Exhibit 99.3
FORM OF RECEIVABLES PURCHASE AGREEMENT
between
USAA FEDERAL SAVINGS BANK
as Seller
and
USAA ACCEPTANCE, LLC
as Depositor
Dated as of _________, 200_
Table of Contents
Page
Article I
Interpretation
Section 1.01. Definitions and Usage.........................................1
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.....................................2
Section 2.02. The Closing...................................................2
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor...............3
Section 3.02. Representations and Warranties of the Seller..................4
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor.....................9
Section 4.02. Conditions to Obligation of the Seller.......................10
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and Interest......................11
Section 5.02. Other Liens or Interests.....................................12
Section 5.03. Costs and Expenses...........................................12
Section 5.04. Hold Harmless................................................12
Article VI
Indemnification
Section 6.01. Indemnification..............................................12
Section 6.02. Contribution.................................................15
Article VII
Miscellaneous Provisions
Section 7.01. Obligations of Seller........................................15
Section 7.02. Repurchase Events............................................15
Section 7.03. Depositor Assignment of Repurchased Receivables..............15
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Section 7.04. Transfer to the Issuer.......................................15
Section 7.05. Amendment....................................................16
Section 7.06. Waivers......................................................16
Section 7.07. Notices......................................................16
Section 7.08. Costs and Expenses...........................................17
Section 7.09. Representations of the Seller and the Depositor..............17
Section 7.10. Confidential Information.....................................17
Section 7.11. Headings and Cross-References................................17
Section 7.12. GOVERNING LAW................................................17
Section 7.13. Counterparts.................................................17
Section 7.14. Third Party Beneficiary......................................18
Section 7.15. No Proceedings...............................................18
Exhibit A Matters Addressed in Opinion of Seller's Counsel
Schedule A Schedule of Receivables
Schedule B Location of Receivable Files
Appendix A Definitions and Usage
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RECEIVABLES PURCHASE AGREEMENT dated as of _________, 200_ (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), between USAA FEDERAL SAVINGS BANK, a federally chartered savings
association, as seller (in such capacity, together with its permitted
successors and permitted assigns in such capacity, the "Seller") and USAA
ACCEPTANCE, LLC, a Delaware limited liability company, as depositor (together
with its successors and permitted assigns, the "Depositor").
RECITALS
WHEREAS, the Depositor desires to purchase a portfolio of receivables and
related property consisting of motor vehicle installment loan contracts
originated by the Seller in the ordinary course of its business;
WHEREAS, the Seller and the Depositor wish to set forth the terms
pursuant to which such portfolio of receivables and related property are to be
sold by the Seller to the Depositor; and
WHEREAS, the Depositor intends, concurrently with its purchase hereunder,
to convey all of its right, title and interest in and to all of such portfolio
of receivables and related property to USAA Auto Owner Trust 200_-[ ], a
Delaware statutory trust (the "Issuer") pursuant to a Sale and Servicing
Agreement dated as of _________, 200_ (the "Sale and Servicing Agreement"), by
and among the Issuer, the Depositor, USAA Federal Savings Bank, as Seller and
Servicer, and the Issuer intends to pledge all of its right, title and
interest in and to such portfolio of receivables and related property to
__________, as Indenture Trustee (the "Indenture Trustee") pursuant to the
Indenture dated as of _________, 200_ (the "Indenture"), by and between the
Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
Article I
Interpretation
Section 1.01. Definitions and Usage. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon the
order of the Seller on the Closing Date of $_________________ (the "Purchase
Price"), the Seller does hereby irrevocably sell, transfer, assign, set over
and otherwise convey to the Depositor, without recourse (subject to the
obligations of the Seller set forth herein) all right, title, and interest of
the Seller, whether now or hereinafter acquired, in and to the Trust Property.
(b) The transfer, assignment and conveyance made hereunder shall not
constitute and is not intended to result in an assumption by the Depositor of
any obligation of the Seller to the Obligors or any other Person in connection
with the Receivables and the other Trust Property or any agreement, document
or instrument related thereto.
