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EXECUTION COPY
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PURCHASE AGREEMENT
between
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Seller
and
XXXXX FARGO AUTO RECEIVABLES CORPORATION
as Purchaser
Dated as of May 16, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions......................................................1
SECTION 1.2. Other Interpretive Provisions....................................1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.................................2
SECTION 2.2. Receivables Purchase Price.......................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Purchaser......................3
SECTION 3.2. Representations and Warranties of Xxxxx Fargo....................4
SECTION 3.3. Representations and Warranties as to Each Receivable.............5
SECTION 3.4. Repurchase upon Breach...........................................9
ARTICLE IV
COVENANTS OF XXXXX FARGO
SECTION 4.1. Protection of Title to Xxxxx Fargo Assets.......................10
SECTION 4.2. Liability of Xxxxx Fargo; Indemnities...........................11
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Xxxxx Fargo......................................13
SECTION 5.2. Xxxxx Fargo's Assignment of Purchased Receivables...............13
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee.............13
SECTION 5.4. Amendment.......................................................13
SECTION 5.5. Waivers.........................................................15
SECTION 5.6. Notices.........................................................15
SECTION 5.7. Costs and Expenses..............................................15
SECTION 5.8. Representations to Xxxxx Fargo..................................15
SECTION 5.9. Governing Law...................................................15
SECTION 5.10. Counterparts....................................................15
SECTION 5.11. Third Party Beneficiaries.......................................15
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (as from time to time amended, supplemented or
otherwise modified and in effect, this "Agreement") is made as of this 16th day
of May, 2001 by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national
banking association ("Xxxxx Fargo"), and XXXXX FARGO AUTO RECEIVABLES
CORPORATION, a Delaware corporation (the "Purchaser").
WHEREAS, in the regular course of its business, Xxxxx Fargo purchases
or originates Motor Vehicle Loans secured by new and used automobiles and light
trucks;
WHEREAS, Purchaser desires to purchase from Xxxxx Fargo a portfolio of
Motor Vehicle Loans arising in connection with Motor Vehicle Loans purchased by
Xxxxx Fargo or originated by Xxxxx Fargo; and
WHEREAS, Xxxxx Fargo is willing to sell such Motor Vehicle Loans to
Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms are used in this Agreement
as defined in Appendix X to the Sale and Servicing Agreement among the Xxxxx
Fargo Auto Trust 2001-A, as issuer, the Purchaser, as seller, and Xxxxx Fargo,
as servicer.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under GAAP; (b) terms defined in Article 9 of the UCC and not otherwise
defined in this Agreement are used as defined in that Article; (c) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (d)
references to any Article, Section, Schedule or Exhibit are references to
Articles, Sections, Schedules and Exhibits in or to this Agreement and
references to any paragraph, subsection, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (e) the term "including" means
"including without limitation"; (f) except as otherwise expressly provided
herein, references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; (g)
references to any Person include that Person's successors and assigns; and (h)
headings are for purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
Effective as of the Closing Date and immediately prior to the
transactions pursuant to the Indenture, the Sale and Servicing Agreement and the
Trust Agreement, Xxxxx Fargo does hereby sell, transfer, assign, set over and
otherwise convey to Purchaser, without recourse (subject to the obligations
herein) (the "Xxxxx Fargo Assets"):
(i) all right, title and interest of Xxxxx Fargo in and to the
Receivables, and all moneys received thereon on or after the Cutoff
Date;
(ii) all right, title and interest of Xxxxx Fargo in the
security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of Xxxxx Fargo in
the Financed Vehicles and any other property that shall secure the
Receivables;
(iii) the interest of Xxxxx Fargo in any proceeds with respect
to the Receivables from claims on any Insurance Policies covering
Financed Vehicles or the Obligors or from claims under any lender's
single interest insurance policy naming Xxxxx Fargo as an insured;
(iv) rebates of premiums relating to Insurance Policies and
rebates of other items such as extended warranties financed under the
Receivables, in each case, to the extent the Servicer would, in
accordance with its customary practices, apply such amounts to the
Principal Balance of the related Receivable;
(v) the interest of Xxxxx Fargo in any proceeds from (A) any
Receivable repurchased by a Dealer pursuant to a Dealer Agreement as a
result of a breach of representation or warranty in the related Dealer
Agreement, (B) a default by an Obligor resulting in the repossession of
the Financed Vehicle under the applicable Motor Vehicle Loan or (C) any
Dealer Recourse or other rights relating to the Receivables under
Dealer Agreements;
(vi) all right, title and interest of Xxxxx Fargo in any
instrument or document relating to the Receivables; and
(vii) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made
hereunder shall not constitute and is not intended to result in an assumption by
Purchaser of any obligation of Xxxxx Fargo to the Obligors, the Dealers or any
other Person in connection with the Receivables and the other assets and
properties conveyed hereunder or any agreement, document or instrument related
thereto.
