RECEIVABLES PURCHASE AGREEMENT
between
FIRST MERCHANTS ACCEPTANCE CORPORATION,
as Seller,
and
FIRST MERCHANTS AUTO RECEIVABLES CORPORATION II,
as Purchaser
Dated as of March 1, 1997
TABLE OF CONTENTS
ARTICLE I
Certain Definitions . . . . . . . . . . . . . . . . 1
ARTICLE II
Conveyance of Receivables . . . . . . . . . . . . . 2
SECTION 2.01.
Conveyance of Receivables . . . . . . . . . . . . . 2
SECTION 2.02.
The Closing . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
Representations and Warranties. . . . . . . . . . . 3
SECTION 3.01.
Representations and Warranties of the Purchaser . . 3
SECTION 3.02.
Representations and Warranties of Seller. . . . . . 3
ARTICLE IV
Conditions. . . . . . . . . . . . . . . . . . . . . 7
SECTION 4.01.
Conditions to Obligation of the Purchaser . . . . . 7
SECTION 4.02.
Conditions to Obligation of the Seller. . . . . . . 7
ARTICLE V
Covenants of the Seller . . . . . . . . . . . . . . 8
SECTION 5.01.
Protection of Right, Title and Interest . . . . . . 8
SECTION 5.02.
Other Liens or Interests. . . . . . . . . . . . . . 8
SECTION 5.03.
Costs and Expenses. . . . . . . . . . . . . . . . . 8
SECTION 5.04.
Indemnification . . . . . . . . . . . . . . . . . . 8
ARTICLE VI
Miscellaneous Provisions. . . . . . . . . . . . . . 9
SECTION 6.01.
Obligations of Seller . . . . . . . . . . . . . . . 9
SECTION 6.02.
Repurchase Events . . . . . . . . . . . . . . . . . 9
SECTION 6.03.
Purchaser Assignment of Repurchased Receivables . . 9
SECTION 6.04.
Transfer to the Issuer. . . . . . . . . . . . . . . 9
SECTION 6.05.
Amendment . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.06.
Waivers . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.07.
Notices . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.08.
Costs and Expenses. . . . . . . . . . . . . . . . . 10
SECTION 6.09.
Representations of the Seller and the Purchaser . . 10
SECTION 6.10.
Confidential Information. . . . . . . . . . . . . . 10
SECTION 6.11.
Headings and Cross-References . . . . . . . . . . . 10
SECTION 6.12.
Governing Law . . . . . . . . . . . . . . . . . . . 10
SECTION 6.13.
Counterparts. . . . . . . . . . . . . . . . . . . . 10
EXHIBIT A
Form of Assignment. . . . . . . . . . . . . . . . .A-1
SCHEDULE I
Schedule of Receivables . . . . . . . . . . . . . .I-1
SCHEDULE II
Location of Receivable Files. . . . . . . . . . . II-1
RECEIVABLES PURCHASE AGREEMENT dated as of March 1, 1997, between FIRST
MERCHANTS ACCEPTANCE CORPORATION, a Delaware corporation, as seller (the
"Seller"), and FIRST MERCHANTS AUTO RECEIVABLES CORPORATION II, a Delaware
corporation, as purchaser (the "Purchaser").
RECITALS
WHEREAS in the regular course of its business, the Seller has purchased
certain motor vehicle retail installment sale contracts secured by new and
used automobiles, light-duty trucks, vans and minivans from motor vehicle
dealers;
WHEREAS the Seller and the Purchaser wish to set forth the terms pursuant to
which such contracts are to be sold by the Seller to the Purchaser; and
WHEREAS the Purchaser intends, concurrently with its purchase hereunder, to
convey all of its right, title and interest in and to such contracts to First
Merchants Auto Trust 1997-1 (the "Issuer") pursuant to a Sale and Servicing
Agreement dated as of March 1, 1997 (the "Sale and Servicing Agreement"), by
and among First Merchants Auto Trust 1997-1, as Issuer, First Merchant Auto
Receivables Corporation II, as Seller, First Merchants Acceptance
Corporation, as Servicer, and Xxxxxx Trust and Savings Bank, as Indenture
Trustee and Backup Servicer.
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 XXII
Certain Definitions
Terms not defined in this Agreement shall have the meanings assigned thereto
in the Sale and Servicing Agreement. As used in this Agreement, the
following terms shall, unless the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and plural forms of the terms defined):
"Agreement" shall mean this Receivables Purchase Agreement, as the same may
be amended and supplemented from time to time.
