EXHIBIT 10.1
EXECUTION COPY
MASTER RECEIVABLES PURCHASE AGREEMENT
between
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION
Seller
and
HOUSEHOLD AUTO RECEIVABLES CORPORATION
Purchaser
dated as of
October 9, 2001
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS....................................................................................1
SECTION 1.1 General..........................................................................1
SECTION 1.2 Specific Terms...................................................................1
SECTION 1.3 Other Definitional Provisions....................................................2
SECTION 1.4 Certain References...............................................................2
SECTION 1.5 No Recourse......................................................................2
ARTICLE II CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY.................................3
SECTION 2.1 Purchase.........................................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES...............................................................5
SECTION 3.1 Representations and Warranties of Seller.........................................5
SECTION 3.2 Representations and Warranties of HARC...........................................6
ARTICLE IV COVENANTS OF SELLER...........................................................................8
SECTION 4.1 Seller's Covenants...............................................................8
ARTICLE V REPURCHASES....................................................................................9
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty................................9
SECTION 5.2 Reassignment of Repurchased Receivables..........................................9
SECTION 5.3 Waivers.........................................................................10
ARTICLE VI MISCELLANEOUS................................................................................10
SECTION 6.1 Liability of Seller.............................................................10
SECTION 6.2 Amendment.......................................................................10
SECTION 6.3 GOVERNING LAW...................................................................10
SECTION 6.4 Notices.........................................................................10
SECTION 6.5 Severability of Provisions......................................................11
SECTION 6.6 Assignment......................................................................11
SECTION 6.7 Acknowledgment and Agreement of each Seller.....................................11
SECTION 6.8 Further Assurances..............................................................11
SECTION 6.9 No Waiver; Cumulative Remedies..................................................12
SECTION 6.10 Counterparts....................................................................12
SECTION 6.11 Binding Effect; Third-Party Beneficiaries.......................................12
SECTION 6.12 Merger and Integration..........................................................12
SECTION 6.13 Heading.........................................................................12
SECTION 6.14 Schedules and Exhibits..........................................................12
SECTION 6.15 Survival of Representations and Warranties......................................12
SECTION 6.16 Nonpetition Covenant............................................................12
i
EXHIBITS
EXHIBIT A Form of Receivables Purchase Agreement Supplement
SCHEDULE A Schedule of Receivables
ii
THIS
MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of
October 9, 2001, executed between
Household Auto Receivables Corporation, a
Nevada corporation, as purchaser ("HARC") and Household Automotive Finance
Corporation, a Delaware corporation, as seller ("Seller").
W I T N E S S E T H :
-------------------
WHEREAS, HARC has agreed to purchase from time to time from
Seller, and Seller, pursuant to this Agreement, has agreed to transfer from time
to time to HARC the Receivables and the Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is acknowledged, HARC and Seller, intending
to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 GENERAL. Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the
Master Sale and Servicing Agreement dated as of October 9, 2001, by and among
Household Automotive Trust 2001-3, as Issuer, HARC, as Seller, Household Finance
Corporation, as Master Servicer, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Indenture Trustee.
SECTION 1.2 SPECIFIC TERMS. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Agreement" means this
Master Receivables Purchase Agreement
and all amendments hereof and supplements hereto.
"Closing Date" means October 24, 2001.
"Conveyance" shall have the meaning specified in Section 2.1.
"Conveyance Papers" shall have the meaning specified in
Section 3.1.
"Cutoff Date" shall have the meaning assigned to such term in
the applicable Series Supplement or Receivables Purchase Agreement Supplement.
"Other Conveyed Property" means all money, instruments, rights
and other property that are subject or intended to be subject to the lien and
security interest of
the Indenture (including all property and interests granted to the Indenture
Trustee), including all proceeds thereof, other than the Receivables.
"Purchase Date" means, with respect to Receivables, any date,
on which Receivables are to be purchased by HARC pursuant to this Agreement and
a Purchase Agreement Supplement is executed and delivered by the Seller and
HARC.