(c) The Seller and the Depositor intend that the transfer of assets
by the Seller to the Depositor pursuant to this Agreement be a sale of the
ownership interest in such assets to the Depositor, rather than the mere
granting of a security interest to secure a borrowing. In the event, however,
that such transfer is deemed not to be a sale but to be of a mere security
interest to secure a borrowing, the Seller shall be deemed to have hereby
granted to the Depositor a security interest in all accounts, money, chattel
paper, securities, instruments, documents, deposit accounts, certificates of
deposit, letters of credit, advices of credit, banker's acceptances,
uncertificated securities, general intangibles, contract rights, goods and
other property consisting of, arising from or relating to such Trust Property,
which security interest shall be perfected and of first priority, and this
Agreement shall constitute a security agreement under applicable law. Pursuant
to the Sale and Servicing Agreement and Section 7.04 hereof, the Depositor may
sell, transfer and assign to the Issuer (i) all or any portion of the assets
assigned to the Depositor hereunder, (ii) all or any portion of the
Depositor's rights against the Seller under this Agreement and (iii) all
proceeds thereof. Such assignment may be made by the Depositor with or without
an assignment by the Depositor of its rights under this Agreement, and without
further notice to or acknowledgement from the Seller. The Seller waives, to
the extent permitted under applicable law, all claims, causes of action and
remedies, whether legal or equitable (including any right of setoff), against
the Depositor or any assignee of the Depositor relating to such action by the
Depositor in connection with the transactions contemplated by the Sale and
Servicing Agreement.
Section 2.02. The Closing. The sale and purchase of the Trust Property
shall take place at a closing at the office of Sidley Xxxxxx Xxxxx & Xxxx LLP,
New York, New York on the Closing Date, simultaneously with the closing under
(a) the Sale and Servicing Agreement, (b) the Indenture and (c) the Trust
Agreement.
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Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Seller and the
Indenture Trustee as of the date hereof and the Transfer Date:
(a) Organization and Good Standing. The Depositor is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, with all requisite power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted.
(b) Due Qualification. The Depositor is duly qualified to do
business as a foreign limited liability company in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions where the
failure to do so would materially and adversely affect the Depositor's ability
to acquire the Receivables or the other Trust Property or the validity or
enforceability of the Receivables or the other Trust Property.
(c) Power and Authority. The Depositor has all the limited liability
company power and authority to execute, deliver and perform this Agreement and
the other Basic Documents to which it is a party and to carry out their
respective terms; the Depositor has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Issuer,
and the Depositor shall have duly authorized such sale and assignment to the
Issuer by all necessary limited liability company action; and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which the Depositor is a party have been duly authorized by the Depositor by
all necessary limited liability company action.
(d) Binding Obligation. This Agreement and the other Basic Documents
to which the Depositor is a party, when duly executed and delivered by the
other parties hereto and thereto, shall constitute legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
to general principles of equity (whether applied in a proceeding at law or in
equity).
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
the limited liability company agreement of the Depositor, or any indenture,
agreement or other instrument to which the Depositor is a party or by which it
is bound, or violate any law, rules or regulation applicable to the Depositor
of any court or federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge, threatened against the Depositor
before any court, regulatory body,
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administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity
of this Agreement or any other Basic Document to which the Depositor is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document to which the
Depositor is a party or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement or any
other Basic Document to which the Depositor is a party.
(g) No Consents. The Depositor is not required to obtain the consent
of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
Section 3.02. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants as follows to the
Depositor and the Indenture Trustee as of the date hereof and as of the
Transfer Date:
(i) Organization and Good Standing. The Seller is a
federally chartered savings association duly organized and validly
existing as a banking institution under the laws of the United
States and continues to hold a valid certificate to do business as
such, and has the power to own its assets and to transact the
business in which it is currently engaged. The Seller is duly
authorized to transact business and has obtained all necessary
licenses and approvals, and is in good standing in each jurisdiction
in which the character of the business transacted by it or any
properties owned or leased by it requires such authorization.
(ii) Power and Authority. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and
all of the transactions contemplated under this Agreement and the
other Basic Documents to which the Seller is a party, and has taken
all necessary action to authorize the execution, delivery and
performance of this Agreement and the other Basic Documents to which
the Seller is a party. When executed and delivered, this Agreement
and the other Basic Documents to which the Seller is a party will
constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies and except
as enforcement of such terms may be limited by receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally.