"Assignment" shall mean the document of assignment substantially in the form
attached to this Agreement as Exhibit A.
"Purchaser" shall mean First Merchants Auto Receivables Corporation II, a
Delaware corporation, its successors and assigns.
"Receivable" shall mean any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche).
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Sale and Servicing Agreement" shall have the meaning set forth in the
recitals
"Schedule of Receivables" shall mean the list of Receivables annexed hereto
as Schedule I.
"Seller" shall mean First Merchants Acceptance Corporation, a Delaware
corporation, its successors and assigns.
ARTICLE XXIII
Conveyance of Receivables
SECTION 2.01.
Conveyance of Receivables. In consideration of the Purchaser's delivery to
or upon the order of the Seller on the Closing Date of $103,103,035.03, the
Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein) all
right, title, and interest of the Seller in and to:
(a)
the Receivables and all monies received thereon on or after March 1, 1997;
(b)
the security interests in the Financed Vehicles and any accessions thereto
granted by Obligors pursuant to the Receivables and any other interest of the
Seller in such Financed Vehicles;
(c)
any Liquidation Proceeds and any other proceeds with respect to the
Receivables from claims on any physical damage, credit life or disability
insurance policies covering Financed Vehicles or Obligors, including any
vendor's single interest or other collateral protection insurance policy;
(d)
any property that shall have secured a Receivable and that shall have been
acquired by or on behalf of the Seller;
(e)
all documents and other items contained in the Receivable Files; and
(f)
the proceeds of any and all of the foregoing.
The Seller and the Purchaser intend that the transfer of assets by the Seller
to the Purchaser pursuant to this Agreement be a sale of the ownership
interest in such assets to the Purchaser, rather than the mere granting of a
security interest to secure a borrowing. In the event, however, that such
transfer is deemed not to be a sale but to be of a mere security interest to
secure a borrowing, the Seller shall be deemed to have hereby granted to the
Purchaser a perfected first priority security interest in all such assets,
and this Agreement shall constitute a security agreement under applicable
law. Pursuant to the Sale and Servicing Agreement and Section 6.04 hereof,
the Purchaser may sell, transfer and reassign to the Issuer (i) all or any
portion of the assets assigned to the Purchaser hereunder, (ii) all or any
portion of the Purchaser's rights against the Seller under this Agreement and
(iii) all proceeds thereof. Such reassignment may be made by the Purchaser
with or without a reassignment by the Purchaser 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 Purchaser or any assignee of the Purchaser
relating to such action by the Purchaser in connection with the transactions
contemplated by the Sale and Servicing Agreement.
SECTION 2.02.
The Closing. The sale and purchase of the Receivables shall take place at a
closing at the offices of Xxxxx & Wood LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 on the Closing Date, simultaneously with the closing under (a)
the Sale and Servicing Agreement and (b) the Indenture.
ARTICLE XXIV
Representations and Warranties
SECTION 3.01.
Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants as follows to the Seller as of the date hereof and as
of the Closing Date:
(a)
Organization and Good Standing. The Purchaser has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is presently conducted.
(b)
Due Qualification. The Purchaser is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications.
(c)
Power and Authority. The Purchaser has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Purchaser had at
all relevant times, and has, the power, authority and legal right to acquire
and own the Receivables; and the execution, delivery and performance of this
Agreement have been duly authorized by the Purchaser by all necessary
corporate action.
(d)
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
articles of incorporation or bylaws of the Purchaser, or any indenture,
agreement or other instrument to which the Purchaser is a party or by which
it is bound, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents), or violate any
law or, to the best of the Purchaser's knowledge, any order, rule or
regulation applicable to the Purchaser of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its properties.
(e)
No Proceedings. There are no proceedings or investigations pending or, to
the Purchaser's knowledge, threatened against the Purchaser before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser or its properties (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.02.
Representations and Warranties of Seller. (a) The Seller hereby represents
and warrants as follows to the Purchaser as of the date hereof and as of the
Closing Date:
(1)
Organization and Good Standing. The Seller has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted.
