EXHIBIT 99.3
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EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
between
USAA FEDERAL SAVINGS BANK
as Seller
and
USAA ACCEPTANCE, LLC
as Depositor
Dated as of February 1, 2006
Table of Contents
Page
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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..............................................................13
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..............................16
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Section 7.04. Transfer to the Issuer.......................................................16
Section 7.05. Amendment....................................................................16
Section 7.06. Waivers......................................................................17
Section 7.07. Notices......................................................................17
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.................................................................18
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-1 Location of Receivable Files
Schedule B-2 Location of Lien Certificates
Appendix A Definitions and Usage
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RECEIVABLES PURCHASE AGREEMENT dated as of February 1, 2006 (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
2006-1, a Delaware statutory trust (the "Issuer") pursuant to a Sale and
Servicing Agreement dated as of February 1, 2006 (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 JPMorgan Chase Bank, National Association, as Indenture Trustee
(the "Indenture Trustee") pursuant to the Indenture dated as of February 22,
2006 (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 $1,204,494,677 (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 the grant of a
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 Austin 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-1 hereto;
provided, that the Lien Certificates shall be kept at one or more of
the locations specified in Schedule B-2 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
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the States of the United States or the District of Columbia; (b)
contains customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization against
the collateral of the benefits of the security; and (c) provides for
fully amortizing level scheduled monthly or semi-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.
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(xii) No Amendments. No Receivable has been amended
except pursuant to instruments included in the Receivable Files and no
such amendment has 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 will be made at the Closing Date) 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.
(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, does not have any
marks or notations indicating that it has been pledged, assigned or
otherwise conveyed to any Person other than the Seller and 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
and not more than 72 months
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and an original maturity of at not less than 9 months and not more
than 72 months. No Receivable has a scheduled maturity later than
April 1, 2012.
(xxii) Annual Percentage Rate. Each Receivable is a
fully-amortizing fixed rate simple interest contract that provides for
level scheduled monthly or semi-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.
(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
$800.00.
(xxviii) Filing Statement Language. The financing
statements referenced in paragraph (xviii) above, will contain a
statement to the following effect "A purchase of or security interest
in an collateral described in this financing statement will violate
the rights of the Secured Party".
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
amended and restated limited liability company agreement of the
Depositor, dated as of July 8, 2004 and amended by an amendment dated
as of November 12, 2004 and as further amended by an amendment dated
as of September 30, 2005, 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
11
with the Seller in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of
this paragraph.
(b) Name Change. If the Seller makes any change in its name,
identity 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.
12
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 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 Preliminary
Prospectus Supplement or Prospectus Supplement or any amendment or supplement
to the Preliminary Prospectus Supplement or Prospectus Supplement or the
omission or the alleged omission to state therein a material fact necessary in
order to make the statements in the Preliminary Prospectus Supplement or
Prospectus Supplement or any amendment or supplement to the Preliminary
Prospectus Supplement or 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
Notes--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
Preliminary Prospectus Supplement, Prospectus Supplement or the Prospectus or
any amendment or supplement to the Preliminary Prospectus Supplement,
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 Preliminary Prospectus Supplement, Prospectus Supplement or
the
13
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
Preliminary Prospectus Supplement, 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 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.
14
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.
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
15
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 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 (i) such amendment shall not,
as evidenced by an Opinion of Counsel or an Officer's Certificate, materially
and adversely affect the interest of any Noteholder or Certificateholder and
(ii) 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. 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 A-1 Notes, (ii) the Outstanding principal amount of the Class A-2 Notes,
(iii) the Outstanding principal amount of the Class A-3 Notes, (iv) the
Outstanding principal amount of the Class A-4 Notes and (v) the Outstanding
principal amount of the Class B Notes, and (b) the Certificateholders of
Certificates evidencing at least a majority of the Percentage Interests
(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.
16
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 Xxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000,
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 SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
17
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER 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.
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, (i) 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 and (ii) the Seller 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 Depositor.
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: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Senior Financial Officer
and Treasurer
USAA ACCEPTANCE, LLC, as Depositor
By: /s/ Xxxxx X. XxXxxxxxx
--------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
EXHIBIT A
MATTERS ADDRESSED IN OPINION OF SELLER'S COUNSEL
(a) the enforceability of the Basic Documents (other than the Trust
Agreement and the Note Depository Agreement);
(b) the validity of the security interests created thereby;
(c) the due issuance and enforceability of the Notes;
(d) the qualification of the Indenture under the Trust Indenture Act;
(e) no violations of law;
(f) compliance with applicable federal securities laws;
(g) exemption of the Bank, the Depositor and the Issuer from registration
as an investment company under the Investment Company Act of 1940;
(h) the conformity in all material respects of each of the Basic Documents
to the description thereof contained in the Registration Statement,
Preliminary Prospectus and the Prospectus;
(i) negative assurances concerning the Preliminary Prospectus and the
Prospectus, in each case in form and substance reasonably satisfactory to the
Representatives and their counsel;
(j) certain matters relating to the transfer of the Receivables by the
Seller to the Depositor, in form and substance reasonably satisfactory to the
Representatives and their counsel;
(k) the Issuer will not be an association (or a publicly traded
partnership) taxable as a corporation for federal income tax purposes; and
(l) the Notes will be characterized as indebtedness for federal income tax
purposes and (iii) the statements set forth in the Prospectus under the
heading "Certain Federal Income Tax Consequences", to the extent that they are
statements of law are true and correct in all material respects, in form and
substance reasonably satisfactory to the Representatives and their counsel.
A-1
SCHEDULE A
Schedule of Receivables
-----------------------
[On file with the Indenture Trustee]
X-X-0
XXXXXXXX X-0
Location of Receivable Files
----------------------------
c/o USAA Federal Savings Bank
00000 XxXxxxxxx Xxxxxxx
Xxx Xxxxxxx, XX 00000
S-B-1
SCHEDULE B-2
Location of Lien Certificates
-----------------------------
FDI Consulting, Inc.
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
S-B-2
APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1