(iii) No Violation. The execution, delivery and
performance by the Seller of this Agreement and the other Basic
Documents to which the Seller is a party will not violate any
provision of any existing state, federal or, to the best knowledge
of the Seller, local law or regulation or any order or decree of any
court applicable to the Seller or any provision of the articles of
association or incorporation or the bylaws of the Seller, or
constitute a breach of any mortgage, indenture, contract or other
agreement to
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which the Seller is a party or by which the Seller may be bound or
result in the creation or imposition of any lien upon any of the
Seller's properties pursuant to any such mortgage, indenture,
contract or other agreement (other than this Agreement).
(iv) No Proceedings. There are no proceedings or
investigations pending or, to the --------------- Seller's
knowledge, threatened against the Seller before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any
other Basic Document to which the Seller is a party, (ii) seeking to
prevent the consummation of any of the transactions contemplated by
this Agreement or any other Basic Document to which the Seller is a
party or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement or any other Basic Document to which the Seller is a
party.
(v) Chief Executive Office. The chief executive office of
the Seller is located at 00000 XxXxxxxxx Xxxxxxx, Xxx Xxxxxxx, Xxxxx
00000.
(vi) No Consents. The Seller is not required to obtain the
consent of any other party or any consent, license, approval,
registration, authorization, or declaration of or with any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity, or enforceability of
this Agreement or any other Basic Document to which it is a party
that has not already been obtained.
(vii) No Notice. The Seller represents and warrants that
it acquired title to the Receivables and the other Trust Property in
good faith, without notice of any adverse claim.
(viii) Bulk Transfer. The Seller represents and warrants
that the transfer, assignment and conveyance of the Receivables and
the other Trust Property by the Seller pursuant to this Agreement
are not subject to the bulk transfer laws or any similar statutory
provisions in effect in any applicable jurisdiction.
(ix) Seller Information. No certificate of an officer,
statement or document furnished in writing or report delivered
pursuant to the terms hereof by the Seller contains any untrue
statement of a material fact or omits to state any material fact
necessary to make the certificate, statement, document or report not
misleading.
(x) Ordinary Course. The transactions contemplated by this
Agreement and the other Basic Documents to which the Seller is a
party are in the ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the
Seller be made insolvent by the transfer of the Trust Property, nor
does the Seller anticipate any pending insolvency.
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(xii) Legal Compliance. The Seller is not in violation of,
and the execution and delivery by the Seller of this Agreement and
the other Basic Documents to which the Seller is a party and its
performance and compliance with the terms of this Agreement and the
other Basic Documents to which the Seller is a party will not
constitute a violation with respect to, any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would
materially and adversely affect the Seller's condition (financial or
otherwise) or operations or any of the Seller's properties or
materially and adversely affect the performance of any of its duties
under the Basic Documents.
(xiii) Creditors. The Seller did not sell the Receivables
or the other Trust Property to the Depositor with any intent to
hinder, delay or defraud any of its creditors.
(b) The Seller makes the following representations and warranties
with respect to the Receivables, on which the Depositor relies in accepting
the Receivables and in transferring the Receivables to the Issuer under the
Sale and Servicing Agreement, and on which the Issuer relies in pledging the
same to the Indenture Trustee. Such representations and warranties speak as of
the execution and delivery of this Agreement and as of the Transfer Date, but
shall survive the sale, transfer and assignment of the Receivables to the
Depositor, the subsequent sale, transfer and assignment of the Receivables by
the Depositor to the Issuer pursuant to the Sale and Servicing Agreement and
the pledge of the Receivables by the Issuer to the Indenture Trustee pursuant
to the Indenture.
(i) Schedule of Receivables. The information set forth in
Schedule A to this Agreement with respect to each Receivable is true
and correct in all material respects, and no selection procedures
adverse to the Securityholders have been used in selecting the
Receivables from all receivables owned by the Seller which meet the
selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other
than the Depositor.
(iii) Good Title. Immediately prior to the transfer and
assignment of the Receivables to the Depositor herein contemplated,
the Seller had good and marketable title to each Receivable free and
clear of all Liens and rights of others; and, immediately upon the
transfer thereof, the Depositor, has either (i) good and marketable
title to each Receivable, free and clear of all of all Liens and
rights of others, and the transfer has been perfected under
applicable law or (ii) a first priority perfected security interest
in each Receivable.
(iv) Receivable Files. The Receivable Files shall be kept
at one or more of the locations specified in Schedule B hereto.