It is the express intention of Xxxxx Fargo and Purchaser that (a) the
assignment and transfer herein contemplated constitute a sale of the Receivables
and the other Xxxxx Fargo
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Assets described above, conveying good title thereto free and clear of any
liens, encumbrances, security interests or rights of other Persons, from Xxxxx
Fargo to Purchaser and (b) the Receivables and the other Xxxxx Fargo Assets
described above not be a part of Xxxxx Fargo's estate in the event of a
bankruptcy or insolvency of Xxxxx Fargo. If, notwithstanding the intention of
Xxxxx Fargo and Purchaser, such conveyance is deemed to be a pledge in
connection with a financing or is otherwise deemed not to be a sale, Xxxxx Fargo
hereby grants, and the parties intend that Xxxxx Fargo shall have granted to the
Purchaser, a first priority perfected security interest in all of Xxxxx Fargo's
right, title and interest in the items of the Xxxxx Fargo Assets and all
proceeds of the foregoing, and that this Agreement shall constitute a security
agreement under applicable law and the Purchaser shall have all of the rights
and remedies of a secured party and creditor under the UCC as in force in the
relevant jurisdictions.
SECTION 2.2. Receivables Purchase Price. In consideration for the Xxxxx
Fargo Assets, Purchaser shall, on the Closing Date, pay to Xxxxx Fargo the
Receivables Purchase Price. The "Receivables Purchase Price" shall be
$733,847,001.00. The Purchaser shall pay Xxxxx Fargo $733,847,001.00 in cash on
the Closing Date, with the remaining portion of the Receivables Purchase Price
to be deemed paid and returned to the Purchaser and considered a contribution to
capital.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Purchaser.
Purchaser hereby makes the following representations and warranties
upon which Xxxxx Fargo may rely. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Receivables to Purchaser.
(a) Organization and Good Standing. Purchaser has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware and has the power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof.
(b) Power and Authority. Purchaser has full power, authority and legal
right to execute, deliver and perform this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement.
(c) No Consent Required. No approval, authorization, consent, license
or other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by Purchaser of this Agreement or the consummation of
the transactions contemplated hereby.
(d) Binding Obligation. This Agreement has been duly executed and
delivered by Purchaser and this Agreement constitutes a legal, valid and binding
obligation of Purchaser, enforceable against Seller in accordance with its
terms, subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting the enforcement of the rights of creditors generally and to
equitable
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limitations on the availability of specific remedies.
(e) No Violation. The execution, delivery and performance by Purchaser
of this Agreement and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach of the terms and provisions of,
constitute (with or without notice or lapse of time) a material default under or
result in the creation or imposition of any Lien under any of its material
properties pursuant to the terms of, (i) the charter or bylaws of Purchaser,
(ii) any material indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which Purchaser is a party or by which Purchaser is
bound or to which any of its properties are subject, or (iii) any law, order,
rule or regulation applicable to Purchaser of any federal or state regulatory
body, any court, administrative agency, or other governmental instrumentality
having jurisdiction over Purchaser.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the knowledge of Purchaser, threatened, before any court, regulatory
body, administrative agency, or other tribunal or governmental instrumentality
having jurisdiction over Purchaser or its properties: (i) asserting the
invalidity of this Agreement or the transactions contemplated herein, (ii)
seeking to prevent the consummation of any of the transactions by this
Agreement, (iii) seeking any determination or ruling that might materially and
adversely affect the performance by Purchaser of its obligations under, or the
validity or enforceability of, this Agreement or the transactions contemplated
herein, or (iv) that may materially and adversely affect this Agreement or the
transactions contemplated hereby.
SECTION 3.2. Representations and Warranties of Xxxxx Fargo.
Xxxxx Fargo hereby makes the following representations and warranties
upon which Purchaser may rely. Such representations are made as of the execution
and delivery of this Agreement, but shall survive the sale, transfer and
assignment of the Receivables to Purchaser.