"Receivables" means the Receivables listed on the Schedules of
Receivables attached to this Agreement or to each Receivables Purchase Agreement
Supplement as Schedule A.
"Receivables Purchase Agreement Supplement" means the
agreement between HARC and the Seller, substantially in the form of Exhibit A
hereto.
"Repurchase Event" means a determination pursuant to Section
2.1 and Section 3.2 of the Master Sale and Servicing Agreement that HARC is
required to repurchase a Receivable.
"Schedule of Receivables" means the schedule of Receivables
sold and transferred pursuant to this Agreement and the related Receivables
Purchase Agreement Supplement which is attached as Schedule A to this Agreement
or to the related Receivables Purchase Agreement Supplement.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, other documents, or Conveyance Paper made
or delivered pursuant hereto unless otherwise defined herein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections, Schedules and Exhibits
in or to this Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge
balance of Receivables, and of any collections thereof, shall be made in
accordance with the Master Sale and Servicing Agreement and all applicable
Series Supplements.
SECTION 1.4 CERTAIN REFERENCES. All references to the
Principal Balance of a Receivable as of any date of determination shall refer to
the close of business on such day, or as of the first day of a Collection Period
shall refer to the opening of business on such day. All references to the last
day of a Collection Period shall refer to the close of business on such day.
SECTION 1.5 NO RECOURSE. Without limiting the obligations of
Seller hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any
2
certificate or other writing delivered in connection herewith or therewith,
against any stockholder, officer or director, as such, of Seller, or of any
predecessor or successor of Seller.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 PURCHASE.
(a) By execution of this Agreement and subject to the terms
and conditions of this Agreement, the Seller shall sell, transfer, assign, and
otherwise convey to HARC (collectively, the "Conveyance") without recourse (but
without limitation of its obligations in this Agreement), and HARC shall
purchase, all right, title and interest of Seller in and to:
(i) each and every Receivable listed on Schedule A
hereto or to the related Receivables Purchase Agreement
Supplement and all monies paid or payable thereon or in
respect thereof on or after the related Cutoff Date (including
amounts due on or before the related Cutoff Date but received
by the Seller on or after such date);
(ii) the security interests in the related Financed
Vehicles granted by Obligors pursuant to such Receivables and
any other interest of the Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers
pursuant to Dealer Agreements or Dealer Assignments related to
such Receivables;
(iv) any proceeds and the right to receive proceeds
with respect to such Receivables repurchased by a Dealer,
pursuant to a Dealer Agreement, as a result of a breach of
representation or warranty in the related Dealer Agreement;
(v) all rights of Seller under any Service Contracts
on the related Financed Vehicles;
(vi) any proceeds and the right to receive proceeds
with respect to the related Receivables from claims on any
physical damage, loss, credit life or disability insurance
policies, if any, covering Financed Vehicles or Obligors,
including rebates of insurance premiums relating to the
Receivables and any proceeds from the liquidation of such
Receivables;
(vii) all items contained in the Receivables Files
with respect to such Receivables and any and all other
documents that Seller or Master Servicer
3
keeps on file in accordance with its customary procedures
relating to the related Receivables, or the related Financed
Vehicles or Obligor;
(viii) property (including the right to receive
future Net Liquidation Proceeds) that secures each related
Receivable and that has been acquired by or on behalf of HARC
pursuant to liquidation of such Receivable;
(ix) all present and future claims, demands, causes
and choses in action in respect of any or all of the foregoing
and all payments on or under and all proceeds of every kind
and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary
or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of
any and every kind and other forms of obligations and
receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of
any of the foregoing.
(b) Simultaneously with the conveyance of the Receivables and
the Other Conveyed Property to HARC by Seller, HARC has paid or caused to be
paid to or upon the order of Seller an amount equal to 100% of the Principal
Balance of the Receivables on the books and records of Seller, plus the present
value of anticipated excess spread on such Receivables, discounted to take into
account any uncertainty as to future performance matching historical
performance, servicing fees, delinquencies, pay down rates, yield and such other
factors as may be mutually agreed upon between Seller and HARC, by wire transfer
of immediately available funds.
