SALE AGREEMENT
between
UNITED AUTO CREDIT CORPORATION,
as Seller
and
UPFC AUTO RECEIVABLES CORP.,
as Purchaser
Dated March 31, 2005
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
SECTION 1.1. OTHER INTERPRETIVE
PROVISIONS.
1
ARTICLE II PURCHASE AND SALE OF
RECEIVABLES
2
SECTION 2.1. PURCHASE AND SALE OF
RECEIVABLES.
2
SECTION 2.2. RECEIVABLES PURCHASE
PRICE.
3
SECTION 2.3. EXPENSES.
3
ARTICLE III REPRESENTATIONS AND
WARRANTIES
3
SECTION 3.1. REPRESENTATIONS AND
WARRANTIES OF PURCHASER.
3
SECTION 3.2. REPRESENTATIONS AND
WARRANTIES OF SELLER.
4
SECTION 3.3. REPRESENTATIONS AND
WARRANTIES AS TO EACH
RECEIVABLE.
6
SECTION 3.4. REPURCHASE UPON
BREACH.
6
ARTICLE IV RESERVED
7
ARTICLE V COVENANTS OF SELLER
7
SECTION 5.1. PROTECTION OF TITLE TO
SELLER ASSETS.
7
SECTION 5.2. OTHER LIENS OR
INTERESTS.
9
SECTION 5.3. INDEMNIFICATION.
9
SECTION 5.4. NONPETITION
COVENANT.
10
ARTICLE VI MISCELLANEOUS
PROVISIONS
10
SECTION 6.1. OBLIGATIONS OF
SELLER.
10
SECTION 6.2. SELLER’S ASSIGNMENT OF
PURCHASED RECEIVABLES.
10
SECTION 6.3. SUBSEQUENT TRANSFER TO
ISSUER, INDENTURE
TRUSTEE AND INSURER.
11
SECTION 6.4. AMENDMENT.
11
SECTION 6.5. WAIVERS.
12
SECTION 6.6. NOTICES.
12
SECTION 6.7. MERGER AND
INTEGRATION.
12
SECTION 6.8. SEVERABILITY OF
PROVISIONS.
13
SECTION 6.9. COSTS AND
EXPENSES.
13
SECTION 6.10. REPRESENTATIONS TO
SELLER.
13
SECTION 6.11. GOVERNING LAW.
13
SECTION 6.12. COUNTERPARTS.
13
SECTION 6.13. THIRD-PARTY
BENEFICIARIES.
13
SALE AGREEMENT
THIS SALE AGREEMENT (as from time to time
amended, supplemented or otherwise modified and in effect, this
“Agreement”) is made as of this 31st day of March, 2005
by and between UNITED AUTO CREDIT CORPORATION, a California
corporation (in such capacity and for purposes of this Agreement
only, the “Seller”), and UPFC AUTO RECEIVABLES CORP., a
California corporation (in such capacity and for purposes of this
Agreement only, the “Purchaser”).
WHEREAS, in the regular course of its
business, Loans were assigned by dealers to the Seller located in
the state where such dealer was located;
WHEREAS, Purchaser desires to purchase
from Seller a portfolio of Loans; and
WHEREAS, Seller is willing to sell such
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
DEFINITIONS. Capitalized terms used
but not defined herein are used in this Agreement as defined in
Article I of the Sale and Servicing Agreement among UPFC Auto
Receivables Trust 2005-A, as Issuer, ACE Securities Corp., as
Seller, United Auto Credit Corporation, as Servicer, Deutsche Bank
Trust Company Americas, as Trust Collateral Agent, Custodian and
Backup Servicer, and CenterOne Financial Services LLC, as
Designated Backup Servicer as the same may be amended and
supplemented from time to time.
SECTION 1.1. 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 GAAP; (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, 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.
Effective as of the Closing Date and
immediately prior to the transactions pursuant to the Indenture,
the Purchase Agreement, the Sale and Servicing Agreement, the Trust
Agreement and the Insurance Agreement, Seller does hereby sell,
transfer, assign, set over and otherwise convey to Purchaser,
without recourse (subject to the obligations herein), the following
(the “Seller Assets”):
(a)
all right, title and interest of Seller
in and to the Receivables, and all monies received thereon after
the Cutoff Date;
(b)
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;
(c)
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
Seller as an insured or the Obligors or from claims under any
lender’s single interest insurance policy naming Transferor
as an insured;
(d)
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 Receivable or (iii) any Dealer Recourse or other
rights relating to the Receivables under Dealer
Agreements;
(e)
all right, title and interest of Seller
in any instrument or document relating to the Receivables;
and
(f)
the proceeds of any and all of the
foregoing.
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.
It is the express intention of Seller and
Purchaser that (a) the assignment and transfer herein contemplated
constitute a sale of the Receivables and the other Seller Assets
described above, conveying good title thereto free and clear of any
liens, encumbrances, security interests or rights of other Persons,
from Seller to Purchaser and (b) the Receivables and the other
Seller Assets described above not be a part of Seller’s
estate in the event of a bankruptcy or insolvency of Seller.
If, notwithstanding the intention of Seller and Purchaser,
such conveyance is deemed to be a pledge in connection with a
financing or is otherwise deemed not to be a sale, Seller hereby
grants, and the parties intend that Seller shall have granted to
the Purchaser, a first priority perfected security interest in all
of Seller’s right, title and interest in all of the items of
the Seller Assets and all proceeds of the foregoing, and that this
Agreement shall constitute a security agreement under applicable
law and the Purchaser shall have all of the rights and remedies of
a secured party and creditor under the UCC as in force in the
relevant jurisdictions.
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
$210,310,214.81, payable in cash.
SECTION 2.3. EXPENSES. The
Seller shall pay (or shall reimburse the Underwriters or any other
Person to the extent that the Underwriters of such other Person
shall pay), to the extent any of the amounts below have not been
paid by Purchaser pursuant to the Purchase Agreement, for certain
of the expenses of the Underwriters in connection with the issuance
and sale of the Notes and any taxes payable in connection
therewith, including: (i) expenses incident to the preparing,
printing, reproducing and distributing of the Preliminary
Prospectus and the Prospectus, (ii) the fees and expenses of
qualifying the Notes under the securities laws of the several
jurisdictions and of preparing, printing and distributing any blue
sky survey (including related fees and expenses of counsel to the
Underwriter), (iii) any fees charged by Moody’s and
Standard & Poor’s in connection with the rating of the
Notes, (iv) the fees of DTC in connection with the book-entry
registration of the Notes, (v) the fees and disbursements of
the Indenture Trustee and the Owner Trustee and their respective
counsels, (vi) the fees and disbursements of the accountants,
(vii) the fees and disbursements of McKee Nelson LLP, counsel
to the Underwriters and Underwriter, in connection with the
purchase of the Receivables hereunder and the issuance and sale of
the Notes and (viii) the filing fee charged by the SEC for
registration of the Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND
WARRANTIES OF PURCHASER. Purchaser hereby makes the following
representations and warranties upon which Seller 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, the sale by
Purchaser to ACE, the sale by ACE to the Issuer and the pledge by
the Issuer to the Indenture Trustee.
(a)
Organization and Good Standing.
Purchaser has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
California and has the corporate power and authority to execute and
deliver this Agreement and to perform the terms and provisions
hereof.
(b)
Due Qualification. Purchaser is
duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals in
all jurisdictions where the failure to do so would materially and
adversely affect Purchaser's ability to acquire the Seller Assets,
and to transfer the Seller Assets to ACE Securities Corp. pursuant
to the Purchase Agreement, or the validity or enforceability of the
Seller Assets or to perform Purchaser's obligations hereunder and
under the Transaction Documents
(c)
Power and Authority. Purchaser has
full power, authority and legal right to execute, deliver and
perform this Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Agreement.
(d)
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 by Purchaser of this Agreement or the consummation of
the transactions contemplated hereby.
(e)
Binding Obligation. This Agreement
has been duly executed and delivered by Purchaser and this
Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its
terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting the enforcement of the
rights of creditors generally and to equitable limitations on the
availability of specific remedies.
(f)
No Violation. The execution,
delivery and performance by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby will not
conflict with, result in any breach of the material 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 under any of its material properties pursuant to the terms
of, (i) the articles of incorporation or bylaws of Purchaser, (ii)
any material indenture, contract, lease, mortgage, deed of trust or
other instrument or agreement to which Purchaser is a party or by
which Purchaser is bound or to which any of its properties are
subject, or (iii) any law, order, rule or regulation applicable to
Purchaser of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over Purchaser.
(g)
No Proceedings. There are no
proceedings or investigations pending, or, to the knowledge of
Purchaser, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over Purchaser 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 Purchaser 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.
SECTION 3.2. 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, the sale by
Purchaser to ACE, the sale by ACE to the Issuer and the pledge by
the Issuer to the Indenture Trustee.
(a)
Organization and Good Standing.
Seller has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
California and has the corporate power and authority to execute and
legal right to own its properties and conduct its motor vehicle
retail installment sale contract business as such properties are at
present owned and such business is at present conducted and had at
all relevant times, and has, power, authority and legal right to
acquire, own and sell the Seller Assets pursuant to the terms of
this Agreement.
(b)
Due Qualification. The Seller is
duly qualified to do business as a foreign corporation and is in
good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications and in which the failure to do so would materially
and adversely affect the Purchaser’s performance of its
obligations under, the validity or enforceability of, this
Agreement or the Seller Assets.
(c)
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
action.
(d)
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 Agreement or the consummation of the
transactions contemplated hereby or thereby, other than the filing
of UCC financing statements or as otherwise has been made or
obtained.
(e)
Valid Sale; Binding Obligation.
Seller intends this Agreement to effect a valid sale,
transfer, and assignment of the Receivables and the other 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.
(f)
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 charter 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.
(g)
No Proceedings. There are no
proceedings or investigations pending, or, t