(a) Organization and Good Standing. Xxxxx Fargo has been duly organized
and is validly existing as a national banking association in good standing under
the laws of the United States of America, with the power and authority to own
its properties and to conduct its business as such properties are presently
owned and such business is presently conducted and had at all relevant times,
and has, power, authority and legal right to acquire, own and sell the Xxxxx
Fargo Assets pursuant to Article II.
(b) Power and Authority. Xxxxx Fargo has the power, authority and legal
right to execute and deliver this Agreement and to carry out its terms and to
sell and assign the Xxxxx Fargo Assets; and the execution, delivery and
performance of this Agreement has been duly authorized by Xxxxx Fargo by all
necessary corporate action.
(c) No Consent Required. No approval, authorization, consent, license
or other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby, other than the filing of UCC
financing statements.
(d) Valid Sale; Binding Obligation. Xxxxx Fargo intends this Agreement
to effect a
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valid sale, transfer, and assignment of the Receivables and the other properties
and rights included in the Xxxxx Fargo Assets conveyed by Xxxxx Fargo to
Purchaser hereunder, enforceable against creditors of and purchasers from Xxxxx
Fargo; and this Agreement constitutes a legal, valid and binding obligation of
Xxxxx Fargo, enforceable against Xxxxx Fargo in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies.
(e) No Violation. The execution, delivery and performance by Xxxxx
Fargo of this Agreement and the consummation of the transactions contemplated
hereby will not conflict with, result in any material breach of any of the terms
and provisions of, constitute (with or without notice or lapse of time) a
material default under or result in the creation or imposition of any Lien upon
any of its material properties pursuant to the terms of, (i) the charter or
bylaws of Xxxxx Fargo, (ii) any material indenture, contract, lease, mortgage,
deed of trust or other instrument or agreement to which Xxxxx Fargo is a party
or by which Xxxxx Fargo is bound, or (iii) any law, order, rule or regulation
applicable to Xxxxx Fargo of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having jurisdiction
over Xxxxx Fargo.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the knowledge of Xxxxx Fargo, threatened, before any court, regulatory
body, administrative agency, or other tribunal or governmental instrumentality
having jurisdiction over Xxxxx Fargo or its properties: (i) asserting the
invalidity of this Agreement or the transactions contemplated herein, (ii)
seeking to prevent the consummation of any of the transactions by this
Agreement, (iii) seeking any determination or ruling that might materially and
adversely affect the performance by Xxxxx Fargo of its obligations under, or the
validity or enforceability of, this Agreement or the transactions contemplated
herein, or (iv) that may materially and adversely affect this Agreement or the
transactions contemplated hereby.
(g) Chief Executive Office. The chief executive office of
Xxxxx Fargo is set forth in Exhibit A attached hereto.
(h) Official Record. This Agreement and all other documents
related hereto to which Xxxxx Fargo is a party have been approved by
Xxxxx Fargo's board of directors, which approval is reflected in the
minutes of such board, and shall continuously from time to time of each
such document's execution, be maintained as an official record of Xxxxx
Fargo.
SECTION 3.3. Representations and Warranties as to Each Receivable.
Xxxxx Fargo hereby makes the following representations and warranties
as to each Receivable conveyed by it to Purchaser hereunder on which Purchaser
shall rely in acquiring the Receivables. Unless otherwise indicated, such
representations and warranties shall speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to Purchaser
hereunder, the subsequent sale, transfer and assignment of the Receivables to
Issuer under the Sale and Servicing Agreement, and the pledge thereof to
Indenture Trustee pursuant to the Indenture.
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(a) Characteristics of Receivables. Each Receivable has been fully and
properly executed by the parties thereto and (i) has been originated by a Dealer
in the ordinary course of such Dealer's business to finance the retail sale by a
Dealer of the related Financed Vehicle and has been purchased by an Originator
in the ordinary course of such Originator's business and in accordance with such
Originator's underwriting standards; (ii) has been acquired by Xxxxx Fargo from
the Originator in the ordinary course of Xxxxx Fargo's and such Originator's
business; (iii) the Originator thereof has underwriting standards that require
physical damage insurance to be maintained on the related Financed Vehicle, (iv)
is secured by a valid, subsisting, binding and enforceable first priority
security interest in favor of Xxxxx Fargo in the Financed Vehicle (subject to
administrative delays and clerical errors on the part of the applicable
government agency and to any statutory or other lien arising by operation of law
after the Closing Date which is prior to such security interest), which security
interest is assignable together with such Receivable, and has been so assigned
to Purchaser, and subsequently assigned to the Issuer pursuant to the Sale and
Servicing Agreement, and pledged to the Indenture Trustee pursuant to the
Indenture, (v) 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, (vi) provided, at origination,
for level monthly payments (provided that the amount of the first or last
payment may be minimally different), which fully amortize the Initial Principal
Balance over the original term, (vii) provides for interest at the Contract Rate
specified in the Schedule of Receivables, (ix) was originated in the United
States of America and (viii) constitutes "chattel paper" as defined in the UCC.
