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EXHIBIT 10.2
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FORM OF PURCHASE AGREEMENT
between
[Originator],
as
Seller
and
XXXXXX BROTHERS ASSET SECURITIZATION LLC,
as
Purchaser
Dated as of [___________], 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions...................................................................2
SECTION 1.2. Other Interpretive Provisions.................................................2
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 Seller......................................3
SECTION 3.2. Representations and Warranties as to Each Receivable..........................4
SECTION 3.3. Repurchase upon Breach........................................................8
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1. Protection of Title to Seller Assets..........................................9
SECTION 4.2. Liability of Seller; Indemnities.............................................10
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Seller........................................................11
SECTION 5.2. Seller's Assignment of Purchased Receivables.................................11
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee..........................12
SECTION 5.4. Amendment....................................................................12
SECTION 5.5. Waivers......................................................................14
SECTION 5.6. Notices......................................................................14
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SECTION 5.7. Costs and Expenses...........................................................14
SECTION 5.8. Representations by Seller and Purchaser......................................14
SECTION 5.9. Governing Law................................................................14
SECTION 5.10. Counterparts.................................................................14
Exhibit A - Location of Seller and Purchaser
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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 ___th day
of ___________, 2001 by and between [Originator], a national banking association
(the "Seller"), and XXXXXX BROTHERS ASSET SECURITIZATION LLC, a Delaware limited
liability company (the "Purchaser").
WHEREAS, in the regular course of its business, Seller purchases or
originates Motor Vehicle Loans secured by new and used automobiles and light
trucks from motor vehicle dealers;
WHEREAS, Purchaser desires to purchase from Seller a portfolio of Motor
Vehicle Loans arising in connection with Motor Vehicle Loans purchased by the
Seller from Dealers or originated by Seller; and
WHEREAS, Seller 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 [ ], as
issuer, the Purchaser, as seller, and [ ], as servicer, except that references
in Appendix X to the "Seller" shall be deemed to be references to Purchaser
hereunder and references to a "Seller Affiliate" shall be deemed to be
references to the Seller hereunder.
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 generally accepted accounting principles; (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,
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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.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables. (a) 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, Seller does
hereby sell, transfer, assign, set over and otherwise convey to Purchaser,
without recourse (subject to the obligations herein) (the "Seller Assets"):
(i) all right, title and interest of Seller in and to the
Receivables, and all moneys received thereon [on or] after the Cutoff
Date;
(ii) all right, title and interest of Seller in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of Seller in the Financed Vehicles
and any other property that shall secure the Receivables;
(iii) the interest of Seller 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 the Seller 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 Seller in any proceeds from (i) 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, (ii) a default by an Obligor resulting in the
repossession of the Financed Vehicle under the applicable Motor Vehicle
Loan or (iii) any Dealer Recourse or other rights relating to the
Receivables under Dealer Agreements;
(vi) all right, title and interest of Seller in any instrument
or document relating to the Receivables; and
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(vii) the proceeds of any and all of the foregoing.
(b) 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 Seller 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.
SECTION 2.2. Receivables Purchase Price. In consideration for the
Seller Assets, Purchaser shall, on the Closing Date, pay to Seller the
Receivables Purchase Price. The "Receivables Purchase Price" shall be an amount
equal to 100% of the sum of the following amounts: (i) the aggregate principal
balance of the Seller's Receivables as of the Cutoff Date; (ii) accrued interest
on such Receivables from the last payment date on the Receivables prior to
Cutoff Date and to and including the day immediately preceding the Closing Date;
and (iii) [insert appropriate adjustments]. The Receivables Purchase Price shall
be paid by __________________ same day funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Seller.
Seller 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. Seller has been duly
organized and is validly existing as [________________] in good
standing under the laws of [____________], 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 Seller Assets pursuant to Article II.
(b) Power and Authority. Seller 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 Seller Assets; and the execution,
delivery and performance of this Agreement has been duly authorized by
Seller 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
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Agreement or the consummation of the transactions contemplated hereby
or thereby, other than the filing of UCC financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this
Agreement to effect a valid sale, transfer, and assignment of the
Receivables and the other properties and rights included in the Seller
Assets conveyed by Seller to Purchaser hereunder, enforceable against
creditors of and purchasers from Seller; and this Agreement constitutes
a legal, valid and binding obligation of Seller, 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 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
Seller 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 [_____________] or bylaws
of Seller, (ii) any material indenture, contract, lease, mortgage, deed
of trust or other instrument or agreement to which Seller is a party or
by which Seller is bound, or (iii) any law, order, rule or regulation
applicable to Seller of any federal or state regulatory body, any
court, administrative agency, or other governmental instrumentality
having jurisdiction over Seller.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Seller, threatened, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties: (i) asserting the invalidity of this Agreement or 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 Seller 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
Seller is set forth in Exhibit A attached hereto.