(v) Characteristics of Receivables. Each Receivable (a)
has been originated for the retail financing of a Financed Vehicle
by an Obligor located in one of the States of the United States or
the District of Columbia; (b) contains customary and
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enforceable provisions such that the rights and remedies of the
holder thereof are adequate for realization against the collateral
of the benefits of the security; [and (c) provides for fully
amortizing level scheduled monthly payments (provided that the
payment in the last month in the life of the Receivable may be
different from the level scheduled payment) and for accrual of
interest at a fixed rate according to the simple interest method.]
(vi) Compliance with Law. Each Receivable and each sale of
the related Financed Vehicle complied at the time it was originated
or made, and complies on and after the Cut-off Date, in all material
respects with all requirements of applicable federal, state, and
local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Reporting Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, Federal Reserve Board Regulations B and
Z, state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and any other consumer credit, equal
opportunity, and disclosure laws applicable to such Receivable and
sale.
(vii) Binding Obligation. Each Receivable constitutes the
legal, valid, and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in all material respects
in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization, liquidation and
other similar laws and equitable principles relating to or affecting
the enforcement of creditors' rights.
(viii) No Government Obligor. No Receivable is due from
the United States of America or any state or from any agency,
department, instrumentality or political subdivision of the United
States of America or any state or local municipality and no
Receivable is due from a business except to the extent that such
receivable has a personal guaranty.
(ix) Security Interest in Financed Vehicle. Immediately
prior to the sale and assignment thereof to the Depositor as herein
contemplated, each Receivable was secured by a validly perfected
first priority security interest in the Financed Vehicle in favor of
the Seller as secured party or all necessary and appropriate action
with respect to such Receivable had been taken to perfect a first
priority security interest in the related Financed Vehicle in favor
of the Seller as secured party, which security interest is
assignable and has been so assigned by the Seller to the Depositor.
(x) Receivables in Force. No Receivable has been
satisfied, subordinated, or rescinded, nor has any Financed Vehicle
been released from the Lien granted by the related Receivable in
whole or in part.
(xi) No Waiver. No provision of a Receivable has been
waived in such a manner that such Receivable fails either to meet
all of the representations and warranties made by the Seller herein
with respect thereto pursuant to this Section 3.02.
(xii) No Amendments. No Receivable has been amended except
pursuant to instruments included in the Receivable Files and no such
amendment has
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caused such Receivable either to fail to meet all of the
representations and warranties made by the Seller herein with
respect thereto pursuant to this Section 3.02.
(xiii) No Defenses. As of the Cut-off Date, there are no
rights of rescission, setoff, counterclaim, or defense, and the
Seller has no knowledge of the same being asserted or threatened,
with respect to any Receivable.
(xiv) No Liens. As of the Cut-off Date, the Seller has no
knowledge of any Liens or claims that have been filed, including
Liens for work, labor, materials or unpaid taxes relating to a
Financed Vehicle, that would be Liens prior to, or equal or
coordinate with, the Lien granted by the Receivable.
(xv) No Default. Except for payment defaults continuing
for a period of not more than thirty (30) days as of the Cut-off
Date, the Seller has no knowledge that a default, breach, violation,
or event permitting acceleration under the terms of any Receivable
exists; the Seller has no knowledge that a continuing condition that
with notice or lapse of time would constitute a default, breach,
violation, or event permitting acceleration under the terms of any
Receivable exists; and the Seller has not waived any of the
foregoing.
(xvi) Insurance. Each Receivable requires that the Obligor
thereunder obtain comprehensive and collision insurance covering the
Financed Vehicle.
(xvii) Lawful Assignment. No Receivable has been
originated in, or is subject to the laws of, any jurisdiction under
which the sale, transfer, and assignment of such Receivable under
this Agreement is unlawful, void or voidable.
(xviii) All Filings Made. No filings (other than UCC
filings which have been made) or other actions are necessary in any
jurisdiction to give the Issuer a first priority perfected security
interest in the Receivables and to give the Indenture Trustee a
first priority perfected security interest in the Receivables have
been made or will be made at the Closing Date.
(xix) One Original. With respect to any Receivable for
which an original executed copy exists, there is no more than one
original executed copy of such Receivable which, immediately prior
to the delivery thereof to the Servicer, as custodian for the
Indenture Trustee, was in the possession of the Seller.
(xx) Security. Each Receivable is secured by a new or used
automobile or light-duty truck.