(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Cutoff Date; (i) each Receivable is secured
by a Motor Vehicle; (ii) each Receivable was originated in the United States of
America; (iii) each Receivable provides for level monthly payments which fully
amortize the amount financed, except for the last payment, which may be slightly
different from the level payment; (iv) each Receivable has a Contract Rate of no
less than 6.09% and not more than 18.75%; (v) each Receivable had an original
term to maturity of not more than 84 months and not less than 19 months and each
Receivable has a remaining term to maturity, as of the Cutoff Date, of not more
than 71 months and not less than 4 months and the remaining term is not greater
than the original term; (vi) each Receivable has a Cutoff Date Principal Balance
of not less than $1,000 and no more than $50,000; (vii) no Receivable was more
than 29 days past due as of the Cutoff Date; (viii) no Financed Vehicle was
noted in the related records of Seller as being the subject of any pending
bankruptcy or insolvency proceeding as of the Cutoff Date; (ix) no Receivable is
subject to a force placed Physical Damage Insurance Policy on the related
Financed Vehicle; (x) each Receivable is a Simple Interest Receivable; and (xi)
no Receivable, as of the Cutoff Date, is secured by a Financed Vehicle that has
been repossessed without reinstatement; and (xii) no Receivable is prepaid more
than six months ahead of schedule. The Receivables were selected using selection
procedures that were not intended by Seller to be adverse to the Purchaser.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including (without
limitation) the identity and address of the Obligor, account number, the Cutoff
Date Principal Balance, the maturity date and the Contract Rate, was true and
correct in all material respects as of the close of business on the Cutoff Date.
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(d) Compliance with Law. The Receivable and the sale of the related
Financed Vehicle complied at the time it was originated or made, and will comply
as of the Closing Date, in all material respects with all requirements of
applicable federal, state and local laws, and regulations thereunder, including,
to the extent applicable, 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, the Fair Debt Collection
Practices Act, Federal Reserve Board Regulations B and Z and any other consumer
credit, consumer protection, equal opportunity and disclosure laws.
(e) Binding Obligation. The Receivable constitutes the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable in
all material respects by the holder thereof in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally, and the
Receivable is not subject to any right of rescission, setoff, counterclaim or
defense, including the defense of usury.
(f) Lien in Force. The Receivable has not been satisfied, subordinated
or rescinded and Xxxxx Fargo has not taken any action which would have the
effect of releasing the related Financed Vehicle from the Lien granted by the
Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of the Receivable has
been amended, waived, altered or modified in any respect, except such waivers as
would be permitted under the Sale and Servicing Agreement and as are reflected
in the Receivable File, and no amendment, waiver, alteration or modification
causes such Receivable not to conform to the other representations or warranties
contained in this Section.
(h) No Liens. There are no Liens or claims, including Liens for work,
labor, materials or unpaid state or federal taxes, relating to the Financed
Vehicle securing the Receivable, that are or may be prior to or equal to the
Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing for a
period of less than 30 days as of the Cutoff Date, there is no default, breach,
violation or event permitting acceleration under the terms of the Receivable and
no continuing condition that with notice or lapse of time, or both, would
constitute a default, breach, violation or event permitting acceleration under
the terms of the Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure the
Financed Vehicle under a Physical Damage Insurance Policy, pay the premiums for
such insurance and keep such insurance in full force and effect. With respect to
each Receivable, Xxxxx Fargo, in accordance with its customary standards,
policies and procedures, shall have determined that, as of the date of
origination of each Receivable, the Obligor had obtained or agreed to obtain a
Physical Damage Insurance Policy covering the Financed Vehicle.