(2)
Due Qualification. The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(3)
Power and Authority. The Seller has the power and authority to execute and
deliver this Agreement and the other Basic Documents to which it is a party
and to carry out their respective terms; the Seller had at all relevant
times, and has, full power, authority and legal right to sell, transfer and
assign the property sold, transferred and assigned to the Purchaser hereby
and has duly authorized such sale, transfer and assignment to the Purchaser
by all necessary corporate action; and the execution, delivery and
performance of this Agreement and the other Basic Documents to which the
Seller is a party have been duly authorized by the Seller by all necessary
corporate action.
(4)
No Violation. Upon giving effect to the consent described in Section
3.02(b)(14), the consummation of the transactions contemplated by this
Agreement and the other Basic Documents to which the Seller is a party and
the fulfillment of their respective terms 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 articles of
incorporation or bylaws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than this Agreement), or violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the Seller
of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Seller or its properties.
(5)
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.
(6)
Valid Sale, Binding Obligations. This Agreement and the other Basic
Documents to which the Seller is a party, when duly executed and delivered
by the other parties hereto and thereto, shall constitute legal, valid and
binding obligations of the Seller, enforceable against the Seller in
accordance with their respective terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization and 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).
(7)
Chief Executive Office. The chief executive office of the Seller is located
at 000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
(8)
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.
(b)
The Seller makes the following representations and warranties with respect
to the Receivables, on which the Purchaser relies in accepting the Receivables
and in transferring the Receivables to the Issuer under the Sale and
Servicing Agreement, and on which the Issuer relies in pledging the same to
the Indenture Trustee. Such representations and warranties speak as of the
execution and delivery of this Agreement and as of the Closing Date, but
shall survive the sale, transfer and assignment of the Receivables to the
Purchaser, the subsequent sale, transfer and assignment of the Receivables by
the Purchaser to the Issuer pursuant to the Sale and Servicing Agreement and
the Grant thereof pursuant to the Indenture.
(1)
Characteristics of Receivables. Each Receivable (A) was originated in the
United States by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business in accordance with the Seller's
credit policies, was fully and properly executed by the parties thereto, was
purchased by the Seller from such Dealer under an existing Dealer Agreement
and was validly assigned by such Dealer to the Seller, (B) has created or
shall create a valid, subsisting and enforceable first priority security
interest in favor of the Seller in the Financed Vehicle, which security
interest is assignable by the Seller to the Purchaser, and by the Purchaser
to the Issuer, (C) contains customary and enforceable provisions such that
the rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security and (D) provides for
level monthly payments (provided that the payment in the last month of the
term of the Receivable may be different from the level payments) that fully
amortize the Amount Financed by maturity and yield interest at the APR.
(2)
Compliance with Law. Each Receivable and the sale of the related Financed
Vehicle complied at the time it was originated or made, and at the time of
execution of this Agreement complies, 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 Billing Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations "B" and "Z", the Soldiers' and Sailors' Civil Relief Act of
1940, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit laws and equal credit
opportunity and disclosure laws.
(3)
Binding Obligation. Each Receivable represents the genuine, legal, valid
and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless
of whether such enforceability is considered in a proceeding in equity or at
law and (B) as such Receivable may be modified by the application after the
Closing Date of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
(4)
No Government Obligor. No Receivable is due from the United States of
America or any State or any agency, department, subdivision or
instrumentality thereof.
(5)
Obligor Bankruptcy. No Obligor had been identified on the records of the
Seller as being the subject of a current bankruptcy proceeding.
(6)
Schedule of Receivables. The information set forth in Schedule I to this
Agreement is true and correct in all material respects as of the close of
business on the Cutoff Date.
(7)
Marking Records. By the Closing Date, the Seller will have caused its
records relating to each Receivable, including any computer records, to be
clearly and unambiguously marked to show that the Receivables have been sold
to the Purchaser by the Seller and transferred and assigned by the Purchaser
to the Issuer in accordance with the terms of the Sale and Servicing
Agreement and pledged by the Issuer to the Indenture Trustee in accordance
with the terms of the Indenture.
(8)
Computer Tape. The computer tape regarding the Receivables made available
by the Seller to the Purchaser is complete and accurate in all respects as
of the Cutoff Date.
(9)
No Adverse Selection. No selection procedures believed by the Seller to be
adverse to the Noteholders or Certificateholders were utilized in selecting
the Receivables.
(10)
Chattel Paper. The Receivables constitute chattel paper within the meaning
of the UCC as in effect in the State of Illinois.
(11)
One Original. There is only one original executed copy of each Receivable.