(xxi) Maturity of Receivables. Each Receivable has a
remaining maturity, as of the Cut-off Date, of not less than 6
months nor greater than 72 months and, (i) with respect to
Receivables secured by new Financed Vehicles, an original maturity
of at least 12 months and not more than 72 months and (ii) with
respect to Receivables secured by used Financed Vehicles, an
original maturity of at least 9 months
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and not more than 60 months. No Receivable has a scheduled maturity
later than _________, 200__.
(xxii) Annual Percentage Rate. Each Receivable is a
fully-amortizing fixed rate simple interest contract that provides
for level scheduled monthly payments (except for the last payment,
which may be minimally different from the level payments) over its
respective remaining term, and is not secured by any interest in
real estate, and has not been identified on the computer files of
the Seller as relating to Obligors who have requested a reduction in
the periodic finance charges, as of the Cut-off Date, by application
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(xxiii) No Repossessions. Each Receivable is secured by a
Financed Vehicle that, as of the Cut-off Date, has not been
repossessed without reinstatement of such Receivable.
(xxiv) Obligor Not Subject to Bankruptcy Proceedings. Each
Receivable has been entered into by an Obligor who has not been
identified on the computer files of the Seller as being a debtor in
any bankruptcy proceeding as of the Cut-off Date.
(xxv) No Overdue Payments. No Receivable has any payment
that is more than 30 days past due as of the Cut-off Date.
(xxvi) Tangible Chattel Paper. The Receivables constitute
"tangible chattel paper" within the meaning of UCC Section 9-102.
(xxvii) Remaining Principal Balance. Each Receivable had a
remaining principal balance, as of the Cut-off Date, of at least
$500.
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor. The obligation
of the Depositor to purchase the Receivables is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Transfer Date with the same effect as if then made, and the
Seller shall have performed all obligations to be performed by it hereunder on
or prior to the Transfer Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on
or prior to the Transfer Date, indicate in its computer files that the
Receivables have been sold to the Depositor pursuant to this Agreement and
deliver to the Depositor the Schedule of Receivables, certified by the
Seller's President, Vice President or Treasurer to be true, correct and
complete.
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(c) Documents to be Delivered by the Seller on the Transfer Date:
(i) Evidence of UCC Filing. On or prior to the Closing
Date, the Seller shall record and file, at its own expense, a UCC-1
financing statement in the State of Texas, naming the Seller as
seller, and naming the Depositor as secured party, describing the
Receivables and the other assets assigned to the Depositor pursuant
to Section 2.01, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of the Receivables and such
other assets to the Depositor. The Seller shall deliver to the
Depositor a file-stamped copy or other evidence satisfactory to the
Depositor of such filing on or prior to the Transfer Date.
(ii) Opinions of Seller's Counsel. On or prior to the
Closing Date, the Depositor shall have received the opinions of
counsel to the Seller, in form and substance satisfactory to the
Depositor, as to the matters set forth in Exhibit A hereto and such
other matters as the Depositor has heretofore requested or may
reasonably request.
(iii) Other Documents. Such other documents as the
Depositor may reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale
and Servicing Agreement, the Indenture and the Trust Agreement to be
consummated on the Transfer Date shall be consummated on such date.
Section 4.02. Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the
Transfer Date with the same effect as if then made, and the Depositor shall
have performed all obligations to be performed by it hereunder on or prior to
the Transfer Date.
(b) Receivables Purchase Price. On the Transfer Date, the Depositor
shall have delivered to the Seller the purchase price specified in Section
2.01 hereof.
(c) Opinion of Counsel. The Depositor shall have furnished to the
Seller an Opinion of Counsel, dated the Closing Date, to the effect that:
(i) the Depositor has been duly formed and is validly
existing in good standing as a limited liability company under the
laws of the State of Delaware and has all necessary limited
liability company power and authority to execute, deliver and
perform its obligations under the Underwriting Agreement, the Trust
Agreement, the Sale and Servicing Agreement and this Agreement (the
"Transaction Documents");
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(ii) each of the Transaction Documents have been duly
authorized, executed and delivered by the Depositor;
(iii) Neither the execution, delivery and performance by
the Depositor of the Transaction Documents, nor the consummation by
the Depositor of any of the transactions contemplated thereby,
requires the consent or approval of, the withholding of objection on
the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of,
any governmental authority or agency of the State of Delaware, other
than the filing of UCC-1 financing statements relating to the grant
of the security interest in the Receivables and the other Trust
Property by USAA Federal Savings Bank as the sole equity member of
the Depositor, to the Depositor and by the Depositor to the Trust
with the Secretary of State, and the filing of the LLC Certificate
and the Certificate of Trust of the Trust with the Secretary of
State; and
(iv) Neither the execution, delivery and performance by
the Depositor of the Transaction Documents, nor the consummation by
the Depositor of the transactions contemplated thereby, violates the
limited liability company agreement of the Depositor, dated as of
September 27, 2002 or any law, rule or regulation of the State of
Delaware applicable to the Depositor.