(k) Good Title. It is the intention of Xxxxx Fargo that the transfer
and assignment herein contemplated constitute a sale of the Receivables from
Xxxxx Fargo to Purchaser and that the beneficial interest in and title to the
Receivables not be part of Xxxxx Fargo's estate in the event of the filing of a
bankruptcy petition or insolvency proceeding by or against Xxxxx Fargo
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under any bankruptcy or insolvency law. No Receivable has been sold,
transferred, assigned, or pledged by Xxxxx Fargo to any Person other than
Purchaser. Immediately prior to the transfer and assignment herein contemplated,
Xxxxx Fargo had good and marketable title to the Receivable free and clear of
any Lien and had full right and power to transfer and assign the Receivable to
Purchaser and immediately upon the transfer and assignment of the Receivable to
Purchaser, Purchaser shall have good and marketable title to the Receivable,
free and clear of any Lien; and Purchaser's interest in the Receivable resulting
from the transfer has been perfected under the UCC. All filings (including UCC
filings) necessary in any jurisdiction to give Purchaser a first priority
perfected ownership interest in the Receivables, to give Issuer a first priority
perfected ownership interest in the Receivables, and to give Indenture Trustee a
first priority perfected security interest therein, shall have been presented to
Indenture Trustee for filing in the appropriate filing offices. Upon such filing
by the Indenture Trustee, the Indenture Trustee will have a first priority
perfected security interest in the Receivables.
(l) Obligations. Xxxxx Fargo and each Originator has duly fulfilled all
material obligations on its part to be fulfilled under, or in connection with,
the Receivable.
(m) Possession. There is only one original executed Receivable, and
immediately prior to the Closing Date, Xxxxx Fargo will have possession of such
original executed Receivable.
(n) No Government Obligor. The Obligor on the Receivable is not the
United States of America or any state thereof or any local government, or any
agency, department, political subdivision or instrumentality of the United
States of America or any state thereof or any local government.
(o) Marking Records. By the Closing Date, Xxxxx Fargo shall have caused
the portions of Xxxxx Fargo's and each Originator's electronic master record of
Motor Vehicle Loans relating to the Receivables to be clearly and unambiguously
marked to show that the Receivables are owned by Purchaser in accordance with
the terms of this Agreement.
(p) No Assignment. As of the Closing Date, neither Xxxxx Fargo nor any
Originator shall have taken any action to convey any right to any Person that
would result in such Person having a right to payments received under the
Insurance Policies or Dealer Agreements, or payments due under the Receivable,
that is senior to, or equal with, that of Purchaser.
(q) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer or
assignment of such Receivable hereunder or pursuant to transfers of the Notes or
Certificates are unlawful, void or voidable. Xxxxx Fargo has not entered into
any agreement with any Obligor that prohibits, restricts or conditions the
assignment of any portion of the Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Receivable is in
effect whereby the Dealer warrants title to the Motor Vehicle and indemnifies
Xxxxx Fargo against the unenforceability of each Receivable sold thereunder, and
the rights of Originator and Xxxxx Fargo thereunder, with regard to the
Receivable sold hereunder, have been validly assigned to and are enforceable
against the Dealer by the Purchaser, along with any Dealer Recourse.
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(s) Composition of Receivable. No Receivable has a Principal Balance
which includes capitalized interest, late charges or amounts attributable to the
payment of the premium for any Physical Damage Insurance Policy.
(t) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section 4.9(b) of the Sale
and Servicing Agreement is accurate and complete in all material respects.
(u) No Bankruptcies. No Obligor on any Receivable was noted in the
related Receivable File as having filed for bankruptcy in a proceeding which
remained undischarged as of the Cutoff Date.
(v) Amounts. The Original Pool Balance was $746,594, 523.87.
(w) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Cutoff Date: (i) approximately 17.7%
of the Original Pool Balance was attributable to Receivables the mailing
addresses of the Obligors at the time of origination with respect to which were
located in the State of Minnesota and 15.32% of the Original Pool Balance was
attributable to Receivables the mailing addresses of the Obligors at the time of
origination with respect to which were located in the State of Texas, 10.43% in
the State of California, 10.40% in the State of Arizona, and 6.26% in the State
of Oregon, and no other state accounts for more than 4.86% of the Original Pool
Balance; (ii) the weighted average Contract Rate of the Receivables was 9.12%;
(iii) there are 61,798 Receivables being conveyed by Xxxxx Fargo to Issuer; (iv)
the average Cutoff Date Principal Balance of the Receivables was $12,081.21; and
(v) the weighted average original term and weighted average remaining term of
the Receivables were 64.10 months and 43.98 months, respectively.
