Exhibit 99.3
FORM OF RECEIVABLES PURCHASE AGREEMENT
between
USAA FEDERAL SAVINGS BANK
as Seller
and
USAA ACCEPTANCE, LLC
as Depositor
Dated as of _________, 200_
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Table of Contents
Page
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Article I
Interpretation
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Section 1.01. Definitions and
Usage..............................................................................1
Article II
Conveyance of Receivables
Section 2.01. Conveyance of
Receivables..........................................................................2
Section 2.02. The
Closing........................................................................................2
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of
the
Depositor....................................................3
Section 3.02. Representations and Warranties of
the
Seller.......................................................4
Article IV
Conditions
Section 4.01. Conditions to Obligation of the
Depositor..........................................................9
Section 4.02. Conditions to Obligation of the
Seller............................................................10
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and
Interest...........................................................11
Section 5.02. Other Liens or
Interests..........................................................................12
Section 5.03. Costs and
Expenses................................................................................12
Section 5.04. Hold
Harmless.....................................................................................12
Article VI
Indemnification
Section 6.01.
Indemnification...................................................................................12
Section 6.02.
Contribution......................................................................................15
Article VII
Miscellaneous Provisions
Section 7.01. Obligations of
Seller.............................................................................15
Section 7.02. Repurchase
Events.................................................................................15
Section 7.03. Depositor Assignment of
Repurchased
Receivables...................................................15
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Section 7.04. Transfer to the
Issuer............................................................................16
Section 7.05.
Amendment.........................................................................................16
Section 7.06.
Waivers...........................................................................................16
Section 7.07.
Notices...........................................................................................16
Section 7.08. Costs and
Expenses................................................................................17
Section 7.09. Representations of the Seller and
the
Depositor...................................................17
Section 7.10. Confidential
Information..........................................................................17
Section 7.11. Headings and
Cross-References.....................................................................17
Section 7.12. GOVERNING
LAW.....................................................................................17
Section 7.13.
Counterparts......................................................................................17
Section 7.14. Third Party
Beneficiary...........................................................................18
Section 7.15. No
Proceedings....................................................................................18
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Exhibit A
Matters Addressed in Opinion of Seller's Counsel
Schedule A
Schedule of Receivables
Schedule B
Location of Receivable Files
Appendix A
Definitions and Usage
ii
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RECEIVABLES PURCHASE AGREEMENT dated as of _________, 200_ (as
from
time to time amended, supplemented or
otherwise modified and in effect, this
"Agreement"), between USAA FEDERAL SAVINGS
BANK, a federally chartered savings
association, as seller (in such capacity,
together with its permitted successors
and permitted assigns in such capacity, the
"Seller") and USAA ACCEPTANCE, LLC,
a Delaware limited liability company, as
depositor (together with its successors
and permitted assigns, the
"Depositor").
RECITALS
WHEREAS, the Depositor desires to purchase a portfolio of
receivables
and related property consisting of motor
vehicle installment loan contracts
originated by the Seller in the ordinary
course of its business;
WHEREAS, the Seller and the Depositor wish to set forth the
terms
pursuant to which such portfolio of
receivables and related property are to be
sold by the Seller to the Depositor;
and
WHEREAS, the Depositor intends, concurrently with its purchase
hereunder, to convey all of its right,
title and interest in and to all of such
portfolio of receivables and related
property to USAA Auto Owner Trust 200_-[ ],
a Delaware statutory trust (the "Issuer")
pursuant to a Sale and Servicing
Agreement dated as of _________, 200_ (the
"Sale and Servicing Agreement"), by
and among the Issuer, the Depositor, USAA
Federal Savings Bank, as Seller and
Servicer, and the Issuer intends to pledge
all of its right, title and interest
in and to such portfolio of receivables and
related property to __________, as
Indenture Trustee (the "Indenture Trustee")
pursuant to the Indenture dated as
of _________, 200_ (the "Indenture"), by
and between the Issuer and the
Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing, other good
and
valuable consideration and the mutual terms
and covenants contained herein, the
parties hereto agree as follows:
Article I
Interpretation
Section 1.01. Definitions and Usage. Except as otherwise
specified
herein or as the context may otherwise
require, capitalized terms used but not
otherwise defined herein are defined in
Appendix A hereto, which also contains
rules as to usage that shall be applicable
herein.
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Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon
the order of the Seller on the Closing Date
of $_________________ (the "Purchase
Price"), the Seller does hereby irrevocably
sell, transfer, assign, set over and
otherwise convey to the Depositor, without
recourse (subject to the obligations
of the Seller set forth herein) all right,
title, and interest of the Seller,
whether now or hereinafter acquired, in and
to the Trust Property.
(b) The transfer, assignment and conveyance made hereunder
shall not constitute and is not intended to
result in an assumption by the
Depositor of any obligation of the Seller
to the Obligors or any other Person in
connection with the Receivables and the
other Trust Property or any agreement,
document or instrument related thereto.
(c) The Seller and the Depositor intend that the transfer of
assets by the Seller to the Depositor
pursuant to this Agreement be a sale of
the ownership interest in such assets to
the Depositor, rather than the mere
granting of a security interest to secure a
borrowing. In the event, however,
that such transfer is deemed not to be a
sale but to be of a mere security
interest to secure a borrowing, the Seller
shall be deemed to have hereby
granted to the Depositor a security
interest in all accounts, money, chattel
paper, securities, instruments, documents,
deposit accounts, certificates of
deposit, letters of credit, advices of
credit, banker's acceptances,
uncertificated securities, general
intangibles, contract rights, goods and other
property consisting of, arising from or
relating to such Trust Property, which
security interest shall be perfected and of
first priority, and this Agreement
shall constitute a security agreement under
applicable law. Pursuant to the Sale
and Servicing Agreement and Section 7.04
hereof, the Depositor may sell,
transfer and assign to the Issuer (i) all
or any portion of the assets assigned
to the Depositor hereunder, (ii) all or any
portion of the Depositor's rights
against the Seller under this Agreement and
(iii) all proceeds thereof. Such
assignment may be made by the Depositor
with or without an assignment by the
Depositor of its rights under this
Agreement, and without further notice to or
acknowledgement from the Seller. The Seller
waives, to the extent permitted
under applicable law, all claims, causes of
action and remedies, whether legal
or equitable (including any right of
setoff), against the Depositor or any
assignee of the Depositor relating to such
action by the Depositor in connection
with the transactions contemplated by the
Sale and Servicing Agreement.
Section 2.02. The Closing. The sale and purchase of the Trust
Property
shall take place at a closing at the office
of Sidley Austin Brown & Wood LLP,
New York, New York on the Closing Date,
simultaneously with the closing under
(a) the Sale and Servicing Agreement, (b)
the Indenture and (c) the Trust
Agreement.
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Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor.
The
Depositor hereby represents and warrants as
follows to the Seller and the
Indenture Trustee as of the date hereof and
the Transfer Date:
(a) Organization and Good Standing. The Depositor is a limited
liability company duly organized, validly
existing and in good standing under
the laws of the State of Delaware, with all
requisite power and authority to own
its properties and to conduct its business
as such properties are currently
owned and such business is currently
conducted.
(b) Due Qualification. The Depositor is duly qualified to do
business as a foreign limited liability
company in good standing, and has
obtained all necessary licenses and
approvals in all jurisdictions where the
failure to do so would materially and
adversely affect the Depositor's ability
to acquire the Receivables or the other
Trust Property or the validity or
enforceability of the Receivables or the
other Trust Property.
(c) Power and Authority. The Depositor has all the limited
liability company power and authority to
execute, deliver and perform this
Agreement and the other Basic Documents to
which it is a party and to carry out
their respective terms; the Depositor has
full power and authority to sell and
assign the property to be sold and assigned
to and deposited with the Issuer,
and the Depositor shall have duly
authorized such sale and assignment to the
Issuer by all necessary limited liability
company action; and the execution,
delivery and performance of this Agreement
and the other Basic Documents to
which the Depositor is a party have been
duly authorized by the Depositor by all
necessary limited liability company
action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which the Depositor is a
party, when duly executed and delivered by
the other parties hereto and thereto, shall
constitute legal, valid and binding
obligations of the Depositor, enforceable
against the Depositor in accordance
with their respective terms, except as the
enforceability thereof may be limited
by bankruptcy, insolvency, reorganization
or similar laws now or hereafter in
effect relating to or affecting creditors'
rights generally and to general
principles of equity (whether applied in a
proceeding at law or in equity).
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the
fulfillment of the terms hereof do not
conflict with, result in any breach of any
of the terms and provisions of, or
constitute (with or without notice or lapse
of time or both) a default under,
the limited liability company agreement of
the Depositor, or any indenture,
agreement or other instrument to which the
Depositor is a party or by which it
is bound, or violate any law, rules or
regulation applicable to the Depositor of
any court or federal or state regulatory
body, administrative agency or other
governmental instrumentality having
jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge,
threatened against the Depositor
before any court, regulatory body,
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administrative agency or other governmental
instrumentality having jurisdiction
over the Depositor or its properties (i)
asserting the invalidity of this
Agreement or any other Basic Document to
which the Depositor is a party, (ii)
seeking to prevent the consummation of any
of the transactions contemplated by
this Agreement or any other Basic Document
to which the Depositor is a party or
(iii) seeking any determination or ruling
that might materially and adversely
affect the performance by the Depositor of
its obligations under, or the
validity or enforceability of, this
Agreement or any other Basic Document to
which the Depositor is a party.
(g)
No Consents. The Depositor is not required to obtain the
consent of any other party or any consent,
license, approval, registration,
authorization, or declaration of or with
any governmental authority, bureau or
agency in connection with the execution,
delivery, performance, validity, or
enforceability of this Agreement or any
other Basic Document to which it is a
party that has not already been
obtained.
Section 3.02. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants as follows to the
Depositor and the Indenture Trustee as of
the date hereof and as of the Transfer
Date:
(i) Organization and Good Standing. The Seller is a
federally chartered savings association duly organized and
validly
existing as a banking institution under the laws of the United
States
and continues to hold a valid certificate to do business as such,
and
has the power to own its assets and to transact the business in
which
it is currently engaged. The Seller is duly authorized to
transact
business and has obtained all necessary licenses and approvals, and
is
in good standing in each jurisdiction in which the character of
the
business transacted by it or any properties owned or leased by
it
requires such authorization.
(ii) Power and Authority. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and
all
of the transactions contemplated under this Agreement and the
other
Basic Documents to which the Seller is a party, and has taken
all
necessary action to authorize the execution, delivery and
performance
of this Agreement and
the other Basic Documents to which the Seller is
a party. When executed and delivered, this Agreement and the
other
Basic Documents to which the Seller is a party will constitute
legal,
valid and binding obligations of the Seller enforceable in
accordance
with their respective terms, except as enforcement of such terms
may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability
of
equitable remedies and except as enforcement of such terms may
be
limited by receivership, conservatorship and supervisory powers of
bank
regulatory agencies generally.
(iii) No Violation. The execution, delivery and
performance by the Seller of this Agreement and the other Basic
Documents to which the Seller is a party will not violate any
provision
of any existing state, federal or, to the best knowledge of the
Seller,
local law or regulation or any order or decree of any court
applicable
to the Seller or any provision of the articles of association
or
incorporation or the bylaws of the Seller, or constitute a breach
of
any
mortgage, indenture, contract or other agreement to
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which the Seller is a party or by which the Seller may be bound
or
result in the creation or imposition of any lien upon any of
the
Seller's properties pursuant to any such mortgage, indenture,
contract
or other agreement (other than this Agreement).
(iv) No Proceedings. There are no proceedings or
investigations pending or, to the Seller's knowledge,
threatened
against the Seller before any court, regulatory body,
administrative
agency or other governmental instrumentality having jurisdiction
over
the Seller or its properties (i) asserting the invalidity of
this
Agreement or any other Basic Document to which the Seller is a
party,
(ii) seeking to prevent the consummation of any of the
transactions
contemplated by this Agreement or any other Basic Document to which
the
Seller is a
party or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Seller
of
its obligations under, or the validity or enforceability of,
this
Agreement or any other Basic Document to which the Seller is a
party.
(v) Chief Executive Office. The chief executive office
of the Seller is located at 10750 McDermott Freeway, San Antonio,
Texas
78288.
(vi) No Consents. The Seller is not required to obtain
the consent of any other party or any consent, license,
approval,
registration, authorization, or declaration of or with any
governmental
authority, bureau or agency in connection with the execution,
delivery,
performance, validity, or enforceability of this Agreement or any
other
Basic Document to which it is a party that has not already been
obtained.
(vii) No Notice. The Seller represents and warrants
that it acquired title to the Receivables and the other Trust
Property
in good faith, without notice of any adverse claim.
(viii) Bulk Transfer. The Seller represents and
warrants that the transfer, assignment and conveyance of the
Receivables and the other Trust Property by the Seller pursuant to
this
Agreement are not subject to the bulk transfer laws or any
similar
statutory provisions in effect in any applicable jurisdiction.
(ix) Seller Information. No certificate of an officer,
statement or document furnished in writing or report delivered
pursuant
to the terms hereof by the Seller contains any untrue statement of
a
material fact or omits to state any material fact necessary to make
the
certificate, statement, document or report not misleading.
(x) Ordinary Course. The transactions contemplated by
this Agreement and the other Basic Documents to which the Seller is
a
party are in the ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the
Seller be made insolvent by the transfer of the Trust Property,
nor
does the Seller anticipate any pending insolvency.
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(xii) Legal Compliance. The Seller is not in violation
of, and the execution and delivery by the Seller of this Agreement
and
the other Basic Documents to which the Seller is a party and
its
performance and compliance with the terms of this Agreement and
the
other Basic Documents to which the Seller is a party will not
constitute a violation with respect to, any order or decree of
any
court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction, which violation would
materially and
adversely affect the Seller's condition (financial or
otherwise) or operations or any of the Seller's properties or
materially and adversely affect the performance of any of its
duties
under the Basic Documents.
(xiii) Creditors. The Seller did not sell the
Receivables or the other Trust Property to the Depositor with
any
intent to hinder, delay or defraud any of its creditors.
(b) The Seller makes the following representations and
warranties with respect to the Receivables,
on which the Depositor relies in
accepting the Receivables and in
transferring the Receivables to the Issuer
under the Sale and Servicing Agreement, and
on which the Issuer relies in
pledging the same to the Indenture Trustee.
Such representations and warranties
speak as of the execution and delivery of
this Agreement and as of the Transfer
Date, but shall survive the sale, transfer
and assignment of the Receivables to
the Depositor, the subsequent sale,
transfer and assignment of the Receivables
by the Depositor to the Issuer pursuant to
the Sale and Servicing Agreement and
the pledge of the Receivables by the Issuer
to the Indenture Trustee pursuant to
the Indenture.
(i) Schedule of Receivables. The information set forth
in Schedule A to this Agreement with respect to each Receivable is
true
and correct in all material respects, and no selection
procedures
adverse to the Securityholders have been used in selecting the
Receivables from all receivables owned by the Seller which meet
the
selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other
than
the Depositor.
(iii) Good Title. Immediately prior to the transfer and
assignment of the Receivables to the Depositor herein contemplated,
the
Seller had good
and marketable title to each Receivable free and clear
of all Liens and rights of others; and, immediately upon the
transfer
thereof, the Depositor, has either (i) good and marketable title
to
each Receivable, free and clear of all of all Liens and rights
of
others, and the transfer has been perfected under applicable law
or
(ii) a first priority perfected security interest in each
Receivable.
(iv) Receivable Files. The Receivable Files shall be
kept at one or more of the locations specified in Schedule B
hereto.
(v) Characteristics of Receivables. Each Receivable (a)
has been originated for the retail financing of a Financed Vehicle
by
an Obligor located in one of the States of the United States or
the
District of Columbia; (b) contains customary and
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enforceable provisions such that the rights and remedies of the
holder
thereof are adequate for realization against the collateral of
the
benefits of the security; [and (c) provides for fully amortizing
level
scheduled monthly payments (provided that the payment in the last
month
in the life of the Receivable may be different from the level
scheduled
payment) and for accrual of interest at a fixed rate according to
the
simple interest method].
(vi) Compliance with Law. Each Receivable and each sale
of the related Financed Vehicle complied at the time it was
originated
or made, and complies on and after the Cut-off Date, in all
material
respects with all requirements of applicable federal, state, and
local
laws, and regulations thereunder, including usury laws, the
Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit
Reporting Act, the Federal Trade Commission Act, the
Magnuson-Moss
Warranty Act, Federal Reserve Board Regulations B and Z, state
adaptations of the National Consumer Act and of the Uniform
Consumer
Credit Code, and any other consumer credit, equal opportunity,
and
disclosure laws applicable to such Receivable and sale.
(vii) Binding Obligation. Each Receivable constitutes
the legal, valid, and binding payment obligation in writing of
the
Obligor, enforceable by the holder thereof in all material respects
in
accordance with its terms, subject, as to enforcement, to
applicable
bankruptcy, insolvency, reorganization, liquidation and other
similar
laws and equitable principles relating to or affecting the
enforcement
of creditors' rights.
(viii) No Government Obligor. No Receivable is due from
the United States of America or any state or from any agency,
department, instrumentality or political subdivision of the
United
States of America or any state or local municipality and no
Receivable
is due f