(d) Other Transactions. The transactions contemplated by the Sale
and Servicing Agreement, the Indenture and the Trust Agreement to be
consummated on the Transfer Date shall be consummated on such date.
Article V
Covenants of the Seller
The Seller agrees with the Depositor and the Indenture Trustee as
follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause at its own expense all financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Seller, the Depositor, the Trust
and the Indenture Trustee, respectively, in and to the Receivables and the
other property included in the Trust Estate to be promptly filed and at all
times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Depositor hereunder, the Trust under the Sale and
Servicing Agreement and the Indenture Trustee under the Indenture in and to
the Receivables and the other property included in the Trust Property. The
Seller shall deliver to the Depositor and the Indenture Trustee file stamped
copies of, or filing receipts for, any document recorded, registered or filed
as provided above, as soon as available following such recordation,
registration or filing. The Depositor shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this paragraph.
11
(b) Name Change. If the Seller makes any change in its name,
identity or corporate structure that would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the applicable provisions of the UCC or any title statute or
if the Seller changes the jurisdiction under whose laws it is formed, the
Seller shall give the Depositor, the Indenture Trustee and the Owner Trustee
written notice thereof at least 45 days prior to such change and shall
promptly file such financing statements or amendments as may be necessary to
continue the perfection of the Depositor's interest in the property conveyed
pursuant to Section 2.01.
Section 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Seller shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Seller shall defend the right, title and interest of the Depositor,
the Trust and the Indenture Trustee in, to and under the Receivables against
all claims of third parties claiming through or under the Seller.
Section 5.03. Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all
third parties claiming through or under the Seller, of the Depositor's, the
Issuer's and the Indenture Trustee's right, title and interest in and to the
Receivables and the other property included in the Trust Property.
Section 5.04. Hold Harmless. The Seller shall protect, defend, indemnify
and hold the Depositor, the Issuer and their respective assigns and their
employees, officers, directors and agents harmless from and against all
losses, liabilities, claims and damages of every kind and character, including
any legal or other expenses reasonably incurred, as incurred, resulting from
or relating to or arising out of (i) the inaccuracy, nonfulfillment or breach
of any representation, warranty, covenant or agreement made by the Seller in
this Agreement, (ii) any legal action, including, without limitation, any
counterclaim, that has either been settled by the litigants or has proceeded
to judgment by a court of competent jurisdiction, in either case to the extent
it is based upon alleged facts that, if true, would constitute a breach of any
representation, warranty, covenant or agreement made by the Seller in this
Agreement, (iii) any actions or omissions of the Seller occurring prior to the
Transfer Date with respect to any of the Receivables or Financed Vehicles or
(iv) any failure of a Receivable to be originated in compliance with all
applicable requirements of law. These indemnity obligations shall be in
addition to any obligation that the Seller may otherwise have.
Article VI
Indemnification
Section 6.01. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Depositor,
each of its respective directors, each officer of the Depositor who signed the
Registration Statement, and each person or entity who controls the Depositor
or any such person, within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint
12
and several, to which the Depositor, or any such person or entity may become
subject, under the Securities Act or otherwise, and will reimburse the
Depositor, and each such controlling person for any legal or other expenses
reasonably incurred by the Depositor or such controlling person in connection
with investigating or defending any such loss, claims, damages or liabilities
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact made by the Seller contained in the Prospectus
Supplement or any amendment or supplement to the Prospectus Supplement or the
omission or the alleged omission to state therein a material fact necessary in
order to make the statements in the Prospectus Supplement or any amendment or
supplement to the Prospectus Supplement, in the light of the circumstance
under which they were made, not misleading, but, in each case, only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission relates to the information contained in the Prospectus
Supplement under the captions: "SUMMARY OF TERMS OF THE SECURITIES -
Composition of the Receivables"; "RISK FACTORS"; and "THE RECEIVABLES POOL";
and in the Base Prospectus under the caption "THE BANK'S PORTFOLIO OF MOTOR
VEHICLE LOANS" (such information, the "Seller Information"). This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have to the Depositor or any Affiliate thereof pursuant to Section 5.04 of
this Agreement or otherwise.
