ORIGINATOR
AND
ACC CONSUMER FINANCE CORPORATION
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RECEIVABLES ACQUISITION AGREEMENT
Dated as of ________ __, 199__
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ALL RIGHTS, TITLE AND INTEREST IN AND TO THIS AGREEMENT ON THE PART OF ADVANTA AUTO FINANCE CORPORATION HAVE BEEN ASSIGNED TO AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF _________________________, AS TRUSTEE, UNDER [A [POOLING AND SERVICING AGREEMENT] [A TRUST AGREEMENT]] [AN INDENTURE] DATED AS OF _____________, 199__ FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
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TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRANSFER OF RECEIVABLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.01. Transfer of Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. The Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.03. The Funding Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.01. Representations and Warranties of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.02. Representations and Warranties of the Originator . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.01. Conditions to Obligation of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.02. Conditions to Obligation of the Originator . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ORIGINATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.01. Protection of Right, Title and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.02. Other Liens or Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.03. Principal Executive Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.04. Trustee as Additional Insured. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.05. Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.06. No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.07. Location of Servicer Files. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.08. Transfer of Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.09. Originator's Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.10. Transfer of Additional Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.11. No Bankruptcy Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.12. Covenants Regarding Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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ARTICLE VI
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.01. Obligations of Originator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.02. Reacquisition Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.03. The Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.04. Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.05. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.06. Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.07. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.08. Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.09. Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.10. Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.11. Headings and Cross-References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.12. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.13. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
EXHIBIT A ASSIGNMENT
EXHIBIT B SCHEDULE OF RECEIVABLES
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RECEIVABLES ACQUISITION AGREEMENT
This RECEIVABLES ACQUISITION AGREEMENT is made as of this __th day of ____, 199__, by and between ________________, a ___________ [corporation], having its principal executive office at _______________________ (the "Originator") and ACC Consumer Finance Corporation, a Delaware corporation, having its principal place of business at 12750 High Bluff Drive, Suite 320, San Diego, California, 92130 (the "Depositor").
WHEREAS, the Originator and the Depositor wish to set forth the terms pursuant to which (i) the Receivables (as hereinafter defined) are to be pledged, transferred, assigned and otherwise conveyed by the Originator to the Depositor, which Receivables will be transferred and assigned by the Depositor, pursuant to the [[Pooling and Servicing Agreement] [Trust Agreement]] (as hereinafter defined), to ACC Automobile Receivables Trust (the "Trust") to be created thereunder, which Trust will issue [certificates as security for the loan from the securityholders to the Originator (the "Class __ [Certificates] [Notes]"); and (ii) additional Receivables will from time to time be pledged, transferred, assigned and otherwise conveyed by the Originator to the Depositor, which Receivables will then be transferred and assigned by the Depositor to the Trust on Funding Dates (as hereinafter defined); and
WHEREAS, all Receivables transferred pursuant to this Agreement shall constitute Eligible Receivables (as hereinafter defined) as of the Closing Date or the Funding Date, as the case may be, on which they are transferred hereunder.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable consideration, and the mutual terms and covenants contained herein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth in the [[Pooling and Servicing Agreement] [Trust Agreement]] dated as of _______, 199__ among the Depositor, the Originator, and _________________, as trustee ("[Pooling and Servicing Agreement] [Trust 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 Acquisition Agreement and all amendments hereof and supplements hereto. 5
"Assignment" shall mean the document of assignment attached to this Agreement as Exhibit A.
"Class __ [Certificate] [Note]" shall have the meaning specified in the [Pooling and Servicing Agreement] [Trust Agreement].
"Closing Date" shall mean ________, 199__.
"Closing Date Receivables" shall mean the Receivables acquired by the Depositor from the Originator pursuant to the Agreement on the Closing Date.
"Collections" shall mean all amounts collected by the [Master Servicer] or any Servicer or Subservicer (as defined in the [Pooling and Servicing Agreement] [Trust Agreement]) (from whatever source) on or with respect to the Receivables.
"Custodian Files" shall have the meaning specified in the [Pooling and Servicing Agreement] [Trust Agreement].
"Cutoff Date" shall mean __________, 199__ with respect to the Closing Date and the last Business Day of each calendar week preceding the calendar week of a Funding Date, with respect to each Funding Date.
"Eligible Receivable" means any Receivable as to which all of the representations set forth in Section 3.02(b) hereof are true.
"Funding Date" shall mean each date occurring no more than once per calendar week during the period beginning on the Closing Date and ending on _________, 199__.
"Funding Date Receivables" means, with respect to a Funding Date, the Eligible Receivables to be pledged, transferred, assigned and otherwise conveyed by the Originator to the Depositor on such date and identified on Schedule I attached to an Assignment substantially in the form of Exhibit A hereto delivered on such Funding Date.
"Funding Event" shall mean, with respect to a Funding Date, the occurrence of the events described in the definition of Funding Date.
"[Master Servicer]" shall mean ___________________, a _________ [corporation], its successors and assigns.
"Obligor" shall have the meaning specified in the [Pooling and Servicing Agreement] [Trust Agreement].