(12)
Receivables in Force. No Receivable has been satisfied, subordinated or
rescinded, nor has any Financed Vehicle been released from the lien of the
related Receivable in whole or in part. None of the terms of any Receivable
has been waived, altered or modified in any respect since its origination,
except by instruments or documents identified in the related Receivable
File. No Receivable has been modified as a result of the application of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(13)
Lawful Assignment. No Receivable has been originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or the Sale and Servicing Agreement or the pledge of such
Receivable under the Indenture.
(14)
Title. It is the intention of the Seller that the transfers and assignments
herein contemplated constitute sales of the Receivables from the Seller to
the Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the filing of
a bankruptcy petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the Seller to
any Person other than to the Purchaser or pursuant to this Agreement (or by
the Purchaser to the Issuer pursuant to the Sale and Servicing Agreement).
Immediately prior to the transfers and assignments herein contemplated, the
Seller has good and marketable title to each Receivable free and clear of
all Liens (other than the Lien of the Seller's senior lenders identified in
the Consent dated as of March 31, 1997 under the Fourth Amended and Restated
Loan and Security Agreement dated as of February 29, 1996, by and among the
Seller and such secured lenders), which Lien is being released
simultaneously with the transfers and assignments herein contemplated) and,
immediately upon the transfer thereof, the Purchaser shall have good and
marketable title to each Receivable, free and clear of all Liens.
(15)
Security Interest in Financed Vehicle. Immediately prior to its sale,
assignment and transfer to the Purchaser pursuant to this Agreement, each
Receivable shall be secured by a validly perfected first priority security
interest in the related Financed Vehicle in favor of the Seller as secured
party, or all necessary and appropriate actions have been commenced that
will result in the valid perfection of a first priority security interest in
such Financed Vehicle in favor of the Seller as secured party.
(16)
All Filings Made. All filings (including UCC filings) required to be made
in any jurisdiction to give the Purchaser a first perfected ownership
interest in the Receivables have been made.
(17)
No Defenses. No Receivable is subject to any right of rescission, setoff,
counterclaim or defense, and no such right has been asserted or threatened
with respect to any Receivable.
(18)
No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no waiver
of any of the foregoing. As of the Cutoff Date, no Financed Vehicle has
been repossessed.
(19)
Insurance. The Seller, in accordance with its customary procedures, has
determined that the Obligor has obtained physical damage insurance covering
each Financed Vehicle and, under the terms of the related Contract, the
Obligor is required to maintain such insurance.
(20)
Final Scheduled Maturity Date. No Receivable has a final scheduled payment
date after January 21, 2002.
(21)
Certain Characteristics of the Receivables. As of the Cutoff Date, (A) each
Receivable had an original maturity of not more than 66 months; (B) no
Receivable was more than 30 days past due; and (C) no funds have been
advanced by the Seller, any Dealer or anyone acting on behalf of either of
them in order to cause any Receivable to qualify under clause (B) above.
ARTICLE XXV
Conditions
SECTION 4.01.
Conditions to Obligation of the Purchaser. The obligation of the Purchaser
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 on the Closing Date with the
same effect as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b)
Computer Files Marked. The Seller shall, at its own expense, on or prior to
the Closing Date, indicate in its computer files that the Receivables have
been sold to the Purchaser pursuant to this Agreement and deliver to the
Purchaser the Schedule of Receivables, certified by the Seller's President,
a Vice President or the Treasurer to be true, correct and complete.
(c)
Documents To Be Delivered by the Seller on the Closing Date.
(1)
The Assignment. On the Closing Date, the Seller will execute and deliver an
Assignment with respect to the Receivables, substantially in the form of
Exhibit A hereto.
(2)
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 each
jurisdiction in which required by applicable law, executed by the Seller, as
seller or debtor, and naming the Purchaser, as purchaser or secured party,
describing the Receivables and the other assets assigned to the Purchaser
pursuant to Section 2.01 hereof, 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 Purchaser. The Seller shall deliver to the Purchaser a file-
stamped copy or other evidence satisfactory to the Purchaser of such filing
on or prior to the Closing Date.
(3)
Other Documents. Such other documents as the Purchaser may reasonably
request.
(d)
Other Transactions. The transactions contemplated by the Sale and Servicing
Agreement, the Indenture and the Trust Agreement to be consummated on the
Closing Date shall be consummated on such date.
SECTION 4.02.