(b) The Depositor agrees to indemnify and hold harmless the Seller
and each Person who controls the Seller within the meaning of Section 15 of
the Securities Act against any and all losses, claims, damages or liabilities,
joint and several, to which the Seller, or any such person or entity may
become subject, under the Securities Act or otherwise, and will reimburse the
Seller and each such controlling Person for any legal or other expenses
reasonably incurred by the Seller or such controlling Person in connection
with investigating or defending any such losses, claims, damages or
liabilities insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of material fact contained in the Registration
Statement or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or the Prospectus or any amendment or supplement to the
Prospectus Supplement or the Prospectus or the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements in the Prospectus Supplement or the Prospectus or any amendment or
supplement to the Prospectus Supplement, in the light of the circumstances
under which they were made, not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to the information contained in the Prospectus Supplement or the
Prospectus other than the Seller Information. This indemnity agreement will be
in addition to any liability which the Depositor may otherwise have.
(c) Promptly after receipt by any indemnified party under this
Article VI of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Article VI, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability
13
which it may have under this Article VI except to the extent it has been
materially prejudiced by such failure; provided, further, that the failure to
notify any indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Article VI.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Article VI for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
appropriate for such indemnified party to employ separate counsel; or (iii)
the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party, it being understood,
however, the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties, which firm shall be designated in writing by the Depositor, if the
indemnified parties under this Article VI consist of the Depositor, or by the
Seller, if the indemnified parties under this Article VI consist of the
Seller.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 6.01(a) and (b), shall use its commercially reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding.
14
Section 6.02. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Article VI is for any reason held to be unenforceable although applicable
in accordance with its terms, the Seller, on the one hand, and the Depositor,
on the other, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Seller and the Depositor in such proportions as shall be
appropriate to reflect the relative benefits received by the Seller on the one
hand and the Depositor on the other from the sale of the Receivables such that
the Depositor is responsible for that portion represented by the underwriting
discount set forth on the cover page of the Prospectus Supplement, and the
Seller shall be responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
6.02, each Person, if any, who controls the Depositor within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
the Depositor and each Person, if any, who controls the Seller within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Seller. Notwithstanding anything in this Section 6.02 to
the contrary, the Depositor shall not be required to contribute an amount in
excess of the amount of the underwriting discount appearing on the cover page
of the Prospectus Supplement.
Article VII
Miscellaneous Provisions
Section 7.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Receivable.
Section 7.02. Repurchase Events. The Seller hereby covenants and agrees
with the Depositor for the benefit of the Depositor, the Indenture Trustee,
the Issuer, the Owner Trustee, the Certificateholders and the Noteholders that
the occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.02(b) that materially and adversely affects
the interests of the Issuer, the Indenture Trustee, the Owner Trustee, the
Certificateholders or the Noteholders in any Receivable, without regard to any
limitation set forth in such representation or warranty concerning the
knowledge of the Seller as to the facts stated therein, shall constitute an
event obligating the Seller to repurchase the Receivables to which such
failure or breach is applicable (each, a "Repurchase Event"), at the Purchase
Amount, from the Depositor, unless any such failure or breach shall have been
cured by the last day of the first Collection Period commencing after the
discovery or notice thereof by or to the Seller or the Servicer.
Section 7.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Seller all of the Depositor's right, title and interest in
and to such Receivables and all security and documents relating thereto.
Section 7.04. Transfer to the Issuer. The Seller acknowledges and agrees
that (1) the Depositor will, pursuant to the Sale and Servicing Agreement,
transfer and assign the
15
Receivables and assign its rights under this Agreement with respect thereto to
the Issuer and, pursuant to the Indenture, the Issuer will pledge the
Receivables to the Indenture Trustee, and (2) the representations and
warranties contained in this Agreement and the rights of the Depositor under
this Agreement, including under Section 7.02, are intended to benefit the
Issuer, the Indenture Trustee, the Noteholders and the Certificateholder. The
Seller hereby consents to such transfers and assignments and agrees that
enforcement of a right or remedy hereunder by the Indenture Trustee, the Owner
Trustee or the Issuer shall have the same force and effect as if the right or
remedy had been enforced or executed by the Depositor.
Section 7.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, but without the consent of
the Noteholders or the Certificateholders, by a written amendment duly
executed and delivered by the Seller and the Depositor, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or Certificateholders; provided that such amendment shall not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or Certificateholder; provided further, that such
action shall be deemed not to adversely affect in any material respect the
interests of any Noteholder or Certificateholder and no Opinion of Counsel to
that effect shall be required if the person requesting the amendment obtains a
letter from the Rating Agencies stating that the amendment would not result in
the downgrading or withdrawal of the ratings then assigned to the Notes and
the Certificates. This Agreement may also be amended by the Seller and the
Depositor, with the prior written notice to the Rating Agencies and the prior
written consent of (a) the Holders of Notes evidencing at least a majority of
(i) the Outstanding principal amount of the Class [ ] Notes, (ii) the
Outstanding principal amount of the Class [ ] Notes, (iiii) the Outstanding
principal amount of the Class [ ] Notes, (iv) the Outstanding principal amount
of the Class [ ] Notes and (b) the Certificateholders of Certificates
evidencing at least a majority of the Certificate Balance (excluding, for
purposes of this Section 7.05, Certificates held by the Seller, the Depositor
or any of their respective Affiliates) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made for the benefit of any Noteholders or
Certificateholders or (ii) reduce the aforesaid majority requirement that is
required to consent to any such amendment, without the consent of the Holders
of all the outstanding Notes and Certificates.
Section 7.06. Waivers. No failure or delay on the part of the Depositor,
the Issuer or the Indenture Trustee in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
Section 7.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, faxed and followed by
first class mail, or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Depositor, to 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000,
16
Attention: Vice President, Legal Counsel; (b) in the case of the Servicer,
Administrator and Custodian, to 00000 XxXxxxxxx Xxxxxxx, Xxx Xxxxxxx, Xxxxx
00000, Attention: Xxxx Broker, Vice President, (c) in the case of the Seller,
00000 XxXxxxxxx Xxxxxxx, Xxx Xxxxxxx, Xxxxx 00000, Attention: Xxxx Broker,
Vice President; (d) in the case of the Issuer or the Owner Trustee, at the
Corporate Trust Office (as defined in the Trust Agreement); [(e) in the case of
Xxxxx'x Investors Service, Inc., at the following address: Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and (f) in the case of Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., at the following address: Standard &
Poor's Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Surveillance Department]; or, as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
Section 7.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, in connection with the perfection of the Depositor's, the Issuer's
and the Indenture Trustee's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder as
contemplated by the Basic Documents.
Section 7.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section
2.02 and the transfers and assignments referred to in Section 7.04.
Section 7.10. Confidential Information. The Depositor agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors
or any other personally identifiable information of an Obligor, except in
connection with the enforcement of the Depositor's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement or any other Basic
Document, or as required by any of the foregoing or by law.
Section 7.11. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning
or interpretation of any provision of this Agreement. References in this
Agreement to section names or numbers are to such Sections of this Agreement.
Section 7.12. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
17
Section 7.14. Third Party Beneficiary. The Indenture Trustee is an
express third party beneficiary of this Agreement and shall be entitled to
enforce the provisions of this Agreement as if it were a party hereto.
Section 7.15. No Proceedings. So long as this Agreement is in effect, and
for one year plus one day following its termination, each of the Seller and
the Depositor agrees that it will not file any involuntary petition or
otherwise institute any bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy law or similar law against the Trust.
18
IN WITNESS WHEREOF, the parties hereto have caused this Receivables
Purchase Agreement to be executed by their respective duly authorized officers
as of the date and year first above written.
USAA FEDERAL SAVINGS BANK, as Seller
By:
----------------------------------------
Name:
Title:
USAA ACCEPTANCE, LLC, as Depositor
By:
----------------------------------------
Name:
Title:
EXHIBIT A
MATTERS ADDRESSED IN OPINION OF SELLER'S COUNSEL
[As set forth in Section 6(k), Section 6(m) and Section 6(n) of the
Underwriting Agreement.]
A-1
SCHEDULE A
Schedule of Receivables
[On file with the Indenture Trustee]
S-A-1
SCHEDULE B
Location of Receivable Files
c/o USAA Federal Savings Bank
00000 XxXxxxxxx Xxxxxxx
Xxx Xxxxxxx, XX 00000
S-B-1
APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1