(c) In connection with such Conveyance, Seller further agrees
that it will, at its own expense, on or prior to the Purchase Date (i) indicate
in its computer files or microfiche lists that the Receivables have been
conveyed to HARC in accordance with this Agreement and have been conveyed by
HARC to the Indenture Trustee pursuant to the Master Sale and Servicing
Agreement for the benefit of the Noteholders by including in such computer files
and microfiche lists the code identifying each such Receivable and (ii) deliver
to HARC (or to the Indenture Trustee if HARC so directs) a computer file or
microfiche list containing a true and complete list of all such Receivables
specifying for each such Receivable, as of the Cutoff Date (A) its account
number and (B) the outstanding balance of such Receivable. Such computer files
or microfiche lists shall be delivered to HARC (or to the Indenture Trustee if
so directed by HARC) and marked as proprietary and confidential. Seller further
agrees not to alter the code referenced in clause (i) of this paragraph with
respect to any Receivable during the term of this Agreement.
(d) The parties hereto intend that the conveyance of the
Seller's right, title and interest in and to the Receivables and Other Conveyed
Property shall constitute a sale, conveying good title free and clear of any
liens, claims, encumbrances or rights of others from Seller to HARC and that the
Receivables and Other Conveyed Property shall not be part of Seller's estate in
the event of the insolvency of Seller or a conservatorship,
4
receivership or similar event with respect to Seller. It is the intention of the
parties hereto that the arrangements with respect to the Receivables and Other
Conveyed Property shall constitute a purchase and sale of such Receivables and
not a loan. In the event, however, that a court of competent jurisdiction were
to hold that the transactions evidenced hereby constitute a loan and not a
purchase and sale, it is the intention of the parties hereto that this Agreement
shall constitute a security agreement under applicable law, and that Seller
shall be deemed to have granted to HARC a first priority perfected security
interest in all of such Seller's right, title and interest in and to the
Receivables and Other Conveyed Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
makes the following representations and warranties as of the date hereof on
which HARC relies in purchasing the Receivables and the Other Conveyed Property
and in transferring the Receivables and the Other Conveyed Property to the
Issuer under the Master Sale and Servicing Agreement. Such representations are
made as of the execution and delivery of this Agreement and as to Receivables
and Other Conveyed Property conveyed thereunder, as of the execution and
delivery of each Receivables Purchase Agreement Supplement, but shall survive
the sale, transfer and assignment of the Receivables and the Other Conveyed
Property hereunder, and the sale, transfer and assignment thereof by HARC to the
Issuer under the Master Sale and Servicing Agreement. Seller and HARC agree that
HARC will assign to Issuer all HARC's rights under this Agreement and each
Receivables Purchase Agreement Supplement and that the Indenture Trustee will
thereafter be entitled to enforce this Agreement and each Receivables Purchase
Agreement Supplement against Seller in the Indenture Trustee's own name on
behalf of the Securityholders.
(a) ELIGIBILITY CRITERIA. Each of the Receivables which is to
be pledged as collateral for a Series of Notes will satisfy the applicable
Eligibility Criteria set forth in, or to be set forth in, Schedule I to the
Series Supplement establishing such Series.
(b) ORGANIZATION AND GOOD STANDING. The Seller is a
corporation duly organized and validly existing in good standing under the laws
of the State of Delaware and has, in all material respects, full power and
authority to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
(c) DUE OBLIGATION. The Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements) and has obtained all necessary licenses and approvals, in
each jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would (i) render any Receivable unenforceable by the Seller, HARC or
the Trust and (ii) have a material adverse effect on the Noteholders.
5
(d) DUE AUTHORIZATION. The execution, delivery and performance
of this Agreement and any other document or instrument delivered pursuant hereto
(such other documents and instruments, including, but not limited to, the
Receivables Purchase Agreement Supplement collectively, the "CONVEYANCE PAPERS")
and the consummation of the transactions provided for in this Agreement or any
other Conveyance Papers have been duly authorized by all necessary corporate
action on the part of the Seller.
(e) NO CONFLICT. The execution and delivery of this Agreement
and the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms of
this Agreement and the Conveyance Papers applicable to the Seller will not
conflict with, violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or by which it or any
of its properties are bound.
(f) NO VIOLATION. The execution, delivery and performance of
this Agreement and the Conveyance Papers and the fulfillment of the terms
contemplated herein and therein applicable to the Seller will not conflict with
or violate any requirements of law applicable to the Seller.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the Seller,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement or
the Conveyance Papers, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment of the
Seller, would materially and adversely affect the performance by the Seller of
its obligations under this Agreement or the Conveyance Papers, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or the Conveyance Papers or (v) seeking to
affect adversely the income tax attributes of the Trust under United States
Federal, Nevada or California income tax systems.
(h) ALL CONSENTS. All authorizations, consents, orders,
approvals, registrations or declarations with, or of, any Governmental Authority
required to be obtained, effected or given by the Seller in connection with the
execution and delivery by the Seller of this Agreement or the Conveyance Papers
and the performance of the transactions contemplated by this Agreement or the
Conveyance Papers by the Seller have been duly obtained, effected or given and
are in full force and effect.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF HARC. HARC makes
the following representations and warranties, on which Seller relies in selling,
assigning, transferring and conveying the Receivables and the Other Conveyed
Property to HARC hereunder. Such representations are made as of the execution
and delivery of this Agreement and as to Receivables and Other Conveyed Property
conveyed thereunder, as of the execution and delivery of each Receivables
Purchase Agreement Supplement, but
6
shall survive the sale, transfer and assignment of the Receivables and the Other
Conveyed Property hereunder and the sale, transfer and assignment thereof by
HARC to the Issuer under the Master Sale and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. HARC is a corporation duly
organized and validly existing under the laws of the State of Nevada and has, in
all material respects, full power and authority to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement and the Conveyance Papers.
(b) DUE AUTHORIZATION. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by HARC by all necessary corporate action on the part of HARC .
(c) NO CONFLICT. The execution and delivery of this Agreement
and the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms
hereof and thereof, will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which HARC is a party or by which
it or its properties is bound.
(d) NO VIOLATION. The execution, delivery and performance of
this Agreement and the Conveyance Papers by HARC and the fulfillment of the
terms contemplated herein and therein applicable to HARC will not conflict with
or violate any requirements of law applicable to HARC.
(e) NO PROCEEDING. There are no proceedings or investigations
pending or, to the best knowledge of HARC, threatened against HARC, before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of HARC, would
materially and adversely affect the performance by HARC of its obligations under
this Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers.
(f) ALL CONSENTS. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by HARC in connection with the
execution and delivery by HARC of this Agreement and the Conveyance Papers and
the performance of the transactions contemplated by this Agreement and the
Conveyance Papers or the fulfillment of the terms of this Agreement and the
Conveyance Papers by HARC have been duly obtained.
7
In the event of any breach of a representation and warranty
made by HARC hereunder, Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes
and Certificates issued by the Trust, have been paid in full. Seller and HARC
agree that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by HARC, Issuer or by the Indenture
Trustee on behalf of the Noteholders and Owner Trustee on behalf of the
Certificateholders. Seller agrees that with respect to its obligations in
connection with a Repurchase Event it will exercise no rights of offset with
respect to any claims it may have against HARC.
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 SELLER'S COVENANTS. Seller hereby covenants and
agrees with HARC as follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES.
Seller will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC).
(b) SECURITY INTERESTS. Except for the conveyances hereunder
or as otherwise provide herein, Seller will not sell, pledge, assign or transfer
to any other Person, or take any other action inconsistent with HARC's ownership
of the Receivables or grant, create, incur, assume or suffer to exist any Lien
on any Receivable, whether now existing or hereafter created, or any interest
therein, and Seller shall not claim any ownership interest in the Receivables
and shall defend the right, title and interest of HARC in and to the
Receivables, whether now existing or hereafter created, against all claims of
third parties claiming through or under Seller.
(c) SECURITY'S INTEREST. Except for the conveyances hereunder
and in connection with any transaction permitted pursuant to Section 6.6, Seller
hereby agrees not to transfer, assign, exchange or otherwise convey or pledge,
hypothecate or otherwise grant a security interest in the Receivables and any
such attempted transfer, assignment, exchange, conveyance, pledge, hypothecation
or grant shall be void.
(d) DELIVERY OF COLLECTIONS OR RECOVERIES. In the event that
Seller receives collections or recoveries with respect to the Receivables,
Seller agrees to pay to HARC (or to the Master Servicer if HARC so directs) all
such collections and recoveries to the extent such amounts are payable to HARC
as soon as practicable after receipt thereof.
(e) NOTICE OF LIENS. The Seller shall notify HARC promptly
after becoming aware of any Lien on any Receivable other than the conveyances
hereunder.
8
(f) DOCUMENTATION OF TRANSFER. The Seller shall undertake to
file the documents which would be necessary to perfect and maintain the transfer
of the security interest in and to the Receivables and Other Conveyed Assets.
(g) APPROVAL OF OFFICE RECORDS. Seller shall cause this
Agreement to be duly approved by Seller's Board of Directors, and Seller shall
maintain the Agreement as a part of the official records of Seller for the term
of the Agreement.
ARTICLE V
REPURCHASES
SECTION 5.1 REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY.
Upon the occurrence of a Repurchase Event, Seller shall, unless the breach which
is the subject of such Repurchase Event shall have been cured in all material
respects, repurchase the Receivable relating thereto from the Issuer by the last
day of the first full calendar month following the discovery of such breach by
the Seller or receipt by the Seller of notice of such breach from any of the
Master Servicer, HARC, a Trust Officer of the Indenture Trustee or the Owner
Trustee and, simultaneously with the repurchase of the Receivable, Seller shall
deposit the Repurchase Amount in full, without deduction or offset, in the
Collection Account, pursuant to Section 3.2 of the Master Sale and Servicing
Agreement. It is understood and agreed that, except as set forth in Section 6.1
hereof, the obligation of Seller to repurchase any Receivable, as to which a
breach occurred and is continuing, shall, if such obligation is fulfilled,
constitute the sole remedy against Seller for such breach available to HARC, the
Issuer, the Noteholders, the Certificateholders, the Indenture Trustee, on
behalf of the Noteholders or the Owner Trustee on behalf of Certificateholders.
The provisions of this Section 5.1 are intended to grant the Indenture Trustee
or the Issuer a direct right against Seller to demand performance hereunder, and
in connection therewith, Seller waives any requirement of prior demand against
HARC with respect to such repurchase obligation. Any such repurchase shall take
place in the manner specified in Section 3.2 of the Master Sale and Servicing
Agreement. Notwithstanding any other provision of this Agreement or the Master
Sale and Servicing Agreement to the contrary, the obligation of Seller under
this Section shall not terminate upon a termination of Household Finance
Corporation as Master Servicer under the Master Sale and Servicing Agreement and
shall be performed in accordance with the terms hereof notwithstanding the
failure of the Master Servicer or HARC to perform any of their respective
obligations with respect to such Receivable under the Master Sale and Servicing
Agreement.
SECTION 5.2 REASSIGNMENT OF REPURCHASED RECEIVABLES. Upon
deposit in the Collection Account of the Repurchase Amount of any Receivable
repurchased by Seller under Section 5.1 hereof, HARC and the Issuer shall take
such steps as may be reasonably requested by Seller in order to assign to Seller
all of HARC's and the Issuer's right, title and interest in and to such
Receivable and all security and documents and all Other Conveyed Property
conveyed to HARC and the Issuer directly relating thereto, without recourse,
representation or warranty, except as to the absence of liens, charges or
encumbrances created by or arising as a result of actions of HARC or the Issuer.
Such
9
assignment shall be a sale and assignment outright, and not for security. If,
following the reassignment of a Repurchased Receivable, in any enforcement suit
or legal proceeding, it is held that Seller may not enforce any such Receivable
on the ground that it shall not be a real party in interest or a holder entitled
to enforce the Receivable, HARC and the Issuer shall, at the expense of Seller,
take such steps as Seller deems reasonably necessary to enforce the Receivable,
including bringing suit in HARC's or in the Issuer's name.
SECTION 5.3 WAIVERS. No failure or delay on the part of HARC,
or the Issuer as assignee of HARC, 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 future
exercise thereof or the exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 LIABILITY OF SELLER. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
SECTION 6.2 AMENDMENT. This Agreement and any Conveyance
Papers and the rights and obligations of the parties hereunder may not be
changed orally, but only by an instrument in writing signed by HARC and the
Seller in accordance with this Section 6.2. This Agreement and any Conveyance
Papers may be amended from time to time by HARC and the Seller, provided that
HARC provides to the Seller (a) an Officer's Certificate to the effect that HARC
reasonably believes that such amendment will not have an adverse effect upon the
interest of the Noteholders or Certificateholders and (b) an Opinion of Counsel
addressed and delivered to the Seller, dated the date of such amendment, to the
effect that the conditions precedent to any such amendment have been satisfied.
SECTION 6.3 GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE
PAPERS 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 6.4 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to (a) in the case of the Seller, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
Attention: Chief Operating Officer, with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Director--Asset Securitization, (b) in the
case of HARC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
Compliance Officer, with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
SECTION 6.5 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement or Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
SECTION 6.6 ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, other than HARC's assignment of its rights, title,
and interests in, to, and under this Agreement to the Indenture Trustee for the
benefit of the Noteholders, as contemplated by the Master Sale and Servicing
Agreement and Section 6.6 hereof, the Receivables, the Other Conveyed Property,
this Agreement and all other Conveyance Papers may not be assigned by the
parties hereto; PROVIDED, HOWEVER, that Seller shall have the right to assign
its rights, title and interests, in to and under this Agreement to (i) any
successor by merger or consolidation, or any Person which acquires by
conveyance, transfer or sale the properties and assets of Seller (ii) any
Affiliate owned directly or indirectly by Household International, Inc. or (iii)
to any entity provided that the Rating Agency has advised HARC and Seller that
the Rating Agency Condition has been satisfied. The right granted in the
foregoing proviso is subject to the further condition that any such successor or
other Person shall expressly assume by written agreement, in form and substance
satisfactory to HARC, the obligations of Seller hereunder and under the
Conveyance Papers.
SECTION 6.7 ACKNOWLEDGMENT AND AGREEMENT OF EACH SELLER. By
execution below, the Seller expressly acknowledges and agrees that all of HARC's
right, title, and interest in, to, and under this Agreement, including, without
limitation, all of HARC's right title, and interest in and to the Receivables
purchased pursuant to this Agreement, shall be assigned by HARC to the Issuer
and by the Issuer to the Indenture Trustee for the benefit of the Noteholders,
and Seller consents to such assignment. Additionally, Seller agrees for the
benefit of the Indenture Trustee that any amounts payable by Seller to HARC
hereunder which are to be paid by HARC to the Indenture Trustee for the benefit
of the Noteholders shall be paid by Seller, on behalf of HARC, directly to the
Indenture Trustee. Any payment required to be made on or before a specified date
in same-day funds may be made on the prior business day in next-day funds.
SECTION 6.8 FURTHER ASSURANCES. HARC and Seller agree to do
and perform, from time to time, any and all acts to authenticate any and further
records, to execute any and further instruments, in each case required or
reasonably requested by the other party more fully to effect the purposes of
this Agreement and the Conveyance Papers, including, without limitation, the
execution of any financing statements or continuation statements or equivalent
documents relating to the Receivables for filing under the provisions of the UCC
or other law of any applicable jurisdiction.
11
SECTION 6.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of HARC or Seller, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 6.10 COUNTERPARTS. This Agreement and all Conveyance
Papers 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.
SECTION 6.11 BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This
Agreement and the Conveyance Papers will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Each of the Indenture Trustee and the Issuer shall be considered a third-party
beneficiary of this Agreement.
SECTION 6.12 MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Conveyance Papers. This Agreement and the Conveyance Papers may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 6.13 HEADING. The headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 6.14 SCHEDULES AND EXHIBITS. The schedules and
exhibits attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
SECTION 6.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and agreements contained in this Agreement or
contained in any Conveyance Paper, shall remain operative and in full force and
effect and shall survive conveyance of the Receivables by HARC to the Issuer
pursuant to the Master Sale and Servicing Agreement.
SECTION 6.16 NONPETITION COVENANT. Until the date which is one
year and one day after payment in full of all the Notes of all Series, neither
HARC nor Seller shall petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
HARC, Seller or the Issuer under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of HARC, Seller or the Issuer or any
substantial part of their respective properties, or ordering the
12
winding up or liquidation of the affairs of HARC, Seller or the Issuer. This
provision shall survive the termination of this Agreement.
[Signature Page Follows]
13
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Vice President and Chief
Financial Officer
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Assistant
Treasurer
[Signature Page for
Master Receivables Purchase Agreement]
14
EXHIBIT A
FORM OF RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT
Transfer No. ____ of Receivables, dated as of _______________,
pursuant to a
Master Receivables Purchase Agreement (the "Purchase Agreement")
dated as of October 9, 2001, between Household Automotive Finance Corporation, a
Delaware corporation (the "Seller") and
Household Auto Receivables Corporation,
a Nevada corporation ("HARC").
W I T N E S S E T H :
WHEREAS pursuant to the Purchase Agreement, the Seller wishes
to convey Receivables and Other Conveyed Property to HARC; and
WHEREAS, HARC is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Seller and HARC hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall
have the meanings ascribed to them in the Purchase Agreement unless otherwise
defined herein.
"Cutoff Date" shall mean with respect to the Receivables
conveyed hereby, ___________________, 200_.
"Purchase Date" shall mean with respect to the Receivables
conveyed hereby, ___________________, 200_.
"Purchase Price" shall mean 100% of the Principal Balance of
the Receivables on the books and records of the Seller, plus the present value
of anticipated excess spread on such Receivables, discounted to take into
account any uncertainty as to future performance matching historical
performance, servicing fees, delinquencies, paydown rates, yield and such other
factors as may be mutually agreed upon by Seller and HARC.
2. SCHEDULE OF RECEIVABLES. Annexed as Schedule A hereto
is a computer file which reflects the Receivables that constitute the
Receivables to be conveyed pursuant to this Agreement on the Purchase Date.
3. CONVEYANCE OF RECEIVABLES. In consideration of HARC's
delivery to or upon the order of the Seller of the Purchase Price, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to HARC,
without recourse (except as expressly provided in the Purchase Agreement), all
right, title and interest of the Seller in and to:
A-1
(i) each and every Receivable listed on Schedule A hereto and
all monies paid or payable thereon or in respect thereof on or after
the related Cutoff Date (including amounts due on or before the related
Cutoff Date but received by the Seller on or after such date);
(ii) the security interests in the related Financed Vehicles
granted by Obligors pursuant to such Receivables and any other interest
of the Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers pursuant to
Dealer Agreements or Dealer Assignments related to such Receivables;
(iv) any proceeds and the right to receive proceeds with
respect to such Receivables repurchased by a Dealer, pursuant to a
Dealer Agreement, as a result of a breach of representation or warranty
in the related Dealer Agreement;
(v) all rights of Seller under any Service Contracts on the
related Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with
respect to the related Receivables from claims on any physical damage,
loss, credit life or disability insurance policies, if any, covering
Financed Vehicles or Obligors, including rebates of insurance premiums
relating to the Receivables and any proceeds from the liquidation of
such Receivables;
(vii) all items contained in the Receivables Files with
respect to such Receivables and any and all other documents that Seller
or Master Servicer keeps on file in accordance with its customary
procedures relating to the related Receivables, or the related Financed
Vehicles or Obligor;
(viii) property (including the right to receive future Net
Liquidation Proceeds) that secures each related Receivable and that has
been acquired by or on behalf of HARC pursuant to liquidation of such
Receivable;
(ix) all present and future claims, demands, causes and
chooses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of
any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part
of or are included in the proceeds of any of the foregoing.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. As of
the Purchase Date, the Seller hereby makes the representations and warranties to
HARC that are set
A-2
forth in Section 3.1 of the Purchase Agreement with respect to the Conveyance
effected hereby to the same extent as if set forth in full herein.
5. REPRESENTATIONS AND WARRANTIES OF HARC. As of the
Purchase Date, HARC hereby makes the representations and warranties to the
Seller that are set forth in Section 3.2 of the Purchase Agreement with respect
to the Conveyance effected hereby to the same extent as if set forth in full
herein.
In the event of any breach of a representation and warranty
made by HARC hereunder, Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes
and Certificates issued by the Trust have been paid in full. Seller and HARC
agree that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by HARC, Issuer or by the Indenture
Trustee on behalf of the Noteholders and Owner Trustee on behalf of the
Certificateholders.
6. CONDITIONS PRECEDENT. The obligation of HARC to
acquire the Receivables hereunder is subject to the satisfaction, on or prior to
the Purchase Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Seller in Section 4 of this Agreement
and in Section 3.1 of the
Master Receivables Purchase Agreement shall be true
and correct as of the date of this Agreement and as of the Purchase Date.
(b) ADDITIONAL INFORMATION. The Seller shall have
delivered to HARC such information as was reasonably requested by HARC to
satisfy itself as to (i) the accuracy of the representations and warranties set
forth in Section 4 of this Agreement and in Section 3.1 of the
Master
Receivables Purchase Agreement and (ii) the satisfaction of the conditions set
forth in this Section.
7. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the
Master Receivables Purchase Agreement is in all respects ratified
and confirmed and the
Master Receivables Purchase Agreement as so supplemented
by this Agreement shall be read, taken and construed as one and the same
instrument.
8. COUNTERPARTS. This Agreement may be executed in two
or more counterparts (and by different parties in separate counterparts), each
of which shall be an original but all of which together shall constitute one and
the same instrument.
9. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY TO THE ISSUER. Seller acknowledges that HARC intends, pursuant to the
Master Sale and Servicing Agreement, to convey the Receivables and the Other
Conveyed Property, together with its rights under this Agreement, to the Issuer
on the Transfer Date. Seller acknowledges and consents to such conveyance and
pledge and waives any further notice thereof and covenants and agrees that the
representations and warranties of Seller contained in this Agreement and the
rights of HARC hereunder are intended to benefit
A-3
the Issuer, the Owner Trustee, the Noteholders and the Certificateholders. In
furtherance of the foregoing, Seller covenants and agrees to perform its duties
and obligations hereunder, in accordance with the terms hereof for the benefit
of the Issuer, the Owner Trustee, the Indenture Trustee and the Noteholders and
that, notwithstanding anything to the contrary in this Agreement, Seller shall
be directly liable to the Issuer, the Owner Trustee, the Indenture Trustee and
the Noteholders (notwithstanding any failure by the Master Servicer or HARC to
perform their respective duties and obligations hereunder or under Basic
Documents) and that the Indenture Trustee may enforce the duties and obligations
of Seller under this Agreement against Seller for the benefit of the Noteholders
and the Owner Trustee.
10. 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.
A-4
IN WITNESS WHEREOF, the Seller and HARC have caused this
Purchase Agreement to be duly executed and delivered by their respective duly
authorized officers as of day and the year first above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By:
--------------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By:
--------------------------------------
Name:
Title:
A-5
SCHEDULE A
SCHEDULE OF RECEIVABLES
(COMPUTER FILE HELD AT THE OFFICES OF ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP)