Exhibit 99.2
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
between
USAA FEDERAL SAVINGS BANK
as Seller
and
USAA ACCEPTANCE, LLC
as Depositor
Dated as of March 1, 2005
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Table of Contents
Page
Article I
Interpretation
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................................................14
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......................................15
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.....................................17
Section 7.15. No
Proceedings..............................................17
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 March 1, 2005 (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
2005-1, a Delaware statutory trust (the
"Issuer") pursuant to a Sale and
Servicing Agreement dated as of March 1,
2005 (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 JPMorgan Chase Bank, National
Association, as Indenture Trustee
(the "Indenture Trustee") pursuant to the
Indenture dated as of March 15, 2005
(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 $1,050,985,136.76 (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 from a business except to the extent that
such
receivable has a personal guaranty.
(ix) Security Interest in Financed Vehicle.
Immediately prior to the sale and assignment thereof to the
Depositor
as herein contemplated, each Receivable was secured by a
validly
perfected first priority security interest in the Financed Vehicle
in
favor of the Seller as secured party or all necessary and
appropriate
action with respect to such Receivable had been taken to perfect
a
first priority security interest in the related Financed Vehicle
in
favor of the Seller as secured party, which security interest
is
assignable and has been so assigned by the Seller to the
Depositor.
(x) Receivables in Force. No Receivable has been
satisfied, subordinated, or rescinded, nor has any Financed
Vehicle
been released from the Lien granted by the related Receivable
in
whole or in part.
(xi) No Waiver. No provision of a Receivable has
been waived in such a manner that such Receivable fails either
to
meet all of the representations and warranties made by the
Seller
herein with respect thereto pursuant to this Section 3.02.
(xii) No Amendments. No Receivable has been amended
except pur