"Originator" shall mean _____________, a ___________ [corporation], its successors and assigns.
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"Person" shall have the meaning specified in the [Pooling and Servicing Agreement] [Trust Agreement].
"[Pooling and Servicing Agreement] [Trust Agreement]" shall mean the [Pooling and Servicing Agreement] [Trust Agreement] by and among the Originator; the Depositor; and ___________, as trustee, dated as of _________, 199__.
["Pre-Funding Review" means a review conducted by the Review Firm prior to the Closing Date and each Funding Date with respect to Receivables to be included in the Trust Fund as of such date and prior to the Closing Date with respect to certain historical data included in the Prospectus Supplement dated ____________, 199__ (the "Prospectus Supplement"). The Review Firm will review the Receivable files to determine:
(A) with respect to a randomly selected,
statistically valid sample of such Receivables, whether such
Receivables constitute Eligible Receivables;
(B) with respect to each Receivable, the
existence and delivery to the Trustee of:
(1) the original retail installment sale
contract evidencing such Receivable,
(2) an original certificate or an
original or copy of a guarantee of title or a copy of
dealer guarantee of title, and
(3) a copy of an application for, or an
instrument certificate issued by the Risk Default
Insurer; and
(C) with respect to the Receivables to be
included in the Trust Fund as of the Closing Date or a Funding
Date, as the case may be, confirmation of certain figures
stated on a report substantially in the form of Exhibit to the
[Pooling and Servicing Agreement] [Trust Agreement].]
"Rating Agency" shall mean ___________________ or any successors thereto.
"Receivable" shall mean any retail installment sale contract and installment loan identified on Exhibit B hereto which shall be amended from time to time on Funding Dates.
"Receivables Cash Purchase Price" with respect to each Eligible Receivable pledged, transferred, assigned and otherwise conveyed on the Closing Date, and each Eligible Receivable pledged, transferred, assigned and otherwise
3 7 conveyed on a Funding Date, shall mean __% of the Principal Amount thereof plus accrued interest from the respective Cutoff Date to the Closing Date or the Funding Date, as the case may be.
"Replacement Receivable" shall mean a Receivable which (i) previously secured a receivable originated by the Originator and (ii) was repossessed due to a default on such prior receivable or a voluntary return of such vehicle by the Obligor.
"Reacquisition Event" shall have the meaning specified in Section 7.02 hereof.
["Review Firm" shall mean ________________, its successors and assigns or another firm of independent certified public accountants selected by the Depositor]
"Risk Default Insurance Policy" or "Risk Default Policy" means auto loan protection insurance naming the Trustee as an insured, which covers the Receivables, and which insurance is currently issued by _______________________________.
"Risk Default Insurer" means _____________________, its successors and assigns.
"Schedule of Receivables" shall mean the list of Receivables annexed hereto as Exhibit B.
"Servicer Files" shall have the meaning specified in the [Pooling and Servicing Agreement] [Trust Agreement].
"Trust" shall mean the ACC Automobile Receivables Trust.
"Trustee" shall mean ______________________, its successors and assigns.
"UCC" shall mean the Uniform Commercial Code, as in effect from time to time in the relevant jurisdictions.
"Underwriter" shall mean _______________, its successors and assigns.
ARTICLE II
TRANSFER OF RECEIVABLES
Section 2.01. TRANSFER OF RECEIVABLES. On the Closing Date and on each Funding Date, subject to the terms and conditions of this Agreement, the Originator agrees to pledge, transfer, assign and otherwise convey to the
4 8 Depositor, and the Depositor agrees to acquire from the Originator, Eligible Receivables and the other Trust Property relating thereto (as defined in Section 2.01(a) below). The Receivables transferred on the Closing Date are identified in an exhibit substantially in the form of Exhibit B hereto and shall be covered by an Assignment substantially in the form of Exhibit A hereto. The Receivables pledged, transferred, assigned and otherwise conveyed on each Funding Date shall be identified on Schedule I to Exhibit B attached to an Assignment substantially in the form of Exhibit A hereto.
(a) Initial Transfer of Receivables and Trust Property. On
the Closing Date and simultaneously with the transactions pursuant to
the [Pooling and Servicing Agreement] [Trust Agreement], the
Originator shall pledge, transfer, assign and otherwise convey to the
Depositor, without recourse, a 100% interest in (i) all right, title
and interest of the Originator in and to the Closing Date Receivables,
and all moneys due thereon (with respect to Precomputed Receivables),
on and after the Cutoff Date (ii) the security interest of the
Originator in the security interests in the Financed Vehicles granted
by the Obligors pursuant to the Closing Date Receivables and all
certificates of title to such Financed Vehicles; (iii) the interest of
the Originator in any proceeds from claims on any physical damage,
credit life, risk default or disability insurance policies covering
the Financed Vehicles or the Obligors from the Cutoff Date; and (iv)
the proceeds of any and all of the foregoing and any recourse in
equity or by contract against the Originator. (All of the property
identified in this subsection (a) and the following subsection (c)
shall constitute the "Trust Property.")
(b) Receivables Cash Purchase Price--Closing Date. In
consideration for the Receivables and Trust Property described in
Section 2.01(a), the Depositor shall, on the Closing Date, pay to the
Originator 100% of the Receivables Cash Purchase Price in cash by
federal wire transfer (same day) funds.
(c) Transfer of Receivables and Trust Property on Funding
Dates. On each Funding Date, the Originator shall pledge, transfer,
assign and otherwise convey to the Depositor, without recourse, a 100%
interest in (i) all right, title and interest of the Originator in and
to the Funding Date Receivables identified on an Exhibit substantially
in the form of Schedule I to Exhibit B hereto delivered on such
Funding Date, and all moneys received thereon subsequent to the
respective Cutoff Date; (ii) the security interest of the Originator
in the Financed Vehicles granted by the Obligors pursuant to such
Receivables and the certificates of title to such Financed Vehicles;
(iii) the interest of the Originator
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in any proceeds from claims on any physical damage, credit life, risk
default or disability insurance policies covering such Financed
Vehicles or such Obligors from the related Cutoff Date; and (iv) the
proceeds of any and all of the foregoing; provided, however, that (A)
the minimum amount of Receivables pledged, transferred, assigned or
otherwise conveyed to the Depositor on any Funding Date, other than
the Final Funding Date, shall be not less than $____________, (B) the
Depositor shall comply with the requirements specified in Section ___
of the [Pooling and Servicing Agreement] [Trust Agreement] as a
condition to any such pledge, transfer, assignment or other conveyance
and (C) the Pre-Funding Account shall contain available funds in an
amount at least equal to the Receivables Cash Purchase Price for such
Funding Date Receivables immediately prior to the Funding Event.
(d) Receivables Cash Purchase Price--Funding Date. In
consideration for the Funding Date Receivables and other Trust
Property relating thereto described in Section 2.1(c), upon one
Business Days' prior notice given by the Depositor to the Trustee, the
Depositor shall cause the Trustee, on each Funding Date, to pay to the
Originator an amount equal to 100% of the Receivables Cash Purchase
Price in cash by federal wire transfer funds. The Originator
acknowledges that the funds to effect the transfer of the Funding Date
Receivables and other Trust Property relating thereto on each Funding
Date shall be disbursed by the Trustee solely from the Pre-Funding
Account pursuant to Section ______ of the [Pooling and Servicing
Agreement] [Trust Agreement].
(e) Assignment by the Depositor In addition, concurrently
with the transfer by the Depositor of the Receivables to the Trust, on
the Closing Date, the Depositor shall assign to the Originator all of
the Depositor's remaining rights to the Trust Fund and all rights of
the Depositor under the [Pooling and Servicing Agreement] [Trust
Agreement].
Section 2.02. THE CLOSING. The transfer of the Receivables shall take place at a closing (the "Closing") at the offices of Dewey Ballantine, 1301 Avenue of the Americas, New York, New York 10019 on the Closing Date, simultaneously with the closings under: (a) the [Pooling and Servicing Agreement] [Trust Agreement] pursuant to which (i) the Depositor will assign all of its right, title and interest in and to the Receivables and other Trust Property to the Trustee for the benefit of the [Certificateholders] [Noteholders]; and (ii) the Trustee will deposit the foregoing into the Trust in exchange for the Class __ [Certificates] [Notes]; and (b) the purchase of the [Certificates] [Notes] by the Class __ [Certificateholders] [Noteholders].
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Section 2.03. THE FUNDING EVENTS. The transfer of the Funding Date Receivables on each Funding Date shall take place at the offices of the Trustee or at such other location as the Depositor and the Originator may reasonably agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor hereby represents and warrants to the Originator and for the benefit of the Trustee, the [Certificateholders] [Noteholders] and the Trust as of the date hereof and as of the Closing Date and as of each Funding Date:
(a) Organization, Etc. The Depositor is a corporation duly
organized under the laws of the State of Delaware pursuant to its
Articles of Incorporation and is validly existing as a corporation and
in good standing under the laws of the State of Delaware, and has full
power and authority to execute and deliver this Agreement and to
perform the terms and provisions hereof and thereof.
(b) Due Authorization. The execution, delivery and
performance by the Depositor of this Agreement have been duly
authorized by all necessary corporate action, do not require any
approval or consent of any governmental agency or authority, do not
and will not conflict with any material provision of the Articles of
Incorporation or Bylaws of the Depositor, and do not and will not
conflict with or result in a breach which would constitute a material
default under any agreement for borrowed money binding upon or
applicable to it or such of its property which is material to it, or
to the best of the Depositor's knowledge, any law or governmental
regulation or court decree applicable to it or such material property,
and this Agreement is the legal, valid and binding obligation of the
Depositor enforceable in accordance with its terms except as the same
may be limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or by
general equity principles.
(c) No Litigation. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is
presently pending, or to the knowledge of the Depositor threaten ...
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