conveyance of the Receivables and the Other
Conveyed Property to the Issuer.......................................... 20
SECTION 6.13 Nonpetition Covenant..................................................... 21
EXHIBITS
EXHIBIT A Form of Subsequent Purchase Agreement
SCHEDULE A Schedule of Receivables
SCHEDULE B Representations and Warranties of the Seller
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of March 1, 1997, executed
between Advanta Auto Receivables Corp. I, a Nevada corporation, as purchaser
("Purchaser"), and Advanta Auto Finance Corporation, a Nevada corporation, as
seller ("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser has agreed to purchase from Seller, and
Seller, pursuant to this Agreement, is transferring to Purchaser the Initial
Receivables and Other Conveyed Property, and with respect to the Subsequent
Receivables will transfer on the related Subsequent Transfer Date, the
Subsequent Receivables and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is acknowledged, Purchaser and Seller,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 General. Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the Sale
and Servicing Agreement dated as of March 1, 1997, by and among the Seller, in
its capacity as Master Servicer, Advanta Automobile Receivables Trust 1997-1, as
Issuer, the Purchaser, as Seller and Bankers Trust Company, as Indenture Trustee
and Trust Collateral Agent.
SECTION 1.2 Specific Terms. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Agreement" means this Purchase Agreement and all amendments
hereof and supplements hereto.
"Closing Date" means March 31, 1997.
"Indenture Trustee" means Bankers Trust Company, and any
successor Indenture Trustee appointed and acting pursuant to the Indenture.
"Initial Other Conveyed Property" means all monies,
instruments, rights and other property conveyed by the Seller to the Purchaser
pursuant to this Agreement other than the Initial Receivables.
"Initial Receivables" means the Receivables listed on the
Schedule of Receivables attached hereto as Schedule A.
"Issuer" means Advanta Automobile Receivables Trust 1997-1.
"Other Conveyed Property" means all money, instruments, rights
and other property that are subject or intended to be subject to the lien and
security interest of the Indenture (including all property and interests granted
to the Trust Collateral Agent), including all proceeds thereof, other than the
Receivables.
"Owner Trustee" means Wilmington Trust Company, as Owner
Trustee appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Initial Receivables and the Subsequent
Receivables.
"Related Documents" means any Subsequent Purchase Agreement,
the Notes, the Certificates, the Custodian Agreement, the Sale and Servicing
Agreement, the Indenture, the Trust Agreement, the Policy, the Spread Account
Agreement, the Spread Account Agreement Supplement, the Insurance Agreement, the
Indemnification Agreement and the Underwriting Agreement. The Related Documents
to be executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
Seller's representations and warranties hereunder or any other event which
requires the repurchase of a Receivable by Seller under the Sale and Servicing
Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement referred to in Section 1.1 hereof.
"Schedule of Receivables" means the schedule of Initial
Receivables sold and transferred pursuant to this Agreement which is attached
hereto as Schedule A.
"Schedule of Representations" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
"Security Majority" means a majority by principal amount of
the Noteholders so long as the Notes are outstanding and a majority by principal
amount of the Certificateholders thereafter.
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"Subsequent Cutoff Date" means the opening of business on the
first day of the calendar month in which particular Subsequent Receivables are
conveyed to the Purchaser pursuant to this Agreement.
"Subsequent Other Conveyed Property" means all property
conveyed by the Seller to the Purchaser pursuant to the Subsequent Purchase
Agreement other than the Subsequent Receivables.
"Subsequent Purchase Agreement" means an agreement by and
between the Seller and the Purchaser pursuant to which the Purchaser will
acquire Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred to
the Purchaser pursuant to Section 2.2, which shall be listed on Schedule A to
the related Subsequent Purchase Agreement.
"Subsequent Transfer Date" means, with respect to Subsequent
Receivables, any date, occurring not more frequently than once a month, during
the Pre- Funding Period on which Subsequent Receivables are to be transferred to
the Purchaser pursuant to this Agreement, and a Subsequent Purchase Agreement is
executed and delivered.
"Trust Collateral Agent" means Bankers Trust Company, as trust
collateral agent and any successor trust collateral agent appointed and acting
pursuant to the Sale and Servicing Agreement.
"Trustee" means Bankers Trust Company, as Indenture Trustee
appointed and acting pursuant to the Sale and Servicing Agreement.
"Unaffiliated Originator" means any third party originator or
owner of Receivables.
SECTION 1.3 Usage of Terms. With respect to all terms used in
this Agreement, the singular includes the plural and the plural includes the
singular; words importing any gender include the other gender; references to
"writing" include printing, typing, lithography, and other means of reproducing
words in a visible form; references to agreements and other contractual
instruments include all subsequent amendments thereto or changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement or the Sale and Servicing Agreement; references to Persons include
their permitted successors and assigns; the terms "include" or "including" mean
"include without limitation" or "including without limitation; "the words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision, and Article, Section, Schedule and Exhibit references, unless
otherwise specified, refer to Articles and Sections of Schedules and Exhibits to
this Agreement.
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SECTION 1.4 Certain References. All references to the
Principal Balance of a Receivable as of any date of determination shall refer to
the close of business on such day, or as of the first day of a Monthly Period
shall refer to the opening of business on such day. All references to the last
day of a Monthly Period shall refer to the close of business on such day.
SECTION 1.5 No Recourse. Without limiting the obligations of
Seller hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
SECTION 1.6 Action by or Consent of Noteholders and
Certificateholders. Whenever any provision of this Agreement refers to action to
be taken, or consented to, by Noteholders or Certificateholders, such provision
shall be deemed to refer to the Certificateholder or Noteholder, as the case may
be, of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or Certificateholders.
Solely for the purposes of any action to be taken, or consented to, by
Noteholders or Certificateholders, any Note or Certificate registered in the
name of the Seller or any Affiliate thereof shall be deemed not to be
outstanding; provided, however, that, solely for the purpose of determining
whether the Indenture Trustee or the Trust Collateral Agent is entitled to rely
upon any such action or consent, only Notes or Certificates which the Owner
Trustee, the Indenture Trustee or the Trust Collateral Agent, respectively,
knows to be so owned shall be so disregarded.
SECTION 1.7 Material Adverse Effect. Whenever a determination
is to be made under this Agreement as to whether a given event, action, course
of conduct or set of facts or circumstances could or would have a material
adverse effect on the Certificateholders, the Noteholders or the Trust (or any
similar or analogous determination), such determination shall be made without
taking into account the funds available from claims under the Policy. Whenever a
determination is to be made under this Agreement whether a breach of a
representation, warranty or covenant has or could have a material adverse effect
on a Receivable or the interest therein of the Trust, the Noteholders, the
Certificateholders or the Insurer (or any similar or analogous determination),
such determination shall be made by the Insurer in its reasonable discretion and
after notifying the Trustee and the Seller of such potential breach or (x) if an
Insurer Default shall have occurred and be continuing, or (y) upon (i) the
expiration of the Policy in accordance with the terms thereof and (ii) the
payment of all amounts owing to the Insurer under the Sale and Servicing
Agreement and the Insurance Agreement, by a Security Majority.
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ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Initial Receivables and the
Initial Other Conveyed Property.