SECTION 3.2. Representations and Warranties as to Each Receivable.
Seller 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
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Purchaser hereunder[,] [and] the 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.]
(a) Characteristics of Receivables. The Receivable has been
fully and properly executed by the parties thereto and (i) is a Direct
Loan made by an Originator or has been originated by a Dealer in the
ordinary course of such Dealer's business and has been purchased by an
Originator, in either case, in the ordinary course of such Originator's
business and in accordance with such Originator's underwriting
standards to finance the retail sale by a Dealer of the related
Financed Vehicle or has otherwise been acquired by the Seller, (ii) the
Originator of which has underwriting standards that require physical
damage insurance to be maintained on the related Financed Vehicle,
(iii) is secured by a valid, subsisting, binding and enforceable first
priority security interest in favor of the Seller 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 by Purchaser to the Issuer, (iv) 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, (v) provided, at
origination, for level monthly payments (provided that the amount of
the last payment may be different), which fully amortize the Initial
Principal Balance over the original term, (vi) provides for interest at
the Contract Rate specified in the Schedule of Receivables, (vii) was
originated in the United States 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 either a Motor Vehicle; (ii) each Receivable
has a Contract Rate of at least ____% and not more than ____%; (iii)
each Receivable had a remaining number of scheduled payments, as of the
Cutoff Date, of not less than ____ and not more than ____; (iv) each
Receivable had an Initial Principal Balance of not less than
$__________ and not more than $__________; (v) no Receivable was more
than 30 days past due as of the Cutoff Date; (vi) no Financed Vehicle
had been repossessed as of the Cutoff Date; (vii) no Receivable is
subject to a force placed Physical Damage Insurance Policy on the
related Financed Vehicle; [(viii) each Receivable is a Simple Interest
Receivable;] and (ix) the Dealer of the Financed Vehicle has no
participation in, or other right to receive, any proceeds of the
Receivable. 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 Initial Principal Balance, the maturity date
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and the Contract Rate, was true and correct in all material respects as
of the close of business on the Cutoff Date.
(d) Compliance with Law. The Receivable 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 Billing 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. Seller 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 this
Agreement, and no amendment, waiver, alteration or modification causes
such Receivable not to conform to the other representations or
warranties contained in this Section 3.2.
(h) No Liens. Seller has not received notice of any 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 not more than 30 days as of the Cutoff Date, to the
knowledge of Seller, no default, breach, violation or event permitting
acceleration under the terms of the Receivable exists 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.
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(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.
(k) Good Title. It is the intention of Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from Seller to Purchaser and that the beneficial interest
in and title to the Receivables not be part of Seller's estate in the
event of the filing of a bankruptcy petition or insolvency proceeding
by or against Seller under any bankruptcy or insolvency law. No
Receivable has been sold, transferred, assigned, or pledged by Seller
to any Person other than Purchaser. Immediately prior to the transfer
and assignment herein contemplated, Seller 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.
(l) Obligations. Seller has duly fulfilled all 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, the Seller 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, Seller shall have
caused the portions of Seller's electronic master record of Motor
Vehicle Loans relating to the Receivables to be clearly and
unambiguously marked to show that the Receivable is owned by Purchaser
in accordance with the terms of this Agreement.
(p) No Assignment. As of the Closing Date, Seller shall not
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. The Receivable has not been originated
in, and is not 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
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unlawful, void or voidable. Seller 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 the Seller against the unenforceability of each Receivable
sold thereunder, and the rights of Seller 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.
(s) Composition of Receivable. No Receivable has a Principal
Balance which includes capitalized interest or late charges.
(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.
SECTION 3.3. Repurchase upon Breach. Seller 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 Seller in Section 3.2; provided that the failure to give such
notice shall not affect any obligation of Seller. 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 Seller
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, Seller shall repurchase
each such Receivable from Purchaser 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. Notwithstanding the foregoing, any
such breach or failure with respect to the representations and warranties
contained in Section 3.2 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 Issuer to receive and retain payment in
full on such Receivable. In consideration of the purchase of a Receivable
hereunder, Seller 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 Collection Account. The sole remedy of
Purchaser with respect to a breach or failure to be true of the representations
and warranties made by Seller pursuant to Section 3.2 shall be to require Seller
to repurchase Receivables pursuant to this Section 3.3.