Conditions to Obligation of the Seller. The obligation of the Seller to
sell the Receivables to the Purchaser is subject to the satisfaction of the
following conditions:
(a)
Representations and Warranties True. The representations and warranties of
the Purchaser hereunder shall be true and correct on the Closing Date with
the same effect as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b)
Receivables Purchase Price. On the Closing Date, the Purchaser shall have
delivered to the Seller the purchase price specified in Section 2.01.
ARTICLE XXVI
Covenants of the Seller
The Seller agrees with the Purchaser as follows:
SECTION 5.01.
Protection of Right, Title and Interest. (a) Filings. The Seller shall
cause all financing statements and continuation statements and any other
necessary documents covering the right, title and interest of the Seller and
the Purchaser, respectively, in and to the Receivables and the other property
included in the Owner 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 Purchaser hereunder in and to the Receivables and the other
property included in the Owner Trust Estate. The Seller shall deliver to the
Purchaser 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 Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill
the intent of this paragraph.
(b)
Name Change. If the Seller makes any change in its name, identity or
corporate structure that would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute, the Seller
shall give the Purchaser, the Indenture Trustee, the Owner Trustee and the
Security Insurer written notice thereof at least 5 days prior to such change
and shall promptly file such financing statements or amendments as may be
necessary to continue the perfection of the Purchaser's interest in the
property included in the Owner Trust Estate.
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 Purchaser in, to and under the
Receivables against all claims of third parties claiming through or under the
Seller; provided, however, that the Seller's obligations under this Section
shall terminate upon the termination of the Issuer pursuant to the Trust
Agreement.
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, of the Purchaser's and the Issuer's right, title and interest in and
to the Receivables.
SECTION 5.04.
Indemnification. The Seller shall indemnify the Purchaser, the Issuer and
the Security Insurer for any liability resulting from the failure of a
Receivable to be originated in compliance with all requirements of law and
for any breach of any of its representations and warranties contained herein.
These indemnity obligations shall be in addition to any obligation that the
Seller may otherwise have.
ARTICLE XXVII
Miscellaneous Provisions
SECTION 6.01.
Obligations of Seller. The obligations of the Seller under this Agreement
shall not be affected by reason of any invalidity, illegality or irregularity
of any Receivable.
SECTION 6.02.
Repurchase Events. The Seller hereby covenants and agrees with the Purchaser
for the benefit of the Purchaser, the Indenture Trustee, the Owner Trustee,
the Certificateholders, the Noteholders and the Security Insurer that the
occurrence of a breach of any of the Seller's representations and warranties
contained in Section 3.02(b) shall constitute an event obligating the Seller
to repurchase the Receivables to which the breach is applicable ("Repurchase
Events"), at the Purchase Amount, from the Purchaser or from the Issuer, as
applicable, unless any such breach shall have been cured by the last day of
the first Collection Period following the discovery or notice thereof by or
to the Seller or the Servicer. The repurchase obligation of the Seller shall
constitute the sole remedy available to the Purchaser, the Indenture Trustee,
the Owner Trustee, the Issuer, the Noteholders or the Certificateholders
against the Seller with respect to any Repurchase Event.
SECTION 6.03.
Purchaser Assignment of Repurchased Receivables. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the
Purchaser shall assign, without recourse, representation or warranty, to the
Seller all of the Purchaser's right, title and interest in and to such
Receivables and all security and documents relating thereto.
SECTION 6.04.
Transfer to the Issuer. The Seller acknowledges and agrees that (a) the
Purchaser 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 the Issuer will pledge the Receivables to
the Indenture Trustee and (b) the representations and warranties contained in
this Agreement and the rights of the Purchaser under this Agreement,
including under Section 6.02, are intended to benefit the Issuer, the
Noteholders, the Certificateholders and the Security Insurer. The Seller
hereby consents to such transfers and assignments.
SECTION 6.05.
Amendment. This Agreement may be amended from time to time, with prior
written notice to the Rating Agencies and, so long as the Security Insurer is
the Controlling Party under the Sale and Servicing Agreement, the prior
written consent of the Security Insurer but without the consent of the
Noteholders or the Certificateholders, by a written amendment duly executed
and delivered by the Seller and the Purchaser, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or
Certificateholders; provided that such amendment shall not, as evidenced by
an Opinion of Counsel, materially and adversely affect the interest of any
Noteholder or Certificateholder. This Agreement may also be amended by the
Seller and the Purchaser, with prior written notice to the Rating Agencies
and the prior written consent of Holders of Notes evidencing at least a
majority of the Outstanding Amount of the Notes and Holders of Certificates
evidencing at least a majority of the Certificate Balance (excluding, for
purposes of this Section 6.05, Certificates held by the Seller or any of its
affiliates) and, so long as the Security Insurer is the Controlling Party
under the Sale and Servicing Agreement, the prior written consent of the
Security Insurer, 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 Certificateholders;
provided, however, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that are required to be made for the
benefit of Noteholders or Certificateholders or (ii) reduce the aforesaid
percentage of the Notes or the Certificates that is required to consent to
any such amendment, without the consent of the Holders of all the outstanding
Notes and Certificates.
SECTION 6.06.
Waivers. No failure or delay on the part of the Purchaser in exercising any
power, right or remedy under this Agreement or the Assignment shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
power, right or remedy preclude any other or further exercise thereof or the
exercise of any other power, right or remedy.
SECTION 6.07.
Notices. All demands, notices and communications under this Agreement shall
be in writing, personally delivered or mailed by certified mail, return
receipt requested, to: (a) in the case of the Seller, First Merchants
Acceptance Corporation, 000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxx Xxxxxxx; (b) in the case of the Purchaser, First
Merchants Auto Receivables Corporation II, 000 Xxxx Xxxx Xxxx, Xxxxx 000X,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx; (c) in the case of
Moody's, Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (d) in the case of Standard &
Poor's, Standard & Poor's Ratings Service, 00 Xxxxxxxx (00xx Xxxxx), Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance Department; (e) in
the case of the Security Insurer, Financial Security Assurance Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: 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 6.08.
Costs and Expenses. The Seller shall pay all expenses incident to the
performance of its obligations under this Agreement and the Seller agrees to
pay all reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in and to
the Receivables and the enforcement of any obligation of the Seller
hereunder.
SECTION 6.09.
Representations of the Seller and the Purchaser. The respective agreements,
representations, warranties and other statements by the Seller and the
Purchaser set forth in or made pursuant to this Agreement shall remain in
full force and effect and will survive the closing under Section 2.02 and the
transfers and assignments referred to in Section 6.04.
SECTION 6.10.
Confidential Information. The Purchaser agrees that it will neither use nor
disclose to any Person the names and addresses of the Obligors, except in
connection with the enforcement of the Purchaser's rights hereunder, under
the Receivables, under the Sale and Servicing Agreement or any other Basic
Document, or as required by any of the foregoing or by law.
SECTION 6.11.
Headings and Cross-References. The various headings in this Agreement are
included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this
Agreement to section names or numbers are to such Sections of this Agreement.
SECTION 6.12.
Governing Law. This Agreement and the Assignment shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder or thereunder shall be determined in accordance with such
laws.
SECTION 6.13.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first above written.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By:
Name: Xxxxx X. Xxxx
Title: Treasurer
FIRST MERCHANTS AUTO
RECEIVABLES CORPORATION II
By:
Name: Xxxxx X. Xxxx
Title: Treasurer
EXHIBIT A
Form of Assignment
ASSIGNMENT
For value received, in accordance with the Receivables Purchase Agreement
dated as of March 1, 1997 (the "Receivables Purchase Agreement"), between the
undersigned and First Merchants Auto Receivables Corporation II (the
"Purchaser"), the undersigned does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse, all right, title and
interest of the undersigned in and to (i) the Receivables and all monies
received thereon on or after March 1, 1997; (ii) the security interests in
the Financed Vehicles and any accessions thereto granted by Obligors pursuant
to the Receivables and any other interest of the Seller in such Financed
Vehicles; (iii) any Liquidation Proceeds and any other proceeds with respect
to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors,
including any vendor's single interest or other collateral protection
insurance policy; (iv) any property that shall have secured a Receivable and
that shall have been acquired by or on behalf of the Seller; (v) all
documents and other items contained in the Receivable Files; and (vi) the
proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by the Purchaser
of any obligation of the undersigned to the Obligors, insurers or any other
person in connection with the Receivables, the Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations, warranties
and agreements on the part of the undersigned contained in the Receivables
Purchase Agreement and is to be governed by the Receivables Purchase
Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meaning assigned to them in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of March , 1997.
FIRST MERCHANTS ACCEPTANCE CORPORATION,
By:
Name:
Title:
SCHEDULE I
Schedule of Receivables
SCHEDULE II
Location of Receivable Files