SECTION 3.4. Repurchase upon Breach. Xxxxx Fargo or Purchaser, as the
case may be, shall inform the other party to this Agreement promptly, in
writing, upon the discovery of any breach or failure to be true of the
representations or warranties made by Xxxxx Fargo in Section 3.3; provided that
the failure to give such notice shall not affect any obligation of Xxxxx Fargo.
If the breach or failure shall not have been cured by the last day of the
Collection Period which includes the 60th day (or if Seller elects, the 30th
day) after the date on which Xxxxx Fargo becomes aware of, or receives written
notice from Purchaser of, such breach or failure, and such breach or failure
materially and adversely affects the interests of Issuer and the Holders in any
RECEIVABLE, Xxxxx Fargo shall repurchase each such Receivable from Purchaser, or
its successors or assigns as of such last day of such Collection Period at a
purchase price equal to the Purchase Amount for such Receivable as of such last
day of such Collection Period, which amount shall be deposited in the Collection
Account pursuant to the provisions of the Sale and Servicing Agreement.
Notwithstanding the foregoing, any such breach or failure with respect to the
representations and warranties contained in Section 3.3 will not be deemed to
have such a material and adverse effect with respect to a Receivable if the
facts resulting in such breach or failure do not affect the ability of
Purchaser, or its successors or assigns, to receive and retain payment in full
on such Receivable. In consideration of the purchase of a Receivable hereunder,
Xxxxx Fargo shall (unless otherwise directed by Purchaser in writing) deposit
the Purchase Amount of such Receivable, no later than the close of business on
the next Deposit Date, in the manner specified in Section 5.4 of the Sale and
Servicing Agreement. The sole remedy (except
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as provided in Section 4.2) of Purchaser, or its successors or assigns with
respect to a breach or failure to be true of the warranties made by Seller
pursuant to Section 3.3 shall be to require Xxxxx Fargo to repurchase
Receivables pursuant to this Section.
ARTICLE IV
COVENANTS OF XXXXX FARGO
Xxxxx Fargo covenants and agrees with Purchaser as follows:
SECTION 4.1. Protection of Title to Xxxxx Fargo Assets.
(a) Xxxxx Fargo shall execute and file such UCC financing statements
and cause to be executed and filed such UCC continuation statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of Purchaser, Owner Trustee and Indenture Trustee in
the Receivables and the proceeds thereof. Xxxxx Fargo shall deliver (or cause to
be delivered) to Purchaser file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Xxxxx Fargo shall not change its name, identity or corporate
structure or jurisdiction of organization in any manner that would, could or
might make any financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given Purchaser, Owner Trustee and
Indenture Trustee at least thirty days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Xxxxx Fargo shall give Purchaser, Owner Trustee and Indenture
Trustee at least 60 days' prior written notice of any relocation of its
principal executive office or change in its jurisdiction or organization, if, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment or new financing statement.
(d) Xxxxx Fargo shall maintain its computer systems relating to
installment loan recordkeeping so that, from and after the time of sale under
this Agreement of its Receivables, Xxxxx Fargo's master computer records
(including any backup archives) that refer to a Receivable shall indicate
clearly the interest of Purchaser, Issuer and Indenture Trustee in such
Receivable and that such Receivable has been sold to Purchaser and by Purchaser
to Issuer and is owned by Issuer and has been pledged to Indenture Trustee
pursuant to the Indenture. Indication of Purchaser's, Issuer's and Indenture
Trustee's interest in a Receivable shall be deleted from or modified on Seller's
computer systems when, and only when, the related Receivable shall have been
paid in full or repurchased by Xxxxx Fargo or purchased by Servicer.
(e) If at any time Xxxxx Fargo shall propose to sell, grant a security
interest in or otherwise transfer any interest in automotive receivables to any
prospective purchaser, lender or other transferee, Xxxxx Fargo shall give to
such prospective purchaser, lender or other transferee computer tapes, records
or printouts (including any restored from backup archives) that, if they
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shall refer in any manner whatsoever to any Receivable, shall indicate clearly
that such Receivable has been sold to Purchaser and then sold by Purchaser to
Issuer and pledged to Indenture Trustee.
(f) Xxxxx Fargo shall, upon receipt by Seller of reasonable prior
notice, permit Purchaser, Owner Trustee and Indenture Trustee and their
respective agents at any time during normal business hours to inspect, audit and
make copies of and abstracts from Xxxxx Fargo's records regarding any
Receivable.
(g) Upon request at any time Purchaser, Owner Trustee or Indenture
Trustee shall have reasonable grounds to believe that such request is necessary
in connection with the performance of its duties under this Agreement, Xxxxx
Fargo shall furnish to Purchaser, Owner Trustee and Indenture Trustee, within
thirty (30) Business Days, a list of all Receivables (by contract number and
name of Obligor) conveyed to Purchaser hereunder and then owned by Issuer, and
pledged to Indenture Trustee, together with a reconciliation of such list to the
Schedule of Receivables and to each of Servicer's Reports furnished before such
request indicating removal of Receivables from Issuer.
(h) Xxxxx Fargo shall deliver or cause to be delivered to Purchaser,
Owner Trustee and Indenture Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel either
(A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of
Purchaser in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than four months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 120-day period, either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of Purchaser in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such
interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 4.2. Liability of Xxxxx Fargo; Indemnities. Xxxxx Fargo shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by Xxxxx Fargo under this Agreement.
(a) Xxxxx Fargo shall indemnify, defend and hold harmless Purchaser,
Issuer, Owner Trustee (individually and in its capacity as such) and Indenture
Trustee (individually and in its
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capacity as such) and their respective officers, directors, employees and agents
from and against any taxes that may at any time be asserted against any such
Person with respect to, and on the date of, the sale of the Receivables to
Purchaser, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, not including any taxes
asserted with respect to Federal or other income taxes arising out of this
Agreement and the other Basic Documents) and costs and expenses in defending
against the same.
(b) Xxxxx Fargo shall indemnify, defend and hold harmless Purchaser,
Issuer, Owner Trustee (individually and in its capacity as such), Indenture
Trustee (individually and in its capacity as such), the Certificateholders, the
Noteholders and the officers, directors, employees and agents of Purchaser,
Issuer, Owner Trustee and Indenture Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities to the extent arising out of,
or imposed upon such Person through or as a result of (i) Xxxxx Fargo's willful
misfeasance, bad faith or gross negligence in the performance of its duties
under this Agreement, (ii) the failure of any Receivable conveyed by it to
Purchaser hereunder, or the sale of the related Financed Vehicle, to comply with
all requirements of applicable law, (iii) any breach of any of Xxxxx Fargo's
representations, warranties or covenants contained herein or in any other Basic
Document, provided, however, with respect to a breach of Xxxxx Fargo's
representations and warranties as set forth in Section 3.3, any indemnification
amounts owed pursuant to this Section 4.2 with respect to a Receivable shall
give effect to and not be duplicative of the Purchase Amounts paid by Xxxxx
Fargo pursuant to Section 3.4 hereof, and (iv) the use, ownership or operation
by Xxxxx Fargo or any of its Affiliates of a Financed Vehicle prior to the
Cutoff Date.
Indemnification under this Section shall survive the termination of
this Agreement or any other Basic Documents and the resignation or removal of
the Owner Trustee or Indenture Trustee and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "Indemnified
Person") shall promptly notify Xxxxx Fargo in writing, and Xxxxx Fargo, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others
Xxxxx Fargo designates in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding. Xxxxx Fargo shall not be
liable for any settlement of any claim or proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, Xxxxx Fargo agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Xxxxx Fargo shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any proceeding or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Persons from all liability on claims that are the subject matter of such
proceeding. If Xxxxx Fargo shall have made any indemnity payments pursuant to
this Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to Seller, without interest.
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Xxxxx Fargo. The obligations of Xxxxx Fargo
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 5.2. Xxxxx Fargo's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by Xxxxx Fargo pursuant to this
Agreement, Purchaser shall assign, without recourse, representation or warranty,
to Xxxxx Fargo all Purchaser's right, title and interest in and to such
Receivables, and all security and documents relating thereto.
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee. Xxxxx
Fargo acknowledges that:
(a) Purchaser will, pursuant to the Sale and Servicing Agreement, sell
the Receivables to Issuer and assign its rights under this Agreement to the
Owner Trustee for the benefit of the Noteholders and the Certificateholders, and
that the representations and warranties contained in this Agreement and the
rights of Purchaser under Section 3.4 hereof are intended to benefit Issuer, the
Owner Trustee, the Noteholders and the Certificateholders. Xxxxx Fargo hereby
consents to such sale and assignment.
(b) Issuer will, pursuant to the Indenture, pledge the Receivables and
its rights under this Agreement to the Indenture Trustee for the benefit of the
Noteholders, and that the representations and warranties contained in this
Agreement and the rights of Purchaser under this Agreement, including under
Section 3.4 are intended to benefit the Indenture Trustee and the Noteholders.
Xxxxx Fargo hereby consents to such pledge.
SECTION 5.4. Amendment.
(a) This Agreement may be amended by Xxxxx Fargo and the Purchaser,
with the consent of the Servicer, Owner Trustee and Indenture Trustee (which
consent may not be unreasonably withheld), but without the consent of any of the
Noteholders or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of
the provisions in this Agreement; provided that such action
shall not, as evidenced by an Opinion of Counsel delivered to
Purchaser, Owner Trustee and Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder
or Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of
Issuer to qualify as, and to permit an election to be made to
cause all or a portion of Issuer to be
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treated as, a "financial asset securitization investment
trust" under the Code and (B) in connection with any such
election, to modify or eliminate existing provisions set forth
in this Agreement relating to the intended federal income tax
treatment of the Notes or Certificates and Issuer in the
absence of the election; it being a condition to any such
amendment that the Rating Agency Condition shall have been
met; and
(iii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to
Issuer of all or any portion of the Receivables to be
recognized as a sale under GAAP by Purchaser to Issuer, (b)
Issuer to avoid becoming a member of Purchaser's consolidated
group under GAAP or (c) Xxxxx Fargo or Purchaser, or any of
their Affiliates to otherwise comply with or obtain more
favorable treatment under any law or regulation or any
accounting rule or principle; it being a condition to any such
amendment that the Rating Agency Condition shall have been
met.
(b) This Agreement may also be amended from time to time by Xxxxx Fargo
and Purchaser, with the consent of the Servicer, Owner Trustee and Indenture
Trustee, the consent of the Holders of Notes evidencing not less than a majority
of the Outstanding Amount of the Notes and the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate Percentage
Interests for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement; provided that no such
amendment shall (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 the
Noteholders or the Certificateholders or (ii) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Percentage Interests,
the Holders of which are required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes and the Holders of all the
outstanding Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Purchaser
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency, Owner Trustee and Indenture Trustee. Promptly after the
execution of any such amendment or consent, Purchaser shall furnish written
notification the substance of such amendment or consent to each Noteholder,
Certificateholder, Owner Trustee and Indenture Trustee.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement,
Purchaser, Owner Trustee and Indenture Trustee shall be entitled to receive and
rely conclusively upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent to the execution and delivery of such amendment have been satisfied
and the Opinion of Counsel referred to in Section 4.1(h)(1) has been delivered.
Purchaser, Owner Trustee and Indenture Trustee may, but shall not be obligated
to,
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enter into any such amendment which affects Purchaser's, Owner Trustee's or
Indenture Trustee's, as applicable, own rights, duties or immunities under this
Agreement or otherwise.
SECTION 5.5. Waivers. No failure or delay on the part of Purchaser in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 5.6. Notices. All demands, notices and communications pursuant
to this Agreement to either party shall be in writing, personally delivered, or
sent by telecopier, overnight mail or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt at the
address set forth in Exhibit A attached hereto or at such other address as may
be designated by it by notice to the other party.
SECTION 5.7. Costs and Expenses. Xxxxx Fargo will pay all expenses
incident to the performance of its obligations under this Agreement and all
expenses in connection with the perfection as against third parties of
Purchaser's right, title and interest in and to the Receivables and Purchaser
agrees to pay expenses incident to the performance of its obligations under this
Agreement.
SECTION 5.8. Representations to Xxxxx Fargo. The respective agreements,
representations, warranties and other statements by Xxxxx Fargo and Purchaser
set forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the Closing Date and any sale, transfer or assignment of
the Receivables by Purchaser.
SECTION 5.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 5.10. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 5.11. Third Party Beneficiaries. Each of the Issuer, Owner
Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such) and other Persons referred to in
Section 4.2 is an intended third party beneficiary of the indemnities of Xxxxx
Fargo set forth in Section 4.2 and the other provisions of this Agreement in
favor of such Persons.
It is acknowledged and agreed that such indemnities and other
provisions may be enforced by or on behalf of such Persons against Xxxxx Fargo
to the same extent as if it were a party hereto.
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IN WITNESS WHEREOF, the parties hereby have caused this Purchase
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXX FARGO AUTO RECEIVABLES
CORPORATION
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
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EXHIBIT A
Location of Xxxxx Fargo and Purchaser
XXXXX FARGO BANK, NATIONAL ASSOCIATION
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
XXXXX FARGO AUTO RECEIVABLES CORPORATION
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