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ARTICLE IV
COVENANTS OF SELLER
Seller covenants and agrees with Purchaser as follows:
SECTION 4.1. Protection of Title to Seller Assets. (a) Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of
Purchaser, Owner Trustee and Indenture Trustee in the Receivables and the
proceeds thereof. Seller 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) Seller shall not change its name, identity or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-507 of the UCC, unless it shall have
given Purchaser, Owner Trustee and Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Seller shall give Purchaser, Owner Trustee and Indenture Trustee at
least 60 days' prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement.
(d) Seller 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, Seller'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 Seller or purchased by Servicer.
(e) If at any xxxx Xxxxxx 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, Seller shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer
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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) Seller shall permit Purchaser, Owner Trustee and Indenture Trustee
and its agents at any time during normal business hours to inspect, audit and
make copies of and abstracts from Seller'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 or under
any of the Basic Documents, Seller shall furnish to Purchaser, 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, 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) Seller 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 to fully 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 three 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 the Interest of Purchaser in the
Receivables.
SECTION 4.2. Liability of Seller; Indemnities. Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by Seller under this Agreement.
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(a) Seller shall indemnify, defend and hold harmless
Purchaser, Issuer, Owner Trustee and Indenture Trustee 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) Seller shall indemnify, defend and hold harmless
Purchaser, Issuer, Owner Trustee, Indenture Trustee, 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) Seller's willful misfeasance,
bad faith or gross negligence in the performance of its duties under
this Agreement, and (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.
(c) Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless Purchaser and its officers,
directors, employees and agents from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or
incurred in connection with, the acceptance or performance of the
duties set forth herein, except to the extent that such cost, expense,
loss, claim, damage or liability shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of
Purchaser.
Indemnification under this Section 4.2 shall survive the termination of this
Agreement and shall include reasonable fees and expenses of counsel and other
expenses of litigation. If Seller shall have made any indemnity payments
pursuant to this Section 4.2 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.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Seller. The obligations of Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 5.2. Seller's Assignment of Purchased Receivables. With respect
to all Receivables repurchased by Seller pursuant to this Agreement, Purchaser
shall assign, without
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recourse, representation or warranty, to Seller 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.
Seller 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
3.3 hereof are intended to benefit Issuer, the Owner Trustee, the
Noteholders and the Certificateholders. Seller 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 the representations and
warranties contained in this Agreement and the rights of Purchaser
under this Agreement, including under Section 3.3 are intended to
benefit the Indenture Trustee and the Noteholders. Seller hereby
consents to such pledge.
SECTION 5.4. Amendment. (a) This Agreement may be amended by Seller 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 treated as, a "financial asset securitization investment trust" as described
in the provisions of the "Small Business Job Protection Act of 1996," or to
enable all or a portion of the Issuer to qualify and an election to be made for
similar treatment under such comparable subsequent federal income tax provisions
as may ultimately be enacted into law, 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 each Rating Agency shall have notified the Seller,
Purchaser, the Servicer, Indenture Trustee and the Owner Trustee in writing that
the amendment will not result in a reduction or withdrawal
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of the rating of any outstanding Notes or Certificates with respect to which it
is a Rating Agency; 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 derecognized under GAAP by Purchaser to Issuer, (b)
Issuer to avoid becoming a member of Purchaser's consolidated group under GAAP
or (c) the Seller 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
each Rating Agency shall have notified the Seller, Purchaser, the Servicer,
Indenture Trustee and the Owner Trustee in writing that the amendment will not
result in a reduction or withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency.
(b) This Agreement may also be amended from time to time by Seller 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 Balance 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 Balance, 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. Promptly after the execution of any such amendment or
consent, Purchaser shall furnish written notification of the substance of such
amendment or consent to each Noteholder and Certificateholder and to Servicer,
Owner Trustee and Indenture Trustee.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section 5.4 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 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)(i) has been delivered. Purchaser, Owner
Trustee and Indenture Trustee may, but shall not be obligated to, enter into any
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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. Seller will pay all expenses incident
to the performance of its obligations under this Agreement. Purchaser agrees to
pay 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.
SECTION 5.8. Representations by Seller and Purchaser. The respective
agreements, representations, warranties and other statements by Seller and
Purchaser set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the Closing Date.
SECTION 5.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
[SIGNATURE PAGE FOLLOWS]
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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.
[ORIGINATOR]
By:
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Name:
Title:
XXXXXX BROTHERS ASSET SECURITIZATION LLC
By:
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Name:
Title:
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EXHIBIT A
LOCATION OF SELLER AND PURCHASER
[ORIGINATOR]
Address for Notice:
[--------------]
XXXXXX BROTHERS ASSET SECURITIZATION LLC
Address for Notice:
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