(a) Subject to the terms and conditions of this Agreement,
Seller hereby sells, transfers, assigns, and otherwise conveys to Purchaser
without recourse (but without limitation of its obligations in this Agreement),
and Purchaser hereby purchases, all right, title and interest of Seller in and
to:
(i) the Initial Receivables and all monies paid or payable
thereon on or after the Initial Cutoff Date (including amounts due on
or before the Initial Cutoff Date but received by the Seller on or
after the Initial Cutoff Date);
(ii) the security interests in the Financed Vehicles granted
by Obligors pursuant to the Initial Receivables and any other interest
of the Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with
respect to the Initial Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed Vehicles
or Obligors, including rebates of insurance premiums relating to the
Receivables and any proceeds from the liquidation of the Initial
Receivables;
(iv) all rights of the Seller against Dealers pursuant to
Dealer Agreements, Dealer Assignments or Unaffiliated Originator
Receivables
Purchase Agreements;
(v) all rights under any Service Contracts on the related
Financed Vehicles;
(vi) the related Receivables Files and any and all other
documents that the 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 the Purchaser pursuant to liquidation of
such Receivable;
(viii) the proceeds of any and all of the foregoing.
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It is the intention of Seller and Purchaser that the transfer
and assignment contemplated by this Agreement shall constitute a sale of the
Initial Receivables and the Initial Other Conveyed Property from Seller to
Purchaser, conveying good title thereto free and clear of any liens, and the
beneficial interest in and title to the Initial Receivables and the Initial
Other Conveyed Property shall not be part of Seller's estate in the event of the
filing of a bankruptcy petition by or against Seller under any bankruptcy or
similar law.
(b) Simultaneously with the conveyance of the Initial
Receivables and the Initial Other Conveyed Property to Purchaser, Purchaser has
paid or caused to be paid to or upon the order of Seller an amount equal to the
book value of the Initial Receivables on the books and records of the Seller, by
wire transfer of immediately available funds.
SECTION 2.2 Conveyance of the Subsequent Receivables and the
Subsequent Other Conveyed Property.
(a) On each Subsequent Transfer Date and simultaneously with
the execution and delivery of the related Subsequent Purchase Agreement, the
Seller shall sell, transfer, assign, and otherwise convey to Purchaser without
recourse (but without limitation of its obligations in this Agreement), and
Purchaser shall purchase, all right, title and interest of Seller in and to:
(i) the Subsequent Receivables listed on Schedule A to the
related Subsequent Transfer Agreement and all monies paid or payable
thereon on or after the related Subsequent Transfer Date (including
amounts due on or before the Subsequent Cutoff Date but received by the
Seller on or after the Subsequent Cutoff Date);
(ii) the security interests in the Financed Vehicles granted
by Obligors pursuant to the Subsequent Receivables and any other
interest of the Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with
respect to such Subsequent Receivables from claims on any physical
damage, credit life or disability insurance policies covering the
related Financed Vehicles or Obligors, including rebating of insurance
premiums relating to the Receivables, and any proceeds from the
liquidation of the Subsequent Receivables;
(iv) all rights of the Seller against the Dealers pursuant to
Dealer Agreements; Dealer Assignments or Unaffiliated Originator
Receivables Purchase Agreements;
(v) all rights under any Service Contracts on the related
Financed Vehicles:
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(vi) the related Receivables Files; and any and all other
documents that the 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 the Purchaser pursuant to liquidation of
such Receivable;
(viii) the proceeds of any and all of the foregoing.
It is the intention of Seller and Purchaser that the transfer
and assignment contemplated by such Agreement shall constitute a sale of the
Subsequent Receivables and the Subsequent Other Conveyed Property from Seller to
Purchaser, conveying good title thereto free and clear of any liens, and the
beneficial interest in and title to the Subsequent Receivables and the
Subsequent Other Conveyed Property shall not be part of Seller's estate in the
event of the filing of a bankruptcy petition by or against Seller under any
bankruptcy or similar law.
(b) Simultaneously with the conveyance of the Subsequent
Receivables and the Subsequent 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 Subsequent Receivables on the books and records of the
Seller, by wire transfer of immediately available funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. Seller
makes the following representations and warranties as of the date hereof and as
of the Subsequent Transfer Date, as the case may be, on which Purchaser relies
in purchasing the Receivables and the Other Conveyed Property and in
transferring the Receivables and the Other Conveyed Property to the Issuer under
the Sale and Servicing Agreement and on which the Insurer will rely in issuing
the Policy. Such representations are made as of the execution and delivery of
this Agreement and as of the execution and delivery of any Subsequent Purchase
Agreement, but shall survive the sale, transfer and assignment of the
Receivables and the Other Conveyed Property hereunder and under any Subsequent
Purchase Agreement, and the sale, transfer and assignment thereof by Purchaser
to the Issuer under the Sale and Servicing Agreement. Seller and Purchaser agree
that Purchaser will assign to Issuer all Purchaser's rights under this Agreement
and that the Indenture Trustee will thereafter be entitled to enforce this
Agreement against Seller in the Indenture Trustee's own name on behalf of the
Securityholders.
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(i) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations with respect to
the Initial Receivables as of the date hereof, and with respect to the
Subsequent Receivables as of the related Subsequent Transfer Date, are
true and correct.
(ii) Organization and Good Standing. Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Nevada, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Receivables and the Other Conveyed Property
to be transferred to Purchaser.
(iii) Due Qualification. Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification.
(iv) Power and Authority. Seller has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; Seller has full
power and authority to sell and assign the Receivables and the Other
Conveyed Property to be sold and assigned to and deposited with
Purchaser hereunder and has duly authorized such sale and assignment to
Purchaser by all necessary corporate action; and the execution,
delivery and performance of this Agreement and Seller's Related
Documents have been duly authorized by Seller by all necessary
corporate action.
(v) Valid Sale; Binding Obligations. This Agreement and
Seller's Related Documents have been duly executed and delivered, shall
effect a valid sale, transfer and assignment of the Receivables and the
Other Conveyed Property to the Purchaser, enforceable against Seller
and creditors of and purchasers from Seller; and this Agreement and
Seller's Related Documents constitute legal, valid and binding
obligations of Seller enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other 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.
(vi) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the articles of incorporation or bylaws of
Seller, or any indenture, agreement, mortgage, deed of trust or other
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instrument to which Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement,
the Spread Account Agreement, the Sale and Servicing Agreement and the
Indenture, or violate any law, order, rule or regulation applicable to
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Seller or any of its properties.
(vii) No Proceedings. There are no proceedings or
investigations pending or, to Seller's knowledge, threatened against
Seller, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction over
Seller or its properties (i) asserting the invalidity of this Agreement
or any of the Related Documents, (ii) seeking to prevent the issuance
of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Sale and Servicing Agreement.
(viii) Chief Executive Office. The chief executive office of
Seller is located at Four Horsham Business Center, 000 Xxxxx Xxxx,
Xxxxxxxx Xxxx, Xxxxxxx, XX 00000.
(ix) No Consents. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained.
(x) Approvals. All approvals, authorizations, consents, order
or other actions of any person, corporation or other organization, or
of any court, governmental agency or body or official, required in
connection with the execution and delivery by the Seller of this
Agreement and the consummation of the transactions contemplated hereby
or will be taken or obtained on or prior to the Closing Date.
SECTION 3.2 Representations and Warranties of Purchaser.
Purchaser makes the following representations and warranties, on which Seller
relies in selling, assigning, transferring and conveying the Receivables and the
Other Conveyed Property to Purchaser hereunder. Such representations are made as
of the execution and delivery
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of this Agreement, but shall survive the sale, transfer and assignment of the
Receivables and the Other Conveyed Property hereunder and the sale, transfer and
assignment thereof by Purchaser to the Issuer under the Sale and Servicing
Agreement.
(i) Organization and Good Standing. Purchaser has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Nevada, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and has, full power, authority and legal right to
acquire and own the Receivables and the Other Conveyed Property, and to
transfer the Receivables and the Other Conveyed Property to the Issuer
pursuant to the Sale and Servicing Agreement.
(ii) Due Qualification. Purchaser is duly qualified to do
business as a foreign corporation 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 Purchaser's
ability to acquire the Receivables or the Other Conveyed Property, and
to transfer the Receivables and the Other Conveyed Property to the
Issuer pursuant to the Sale and Servicing Agreement, or the validity or
enforceability of the Receivables and the Other Conveyed Property or to
perform Purchaser's obligations hereunder and under the Purchaser's
Related Documents.
(iii) Power and Authority. Purchaser has the power, authority
and legal right to execute and deliver this Agreement and to carry out
the terms hereof and to acquire the Receivables and the Other Conveyed
Property hereunder; and the execution, delivery and performance of this
Agreement and all of the documents required pursuant hereto have been
duly authorized by Purchaser by all necessary action.
(iv) No Consent Required. Purchaser is not required to obtain
the consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(v) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws and to general
equitable principles.
(vi) No Violation. The execution, delivery and performance by
Purchaser of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of
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this Agreement and the Related Documents do not and will 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) a default under,
the certificate of incorporation or bylaws of Purchaser, or conflict
with or breach any of the terms or provisions of, or constitute (with
or without notice or lapse of time) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which
Purchaser is a party or by which Purchaser is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement and the Spread Account
Agreement and the Indenture), or violate any law, order, rule or
regulation, applicable to Purchaser or its properties, of any federal
or state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over Purchaser or any
of its properties.
(vii) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of Purchaser, threatened
against Purchaser, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality having
jurisdiction over Purchaser or its properties: (i) asserting the
invalidity of this Agreement or any of the Related Documents, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Purchaser of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) that may adversely affect the federal or state income
tax attributes of, or seeking to impose any excise, franchise, transfer
or similar tax upon, the transfer and acquisition of the Receivables
and the Other Conveyed Property hereunder or the transfer of the
Receivables and the Other Conveyed Property to the Issuer pursuant to
the Sale and Servicing Agreement.
(viii) Approvals. All approvals, authorizations, consents,
orders or other actions of any person, corporation or other
organization, or of any court, governmental agency or body or official,
required in connection with the execution and delivery by the Purchaser
of this Agreement and the consummation of the transactions contemplated
hereby or will be taken or obtained on or prior to the Closing Date.
In the event of any breach of a representation and warranty
made by Purchaser hereunder, Seller covenants and agrees that it will not take
any action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes,
Certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust or similar vehicle formed by Purchaser, have been paid in
full. Seller and Purchaser agree that damages
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will not be an adequate remedy for such breach and that this covenant may be
specifically enforced by Purchaser, Issuer or by the Indenture Trustee on behalf
of the Noteholders and Owner Trustee on behalf of the Certificateholders.
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 Protection of Title of Purchaser.
(a) At or prior to the Closing Date, Seller shall have filed
or caused to be filed a UCC-1 financing statement, executed by Seller as seller
or debtor, naming Purchaser as purchaser or secured party and describing the
Initial Receivables and the Initial Other Conveyed Property being sold by it to
Purchaser as collateral, with the office of the Secretary of State of the State
of Nevada and in such other locations as Purchaser shall have required and as
shall be necessary to perfect the security interest of Purchaser in the
collateral. At or prior to any Subsequent Transfer Date, the Seller shall file
or cause to be filed a UCC-1 financing statement executed by the Seller, as
seller or debtor, naming the Purchaser as purchaser or secured party and
describing the Subsequent Receivables and the Subsequent Other Conveyed Property
being sold by it to the Purchaser as collateral, with the office of the
Secretary of State of the State of Nevada and in such other locations as
Purchaser shall require and shall be necessary to perfect the security interest
of Purchaser in the collateral. From time to time thereafter, Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of
Purchaser under this Agreement, of the Issuer under the Sale and Servicing
Agreement and of the Trust Collateral Agent under the Indenture in the
Receivables and the Other Conveyed Property and in the proceeds thereof. Seller
shall deliver (or cause to be delivered) to Purchaser, the Trust Collateral
Agent and the Insurer file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing. In
the event that Seller fails to perform its obligations under this subsection,
Purchaser, Issuer or the Trust Collateral Agent may do so, at the expense of
Seller.
(b) Seller shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by Seller (or by Purchaser, Issuer or the Trust
Collateral Agent on behalf of Seller) in accordance with paragraph (a) above
seriously misleading within the meaning of ss. 9-402(7) of the UCC, unless it
shall have given Purchaser, Issuer and the Trust Collateral Agent at least 30
days' prior written notice thereof, and shall promptly file appropriate
amendments to all previously filed financing statements and continuation
statements.
12
(c) Seller shall give Purchaser, the Issuer, the Insurer (so
long as an Insurer Default shall not have occurred and be continuing) and the
Trust Collateral Agent at least 30 days' prior written notice of any relocation
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement. Seller shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) Prior to the Closing Date and with respect to Subsequent
Receivables, the Subsequent Transfer Date, Seller has maintained accounts and
records as to each Receivable accurately and in sufficient detail to permit (i)
the reader thereof to know at any time as of or prior to the Closing Date and
with respect to Subsequent Receivables, the Subsequent Transfer Date, the status
of such Receivable, including payments and recoveries made and payments owing
(and the nature of each) and (ii) reconciliation between payments or recoveries
on (or with respect to) each Receivable and the Principal Balance as of the
Closing Date and with respect to Subsequent Receivables, the Subsequent Transfer
Date. Seller shall maintain its computer systems so that, from and after the
time of sale under this Agreement of the Receivables to Purchaser, and the
conveyance of the Receivables by Purchaser to the Issuer, Seller's master
computer records (including archives) that shall refer to a Receivable indicate
clearly that such Receivable has been sold to Purchaser and has been conveyed by
Purchaser to the Issuer. Indication of the Issuer's ownership of a Receivable
shall be deleted from or modified on Seller's computer systems when, and only
when, the Receivable shall become a Purchased Receivable or shall have been paid
in full.
(e) If at any xxxx Xxxxxx shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any motor vehicle
receivables to any prospective purchaser, lender or other transferee, Seller
shall give to such prospective purchaser, lender, or other transferee computer
tapes, records, or print-outs (including any restored from archives) that, if
they shall refer in any manner whatsoever to any Receivable (other than a
Purchased Receivable), shall indicate clearly that such Receivable has been sold
to Purchaser, sold by Purchaser to Issuer, and is owned by the Issuer.
SECTION 4.2 Other Liens or Interests. Except for the
conveyances hereunder, Seller will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on the
Receivables or the Other Conveyed Property or any interest therein, and Seller
shall defend the right, title, and interest of Purchaser and the Issuer in and
to the Receivables and the Other Conveyed Property against all claims of third
parties claiming through or under Seller.
SECTION 4.3 Costs and Expenses. Seller shall pay all
reasonable costs and disbursements in connection with the performance of its
obligations hereunder and under its Related Documents.
13
SECTION 4.4 Indemnification.
(a) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders from and against any
and all costs, expenses, losses, damages, claims, and liabilities, arising out
of or resulting from any breach of any of Seller's representations and
warranties contained herein.
(b) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders from and against any
and all costs, expenses, losses, damages, claims, and liabilities, arising out
of or resulting from the use, ownership or operation by Seller or any affiliate
thereof of a Financed Vehicle.
(c) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders against any and all
costs, expenses, losses, damages, claims and liabilities arising out of or
resulting from any action taken, or failed to be taken, by it in respect of any
portion of the Receivables other than in accordance with this Agreement or the
Sale and Servicing Agreement.
(d) Seller agrees to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Trust Collateral Agent, the Indenture
Trustee, the Owner Trustee, the Noteholders and the Certificateholders from and
against any taxes that may at any time be asserted against Purchaser, the
Issuer, the Trust Collateral Agent, the Indenture Trustee, the Owner Trustee,
the Noteholders and the Certificateholders with respect to the transactions
contemplated in this Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible or intangible personal property,
privilege, or license taxes (but not including any taxes asserted with respect
to, and as of the date of, the sale, transfer and assignment of the Receivables
and the Other Conveyed Property to Purchaser and by Purchaser to the Issuer or
the issuance and original sale of the Notes or the Certificates, or asserted
with respect to ownership of the Receivables and Other Conveyed Property which
shall be indemnified by Seller pursuant to clause (e) below, or federal, state
or other income taxes, arising out of distributions on the Notes or the
Certificates or transfer taxes arising in connection with the transfer of the
Notes or the Certificates) and costs and expenses in defending against the same,
arising by reason of the acts to be performed by Seller under this Agreement or
imposed against such Persons.
(e) Seller agrees to pay, and to indemnify, defend and hold
harmless Purchaser, the Issuer, the Trust Collateral Agent, the Indenture
Trustee, the Owner Trustee, the Noteholders and the Certificateholders from, any
taxes which may at any time be asserted against such Persons with respect to,
and as of the date of, the conveyance or ownership of the Receivables or the
Other Conveyed Property hereunder and under any Subsequent Purchase Agreement
and the conveyance or ownership of the
14
Receivables under the Sale and Servicing Agreement or the issuance and original
sale of the Notes or the Certificates, including, without limitation, any sales,
gross receipts, personal property, tangible or intangible personal property,
privilege or license taxes (but not including any federal or other income taxes,
including franchise taxes, arising out of the transactions contemplated hereby
or transfer taxes arising in connection with the transfer of the Notes or the
Certificates) and costs and expenses in defending against the same, arising by
reason of the acts to be performed by Seller under this Agreement or imposed
against such Persons.
(f) Seller shall defend, indemnify, and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders from and against any
and all costs, expenses, losses, claims, damages, and liabilities to the extent
that such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon any of such Persons through the negligence, willful misfeasance, or
bad faith of Seller in the performance of its duties under this Agreement or by
reason of reckless disregard of Seller's obligations and duties under this
Agreement.
(g) Seller shall indemnify, defend and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders from and against any
loss, liability or expense incurred by reason of the violation by Seller of
federal or state securities laws in connection with the registration or the sale
of the Notes or the Certificates.
(h) Seller shall indemnify, defend and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders from and against any
loss, liability or expense imposed upon, or incurred by, any of such Persons as
result of the failure of any Receivable, or the sale of the related Financed
Vehicle, to comply with all requirements of applicable law.
(i) Seller shall defend, indemnify, and hold harmless
Purchaser from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of Seller's trusts and duties as Master Servicer under the Sale and
Servicing Agreement, except to the extent that such cost, expense, loss, claim,
damage, or liability shall be due to the willful misfeasance, bad faith, or
negligence (except for errors in judgment) of Purchaser.
Indemnification under this Section 4.4 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive termination of the Notes and the Certificates. The indemnity obligations
hereunder shall be in addition to any obligation that Seller may otherwise have.
15
ARTICLE V
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.
Upon the occurrence of a Repurchase Event, Seller shall, unless the breach which
is the subject of such Repurchase Event shall have been cured in all material
respects, repurchase the Receivable relating thereto from the Issuer by the last
day of the first full calendar month following the discovery by the Seller of
receipt by the Seller of notice of such breach and, simultaneously with the
repurchase of the Receivable, Seller shall deposit the Purchase Amount in full,
without deduction or offset, to the Collection Account, pursuant to Section 3.2
of the Sale and Servicing Agreement. It is understood and agreed that, except as
set forth in Section 6.1 hereof, the obligation of Seller to repurchase any
Receivable, as to which a breach occurred and is continuing, shall, if such
obligation is fulfilled, constitute the sole remedy against Seller for such
breach available to Purchaser, the Issuer, the Insurer, the Noteholders, the
Certificateholders, the Trust Collateral Agent on behalf of the Noteholders or
the Owner Trustee on behalf of Certificateholders. The provisions of this
Section 5.1 are intended to grant the Issuer and the Trust Collateral Agent a
direct right against Seller to demand performance hereunder, and in connection
therewith, Seller waives any requirement of prior demand against Purchaser with
respect to such repurchase obligation. Any such repurchase shall take place in
the manner specified in Section 3.2 of the Sale and Servicing Agreement.
Notwithstanding any other provision of this Agreement or the Sale and Servicing
Agreement to the contrary, the obligation of Seller under this Section shall not
terminate upon a termination of Seller as Master Servicer under the Sale and
Servicing Agreement and shall be performed in accordance with the terms hereof
notwithstanding the failure of the Master Servicer or Purchaser to perform any
of their respective obligations with respect to such Receivable under the Sale
and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the
related Receivable shall have been purchased by Seller, Seller shall indemnify
the Issuer, the Trust Collateral Agent, the Indenture Trustee, the Owner
Trustee, the Insurer, the Noteholders and the Certificateholders against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them as a result of third party claims arising out of the events or facts
giving rise to such Repurchase Events.
SECTION 5.2 Reassignment of Purchased Receivables. Upon
deposit in the Collection Account of the Purchase Amount of any Receivable
repurchased by Seller under Section 5.1 hereof, Purchaser and the Issuer shall
take such steps as may be reasonably requested by Seller in order to assign to
Seller all of Purchaser's and the Issuer's right, title and interest in and to
such Receivable and all security and documents and all Other Conveyed Property
conveyed to Purchaser and the Issuer directly relating thereto, without
recourse, representation or warranty, except as to the absence of liens, charges
or encumbrances created by or arising as a result of actions of Purchaser or the
16
Issuer. Such assignment shall be a sale and assignment outright, and not for
security. If, following the reassignment of a Purchased Receivable, in any
enforcement suit or legal proceeding, it is held that Seller may not enforce any
such Receivable on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, Purchaser and the Issuer shall, at
the expense of Seller, take such steps as Seller deems reasonably necessary to
enforce the Receivable, including bringing suit in Purchaser's or in the
Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of
Purchaser, or the Issuer as assignee of Purchaser, 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 future exercise thereof or the exercise of any other power, right
or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Liability of Seller. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
SECTION 6.2 Merger or Consolidation of Seller or Purchaser.
Any corporation or other entity (i) into which Seller or Purchaser may be merged
or consolidated, (ii) resulting from any merger or consolidation to which Seller
or Purchaser is a party or (iii) succeeding to the business of Seller or
Purchaser, in the case of Purchaser, which corporation has a certificate of
incorporation containing provisions relating to limitations on business and
other matters substantively identical to those contained in Purchaser's
certificate of incorporation, provided that in any of the foregoing cases such
corporation shall execute an agreement of assumption to perform every obligation
of Seller or Purchaser, as the case may be, under this Agreement and, whether or
not such assumption agreement is executed, shall be the successor to Seller or
Purchaser, as the case may be, hereunder (without relieving Seller or Purchaser
of its responsibilities hereunder, if it survives such merger or consolidation)
without the execution or filing of any document or any further action by any of
the parties to this Agreement. Notwithstanding the foregoing, so long as an
Insurer Default shall not have occurred and be continuing, Purchaser shall not
merge or consolidate with any other Person or permit any other Person to become
the successor to Purchaser's business without the prior written consent of the
Insurer. Seller or Purchaser shall promptly inform the other party, the Issuer,
the Trust Collateral Agent, the Owner Trustee and, so long as an Insurer Default
shall not have occurred and be continuing, the Insurer of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or
17
warranty made pursuant to Sections 3.1 and 3.2 of this Agreement shall have been
breached (for purposes hereof, such representations and warranties shall speak
as of the date of the consummation of such transaction) and no event that, after
notice or lapse of time, or both, would become an event of default under the
Insurance Agreement, shall have occurred and be continuing, (y) Seller or
Purchaser, as applicable, shall have delivered written notice of such
consolidation, merger or purchase and assumption to the Rating Agencies prior to
the consummation of such transaction and shall have delivered to the Issuer and
the Trust Collateral Agent an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 6.2 and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have been
complied with, and (z) Seller or Purchaser, as applicable, shall have delivered
to the Issuer and the Trust Collateral Agent an Opinion of Counsel, stating, in
the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary to preserve and protect the interest of the Issuer and the Trust
Collateral Agent in the Receivables and reciting the details of the filings or
(B) no such action shall be necessary to preserve and protect such interest.
SECTION 6.3 Limitation on Liability of Seller and Others.
Seller and any director, officer, employee or agent may rely in good faith on
the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement. Seller shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its obligations under this
Agreement or its Related Documents and that in its opinion may involve it in any
expense or liability.
SECTION 6.4 Seller May Own Notes or Certificates. Subject to
the provisions of the Sale and Servicing Agreement, Seller and any Affiliate of
Seller may in its individual or any other capacity become the owner or pledgee
of Notes or Certificates with the same rights as it would have if it were not
Seller or an Affiliate thereof.
SECTION 6.5 Amendment.
(a) This Agreement may be amended by Seller and Purchaser with
the prior written consent of the Insurer (so long as an Insurer Default shall
not have occurred and be continuing) but without the consent of the Trust
Collateral Agent, the Owner Trustee or any of the Certificateholders or
Noteholders (i) to cure any ambiguity or (ii) to correct any provisions in this
Agreement; provided, however, that such action shall not adversely affect in any
material respect the interests of any Certificateholder or Noteholder.
(b) This Agreement may also be amended from time to time by
Seller and Purchaser, with the prior written consent of the Insurer (so long as
an Insurer Default shall not have occurred and be continuing) and with the
consent of the Trust
18
Collateral Agent and, if required, a Security Majority in accordance with the
Sale and Servicing Agreement, 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 Certificateholders or
Noteholders; provided, however, the Seller provides the Trust Collateral Agent
with an Opinion of Counsel, (which may be provided by the Seller's internal
counsel) that no such amendment shall increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on any Note or
Certificate.
(c) It shall not be necessary for the consent of
Certificateholders or Noteholders pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents and of evidencing the authorization of the execution thereof by
Certificateholders or Noteholders shall be subject to such reasonable
requirements as the Trust Collateral Agent may prescribe, including the
establishment of record dates. The consent of a Holder of a Certificate or a
Note given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate or Note and of any Certificate or Note issued upon
the transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Certificate or Note.
Prior to the execution of any amendment to this Agreement, the
Trustee, the Trust Collateral Agent, if requested, shall be entitled to receive
and rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied.
SECTION 6.6 Notices. All demands, notices and communications
to Seller or Purchaser hereunder shall be in writing, personally delivered, or
sent by telecopier (subsequently confirmed in writing), reputable overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt (a) in the case of Seller, to Advanta
Auto Finance Corporation, Four Horsham Business Center, 000 Xxxxx Xxxx Xxxxxxxx
Xxxx, Xxxxxxx, XX 00000, Attention: Legal Department, or (b) in the case of
Purchaser, to Advanta Auto Receivables Corp. I, 0000 Xxxxxxxxx Xxx, Xxxxx 000,
Xxxx, Xxxxxx 00000 or such other address as shall be designated by a party in a
written notice delivered to the other party or to the Issuer, Owner Trustee or
the Trust Collateral Agent, as applicable.
SECTION 6.7 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and Related Documents set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
19
SECTION 6.8 Severability of Provisions. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9 Intention of the Parties. The execution and
delivery of this Agreement shall constitute an acknowledgment by Seller and
Purchaser that they intend that the assignment and transfer herein contemplated
constitute a sale and assignment outright, and not for security, of the
Receivables and the Other Conveyed Property, conveying good title thereto free
and clear of any Liens, from Seller to Purchaser, and that the Receivables and
the Other Conveyed Property shall not be a part of Seller's estate in the event
of the bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, or the occurrence of another similar event, of, or with respect to Seller.
In the event that such conveyance is determined to be made as security for a
loan made by Purchaser, the Issuer, the Noteholders or the Certificateholders to
Seller, the parties intend that Seller shall have granted to Purchaser a
security interest in all of Seller's right, title and interest in and to the
Receivables and the Other Conveyed Property conveyed pursuant to Section 2.1
hereof, and that this Agreement shall constitute a security agreement under
applicable law.
SECTION 6.10 Governing Law. This Agreement shall be construed
in accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 6.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.12 Conveyance of the Receivables and the Other
Conveyed Property to the Issuer. Seller acknowledges 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, to the
Issuer on the date hereof and on the Subsequent Transfer Date in the case of
Subsequent Receivables. Seller acknowledges and consents to such conveyance and
pledge and waives any further notice thereof and covenants and agrees that the
representations and warranties of Seller contained in this Agreement and the
rights of Purchaser hereunder are intended to benefit the Insurer, the Issuer,
the Owner Trustee, the Trust Collateral Agent, the Noteholders and the
Certificateholders. In furtherance of the foregoing, Seller covenants and agrees
to perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Insurer, the Issuer, the Owner Trustee, the Trust
Collateral Agent, the
20
Noteholders and the Certificateholders and that, notwithstanding anything to the
contrary in this Agreement, Seller shall be directly liable to the Issuer, the
Owner Trustee, the Trust Collateral Agent, the Noteholders and the
Certificateholders (notwithstanding any failure by the Master Servicer, or the
Purchaser to perform their respective duties and obligations hereunder or under
Related Documents) and that the Trust Collateral Agent may enforce the duties
and obligations of Seller under this Agreement against Seller for the benefit of
the Insurer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and
the Certificateholders.
SECTION 6.13 Nonpetition Covenant. Neither Purchaser nor
Seller shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Purchaser or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or the Issuer or any
substantial part of their respective property, or ordering the winding up or
liquidation of the affairs of the Purchaser or the Issuer.
21
IN WITNESS WHEREOF, the parties have caused this Purchase
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ADVANTA AUTO FINANCE CORPORATION,
as Seller
By
----------------------------------
Name:
Title:
ADVANTA AUTO RECEIVABLES CORP. I,
as Purchaser
By
----------------------------------
Name:
Title:
Acknowledged and Accepted:
BANKERS TRUST COMPANY,
As Trustee and Trust Collateral Agent
By
--------------------------------------
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF SELLER
1. Characteristics of Receivables. Each Receivable (A) was originated
by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business in accordance with either (i) the Seller's credit
policies or (ii) credit policies which were reviewed by the Seller prior to a
purchase of a Receivable by the Seller and such Dealer had all necessary
licenses and permits to originate Receivables in the state where such Dealer was
located, was fully and properly executed by the parties thereto, was purchased,
directly or indirectly, by an Unaffiliated Originator from such Dealer under an
existing Dealer Agreement or pursuant to a Dealer Assignment with an
Unaffiliated Originator and was validly assigned by such Dealer to an
Unaffiliated Originator pursuant to a Dealer Assignment and then validly
assigned by an Unaffiliated Originator to the Seller (B) contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral security, (C) is a
Receivable which provides for level monthly payments (provided that the period
in the first Collection Period and the payment in the final Collection Period of
the Receivable may be minimally different from the normal period and level
payment) which, if made when due, shall fully amortize the Amount Financed over
the original term and (D) has not been amended or collections with respect to
which waived, other than as evidenced in the Receivable File relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was (A)
originated by a Dealer, (B) and was sold by the Dealer, directly or indirectly,
to an Unaffiliated Originator, (C) was sold by an Unaffiliated Originator to the
Seller and by the Seller to the Purchaser without any fraud or misrepresentation
in any case.
3. Compliance with Law. All requirements of applicable federal, state
and local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxx-Xxxxxxxx Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended, each applicable state Motor Vehicle Retail
Installment Sales Act, and state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code and other consumer credit laws and equal credit
opportunity and disclosure laws) in respect of the Receivables, each and every
sale of Financed Vehicles and the sale of any physical damage, credit life and
credit accident and health insurance and any extended service contracts have
been complied with in all material respects, and each Receivable and the sale of
the Financed Vehicle evidenced by each Receivable complied at the time it was
originated or made and now complies in all material respects with all applicable
legal requirements.
B-1
4. Origination. Each Receivable was originated in the United
States and materially conforms to all requirements of the "Dealer Underwriting
Guide" applicable to such Receivable at the time of origination, or with respect
to Receivables assigned to the Seller, at the time of such assignment.
5. 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 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 Cutoff Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of
America or any State or any agency, department, subdivision or instrumentality
thereof.
7. Obligor Bankruptcy. At the related Cutoff Date, no Obligor
had been identified on the records of the Seller as being the subject of a
current bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
related Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
applicable, the Seller will have caused the portions of the Electronic Ledger
relating to the Receivables to be clearly and unambiguously identified to show
that the Receivables have been sold to the Purchaser by the Seller and resold by
the Purchaser to the Trust in accordance with the terms of the Sale and
Servicing Agreement.
10. Computer Tape. The Computer Tape made available by the Seller
to the Purchaser on the Closing Date or Subsequent Transfer Date, as
applicable, was complete and accurate as of the related Cutoff Date and
includes a description of the same Receivables that are described in the
Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Securityholders or the Insurer were utilized in selecting the Receivables from
those receivables owned by the Purchaser or purchased by the Seller from
Unaffiliated Originators which met the selection criteria contained in the Sale
and Servicing Agreement.
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12. Chattel Paper. The Receivables constitute chattel paper
within the meaning of the UCC as in effect in the States of Texas and New York.
13. One Original. There is only one original executed copy of
each Receivable.
14. 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 original,
or in certain specific instances, a copy of the original, Lien Certificate or
application therefor together with an assignment of the Lien Certificate
executed by the Unaffiliated Originator to the Seller and by the Seller to the
Purchaser and an assignment of the Lien Certificate executed by the Purchaser to
the Trustee and (c) an original credit application signed by the Obligor. Each
of such documents which is required to be signed by the Obligor has been signed
by the Obligor in the appropriate spaces. All blanks on any form described in
clauses (a), (b) and (c) above have been properly filled in and each form has
otherwise been correctly prepared. Notwithstanding the above, a copy of the
complete Receivable File for each Receivable, which fulfills the documentation
requirements of the Dealer Underwriting Guide as in effect at the time of
purchase is in the possession of the Master Servicer or its bailee.
15. Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No terms of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified as
a result of application of the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
16. Lawful Assignment. No Receivable was 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 pursuant to transfers of the Securities. The Seller has not entered
into any agreement with any account debtor that prohibits, restricts or
conditions the assignment of any portion of the Receivables.
17. Good Title. No Receivable has been sold, transferred, assigned or
pledged by the Seller to any Person other than the Purchaser and the Issuer;
immediately prior to the conveyance of the Receivables to the Purchaser pursuant
to this Agreement or Subsequent Transfer Agreement, as applicable, the Seller
was the sole owner thereof and had good and indefeasible title thereto, free of
any Lien and, upon execution and delivery of this Agreement by the Seller, the
Purchaser shall have good and indefeasible title to and will be the sole owner
of such Receivables, free of any Lien. No Dealer has a participation in, or
other right to receive, proceeds of any Receivable. The Seller has not taken any
action to convey any right to any Person that would result in such Person having
a right to payments received under the related Insurance Policies or the related
Dealer Agreements,
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Dealer Assignments or Unaffiliated Originator Receivables Purchase Agreements or
to payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or
shall create a valid, binding and enforceable first priority security interest
in favor of the Seller, the Trust Collateral Agent or an Unaffiliated Originator
in the Financed Vehicle. The Lien Certificate and original certificate of title
for each Financed Vehicle show, or if a new or replacement Lien Certificate is
being applied for with respect to such Financed Vehicle the Lien Certificate
will be received within 180 days of the Closing Date or Subsequent Transfer
Date, as applicable, and will show the Seller, the Trust Collateral Agent or an
Unaffiliated Originator named as the original secured party under each
Receivable as the holder of a first priority security interest in such Financed
Vehicle. With respect to each Receivable for which the Lien Certificate has not
yet been returned from the Registrar of Titles, the Seller has received written
evidence from the related Dealer that such Lien Certificate showing the Seller,
the Trust Collateral Agent or an Unaffiliated Originator as first lienholder has
been applied for and (i) the Unaffiliated Originator's security interest has
been validly assigned to the Seller, pursuant to the Unaffiliated Originator
Receivables Purchase Agreement, if applicable and (ii) the Seller's security
interest has been validly assigned to the Purchaser pursuant to this Agreement.
Immediately after the sale, transfer and assignment thereof by the Seller to the
Purchaser and from the Purchaser to the Trust, each Receivable will be secured
by an enforceable and perfected first priority security interest in the Financed
Vehicle in favor of the Trustee as secured party, which security interest is
prior to all other Liens upon and security interests in such Financed Vehicle
which now exist or may hereafter arise or be created (except, as to priority,
for any lien for taxes, labor or materials affecting a Financed Vehicle arising
subsequent to the Cutoff Date). As of the related Cutoff Date there were no
Liens or claims for taxes, work, labor or materials affecting a Financed Vehicle
which are or may be Liens prior or equal to the Liens of the related Receivable.
If the Receivable was originated in a state in which a filing or recording is
required of the secured party to perfect a security interest in motor vehicles,
such filings or recordings have been duly made to show the Seller, the Trust
Collateral Agent or an Unaffiliated Originator as the Original Secured Party
under the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Trust a first priority
perfected lien on, or ownership interest in, the Receivables and the proceeds
thereof and the Other Conveyed Property have been made, taken or performed.
20. 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 the Receivable or otherwise to impair the rights of the Trust, the
Purchaser, the Insurer, the Trustee, the Trust Collateral Agent and the
Securityholders in any Receivable or the proceeds thereof.
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21. Receivable 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.
22. No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been asserted
or threatened with respect to any Receivable.
23. 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 59 days as of the Cut-Off Date and other than
payment delinquencies of more than 59 days which have been cured and which the
Obligor of such Receivable has had no further delinquency of more than 59 days),
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. As of the related Cutoff Date no
Financed Vehicle had been repossessed.
24. Insurance. At the time of origination of each Receivable, the
related Financed Vehicle is required to be covered by a comprehensive and
collision insurance policy (i) in an amount at least equal to the lesser of,
excluding any deductible, (a) its maximum insurable value or (b) the principal
amount due from the Obligor under the related Receivable, (ii) naming the Seller
or an Unaffiliated Originator and its successors and assigns as 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. Each Receivable requires the Obligor to maintain physical loss and
damage insurance, naming the Seller or an Unaffiliated Originator and its
successors and assigns as additional insured parties, and each Receivable
permits the holder thereof to obtain physical loss and damage insurance at the
expense of the Obligor if the Obligor fails to do so. No Financed Vehicle is
insured under a policy of Force-Placed Insurance on the related Cutoff Date.
25. Certain Characteristics of Initial Receivables. (i) Each Receivable
had a remaining maturity, as of the Cutoff Date, of at least 7 months but not
more than 60 months; (ii) each Receivable had an original maturity of at least
24 months but not more 72 months; (iii) each Receivable had an original
principal balance of at least $3,000 and not more than $70,000; (iv) each
Receivable had a principal balance as of the Cutoff Date of at least $500 and
not more than $70,000; (v) each Receivable has an Annual Percentage Rate of at
least 11.95% and not more than 30.00%; (vi) no Receivable was more than 59 days
past due as of the Cutoff Date; (vii) no funds have been advanced by the Seller,
the Master Servicer, any Unaffiliated Originator, any Dealer, or anyone acting
on behalf of any of them in order to cause any Receivable to qualify under
subclause (vi) of this clause 25; (viii) no Receivable has a final scheduled
payment date after June, 2003; (ix) the principal balance of each Receivable set
forth in the Schedule of Receivables is true and accurate as
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of the Cutoff Date and (x) as of the Cutoff Date, approximately 84.46% by the
aggregate principal balance of the Initial Receivables is attributable to loans
for the purchase of used financed vehicles.
B-6
EXHIBIT A
FORM OF SUBSEQUENT PURCHASE AGREEMENT
Transfer No. 1 of Subsequent Receivables, dated as of
___________________, pursuant to a Purchase Agreement (the "Purchase Agreement")
dated as of March 1, 1997, between Advanta Auto Finance Corporation, a Nevada
corporation (the "Seller") and Advanta Auto Receivables Corp. I, a Nevada
corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS pursuant to the Purchase Agreement, the Seller wishes
to convey the Subsequent Receivables to the Purchaser; and
WHEREAS, the Purchaser is willing to accept such conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, the Seller and the Purchaser hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein shall
have the meanings ascribed to them in the Purchase Agreement unless otherwise
defined herein.
"Subsequent Cutoff Date" shall mean, with respect to the
Subsequent Receivables conveyed hereby, __________________________.
"Subsequent Transfer Date" shall mean. with respect to the
Subsequent Receivables conveyed hereby, ________________________.
2. Schedule of Receivables. Annexed hereto is a
supplement to Schedule A to the Purchase Agreement listing the Receivables that
constitute the Subsequent Receivables to be conveyed pursuant to this Agreement
on the Subsequent Transfer Date.
3. Conveyance of Subsequent Receivables. In consideration of
the Purchaser's delivery to or upon the order of the Seller of
$_______________________, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as
expressly provided in the Purchase Agreement), all right, title and interest of
the Seller in and to:
(a) the Subsequent Receivables and all monies paid or payable
thereon, on and after the related Subsequent Cutoff Date (including
amounts due on or before
the Subsequent Cutoff Date but received by the Seller after the
Subsequent Cutoff Date);
(b) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Subsequent Receivables and any
other interest of the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with
respect to the Subsequent Receivables from claims on any physical
damage, credit life or disability insurance policies covering the
related Financed Vehicles or Obligors including rebating of premiums
relating to the Receivables, and any proceeds from the liquidation of
the Subsequent Receivables;
(d) all rights of the Seller against the Dealers or the
Unaffiliated Originators pursuant to Dealer Agreements; Dealer
Assignments; or Unaffiliated Originator Receivables Purchase
Agreements;
(e) the related Receivables Files and any and all other
documents that the Seller keeps on file in accordance with its
customary procedures relating to the Receivables, the Obligors or the
Financing Vehicles;
(f) the proceeds of any and all of the foregoing;
(g) all rights under any Service Contracts on the related
Financed Vehicles; and
(h) property (including the right to receive future Net
Liquidation Proceeds) that secures a Receivable and that has been
acquired by or on behalf of the Trust pursuant to liquidation of such
Receivables.
4. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as of the date of this Agreement
and as of the Subsequent Transfer Date that:
(a) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations attached as Schedule B
to the Purchase Agreement are true and correct.
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Nevada, with power and authority to own its properties and
to conduct its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell
A-2
the Subsequent Receivables and the Subsequent Other Conveyed Property
transferred to the Purchaser.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation 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 Seller's ability to transfer the
Subsequent Receivables and the Subsequent Other Conveyed Property to the
Purchaser pursuant to this Agreement, or the validity or enforceability of the
Subsequent Receivables and the Subsequent Other Conveyed Property or to perform
Seller's obligations hereunder and under the Seller's Related Documents.
(d) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; the Seller has full power and
authority to sell and assign the Subsequent Receivables and the Subsequent Other
Conveyed Property to be sold and assigned to and deposited with the Purchaser by
it and has duly authorized such sale and assignment to the Purchaser by all
necessary corporate action; and the execution, delivery and performance of this
Agreement and the Seller's Related Documents have been duly authorized by the
Seller by all necessary corporate action.
(e) Valid Sale, Binding Obligations. This Agreement effects a
valid sale, transfer and assignment of the Subsequent Receivables and the
Subsequent Other Conveyed Property, enforceable against the Seller and creditors
of and purchasers from the Seller; and this Agreement and the Seller's Related
Documents, when duly executed and delivered, shall constitute legal, valid and
binding obligations of the Seller enforceable in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other 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.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the fulfillment of
the terms of this Agreement and the Related Documents shall not conflict with,
result in any breach of any of the terms and provisions of or constitute (with
or without notice, lapse of time or both) a default under the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement, mortgage,
deed of trust or other instrument to which the Seller is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its properties.
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(g) 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 tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or any of the Related Documents, (B)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement or any of the Related Documents, (C) seeking any determination or
ruling that might materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents, or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of
the Seller is at Four Horsham Business Center, 000 Xxxxx Xxxx, Xxxxxxxx Xxxx,
Xxxxxxx, XX 00000.
(i) Principal Balance. The aggregate Principal Balance
of the Subsequent Receivables listed on the supplement to Schedule A annexed
hereto and conveyed to the Purchaser pursuant to this Agreement as of the
Subsequent Cutoff Date is $____________________.
(j) No Consents. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or authorization,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
(k) Approvals. All approvals, authorizations, consents, orders
or other actions of any person, corporation or other organization, or of any
court, governmental agency or body or official, required in connection with the
execution and delivery by the Seller of this Agreement and the consummation of
the transactions contemplated hereby or will be taken or obtained on or prior to
the Closing Date.
5. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date of this
Agreement and as of the Subsequent Transfer Date that:
Organization and Good Standing. Purchaser has been
duly organized and is validly existing and in good standing as a
corporation under the laws of the State of Nevada, with the power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently
conducted, and had at all relevant times, and has, full power,
authority and legal right to acquire and own the Receivables and the
Other Conveyed Property, and to transfer the Receivables and the Other
Conveyed Property to the Issuer pursuant to the Sale and Servicing
Agreement.
A-4
Due Qualification. Purchaser is duly qualified to
do business as a foreign corporation 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 Purchaser's
ability to acquire the Receivables or the Other Conveyed Property, and
to transfer the Receivables and the Other Conveyed Property to the
Issuer pursuant to the Sale and Servicing Agreement, or the validity or
enforceability of the Receivables and the Other Conveyed Property or to
perform Purchaser's obligations hereunder and under the Purchaser's
Related Documents.
Power and Authority. Purchaser has the power,
authority and legal right to execute and deliver this Agreement and to
carry out the terms hereof and to acquire the Receivables and the Other
Conveyed Property hereunder; and the execution, delivery and
performance of this Agreement and all of the documents required
pursuant hereto have been duly authorized by Purchaser by all necessary
action.
No Consent Required. Purchaser is not required to
obtain the consent of any other Person, or any consent, license,
approval or authorization or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery or performance of this Agreement and the Related
Documents, except for such as have been obtained, effected or made.
Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws and to general
equitable principles.
No Violation. The execution, delivery and
performance by Purchaser of this Agreement, the consummation of the
transactions contemplated by this Agreement and the Related Documents
and the fulfillment of the terms of this Agreement and the Related
Documents do not and will 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) a default under, the certificate of
incorporation or bylaws of Purchaser, or conflict with or breach any of
the terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement, mortgage,
deed of trust or other instrument to which Purchaser is a party or by
which Purchaser is bound or to which any of its properties are subject,
or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than the Sale and
Servicing Agreement and the Spread Account Agreement), or violate any
law, order, rule or regulation, applicable to Purchaser or its
properties, of any federal or state regulatory body, any court,
administrative agency,
A-5
or other governmental instrumentality having jurisdiction over
Purchaser or any of its properties.
No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of Purchaser, threatened
against Purchaser, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality having
jurisdiction over Purchaser or its properties: (i) asserting the
invalidity of this Agreement or any of the Related Documents, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Purchaser of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) that may adversely affect the federal or state income
tax attributes of, or seeking to impose any excise, franchise, transfer
or similar tax upon, the transfer and acquisition of the Receivables
and the Other Conveyed Property hereunder or the transfer of the
Receivables and the Other Conveyed Property to the Issuer pursuant to
the Sale and Servicing Agreement.
In the event of any breach of a representation and warranty
made by Purchaser hereunder, Seller covenants and agrees that it will not take
any action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes,
Certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust or similar vehicle formed by Purchaser, have been paid in
full. Seller and Purchaser agree that damages will not be an adequate remedy for
such breach and that this covenant may be specifically enforced by Purchaser,
Issuer or by the Trustee on behalf of the Noteholders and Owner Trustee on
behalf of the Certificateholders.
6. Conditions Precedent. The obligation of the Purchaser to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section 4 of this Agreement
and in Section 3.1 of the Purchase Agreement shall be true and correct as of the
date of this Agreement and as of the Subsequent Transfer Date.
(c) Additional Information. The Seller shall have delivered to
the Purchaser such information as was reasonably requested by the Purchaser to
satisfy itself as to (i) the accuracy of the representations and warranties set
forth in Section 4 of this Agreement and in Section 3.1 of the Purchase
Agreement and (ii) the satisfaction of the conditions set forth in this Section.
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7. Ratification of Agreement. As supplemented by this
Agreement, the Purchase Agreement is in all respects ratified and confirmed and
the Purchase Agreement as so supplemented by this Agreement shall be read, taken
and construed as one and the same instrument.
8. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument.
9. Conveyance of the Receivables and the Other Conveyed
Property to the Issuer. Seller acknowledges 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, to the Issuer
on the Subsequent Transfer Date. Seller acknowledges and consents to such
conveyance and pledge and waives any further notice thereof and covenants and
agrees that the representations and warranties of Seller contained in this
Agreement and the rights of Purchaser hereunder are intended to benefit the
Security Insurer, the Issuer, the Owner Trustee, the Trust Collateral Agent, the
Noteholders and the Certificateholders. In furtherance of the foregoing, Seller
covenants and agrees to perform its duties and obligations hereunder, in
accordance with the terms hereof for the benefit of the Insurer, the Issuer, the
Owner Trustee, the Trust Collateral Agent, the Noteholders and the
Certificateholders and that, notwithstanding anything to the contrary in this
Agreement, Seller shall be directly liable to the Issuer, the Owner Trustee, the
Trust Collateral Agent, the Noteholders and the Certificateholders
(notwithstanding any failure by the Servicer, the Backup Servicer or the
Purchaser to perform their respective duties and obligations hereunder or under
Related Documents) and that the Trust Collateral Agent may enforce the duties
and obligations of Seller under this Agreement against Seller for the benefit of
the Insurer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and
the Certificateholders.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Subsequent Purchase Agreement to be duly executed and delivered by their
respective duly authorized officers as of day and the year first above written.
ADVANTA AUTO FINANCE CORPORATION
as Seller
By: ___________________________
Name:
Title:
ADVANTA AUTO RECEIVABLES CORP. I
as Purchaser
By: ___________________________
Name:
Title:
Acknowledged and Accepted:
Bankers Trust Company
not in its individual
capacity but solely as
Trust Collateral Agent
By: ________________________________
Name:
Title:
