Exhibit 10(a)
CONFIDENTIAL TREATMENT
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of May 31, 2002
among
AFC FUNDING CORPORATION,
as Seller,
AUTOMOTIVE FINANCE CORPORATION,
as Servicer,
FAIRWAY FINANCE CORPORATION
and such other entities from time to time
as may become Purchasers hereunder,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.,
as the initial Agent
and as Purchaser Agent for Fairway Finance Corporation
and
XL CAPITAL ASSURANCE INC.,
as Insurer
CONFIDENTIAL TREATMENT
TABLE OF CONTENTS
PAGE
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility...........................................2
Section 1.2. Making Purchases............................................2
Section 1.3. Participation Computation...................................4
Section 1.4. Settlement Procedures.......................................4
Section 1.5. Fees.......................................................11
Section 1.6. Payments and Computations, Etc.............................12
Section 1.7. Dividing or Combining Portions of the Investment
of any Revolving Participation.............................12
Section 1.8. Increased Costs............................................12
Section 1.9. Additional Discount on Portions of Participation
Bearing a Eurodollar Rate..................................13
Section 1.10. Requirements of Law.......................................14
Section 1.11. Inability to Determine Eurodollar Rate....................15
Section 1.12. Additional and Replacement Purchasers,
Increase in Revolving Purchase Limit......................15
Section 1.13. [ * ]...................................................17
Section 1.14. [ * ]...................................................17
Section 1.15. [ * ]...................................................18
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;TERMINATION EVENTS
Section 2.1. Representations and Warranties; Covenants..................18
Section 2.2. Termination Events.........................................18
ARTICLE III.
INDEMNIFICATION
Section 3.1. Indemnities by the Seller..................................18
Section 3.2. Indemnities by AFC.........................................21
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of Servicer....................................22
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
Section 4.2. Duties of Servicer.........................................23
Section 4.3. Deposit Accounts; Establishment and Use
of Certain Accounts........................................24
Section 4.4. Enforcement Rights.........................................25
Section 4.5. Responsibilities of the Seller.............................26
Section 4.6. Servicing Fee..............................................26
ARTICLE V.
THE AGENTS
Section 5.1. Appointment and Authorization..............................27
Section 5.2. Delegation of Duties.......................................28
Section 5.3. Exculpatory Provisions.....................................28
Section 5.4. Reliance by Agents.........................................28
Section 5.5. Notice of Termination Date.................................29
Section 5.6. Non-Reliance on Agent, Purchaser Agents
and Other Purchasers.......................................29
Section 5.7. Agent, Purchaser Agents and Purchasers.....................30
Section 5.8. Indemnification............................................30
Section 5.9. Successor Agent............................................31
ARTICLE VI.
MISCELLANEOUS
Section 6.1. Amendments, Etc............................................31
Section 6.2. Notices, Etc...............................................32
Section 6.3. Assignability..............................................32
Section 6.4. Costs, Expenses and Taxes..................................33
Section 6.5. No Proceedings; Limitation on Payments.....................34
Section 6.6. Confidentiality............................................34
Section 6.7. GOVERNING LAW AND JURISDICTION.............................34
Section 6.8. Execution in Counterparts..................................35
Section 6.9. Survival of Termination....................................35
Section 6.10. WAIVER OF JURY TRIAL.......................................35
Section 6.11. Entire Agreement...........................................35
Section 6.12. Headings...................................................36
Section 6.13. Liabilities of the Purchasers..............................36
Section 6.14. [ * ]....................................................36
Section 6.15. Tax Treatment..............................................36
EXHIBIT I DEFINITIONS....................................................I-1
EXHIBIT II CONDITIONS OF PURCHASES.......................................II-1
EXHIBIT III REPRESENTATIONS AND WARRANTIES...............................III-1
EXHIBIT IV COVENANTS.....................................................IV-1
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT V TERMINATION EVENTS.........................................V-1
EXHIBIT VI PORTFOLIO CERTIFICATE.....................................VI-1
EXHIBIT VII PERFECTION REPRESENTATIONS, WARRANTIES
AND COVENANTS..............................................................VII-1
SCHEDULE I CREDIT AND COLLECTION POLICY...............................I-1
SCHEDULE II DEPOSIT BANKS AND DEPOSIT ACCOUNTS........................II-1
SCHEDULE III TRADE NAMES..............................................III-1
SCHEDULE IV ELIGIBLE CONTRACTS........................................IV-1
SCHEDULE V TAX MATTERS................................................V-1
SCHEDULE VI COMPETITOR FINANCIAL INSTITUTIONS.........................VI-1
ANNEX A FORM OF PURCHASE NOTICE
ANNEX B FORM OF DEPOSIT ACCOUNT AGREEMENT
ANNEX C FORM OF SERVICER REPORT
ANNEX D FORMS OF JOINDER AGREEMENTS
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CONFIDENTIAL TREATMENT
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, originally
dated as of December 31, 1996 and amended and restated as of May 31, 2002 (as
further amended, supplemented or otherwise modified from time to time, the
"AGREEMENT") is entered into among AFC FUNDING CORPORATION, an Indiana
corporation, as seller (the "SELLER"), AUTOMOTIVE FINANCE CORPORATION, an
Indiana corporation ("AFC"), as initial servicer (in such capacity, together
with its successors and permitted assigns in such capacity, the "SERVICER"),
FAIRWAY FINANCE CORPORATION, a Delaware corporation ("FAIRWAY"), as initial
purchaser (together with its successors and permitted assigns and such other
entities as may become party hereto from time to time as purchasers, the
"PURCHASERS"), BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP., a Delaware corporation ("BMO ▇▇▇▇▇▇▇
▇▇▇▇▇") as agent for the Purchasers (in such capacity, together with its
successors and assigns in such capacity, the "AGENT") and as Purchaser Agent for
Fairway (in such capacity, together with its successors and assigns and such
other financial institutions as may become party hereto from time to time each
as a purchaser agent, a "PURCHASER AGENT") and XL CAPITAL ASSURANCE INC., a New
York stock insurance company (the "INSURER").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in EXHIBIT I to this Agreement. References
in the Exhibits hereto to "the Agreement" refer to this Agreement, as amended,
modified or supplemented from time to time.
Fairway, the Agent, the Seller and the Servicer are party to that
certain Receivables Purchase Agreement, dated as of December 31, 1996, pursuant
to which the Seller has sold, transferred and assigned an undivided variable
percentage interest in a pool of receivables, and Fairway has acquired such
undivided variable percentage interest.
[ * ].
The parties hereto additionally wish to amend and restate the
Receivables Purchase Agreement in its entirety, in order to allow the Seller to
sell, transfer and assign undivided variable percentage interests in a pool of
receivables to one or several Purchasers, and to allow one or several Purchasers
to acquire such undivided variable percentage interests, each of which shall be
adjusted from time to time based upon, in part, reinvestment payments which are
made by the Purchasers and additional incremental payments which are made to the
Seller.
The parties hereto additionally wish to amend and restate the
Receivables Purchase Agreement in its entirety in order to make certain other
changes set forth herein.
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. PURCHASE FACILITY. (a) On the terms and conditions
hereinafter set forth, (i) each Revolving Purchaser hereby agrees to purchase
and make reinvestments of undivided percentage ownership interests with regard
to its Participation from the Seller from time to time (but not on a Purchaser
Termination Day for such Revolving Purchaser) during the period from the date
hereof or the date set forth in the Joinder Agreement to which it is a party, as
applicable, to the Termination Date and (ii) each Term Purchaser hereby agrees
to make a purchase with regard to its Participation from Seller on the date set
forth in the Joinder Agreement to which it is a party. Under no circumstances
shall any (A) Revolving Purchaser make any such purchase or reinvestment if,
after giving effect to such purchase or reinvestment, either (1) the aggregate
outstanding Investment of all Revolving Purchasers would exceed the Revolving
Purchase Limit or (2) the aggregate Investment of such Revolving Purchaser would
exceed its Maximum Purchase Amount or (B) Purchaser make any such purchase or
reinvestment if, after giving effect to such purchase or reinvestment, the
aggregate outstanding Investment of all Purchasers would exceed the Maximum
Insured Amount.
(b) The Seller may, upon at least 30 days' notice to the Agent, the
Purchaser Agents and the Insurer, terminate the purchase facility provided in
SECTION 1.1(a)(i) in whole or, from time to time, irrevocably reduce in part the
unused portion of the Revolving Purchase Limit; PROVIDED that each partial
reduction shall be in the amount of [ * ], or an [ * ] in excess thereof and
shall not reduce the Revolving Purchase Limit [ * ]. Any reductions
in the Revolving Purchase Limit shall reduce the Maximum Purchase Amounts of the
Revolving Purchasers ratably according to their respective Revolving Pro Rata
Share.
Section 1.2. MAKING PURCHASES. (a) Each purchase (but not reinvestment)
of undivided ownership interests with regard to any Participation of any
Revolving Purchaser hereunder shall be made upon the Seller's irrevocable
written notice in the form of ANNEX A delivered to the Agent (who will forward
such notice to the applicable Purchaser Agent) and the Insurer in accordance
with SECTION 5.2 (which notice must be received by such Purchaser Agent prior to
11:00 a.m., Chicago time) on the second Business Day next preceding the date of
such proposed purchase. Each such notice of any such proposed purchase shall
specify the desired amount and date of such purchase and the desired duration of
the initial Yield Period for the related Portion of the Investment of such
Participation; PROVIDED each proposed purchase shall be in the amount of
[ * ] or [ * ] in excess thereof. Each Purchaser Agent shall select the
duration of such initial Yield Period with respect to the Portion of the
Investment funded by the Purchaser(s) for which it is acting as Purchaser Agent
and each
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
subsequent Yield Period in connection with such Portion of Investment in its
discretion; PROVIDED that it shall use reasonable efforts, taking into account
market conditions, to accommodate Seller's preferences. Each purchase of
undivided ownership interests with regard to any Participation of any Term
Purchaser shall be made in accordance with the terms set forth in the related
Joinder Agreement.
(b) On the date of each purchase (but not reinvestment) of undivided
ownership interests with regard to the Participation of any Purchaser, such
Purchaser shall, upon satisfaction of the applicable conditions set forth in
EXHIBIT II hereto and (if applicable) set forth in the related Joinder
Agreement, make available to its Purchaser Agent (at its address set forth on
the signature pages hereto or of the applicable Joinder Agreement) the amount of
such purchase in same day funds, and after such Purchaser Agent's receipt of
such funds, such Purchaser Agent shall make such funds immediately available to
the Seller at such office.
(c) The Seller hereby sells and assigns to the Agent, for the benefit
of the Secured Parties, an undivided percentage ownership interest equal to the
Aggregate Participation in (i) each Pool Receivable then existing and thereafter
arising, (ii) all Related Security with respect to such Pool Receivables, and
(iii) Collections with respect to, and other proceeds of, such Pool Receivables
and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise)
under this Agreement, the Insurance Agreement and the other Transaction
Documents to which it is a party, whether now or hereafter existing or arising,
due or to become due, direct or indirect, absolute or contingent, including to
secure the obligation of the Servicer that Collections be applied to the
Participations as provided in this Agreement, the Seller hereby grants to the
Agent, for the benefit of the Secured Parties, a security interest in all of the
Seller's right, title and interest (including, without limitation, any undivided
interest of the Seller) in, to and under all of the following, whether now or
hereafter owned, existing or arising: (A) all Pool Receivables, (B) all Related
Security with respect to each such Pool Receivable, (C) all Collections with
respect to each such Pool Receivable, (D) the Deposit Accounts, the Liquidation
Account and the Cash Reserve Account and all amounts on deposit therein and all
certificates and instruments, if any, from time to time evidencing the Deposit
Accounts, the Liquidation Account and the Cash Reserve Account, all amounts on
deposit therein, all investments (including any investment property) made with
such funds, all claims thereunder or in connection therewith, and all interest,
dividends, moneys, instruments, securities and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the foregoing, (E) all rights of the Seller under the Purchase and
Sale Agreement, and (F) all proceeds of, and all amounts received or receivable
under any or all of, the foregoing. The Agent, for the benefit of the Secured
Parties, shall have, with respect to the property described in this SECTION
1.2(d), and in addition to all the other rights and remedies available under
this Agreement, all the rights and remedies of a secured party under any
applicable UCC.
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CONFIDENTIAL TREATMENT
Section 1.3. PARTICIPATION COMPUTATION. Each Participation shall be
initially computed on the date of the initial purchase hereunder. Thereafter
until the Termination Date, each Participation shall be automatically recomputed
(or deemed to be recomputed) on each Business Day other than a Termination Day.
Each Participation, as computed (or deemed recomputed) as of the day immediately
preceding the Termination Date, shall thereafter remain constant. The
Participations shall all become zero when the aggregate Investment and Discount
thereon shall have been paid in full, all the amounts owed by the Seller
hereunder, under the Insurance Agreement and under any other Transaction
Documents to the Purchasers, the Purchaser Agents, the Insurer, the Agent, and
any other Indemnified Party or Affected Person are paid in full and the Servicer
shall have received the accrued Servicing Fee.
Section 1.4. SETTLEMENT PROCEDURES. (a) Collection of the Pool
Receivables shall be administered by the Servicer in accordance with the terms
of this Agreement. The Seller shall provide to the Servicer on a timely basis
all information needed for such administration, including notice of the
occurrence of any Termination Date or Revolving Paydown Day and current
computations of the Participations.
(b) The Servicer shall segregate and hold all Collections in trust for
the benefit of the Seller, the Purchasers and the Insurer and, within one
Business Day of the receipt (or deemed receipt) of Collections of Pool
Receivables by the Seller or Servicer, deposit such Collections into a Deposit
Account. With respect to such Collections on the day deposited into the Deposit
Accounts:
(i) out of the percentage of such Collections represented by
the Aggregate Participation, FIRST the Servicer shall transfer from the
Deposit Accounts to the Liquidation Account, and the Agent shall hold
therein for the benefit of the Insurer, an amount equal to the Premium
accrued through such day and not previously transferred to the
Liquidation Account and SECOND, out of each Purchaser's Distribution
Percentage of the remainder of such Collections, the Servicer shall
transfer from the Deposit Accounts to the Liquidation Account, and the
Agent shall hold therein for the benefit of each Purchaser, an amount
equal to the sum of the Discount accrued through such day on each
Portion of Investment of such Purchaser's Participation and not
previously transferred to the Liquidation Account and the Program Fees
accrued through such day with respect to such Purchaser and not
previously transferred to the Liquidation Account (provided that the
amount allocated pursuant to this priority SECOND shall not exceed
[ * ]) and third, out of the remainder of such Collections,
the Servicer shall transfer from the Deposit Accounts to
the Liquidation Account, and the Agent shall hold therein for the
benefit of the Servicer (if AFC or any Affiliate thereof is not the
Servicer), an amount equal to the Servicing Fee accrued through such
day and not previously transferred to the Liquidation Account;
(ii) if such day is not a Termination Day, (A) if the amount on
deposit in the Cash Reserve Account on such day is less than the Cash
Reserve, the Servicer shall transfer
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
from the Deposit Accounts out of the remainder of the percentage of
such Collections represented by the Aggregate Participation to the Cash
Reserve Account funds sufficient to increase the amount on deposit
therein to equal the Cash Reserve; (B) if such day is a Revolving
Paydown Day, Purchaser Termination Day or any date on which a reduction
is occurring pursuant to SECTION 1.4(f), out of the remainder (after
giving effect to clause (A)) of the percentage of such Collections
represented by the Aggregate Participation, the Servicer and the Agent
shall apply such Collections in accordance with SECTION 1.4(g), SECTION
1.4(f) and SECTION 1.4(h) (in the order of priority listed); (C) the
Servicer shall transfer from the Deposit Accounts to the Liquidation
Account out of the remainder (after giving effect to CLAUSES (A) and
(B) above) of the percentage of such Collections represented by the
Aggregate Participation an amount equal to the sum of the Discount
accrued through such day on each Portion of Investment of such
Purchaser's Participation and not previously transferred to the
Liquidation Account and the Program Fees accrued through such day with
respect to such Purchaser and not previously transferred to the
Liquidation Account, in each case, to the extent not transferred
pursuant to CLAUSE SECOND in SECTION 1.4(b)(i) above; (D) the Servicer
shall transfer (after giving effect to CLAUSES (A), (B) and (C) above)
from the Deposit Accounts to the Liquidation Account, and the Agent
shall promptly apply (ratably in proportion to the respective amounts
owed to each such Person) for the account of any Indemnified Party that
is owed any amounts hereunder, under the [ * ] Transaction Document
not consisting of Discount, Investment, Program Fees or Premium,
an amount equal to the sum of such amounts; and (E) the Servicer
shall remit to the Seller, on behalf of the Purchasers, the
remainder of the percentage of such Collections represented by
the Aggregate Participation (after giving effect to CLAUSES (A), (B),
(C) and (D) above); such Collections remitted to the Seller
shall first be used, if the Originator or any Affiliate of the
Seller is the Servicer, to pay any accrued but unpaid Servicing Fee to
the Servicer and the remainder shall be automatically reinvested in
Pool Receivables and in the Related Security;
(iii) if such day is a Termination Day, (A) the Servicer shall
transfer to the Liquidation Account, out of the Collections in the
Deposit Accounts (first out of the Seller's share of such Collections,
and then out of the portion of such Collections represented by the
Aggregate Participation) an amount equal to the costs and expenses
incurred by the Agent and the Insurer in enforcing their rights and the
rights of the other Indemnified Parties hereunder and reported to the
Servicer by the Agent, (B) the Servicer shall transfer to the
Liquidation Account, and the Agent shall hold therein for each
Purchaser, such Purchaser's Distribution Percentage of the entire
remainder of the percentage of the Collections represented by the
Aggregate Participation, and (C) the Servicer shall transfer to the
Liquidation Account, and the Agent shall hold therein for each
Purchaser, such Purchaser's Termination Share of the entire remainder
of the Collections in the Deposit Accounts represented by the Seller's
share of the Collections, if any; and
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(iv) if such day is not a Termination Day, out of the Seller's
share of Collections, the Servicer shall FIRST, remit to the Servicer
in the event that AFC is not the Servicer, the Servicing Fee and
SECOND, remit to the Seller the remainder of such Collections.
(c) On each Settlement Date, funds being held on deposit in the
Liquidation Account shall be distributed by the Agent as follows:
(i) If such Settlement Date is not a Termination Day,
Collections held on deposit in the Liquidation Account for the benefit
of any Purchaser pursuant to SECTIONS 1.4(b)(i), 1.4(b)(ii)(C) and
1.4(b)(ii)(D) shall be paid on behalf of Seller [ * ] SECOND
to the applicable Purchaser Account in an amount equal to the
sum of any accrued and unpaid Program Fees payable on such
Settlement Date (if any) and accrued and unpaid Discount
payable on each Portion of the Investment of such Purchaser with a
Yield Period ending on such Settlement Date (if any) (provided that the
amount payable pursuant to this priority second shall not exceed the
[ * ]), THIRD, to the applicable Purchaser Account in
an amount equal to sum of any accrued and unpaid Program Fees payable
on such Settlement Date (if any) and accrued and unpaid Discount
payable on each Portion of Investment of such Purchaser with a Yield
Period ending on such Settlement Date (to extent not paid pursuant to
clause second above) and FOURTH, to the account of the applicable
Indemnified Party in an amount equal to the amount owed to such
Indemnified Party not consisting of Discount, Investment, Program Fees
or Premium;
(ii) If such Settlement Date is not a Termination Day and is a
Settlement Date associated with the last day of any Yield Period of any
Portion of the Investment of any Purchaser, the Collections held on
deposit in the Liquidation Account for the benefit of such Purchaser
pursuant to SECTIONS 1.4(f), 1.4(g) or 1.4(h) shall be paid on behalf
of Seller to the applicable Purchaser Account in an amount equal to the
lesser of (A) such Portion of the Investment and (B) the amount of such
Collections;
(iii) If such Settlement Date is a Termination Day, Collections
held on deposit in the Liquidation Account for the benefit of any
Purchaser pursuant to SECTIONS 1.4(b)(i), 1.4(b)(ii), 1.4(b)(iii),
1.4(f), 1.4(g) or 1.4(h) shall be applied FIRST, to the Agent and the
Insurer such Purchaser's Termination Share of the costs and expenses
incurred by the Agent and the Insurer in enforcing their rights and the
rights of the other Indemnified Parties hereunder (provided that the
amount payable pursuant to this priority FIRST shall not exceed
$100,000 per annum); SECOND, [ * ]; THIRD, to such Purchaser's
Account in an amount equal to the sum of accrued and unpaid Discount
payable on each Portion of the Investment of such
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
Purchaser and accrued and unpaid Program Fees payable on such
Settlement Date to such Purchaser (if any) (provided that the amount
payable pursuant to this priority THIRD [ * ]); FOURTH, to such
Purchaser's Account in an amount equal to such Purchaser's
outstanding Investment; FIFTH, [ * ] SIXTH, to such Purchaser's
Account in an amount equal to the sum of accrued and unpaid Discount
payable on each Portion of the Investment of such Purchaser and any
accrued and unpaid Program Fees (to the extent not paid pursuant to
clause THIRD above) and SEVENTH, to the Agent and the Insurer such
Purchaser's Termination Share of the costs and expenses of the Agent
and [ * ] in enforcing their rights and the rights of the Indemnified
Parties hereunder (to the extent not paid pursuant to clause FIRST
above);
(iv) [ * ];
(v) if such Settlement Date is a Servicer Payment Date and
neither AFC nor any of its Affiliates are the Servicer, Collections
held on deposit in the Liquidation Account for the benefit of the
Servicer pursuant to SECTION 1.4(b)(i) in respect of accrued and unpaid
Servicing Fees for the prior calendar month shall be paid as the
Servicer shall direct;
(vi) if the Investment and accrued Discount with respect to
each Portion of Investment of each Purchaser have been reduced to zero,
[ * ], and all accrued Servicing Fees payable to the Servicer (if
other than AFC or any of its Affiliates) have been paid in full, any
amount remaining in the Liquidation Account after the application of
CLAUSES (i)-(v) above shall be distributed to the Purchasers,
[ * ], the Agent, the Purchaser Agents and any other Indemnified
Party or Affected Person in payment in full of any other amounts owed
thereto hereunder [ * ] or any other Transaction Document (ratably in
proportion to the respective amounts owed to each such Person); and
(vii) if such Settlement Date is a Fee Payment Date,
Collections held on deposit in the Liquidation Account for the benefit
of the Purchasers in respect of accrued and unpaid Program Fees for the
prior calendar month shall be paid to the applicable Purchaser's
Account.
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(d) Upon receipt of funds deposited into any Purchaser's Account
pursuant to SECTION 1.4(c) with respect to such Purchaser's Participation, the
applicable Purchaser Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a
Termination Day, FIRST to the payment in full (on a PARI PASSU basis)
of all Discount and Program Fees with respect to such Purchaser's
Participation previously due and remaining unpaid, SECOND, to the
payment in full (on a PARI PASSU basis) of all accrued and unpaid
Discount with respect to any Portion of Investment of such Purchaser
with a Yield Period ending on the applicable Settlement Date and all
accrued and unpaid Program Fees due on the applicable Settlement Date
and THIRD to the payment in full of any Portion of the Investment of
such Purchaser with a Yield Period ending on the applicable Settlement
Date; and
(ii) if such distribution occurs on a day that is a Termination
Day, FIRST to the payment in full (on a PARI PASSU basis) of all
Discount and Program Fees with respect to such Purchaser's
Participation previously due and remaining unpaid, SECOND, to the
payment in full (on a PARI PASSU basis) of all accrued and unpaid
Discount with respect to any Portion of Investment of such Purchaser
with a Yield Period ending on the applicable Settlement Date and all
accrued and unpaid Program Fees due on the applicable Settlement Date,
THIRD, to the payment in full of such Purchaser's Investment, FOURTH,
if the Investment and accrued Discount with respect to each Portion of
Investment of such Purchaser have been reduced to zero, to the payment
in full of any other amounts owed by the Seller hereunder to such
Purchaser.
If a Purchaser so directs, any of the foregoing payments owed to such Purchaser
may be paid to its Purchaser Agent on its behalf.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable
is reduced or adjusted as a result of any discount, rebate or other
adjustment made by the Originator, Seller or Servicer, or any setoff or
dispute between the Seller, Originator or the Servicer and an Obligor,
the Seller shall be deemed to have received on such day a Collection of
such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in
PARAGRAPHS A.(g) or A.(o) of EXHIBIT III is not true with respect to
any Pool Receivable, the Seller shall be deemed to have received on
such day a Collection of such Pool Receivable in full;
(iii) except as provided in PARAGRAPH (i) or (ii) of this SECTION
1.4(e), or as otherwise required by applicable law or the relevant
Contract, all Collections received from an Obligor of any Receivable
shall be applied in accordance with the Contract with such Obligor and
the Credit and Collection Policy; and
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CONFIDENTIAL TREATMENT
(iv) if and to the extent any Purchaser Agent, the Agent,
[ * ] or any Purchaser shall be required for any reason to pay over
to an Obligor (or any trustee, receiver, custodian or similar official
in any Insolvency Proceeding) any amount received by it hereunder, such
amount shall be deemed not to have been so received but rather to have
been retained by the Seller and, accordingly, such Purchaser Agent, the
Agent, [ * ] or such Purchaser, as the case may be, shall have a
claim against the Seller for such amount, payable when and to the
extent that any distribution from or on behalf of such Obligor is made
in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the
aggregate of the Investment of the Participations of the Revolving Purchasers
(but not to commence the liquidation, or reduction to zero, of the entire
Investment of the Participations), the Seller may do so as follows:
(i) the Seller shall give each Purchaser Agent, [ * ] and
the Agent at least two Business Days' prior written notice thereof
(including the amount of such proposed reduction and the proposed date
on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and
on each day thereafter, the Servicer shall cause each Revolving
Purchaser's Distribution Percentages of the remainder of the
Collections represented by the Aggregate Participation (after giving
effect to SECTION 1.4(b)(i), SECTION 1.4(b)(ii)(A) and SECTION 1.4(g))
to be transferred to the Liquidation Account and the Agent shall hold
therein such amounts until the aggregate amount thereof not so
reinvested shall equal the desired amount of reduction, and
(iii) the Agent shall hold such Collections in the Liquidation
Account for the benefit of the Revolving Purchasers, and for payment to
each Revolving Purchaser on a pari passu basis on the next Settlement
Date relating to any Portion of the Investment of such Revolving
Purchaser [ * ] pursuant to SECTION 1.4(c)(ii) or (iii);
provided that,
A. unless otherwise agreed by the Agent the amount of any such
reduction with respect to each Purchaser shall be not less than
$1,000,000 and shall be an integral multiple of $100,000, and the
entire Investment (if any) of the Participation after giving effect to
such reduction shall be not less than $2,000,000,
B. the Seller shall use reasonable efforts to choose a
reduction amount, and the date of commencement thereof, so that to the
extent practicable such reduction shall commence and conclude in the
same Yield Period, and
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
C. if two or more Portions of Investment shall be outstanding
with respect to any Purchaser at the time of any proposed reduction,
such proposed reduction shall be applied, unless the Seller shall
otherwise specify in the notice given pursuant to SECTION 1.4(f)(i), to
the Portion of Investment of such Purchaser with the shortest remaining
Yield Period.
(g) On each Purchaser Termination Day, the applicable Purchaser's
Distribution Percentage of the remainder of the Collections represented by the
Aggregate Participation (after giving effect to SECTION 1.4(b)(i)) and SECTION
1.4(b)(ii)(A) shall be transferred by the Servicer from the Deposit Accounts to
the Liquidation Account and held therein by the Agent for the benefit of such
Purchaser and then, on each Settlement Date related to such Purchaser, paid to
such Purchaser [ * ] in accordance with SECTIONS 1.4(c)(ii) or (iii);
IT BEING UNDERSTOOD that solely for the purposes of this SECTION 1.4(g), such
Purchaser's Distribution Percentage shall be deemed to remain constant on any
day that is not a Termination Day from (i) the occurrence of the first Purchaser
Termination Day with respect to such Purchaser or (ii), to the extent a
Termination Date has occurred after the date in CLAUSE (i) hereof, the first
Business Day after such Termination Date that is not a Termination Day, in each
case until the date such Purchaser's Investment shall be paid in full. To the
extent that amounts have been transferred to the Liquidation Account pursuant to
this SECTION 1.4(g) but not distributed to the applicable Purchaser [ * ] prior
to the occurrence of a Termination Date, the Agent shall hold each Purchaser's
Termination Share of such amounts for distribution to such Purchaser pursuant to
SECTION 1.4(c)(iii) until the first day that is not a Termination Day, at which
time the Agent shall hold any such amounts for the benefit of the Purchaser
whose Purchaser Termination Day preceded the occurrence of the most recent
Termination Date (or, if the Investment of such Purchaser has been reduced to
zero, the Agent shall transfer such amounts to the Seller for reinvestment
pursuant to SECTION 1.4(b)(ii)(E)).
(h) On each Revolving Paydown Day that is not also a Termination Day,
the remainder of the Collections represented by the Aggregate Participation
(after giving effect to SECTIONS 1.4(b)(i), 1.4(b)(ii)(A), 1.4(g) and 1.4(f))
shall be transferred by the Servicer from the Deposit Accounts to the
Liquidation Account and held therein by the Agent for the benefit of the
Revolving Purchasers (other than any Revolving Purchasers for whom such day is a
Purchaser Termination Day) until the earliest of (i) the first day that is not a
Revolving Paydown Day, at which point the Agent shall transfer such funds from
the Liquidation Account to the Seller, who shall reinvest such funds pursuant to
SECTION 1.4(b)(ii)(E) to the maximum extent permitted under this Agreement, (ii)
the Termination Date (at which time the Agent shall hold each Purchaser's
Termination Share of such amounts for distribution to such Purchaser [ * ]
pursuant to SECTION 1.4(c)(iii) until the first day that is not a Termination
Day, at which time the remainder of such amounts shall either be held for the
benefit of the Revolving Purchasers pursuant to this SECTION 1.4(h) or, if such
day is also not a Revolving Paydown Day, reinvested pursuant to CLAUSE (i) of
this SECTION 1.4(h)) and (iii) the first Settlement Date related to the end of
the Yield Period with respect to any Portion of Investment of a Revolving
Purchaser (other than any Purchasers for whom such day is a Purchaser
Termination Day) shall occur (at which
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
point a portion of such funds equal to such Portion of the Investment (but only
to the extent such application would not result in such Revolving Purchaser
having received an amount pursuant to this CLAUSE (iii) of this SECTION 1.4(h)
in excess of such Purchaser's Distribution Percentage of the aggregate of all
amounts held in the Liquidation Account pursuant to this SECTION 1.4(h) and not
reinvested or held in the Liquidation Account pursuant to CLAUSES (i) and (ii)
above) shall be held in trust for the benefit of the applicable Revolving
Purchaser and paid to such Revolving Purchaser in accordance with SECTION
1.4(c)(ii) on such Settlement Date.
(i) If on any Draw Date (A) insufficient funds are on deposit in the
Liquidation Account to make in full the distributions required under ITEM SECOND
of CLAUSE (i) of SECTION 1.4(c) or ITEM THIRD of CLAUSE (iii) of SECTION 1.4(c)
and (B) since the prior Draw Date funds have been released to the Seller and not
used by the Seller to acquire Receivables, the Seller shall deposit into the
Liquidation Account on or before such Draw Date the lesser of the amounts
described in CLAUSES (A) and (B) above for the benefit of the applicable
Purchasers. If on any Draw Date insufficient funds are on deposit in the
Liquidation Account (after giving effect to any deposits made by the Seller as
described in the preceding sentence) to make in full the distributions required
under ITEM SECOND of CLAUSE (i) of SECTION 1.4(c) or ITEM THIRD of CLAUSE (iii)
of SECTION 1.4(c) for such Draw Date, the Agent shall distribute funds from the
Cash Reserve Account pursuant to ITEM SECOND of CLAUSE (i) of SECTION 1.4(c) and
ITEM THIRD of CLAUSE (iii) of SECTION 1.4(c) as if such funds were funds on
deposit in the Liquidation Account held for the benefit of the applicable
Purchaser. On any Termination Day, to the extent directed by the Control Party,
the Agent shall distribute funds from the Cash Reserve Account pursuant to ITEM
FOURTH of CLAUSE (iii) of SECTION 1.4(c) as if such funds were funds on deposit
in the Liquidation Account held for the benefit of the applicable Purchaser .
Section 1.5. FEES. (a) The Seller shall pay to the Agent certain fees
in the amounts and on the dates set forth in a letter dated May 31, 2002 between
the Seller and the Agent delivered pursuant to SECTION 1(n) of EXHIBIT II, as
such letter agreement may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof with the prior written consent
of the Insurer.
(b) The Seller shall pay to any Purchaser Agent (other than the Agent)
such fees as may be set forth in a fee letter executed by the Seller and such
Purchaser Agent, and consented to by the Insurer, in contemplation of the
applicable Purchaser becoming an additional party hereto (each such letter, as
the same may be amended, amended and restated, supplemented or modified and
together with the letter referred to in PARAGRAPH (a) above, a "FEE LETTER"),
such fees to be payable in the amounts and on the dates set forth in such
letter, as such letter agreement may be amended, supplemented or otherwise
modified from time to time with the consent of the Insurer.
(c) [ * ].
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
Section 1.6. PAYMENTS AND COMPUTATIONS, ETC. (a) All amounts to be paid
or deposited by the Seller or the Servicer to, or for the benefit of, any
Purchaser Agent, any Purchaser, the Agent or the Insurer hereunder shall be paid
or deposited no later than noon (Chicago time) on the day when due in same day
funds to the applicable Purchaser's Account or to the Insurer's Account (as
appropriate). All amounts received after noon (Chicago time) will be deemed to
have been received on the immediately succeeding Business Day.
(b) The Seller shall, to the extent permitted by law, pay interest on
any amount not paid or deposited by the Seller or Servicer to the applicable
Purchaser's Account or Insurer's Account when due hereunder, at an interest rate
equal to [ * ].
(c) All computations of interest under SUBSECTION (b) above and all
computations of Discount, fees, premiums and other amounts hereunder shall be
made on the basis of a year of 360 days for the actual number of days elapsed.
Whenever any payment or deposit to be made hereunder shall be due on a day other
than a Business Day, such payment or deposit shall be made no later than the
next succeeding Business Day and such extension of time shall be included in the
computation of such payment or deposit.
Section 1.7. DIVIDING OR COMBINING PORTIONS OF THE INVESTMENT OF ANY
REVOLVING PARTICIPATION. The Seller may, on the last day of any Yield Period,
either (i) divide the Investment of any Revolving Purchaser into two or more
portions (each, with respect to the applicable Participation, a "PORTION OF
INVESTMENT") equal, in aggregate, to the Investment of such Revolving Purchaser,
PROVIDED that after giving effect to such division the amount of each such
Portion of Investment shall be not less than $1,000,000, or (ii) combine any two
or more Portions of Investment outstanding on such last day and having Yield
Periods ending on such last day into a single Portion of Investment equal to the
aggregate of the Investment of such Portions of Investment.
Section 1.8. INCREASED COSTS. (a) If any Purchaser Agent, any
Purchaser, the Agent, the Insurer, any Liquidity Bank, any other Program Support
Provider or any of their respective Affiliates (each an "AFFECTED PERSON")
determines that the existence of or compliance with (i) any law or regulation or
any change therein or in the interpretation or application thereof, in each case
adopted, issued or occurring after the date hereof or (ii) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement affects or would affect the amount of capital required or
expected to be maintained by such Affected Person and such Affected Person
determines that the amount of such capital is increased by or based upon the
existence of any commitment to make purchases of or otherwise to maintain the
investment in Pool Receivables related to this Agreement or any related
liquidity facility or credit enhancement facility and other commitments of the
same type, then, upon written demand by such Affected Person (with a copy to the
Insurer, the Agent and the applicable Purchaser Agent (if any)), the Seller
shall immediately pay to the Agent, for the account of such Affected Person,
from time to time as
12
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
specified by such Affected Person, additional amounts sufficient to compensate
such Affected Person in the light of such circumstances, to the extent that such
Affected Person reasonably determines such increase in capital to be allocable
to the existence of any of such commitments or maintenance of its investment in
the Pool Receivables; PROVIDED that within 30 days of an Affected Person's
knowledge of any such circumstance such Affected Person shall notify the Seller
in writing of the same and whether such Affected Person will request that the
Seller indemnify it for such circumstance. A certificate as to such amounts
submitted to the Insurer, the Seller, the Agent and the applicable Purchaser
Agent (if any) by such Affected Person shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements referred to
in SECTION 1.9) in or in the interpretation of any law or regulation or (ii)
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Affected Person of agreeing to purchase or
purchasing, or maintaining the ownership of the related Participation(s) in
respect of which Discount is computed by reference to the Eurodollar Rate, then,
upon written demand by such Affected Person, the Seller shall immediately pay to
such Affected Person, from time to time as specified, additional amounts
sufficient to compensate such Affected Person for such increased costs; PROVIDED
that within 30 days of an Affected Person's knowledge of any such circumstance
such Affected Person shall notify the Seller in writing of the same and whether
such Affected Person will request that the Seller indemnify it for such
circumstance. A certificate as to such amounts submitted to the Seller, the
Insurer, the Agent and the applicable Purchaser Agent (if any), by such Affected
Person shall be conclusive and binding for all purposes, absent manifest error.
Section 1.9. ADDITIONAL DISCOUNT ON PORTIONS OF PARTICIPATION BEARING A
EURODOLLAR RATE. The Seller shall pay to any Affected Person, so long as such
Affected Person shall be required under regulations of the Board of Governors of
the Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including "Eurocurrency Liabilities", additional
Discount on the unpaid Investment of the applicable Portion of Investment during
each Yield Period in respect of which Discount is computed by reference to the
Eurodollar Rate, for such Yield Period, at a rate per annum equal at all times
during such Yield Period to the remainder obtained by subtracting (i) the
Eurodollar Rate for such Yield Period from (ii) the rate obtained by dividing
such Eurodollar Rate referred to in clause (i) above by that percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Yield Period, payable
on each date on which Discount is payable on the applicable Portion of
Investment; PROVIDED that within 30 days of an Affected Person's knowledge of
any such circumstance such Affected Person shall notify the Seller of the same
and whether such Affected Person will request that the Seller indemnify it for
such circumstance. Such additional Discount shall be determined by the Affected
Person and notified to the Seller through such Affected Person (or its Purchaser
Agent or the Agent) within 30 days after any Discount payment is made with
respect to which such additional Discount is requested. A certificate as to such
additional Discount submitted to the
13
Seller by the Affected Person shall be conclusive and binding for all purposes,
absent manifest error.
Section 1.10. REQUIREMENTS OF LAW. In the event that any Affected
Person determines that the existence of or compliance with (i) any law or
regulation or any change therein or in the interpretation or application
thereof, in each case adopted, issued or occurring after the date hereof or (ii)
any request, guideline or directive from any central bank or other Governmental
Authority (whether or not having the force of law) issued or occurring after the
date of this Agreement:
(i) does or shall subject such Affected Person to any tax of any
kind whatsoever with respect to this Agreement, any increase in the
applicable Participation(s) or in the amount of Investment relating
thereto, or does or shall change the basis of taxation of payments to
such Affected Person on account of Collections, Discount or any other
amounts payable hereunder (excluding taxes imposed on the overall net
income of such Affected Person, and franchise taxes imposed on such
Affected Person, by the jurisdiction under the laws of which such
Affected Person is organized or a political subdivision thereof);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
purchases, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Affected Person which
are not otherwise included in the determination of the Eurodollar Rate
or the Base Rate hereunder; or
(iii) does or shall impose on such Affected Person any other
condition;
and the result of any of the foregoing is (x) to increase the cost to such
Affected Person of acting as a Purchaser Agent, Insurer or Agent or of agreeing
to purchase or purchasing or maintaining the ownership of undivided ownership
interests with regard to the applicable Participation or any Portion of
Investment (or interests therein) in respect of which Discount is computed by
reference to the Eurodollar Rate or the Base Rate or (y) to reduce any amount
receivable hereunder (whether directly or indirectly) funded or maintained by
reference to the Eurodollar Rate or the Base Rate, then, in any such case, upon
written demand by such Affected Person the Seller shall pay such Affected Person
any additional amounts necessary to compensate such Affected Person for such
additional cost or reduced amount receivable. All such amounts shall be payable
as incurred. A certificate from such Affected Person to the Seller certifying,
in reasonably specific detail, the basis for, calculation of, and amount of such
additional costs or reduced amount receivable shall be conclusive in the absence
of manifest error; PROVIDED, however, that no Affected Person shall be required
to disclose any confidential or tax planning information in any such
certificate.
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Section 1.11. INABILITY TO DETERMINE EURODOLLAR RATE. In the event that
any Purchaser Agent shall have determined prior to the first day of any Yield
Period for the Participation of its Purchaser (which determination shall be
conclusive and binding upon the parties hereto) by reason of circumstances
affecting the interbank Eurodollar market, either (a) dollar deposits in the
relevant amounts and for the relevant Yield Period are not available, (b)
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Yield Period or (c) the Eurodollar Rate determined pursuant hereto does
not accurately reflect the cost (as conclusively determined by such Purchaser
Agent) to any Purchaser for which such Purchaser Agent acts as agent of
maintaining each such Portion of Investment of such Purchaser during such Yield
Period, such Purchaser Agent shall promptly give telephonic notice of such
determination, confirmed in writing, to the Seller and the Insurer prior to the
first day of such Yield Period. Upon delivery of such notice (a) no Portion of
Investment of such Purchaser shall be funded thereafter at the Bank Rate
determined by reference to the Eurodollar Rate, unless and until the applicable
Purchaser Agent shall have given notice to the Seller that the circumstances
giving rise to such determination no longer exist, and (b) with respect to any
outstanding Portions of Investment then funded at the Bank Rate determined by
reference to the Eurodollar Rate, such Bank Rate shall automatically be
converted to the Bank Rate determined by reference to the Base Rate at the
respective last days of the then-current Yield Periods relating to such Portions
of Investment.
Section 1.12. ADDITIONAL AND REPLACEMENT PURCHASERS, INCREASE IN
REVOLVING PURCHASE LIMIT. (a) The Seller shall have the right, at any time and
from time to time, with the prior written consent of the Agent and the Insurer
(the consent of the Insurer not to be unreasonably withheld), to add any entity
as a Purchaser hereunder (which addition may increase the Revolving Purchase
Limit if a Revolving Purchaser is added) or increase the Maximum Purchase Amount
of any existing Revolving Purchaser. Each such addition of a new Purchaser
hereunder shall be effected by delivery to the Insurer, the Seller, the
Servicer, the Agent and each Purchaser Agent, of a (i) Joinder Agreement
executed by the Seller, the Servicer, the Agent, such new Purchaser, its
Purchaser Agent (if different from the Purchaser) and the Insurer in
substantially the form of ANNEX D hereto and (ii) in the case of any new
Purchaser that is a Term Purchaser an opinion of counsel to such new Term
Purchaser as to tax matters in a form reasonably satisfactory to the Insurer.
Upon receipt of a Joinder Agreement, if such Joinder Agreement has been fully
executed and completed and is substantially in the form of ANNEX D, the Servicer
shall, not less than five (5) Business Days prior to the effectiveness of such
Joinder Agreement give prompt written notice to all Purchaser Agents, the Agent,
the Insurer and Purchasers as to (i) the name, identity and address for
receiving notices of the new Purchaser(s) and Purchaser Agent(s) becoming party
hereto, (ii) the Maximum Purchase Amount (if such Purchaser is a Revolving
Purchaser) of such new Purchaser, (iii) the change in the Revolving Purchase
Limit (if any) and (iv) the effective date of such Joinder Agreement.
Immediately upon the effectiveness of such Joinder Agreement, such additional
Purchaser shall purchase, by wire transfer of immediately available funds its
Participation and, if such Purchasers shall agree, a portion of the other
Purchasers' outstanding Portion of Investment. Effective with the payment of
such
15
amounts, such new Purchaser and its Purchaser Agent designated in the applicable
Joinder Agreement shall each become parties hereto.
(b) By executing and delivering a Joinder Agreement, each new Purchaser
and Purchaser Agent confirms to and agrees with the Insurer, the Agent and each
other Purchaser and Purchaser Agent party hereto as follows: (A) such new
Purchaser has received a copy of this Agreement, the Purchase and Sale
Agreement, the Insurance Agreement, and the Policy, together with copies of such
financial statements and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Joinder Agreement; (B) such new Purchaser has made and will continue to make,
independently and without reliance upon the Insurer, the Agent, any Purchaser
Agent or any other Purchaser and based on such documents and information as it
shall deem appropriate at the time, its own credit decisions in taking or not
taking action under this Agreement; (C) such new Purchaser appoints and
authorizes the Control Party, Insurer and the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Control Party, Insurer and the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (D) such new Purchaser and
its Purchaser Agent agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Purchaser or Purchaser Agent.
(c) In addition to the foregoing, in the event that any Purchaser or
Purchaser Agent (i) does not consent to an amendment of clause (ii) of the
definition of Termination Date to which the Seller, the Servicer and the Insurer
have otherwise consented; or (ii) does not consent to any amendment or
modification of this Agreement agreed to by the Seller, the Servicer, the Agent
and the Control Party and the Majority Purchasers but which requires the consent
of such Purchaser, then, in any such event, the Seller shall have the right,
with the prior written consent of the Control Party and the Agent, to require
such Purchaser to assign its interests in its Participation and the Pool
Receivables and all of its rights and obligations under this Agreement to a
replacement Purchaser acceptable to the Control Party, the Agent and the Seller.
Any such assignment shall be without recourse, representation or warranty of any
kind on the part of the assigning Purchaser, except that such assignment is free
and clear of any Adverse Claims created by such Purchaser, and shall be
consummated pursuant to documentation reasonably satisfactory to the assignor
and assignee on not less than ten days' prior written notice, at a purchase
price equal to the sum of (w) the aggregate outstanding Investment of the
Purchaser being so replaced; (x) all accrued and unpaid Discount on such
Investment; (y) all accrued and unpaid Program Fees owed to or on behalf of such
Purchaser; and (z) all other accrued and unpaid expenses, indemnities and other
amounts owing under this Agreement to such Purchaser, including any Termination
Fees caused by the above-described assignment. Concurrently with any such
assignment, the Seller, the Servicer, such replacement Purchaser, its Purchaser
Agent (if different from the Purchaser) and the Insurer shall execute a Joinder
Agreement to evidence the terms and conditions under which such replacement
Purchaser has agreed to become a Purchaser hereunder.
16
CONFIDENTIAL TREATMENT
Section 1.13. [ * ]
Section 1.14. [ * ]
(a) [ * ]
(b) [ * ]
(c) [ * ]
17
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
Section 1.15. [ * ]
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1. REPRESENTATIONS AND WARRANTIES; COVENANTS. Each of the
Seller, AFC and the Servicer hereby makes the representations and warranties,
and hereby agrees to perform and observe the covenants of such Person, set forth
in EXHIBITS III, IV and VII, respectively hereto.
Section 2.2. TERMINATION EVENTS. If any of the Termination Events set
forth in EXHIBIT V hereto shall occur, the Control Party may, by notice to the
Seller, each Purchaser Agent, the Agent and the Insurer, declare the Termination
Date to have occurred (in which case the Termination Date shall be deemed to
have occurred); PROVIDED that, automatically upon the occurrence of any event
(without any requirement for the passage of time or the giving of notice)
described in SUBSECTION (g), (h), (k) or (m) of EXHIBIT V, the Termination Date
shall occur. Upon any such declaration, the occurrence or the deemed occurrence
of the Termination Date, the Purchasers, the Purchaser Agents, the Insurer and
the Agent shall have, in addition to the rights and remedies which they may have
under this Agreement, all other rights and remedies provided after default under
the UCC and under other applicable law, which rights and remedies shall be
cumulative.
ARTICLE III.
INDEMNIFICATION
Section 3.1. INDEMNITIES BY THE SELLER. Without limiting any other
rights that the Agent, the Insurer, the Purchaser Agents or the Purchasers or
any of their respective Affiliates,
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* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
employees, agents, successors, transferees or assigns (each, an "INDEMNIFIED
PARTY") may have hereunder or under applicable law, the Seller hereby agrees to
indemnify each Indemnified Party from and against any and all claims, damages,
expenses, losses and liabilities (including Attorney Costs) (all of the
foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") arising out
of or resulting from this Agreement or other Transaction Documents (whether
directly or indirectly) or the use of proceeds of purchases or reinvestments or
the ownership of any Participation, or any interest therein, or in respect of
any Receivable or any Contract regardless of whether any such Indemnified
Amounts result from an Indemnified Party's negligence or strict liability or
other acts or omissions of an Indemnified Party, excluding, however, (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party, (b) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Receivables
to be written off consistent with the Credit and Collection Policy, (c) any
overall net income taxes or franchise taxes imposed on such Indemnified Party by
the jurisdiction under the laws of which such Indemnified Party is organized or
any political subdivision thereof or (d) if the Insurer is the Indemnified
Party, Indemnified Amounts to the extent resulting, directly or indirectly, from
an Insurer Default. Without limiting or being limited by the foregoing, and
subject to the exclusions set forth in the preceding sentence, the Seller shall
pay on demand to each Indemnified Party any and all amounts necessary to
indemnify such Indemnified Party from and against any and all Indemnified
Amounts relating to or resulting from any of the following:
(i) the failure of any Receivable included in the calculation
of the Net Receivables Pool Balance as an Eligible Receivable to be an
Eligible Receivable, the failure of any information contained in a
Servicer Report or a Portfolio Certificate to be true and correct, or
the failure of any other information provided to any Purchaser, any
Purchaser Agent, the Insurer or the Agent with respect to Receivables
or this Agreement to be true and correct;
(ii) the failure of any representation or warranty or statement
made or deemed made by the Seller (or any of its officers) under or in
connection with this Agreement to have been true and correct in all
respects when made;
(iii) the failure by the Seller to comply with any applicable law,
rule or regulation with respect to any Pool Receivable or the related
Contract; or the failure of any Pool Receivable or the related Contract
to conform to any such applicable law, rule or regulation;
(iv) the failure (A) to vest in the Agent (for the benefit of
the Secured Parties) a valid and enforceable perfected undivided
percentage ownership interest, to the extent of the Aggregate
Participation, in the Receivables in, or purporting to be in, the
Receivables Pool and the Related Security and Collections with respect
thereto and (B) the failure to vest in the Agent (for the benefit of
the Secured Parties) a first priority perfected security
19
interest in the items described in SECTION 1.2(d), in each case, free
and clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or other applicable laws with respect to
any Receivables in, or purporting to be in, the Receivables Pool and
the Related Security and Collections in respect thereof, whether at the
time of any purchase or reinvestment or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool (including,
without limitation, a defense based on such Receivable or the related
Contract not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any
other claim resulting from or relating to the transaction giving rise
to such Receivable or relating to collection activities with respect to
such Receivable (if such collection activities were performed by the
Seller or any of its Affiliates acting as Servicer or by any agent or
independent contractor retained by the Seller or any of its
Affiliates);
(vii) any failure of the Seller to perform its duties or
obligations in accordance with the provisions hereof or to perform its
duties or obligations under the Contracts;
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with goods,
insurance or services that are the subject of or secure any Contract;
(ix) the commingling of Collections of Pool Receivables at any
time with other funds;
(x) any investigation, litigation or proceeding related to this
Agreement or the use of proceeds of purchases or reinvestments or the
ownership of any Participation or in respect of any Receivable, Related
Security or Contract;
(xi) any reduction in Investment as a result of the distribution
of Collections pursuant to SECTION 1.4(d), in the event that all or a
portion of such distributions shall thereafter be rescinded or
otherwise must be returned for any reason;
(xii) any tax or governmental fee or charge (other than any tax
upon or measured by net income or gross receipts), all interest and
penalties thereon or with respect thereto, and all reasonable
out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the purchase or ownership of any Participation, or other
interests in the Receivables Pool or in any Related Security or
Contract;
20
(xiii) the failure by the Seller or the Servicer to pay when due
any taxes payable by it, including without limitation, the franchise
taxes and sales, excise or personal property taxes payable in
connection with the Receivables;
(xiv) the failure by the Seller or the Servicer to be duly
qualified to do business, to be in good standing or to have filed
appropriate fictitious or assumed name registration documents in any
jurisdiction; or
(xv) the failure of any Deposit Account Bank to remit any amounts
held in its Deposit Account pursuant to the instructions of the
Servicer whether by reason of the exercise of setoff rights or
otherwise.
If for any reason the indemnification provided above in this SECTION
3.1 is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless, then the Seller shall contribute to such Indemnified
Party the amount otherwise payable by such Indemnified Party as a result of such
loss, claim, damage or liability to the maximum extent permitted under
applicable law.
The obligations of the Seller under this SECTION 3.1 are limited
recourse obligations payable solely from the Collections, the Receivables and
Related Security in accordance with the priority of payments set forth in
SECTION 1.4.
Section 3.2. INDEMNITIES BY AFC. Without limiting any other rights
that the Insurer, the Agent, any Purchaser or Purchaser Agent or any other
Indemnified Party may have hereunder under applicable law, AFC hereby agrees to
indemnify each Indemnified Party, forthwith on demand, from and against any and
all Indemnified Amounts, regardless of whether any such Indemnified Amounts
result from an Indemnified Party's negligence or strict liability or other acts
or omissions of an Indemnified Party, awarded against or incurred by any of them
arising out of or relating to:
(i) the failure of any Receivable included in the calculation of
the Net Receivables Pool Balance as an Eligible Receivable to be an
Eligible Receivable, the failure of any information contained in a
Servicer Report or a Portfolio Certificate to be true and correct, or
the failure of any other information provided (directly or indirectly)
by AFC or the Seller to the Purchasers, the Insurer, the Agent, or any
Purchaser Agent with respect to Receivables or this Agreement to be
true and correct;
(ii) any representation or warranty made by AFC under or in
connection with any Transaction Document in its capacity as Servicer or
any information or report delivered by or on behalf of AFC in its
capacity as Servicer pursuant hereto, which shall have been false,
incorrect or misleading in any material respect when made or deemed
made;
21
(iii) the failure by AFC, in its capacity as Servicer, to comply
with any applicable law, rule or regulation (including truth in
lending, fair credit billing, usury, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) with
respect to any Pool Receivable or other related contract;
(iv) any failure of AFC to perform its duties, covenants and
obligations in accordance with the applicable provisions of this
Agreement;
(v) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool resulting
from or relating to collection activities with respect to such
Receivable (if such collection activities were performed by the Seller
or any of its Affiliates acting as Servicer or by any agent or
independent contractor retained by the Seller or any of its
Affiliates);
(vi) the commingling of Collections of Pool Receivables at any
time with other funds; or
(vii) any investigation, litigation or proceeding related to AFC's
activities as Servicer under this Agreement.
If for any reason the indemnification provided above in this SECTION
3.2 is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless, then AFC shall contribute to such Indemnified Party
the amount otherwise payable by such Indemnified Party as a result of such loss,
claim, damage or liability to the maximum extent permitted under applicable law.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section IV.1. APPOINTMENT OF SERVICER. (a) The servicing, administering
and collection of the Pool Receivables shall be conducted by the Person so
designated from time to time as Servicer in accordance with this SECTION 4.1.
Until the Control Party gives notice to the Seller, the Insurer and the Servicer
(in accordance with this SECTION 4.1) of the designation of a new Servicer, AFC
is hereby designated as, and hereby agrees to perform the duties and obligations
of, the Servicer pursuant to the terms hereof. Upon the occurrence of a
Termination Event, the Control Party may designate as Servicer any Person
(including the Agent) to succeed the Servicer or any successor Servicer, on the
condition in each case that any such Person so designated shall agree to perform
the duties and obligations of the Servicer pursuant to the terms hereof.
22
(b) Upon the designation of a successor Servicer as set forth in
SECTION 4.1(a) hereof, the Servicer agrees that it will terminate its activities
as Servicer hereunder in a manner which the Control Party determines will
facilitate the transition of the performance of such activities to the new
Servicer, and the Servicer shall cooperate with and assist such new Servicer.
Such cooperation shall include (without limitation) access to and transfer of
records and use by the new Servicer of all licenses, hardware or software
necessary or desirable to collect the Pool Receivables and the Related Security.
(c) The Servicer acknowledges that, in making its decision to execute
and deliver this Agreement, the Purchaser Agents, the Agent, the Insurer and the
Purchasers have relied on the Servicer's agreement to act as Servicer hereunder.
Accordingly, the Servicer agrees that it will not voluntarily resign as
Servicer.
(d) The Servicer may delegate its duties and obligations hereunder to
any subservicer (each, a "SUB-SERVICER"); provided that, in each such
delegation, (i) such Sub-Servicer shall agree in writing to perform the duties
and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer
shall remain primarily liable to the Purchasers, the Insurer, the Agent and the
Purchaser Agents for the performance of the duties and obligations so delegated,
(iii) the Seller, the Purchaser Agents, the Agent, the Insurer and the
Purchasers shall have the right to look solely to the Servicer for such
performance and (iv) the terms of any agreement with any Sub-Servicer shall
provide that the Control Party may terminate such agreement upon the termination
of the Servicer hereunder in accordance with SECTION 4.1(a) above by giving
notice of its desire to terminate such agreement to the Servicer (and the
Servicer shall provide appropriate notice to such Sub-Servicer); provided
further, no such delegation shall be effective without the prior written consent
of the Control Party.
Section 4.2. DUTIES OF SERVICER. (a) The Servicer shall take or cause
to be taken all such action as may be necessary or advisable to collect each
Pool Receivable from time to time, all in accordance with this Agreement,
accepted industry standards and all applicable laws, rules and regulations, with
reasonable care and diligence, and in accordance with the Credit and Collection
Policy. The Servicer shall set aside for the accounts of the Seller, the Insurer
and the Purchasers the amount of the Collections to which each is entitled in
accordance with SECTION 1.4. The Seller shall deliver to the Servicer and the
Servicer shall hold for the benefit of the Seller, the Insurer and (for the
benefit of the Purchasers and individually) the Agent and the Purchaser Agents
in accordance with their respective interests, all records and documents
(including without limitation computer tapes or disks) with respect to each Pool
Receivable. Notwithstanding anything to the contrary contained herein, the
Control Party may direct the Servicer to commence or settle any legal action to
enforce collection of any Pool Receivable or to foreclose upon or repossess any
Related Security; PROVIDED, HOWEVER, that no such direction may be given unless
a Termination Event has occurred.
(b) The Servicer's obligations hereunder shall terminate on the Final
Payout Date.
23
After such termination, the Servicer shall promptly deliver to the
Seller all books, records and related materials that the Seller previously
provided to the Servicer in connection with this Agreement.
Section 4.3. DEPOSIT ACCOUNTS; ESTABLISHMENT AND USE OF CERTAIN
ACCOUNTS.
(a) DEPOSIT ACCOUNTS. On or prior to the date hereof, the Servicer
agrees to transfer ownership and control of each Deposit Account to the Seller.
Seller has granted a valid security interest in each Deposit Account to the
Agent (for the benefit of the Secured Parties) pursuant to SECTION 1.2(d) and
shall take all actions reasonably requested by the Agent and the Insurer to
cause the security interest to be perfected under the applicable UCC.
(b) CASH RESERVE ACCOUNT. The Agent agrees to establish the Cash
Reserve Account on or before May 31, 2002. The Cash Reserve Account shall be
used to hold the Cash Reserve and for such other purposes described in the
Transaction Documents.
(c) LIQUIDATION ACCOUNT. The Agent agrees to establish the Liquidation
Account on or before May 31, 2002. The Liquidation Account shall be used to
receive Collections from the Deposit Accounts pursuant to SECTION 1.4(b) and to
hold amounts set aside for the Purchasers, the Insurer and (if the Servicer is
not AFC or an Affiliate of AFC) the Servicer out of the Collections of Pool
Receivables prior to the applicable Settlement Dates and for such other purposes
described in the Transaction Documents. No funds other than those transferred in
accordance with SECTION 1.4 shall be intentionally transferred into the
Liquidation Account.
(d) PERMITTED INVESTMENTS. Any amounts in the Liquidation Account or
the Cash Reserve Account, as the case may be, may be invested by the Liquidation
Account Bank or the Cash Reserve Account Bank, respectively, at the Agent's
direction, in Permitted Investments, so long as the Agent's interest (for the
benefit of the Secured Parties) in such Permitted Investments is perfected in a
manner satisfactory to the Agent and the Insurer and such Permitted Investments
are subject to no Adverse Claims other than those of the Agent provided
hereunder.
(e) CONTROL OF ACCOUNTS. The Agent may (with notice to the Control
Party) and shall (at the direction of the Control Party) following any
Termination Event (or an Unmatured Termination Event of the type described in
PARAGRAPH (g) of EXHIBIT V) at any time give notice to any Deposit Account Bank
that the Agent is exercising its rights under the applicable Deposit Account
Agreement to do any or all of the following: (i) to have the exclusive ownership
and control of such Deposit Account transferred to the Agent and to exercise
exclusive dominion and control over the funds deposited therein and (ii) to take
any or all other actions permitted under the applicable Deposit Account
Agreement. The Seller hereby agrees that if the Agent at any time takes any
action set forth in the preceding sentence, the Agent shall have exclusive
control of the proceeds (including Collections) of all Pool Receivables and the
Seller hereby further agrees to take any other action that the Agent may
reasonably request to transfer such control. Any proceeds of Pool Receivables
received by the Seller, the Servicer or AFC (as Servicer or
24
CONFIDENTIAL TREATMENT
otherwise), thereafter shall be sent immediately to an account designated by the
Agent and approved by the Control Party and held by the Agent for the benefit of
the Secured Parties.
(f) LOCATION OF LIQUIDATION ACCOUNT AND CASH RESERVE ACCOUNT. [ * ],
the Agent shall promptly establish a new Liquidation Account and a new Cash
Reserve Account at a financial institution which is rated at least A-1+ by S&P
[ * ].
Section 4.4. ENFORCEMENT RIGHTS. (a) At any time following the
occurrence of a Termination Event:
(i) the Control Party may (and if the Control Party is the
Majority Purchasers, with the consent of the Agent) direct the Obligors
that payment of all amounts payable under any Pool Receivable be made
directly to the Agent or its designee (for the benefit of the Secured
Parties);
(ii) the Control Party may (and if the Control Party is the
Majority Purchasers, with the consent of the Agent) instruct the Seller
or the Servicer to give notice of the Agent's interest (for the benefit
of the Secured Parties) in Pool Receivables to each Obligor, which
notice shall direct that payments be made directly to the Agent or its
designee (for the benefit of the Secured Parties), and upon such
instruction from the Control Party, the Seller or the Servicer, as
applicable, shall give such notice at the expense of the Seller;
PROVIDED, that if the Seller or the Servicer fails to so notify each
Obligor, the Control Party or the Agent may so notify the Obligors; and
(iii) the Control Party may (and if the Control Party is the
Majority Purchasers, with the consent of the Agent) request the Seller
or the Servicer to, and upon such request the Seller or the Servicer,
as applicable, shall, (A) assemble all of the records necessary or
desirable to collect the Pool Receivables and the Related Security, and
transfer or license to any new Servicer the use of all software
necessary or desirable to collect the Pool Receivables and the Related
Security, and make the same available to the Agent or its designee at a
place selected by the Control Party (or if the Control Party is the
Majority Purchasers, the Agent) and (B) segregate all cash, checks and
other instruments received by it from time to time constituting
Collections with respect to the Pool Receivables in a manner acceptable
to the Control Party (or if the Control Party is the Majority
Purchasers, the Agent) and, promptly upon receipt, remit all such cash,
checks and instruments, duly endorsed or with duly executed instruments
of transfer, to the Agent or its designee (for the benefit of the
Secured Parties).
25
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(b) The Seller hereby authorizes the Control Party (or if the Control
Party is the Majority Purchasers, the Agent) (for the benefit of the Secured
Parties), and irrevocably appoints the Control Party (or if the Control Party is
the Majority Purchasers, the Agent) (acting on behalf of the Secured Parties) as
its attorney-in-fact with full power of substitution and with full authority in
the place and stead of the Seller, which appointment is coupled with an
interest, to take any and all steps in the name of the Seller and on behalf of
the Seller necessary or desirable, in the determination of the Control Party (or
if the Control Party is the Majority Purchasers, the Agent), to collect any and
all amounts or portions thereof due under any and all Pool Receivables or
Related Security, including, without limitation, endorsing the name of the
Seller on checks and other instruments representing Collections and enforcing
such Pool Receivables, Related Security and the related Contracts. The Control
Party (or if the Control Party is the Majority Purchasers, the Agent) shall only
exercise the powers conferred by this SUBSECTION (b) after the occurrence of a
Termination Event. Notwithstanding anything to the contrary contained in this
SUBSECTION (b), none of the powers conferred upon such attorney-in-fact pursuant
to the immediately preceding sentence shall subject such attorney-in-fact to any
liability if any action taken by it shall prove to be inadequate or invalid, nor
shall they confer any obligations upon such attorney-in-fact in any manner
whatsoever.
Section 4.5. RESPONSIBILITIES OF THE SELLER. Anything herein to the
contrary notwithstanding, the Seller shall (i) perform all of its obligations,
if any, under the Contracts related to the Pool Receivables to the same extent
as if interests in such Pool Receivables had not been transferred hereunder, and
the exercise by the Agent, the Insurer, any Purchaser or any Purchaser Agent of
its rights hereunder shall not relieve the Seller from such obligations and (ii)
pay when due any taxes, including, without limitation, any sales taxes payable
in connection with the Pool Receivables and their creation and satisfaction. The
Agent, the Insurer, the Purchaser Agents and the Purchasers shall not have any
obligation or liability with respect to any Pool Receivable, any Related
Security or any related Contract, nor shall any of them be obligated to perform
any of the obligations of the Seller or AFC under any of the foregoing.
Section 4.6. SERVICING FEE. The Servicer shall be paid a fee, through
distributions contemplated by SECTION 1.4, equal to (a) at any time AFC or an
Affiliate of AFC is the Servicer, [ * ] and (b) at any time a Person other
than AFC or an Affiliate of AFC is the Servicer, the amount set forth in clause
(a) above or such other amount as the Control Party and such Servicer shall
agree. The Servicing Fee shall not be payable to the extent funds are not
available to pay the Servicing Fee pursuant to SECTION 1.4.
ARTICLE V.
THE AGENTS
26
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Section V.1. APPOINTMENT AND AUTHORIZATION. The Insurer and each
Purchaser and Purchaser Agent (including each Purchaser and Purchaser Agent that
may from time to time become a party hereto) hereby irrevocably designates and
appoints BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp. the "Agent" hereunder and authorizes the Agent
to take such actions and to exercise such powers as are delegated to the Agent
hereby and to exercise such other powers as are reasonably incidental thereto.
The Agent shall hold, in its name, for the benefit of the Secured Parties,
amounts on deposit in the Liquidation Account and Cash Reserve Account. The
Agent shall not have any duties other than those expressly set forth herein or
any fiduciary relationship with any Indemnified Party, and no implied
obligations or liabilities shall be read into this Agreement or any other
Transaction Document or otherwise exist, against the Agent. The Agent does not
assume, nor shall it be deemed to have assumed, any obligation to, or
relationship of trust or agency with, the Seller or Servicer. Notwithstanding
any provision of this Agreement or any other Transaction Document to the
contrary, in no event shall the Agent ever be required to take any action which
exposes the Agent to personal liability or which is contrary to the provision of
any Transaction Document or applicable law.
(a) Each Purchaser hereby irrevocably designates and appoints the
respective institution identified as the Purchaser Agent for such Purchaser on
the signature pages hereto or in any agreement pursuant to which such Purchaser
becomes a party hereto, and each authorizes such Purchaser Agent to take such
action on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to such Purchaser
Agent by the terms of this Agreement, if any, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Purchaser Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with the Insurer, any Purchaser or other Purchaser Agent or the
Agent, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of such Purchaser Agent shall be read
into this Agreement or otherwise exist against such Purchaser Agent.
(b) Except as otherwise specifically provided in this Agreement, the
provisions of this ARTICLE V are solely for the benefit of the Purchaser Agents,
the Insurer, the Agent and the Purchasers, and none of the Seller or Servicer
shall have any rights as a third-party beneficiary or otherwise under any of the
provisions of this ARTICLE V, except that this ARTICLE V shall not affect any
obligations which any Purchaser Agent, the Insurer, the Agent or any Purchaser
may have to the Seller or the Servicer under the other provisions of this
Agreement. Furthermore, no Purchaser shall have any rights as a third-party
beneficiary or otherwise under any of the provisions hereof in respect of a
Purchaser Agent which is not the Purchaser Agent for such Purchaser.
(c) In performing its functions and duties hereunder, the Agent shall
act solely as the agent of the Secured Parties, and the Agent does not assume
nor shall be deemed to have assumed any obligation or relationship of trust or
agency with or for the Seller or Servicer or any of their successors and
assigns. In performing its functions and duties hereunder, each Purchaser
27
Agent shall act solely as the agent of its respective Purchasers and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Seller, the Servicer, the Insurer, any other
Purchaser, any other Purchaser Agent or the Agent, or any of their respective
successors and assigns.
Section 5.2. DELEGATION OF DUTIES. The Agent may, with the prior
written consent of the Control Party, execute any of its duties through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible to the
Purchaser Agents, the Insurer or any Purchaser for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
Section 5.3. EXCULPATORY PROVISIONS. None of the Purchaser Agents, the
Agent or any of their directors, officers, agents or employees shall be liable
for any action taken or omitted (i) with the consent or at the direction of the
Control Party (or in the case of any Purchaser Agent, the Purchaser relating to
such Purchaser Agent) or (ii) in the absence of such Person's gross negligence
or willful misconduct. The Agent shall not be responsible to any Purchaser, the
Insurer or Purchaser Agent for (i) any recitals, representations, warranties or
other statements made by the Seller, Servicer, the Originator or any of their
Affiliates, (ii) the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any Transaction Document, (iii) any failure of the Seller, the
Servicer, the Originator or any of their Affiliates to perform any obligation it
may have under any Transaction Document to which it is a party or (iv) the
satisfaction of any condition specified in EXHIBIT II. The Agent shall not have
any obligation to the Insurer, any Purchaser or any Purchaser Agent to ascertain
or inquire about the observance or performance of any agreement contained in any
Transaction Document or to inspect the properties, books or records of the
Seller, Servicer, the Originator or any of their Affiliates.
Section 5.4. RELIANCE BY AGENTS. Each Purchaser Agent and the Agent
shall in all cases be entitled to rely, and shall be fully protected in relying,
upon any document or other writing or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person and upon
advice and statements of legal counsel (including counsel to the Seller, Insurer
or Servicer), independent accountants and other experts selected by the Agent or
any such Purchaser Agent. Each Purchaser Agent and the Agent shall in all cases
be fully justified in failing or refusing to take any action under any
Transaction Document unless it shall first receive such advice or concurrence of
the Control Party (or in the case of any Purchaser Agent, the Purchaser relating
to such Purchaser Agent) and it shall first be indemnified to its satisfaction
by the Control Party against any and all liability and expense which may be
incurred by reason of taking or continuing to take any such action.
(a) With regard to the Purchasers and the Purchaser Agents, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Control Party, the
Insurer, the Purchasers and the Purchaser Agents, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all
Purchasers, the Insurer, the Agent and Purchaser Agents.
28
(b) Purchasers that have a common Purchaser Agent and that have a
majority of the Investment of all such related Purchasers shall be entitled to
request or direct the related Purchaser Agent to take action, or refrain from
taking action, under this Agreement on behalf of such Purchasers. With regard to
the Purchasers and the Purchaser Agents, such Purchaser Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of such Majority Purchasers, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all of
such Purchaser Agent's related Purchasers.
(c) Unless otherwise advised in writing by a Purchaser Agent or by any
Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party
to this Agreement may assume that (i) such Purchaser Agent is acting for the
benefit of each of the Purchasers for which such Purchaser Agent is identified
herein (or in any Joinder Agreement or assignment agreement) as being the
Purchaser Agent, as well as for the benefit of each assignee or other transferee
from any such Person, and (ii) each action taken by such Purchaser Agent has
been duly authorized and approved by all necessary action on the part of the
Purchasers on whose behalf it is purportedly acting. Each Purchaser Agent and
its Purchaser(s) shall agree amongst themselves as to the circumstances and
procedures for removal, resignation and replacement of such Purchaser Agent.
Section 5.5. NOTICE OF TERMINATION DATE. Neither any Purchaser Agent
nor the Agent shall be deemed to have knowledge or notice of the occurrence of
any Termination Event or Unmatured Termination Event unless such Person has
received notice from any Purchaser, Purchaser Agent, the Insurer, the Servicer
or the Seller stating that a Termination Event or Unmatured Termination Event
has occurred hereunder and describing such Termination Event or Unmatured
Termination Event. If the Agent receives such a notice, it shall promptly give
notice thereof to the Insurer and each Purchaser Agent whereupon each such
Purchaser Agent shall promptly give notice thereof to its Purchasers. If a
Purchaser Agent receives such a notice (other than from the Agent), it shall
promptly give notice thereof to the Agent. The Agent may take such action
concerning a Termination Event or Unmatured Termination Event as may be directed
by the Control Party (unless the Control Party is the Majority Purchasers and
such action otherwise requires the consent of all Purchasers), but until the
Agent receives such directions (if the Control Party is the Majority
Purchasers), the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, as the Agent deems advisable and in the best
interests of the Secured Parties.
Section 5.6. NON-RELIANCE ON AGENT, PURCHASER AGENTS AND OTHER
PURCHASERS. Each Purchaser and the Insurer expressly acknowledges that none of
the Agent, the Purchaser Agents nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent, or any Purchaser Agent
hereafter taken, including any review of the affairs of the Seller, Servicer or
the Originator, shall be deemed to constitute any representation or warranty by
the Agent or such Purchaser Agent, as applicable. Each Purchaser and the Insurer
represents and warrants to the Agent and
29
the Purchaser Agents that, independently and without reliance upon the Agent,
Purchaser Agents or any other Purchaser and based on such documents and
information as it has deemed appropriate, it has made and will continue to make
its own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Seller,
Servicer or the Originator, and the Receivables and its own decision to enter
into this Agreement and to take, or omit, action under any Transaction Document.
Except for items specifically required to be delivered hereunder, the Agent
shall not have any duty or responsibility to provide any Purchaser Agent with
any information concerning the Seller, Servicer or the Originator or any of
their Affiliates or the Receivables that comes into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
Section 5.7. AGENT, PURCHASER AGENTS AND PURCHASERS. Each of the
Purchasers, the Agent, the Purchaser Agents and their Affiliates may extend
credit to, accept deposits from and generally engage in any kind of banking,
trust, debt or other business with the Seller, ADESA, ALLETE, Servicer or the
Originator or any of their Affiliates. With respect to the acquisition of the
Eligible Receivables pursuant to this Agreement, any of the Purchaser Agents and
the Agent shall, to the extent they become Purchasers hereunder, have the same
rights and powers under this Agreement as any Purchaser and may exercise the
same as though it were not such an agent, and the terms "Purchaser" and
"Purchasers" shall, in such case, include such Purchaser Agent or the Agent in
their individual capacities.
Section 5.8. INDEMNIFICATION. Each Purchaser shall indemnify and hold
harmless the Agent (but solely in its capacity as Agent) and its officers,
directors, employees, representatives and agents (to the extent not reimbursed
by the Seller or Servicer and without limiting the obligation of the Seller or
Servicer to do so), ratably in accordance with their respective Investment from
and against any and all liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses and disbursements of any kind whatsoever
(including in connection with any investigative or threatened proceeding,
whether or not the Agent or such Person shall be designated a party thereto)
that may at any time be imposed on, incurred by or asserted against the Agent or
such Person as a result of, or related to, any of the transactions contemplated
by the Transaction Documents or the execution, delivery or performance of the
Transaction Documents or any other document furnished in connection therewith
(but excluding any such liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses or disbursements resulting solely from
the gross negligence or willful misconduct of the Agent or such Person as
finally determined by a court of competent jurisdiction); PROVIDED, that in the
case of each Purchaser that is a commercial paper conduit, such indemnity shall
be provided solely to the extent of amounts received by such Purchaser under
this Agreement which exceed the amounts required to repay such Purchaser's
outstanding commercial paper. The obligations of any Note Issuer under this
SECTION 5.8 shall be subject to the restrictions of SECTION 6.5.
30
Section 5.9. SUCCESSOR AGENT. The Agent may, upon at least thirty (30)
days notice to the Seller, the Insurer and each Purchaser and Purchaser Agent,
resign as Agent. Such resignation shall not become effective until a successor
Agent is appointed by the Control Party and has accepted such appointment. Upon
such acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall succeed to and become vested with all the rights and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Transaction Documents. After any retiring
Agent's resignation hereunder, the provisions of SECTIONS 3.1 and 3.2 and this
ARTICLE V shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Agent.
ARTICLE VI.
MISCELLANEOUS
Section 6.1. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or consent to any departure by the Seller or Servicer
therefrom shall be effective unless in a writing signed by the Agent, the
Control Party, the Majority Purchasers, and, in the case of any amendment, by
the Seller and the Servicer and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED, HOWEVER, that no such amendment or waiver shall materially
adversely affect the Insurer without the prior written consent of the Insurer;
PROVIDED, FURTHER, that (i) other than an amendment to extend the scheduled
Termination Date and/or the applicable scheduled Purchaser Termination Date, no
amendment shall be effective unless each Note Issuer that is a Purchaser (or the
Agent or applicable Purchaser Agent on its behalf) shall have received written
confirmation by the Rating Agencies that such amendment shall not cause the
rating on the then outstanding Notes of such Note Issuer to be downgraded or
withdrawn; (ii) no amendment shall be effective which would reduce the amount of
Investment or Discount, or fees payable to any Purchaser or amounts payable to
the Insurer hereunder, or delay any scheduled date for payment thereof
(including any scheduled occurrence of the Termination Date) absent the prior
written consent of the Insurer or such Purchaser (as applicable); (iii) no
increase in a Revolving Purchaser's Maximum Purchase Amount shall be effective
without the prior written consent of such Revolving Purchaser, and no increase
in the sum of the aggregate of the Investment of all Term Purchasers and the
Revolving Purchase Limit above the Maximum Insured Amount shall be effective
without the prior written consent of the Insurer; (iv) no amendment or waiver
which would release the Insurer from any of its obligations under the Policy, or
delay any scheduled payment date for payment thereunder, shall be effective
without prior written consent of each Purchaser; (v) no amendments or
modifications to any required recourse or reserves hereunder for uncollectible
Receivables may be modified without the prior written consent of the Insurer;
and (vi) no amendments to this Section 6.1 or to the definitions of Majority
Purchasers or Control Party shall be effective without the prior written consent
of all Purchasers and the Insurer. No failure on the part of the Insurer, the
Agent, any Purchaser, or any Purchaser Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor
31
CONFIDENTIAL TREATMENT
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right.
Section 6.2. NOTICES, ETC. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile and electronic mail communication) and sent or delivered, to
each party hereto, at its address set forth under its name on the signature
pages hereof or at such other address as shall be designated by such party in a
written notice to the other parties hereto. Notices and communications by
facsimile or electronic mail shall be effective when sent (and shall, unless
such delivery is waived by the recipient by electronic mail or other means, be
followed by hard copy sent by first class mail), and notices and communications
sent by other means shall be effective when received.
Section 6.3. ASSIGNABILITY. (a) This Agreement and any Purchaser's
rights and obligations herein (including ownership of its Participation) shall
be assignable, in whole or in part, by such Purchaser and its successors and
assigns with the prior written consent of the Seller, the Agent [ * ] ;
PROVIDED, HOWEVER, that such consent shall not be unreasonably withheld; and
PROVIDED, FURTHER, that no such consent shall be required if the assignment is
made to (i) any Affiliate of such Purchaser, (ii) any Liquidity Bank (or any
Person who upon such assignment would be a Liquidity Bank) of such Purchaser or
(iii) other Program Support Provider (or any Person who upon such assignment
would be a Program Support Provider) of such Purchaser. Each assignor may, in
connection with the assignment, disclose to the applicable assignee any
information relating to the Seller or the Pool Receivables furnished to such
assignor by or on behalf of the Seller, [ * ], the Agent, the Purchasers or the
Purchaser Agents.
Upon the assignment by a Purchaser in accordance with this SECTION 6.3,
the assignee receiving such assignment shall have all of the rights of such
Purchaser with respect to the Transaction Documents and the Investment (or such
portion thereof as has been assigned).
(b) Each Purchaser may at any time grant to one or more banks or other
institutions (each a "LIQUIDITY BANK") party to a Liquidity Agreement or to any
other Program Support Provider participating interests or security interests in
its Participation. In the event of any such grant by a Purchaser of a
participating interest to a Liquidity Bank or other Program Support Provider,
the Purchaser shall remain responsible for the performance of its obligations
hereunder. The Seller agrees that each Liquidity Bank or other Program Support
Provider shall be entitled to the benefits of SECTIONS 1.8, 1.9 and 1.10.
(c) This Agreement and the rights and obligations of any Purchaser
Agent hereunder shall be assignable, in whole or in part, by such Purchaser
Agent and its successors and assigns; PROVIDED, HOWEVER, that if such assignment
is to any Person that is not an Affiliate of the assigning Purchaser Agent, such
Purchaser Agent must receive the prior written consent of the Agent, [ * ] and
the Seller (which consent shall not be unreasonably withheld).
32
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(d) Except as provided in SECTION 4.1(d), neither the Seller nor the
Servicer may assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of [ * ], the Agent and
the Majority Purchasers.
(e) Without limiting any other rights that may be available under
applicable law, the rights of any Purchaser may be enforced through it or by its
Purchaser Agent or its other agents.
(f) [ * ].
Section 6.4. COSTS, EXPENSES AND TAXES. (a) In addition to the rights
of indemnification granted under SECTION 3.1 hereof, the Seller agrees to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic auditing of Pool
Receivables) of this Agreement, the Liquidity Agreement, the Insurance
Agreement, the Purchase and Sale Agreement and the other documents and
agreements to be delivered hereunder or in connection herewith, including all
reasonable costs and expenses relating to the amending, amending and restating,
modifying or supplementing of this Agreement, the Liquidity Agreement, the
Insurance Agreement, the Purchase and Sale Agreement and the other documents and
agreements to be delivered hereunder or in connection herewith and the waiving
of any provisions thereof, and including in all cases, without limitation,
Attorney Costs for the Agent, each Purchaser, each Program Support Provider,
each Purchaser Agent, the Insurer and their respective Affiliates and agents
with respect thereto and with respect to advising the Agent, the Purchaser, each
Program Support Provider, the Insurer and their respective Affiliates and agents
as to their rights and remedies under this Agreement and the other Transaction
Documents (PROVIDED that unless a Termination Event or Unmatured Termination
Event shall have occurred, the costs and expenses payable in connection with the
administration of the Transaction Documents (excluding any costs and expenses in
connection with any amendment, amendment and restatement, modification,
supplement or waiver and any costs and expenses in connection with enforcement)
in any year shall not exceed $25,000), and all reasonable costs and expenses, if
any (including Attorney Costs), of each Purchaser Agent, each Purchaser, each
Program Support Provider, the Insurer, the Agent and their respective Affiliates
and agents, in connection with the enforcement of this Agreement and the other
Transaction Documents.
(b) In addition, the Seller shall pay on demand any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and agrees to save each Indemnified Party harmless from and
against any liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
33
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Section 6.5. NO PROCEEDINGS; LIMITATION ON PAYMENTS. (a) Each of the
Seller, the Servicer, the Agent, the Insurer, the Purchaser Agents, the
Purchasers, each assignee of a Participation or any interest therein, and each
Person which enters into a commitment to purchase or does purchase a
Participation or interests therein, hereby covenants and agrees that it will not
institute against, or join any other Person in instituting against, any Note
Issuer, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, for one year and one day after the latest maturing Note issued by any such
Note Issuer is paid in full.
(b) Notwithstanding any provisions contained in this Agreement to the
contrary, no Note Issuer shall, nor shall be obligated to, pay any amount
pursuant to this Agreement unless (i) such Note Issuer has excess cash flow from
operations or has received funds with respect to such obligation which may be
used to make such payment and which funds or excess cash flow are not required
to repay the Notes when due and (ii) each "Participation" owned by such Note
Issuer pursuant to any receivables purchase agreement (including this Agreement)
is less than or equal to 100%. Any amounts which a Note Issuer does not pay
pursuant to the operation of the preceding sentence shall not constitute a claim
against such Note Issuer for any such insufficiency unless and until the
conditions described in clauses (i) and (ii) of the preceding sentence are
satisfied. Nothing in this subsection (b) shall be construed to forgive or
cancel any obligations of such Note Issuer hereunder.
Section 6.6. CONFIDENTIALITY. Unless otherwise required by applicable
law or already known by the general public or the third party to which it is
disclosed, the Seller agrees to maintain the confidentiality of this Agreement
and the other Transaction Documents (and all drafts thereof) in communications
with third parties and otherwise; PROVIDED that this Agreement may be disclosed
to (a) third parties to the extent such disclosure is made pursuant to a written
agreement of confidentiality in form and substance reasonably satisfactory to
the Agent, and (b) the Seller's legal counsel and auditors if they agree to hold
it confidential.
Section 6.7. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
INDIANA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF),
EXCEPT TO THE EXTENT THAT THE PERFECTION (OR THE EFFECT OF PERFECTION OR
NON-PERFECTION) OF THE INTERESTS OF THE PURCHASERS AND/OR THE INSURER IN THE
POOL RECEIVABLES AND THE OTHER ITEMS DESCRIBED IN SECTION 1.2(d) IS GOVERNED BY
THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF INDIANA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS ▇▇▇▇ COUNTY AND CHICAGO OR NEW
YORK NEW YORK COUNTY, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE NORTHERN
DISTRICT OF ILLINOIS OR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF
34
THIS AGREEMENT, EACH OF THE PURCHASERS, THE INSURER, THE SELLER, THE SERVICER,
THE PURCHASER AGENTS AND THE AGENT CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
PURCHASERS, THE INSURER, THE SELLER, THE SERVICER, THE PURCHASER AGENTS AND THE
AGENT IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO.
Section 6.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
Section 6.9. SURVIVAL OF TERMINATION. The provisions of SECTIONS 1.8,
1.9, 1.10, 3.1, 3.2, 6.4, 6.5, 6.6, 6.7, 6.10 and 6.13 shall survive any
termination of this Agreement.
Section 6.10. WAIVER OF JURY TRIAL. THE PURCHASERS, THE SELLER, THE
SERVICER, THE PURCHASER AGENTS, THE INSURER AND THE AGENT EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PURCHASERS, THE SELLER, THE
SERVICER, THE PURCHASER AGENTS, THE INSURER AND THE AGENT EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT
ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 6.11. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the Purchasers, the Seller, the Insurer, the
Servicer, the Purchaser Agents and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof, except for any prior
arrangements made with respect to the payment by any Purchaser of (or any
35
CONFIDENTIAL TREATMENT
indemnification for) any fees, costs or expenses payable to or incurred (or to
be incurred) by or on behalf of the Seller, the Servicer and the Agent.
Section 6.12. HEADINGS. The captions and headings of this Agreement
and in any Exhibit hereto are for convenience of reference only and shall not
affect the interpretation hereof or thereof.
Section 6.13. LIABILITIES OF THE PURCHASERS. The obligations of each
Purchaser under this Agreement are solely the corporate obligations of such
Purchaser. No recourse shall be had for any obligation or claim arising out of
or based upon this Agreement against any stockholder, employee, officer,
director or incorporator of any Purchaser; and PROVIDED, HOWEVER, that this
SECTION 6.13 shall not relieve any such Person of any liability it might
otherwise have for its own gross negligence or willful misconduct. The
agreements provided in this SECTION 6.13 shall survive termination of this
Agreement.
Section 6.14. POLICY TERMINATION DATE. [ * ].
Section 6.15. TAX TREATMENT. The Participations shall be treated and
reported as indebtedness of the Seller for all income and franchise tax
purposes. The Seller, the Servicer, the Agent, the Insurer, and Fairway and each
Purchaser, by its agreement to make a purchase (and to make reinvestments, if
applicable) with regard to its Participation, agrees, and shall cause its
assignees to agree, to treat and report the Participations as indebtedness of
the Seller for all income and franchise tax purposes.
36
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AFC FUNDING CORPORATION, as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO & Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: 317-815-9645 ext. 2185
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
[Notary]
AUTOMOTIVE FINANCE CORPORATION, as Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO & Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: 317-815-9645 ext. 2185
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
[Notary]
[Amended and Restated
S-1 Receivables Purchase Agreement]
CONFIDENTIAL TREATMENT
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP., as Agent and as
Purchaser Agent for Fairway
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Managing Director
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Conduit Administration
E-mail: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FAIRWAY FINANCE CORPORATION, as a Revolving
Purchaser
By: /s/▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
c/o Lord Securities Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Maximum Purchase Amount: [ * ]
[ * ]
[Amended and Restated
S-2 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
XL CAPITAL ASSURANCE INC., as Insurer
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Managing Director
XL Capital Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Reporting: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
[Amended and Restated
S-4 Receivables Purchase Agreement]
STATE OF INDIANA )
) SS
COUNTY OF ▇▇▇▇▇▇ )
Before me the undersigned, a Notary Public in and for the said County
and State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an officer of AFC Funding
Corporation, personally known to me who acknowledged the execution of the
foregoing this 31st day of May, 2002.
/s/▇▇▇▇▇▇▇▇▇ ▇. York My Commission Expires: 12/5/08
---------------------------- -----------------
Signature
▇▇▇▇▇▇▇▇▇ ▇. York My County of Residence: ▇▇▇▇▇▇▇▇
---------------------------- ----------------
Printed Name
▇▇▇▇▇▇▇▇▇ ▇. YORK
NOTARY PUBLIC STATE OF INDIANA
▇▇▇▇▇▇▇▇ COUNTY
MY COMMISSION EXP. DEC. 5, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) SS
COUNTY OF ▇▇▇▇▇▇ )
Before me the undersigned, a Notary Public in and for the said County
and State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an officer of Automotive
Finance Corporation, personally known to me who acknowledged the execution of
the foregoing this 31st day of May, 2002.
/s/▇▇▇▇▇▇▇▇▇ ▇. York My Commission Expires: 12/5/08
---------------------------- -----------------
Signature
▇▇▇▇▇▇▇▇▇ ▇. York My County of Residence: ▇▇▇▇▇▇▇▇
---------------------------- ----------------
Printed Name
▇▇▇▇▇▇▇▇▇ ▇. YORK
NOTARY PUBLIC STATE OF INDIANA
▇▇▇▇▇▇▇▇ COUNTY
MY COMMISSION EXP. DEC. 5, 2008
[Amended and Restated
S-4 Receivables Purchase Agreement]
CONFIDENTIAL TREATMENT
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits), the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined). Unless otherwise
indicated, all Section, Annex, Exhibit and Schedule references in this Exhibit
are to Sections of and Annexes, Exhibits and Schedules to the Agreement.
"ADESA" means ADESA Corporation, an Indiana corporation.
"ADVERSE CLAIM" means a lien, security interest or other
charge or encumbrance, or any other type of preferential arrangement, it being
understood that a lien, security interest or other charge or encumbrance, or any
other type of preferential arrangement, in favor of the Agent for the benefit of
the Secured Parties contemplated by the Agreement shall not constitute an
Adverse Claim.
"AFC" has the meaning set forth in the Preamble to this Agreement.
"AFFECTED PERSON" has the meaning set forth in SECTION 1.8.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or officer of such Person, except that
with respect to a Purchaser, Affiliate shall mean the holder(s) of its capital
stock.
"AGENT" has the meaning set forth in the preamble to the Agreement.
"AGGREGATE PARTICIPATION" means, at any time, the sum of the
Distribution Percentages of the Purchasers expressed as a percentage.
"AGREEMENT" shall have the meaning set forth in the preamble.
"ALLETE" means ALLETE, Inc., a Minnesota corporation.
"APPLICABLE MARGIN" means [ * ].
"ATTORNEY COSTS" means and includes all reasonable fees and
reasonable disbursements of any law firm or other external counsel, and all
reasonable disbursements of internal counsel.
[Amended and Restated
I-1 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
"BANK RATE" for any Purchaser for any Yield Period for any Portion
of Investment means an interest rate PER ANNUM equal to the Applicable Margin
above the Eurodollar Rate for such Purchaser for such Yield Period; provided,
further, that in the case of
(a) any Yield Period on or after the first day of which the
applicable Purchaser Agent shall have been notified by a Liquidity
Bank or the related Purchaser that the introduction of or any
change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other Governmental Authority
asserts that it is unlawful, for such Liquidity Bank or such
Purchaser to fund any Portion of Investment based on the Eurodollar
Rate set forth above (and such Liquidity Bank or such Purchaser, as
applicable, shall not have subsequently notified such Purchaser
Agent that such circumstances no longer exist),
(b) any Yield Period of one to (and including) 13 days, or
(c) any Yield Period as to which (i) the applicable Purchaser
Agent does not receive notice, by no later than 12:00 noon (Chicago
time) on (w) the second Business Day preceding the first day of
such Yield Period that the Seller desires that the related Portion
of Investment be funded at the CP Rate, or (x) the third Business
Day preceding the first day of such Yield Period that the Seller
desires that the related Portion of Investment be funded at the
Bank Rate, or (ii) the Seller has given the notice contemplated by
clause (w) of this CLAUSE (c) and the applicable Purchaser Agent
shall have notified the Seller that funding the related Portion of
Investment at the CP Rate is unacceptable to the applicable
Purchaser,
the "BANK RATE" for each such Yield Period shall be an interest rate per annum
equal to the Base Rate in effect on each day of such Yield Period.
Notwithstanding the foregoing, the "BANK RATE" for each day in a Yield Period
occurring during the continuance of a Termination Event shall be an interest
rate equal to 2% PER ANNUM above the Base Rate in effect on such day.
"BANKRUPTCY CODE" means the United States Bankruptcy Reform Act of
1978 (▇▇▇.▇.▇.▇▇. 101, ET SEQ.), as amended and in effect from time to time.
"BASE RATE" means for any Purchaser for any day, a fluctuating
interest rate per annum equal to the higher of: (a) the rate of interest most
recently announced by the applicable Reference Bank as its prime commercial rate
for loans made in Dollars in the United States or (b) 0.50% PER ANNUM above the
latest Federal Funds Rate. The rate referred to in CLAUSE (a) is not necessarily
intended to be the lowest rate of interest determined by the applicable
Reference Bank in connection with extensions of credit.
"BUSINESS DAY" means any day on which (i) (A) the Agent at its
branch office in Chicago, Illinois is open for business, (B) commercial banks in
New York City are not
[Amended and Restated
I-2 Receivables Purchase Agreement]
CONFIDENTIAL TREATMENT
authorized or required to be closed for business and (C) the Insurer in New York
City is open for business, and (ii) if this definition of "Business Day" is
utilized in connection with the Eurodollar Rate, dealings are carried out in the
London interbank market.
"BUYER'S FEES" means the fees paid by an Obligor to the auction
house in connection with a purchase of a vehicle by such dealer.
"CARRY COSTS" means with respect to any calendar month, the sum of
the amounts of the following items that accrued or were incurred during such
calendar month: (a) all Discount, (b) the Program Fee, (c) the Servicing Fee,
(d) the Premium and (e) all other expenses and fees of the Seller under the
Agreement.
"CASH RESERVE" means, at any time, an amount equal to [ * ].
"CASH RESERVE ACCOUNT" means that certain bank account numbered
[ * ] maintained at [ * ] and maintained for the benefit of the
Secured Parties.
"CASH RESERVE ACCOUNT BANK" means the bank holding the Cash Reserve
Account.
"CHANGE IN CONTROL" means
(a) ALLETE shall fail to own, directly or indirectly, at least
80% of the outstanding voting stock of ADESA; or
(b) AFC shall fail to own, free and clear of all Adverse
Claims, 100% of the outstanding shares of voting stock of the Seller,
except as otherwise provided by the Pledge Agreement; or
(c) Neither ADESA nor ALLETE shall own, directly or indirectly,
free and clear of all Adverse Claims, at least 80% of the outstanding
shares of voting stock of AFC, on a fully diluted basis.
"COLLATERAL BALANCE" means, at any time, the sum of the Net
Receivables Pool Balance on such day plus the amount on deposit in the
Liquidation Account (other than the amounts set aside pursuant SECTION
1.4(b)(i), SECTION 1.4(b)(ii) and SECTION 1.4(b)(iii) for the benefit of any
Purchaser, the Insurer and/or the Servicer).
"COLLECTIONS" means, with respect to any Pool Receivable, (a) all
funds which are received by the Seller, the Originator or the Servicer in
payment of any amounts owed in respect of such Receivable (including, without
limitation, principal payments, finance charges, interest
[Amended and Restated
I-3 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
and all other charges), or applied (or to be applied) to amounts owed in respect
of such Receivable (including, without limitation, insurance payments and net
proceeds of the sale or other disposition of vehicles or other collateral or
property of the related Obligor or any other Person directly or indirectly
liable for the payment of such Pool Receivable applied (or to be applied)
thereto), (b) all Collections deemed to have been received pursuant to SECTION
1.4(e) and (c) all other proceeds of such Receivable.
"COMPANY NOTE" has the meaning set forth in Section 3.2 of the
Purchase and Sale Agreement.
"CONTRACT" means, with respect to any Obligor, collectively, the
Dealer Note issued by such Obligor, or similar agreement between such Obligor
and AFC, any guaranty issued in connection therewith and each other agreement or
instrument executed by an Obligor pursuant to or in connection with any of the
foregoing.
"CONTROL PARTY" means, (a) [ * ] and the Agent; PROVIDED,
HOWEVER, that upon the occurrence of any Termination Event or Unmatured
Termination Event "Control Party" [ * ] and (b) upon the occurrence and
continuation of an Insurer Default or the Policy Termination Date the Majority
Purchasers.
"CP RATE" for any Purchaser for any Yield Period for any Portion of
Investment means, to the extent such Purchaser funds such Portion of Investment
for such Yield Period by issuing Notes, (a) a rate PER ANNUM equal to the sum of
(i) the rate (or if more than one rate, the weighted average of the rates) at
which Notes of such Purchaser having a term equal to such Yield Period and to be
issued to fund such Portion of Investment may be sold by any placement agent or
commercial paper dealer selected by the applicable Purchaser Agent on behalf of
such Purchaser, as agreed between each such agent or dealer and the applicable
Purchaser Agent and notified by the applicable Purchaser Agent to the Servicer;
PROVIDED, that if the rate (or rates) as agreed between any such agent or dealer
and the applicable Purchaser Agent with regard to any Yield Period for such
Portion of Investment is a discount rate (or rates), then such rate shall be the
rate (or if more than one rate, the weighted average of the rates) resulting
from converting such discount rate (or rates) to an interest-bearing equivalent
rate per annum, PLUS (ii) the commissions and charges charged by such placement
agent or commercial paper dealer with respect to such Notes, expressed as a
percentage of such face amount and converted to an interest-bearing equivalent
rate PER ANNUM; or (b) such other rate set forth in the Joinder Agreement
pursuant to which such Purchaser becomes a party to the Agreement.
"CREDIT AND COLLECTION POLICY" means those receivables credit and
collection policies and practices of the Servicer in effect on the date of the
Agreement and described in Schedule I hereto, as modified in compliance with the
Agreement.
[Amended and Restated
I-4 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"CURTAILMENT DATE" means, with respect to any Receivable, the date
defined as such in the Contract for such Receivable.
"DEALER NOTE" means a Demand Promissory Note and Security
Agreement, a Promissory Note and Floorplan Agreement and any other promissory
note issued by an Obligor in favor of AFC.
"DEBT" means (i) indebtedness for borrowed money (which shall not
include, in the case of the Seller or AFC, accounts payable to any Affiliate in
the ordinary course of business arising from the provision of goods and services
by such Affiliate), (ii) obligations evidenced by bonds, debentures, notes or
other similar instruments, (iii) obligations to pay the deferred purchase price
of property or services, (iv) obligations as lessee under leases which shall
have been or should be, in accordance with generally accepted accounting
principles, recorded as capital leases, (v) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of kinds referred to in CLAUSES (i)
through (iv) above, and (vi) liabilities in respect of unfunded vested benefits
under plans covered by Title IV of ERISA.
"DEFAULT RATIO" means the ratio (expressed as a percentage and
rounded upward to the nearest 1/100th of 1%) computed as of the last day of each
calendar month by dividing (i) the aggregate Outstanding Balance of all Pool
Receivables that became Defaulted Receivables during such month PLUS the
aggregate amount of non-cash adjustments that reduced the Outstanding Balance of
any Pool Receivable during such month (other than a Pool Receivable that became
a Defaulted Receivable during such month) by (ii) the aggregate amount of Pool
Receivables that were generated by the Originator during the calendar month that
occurred five calendar months prior to the calendar month ending on such day.
"DEFAULTED RECEIVABLE" means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for [ * ] after the due date for such payment
(such due date being determined without reference to any extension
that extends the due date of such Receivable to a date [ * ]
past the date such Receivable arose or, if such Receivable was
still an Eligible Receivable after such extension, without
reference to any extension that extends the due date [ * ]
past the date such Receivable arose);
(ii) [RESERVED]
(iii) which, consistent with the Credit and Collection
Policy, would be written off the Seller's books as uncollectible;
or
[Amended and Restated
I-5 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(iv) which is converted to a long term payment plan in the
form of a note or other similar document.
"DEFICIENCY AMOUNT" means with respect to (i) [ * ] the
amount, if any, by which the Discount and Program Fees due [ * ] exceeds the
aggregate amount of funds available and actually paid in respect of such
Discount and Program Fees [ * ] including, without limitation, amounts
redeposited by the Seller and amounts withdrawn from the Cash Reserve Account
pursuant to Section 1.4(i) and (ii) the Legal Final Maturity Date, the amount,
if any, by which the outstanding Investment exceeds the aggregate amount of
funds available and actually paid in respect of such Investment on such Legal
Final Maturity Date, including, without limitation, amounts redeposited by the
Seller and amounts withdrawn from the Cash Reserve Account pursuant to Section
1.4(i).
"DELINQUENCY RATIO" means the ratio (expressed as a percentage and
rounded upward to the nearest 1/100 of 1%) computed as of the last day of each
calendar month by dividing (i) the aggregate Outstanding Balance of all Pool
Receivables (net of all miscellaneous credits) that were Delinquent Receivables
on such day by (ii) the aggregate Outstanding Balance of all Pool Receivables on
such day.
"DELINQUENT RECEIVABLE" means a Receivable which is not a Defaulted
Receivable (i) as to which any payment, or part thereof, remains unpaid for
[ * ] after the due date for such payment (such due date being determined
without reference to any extension that extends the due date to a date [ * ]
past the date such Receivable arose (provided that the determination of such due
date shall include any extension that extends the due date [ * ] such Receivable
arose if, after giving effect to such extension, such Receivable was still an
Eligible Receivable) or (ii) which, consistent with the Credit and Collection
Policy, would be classified as delinquent by the Seller.
"DEPOSIT ACCOUNT" means an account listed on SCHEDULE II hereto and
maintained at a bank or other financial institution for the purpose of receiving
Collections.
"DEPOSIT ACCOUNT AGREEMENT" means a letter agreement, in the form
of ANNEX B to the Agreement, among the Seller, the Agent and the applicable
Deposit Account Bank, as the same may be amended, supplemented, amended and
restated, or otherwise modified from time to time in accordance with the
Agreement and with the prior written consent of the Control Party.
"DEPOSIT BANK" means any of the banks or other financial
institutions at which one or more Deposit Accounts are maintained.
"DISCOUNT" means (a) with respect to each Revolving Purchaser:
[Amended and Restated
I-6 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
and (b) with respect to any Term Purchaser, has the meaning set forth in the
applicable Joinder Agreement; PROVIDED, that no provision of the Agreement shall
require the payment or permit the collection of Discount in excess of the
maximum permitted by applicable law; and PROVIDED, FURTHER, that Discount for
any Portion of Investment of any Participation shall not be considered paid by
any distribution to the extent that at any time all or a portion of such
distribution is rescinded or must otherwise be returned for any reason.
"DISTRIBUTION PERCENTAGE" means, with respect to any Purchaser on
any day (i) if the sum of the aggregate of the numerators of the Participations
on such day is less than or equal to the Collateral Balance on such day, such
Purchaser's Participation and (ii) if the sum of the aggregate of the numerators
of the Participations on such day exceeds the Collateral Balance on such day,
the Termination Share of such Purchaser (in each case, expressed as a
percentage).
[Amended and Restated
I-7 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"DIVIDENDS" means any dividend or distribution (in cash or
obligations) on any shares of any class of Seller's capital stock or any
warrants, options or other rights with respect to shares of any class of
Seller's capital stock.
"DRAW DATE" means the 5th Business Day of each calendar month.
"ELIGIBLE CONTRACT" means a Contract in one of the forms set forth
in SCHEDULE IV with such variations as AFC shall approve in its reasonable
business judgment that shall not materially adversely affect the rights of the
Originator, the Seller, the Insurer or the Purchasers.
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
[ * ]
[Amended and Restated
I-8 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
[Amended and Restated
I-9 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute of similar
import, together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also refer to
any successor sections.
"ERISA AFFILIATE" shall mean with respect to any Person, at
any time, each trade or business (whether or not incorporated) that would, at
the time, be treated together with such Person as a single employer under
Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code.
"EURODOLLAR RATE" means, for any Portion of the Investment for
any Yield Period, an interest rate per annum (rounded upward to the nearest
1/16th of 1%) determined pursuant to the following formula:
Eurodollar Rate = LIBOR
--------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means, for any Yield Period, the
maximum reserve percentage (expressed as a decimal, rounded upward to
the nearest 1/100th of 1%) in effect on the date LIBOR for such Yield
Period is determined under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to "Eurocurrency" funding (currently referred
to as"Eurocurrency liabilities") having a term comparable to such Yield
Period; and
[Amended and Restated
I-10 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"EXCLUDED OBLIGOR" means an Obligor, so designated in writing
as such by the Control Party (or if the Control Party is the Majority
Purchasers, the Agent and the Majority Purchasers) to the Seller in good faith
and in the Control Party's (or if the Control Party is the Majority Purchasers,
the Agent's and the Majority Purchasers') reasonable judgment relating to credit
considerations from time to time, it being understood that from time to time the
Control Party and the Agent may revoke their designation of one or more Obligors
as Excluded Obligors by written notice to the Seller.
"EXCLUDED RECEIVABLES" means any Receivable identified on SCHEDULE
1.1(b) of the Purchase and Sale Agreement from time to time and any right to
payment under:
[ * ]
[Amended and Restated
I-11 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
"FAIRWAY" has the meaning set forth in the preamble.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate PER ANNUM equal (for each day during such period) to: (a) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York, or (b) if such rate is
not so published for any Business Day, the average of the quotations for such
day on such transactions received by the Agent from three federal funds brokers
of recognized standing selected by it.
"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System, or any entity succeeding to any of its principal
functions.
"FEE LETTER" as to any Purchaser means the fee letter entered into
by such Purchaser's Purchaser Agent party with the Seller as described more
particularly in SECTION 1.5.
"FEE PAYMENT DATE" means with respect to any Purchaser, any date so
designated in the applicable Fee Letter.
[Amended and Restated
I-12 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"FINAL PAYOUT DATE" means the date following the Termination
Date on which no Investment or Discount in respect of any Participation under
the Agreement shall be outstanding and all other amounts payable by the
Originator, the Seller or the Servicer to the Purchasers, the Purchaser Agents,
the Agent, the Insurer or any other Affected Person under the Transaction
Documents shall have been paid in full.
"FINANCE CHARGE AND FLOOR PLAN FEE COLLECTIONS" means with respect
to any calendar month, any Collections applied by the Servicer in such calendar
month to the payment of interest and finance charges and all other amounts
(other than principal) owed under a Contract.
"GAAP" means, generally accepted accounting principles and
practices in the United States, consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including without limitation any court, and any Person owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"INDEMNIFIED AMOUNTS" has the meaning set forth in SECTION 3.1.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 3.1.
"INSOLVENT" or "INSOLVENCY" means with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"INSOLVENCY PROCEEDING" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the benefit
of creditors, composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case (a) and (b) undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"INSURANCE AGREEMENT" means that certain Insurance and Indemnity
Agreement dated as of the date hereof among the Servicer, the Seller, the
Originator and the Insurer, as amended, amended and restated, supplemented or
otherwise modified from time to time.
"INSURED AMOUNTS" [ * ]
[Amended and Restated
I-13 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"INSURED DISCOUNT LIMIT" [ * ]
"INSURER" has the meaning set forth in the preamble to this
Agreement.
"INSURER ADVANCE" [ * ]
"INSURER DEFAULT" [ * ]
"INSURER'S ACCOUNT" means that certain bank account numbered
[ * ] or such other account as the Insurer may specify through written notice to
the Seller, the Servicer and the Agent.
"INVESTMENT" means with respect to any Purchaser the aggregate of
the amounts paid to the Seller in respect of the Participation of such Purchaser
pursuant to the Agreement, or such amount divided or combined in accordance with
SECTION 1.7, in each case reduced from time to time by Collections actually
distributed and applied on account of such Investment pursuant to SECTION
1.4(d); PROVIDED, THAT if such Investment shall have been reduced by any
distribution and thereafter all or a portion of such distribution is rescinded
or must otherwise be returned for any reason, such Investment shall be increased
by the amount of such rescinded or returned distribution, as though it had not
been made.
[Amended and Restated
I-14 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the
form of ANNEX D and executed pursuant to SECTION 1.12.
"LEGAL FINAL MATURITY DATE" [ * ]
"LIBOR" means with respect to each Purchaser's Portion(s) of
Investment the rate of interest PER ANNUM (rounded to the nearest 1/100th of 1%,
with 0.005% being rounded upwards) equal to the rate of interest PER ANNUM: (i)
for deposits in Dollars (in the approximate amount of the Investment to be
funded) for a period equal to the applicable Yield Period that appears on
Telerate Page 3750 or (ii) if such rate does not appear on Telerate Page 3750,
determined by the Agent to be the arithmetic mean (rounded to the nearest
1/100th of 1%, with 0.005% being rounded upwards) of the rates of interest PER
ANNUM notified to the Agent as the rate of interest at which Dollar deposits in
the approximate amount of the Investment to be funded, and for a period equal to
the applicable Yield Period, would be offered to major banks in the London
interbank market at their request, in each case at or about 11:00 a.m. (London
time) on the second Business Day before such funding. [ * ]
"LIQUIDATION ACCOUNT" means that certain bank account numbered
[ * ] or such other account at such other bank approved by the Control Party (or
if the Control Party is the Majority Purchasers, the Agent), with the Purchasers
and their respective Purchaser Agents receiving notice that such account is
maintained at such bank in either case, which is in the name of [ * ]
"LIQUIDATION ACCOUNT BANK" means the bank holding the Liquidation
Account.
"LIQUIDITY AGENT" means any financial institution in its capacity
as a Liquidity Agent pursuant to a Liquidity Agreement.
"LIQUIDITY AGREEMENT" means any loan or asset purchase agreement or
similar agreement whereby a Note Issuer party hereto as a Purchaser which
obtains commitments from financial institutions to support its funding
obligations hereunder and/or to refinance any Notes issued to fund the Note
Issuer's Investment hereunder. [ * ] Bank of Montreal, acting through its
Chicago Branch, as Liquidity Agent, BMO ▇▇▇▇▇▇▇
[Amended and Restated
I-15 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
▇▇▇▇▇, as servicing agent, and Fairway, as amended, amended and restated,
supplemented or otherwise modified from time to time.
"LIQUIDITY BANK" has the meaning set forth in SECTION 6.3(b).
"LOSS PERCENTAGE" means, on any date, the greatest of [ * ]
"LOSS RESERVE" means, for any date and any Participation (a) of any
Revolving Purchaser, an amount equal to the product of (A) the quotient obtained
by dividing (x) the Loss Percentage by (y) 1 minus the Loss Percentage and (B)
such Purchaser's Investment at such time and (b) of any Term Purchaser, an
amount calculated pursuant to the "Loss Reserve Formula" set forth in the
Joinder Agreement to which such Term Purchaser is a party and approved by the
Insurer.
"LOSS RESERVE RATIO" means, as calculated as of the last day of
each calendar month, a percentage equal to (a) [ * ] that occurred during the
twelve consecutive calendar months ending on such last day [ * ] ending on such
day, and [ * ]
"LOT CHECK" with respect to any Obligor means a physical inspection
of such Obligor's vehicles that are financed by the Originator and which may
include a review of such Obligor's books and records related thereto.
"MAJORITY PURCHASERS" means Purchasers having a share of the
Aggregate Participation equal to or greater than 50%.
"MATERIAL ADVERSE EFFECT" means, with respect to any event or
circumstance, a material adverse effect on:
(a) the business, operations, property or financial condition
of the Seller or the Servicer;
(b) the ability of the Seller or the Servicer to perform its
obligations under this Agreement or any other Transaction Document to
which it is a party or the performance of any such obligations;
(c) the validity or enforceability of this Agreement or any
other Transaction Document;
[Amended and Restated
I-16 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(d) the status, existence, perfection, priority or
enforceability of the Agent's interest (for the benefit of the Secured
Parties) in the Receivables or Related Security; or
(e) the collectibility of the Receivables.
"MAXIMUM INSURED AMOUNT" [ * ]
"MAXIMUM PURCHASE AMOUNT" means, as to any Revolving Purchaser, the
maximum dollar amount of Investment it is willing to fund, as set forth on the
signature pages to this Agreement, any Joinder Agreement or any assignment
entered into pursuant to SECTION 6.3 (as applicable), which amount may,
following the written request of the Seller, and if such increase would make the
sum of the Revolving Purchase Limit and the aggregate of the Investments of all
Term Purchasers exceed the Maximum Insured Amount, the prior written consent of
the Insurer in its sole discretion, be increased at any time by any Revolving
Purchaser (which increase shall cause a corresponding increase in the Revolving
Purchase Limit); PROVIDED THAT if any Affiliate of Fairway becomes a Term
Purchaser, the Maximum Purchase Amount of Fairway shall be reduced by the
initial Investment of such Term Purchaser.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Services, Inc.
"MULTIEMPLOYER PLAN" means a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET RECEIVABLES POOL BALANCE" means at any time an amount equal to
[ * ]
"NET SPREAD" means [ * ]
[Amended and Restated
I-17 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
"NORMAL CONCENTRATION PERCENTAGE" [ * ]
"NOTE ISSUER" means Fairway and any other Purchaser in the business
of issuing short or medium term promissory notes.
"NOTES" (a) in the case of Fairway, means the short-term promissory
notes issued or to be issued by Fairway to fund its investments in accounts
receivable or other financial assets and (b) in the case of any other Purchaser,
has the meaning set forth in the applicable Joinder Agreement.
"OBLIGOR" means, with respect to any Receivable, a Person
obligated to make payments pursuant to the Contract relating to such Receivable;
PROVIDED THAT Receivables generated by Affiliates of any Obligor shall be
treated as if generated by such Obligor.
"ORIGINATOR" has the meaning set forth in the Purchase and Sale
Agreement.
"OUTSTANDING BALANCE" [ * ]
"PARTICIPATION" [ * ]
[Amended and Restated
I-18 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
Each Participation shall be determined from time to time pursuant to the
provisions of SECTION 1.3.
"PERFECTION REPRESENTATION" means the representations, warranties
and covenants set forth in EXHIBIT VII attached hereto.
"PERFORMANCE GUARANTY" means the Performance Guaranty, dated as of
May __, 2002, made by ADESA in favor of the Agent for the benefit of the Secured
Parties, as the same may be amended, supplemented or otherwise modified from
time to time with the prior written consent of the Control Party.
"PERMITTED INVESTMENTS" means (i) overnight obligations of the
United States of America, (ii) time deposits or AAAm or AAAm-G rated money
market accounts maintained at ▇▇▇▇▇▇ Trust and Savings Bank or the Bank of
Montreal or if ▇▇▇▇▇▇ Trust and Savings Bank or the Bank of Montreal is rated
below A-1 by S&P or P-1 by Moody's such other financial institutions rated at
the time of investment not less than A-1+ by S&P and P-1 by Moody's, (iii)
certificates of deposit that are not represented by instruments, have a maturity
of one week or less and are issued by financial institutions rated at the time
of investment not less than A-1 by S&P and P-1 by Moody's if such certificates
of deposit are issued by ▇▇▇▇▇▇ Trust and Savings Bank or the Bank of Montreal
or A-1+ by S&P and P-1 by Moody's if such certificates of deposit are issued by
financial institutions other than ▇▇▇▇▇▇ Trust and Savings Bank and the Bank of
Montreal and (iv) commercial paper rated at the time of investment not less than
A-1 by S&P and P-1 by Moody's if such commercial paper is issued by Fairway or
A-1+ by S&P and P-1 by Moody's if such commercial paper is issued by an entity
other than Fairway and, in the cases of clauses (ii), (iii) and (iv), having a
maturity date not later than (A) with respect to amounts on deposit in the Cash
Reserve Account the immediately succeeding Draw Date and (B) with respect to
amounts on deposit in the Liquidation Account the earlier of (x) the next
Settlement Date and (y) one week from the date of investment; PROVIDED, HOWEVER,
that the Control Party and the Agent (on behalf of Purchasers and the Insurer)
may, from time to time, upon three Business Days' prior written notice to
Servicer, remove from the scope of "Permitted
[Amended and Restated
I-19 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATEMENT
Investments" any such obligations, certificates of deposit or commercial paper
and specify to be within such scope, other investments.
"PERMITTED LIEN" [ * ]
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PLAN" means at a particular time, any employee benefit plan or
other plan established, maintained or contributed to by the Seller or any ERISA
Affiliate that is covered by Title IV of ERISA.
"PLEDGE AGREEMENT" means the Pledge Agreement dated May 31, 2002
between AFC and the Agent, as the same may be amended or modified with the prior
written consent of the Control Party.
"POLICY" [ * ]
"POLICY TERMINATION DATE" shall have the meaning set forth in the
Policy.
"POOL RECEIVABLE" means a Receivable in the Receivables Pool.
"PORTFOLIO CERTIFICATE" means a certificate substantially in
the form of EXHIBIT VI to the Agreement.
"PORTION OF INVESTMENT" has the meaning set forth in SECTION 1.7.
In addition, at any time when the Investment of a Participation is not divided
into two or more portions,"Portion of Investment" means 100% of the Investment
of such Participation.
"PREMIUM" means collectively, the premium owed to the Insurer under
the Insurance Agreement in respect of the Insurer's commitments under the
Policy.
[Amended and Restated
I-20 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"PREMIUM PAYMENT DATE" means any date on which Premium is payable
pursuant to the letter agreement described in SECTION 1.5(c).
"PROGRAM FEE" as to any Purchaser means, collectively, the periodic
fees set forth in the applicable Fee Letter.
"PROGRAM SUPPORT AGREEMENT" as to any applicable Note Issuer party
hereto as a Purchaser means and includes the Liquidity Agreement and any other
agreement (if any) entered into by any Program Support Provider providing for
the issuance of one or more letters of credit for the account of the Purchaser,
the issuance of one or more surety bonds for which the Purchaser is obligated to
reimburse the applicable Program Support Provider for any drawings thereunder,
the sale by the Purchaser to any Program Support Provider of the Participation
(or portions thereof) and/or the making of loans and/or other extensions of
credit to the Purchaser in connection with the Purchaser's securitization
program, together with any letter of credit, surety bond or other instrument
issued thereunder.
"PROGRAM SUPPORT PROVIDER" as to any Note Issuer means and includes
any Liquidity Bank and any other or additional Person (other than any customer
of a Purchaser) now or hereafter extending credit or having a commitment to
extend credit to or for the account of, or to make purchases from, a Purchaser
or issuing a letter of credit, surety bond or other instrument to support any
obligations arising under or in connection with any Note Issuer's securitization
program.
"PURCHASE AND SALE AGREEMENT" means the Amended and Restated
Purchase and Sale Agreement, dated as of May 31, 2002, among the Originator and
the Seller, as the same may be modified, supplemented, amended and amended and
restated from time to time in accordance with the Transaction Documents and with
prior written consent of the Control Party.
"PURCHASER" means Fairway and each other Revolving Purchaser or
Term Purchaser which becomes a purchaser hereunder in accordance with the
provisions of SECTION 1.12 or SECTION 6.3(a).
"PURCHASER'S ACCOUNT" means (i), as to Fairway, the special account
(account number [ * ] of the Purchaser maintained at the office of [ * ] or
such other account as may be so designated in writing by the Agent to the Seller
and the Insurer and (ii) as to any other Purchaser, such account as may be so
designated in writing by the applicable Purchaser Agent to the Seller, the
Servicer and the Insurer.
"PURCHASER AGENT" means, as to any Purchaser, the financial
institution designated by such Purchaser as responsible for administering the
purchase facility contemplated by this Agreement on behalf of such Purchaser,
together with any successors or permitted assigns acting in such capacity; if
any Purchaser does not so designate another institution as its Purchaser Agent,
such Purchaser shall be deemed to have designated itself as its Purchaser Agent
and all
[Amended and Restated
I-21 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
references herein to such Purchaser's Purchaser Agent shall mean and be
references to such Purchaser.
"PURCHASER TERMINATION DAY" means, as to any Purchaser, any day on
or after the earliest of (a) the date that the commitments of all of the related
Program Support Providers terminate under any related Program Support Agreement,
or any related Program Support Agreement is terminated without being replaced,
(b) the date (if any) set forth as such Purchaser's "Scheduled Termination Date"
next to such Purchaser's signature hereto or to the applicable Joinder Agreement
(as such date may be periodically extended with the consent of the Seller and
such Purchaser) or (c) the Termination Date; PROVIDED THAT any day that would
otherwise be a Purchaser Termination Day shall not be so considered if such day
is a Termination Day.
"RATING AGENCIES" means Moody's and S&P.
"RECEIVABLE" means any right to payment from any Person,
whether constituting an account, chattel paper, instrument, payment intangible
or a general intangible, arising from the providing of financing and other
services by the Originator to new, used and wholesale automobile or other motor
vehicle dealers and that is denominated and payable only in United States
dollars, and includes the right to payment of any interest or finance charges
and other obligations of such Person with respect thereto.
"RECEIVABLES POOL" means at any time all of the then outstanding
Receivables conveyed to the Seller pursuant to the Purchase and Sale Agreement
and not reconveyed to the Originator in accordance with the terms of the
Purchase and Sale Agreement.
"RECREATIONAL VEHICLE" [ * ]
"RECREATIONAL VEHICLE RECEIVABLE" means those Receivables generated
as a result of the making of loans to finance the purchase of Recreational
Vehicles.
"REFERENCE BANK" means [ * ], provided that if so
agreed by the Seller, the Servicer and the Agent, each Purchaser which becomes a
party hereto by virtue of Section 1.12 may designate a different Reference Bank
for purposes of calculating the Base Rate applicable to such Purchaser's
Investment.
"RELATED SECURITY" means, with respect to any Receivable:
(a) all right, title and interest in and to all Contracts that
relate to such Receivable;
[Amended and Restated
I-22 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(b) all security interests or liens and rights in property
subject thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise, including all rights in vehicles securing or purporting
to secure such payment;
(c) all UCC financing statements covering any collateral
securing payment of such Receivable;
(d) all guarantees and other agreements or arrangements of
whatever character from time to time supporting or securing payment of
such Receivable whether pursuant to the Contract related to such
Receivable or otherwise;
(e) all rights in any power of attorney delivered by the
related Obligor; and
(f) all rights and claims of the Seller with respect to such
Receivable, pursuant to the Purchase and Sale Agreement.
"REORGANIZATION" means with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .22, .27 or .28 of PBGC Reg. ss.4043.
"RESTRICTED PAYMENTS" has the meaning set forth in PARAGRAPH (o)(i)
of EXHIBIT IV of the Agreement.
"REVOLVING PAYDOWN DAY" means any day that is not a Termination Day
on which the conditions set forth in SECTIONS 1.2(b) or SECTION 2 of EXHIBIT II
are not either satisfied or waived.
"REVOLVING PRO RATA SHARE" means, with respect of any Revolving
Purchaser, a fraction (expressed as a percentage), the numerator of which is
such Revolving Purchaser's Maximum Purchase Amount and the denominator of which
is the Revolving Purchase Limit.
"REVOLVING PURCHASE LIMIT" means the least of (a) $500,000,000, as
such amount may be reduced pursuant to SECTION 1.1(b), (b) the amount that [ * ]
and (c) [ * ] PROVIDED, HOWEVER, that if any Revolving Purchaser agrees to
increase its Maximum Purchase Amount pursuant to the definition thereof or if,
in compliance with SECTION 1.12, any new Revolving Purchaser becomes an
additional party hereto, clause (a) above [ * ], as
[Amended and Restated
I-23 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
applicable, and [ * ]
"REVOLVING PURCHASER" means any Purchaser identified as a revolving
purchaser on its signature page hereto or in the applicable Joinder Agreement.
"S&P" means Standard and Poor's Ratings Services.
"SECURED PARTIES" means, collectively, the Purchasers, the
Purchaser Agents, the Agent, the Program Support Providers and the Insurer.
"SELLER" has the meaning set forth in the preamble to the
Agreement.
"SERVICER" has the meaning set forth in the preamble to the
Agreement.
"SERVICER PAYMENT DATE" shall mean the first Business Day of each
calendar month.
"SERVICER REPORT" means a report, in substantially the form of
ANNEX D hereto, furnished by the Servicer to the Insurer, the Agent and the
Purchaser Agents pursuant to the Agreement.
"SERVICER REPORT DATE" means the 15th day of each month, or if such
day is not a Business Day, the next Business Day.
"SERVICING FEE" shall mean the fee referred to in SECTION 4.6.
"SETTLEMENT DATE" means each of (a) the last day of each Yield
Period, (b) any Servicer Payment Date, (c) any Premium Payment Date, (d) any Fee
Payment Date, (e) every Business Day following the date any draw is made under
the Policy until the amount of such draw is fully reimbursed to the Insurer and
(f) on and after the Termination Date, any day or days that the Agent may
declare by written notice with the prior written consent of the Control Party;
IT BEING UNDERSTOOD that the declaration of a Settlement Date under this CLAUSE
(f) by the Agent shall not accelerate the payment date for any amounts due to
any Purchaser or the Insurer without the applicable party's consent.
"SINGLE EMPLOYER PLAN" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"SPECIAL CONCENTRATION PERCENTAGE" means, for any [ * ]
at any time, [ * ]
[Amended and Restated
I-24 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"SPECIAL OBLIGOR" means [ * ] and any other Obligor approved
in writing by the Control Party (or if the Control Party is the Majority
Purchasers, the Agent).
"TANGIBLE NET WORTH" means, with respect to any Person, the net
worth of such Person calculated in accordance with GAAP after subtracting
therefrom the aggregate amount of such Person's intangible assets, including,
without limitation, goodwill, franchises, licenses, patents, trademarks,
tradenames, copyrights, service marks and brand names and capitalized software.
"TERMINATION DATE" means the earliest of (i) the Business Day which
the Seller so designates by notice to the Insurer and the Agent at least 30 days
in advance pursuant to SECTION 1.1(b), (ii) May 27, 2005 (as such date may be
periodically extended with the written consent of the Seller, the Servicer, the
Insurer, the Agent and each Purchaser Agent), (iii) the date determined pursuant
to SECTION 2.2 and (iv) the date that a Purchaser Termination Day is in effect
with respect to all Purchasers.
"TERMINATION DAY" means each day which occurs on or after the
Termination Date.
"TERMINATION EVENT" has the meaning specified in EXHIBIT V.
"TERMINATION FEE" (i) with respect to any Portion of the
Investment of any Revolving Purchaser, means with respect to any Yield Period
during which any reduction of such Portion of the Investment occurs on a date
other than the last day of such Yield Period (without giving effect to any
shortened duration of such Yield Period pursuant to CLAUSE (iv) of the
definition thereof), the amount, if any, by which (i) the additional Discount
(calculated without taking into account any Termination Fee) which would have
accrued during the remainder of such Yield Period on the reductions of
Investment of the applicable Portion of the Participation relating had such
reductions remained as Investment, exceeds (ii) the income, if any, received by
the applicable Purchaser from the applicable Purchaser investing the proceeds of
such reductions of Investment, as determined by the Agent, which determination
shall be binding and conclusive for all purposes, absent manifest error and (ii)
with respect to any Portion of the Investment of any Term Purchaser, has the
meaning set forth in the applicable Joinder Agreement.
"TERMINATION SHARE" means, with respect to any Purchaser at any
time, the percentage equivalent of a fraction, the numerator of which is the
Investment of such Purchaser PLUS the Loss Reserve applicable to such Purchaser
and the denominator of which is the aggregate of the Investment of all
Purchasers PLUS the aggregate of the Loss Reserves of all Purchasers.
"TERM PURCHASER" means any Purchaser identified as a term purchaser
in the applicable Joinder Agreement.
[Amended and Restated
I-25 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
"TITLE ATTACHED RECEIVABLE" [ * ]
"TRACTOR RECEIVABLE" means, those Receivables generated as a result
of the making of loans to finance the purchase of Tractors.
"TRACTORS" means, any non-cargo carrying power unit manufactured
with a minimum of two axles and a maximum of three axles intended primarily for
use on the public streets, roads and highways and designed to operate in
combination with a semitrailer or trailer; PROVIDED, FURTHER, this definition
specifically excludes any semitrailer or trailer.
"TRANSACTION DOCUMENTS" means the Agreement, the Deposit Account
Agreements, the Purchase and Sale Agreement, the Performance Guaranty, the
Pledge Agreement, the Insurance Agreement, the Company Note, each Joinder
Agreement, the Policy, and all other certificates, instruments, UCC financing
statements, reports, notices, agreements and documents executed or delivered
under or in connection with any of the foregoing, in each case as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with the Agreement.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the applicable jurisdiction.
"UNMATURED TERMINATION EVENT" means an event which, with the giving
of notice or lapse of time, or both, would constitute a Termination Event.
"YIELD PERIOD" means, (a) with respect to each Portion of
Investment of any Revolving Purchaser:
(i) initially the period commencing on the date of a purchase
pursuant to SECTION 1.2 and ending such number of days as the Seller
shall select, subject to the approval of the applicable Purchaser Agent
pursuant to SECTION 1.2, [ * ]; PROVIDED THAT the weighted average
of all Yield Periods may not [ * ]; and
(ii) thereafter each period commencing on the last day of the
immediately preceding Yield Period for any Portion of Investment of the
Participation and ending such number of days [ * ] as the
Seller shall select, subject to the approval of the applicable
Purchaser Agent pursuant to SECTION 1.2, on notice by the Seller
received by the applicable Purchaser Agent (including notice by
telephone, confirmed in writing) not later than 11:00 a.m. (Chicago
time) on such last day or second the Business Day prior to such
[Amended and Restated
I-26 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
last day if Discount is computed by reference to the Eurodollar Rate,
EXCEPT that if the applicable Purchaser Agent shall not have received
such notice or approved such period on or before 11:00 a.m. (Chicago
time) on such last day, such period shall be one day; PROVIDED, that
(A) any Yield Period in respect of which Discount is
computed by reference to the Bank Rate shall be a period from
[ * ]
(B) any Yield Period (other than of one day) which would
otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day; PROVIDED, HOWEVER, if
Discount in respect of such Yield Period is computed by reference
to the Eurodollar Rate, and such Yield Period would otherwise end
on a day which is not a Business Day, and there is no subsequent
Business Day in the same calendar month as such day, such Yield
Period shall end on the next preceding Business Day;
(C) in the case of any Yield Period of one day, (A) if such
Yield Period is the initial Yield Period for a purchase pursuant to
SECTION 1.2, such Yield Period shall be the day of purchase of the
Participation; (B) any subsequently occurring Yield Period which is
one day shall, if the immediately preceding Yield Period is more
than one day, be the last day of such immediately preceding Yield
Period, and, if the immediately preceding Yield Period is one day,
be the day next following such immediately preceding Yield Period;
and (C) if such Yield Period occurs on a day immediately preceding
a day which is not a Business Day, such Yield Period shall be
extended to the next succeeding Business Day;
(D) in the case of any Yield Period for any Portion of
Investment which commences before the Termination Date and would
otherwise end on a date occurring after the Termination Date, such
Yield Period shall end on such Termination Date and the duration of
the initial Yield Period which commences after the Termination Date
shall commence on the Termination Date and end on the next Draw
Date and thereafter such Yield Period shall commence on the day
after such previous Draw Date and end on the next Draw Date; and
[ * ]
(b) with respect to each Portion of Investment of any Term
Purchaser, the period set forth as the "Yield Period" in the Joinder
Agreement to which such Term Purchaser is a party.
OTHER TERMS. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the
[Amended and Restated
I-27 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
UCC in the State of Indiana, and not specifically defined herein, are used
herein as defined in such Article 9. Unless the context otherwise requires, "or"
means "and/or," and "including" (and with correlative meaning "include" and
"includes") means including without limiting the generality of any description
preceding such term.
[Amended and Restated
I-28 Receivables Purchase Agreement]
EXHIBIT II
CONDITIONS OF PURCHASES
1. CONDITIONS PRECEDENT TO INITIAL PURCHASE AND THE EFFECTIVENESS
OF THIS AGREEMENT. The effectiveness of this Agreement and the initial purchase
under the Agreement are subject to the conditions precedent that the Agent and
the Insurer shall have received on or before the date hereof and the date of
such purchase the following, each in form and substance (including the date
thereof) satisfactory to the Agent and the Insurer:
(a) A counterpart of the Agreement and the other Transaction
Documents duly executed by the parties thereto.
(b) Certified copies of (i) the resolutions of the board of
directors of each of the Seller and AFC authorizing the execution, delivery, and
performance by the Seller and AFC of the Agreement and the other Transaction
Documents, (ii) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to the Agreement and the other
Transaction Documents and (iii) the articles of incorporation and by-laws of the
Seller and AFC.
(c) A certificate of the secretary or assistant secretary of the
Seller and AFC certifying the names and true signatures of the officers of the
Seller and AFC authorized to sign the Agreement and the other Transaction
Documents. Until the Agent and the Insurer receive a subsequent incumbency
certificate from the Seller and AFC in form and substance satisfactory to the
Agent and the Insurer, the Agent and the Insurer shall be entitled to rely on
the last such certificate delivered to them by the Seller and AFC, as
applicable.
(d) Financing statements, in proper form for filing under the UCC of
all jurisdictions that either the Agent or the Insurer may deem necessary or
desirable in order to perfect the interests of the Agent (for the benefit of the
Secured Parties) contemplated by the Agreement and other Transaction Documents.
(e) Financing statements, in proper form for filing under the
applicable UCC, if any, necessary to release all security interests and other
rights of any Person in the Receivables, Contracts or Related Security
previously granted by the Seller or AFC.
(f) Completed UCC requests for information, dated on or before the
date of such initial purchase and on or before the date hereof, listing the
financing statements referred to in SUBSECTION (e) above and all other effective
financing statements filed in the jurisdictions referred to in SUBSECTION (e)
above that name the Seller or AFC as debtor, together with copies of such other
financing statements (none of which shall cover any Receivables, Contracts or
Related Security), and similar search reports with respect to federal tax liens,
judgments and liens of the
[Amended and Restated
II-1 Receivables Purchase Agreement]
Pension Benefit Guaranty Corporation in such jurisdictions as the Agent and the
Insurer may request, showing no such liens on any of the Receivables, Contracts
or Related Security.
(g) Executed copies of a Deposit Account Agreement with each Deposit
Account Bank.
(h) Favorable opinions of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., in-house counsel for
the Seller and AFC, as to corporate and such other matters as the Agent and the
Insurer may reasonably request.
(i) Favorable opinions of Ice ▇▇▇▇▇▇, special counsel for the
Seller, ADESA and AFC, as to enforceability and such other matters as the Agent
and the Insurer may reasonably request.
(j) Favorable opinions of Ice ▇▇▇▇▇▇, special counsel for the Seller
and AFC, as to bankruptcy matters.
(k) Certificates of Existence with respect to the Seller and AFC
issued by the Indiana Secretary of State and articles of incorporation of the
Seller certified by the Indiana Secretary of State.
(l) Evidence (i) of the execution and delivery by each of the
parties thereto of the Purchase and Sale Agreement and all documents, agreements
and instruments contemplated thereby (which evidence shall include copies,
either original or facsimile, of each of such documents, instruments and
agreements), (ii) that each of the conditions precedent to the execution and
delivery of the Purchase and Sale Agreement has been satisfied to the Agent's
and the Insurer's satisfaction, and (iii) that the initial purchases under the
Purchase and Sale Agreement have been consummated.
(m) Evidence of payment by the Seller of all accrued and unpaid fees
(including those contemplated by the Fee Letter), costs and expenses to the
extent then due and payable on the date thereof, together with Attorney Costs of
the Agent and the Insurer to the extent invoiced prior to or on such date, plus
such additional amounts of Attorney Costs as shall constitute the Agent's and
the Insurer's (as applicable) reasonable estimate of Attorney Costs incurred or
to be incurred by it through the closing proceedings; including any such costs,
fees and expenses arising under or referenced in SECTION 6.4 as provided in the
Fee Letter and the letter setting forth the Premium.
(n) The Fee Letter between the Seller and the Agent contemplated by
and delivered pursuant to SECTION 1.5.
(o) A Servicer Report representing the performance of the portfolio
purchased through the Purchase and Sale Agreement and the Agreement for the
month prior to closing.
[Amended and Restated
II-2 Receivables Purchase Agreement]
(p) A Portfolio Certificate dated as of May 31, 2002, together with
a floorplan receivables summary dated as of May 31, 2002.
(q) Such confirmations from the rating agencies as shall be required
by any Purchaser or the Insurer in their respective sole discretion.
(r) a listing of all Obligors of all Receivables as of the date
hereof.
(s) Executed copy of the Policy and a favorable opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq., Associate General Counsel to Insurer, as to corporate,
enforceability and such other matters as the Agent may reasonably request.
(t) Such other approvals, opinions or documents as the Agent and the
Insurer may reasonably request.
2. CONDITIONS PRECEDENT TO ALL PURCHASES AND REINVESTMENTS. Each
purchase (including the initial purchase) and each reinvestment shall be subject
to the further conditions precedent that:
(a) in the case of each purchase, the Servicer shall have delivered
to the Agent and the Insurer on or prior to such purchase, in form and substance
satisfactory to the Agent and the Insurer, a completed Servicer Report with
respect to the immediately preceding calendar month, dated within 30 days prior
to the date of such purchase and shall have delivered to the Agent and the
Insurer such additional information as may reasonably be requested by the Agent
and the Insurer.
(b) on the date of such purchase or reinvestment the following
statements shall be true (and acceptance of the proceeds of such purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
(i) the representations and warranties contained in
EXHIBIT III are true and correct on and as of the date of such purchase or
reinvestment as though made on and as of such date; and
(ii) no event has occurred and is continuing, or
would result from such purchase or reinvestment, that constitutes a
Termination Event or an Unmatured Termination Event; and
(iii) the sum of the aggregate of the Participations does not
exceed 100%; and
[Amended and Restated
II-3 Receivables Purchase Agreement]
(iv) The amount on deposit in the Cash Reserve Account is equal
to or greater than the Cash Reserve; and
(c) the Agent and the Insurer shall have received such other approvals,
opinions or documents as each may reasonably request.
[Amended and Restated
II-4 Receivables Purchase Agreement]
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
A. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants as follows:
(a) The Seller is a corporation duly incorporated and in
existence under the laws of the State of Indiana, and is duly qualified to do
business, and is in good standing, as a foreign corporation in every
jurisdiction where the nature of its business requires it to be so qualified
except where the failure to so qualify has not had and could not reasonably be
expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of
the Agreement and the other Transaction Documents to which it is a party,
including the Seller's use of the proceeds of purchases and reinvestments, (i)
are within the Seller's corporate powers, (ii) have been duly authorized by all
necessary corporate action of the Seller, (iii) do not contravene or result in a
default under or conflict with (1) the Seller's charter or by-laws, (2) any law,
rule or regulation applicable to the Seller, (3) any contractual restriction
binding on or affecting the Seller or its property or (4) any order, writ,
judgment, award, injunction or decree binding on or affecting the Seller or its
property, and (iv) do not result in or require the creation of any Adverse Claim
upon or with respect to any of the Seller's properties, where, in the cases of
ITEMS (2), (3) and (4), such contravention, default or conflict has had or could
reasonably be expected to have a Material Adverse Effect. The Agreement and the
other Transaction Documents to which it is a party have been duly executed and
delivered by the Seller.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other Person is required
for the due execution, delivery and performance by the Seller of the Agreement
or any other Transaction Document to which it is a party other than those
previously obtained or UCC filings.
(d) Each of the Agreement and the other Transaction Documents to
which it is a party constitutes the legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether enforceability is considered
in a proceeding in equity or at law.
(e) Since December 31, 2001 there has been no material adverse
change in the business, operations, property or financial condition of the
Seller, AFC, the ability of the Seller or AFC to perform its obligations under
the Agreement or the other Transaction Documents to which it is a party or the
collectibility of the Receivables, or which affects the legality, validity or
enforceability of the Agreement or the other Transaction Documents.
[Amended and Restated
III-1 Receivables Purchase Agreement]
(f) (i) There is no action, suit, proceeding or investigation
pending or, to the knowledge of the Seller, threatened against the Seller before
any Government Authority or arbitrator and (ii) the Seller is not subject to any
order, judgment, decree, injunction, stipulation or consent order of or with any
Government Authority or arbitrator, that, in the case of each of foregoing
CLAUSES (i) and (ii), could reasonably be expected to have a Material Adverse
Effect.
(g) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security, free and clear of any Adverse Claim, excepting
only Permitted Liens; upon each purchase or reinvestment, the Agent (for the
benefit of the Secured Parties) shall acquire a valid and enforceable perfected
undivided percentage ownership interest, to the extent of the Participation, in
each Pool Receivable then existing or thereafter arising and in the Related
Security and Collections and other proceeds, with respect thereto, free and
clear of any Adverse Claim, excepting only Permitted Liens; the Agreement
creates a security interest in favor of the Agent (for the benefit of the
Secured Parties) in the items described in SECTION 1.2(d), and the Agent (for
the benefit of the Secured Parties) has a first priority perfected security
interest in such items, free and clear of any Adverse Claims, excepting only
Permitted Liens. No effective financing statement or other instrument similar in
effect covering any Contract or any Pool Receivable or the Related Security or
Collections with respect thereto or any Deposit Account is on file in any
recording office, except those filed in favor of the Agent (for the benefit of
the Secured Parties) relating to the Agreement.
(h) [Reserved].
(i) Each Servicer Report, Portfolio Certificate, information,
exhibit, financial statement, document, book, record or report furnished or to
be furnished at any time by or on behalf of the Seller to the Agent, the Insurer
or any Purchaser Agent in connection with the Agreement is or will be accurate
in all material respects as of its date or (except as otherwise disclosed to the
Agent, the Insurer and any such Purchaser Agent at such time) as of the date so
furnished, and no such item contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in order
to make the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(j) The principal place of business and chief executive office
(as such terms are used in the UCC) of the Seller and the office(s) where the
Seller keeps its records concerning the Receivables are located at the address
set forth under its signature to this Agreement.
(k) The names and addresses of all the Deposit Banks, together
with the account numbers of the Deposit Accounts of the Seller at such Deposit
Banks, are specified in SCHEDULE II to the Agreement (or at such other Deposit
Banks and/or with such other Deposit Accounts as have been notified to and
consented by the Insurer in accordance with the Agreement).
[Amended and Restated
III-2 Receivables Purchase Agreement]
(l) The Seller is not in violation of any order of any court,
arbitrator or Governmental Authority.
(m) Neither the Seller nor any Affiliate of the Seller has any
direct or indirect ownership or other financial interest in any Purchaser, the
Insurer, the Agent or any Purchaser Agent.
(n) No proceeds of any purchase or reinvestment will be used for
any purpose that violates any applicable law, rule or regulation, including,
without limitation, Regulations T, U and X of the Federal Reserve Board.
(o) Each Pool Receivable included as an Eligible Receivable in
the calculation of the Net Receivables Pool Balance is an Eligible Receivable as
of the date of such calculation.
(p) No event has occurred and is continuing, or would result
from a purchase in respect of, or reinvestment in respect of, any Participation
or from the application of the proceeds therefrom, which constitutes a
Termination Event.
(q) The Seller and the Servicer have complied in all material
respects with the Credit and Collection Policy with regard to each Receivable.
(r) The Seller has complied with all of the terms, covenants
and agreements contained in the Agreement and the other Transaction Documents
and applicable to it.
(s) The Seller's complete corporate name is set forth in the
preamble to the Agreement, and the Seller does not use and has not during the
last six years used any other corporate name, trade name, doing-business name or
fictitious name, except as set forth on SCHEDULE III and except for names first
used after the date of the Agreement and set forth in a notice delivered to the
Agent and the Insurer pursuant to PARAGRAPH (l)(vi) of EXHIBIT IV.
(t) The authorized capital stock of Seller consists of 1,000
shares of common stock, no par value, 100 shares of which are currently issued
and outstanding. All of such outstanding shares are validly issued, fully paid
and nonassessable and are owned (beneficially and of record) by AFC.
(u) Except as set forth on SCHEDULE V, the Seller has filed
all federal and other tax returns and reports required by law to have been filed
by it and has paid all taxes and governmental charges thereby shown to be owing.
(v) The Seller is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
[Amended and Restated
III-3 Receivables Purchase Agreement]
(w) No "accumulated funding deficiency" (within the meaning of
Section 412 of the Internal Revenue Code or Section 302 of ERISA) exists with
respect to any Single Employer Plan, and each Single Employer Plan has complied
in all material respects with the applicable provisions of ERISA and the
Internal Revenue Code. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither the Seller nor any ERISA
Affiliate has had a complete or partial withdrawal from any Multiemployer Plan,
and neither the Seller nor any ERISA Affiliate would become subject to any
liability under ERISA if the Seller or any such ERISA Affiliate were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.
B. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. The Servicer
represents and warrants as follows:
(a) The Servicer is a corporation duly incorporated and in
existence under the laws of the State of Indiana, and is duly qualified to do
business, and is in good standing, as a foreign corporation in every
jurisdiction where the nature of its business requires it to be so qualified
except where the failure to so qualify has not had and could not reasonably be
expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Servicer of
the Agreement and the other Transaction Documents to which it is a party, (i)
are within the Servicer's corporate powers, (ii) have been duly authorized by
all necessary corporate action on the part of the Servicer, (iii) do not
contravene or result in a default under or conflict with (1) the Servicer's
charter or by-laws, (2) any law, rule or regulation applicable to the Servicer,
(3) any contractual restriction binding on or affecting the Servicer or its
property or (4) any order, writ, judgment, award, injunction or decree binding
on or affecting the Servicer or its property, and (iv) do not result in or
require the creation of any Adverse Claim upon or with respect to any of its
properties, where, in the cases of items (2), (3) and (4), such contravention,
default or conflict has had or could reasonably be expected to have a Material
Adverse Effect. The Agreement and the other Transaction Documents to which it is
a party have been duly executed and delivered by the Servicer.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other Person is required
for the due execution, delivery and performance by the Servicer of the Agreement
or any other Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents
to which it is a party constitutes the legal, valid and binding obligation of
the Servicer enforceable against the
[Amended and Restated
III-4 Receivables Purchase Agreement]
Servicer in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether enforceability is considered in a proceeding in equity or
at law.
(e) There is no pending or threatened action or proceeding
affecting the Servicer before any Governmental Authority or arbitrator which
could have a Material Adverse Effect.
(f) The Servicer has complied in all material respects with
the Credit and Collection Policy with regard to each Receivable.
(g) the Servicer is not subject to any order, judgment,
decree, injunction, stipulation or consent order of or with any Governmental
Authority or arbitrator, that, could reasonably be expected to have a Material
Adverse Effect.
(h) Each Servicer Report, Portfolio Certificate, information,
exhibit, financial statement, document, book, record or report furnished or to
be furnished at any time by or on behalf of the Seller to the Agent, the Insurer
or any Purchaser Agent in connection with the Agreement is or will be accurate
in all material respects as of its date or (except as otherwise disclosed to the
Agent, the Insurer and any such Purchaser Agent at such time) as of the date so
furnished, and no such item contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in order
to make the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(i) The principal place of business and chief executive office
(as such terms are used in the UCC) of the Servicer and the office(s) where the
Servicer keeps its records concerning the Receivables are located at the address
set forth under its signature to this Agreement.
(j) The Servicer is not in violation of any order of any court,
arbitrator or Governmental Authority.
(k) Neither the Servicer nor any Affiliate of the Servicer has
any direct or indirect ownership or other financial interest in any Purchaser,
the Insurer, the Agent or any Purchaser Agent.
(l) The Servicer is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
[Amended and Restated
III-5 Receivables Purchase Agreement]
EXHIBIT IV
COVENANTS
COVENANTS OF THE SELLER AND THE SERVICER. Until the latest of the
Termination Date, the date on which no Investment of or Discount in respect of
any Participation shall be outstanding or the date all other amounts owed by the
Seller under the Agreement to the Purchasers, the Insurer, the Purchaser Agents,
the Agent and any other Indemnified Party or Affected Person shall be paid in
full:
(a) COMPLIANCE WITH LAWS, ETC. Each of the Seller and the
Servicer shall comply in all material respects with all applicable laws, rules,
regulations and orders, and preserve and maintain its corporate existence,
rights, franchises, qualifications, and privileges except to the extent that the
failure so to comply with such laws, rules and regulations or the failure so to
preserve and maintain such existence, rights, franchises, qualifications, and
privileges would not materially adversely affect the collectibility of the
Receivables or the enforceability of any related Contract or the ability of the
Seller or the Servicer to perform its obligations under any related Contract or
under the Agreement.
(b) OFFICES, RECORDS AND BOOKS OF ACCOUNT, ETC. The Seller
shall provide the Agent and the Insurer with at least 60 days' written notice
prior to making any change in the Seller's name or jurisdiction of organization
or making any other change in the Seller's identity or corporate structure
(including a merger) which could impair or otherwise render any UCC financing
statement filed in connection with this Agreement "seriously misleading" as such
term is used in the applicable UCC; each notice to the Agent or the Insurer
pursuant to this sentence shall set forth the applicable change and the proposed
effective date thereof. The Seller and Servicer will also maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables and related Contracts in the
event of the destruction of the originals thereof), and keep and maintain all
documents, books, records, computer tapes and disks and other information
reasonably necessary or advisable for the collection of all Receivables
(including, without limitation, records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each
existing Receivable).
(c) PERFORMANCE AND COMPLIANCE WITH CONTRACTS AND CREDIT AND
COLLECTION POLICY. Each of the Seller and the Servicer shall, at its expense,
timely and fully perform and comply with all material provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy with regard to each Receivable and the related
Contract.
(d) OWNERSHIP INTEREST, ETC. The Seller shall, at its expense,
take all action necessary or desirable to establish and maintain a valid and
enforceable undivided ownership
[Amended and Restated
IV-1 Receivables Purchase Agreement]
interest, to the extent of the Aggregate Participation, in the Pool Receivables
and the Related Security and Collections and other proceeds with respect
thereto, and a first priority perfected security interest in the items described
in SECTION 1.2(d), in each case free and clear of any Adverse Claim excepting
only Permitted Liens, in favor of the Agent (for the benefit of the Secured
Parties), including, without limitation, taking such action to perfect, protect
or more fully evidence the interest of the Agent (for the benefit of the Secured
Parties) under the Agreement as the Agent and the Insurer may request.
(e) SALES, LIENS, ETC. The Seller shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Adverse Claim (excepting only Permitted Liens) upon or with respect
to, any or all of its right, title or interest in, to or under, any item
described in SECTION 1.2(d) (including without limitation the Seller's undivided
interest in any Receivable, Related Security, or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or
assign any right to receive income in respect of any items contemplated by this
PARAGRAPH (e).
(f) EXTENSION OR AMENDMENT OF RECEIVABLES. After the
occurrence and during the continuance of a Termination Event or an Unmatured
Termination Event or after the Termination Date (or if a Termination Event or
Unmatured Termination Event would result therefrom), neither the Seller nor the
Servicer shall extend the maturity or adjust the Outstanding Balance or
otherwise modify the terms of any Pool Receivable in any material respect, or
amend, modify or waive any term or condition of any related Contract in any
material respect.
(g) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY.
Neither the Seller nor the Servicer shall make any material change in the
character of its business or in the Credit and Collection Policy, or any change
in the Credit and Collection Policy that would adversely affect the
collectibility of the Receivables Pool or the enforceability of any related
Contract or the ability of the Seller or Servicer to perform its obligations
under any related Contract or under the Agreement. Neither the Seller nor the
Servicer shall make any other material change in the Credit and Collection
Policy without the prior written consent of the Insurer and the Agent.
(h) AUDITS. Each of the Seller and the Servicer shall, from
time to time during regular business hours, upon reasonable prior notice as
requested by the Agent or the Insurer, permit the Agent or the Control Party, or
their agents or representatives, (i) to examine and make copies of and abstracts
from all books, records and documents (including, without limitation, computer
tapes and disks) in the possession or under the control of the Seller or the
Servicer relating to Receivables and the Related Security, including, without
limitation, the related Contracts, and (ii) to visit the offices and properties
of the Seller and the Servicer for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to Receivables
and the Related Security or the Seller's or Servicer's performance hereunder or
under the Contracts with any of the officers, employees, agents or contractors
of the Seller having knowledge of such matters; PROVIDED that so long as no
Termination Event or Unmatured Termination Event has occurred the Control Party
(or if the Control Party is the Majority
[Amended and Restated
IV-2 Receivables Purchase Agreement]
Purchasers, the Agent) shall not conduct more than two such examinations in any
year (including any examinations conducted pursuant to any other Transaction
Document). The Control Party agrees to notify the Agent of such examinations and
agrees that the Agent can be present at such examinations.
(i) CHANGE IN DEPOSIT BANKS, DEPOSIT ACCOUNTS AND PAYMENT
INSTRUCTIONS TO OBLIGORS. Neither the Seller nor the Servicer shall add or
terminate any bank as a Deposit Bank or any account as a Deposit Account from
those listed in SCHEDULE II to the Agreement without (i) the prior written
consent of the Control Party and (ii) in the case of a new Deposit Account
and/or Deposit Bank, the applicable Deposit Bank has executed, and the
applicable Deposit Account is subject to, a Deposit Account Agreement consented
to in writing by the Control Party and the Agent.
(j) DEPOSIT ACCOUNTS. Each Deposit Account shall at all times
be subject to a Deposit Account Agreement. Neither the Seller nor the Servicer
will deposit or otherwise credit, or cause or permit to be so deposited or
credited, to any Deposit Account, the Liquidation Account or the Cash Reserve
Account cash or cash proceeds other than Collections of Pool Receivables.
(k) MARKING OF RECORDS. At its expense, the Seller (or the
Servicer on its behalf) shall ▇▇▇▇ its master data processing records relating
to Pool Receivables and related Contracts, including with a legend evidencing
that the undivided percentage ownership interests with regard to the Aggregate
Participation related to such Receivables and related Contracts have been sold
in accordance with the Agreement.
(l) REPORTING REQUIREMENTS. The Seller will provide to the
Agent, each Purchaser Agent and the Insurer (in multiple copies, if requested by
the Agent) (except that with respect to PARAGRAPHS (i), (ii), (iii) and (iv) the
Seller will cause the Servicer to provide to the Agent, each Purchaser Agent and
the Insurer and the Servicer will deliver to the Agent, each Purchaser Agent and
the Insurer the following:
(i) as soon as available and in any event within 45 days after
the end of the first three quarters of each fiscal year of AFC in
a format acceptable to the Agent and the Insurer the
consolidating balance sheet of AFC, its consolidated subsidiaries
and Seller as of the end of such quarter and statements of income
of AFC and its consolidated subsidiaries and income statements of
the Seller for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by
the chief financial officer of such Person;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of AFC, (A) a copy of the
annual report for AFC and its consolidated subsidiaries,
containing financial statements for such year audited by
PricewaterhouseCoopers LLP or other independent certified public
accountants
[Amended and Restated
IV-3 Receivables Purchase Agreement]
acceptable to the Control Party (or if the Control Party is the
Majority Purchasers, the Agent) and (B) the consolidating balance
sheet of AFC and the income statement of the Seller for such year
certified by the chief financial officer of the Seller;
(iii) (a) as soon as available and in any event not later than
the Servicer Report Date, a Servicer Report as of the calendar
month ended immediately prior to such Servicer Report Date and
(b) unless the Control Party (or if the Control Party is the
Majority Purchasers, the Agent) has otherwise agreed in writing,
a Portfolio Certificate as of the last Business Day of every
calendar week, delivered on the third Business Day of the next
calendar week;
(iv) as soon as possible and in any event within three days
after the occurrence of each Termination Event and Unmatured
Termination Event, a statement of the chief financial officer of
the Seller setting forth details of such Termination Event or
event and the action that the Seller has taken and proposes to
take with respect thereto;
(v) promptly after the filing or receiving thereof, copies of
all reports and notices that the Seller or any ERISA Affiliate
files with respect to a Plan under ERISA or the Internal Revenue
Code with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or that the
Seller or any ERISA Affiliate receives from any of the foregoing
or from any Multiemployer Plan to which the Seller or any ERISA
Affiliate is or was, within the preceding five years, a
contributing employer, in each case in respect of the assessment
of withdrawal liability or an event or condition which could, in
the aggregate, result in the imposition of liability on the
Seller and/or any such ERISA Affiliate in excess of $250,000;
(vi) at least 60 days prior to any change in the Seller's name
or any other change requiring the amendment of UCC financing
statements, a notice setting forth such changes and the effective
date thereof;
(vii) such other information respecting the Receivables, the
Related Security (including inventory reports by branch, Obligor,
vehicle identification number, and other descriptions sufficient
to identify the Related Security) or the condition of operations,
financial or otherwise, of the Seller or AFC as the Agent, the
Insurer or any Purchaser Agent may from time to time reasonably
request;
(viii) promptly after the Seller obtains knowledge thereof,
notice of any (a) litigation, investigation or proceeding which
may exist at any time between the Seller, the Servicer or the
Originator, on the one hand, and any Governmental Authority
which, if not cured or if adversely determined, as the case may
be,
[Amended and Restated
IV-4 Receivables Purchase Agreement]
would have a Material Adverse Effect, or (b) litigation or
proceeding adversely affecting the Seller or any of its
subsidiaries, the Servicer or the Originator, as the case may be,
in which the amount involved, in the case of the Servicer or
Originator, is $100,000 or more and not covered by insurance or
in which injunctive or similar relief is sought or (c) litigation
or proceeding relating to any Transaction Document;
(ix) promptly after the occurrence thereof, notice of any event
or circumstance that could reasonably be expected to have a
Material Adverse Effect;
(x) notice of any material change to the Credit and Collection
Policy; and
(xi) as soon as possible and in any event within 30 days after
the Seller knows or has reason to know of: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any
Plan that is a Single Employer Plan, a failure to make any
required contribution to a Plan, the creation of any lien in
favor of the Pension Benefit Guaranty Corporation or a Plan or
any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the Pension
Benefit Guaranty Corporation or the Seller or any ERISA Affiliate
or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of any Plan.
(m) SEPARATE CORPORATE EXISTENCE. Each of the Seller and the Servicer
hereby acknowledges that the Purchasers, the Insurer, the Agent and the
Purchaser Agents are entering into the transactions contemplated by the
Agreement and the Transaction Documents in reliance upon the Seller's identity
as a legal entity separate from the Servicer and the Originator. Therefore, from
and after the date hereof, the Seller and the Servicer shall take all reasonable
steps to continue the Seller's identity as a separate legal entity and to make
it apparent to third Persons that the Seller is an entity with assets and
liabilities distinct from those of the Servicer, the Originator and any other
Person, and is not a division of the Servicer or the Originator or any other
Person. Without limiting the generality of the foregoing and in addition to and
consistent with the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the
Seller and the Servicer shall take such actions as shall be required in order
that:
(i) The Seller will be a limited purpose corporation
whose primary activities are restricted in its articles of
incorporation to purchasing Receivables from the Originator, entering
into agreements for the servicing of such Receivables, selling
undivided interests in such Receivables and conducting such other
activities as it deems necessary or appropriate to carry out its
primary activities;
(ii) Not less than one member of Seller's Board of
Directors (the "INDEPENDENT DIRECTORS") shall be individuals who are
not direct, indirect or beneficial
[Amended and Restated
IV-5 Receivables Purchase Agreement]
stockholders, officers, directors, employees, affiliates, associates,
customers or suppliers of the Originator or any of its Affiliates. The
Seller's Board of Directors shall not approve, or take any other action
to cause the commencement of a voluntary case or other proceeding with
respect to the Seller under any applicable bankruptcy, insolvency,
reorganization, debt arrangement, dissolution or other similar law, or
the appointment of or taking possession by, a receiver, liquidator,
assignee, trustee, custodian, or other similar official for the Seller
unless in each case the Independent Directors shall approve the taking
of such action in writing prior to the taking of such action. The
Independent Directors' fiduciary duty shall be to the Seller (and
creditors) and not to the Seller's shareholders in respect of any
decision of the type described in the preceding sentence. In the event
an Independent Director resigns or otherwise ceases to be a director of
the Seller, there shall be selected a replacement Independent Director
who shall not be an individual within the proscriptions of the first
sentence of this CLAUSE (ii) or any individual who has any other type
of professional relationship with the Originator or any of its
Affiliates or any management personnel of any such Person or Affiliate
and who shall be (x) a tenured professor at a business or law school,
(y) a retired judge or (z) an established independent member of the
business community, having a sound reputation and experience relative
to the duties to be performed by such individual as an Independent
Director;
(iii) No Independent Director shall at any time serve as
a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller
will be compensated from the Seller's own bank accounts for services
provided to the Seller except as provided herein in respect of the
Servicing Fee. The Seller will engage no agents other than a Servicer
for the Receivables, which Servicer will be fully compensated for its
services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to
perform for the Seller all operations required on a daily basis to
service its Receivables. The Seller will pay the Servicer a monthly fee
based on the level of Receivables being managed by the Servicer. The
Seller will not incur any material indirect or overhead expenses for
items shared between the Seller and the Originator or any Affiliate
thereof which are not reflected in the Servicing Fee. To the extent, if
any, that the Seller and the Originator or any Affiliate thereof share
items of expenses not reflected in the Servicing Fee, such as legal,
auditing and other professional services, such expenses will be
allocated to the extent practical on the basis of actual use or the
value of services rendered, and otherwise on a basis reasonably related
to the actual use or the value of services rendered, it being
understood that Originator shall pay all expenses relating to the
preparation, negotiation, execution and delivery of the Transaction
Documents, including, without limitation, legal and other fees;
[Amended and Restated
IV-6 Receivables Purchase Agreement]
(vi) The Seller's operating expenses will not be paid by
Originator or any Affiliate thereof unless the Seller shall have agreed
in writing with such Person to reimburse such Person for any such
payments;
(vii) The Seller will have its own separate mailing
address and stationery;
(viii) The Seller's books and records will be maintained
separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or ADESA
which are consolidated to include the Seller will contain detailed
notes clearly stating that the Seller is a separate corporate entity
and has sold ownership interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner
that facilitates their identification and segregation from those of the
Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate
formalities in its dealings with the Originator and any Affiliate
thereof, and funds or other assets of the Seller will not be commingled
with those of the Originator or any Affiliate thereof. The Seller shall
not maintain joint bank accounts or other depository accounts to which
the Originator or any Affiliate thereof (other than AFC in its capacity
as Servicer) has independent access and shall not pool any of the
Seller's funds at any time with any funds of the Originator or any
Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal
increase (or, in the absence of such increase, the market amount of its
portion) of the premium payable with respect to any insurance policy
that covers the Seller and any Affiliate thereof, but the Seller shall
not, directly or indirectly, be named or enter into an agreement to be
named, as a direct or contingent beneficiary or loss payee, under any
such insurance policy, with respect to any amounts payable due to
occurrences or events related to the Originator or any Affiliate
thereof (other than the Seller); and
(xiii) The Seller will maintain arm's length relationships
with the Originator and any Affiliate thereof. The Originator or any
Affiliate thereof that renders or otherwise furnishes services to the
Seller will be compensated by the Seller at market rates for such
services. Neither the Seller nor the Originator or any Affiliate
thereof will be or will hold itself out to be responsible for the debts
of the other or the decisions or actions respecting the daily business
and affairs of the other.
(n) MERGERS, ACQUISITIONS, SALES, ETC.
(i) The Seller shall not:
[Amended and Restated
IV-7 Receivables Purchase Agreement]
CONFIDENTIAL TREATMENT
(A) be a party to any merger or consolidation, or
directly or indirectly purchase or otherwise acquire, whether in
one or a series of transactions, all or substantially all of the
assets or any stock of any class of, or any partnership or joint
venture interest in, any other Person, or sell, transfer, assign,
convey or lease any of its property and assets (including,
without limitation, any Pool Receivable or any interest therein)
other than pursuant to this Agreement;
(B) make, incur or suffer to exist an investment in,
equity contribution to, loan, credit or advance to, or payment
obligation in respect of the deferred purchase price of property
from, any other Person, except for obligations incurred pursuant
to the Transaction Documents; or
(C) create any direct or indirect Subsidiary or otherwise
acquire direct or indirect ownership of any equity interests in
any other Person.
(o) RESTRICTED PAYMENTS.
(i) GENERAL RESTRICTION. Except in accordance with
SUBPARAGRAPH (ii), the Seller shall not (A) purchase or redeem any
shares of its capital stock, [ * ] (C) prepay, purchase or redeem
any subordinated indebtedness of the Seller, (D) lend or advance any
funds or (E) repay any loans or advances to, for or from the
Originator. Actions of the type described in this CLAUSE (i) are herein
collectively called "RESTRICTED PAYMENTS".
(ii) TYPES OF PERMITTED PAYMENTS. Subject to the
limitations set forth in CLAUSE (iii) below, the Seller may make
Restricted Payments so long as such Restricted Payments are made only
to the Originator and only in one or more of the following ways:
(A) Seller may make cash payments (including
prepayments) on the Company Note in accordance with its terms;
and
(B) if no amounts are then outstanding under the
Company Note, the Seller may declare and pay Dividends.
(iii) SPECIFIC RESTRICTIONS. [ * ]
[Amended and Restated
IV-8 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(B) any Restricted Payment [ * ] if, after giving
effect thereto, any Termination Event or Unmatured Termination
Event shall have occurred and be continuing.
(p) USE OF SELLER'S SHARE OF COLLECTIONS. Subject to CLAUSE
(o) above, the Seller shall apply its share of Collections to make payments in
the following order of priority: FIRST, the payment of its expenses (including,
without limitation, the obligations payable to Purchasers, the Affected Persons,
the Agent, the Insurer, the Purchaser Agents and the Agent under the Transaction
Documents), SECOND, the payment of accrued and unpaid interest on the Company
Note, THIRD, the payment of the outstanding principal amount of the Company
Note, and FOURTH, other legal and valid corporate purposes permitted by the
Agreement.
(q) AMENDMENTS TO CERTAIN DOCUMENTS.
(i) The Seller shall not amend, supplement, amend and
restate, or otherwise modify the Purchase and Sale Agreement, the
Company Note, any other document executed under the Purchase and Sale
Agreement, the Deposit Account Agreements or the Seller's articles of
incorporation or by-laws, except (A) in accordance with the terms of
such document, instrument or agreement and (B) with the prior written
consent of the Control Party (or if the Control Party is the Majority
Purchasers, the Agent).
(ii) The Originator shall not enter into or otherwise
become bound by, any agreement, instrument, document or other
arrangement that restricts its right to amend, supplement, amend and
restate or otherwise modify, or to extend or renew, or to waive any
right under, this Agreement or any other Transaction Document.
(r) INCURRENCE OF INDEBTEDNESS. The Seller shall not (i)
create, incur or permit to exist, any Debt or liability or (ii) cause or permit
to be issued for its account any letters of credit or bankers' acceptances,
except for Debt incurred pursuant to the Company Note and liabilities incurred
pursuant to or in connection with the Transaction Documents or otherwise
permitted therein.
(s) LOT CHECKS. The Seller shall, or shall cause the
Originator to, conduct Lot Checks of the Obligors according to the Originator's
customary practices or such more frequent intervals as may reasonably be
requested by the Control Party (or if the Control Party is the Majority
Purchasers, the Agent).
[Amended and Restated
IV-9 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) Any Person which is the Servicer shall fail to (1) make
when due any payment or deposit to be made by it under the Agreement or any
other Transaction Document or (2) set aside or allocate all accrued and unpaid
Premium, Program Fee, Discount or Servicing Fee in accordance with SECTION
1.4(b) and in each case, such failure shall remain unremedied for two Business
Days after the earlier of (i) the Servicer's knowledge of such failure and (ii)
notice to the Servicer of such failure; or
(b) The Seller shall fail (i) to transfer to any successor
Servicer when required any rights, pursuant to the Agreement, which the Seller
then has with respect to the servicing of the Pool Receivables, or (ii) to make
any payment required under the Agreement or any other Transaction Document, and
in either case such failure shall remain unremedied for two Business Days after
notice or discovery thereof; or
(c) Any representation or warranty made or deemed made by the
Seller or the Servicer (or any of their respective officers) under or in
connection with the Agreement or any other Transaction Document or any
information or report delivered by the Seller or the Servicer pursuant to the
Agreement or any other Transaction Document shall prove to have been incorrect,
incomplete (with respect to such information or report delivered) or untrue in
any material respect when made or deemed made or delivered; PROVIDED, HOWEVER,
if the violation of this PARAGRAPH (c) by the Seller or the Servicer may be
cured without any potential or actual detriment to any Purchaser, the Agent, any
Purchaser Agent, the Insurer or any Program Support Provider, the Seller or the
Servicer, as applicable, shall have 30 days from the earlier of (i) such
Person's knowledge of such failure and (ii) notice to such Person of such
failure to so cure any such violation before a Termination Event shall occur so
long as such Person is diligently attempting to effect such cure; or
(d) The Seller or the Servicer shall fail to perform or
observe any other material term, covenant or agreement contained in the
Agreement or any other Transaction Document on its part to be performed or
observed and any such failure shall remain unremedied for 30 days after the
earlier of (i) such Person's knowledge of such failure and (ii) notice to such
Person of such failure (or, with respect to a failure to deliver the Servicer
Report or the Portfolio Certificate pursuant to the Agreement, such failure
shall remain unremedied for five days); or
(e) (i) A default shall occur in the payment when due (subject
to any applicable grace period), whether by acceleration or otherwise, of any
Debt of either the Seller, AFC or ADESA or (ii) a default shall occur in the
performance or observance of any obligation or condition with respect to such
Debt if the effect of such default is to accelerate the maturity of
[Amended and Restated
V-1 Receivables Purchase Agreement]
CONFIDENTIAL TREATMENT
any such Debt and in the case of either CLAUSE (i) or CLAUSE (ii), the Debt with
respect to which non-payment and/or non-performance shall have occurred exceeds,
at any point in time, with respect to the Seller or AFC, [ * ] for all such
occurrences or, with respect to ADESA, [ * ] for all such occurrences; or
(f) The Agreement or any purchase or any reinvestment pursuant
to the Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Aggregate Participation shall for any reason cease
to be, a valid and enforceable perfected undivided percentage ownership interest
to the extent of the Aggregate Participation in each Pool Receivable and the
Related Security and Collections and other proceeds with respect thereto, free
and clear of any Adverse Claim, excepting only Permitted Liens or (ii) cease to
create with respect to the items described in SECTION 1.2(d), or the interest of
the Agent (for the benefit of the Secured Parties) with respect to such items
shall cease to be, a valid and enforceable first priority perfected security
interest, free and clear of any Adverse Claim, excepting only Permitted Liens;
or
(g) The Originator, ADESA, ALLETE or Seller shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against the
Originator, ADESA, ALLETE or Seller seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 45 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Originator, ADESA, ALLETE or Seller shall take any corporate action to
authorize any of the actions set forth above in this PARAGRAPH (g); or
(h) As of the last day of any calendar month, the arithmetic
average of the Default Ratios for the most recent three calendar months shall
[ * ] as of the last day [ * ]; or
(i) As of the last day of any calendar month, the arithmetic
average of the Delinquency Ratios for the most recent three calendar months
shall [ * ] as of the last day [ * ]; or
(j) The Net Spread shall be [ * ] at any time; or
[Amended and Restated
V-2 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
(k) At any time the aggregate of all Participations [ * ]
and such condition shall continue [ * ] after any date any Servicer Report or
Portfolio Certificate is required to be delivered; or
(l) A Change in Control shall occur; or
(m) (i) Any "accumulated funding deficiency" (within the
meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (ii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Control Party, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iii) the Seller or any ERISA Affiliate shall, or in the
reasonable opinion of the Control Party, is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan, (iv) the Internal Revenue Service shall file notice of a
lien pursuant to Section 6323 of the Internal Revenue Code with regard to any
assets of the Seller or any ERISA Affiliate and such lien shall not have been
released within ten Business Days, or the Pension Benefit Guaranty Corporation
shall, or shall indicate its intention to, file notice of a lien pursuant to
Section 4068 of ERISA or perfect a lien under Section 302(f) of ERISA with
regard to any of the assets of Seller or any ERISA Affiliate, or (v) any other
adverse event or condition shall occur or exist with respect to a Plan; and in
each case in CLAUSES (i), (ii), (iii), (iv) and (v) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to involve an aggregate amount of liability to the Seller
or an ERISA Affiliate in excess of $250,000.
(n) The Tangible Net Worth of the Seller shall be [ * ]
or the Tangible Net Worth of the Originator shall be less than the result of:
(A) [ * ] for each fiscal quarter of the Originator that, at the time of
determination, has concluded for which net income of the Originator was [ * ]
commencing with the fiscal quarter ending September 30, 2002.
(o) Any material adverse change shall occur in the reasonable
business judgment of the Control Party (or if the Control Party is the Majority
Purchasers, the Agent and the Majority Purchasers) in the collectibility of the
Receivables or the business, operations, property or financial condition of the
Originator or the Seller; or
(p) Any Purchase and Sale Termination Event (as defined in the
Purchase and Sale Agreement) shall occur (whether or not waived by the Seller);
or
(q) The Performance Guaranty shall cease to be in full force
and effect with respect to ADESA, ADESA shall fail to comply with or perform any
provision of the Performance Guaranty, or ADESA (or any Person by, through or on
behalf of ADESA) shall
[Amended and Restated
V-3 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
contest in any manner the validity, binding nature or enforceability of the
Performance Guaranty with respect to ADESA; or
(r) The sum of all of AFC's Debt (including intercompany loans
between AFC and ALLETE and between AFC and ADESA), plus the Investment of the
Aggregate Participation, plus the outstanding balance of any other non-recourse
transactions [ * ] on a quarterly basis; or
(s) An Insurer Default has occurred and is continuing; or
(t) Funds have been advanced by the Insurer under the Policy;
or
(u) The aggregate Outstanding Balances of Eligible Receivables
then in the Receivables Pool [ * ]
(v) The amount on deposit in the Cash Reserve Account shall at
any time fail to equal or exceed the Cash Reserve [ * ]; or
(w) (i) any of the Originator, the Seller or the Servicer
shall have asserted that any of the Transaction Documents to which it is a party
is not valid and binding on the parties thereto; or (ii) any court, governmental
authority or agency having jurisdiction over any of the parties to any of the
Transaction Documents or any property thereof shall find or rule that any
material provisions of any of the Transaction Documents is not valid and binding
on the parties thereto and all appeals therefrom have been decided or the time
to appeal has run.
[Amended and Restated
V-4 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
EXHIBIT VI
PORTFOLIO CERTIFICATE
AFC FUNDING CORPORATION
PORTFOLIO CERTIFICATE
AS OF:
-----------
To: BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., as Agent
Reference is made to the Amended and Restated Receivables Purchase
Agreement, dated as of May , 2002 (herein as amended or otherwise modified from
time to time, called the "RECEIVABLES PURCHASE AGREEMENT"), among AFC Funding
Corporation (the "SELLER"), Automotive Finance Corporation (the "SERVICER"),
Fairway Finance Corporation, as a Purchaser and such other entities from time to
time as may become purchasers thereunder, BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., as Agent and
purchaser Agent for Fairway Finance Corporation and XL Capital Assurance Inc.,
as Insurer. Capitalized terms used but not otherwise defined herein are used as
defined in the Receivables Purchase Agreement.
The Seller hereby certifies and warrants to you that the following is a
true and correct computation as of , 200 .
---- --
1. NET RECEIVABLES POOL BALANCE
----------------------------
A. [ * ] $
---------------
B. [ * ] $
---------------
C. [ * ] $
---------------
VI-1
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
D. [ * ] $
---------------
E. [ * ] $
---------------
2. COLLECTIONS
-----------
[ * ] $
--------------
3. PARTICIPATION OUTSTANDING
-------------------------
[ * ] $
--------------
[ * ] YES/NO
VI-2
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
IN WITNESS WHEREOF, the Seller has caused this Certificate to be
executed and delivered by its duly authorized officer this day of , 200 .
-- -- --
AFC FUNDING CORPORATION,
as Servicer
By
-------------------------------
Name:
-----------------------------
Title:
---------------------------
VI-3
EXHIBIT VII
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained
in the Agreement, to induce Purchasers and Agent to enter into the Agreement
and, in the case of Purchasers, to purchase the Participation hereunder, the
Seller hereby represents, warrants and covenants to Agent and the Purchasers as
to itself as follows on the Closing Date and on the date of each purchase and
reinvestment in the Participation thereafter:
GENERAL
1. The Agreement creates a valid and continuing security interest
(as defined in the Indiana UCC) in the Receivables in favor of the Agent, for
the benefit of the Secured Parties, which security interest is prior to all
other Adverse Claims, and is enforceable as such as against creditors of and
purchasers from the Seller.
2. The Receivables constitute "accounts," "payment intangibles,"
"general intangibles," "instruments" or "tangible chattel paper," within the
meaning of the Indiana UCC.
3. The Cash Reserve Account, the Deposit Account and the
Liquidation Account and all subaccounts of such accounts, constitute either a
"deposit account" or a "securities account" within the meaning of the Indiana
UCC.
4. Originator has taken all steps necessary to perfect its security
interest against the Obligors in the property securing the Receivables that
constitute chattel paper.
CREATION
5. The Seller owns and has good and marketable title to the
Receivables free and clear of any Adverse Claim, claim or encumbrance of any
Person, excepting only Permitted Liens.
6. Originator has received all consents and approvals to the sale
of the Receivables hereunder to the Seller required by the terms of the
Receivables that constitute instruments or payment intangibles.
[Amended and Restated
VII-1 Receivables Purchase Agreement]
CONFIDENTIAL TREATMENT
PERFECTION
7. Each of the Originator and the Seller has caused or will have
caused, [ * ] the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order to
perfect the sale of the Receivables from Originator to the Seller pursuant to
the Purchase and Sale Agreement and the security interest therein granted by the
Seller to the Agent, for the benefit of the Secured Parties, hereunder; and
Originator has in its possession the original copies of such instruments or
tangible chattel paper that constitute or evidence the Receivables, and all
financing statements referred to in this paragraph contain a statement to the
effect that: A purchase of or security interest in any collateral described in
this financing statement will violate the rights of the Agent, for the benefit
of the Secured Parties.
8. With respect to Receivables that constitute an instrument or
tangible chattel paper:
Such instruments or tangible chattel paper is in the possession
of the Servicer and the Agent has received a written
acknowledgment from the Servicer that the Servicer is holding
such instruments or tangible chattel paper solely on behalf and
for the benefit of the Agent, on behalf of the Secured Parties,
and each of the Originator and the Seller has caused or will
have caused, [ * ] the filing of all appropriate financing
statements in the proper filing office in the appropriate
jurisdictions under applicable law, and all financing
statements referred to in this paragraph contain a statement
to the effect that: A purchase of or security interest in any
collateral described in this financing statement will violate
the rights of the Agent, for the benefit of the Secured
Parties.
9. With respect to the Cash Reserve Account, the Deposit Account
and the Liquidation Account and all subaccounts of such accounts that constitute
deposit accounts, either:
(i) The Seller has delivered to the Agent, for the benefit of
the Secured Parties, a fully executed agreement pursuant to
which the bank maintaining the deposit accounts has agreed to
comply with all instructions originated by the Agent, for the
benefit of the Secured Parties, directing disposition of the
funds in such accounts without further consent by the Seller;
or
(ii) The Seller has taken all steps necessary to cause the
Agent, on behalf of the Secured Parties, to become the account
holder of such accounts.
[Amended and Restated
VII-2 Receivables Purchase Agreement]
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
10. With respect to the Cash Reserve Account, the Deposit Account
and the Liquidation Account or subaccounts of such accounts that constitute
"securities accounts" or "securities entitlements" within the meaning of the
Indiana UCC:
(i) The Seller has delivered to the Agent, for the benefit of
the Secured Parties, a fully executed agreement pursuant to
which the securities intermediary has agreed to comply with all
instructions originated by the Agent, for the benefit of the
Secured Parties, relating to such account without further
consent by the Seller; or
(ii) The Seller has taken all steps necessary to cause the
securities intermediary to identify in its records the Agent,
for the benefit of the Secured Parties, as the person having a
security entitlement against the securities intermediary in
each of such accounts.
PRIORITY
11. Other than the transfer of the Receivables to the Seller under
the Purchase and Sale Agreement and the security interest granted to the Agent,
for the benefit of the Secured Parties, pursuant to this Agreement, neither the
Seller nor the Originator has pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Receivables or the Cash Reserve
Account, the Deposit Account, the Liquidation Account or any subaccount of such
accounts. Neither the Seller nor the Originator has authorized the filing of, or
is aware of any financing statements against the Seller or the Originator that
include a description of collateral covering the Receivables or the Cash Reserve
Account, the Deposit Account, the Liquidation Account or any subaccount of such
accounts other than any financing statement relating to the security interest
granted to the Agent, for the benefit of the Secured Parties, hereunder or that
has been terminated.
12. Neither the Seller nor the Originator is aware of any judgment,
ERISA or tax lien filings against either the Seller or the Originator.
13. None of the instruments or tangible chattel paper that
constitute or evidence the Receivables has any marks or notations indicating
that they have been pledged, assigned or otherwise conveyed to any Person other
than the Seller or the Agent, for the benefit of the Secured Parties.
14. Neither the Cash Reserve Account, the Deposit Account, the
Liquidation Account nor any subaccount of such accounts are in the name of any
person other than the Seller or the Agent, on behalf of the Secured Parties. The
Seller has not consented to the securities intermediary of any such account to
comply with entitlement orders of any person other than the Agent, on behalf of
the Secured Parties.
[Amended and Restated
VII-3 Receivables Purchase Agreement]
15. SURVIVAL OF PERFECTION REPRESENTATIONS. Notwithstanding any
other provision of the Agreement or any other Transaction Document, the
Perfection Representations contained in this Exhibit VII shall be continuing,
and remain in full force and effect (notwithstanding any termination of the
commitments or any replacement of the Servicer or termination of Servicer's
rights to act as such) until such time as Investments and all other obligations
under the Agreement have been finally and fully paid and performed.
16. NO WAIVER. The parties to the Agreement: (i) shall not, without
obtaining a confirmation of the then-current rating of the Notes, waive any of
the Perfection Representations; (ii) shall provide the Ratings Agencies with
prompt written notice of any breach of the Perfection Representations, and shall
not, without obtaining a confirmation of the then-current rating of the Notes
(as determined after any adjustment or withdrawal of the ratings following
notice of such breach) waive a breach of any of the Perfection Representations.
17. SERVICER TO MAINTAIN PERFECTION AND PRIORITY. The Servicer
covenants that, in order to evidence the interests of the Agent, on behalf of
the Secured Parties, under this Agreement, Servicer shall take such action, or
execute and deliver such instruments (other than effecting a Filing (as defined
below), unless such Filing is effected in accordance with this paragraph) as may
be necessary or advisable including, without limitation, such actions as are
requested by the Agent, on behalf of the Secured Parties, to maintain and
perfect, as a first priority interest (subject only to Permitted Liens), the
Agent's, on behalf of the Secured Parties', security interest in the
Receivables, Related Security and Collections. Servicer shall, from time to time
and within the time limits established by law, prepare and present to the Agent,
on behalf of the Secured Parties, for the Agent, on behalf of the Secured
Parties, to authorize (based in reliance on the opinion of counsel hereinafter
provided for) the Servicer to file, all financing statements, amendments,
continuations, initial financing statements in lieu of a continuation statement,
terminations, partial terminations, releases or partial releases, or any other
filings necessary or advisable to continue, maintain and perfect the Agent's, on
behalf of the Secured Parties' security interest in the Receivables, Related
Security and Collections as a first-priority interest (subject only to Permitted
Liens) (each a "Filing"). Servicer shall present each such Filing to the Agent,
on behalf of the Secured Parties, together with (x) an opinion of counsel as to
perfection and such other matters as the Control Party (or if the Control Party
is the Majority Purchasers, the Agent) may reasonably request with respect to
such Filing, and (y) a form of authorization for the Agent's, on behalf of the
Secured Parties' signature. Upon receipt of such opinion of counsel and form of
authorization, the Agent, on behalf of the Secured Parties, shall promptly
authorize in writing Servicer to, and Servicer shall, effect such Filing under
the Uniform Commercial Code without the signature of Originator, the Seller, or
the Agent, on behalf of the Secured Parties where allowed by applicable law.
Notwithstanding anything else in the Agreement to the contrary, the Servicer
shall not have any authority to effect a Filing without obtaining written
authorization from the Agent, on behalf of the Secured Parties, in accordance
with this paragraph (17).
[Amended and Restated
VII-4 Receivables Purchase Agreement]