EXECUTION COPY
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND
ASSIGNMENT
(Amending and Restating the Receivables Purchase Agreement
and Assignment Dated as of December 3, 1996)
between
ARCADIA RECEIVABLES FINANCE CORP.
Purchaser
and
ARCADIA FINANCIAL LTD.
Seller
dated as of
July 21, 1998
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. General . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Specific Terms. . . . . . . . . . . . . . . . . . . . . 1
Section 1.03. Usage of Terms. . . . . . . . . . . . . . . . . . . . . 6
Section 1.04. Certain References. . . . . . . . . . . . . . . . . . . 6
Section 1.05. No Recourse . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.06. Action by or Consent of Holders . . . . . . . . . . . . 7
Section 1.07. Material Adverse Effect . . . . . . . . . . . . . . . . 7
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
Section 2.01. Purchase Price. . . . . . . . . . . . . . . . . . . . . 7
Section 2.02. Conveyance of Receivables . . . . . . . . . . . . . . . 8
Section 2.03. Delivery of Receivable Files. . . . . . . . . . . . . . 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of AFL . . . . . . . . . 9
Section 3.02. Representations and Warranties of ARFC. . . . . . . . 11
ARTICLE IV
COVENANTS OF AFL
Section 4.01. Protection of Title of ARFC . . . . . . . . . . . . . 12
Section 4.02. Other Liens or Interests. . . . . . . . . . . . . . . 14
Section 4.03. Costs and Expenses. . . . . . . . . . . . . . . . . . 14
Section 4.04. Indemnification . . . . . . . . . . . . . . . . . . . 14
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE V
REPURCHASES
Section 5.01. Repurchase of Receivables Upon Breach of Warranty . . 16
Section 5.02. Reassignment of Purchased Receivables . . . . . . . . 16
Section 5.03. Waivers . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
MISCELLANEOUS
Section 6.01. Liability of AFL. . . . . . . . . . . . . . . . . . . 17
Section 6.02. Merger or Consolidation of AFL or ARFC. . . . . . . . 17
Section 6.03. Limitation on Liability of AFL and Others . . . . . . 18
Section 6.04. Amendment . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.05. Notices . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.06. Merger and Integration. . . . . . . . . . . . . . . . 19
Section 6.07. Severability of Provisions. . . . . . . . . . . . . . 19
Section 6.08. Intention of the Parties. . . . . . . . . . . . . . . 19
Section 6.09. Governing Law . . . . . . . . . . . . . . . . . . . . 19
Section 6.10. Counterparts. . . . . . . . . . . . . . . . . . . . . 19
Section 6.11. Conveyance of the Receivables and the Other Conveyed
Property to an Assignee . . . . . . . . . . . . . . . 19
Section 6.12. Nonpetition Covenant. . . . . . . . . . . . . . . . . 20
SCHEDULE
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SCHEDULE A SCHEDULE OF RECEIVABLES
SCHEDULE B REPRESENTATIONS AND WARRANTIES OF SELLER
EXHIBIT
-------
EXHIBIT A FORM OF ASSIGNMENT AGREEMENT
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AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT AND ASSIGNMENT
THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND
ASSIGNMENT, dated as of July 21, 1998, executed between Arcadia Receivables
Finance Corp., a Delaware corporation, as purchaser ("ARFC"), and Arcadia
Financial Ltd., a Minnesota corporation, as seller ("AFL").
W I T N E S S E T H :
WHEREAS, pursuant to the Receivables Purchase Agreement dated as of
December 3, 1996 (the "Original Purchase Agreement") ARFC has agreed from
time to time to purchase from AFL and AFL, pursuant to this Agreement, has
agreed from time to time to sell and assign to ARFC the Receivables and Other
Conveyed Property;
WHEREAS, AFL and ARFC desire to amend and restate the Original
Purchase Agreement as herein provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, ARFC and AFL,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. The specific terms defined in this Article
include the plural as well as the singular. The words, "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as
a whole and not to any particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise
specified, refer to Articles and Sections of and Schedules and Exhibits to
this Agreement.
SECTION 1.02. SPECIFIC TERMS. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"ACCOUNTING DATE" means with respect to any Receivables the date
specified, if applicable, in the related Servicing Agreement.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGREEMENT" shall mean this Amended and Restated Receivables
Purchase Agreement and Assignment and all amendments hereof and supplements
hereto.
"AMOUNT FINANCED" has the meaning specified, with respect to any
Receivable, in the related Servicing Agreement.
"ASSIGNEE" means, collectively, each Person specified in the
relevant Securitization Document or Warehousing Document to whom ARFC assigns
or otherwise transfers specified Receivables and the related Other Conveyed
Property.
"ASSIGNMENT AGREEMENT" means, with respect to any Receivables, the
assignment agreement between AFL and ARFC pursuant to which AFL sells and
assigns Receivables to ARFC, the form of which is attached hereto as Exhibit
A.
"ASSIGNMENT DATE" means any date on which Receivables are sold and
assigned to ARFC pursuant to Section 2.02.
"BACKUP SERVICER" means, if applicable, any backup servicer or its
successor in interest, or such Person as shall have been appointed as Backup
Servicer or successor Servicer pursuant to any Servicing Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday, legal
holiday or other day on which commercial banking institutions in Minneapolis,
Minnesota, New York, New York or any other location of any successor
Servicer, any Trustee or Collateral Agent are obligated by law, executive
order or governmental decree to be closed.
"CLOSING DATE" means December 3, 1996.
"COLLECTION ACCOUNT" has the meaning specified, with respect to any
Receivable, in the related Servicing Agreement.
"COLLATERAL AGENT" has the meaning specified, if applicable, in any
Servicing Agreement.
"COMPUTER TAPE" means the computer tape generated on behalf of ARFC
that provides information relating to Receivables and that was used by AFL
and ARFC in selecting the Receivables conveyed hereunder and under any
Related Document.
"CRAM DOWN LOSS" means, with respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an
order reducing the Principal Balance of such Receivable, the amount of such
reduction. A "Cram Down Loss" shall be deemed to have occurred on the date
of issuance of such order.
"CUSTODIAN" means, collectively, each Custodian specified in a
Servicing Agreement or other Related Document.
"CUT-OFF DATE" means, with respect to any Receivables, the date
specified in the related Warehousing Documents or Securitization Documents.
"DEALER" means a seller of new or used automobiles or light trucks
that originated one or more of the Receivables and sold the respective
Receivable, directly or indirectly, to AFL under an existing agreement
between such seller and AFL.
"DEALER AGREEMENT" means an agreement between AFL and a Dealer
relating to the sale of retail installment sales contracts and installment
notes to AFL and all documents and instruments relating thereto.
"DEALER ASSIGNMENT" means, with respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to AFL.
"DEPOSIT DATE" means that date specified, with respect to a
Receivable, in the related Servicing Agreement.
"EFFECTIVE DATE" means July 21, 1998
"FINANCED VEHICLE" means a new or used automobile or light truck,
together with all accessories thereto, securing or purporting to secure an
Obligor's indebtedness under a Receivable.
"FORCE-PLACED INSURANCE" means insurance that the Servicer may, if
an Obligor fails to obtain or maintain a comprehensive and collision
insurance policy, obtain with respect to the related Financed Vehicle.
"HOLDERS" means any "Holder" of a Security as defined in any
applicable Related Document.
"INSURANCE AGREEMENT" means collectively, each insurance agreement
dated as of a date on or after the date hereof, executed and delivered by
among others, a Security Insurer, an Assignee, ARFC and AFL.
"INSURANCE POLICY" means, with respect to a Receivable, any
insurance policy benefiting the holder of the Receivable providing loss or
physical damage, credit life, credit disability, theft, mechanical breakdown
or similar coverage with respect to the Financed Vehicle or the Obligor.
"INSURER DEFAULT" with respect to any Security Insurer has the
meaning specified in any Servicing Agreement(s) covering Receivables backing
a Security insured by such Security Insurer.
"LIEN" means any security interest, lien, charge, pledge,
preference, equity or encumbrance of any kind, including tax liens,
mechanics' liens and any liens that attach by operation of law.
"LIEN CERTIFICATE" means, with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
issued by the Registrar of Titles of the applicable state to a secured party
which indicates that the lien of the secured party on the Financed Vehicle is
recorded on the original certificate of title. In any jurisdiction in which
the
original certificate of title is required to be given to the Obligor, the
term "Lien Certificate" shall mean only a certificate or notification issued
to a secured party.
"LIQUIDATED RECEIVABLE" has the meaning specified, with respect to
a Receivable, in the related Servicing Agreement.
"LIQUIDATION PROCEEDS" means, with respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable (other than
amounts withdrawn from a spread account or other like account and drawings
under a Security Policy) net of (i) reasonable expenses incurred by the
Servicer in connection with the collection of such Receivable and the
repossession and disposition of the Financed Vehicle and (ii) amounts that
are required to be refunded to the Obligor on such Receivable; PROVIDED,
HOWEVER, that the Liquidation Proceeds with respect to any Receivable shall
in no event be less than zero.
"OBLIGOR" means the purchaser or the co-purchasers of the Financed
Vehicle and any other Person or Persons who are primarily or secondarily
obligated to make payments under a Receivable.
"OTHER CONVEYED PROPERTY" means all monies at any time paid or
payable on the Receivables or in respect thereof after the applicable Cut-Off
Date (including amounts due on or before the applicable Cut-Off Date but
received by AFL after such Cut-Off Date), the security interests of AFL in
the Financed Vehicles, the Insurance Policies and any proceeds from any
Insurance Policies relating to the Receivables, the Obligors or the Financed
Vehicles, including rebates of premiums, and any Force-Placed Insurance
relating to the Receivables, rights of AFL against Dealers with respect to
the Receivables under the Dealer Agreements and the Dealer Assignments, all
items contained in the Receivable Files, any and all other documents or
electronic records that AFL keeps on file in accordance with its customary
procedures relating to the Receivables, the Obligors or the Financed
Vehicles, property (including the right to receive future Liquidation
Proceeds) that secures a Receivable and that has been acquired by or on
behalf of AFL pursuant to liquidation of such Receivable, all present and
future claims, demands, causes and choses in action in respect of the
Receivables and any or all of the foregoing and all payments on or under and
all proceeds of every kind and nature whatsoever in respect of the
Receivables and any and all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivables, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of the Receivables
and any of the foregoing.
"PERSON" means any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof, or any other entity.
"PRINCIPAL BALANCE" means, with respect to any Receivable, as of
any date, the Amount Financed minus (i) that portion of all amounts received
on or prior to such date and
allocable to principal in accordance with the terms of the Receivable, and
(ii) any Cram Down Loss in respect of such Receivable.
"PURCHASE AMOUNT" with respect to a Receivable has the meaning
specified, if applicable, in the Servicing Agreement related to such
Receivable.
"PURCHASED RECEIVABLE" has the meaning specified, if applicable, in
the related Servicing Agreement.
"RATING AGENCY" means any nationally recognized statistical rating
organization selected by AFL or ARFC to rate any of the Securities or that
determines a capital charge with respect to the issuance of a Security Policy
by a Security Insurer or any other party specified as such in the Servicing
Agreement or other Related Document.
"RECEIVABLE" means a retail installment sales contract or
promissory note (and related security agreement) for a new or used automobile
or light truck (and all accessories thereto) that is included in the Schedule
of Receivables, and all rights and obligations under such a contract.
"RECEIVABLE FILES" means the documents, electronic entries,
instruments and writings with respect to a Receivable required to be
transferred to, and held by, the Custodian pursuant to a Warehousing Document
or Securitization Document relating to such Receivable.
"REGISTRAR OF TITLES" means, with respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens
thereon.
"RELATED DOCUMENTS" has the meaning specified in each Servicing
Agreement. The Related Documents to be executed by any party are referred to
herein as "such party's Related Documents," "its Related Documents" or by a
similar expression.
"REPURCHASE DATE" means the date specified, if applicable, in the
relevant Warehousing Document.
"REPURCHASE EVENT" means the occurrence of a breach of any of AFL's
representations and warranties contained in Section 3.01(a) hereof that
materially and adversely affects the interests of ARFC or any assignee in the
related Receivables or any other event which requires the repurchase of a
Receivable by AFL under a Servicing Agreement or this Agreement.
"REPURCHASED RECEIVABLES" has the meaning specified, if applicable,
in the relevant Warehousing Document.
"SCHEDULE OF RECEIVABLES" means the schedule of all automobile
retail installment loan contracts and promissory notes sold and transferred
pursuant to this Agreement which is attached hereto as Schedule A, as such
Schedule shall be supplemented from time to time (a) by each Schedule of
Receivables with respect to each Assignment Agreement, which Schedules of
Receivables shall be deemed incorporated and made a part of Schedule A hereto
and (b) to reflect the repurchase from ARFC of Receivables repurchased by AFL
hereunder or purchased
by a Servicer under any Servicing Agreement. AFL shall maintain a Master
Schedule A reflecting all such sales, transfers, repurchases and purchases.
With respect to an Assignment Agreement, "Schedule of Receivables" shall mean
the Schedule attached to such Assignment Agreement as Exhibit A thereto.
"SCHEDULE OF REPRESENTATIONS" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"SECURITIZATION DOCUMENT" means each Servicing Agreement and
Related Document related to a transfer of Receivables in connection with the
public sale or private placement of term securities backed by such
Receivables.
"SECURITY" means any note, certificate or other security backed by
Receivables that is issued pursuant to a Warehousing Document or a
Securitization Document.
"SECURITY INSURER" means each financial guaranty insurance company
issuing a Security Policy, as specified in any Servicing Agreement.
"SECURITY POLICY" means any "Note Policy," "Certificate Policy" or
other policy of financial guaranty insurance with respect to a Security
defined as such in the relevant Servicing Agreement.
"SERVICER" means AFL and any successor in interest, as applicable,
pursuant to the related Servicing Agreement.
"SERVICING AGREEMENT" means, collectively, each servicing agreement
or sale and servicing agreement dated as of a date on or after the date
hereof relating to the Receivables assigned hereunder.
"TRUSTEE" means any indenture trustee, owner trustee or other
trustee specified as such in a Securitization Document or Warehousing
Document.
"UCC" means The Uniform Commercial Code as in effect in the
relevant jurisdiction.
"WAREHOUSING DOCUMENT" means each Servicing Agreement and Related
Document related to a transfer of Receivables in connection with a
warehousing facility for the financing of such Receivables in anticipation of
the later repurchase, sale or term resecuritization of such Receivables.
SECTION 1.03. USAGE OF TERMS. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; REFERENCES to "writing"
include printing, typing, lithography, and other means of reproducing words
in a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement,
a Warehousing Document or a Securitization Document or a Servicing Agreement;
references to
Persons include their permitted successors and assigns; and the terms
"include" or "including" mean "include without limitation" or "including
without limitation."
SECTION 1.04. CERTAIN REFERENCES. All references to the Principal
Balance of a Receivable as of an Accounting Date shall refer to the close of
business on such day, or as of the first day of a calendar month shall refer
to the opening of business on such day. All references to the last day of a
calendar month shall refer to the close of business on such day.
SECTION 1.05. NO RECOURSE. Without limiting the obligations of
AFL hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection
herewith or therewith, against any stockholder, officer or director, as such,
of AFL, or any stockholder, officer or director, as such, of any predecessor
or successor of AFL.
SECTION 1.06. ACTION BY OR CONSENT OF HOLDERS. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Holders, such provision shall be deemed to refer to Holders of record as of
the applicable record date immediately preceding the date on which such
action is to be taken, or consent given, by Holders. Solely for the purposes
of any action to be taken, or consented to, by Holders, any Security
registered in the name of ARFC, AFL or any Affiliate thereof shall be deemed
not to be outstanding and the principal amount evidenced thereby shall not be
taken into account in determining whether the requisite principal amount
necessary to effect any such action or consent has been obtained; PROVIDED,
HOWEVER, that solely for the purpose of determining whether a Trustee is
entitled to rely upon any such action or consent, only Securities which the
related Trustee knows to be so owned shall be so disregarded.
SECTION 1.07. MATERIAL ADVERSE EFFECT. Whenever a determination
is to be made under this Agreement as to whether a given event, action,
course of conduct or set of facts or circumstances could or would have a
material adverse effect on any Securities and the interests of the Holders
therein (or any similar or analogous determination), such determination shall
be made without taking into account the funds available from claims under any
Security Policy or withdrawals from any reserve accounts.
SECTION 1.08. CONDITIONS TO EFFECTIVENESS. This Agreement shall
amend and restate the Original Purchase Agreement and shall become effective
as of the Effective Date upon receipt by each of the parties hereto of this
Agreement duly executed and delivered by the other party hereto.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.01. PURCHASE PRICE. In consideration of the conveyance
of the Receivables and the related Other Conveyed Property to ARFC on each
Assignment Date, ARFC shall pay or cause to be paid to AFL an amount equal to
the product of (x) the outstanding
Principal Balance of each Receivable and (y) 100%. Such amount shall be paid
to AFL, by wire transfer of immediately available funds on the date of such
conveyance, to the extent of the net proceeds received by ARFC upon its
contemporaneous conveyance of such Receivables to an Assignee pursuant to a
Warehousing Document or Securitization Document. The balance shall be
payable (a) with respect to any Receivable transferred pursuant to a
Warehousing Document, upon the subsequent transfer of such Receivable
pursuant to a Securitization Document, to the extent the net proceeds
received by ARFC upon such subsequent transfer exceeds the amount paid by
ARFC to effect the retransfer of such Receivable to ARFC pursuant to such
Warehousing Document, and (b) with respect to any Receivable transferred
pursuant to a Securitization Document, within ninety days after such transfer.
SECTION 2.02. CONVEYANCE OF RECEIVABLES.
(a) Subject to the conditions set forth in paragraph (b) below,
AFL, pursuant to the mutually agreed upon terms contained herein and pursuant
to one or more Assignment Agreements, shall sell, transfer, assign and
otherwise convey to ARFC without recourse (but without limitation of its
obligations in this Agreement or its obligations as Servicer under any
Servicing Agreement, all of the right, title and interest of AFL, whether
then existing or thereafter acquired, in and to all accounts, contract
rights, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices
of credit and uncertificated securities consisting of, arising from or
relating to the Receivables listed on the Schedule of Receivables and the
related Other Conveyed Property. It is the intention of ARFC and AFL that
the transfers and assignments contemplated by this Agreement and each
Assignment Agreement shall constitute a sale of the Receivables and the Other
Conveyed Property from AFL to ARFC, conveying good title thereto free and
clear of any Liens, and the Receivables and Other Conveyed Property shall not
be a part of AFL's estate in the event of the filing of a bankruptcy petition
by or against AFL under any bankruptcy or similar law.
(b) AFL shall transfer to ARFC the Receivables and the related
Other Conveyed Property as described in paragraph (a) above only upon the
satisfaction of each of the following conditions on or prior to the related
Assignment Date:
(i) AFL shall have delivered to ARFC and the related Assignee a duly
executed Assignment Agreement (including an acceptance by ARFC), which
shall include a Schedule of Receivables listing the Receivables being
transferred on such Assignment Date;
(ii) as of such Assignment Date, AFL shall not have been insolvent
nor shall AFL have been rendered insolvent by such sale and assignment nor
shall AFL be aware of any pending insolvency;
(iii) AFL shall have taken any action necessary or, if requested by
any Security Insurer, advisable, to obtain or maintain the first priority
perfected ownership interest of ARFC in the Receivables and Other Conveyed
Property; and
(iv) no selection procedures believed by AFL to be adverse to the
interests of ARFC, any Assignee or any Holders shall have been utilized by
AFL or ARFC in selecting the Receivables.
SECTION 2.13. DELIVERY OF RECEIVABLE FILES. AFL shall deliver to
the Custodian on each Assignment Date the following documents:
(i) The fully executed original of the Receivable (together with
the original of any agreements modifying the Receivable, including without
limitation any extension agreements);
(ii) A certificate of insurance, application form for insurance
signed by the Obligor or a signed representation letter from the Obligor
named in the Receivable pursuant to which the Obligor has agreed to obtain
physical damage insurance for the related Financed Vehicle, or a documented
verbal confirmation by the insurance agent for the Obligor of a policy number
for an insurance policy for the Financed Vehicle;
(iii) The original credit application, or a copy thereof, of
each Obligor, on AFL's customary form, or on a form approved by AFL, for such
application; and
(iv) The original certificate of title (when received) and
otherwise such documents, if any, that AFL keeps on file in accordance with
its customary procedures indicating that the Financed Vehicle is owned by the
Obligor and subject to the interest of AFL as first lienholder or secured
party (including any Lien Certificate received by AFL), or if such original
certificate of title has not yet been received, a copy of the application
therefor, showing AFL as secured party, or a letter from the applicable
Dealer agreeing unconditionally to repurchase the related Receivable if the
certificate of title is not received by AFL within 180 days.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF AFL. AFL makes the
following representations and warranties, on which ARFC relies in purchasing
the Receivables and the Other Conveyed Property. Such representations are
made as of the execution and delivery of this Agreement and on each
Assignment Date, and shall survive the sale, transfer and assignment of the
Receivables and the Other Conveyed Property under such Assignment Agreements,
and the sale, transfer and assignment thereof by ARFC under any
Securitization Document or Warehousing Document. AFL and ARFC agree that
pursuant to the relevant Securitization Document or Warehousing Document ARFC
will assign to the relevant Assignee all of ARFC's rights under this
Agreement with respect to Receivables sold, transferred or assigned pursuant
to any Securitization Document or Warehousing Document and not repurchased by
ARFC, and the related Other Conveyed Party, and that such Assignee will
thereafter be entitled to enforce this Agreement against AFL in such
Assignee's own name.
(a) SCHEDULE OF REPRESENTATIONS. The representations and
warranties set forth on the Schedule of Representations are true and correct
with respect to each Receivable on the date it is sold by AFL to ARFC
hereunder.
(b) ORGANIZATION AND GOOD STANDING. AFL has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Minnesota, with power and authority to own its properties and to
CONDUCT its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the
Other Conveyed Property transferred to ARFC.
(c) DUE QUALIFICATION. AFL is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification.
(d) POWER AND AUTHORITY. AFL has the power and AUTHORITY to
execute and deliver this Agreement, each Assignment Agreement and its Related
Documents and to carry out its terms and their terms, respectively; AFL has
full power and authority to sell and assign the Receivables and the Other
Conveyed Property to be sold and assigned to and deposited with ARFC under
each Assignment Agreement and has duly authorized such sale and assignment to
ARFC by all necessary corporate action; and the execution, delivery and
performance of this Agreement, each Assignment Agreement and AFL's Related
Documents have been duly authorized by AFL by all necessary corporate action.
(e) VALID SALE; BINDING OBLIGATIONS. This Agreement and each
Assignment Agreement have been duly executed and delivered and shall effect a
valid sale, transfer and assignment of the Receivables and the Other Conveyed
Property, enforceable against AFL and creditors of and purchasers from AFL;
and this Agreement, each Assignment Agreement and AFL's Related Documents
constitute legal, valid and binding obligations of AFL enforceable in
accordance with their respective 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 such enforceability is considered
in a proceeding in equity or at law.
(f) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement, each Assignment Agreement and the Related
Documents and the fulfillment of the terms of this Agreement, each Assignment
Agreement and the Related Documents do not and shall not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, the articles
of incorporation or bylaws of AFL, or any indenture, agreement, mortgage,
deed of trust or other instrument to which AFL is a party or by which it or
any of its property is bound, or result in the creation or imposition of any
Lien upon any of AFL's properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other than
this Agreement and each Assignment Agreement, or violate any law, order, rule
or regulation applicable to AFL of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over AFL or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to AFL's knowledge, threatened against AFL, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over AFL or its properties (i) asserting
the invalidity of this Agreement, any Assignment Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of any Securities or
the consummation of any of the transactions contemplated by this Agreement,
any Assignment Agreement or any of the Related Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by AFL of its obligations under, or the validity or
enforceability of, this Agreement, any Assignment Agreement or any of the
Related Documents or (iv) seeking to affect adversely the federal income tax
or other federal, state or local tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and acquisition
of the Receivables and the Other Conveyed Property hereunder, under any
Assignment Agreement or under any of the Related Documents.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of AFL is
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF ARFC. ARFC makes
the following representations and warranties, on which AFL relies in selling,
assigning, transferring and conveying the Receivables and the Other Conveyed
Property to ARFC hereunder and under each Assignment Agreement. Such
representations are made as of the execution and delivery of this Agreement
and each Assignment Agreement, but shall survive the sale, transfer and
assignment of the Receivables and the Other Conveyed Property hereunder and
under each Assignment Agreement and the sale, transfer and assignment thereof
by ARFC to an Assignee pursuant to any Related Document.
(a) ORGANIZATION AND GOOD STANDING. ARFC has been duly organized
and is validly existing and in good standing as a corporation under the laws
of the State of Delaware, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and has, full
power, authority and legal right to acquire and own the Receivables and the
Other Conveyed Property, and to transfer the Receivables and the Other
Conveyed Property to an Assignee pursuant to any Related Document.
(b) DUE QUALIFICATION. ARFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions where the failure to do so would
materially and adversely affect ARFC's ability to acquire the Receivables or
the Other Conveyed Property or the validity or enforceability of the
Receivables and the Other Conveyed Property or to perform ARFC's obligations
hereunder, under any Assignment Agreement and under the Related Documents.
(c) POWER AND AUTHORITY. ARFC has the power, authority and legal
right to execute and deliver this Agreement and each Assignment Agreement and
to carry out the terms hereof and thereof and to acquire the Receivables and
the Other Conveyed Property hereunder; and the execution, delivery and
performance of this Agreement and each Assignment Agreement and all of the
documents required pursuant hereto and thereto have been duly authorized by
ARFC by all necessary action.
(d) NO CONSENT REQUIRED. ARFC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement, each Assignment Agreement and the Related
Documents, except for such as have been obtained, effected or made.
(e) BINDING OBLIGATION. This Agreement and each Assignment
Agreement constitute legal, valid and binding obligations of ARFC,
enforceable against ARFC in accordance with their terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to
general equitable principles.
(f) NO VIOLATION. The execution, delivery and performance by ARFC
of this Agreement and each Assignment Agreement, the consummation of the
transactions contemplated by this Agreement, each Assignment Agreement and
the Related Documents and the fulfillment of the terms of this Agreement,
each Assignment Agreement and the Related Documents do not and will not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or bylaws of ARFC, or conflict with or breach
any of the terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement, mortgage, deed of
trust or other instrument to which ARFC is a party or by which ARFC is bound
or to which any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust or other instrument
(other than with respect to Receivables and the related Other Conveyed
Property being transferred under a Related Document, under such Related
Document), or violate any law, order, rule or regulation, applicable to ARFC
or its properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over ARFC or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the knowledge of ARFC, threatened against ARFC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over ARFC or its properties:
(i) asserting the invalidity of this Agreement, any Assignment Agreement or
any of the Related Documents, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement, any Assignment Agreement
or any of the Related Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by ARFC of its
obligations under, or the validity or enforceability of, this Agreement, any
Assignment Agreement or any of the Related Documents or (iv) that may
adversely affect the federal or state income tax attributes of, or seek to
impose any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property hereunder or
under any Assignment Agreement or the transfer of the Receivables and the
Other Conveyed Property to an Assignee pursuant to any Related Document.
In the event of any breach of a representation and warranty made by ARFC
hereunder, AFL covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on
which all the Securities have been paid in full. AFL and ARFC agree that
damages will not be an adequate remedy for such breach and that this covenant
may be specifically enforced by ARFC or by an Assignee under any Related
Document.
ARTICLE IV
COVENANTS OF AFL
SECTION 4.01. PROTECTION OF TITLE OF ARFC.
(a) At or prior to the Closing Date, AFL shall have filed or
caused to be filed a UCC-1 financing statement, executed by AFL as seller or
debtor, naming ARFC as purchaser or secured party and describing the
Receivables and the Other Conveyed Property to be sold by AFL to ARFC as
collateral, with the office of the Secretary of State of the State of
Minnesota and in such other locations as ARFC shall have required. From time
to time thereafter AFL shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such
manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of ARFC under this Agreement and of each
Assignee under any Securitization Document or Warehousing Document in the
Receivables and the Other Conveyed Property and in the proceeds thereof. AFL
shall deliver (or cause to be delivered) to ARFC and any party entitled
thereto under any Securitization Document or Warehousing Document
file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. In the event
that AFL fails to perform its obligations under this subsection, ARFC and any
party entitled thereto under any Securitization Document or Warehousing
Document may do so, at the expense of AFL.
(b) Except for changing its name to Arcadia Financial Ltd., AFL
shall not change its name, identity, or corporate structure in any manner
that would, could or might make any financing statement or continuation
statement filed by AFL (or by ARFC or any party entitled to file a financing
statement under any Securitization Document or Warehousing Document on behalf
of AFL) in accordance with paragraph (a) above seriously misleading within
the meaning of Section 9-402(7) of the UCC, unless it shall have given ARFC
and any party entitled thereto under any Securitization Document or
Warehousing Document and each Security Insurer at least 60 days' prior
written notice thereof, and (including in connection with changing its name
to Arcadia Financial Ltd.) shall promptly file appropriate amendments to all
previously filed financing statements and continuation statements.
(c) AFL shall give ARFC, each Security Insurer (so long as an
Insurer Default with respect to such Security Insurer shall not have occurred
and be continuing) and any party entitled thereto under any Securitization
Document or Warehousing Document at least 60 days' prior written notice of
any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
any amendment of any previously filed financing or continuation statement or
of any new financing statement. AFL shall at all times maintain each office
from which it services the Receivables and its principal executive office
within the United States of America.
(d) AFL shall maintain its computer systems so that, from and
after the time of any sale hereunder and under any Assignment Agreement of
the Receivables to ARFC and the conveyance under any Securitization Document
or Warehousing Document of the related Receivables by ARFC to an Assignee,
AFL's master computer records (including archives) that refer to any such
Receivable indicate clearly that such Receivable has been sold to ARFC and
has been conveyed by ARFC to such Assignee. Indication of such Assignee's
ownership of a Receivable shall be deleted from or modified on AFL's computer
systems when, and only when the Receivable shall have been paid in full or
shall have been repurchased by ARFC or AFL.
(e) If at any time AFL shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle receivables
to any prospective purchaser, lender or other transferee, AFL shall give to
such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that, if they
shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has been sold to ARFC and is owned by the
relevant Assignee pursuant to the applicable Securitization Document or
Warehousing Document.
SECTION 4.02. OTHER LIENS OR INTERESTS. Except for the
conveyances under any Assignment Agreement, AFL will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on the Receivables or the Other Conveyed Property or any
interest therein, and AFL shall defend the right, title, and interest of ARFC
and each Assignee under any Securitization Document or Warehousing Document
in and to the Receivables and the Other Conveyed Property against all claims
of third parties claiming through or under AFL.
SECTION 4.03. COSTS AND EXPENSES. AFL shall pay all reasonable
costs and disbursements in connection with the performance of its obligations
hereunder, under any Assignment Agreement and under its Related Documents.
SECTION 4.04. INDEMNIFICATION.
(a) AFL shall defend, indemnify and hold harmless ARFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any and all costs,
expenses, losses, damages, claims, and liabilities arising out of or
resulting from any breach of any of AFL's representations and warranties
contained herein.
(b) AFL shall defend, indemnify and hold harmless ARFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any and all costs,
expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership or operation by AFL or any Affiliate
thereof, other than ARFC and the Issuer, of a Financed Vehicle.
(c) AFL will defend and indemnify ARFC, each Assignee, each Backup
Servicer, each Collateral Agent, each Trustee, each Security Insurer and the
Holders against any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from
any action taken, or failed to be taken, by AFL in respect of any of the
Receivables other than in accordance with this Agreement or any Warehousing
Document or Securitization Document.
(d) AFL agrees to pay, and shall defend, indemnify and hold
harmless ARFC, each Assignee, each Backup Servicer, each Collateral Agent,
each Trustee, each Security Insurer and the Holders from and against any
taxes that may at any time be asserted against ARFC, any Assignee, any Backup
Servicer or any Holders with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or license
taxes (but not including any taxes asserted with respect to, and as of any
date of, the sale, transfer and assignment of any Receivables and Other
Conveyed Property to ARFC and of the sale, transfer and assignment of such
Receivables and Other Conveyed Property to an Assignee or the issuance and
sale of any Securities, or asserted with respect to ownership of the
Receivables and Other Conveyed Property which shall be indemnified by AFL
pursuant to clause (e) below, or federal, state or other income taxes,
arising out of distributions on the Securities or transfer taxes arising in
connection with the transfer of Securities) and costs and expenses in
defending against the same, arising by reason of the acts to be performed by
AFL under this Agreement or any Assignment Agreement or imposed against such
Persons.
(e) AFL agrees to pay, and to indemnify, defend and hold harmless
ARFC, each Assignee, each Backup Servicer, each Collateral Agent, each
Trustee, each Security Insurer and the Holders from, any taxes which may at
any time be asserted against such Persons with respect to, and as of the date
of, any conveyance or ownership of the Receivables or Other Conveyed Property
hereunder and under any Assignment Agreement or the issuance and sale of any
Securities, including, without limitation, any sales, gross receipts,
personal property, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes, arising out of the transactions contemplated hereby or
transfer taxes arising in connection with the transfer of the Securities) and
costs and expenses in defending against the same, arising by reason of the
acts to be performed by AFL under this Agreement or imposed against such
Persons.
(f) AFL shall defend, indemnify, and hold harmless ARFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that such
cost, expense, loss, claim, damage, or liability arose out of, or was imposed
upon ARFC, any Assignee, any Backup Servicer and any Holders through the
negligence, willful misfeasance, or bad faith of AFL in the performance of
its duties under this Agreement or by reason of reckless disregard of AFL's
obligations and duties under this Agreement.
(g) AFL shall indemnify, defend and hold harmless ARFC, each
Assignee, each Backup Servicer, each Collateral Agent, each Trustee, each
Security Insurer and the Holders from and against any loss, liability or
expense imposed upon, or incurred by, ARFC, any Assignee, any Backup Servicer
or any Holders as a result of the failure of any Receivable, or the sale of
the related Financed Vehicle, to comply with all requirements of applicable
law.
(h) AFL shall defend, indemnify, and hold harmless ARFC from and
against all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in
connection with the acceptance or performance of AFL's duties as Servicer
under any Servicing Agreement, except to the extent that such cost, expense,
loss, claim, damage, or liability shall be due to the willful misfeasance,
bad faith, or negligence (except for errors in judgment) of ARFC.
(i) AFL shall indemnify, defend and hold harmless ARFC, each
Assignee, each Security Insurer, each Backup Servicer and the Holders from
and against any loss, liability or expense imposed upon, or incurred by,
ARFC, any Assignee, any Backup Servicer, any Trustee or any Holders as a
result of AFL's or ARFC's use of the name "Arcadia."
(j) Indemnification under this Section 4.04 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive maturity of the related Securities. The indemnity obligations
hereunder shall be in addition to any obligation that AFL may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.01. REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY.
Upon the occurrence of a Repurchase Event with respect to a Receivable, AFL
shall, unless such breach shall have been cured in all material respects,
repurchase such Receivable from ARFC or the applicable Assignee, as
applicable, and on or before the related Deposit Date (with respect to a
Purchased Receivable) or the related Repurchase Date (with respect to
Repurchased Receivables), AFL shall deposit the Purchase Amount into the
Collection Account as payment to ARFC or such Assignee pursuant to the
relevant Servicing Agreement or other Related Document. It is understood and
agreed that, except as set forth in Section 6.01, the obligation of AFL to
repurchase any Receivable as to which a breach has occurred and is continuing
shall, if such obligation is fulfilled, constitute the sole remedy against
AFL for such breach available to ARFC, any Security Insurer, any Collateral
Agent, any such Assignee or any Trustee on behalf of its Holders. The
provisions of this Section 5.01 are intended to grant to any such Assignee a
direct right against AFL to demand performance hereunder, and in connection
therewith AFL waives any requirement of prior demand against ARFC with
respect to such repurchase obligation. Any such purchase shall take place in
the manner specified in the related Servicing Agreement or other Related
Document. Notwithstanding any other provision of this Agreement or any
Related Document to the contrary, the obligation of AFL under this Section
shall not terminate upon a termination of AFL as Servicer under the related
Servicing Agreement and shall be performed in accordance with the terms
hereof notwithstanding the failure of the Servicer or ARFC to perform any of
their respective obligations with respect to such Receivable under such
Servicing Agreement.
In addition to the foregoing and whether or not the related
Receivable shall have been purchased by AFL, AFL shall indemnify each such
Assignee, each Backup Servicer, each Collateral Agent, each Security Insurer,
each Trustee and the Holders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel,
which may be asserted against or incurred by any of them as a result of third
party claims arising out of the events or facts giving rise to such
Repurchase Events.
SECTION 5.02. REASSIGNMENT OF PURCHASED RECEIVABLES. Upon deposit
in the Collection Account of the Purchase Amount of any Receivable
repurchased by AFL under Section 5.01, ARFC shall take such steps as may be
reasonably requested by AFL in order to assign to AFL all of ARFC's and the
relevant Assignee's right, title and interest in and to such Receivable and
all security and documents and all Other Conveyed Property conveyed to ARFC
and such Assignee directly relating thereto, without recourse, representation
or warranty, except as to the absence of liens, charges or encumbrances
created by or arising as a result of actions of ARFC or such Assignee. Such
assignment shall be a sale and assignment outright, and not for security.
If, following the reassignment of a Purchased Receivable, in any enforcement
suit or legal proceeding, it is held that AFL may not enforce any such
Receivable on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, ARFC shall, at the expense of AFL,
take such steps as AFL deems reasonably necessary to enforce the Receivable,
including bringing suit in ARFC's or any such Assignee's name or any
Collateral Agent's name or the name of a Trustee on behalf of its Holders.
SECTION 5.03. WAIVERS. No failure or delay on the part of ARFC,
or any Assignee, in exercising any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or future
exercise thereof or the exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. LIABILITY OF AFL. AFL shall be liable in accordance
herewith only to the extent of the obligations in this Agreement specifically
undertaken by AFL and the representations and warranties of AFL.
SECTION 6.02. MERGER OR CONSOLIDATION OF AFL OR ARFC. Any
corporation or other entity (i) into which AFL or ARFC may be merged or
consolidated, (ii) resulting from any merger or consolidation to which AFL or
ARFC is a party or (iii) succeeding to the business of AFL or ARFC, in the
case of ARFC, which corporation has a certificate of incorporation containing
provisions relating to limitations on business and other matters
substantively identical to those contained in ARFC's certificate of
incorporation or otherwise acceptable to the Security Insurers and the Rating
Agencies, provided that in any of the foregoing cases such corporation shall
execute an agreement of assumption to perform every obligation of AFL or
ARFC, as the case may be, under this Agreement and such party's Related
Documents and, whether or not such assumption agreement or agreements are
executed, shall be the successor to AFL or ARFC, as the case may be,
hereunder (without relieving AFL or ARFC of its responsibilities hereunder,
if it survives such merger or consolidation) without the execution or filing
of any document or any further act by any of the parties to this Agreement.
Notwithstanding the foregoing, ARFC shall not merge or consolidate with any
other Person or permit any other Person to become the successor to ARFC's
business without the prior written consent of each Security Insurer (so long
as no Insurer Default shall have occurred and be continuing with respect to
such Security Insurer). AFL or ARFC shall promptly inform the other party,
and, so long as an Insurer Default shall not have occurred and be continuing
with respect to such Security Insurer, each Security Insurer of such merger,
consolidation or purchase and assumption. Notwithstanding the
foregoing, as a condition to the consummation of the transactions referred to
in clauses (i), (ii) and (iii) above, (x) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Sections
3.01 and 3.02 shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation
of such transaction) and no event that, after notice or lapse of time, or
both, would become an event of default under any Insurance Agreement, shall
have occurred and be continuing, (y) AFL or ARFC, as applicable, shall have
delivered to each Trustee an officer's certificate and an opinion of counsel
each stating that such consolidation, merger or succession and such agreement
of assumption comply with this Section 6.02 and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, and (z) AFL or ARFC, as applicable,
shall have delivered to each Trustee an opinion of counsel, stating, in the
opinion of such counsel, either (A) all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of each Assignee under any
Related Document in the Receivables and reciting the details of the filings
or (B) no such actions shall be necessary to preserve and protect such
interest.
SECTION 6.03. LIMITATION ON LIABILITY OF AFL AND OTHERS. AFL and
any director, officer, employee or agent may rely in good faith on the advice
of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
AFL shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement
or its Related Documents and that in its opinion may involve it in any
expense or liability.
SECTION 6.04. AMENDMENT.
(a) This Agreement may be amended by AFL and ARFC, without the
consent of any Assignee or any Holders, (i) to cure any ambiguity or (ii) to
correct any ambiguity with respect to any provision in this Agreement;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an opinion of
counsel delivered to each Trustee and each Rating Agency, adversely affect in
any material respect the interests of any Assignee or any Holder.
(b) This Agreement may also be amended from time to time by AFL
and ARFC, with the prior written consent of each Security Insurer (so long as
an Insurer Default shall not have occurred and be continuing with respect to
such Security Insurer) or, if an Insurer Default shall have occurred and be
continuing, with the consent of each Assignee and each Trustee (or other
representative of the Holders of all securities backed by the affected
Receivables), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of ARFC; PROVIDED, that if such amendment
will have a material adverse effect on any Holders of any Securities, the
consent of the Trustee or other representative for such Holders shall be
required for such amendment; PROVIDED FURTHER, HOWEVER, that no such
amendment shall increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made on any Security.
(c) Prior to the execution of any amendment or consent referred to
in subsection (b), AFL shall have furnished written notification of the
substance of such amendment or consent to each Rating Agency.
(d) It shall not be necessary for the consent of Holders pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Holders shall be subject to
such reasonable requirements as the related Trustee may prescribe, including
the establishment of record dates. The consent of any Holder given pursuant
to this Section or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such
Security and of any Security issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made
upon the Security.
SECTION 6.05. NOTICES. All demands, notices and communications to
AFL or ARFC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), delivered by reputable
overnight courier or mailed by certified mail, return receipt requested, and
shall be deemed to have been given upon receipt (a) in the case of AFL, to
Arcadia Financial Ltd., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer, or such other address as shall
be designated by AFL in a written notice delivered to the other party or to
the Issuer, as applicable or (b) in case of ARFC, to Arcadia Receivables
Finance Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Treasurer.
SECTION 6.06. MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement, each Assignment Agreement and the
Related Documents sets forth the entire understanding of the parties relating
to the subject matter hereof, and all prior understandings, written or oral,
are superseded by this Agreement and the Related Documents. This Agreement
may not be modified, amended, waived or supplemented except as provided
herein.
SECTION 6.07. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement.
SECTION 6.08. INTENTION OF THE PARTIES. The execution and
delivery of this Agreement shall constitute an acknowledgement by AFL and
ARFC that they intend that the assignments and transfers herein contemplated
pursuant to each Assignment Agreement constitute a sale and assignment
outright, and not for security, of the Receivables and the Other Conveyed
Property, conveying good title thereto free and clear of any Liens, from AFL
to ARFC, and that the Receivables and the Other Conveyed Property shall not
be a part of AFL's estate in the event of the bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under
any federal or state bankruptcy or similar law, or the occurrence of another
similar event, of, or with respect to, AFL. In the event that such
conveyance is determined to be made as security for a loan made by ARFC, any
Assignee or any Holders to AFL, the parties intend that AFL shall have
granted to ARFC a security interest in all of AFL's right, title and interest
in and to the Receivables and the Other Conveyed Property conveyed pursuant
to each Assignment Agreement, and that this Agreement shall constitute a
security agreement under applicable law.
SECTION 6.09. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 6.10. COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.11. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY TO AN ASSIGNEE. AFL acknowledges that ARFC intends, pursuant to a
Servicing Agreement and other Related Document, to convey the Receivables and
the Other Conveyed Property, together with its rights under this Agreement,
to Assignees under Warehousing Documents and Securitization Documents. AFL
acknowledges and consents to such conveyance and waives any further notice
thereof and covenants and agrees that the representations and warranties of
AFL contained in this Agreement and the rights of ARFC hereunder are intended
to benefit each Security Insurer, each Assignee, each Collateral Agent and
each Trustee on behalf of its Holders. In furtherance of the foregoing, AFL
covenants and agrees to perform its duties and obligations hereunder, in
accordance with the terms hereof for the benefit of each Security Insurer,
each Assignee, each Collateral Agent and each Trustee on behalf of its
Holders and that, notwithstanding anything to the contrary in this Agreement,
AFL shall be directly liable to each such Assignee (notwithstanding any
failure by the Servicer, any Backup Servicer or ARFC to perform its duties
and obligations hereunder or under any Servicing Agreement) and that each
such Assignee or the related Security Insurer may enforce the duties and
obligations of AFL under this Agreement against AFL for the benefit of the
related Assignee.
SECTION 6.12. NONPETITION COVENANT. AFL shall not petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against ARFC under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of ARFC or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of ARFC.
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Receivables Purchase Agreement and Assignment to be duly executed by
their respective officers as of the day and year first above written.
ARCADIA RECEIVABLES FINANCE CORP.,
as Purchaser
By:
--------------------------------
Name:
Title:
ARCADIA FINANCIAL LTD., as Seller
By:
--------------------------------
Name:
Title:
[Signature Page to Amended and Restated Receivables Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[Deemed Incorporated from each Assignment Agreement]
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF AFL
1. CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was
originated by AFL or by a Dealer for the retail sale of a Financed Vehicle in
the ordinary course of such Dealer's business and such Dealer had all
necessary licenses and permits to originate Receivables in the state where
such Dealer was located, was fully and properly executed by the parties
thereto, was purchased by AFL from such Dealer under an existing Dealer
Agreement with AFL and was validly assigned by such Dealer to AFL, (B)
contains customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for realization against the
collateral security, and (C) is a fully amortizing Receivable which provides
for level monthly payments (provided that the payment in the first calendar
month and the final calendar month of the life of the Receivable may be
minimally different from the level payment) which, if made when due, shall
fully amortize the Amount Financed over the original term.
2. NO FRAUD OR Misrepresentation. Each Receivable was originated
by AFL or by a Dealer and was sold by the Dealer to AFL without any fraud or
misrepresentation on the part of such Dealer in either case.
3. COMPLIANCE WITH LAW. All requirements of applicable federal,
state and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z," the Soldiers' and Sailors' Civil Relief Act of 1940, the Minnesota Motor
Vehicle Retail Installment Sales Act, and state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code and other consumer
credit laws and equal credit opportunity and disclosure laws) in respect of
all of the Receivables and each and every sale of Financed Vehicles, have
been complied with in all material respects, and each Receivable and the sale
of the Financed Vehicle evidenced by each Receivable complied at the time it
was originated or made and now complies in all material respects with all
applicable legal requirements.
4. ORIGINATION. Each Receivable was originated in the United
States.
5. BINDING OBLIGATION. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may
be modified by the application after its Cut-Off Date of the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended; and all parties to each
Receivable had full legal capacity to execute and deliver such Receivable and
all other documents related thereto and to grant the security interest
purported to be granted thereby.
6. NO GOVERNMENT OBLIGOR. No Obligor is the United States of
America or any State or any agency, department, subdivision or
instrumentality thereof.
7. OBLIGOR BANKRUPTCY. At the applicable Cut-Off Date, no
Obligor had been identified on the records of AFL as being the subject of a
current bankruptcy proceeding.
8. SCHEDULE OF RECEIVABLES. The information set forth in the
most recent Schedule of Receivables delivered to an Assignee was true and
correct in all material respects as of the close of business on the
applicable Cut-Off Date.
9. MARKING RECORDS. On each Assignment Date, the portions of the
Electronic Ledger relating to the Receivables assigned to ARFC on such date
will be clearly and unambiguously marked to show that the Receivables were
sold to ARFC pursuant to this Agreement and each Assignment Agreement. On
each date on which Receivables are transferred by ARFC to an Assignee, AFL
will cause the portion of the Electronic Ledger relating to the Receivables
to be clearly and unambiguously marked to show that the Receivables were sold
by ARFC to an Assignee under the terms of the relevant Related Document.
10. COMPUTER TAPE. The Computer Tape, computer diskette or other
electronic transmission made available by AFL to ARFC and its assignee on
each Assignment Date was complete and accurate as of the applicable Cut-Off
Date, and includes a description of the same Receivables that are described
in the Schedule of Receivables.
11. ADVERSE SELECTION. No selection procedures adverse to an
Assignee or any Holders were utilized in selecting the Receivables from those
receivables owned by AFL which met the selection criteria contained in such
Related Document.
12. CHATTEL PAPER. The Receivables constitute chattel paper
within the meaning of the UCC as in effect in the States of Minnesota and New
York.
13. ONE ORIGINAL. There is only one original executed copy of
each Receivable.
14. RECEIVABLE FILES COMPLETE. On the applicable Assignment Date
there exists a complete Receivable File for each Receivable transferred on
such date, and such Receivable File is in the possession of the relevant
Custodian on such Assignment Date. A Receivable File pertaining to each
Receivable will contain on the related Assignment Date (a) a fully executed
original of the Receivable, (b) a certificate of insurance, application form
for insurance signed by the Obligor or a signed representation letter from
the Obligor named in the Receivable pursuant to which the Obligor has agreed
to obtain physical damage insurance for the Financed Vehicle, or a documented
verbal confirmation by an insurance agent for the Obligor of a policy number
for an insurance policy for the Financed Vehicle, (c) the original Lien
Certificate or application therefor or a letter from the applicable Dealer
agreeing unconditionally to repurchase the related Receivable if the
certificate of title is not received by AFL within 180 days, and (d) a credit
application of the Obligor or a copy thereof. Each of such documents
which is required to be signed by the Obligor will have been signed by the
Obligor in the appropriate spaces. All blanks on any form will have been
properly filled in and each form will otherwise have been correctly prepared.
15. RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No provisions of any Receivable have been waived, altered
or modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified
as a result of application of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
16. LAWFUL ASSIGNMENT. No Receivable was originated in, or is
subject to the laws of, any jurisdiction, the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under any Assignment Agreement, Servicing Agreement or other
Related Document or pursuant to transfers of any Securities.
17. GOOD TITLE. No Receivable has been sold, transferred,
assigned or pledged by AFL to any Person other than ARFC unless the same was
released prior to the transfer of such Receivable to ARFC; immediately prior
to the conveyance of the Receivables to ARFC pursuant to any Assignment
Agreement, AFL had good and indefeasible title thereto, free and clear of any
Lien; and immediately upon the transfer thereof, ARFC shall have good and
indefeasible title to and will be the sole owner of each Receivable, free of
any Lien, other than Liens created by ARFC pursuant to a Related Document.
No Dealer has a participation in, or other right to receive, proceeds of any
Receivable. AFL has not taken any action to convey any right to any Person
that would result in such Person having a right to payments received under
the related Insurance Policies or the related Dealer Agreements or Dealer
Assignments or to payments due under such Receivables.
18. SECURITY INTEREST IN FINANCED VEHICLE. Each Receivable
creates a valid, binding and enforceable first priority security interest in
favor of AFL in the Financed Vehicle. The Lien Certificate and original
certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such
Financed Vehicle the Lien Certificate will be received within 180 days of the
related Assignment Date and will show, AFL named as the original secured
party under each Receivable as the holder of a first priority security
interest in such Financed Vehicle. With respect to each Receivable for which
the Lien Certificate has not yet been returned from the Registrar of Titles,
AFL has received written evidence from the related Dealer that such Lien
Certificate showing AFL as first lienholder has been applied for, or a letter
from the applicable Dealer agreeing unconditionally to repurchase the related
Receivable if the certificate of title is not received within 180 days.
AFL's security interest has been validly assigned by AFL to ARFC pursuant to
the applicable Assignment Agreement. Immediately after the sale, transfer
and assignment thereof by ARFC to an Assignee, each Receivable will be
secured by an enforceable and perfected first priority security interest in
the Financed Vehicle in favor of such Assignee as secured party, which
security interest is prior to all other Liens upon and security interests in
such Financed Vehicle which now exist or may hereafter arise or be created
(except, as to priority, for any lien for taxes, labor or materials affecting
a Financed Vehicle). As of the applicable Cut-Off Date there were no
Liens or claims for taxes, work, labor or materials affecting a Financed
Vehicle which are or may be Liens prior or equal to the lien of the related
Receivable.
19. ALL FILINGS MADE. All filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction to give ARFC a first
priority perfected lien on, or ownership interest in, the Receivables and the
Other Conveyed Property have been made, taken or performed.
20. NO IMPAIRMENT. AFL has not done anything to convey any right
to any Person that would result in such Person having a right to payments due
under a Receivable or otherwise to impair the rights of ARFC, any Assignee
and the related Trustee on behalf of its Holders in any Receivable or the
proceeds thereof.
21. RECEIVABLE NOT ASSUMABLE. No Receivable is assumable by
another Person in a manner which would release the Obligor thereof from such
Obligor's obligations to AFL with respect to such Receivable.
22. NO DEFENSES. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been
asserted or threatened with respect to any Receivable.
23. NO DEFAULT. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no waiver
of any of the foregoing. As of the applicable Cut-Off Date, no Financed
Vehicle has been repossessed.
24. INSURANCE. As of the Assignment Date for the related
Receivable, each Financed Vehicle is covered by a comprehensive and collision
insurance policy (i) in an amount at least equal to the lesser of (a) its
maximum insurable value or (b) the principal amount due from the Obligor
under the related Receivable, (ii) naming AFL as loss payee and (iii)
insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and collision
coverage. Each Receivable requires the Obligor to maintain physical loss and
damage insurance, naming AFL and its successors and assigns as additional
insured parties, and each Receivable permits the holder thereof to obtain
physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle was or had previously been
insured under a policy of Force-Placed Insurance on the related Cut-Off Date.
25. PAST DUE. As of the applicable Cut-Off Date, no Receivable
was more than 30 days past due and no funds have been advanced by AFL, ARFC,
the Servicer, any Dealer or anyone acting on behalf of any of them in order
to cause any Receivable to satisfy such requirement.
26. REMAINING PRINCIPAL BALANCE. As of the applicable Cut-Off
Date, each Receivable had a remaining principal balance equal to or greater
than $500.00 and the Principal Balance of each Receivable set forth in the
related Schedule of Receivables is true and accurate in all material respects.
27. ORIGINAL MATURITY. Each Receivable, and the Receivables as a
whole, had original maturities with the parameters represented and warranted
to by ARFC in the related Warehousing Document or Securitization Document.
If represented and warranted to by ARFC in the related Securitization
Document or Warehousing Document, each Receivable with an original maturity
of greater than 72 months is secured by a Financed Vehicle that is a new
automobile or an automobile that is less than one year old. If applicable,
no more than the percentage specified in the applicable Warehousing Document
or Securitization Document of the Receivables are Classic Receivables, or
satisfy any other applicable categorization with respect to Receivable type.
28. COMPLIANCE WITH UNDERWRITING GUIDELINES. Each Receivable was
originated pursuant to AFL's underwriting standards which have not, without
the prior written consent of any Person specified in a Related Document, been
materially changed since the Effective Date.
EXHIBIT A
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT dated as of ______________ _______, _______,
executed between Arcadia Receivables Finance Corp., a Delaware corporation, as
purchaser ("ARFC"), and Arcadia Financial Ltd., a Minnesota corporation, as
seller ("AFL").
W I T N E S S E T H
WHEREAS, ARFC and AFL are parties to the Amended and Restated
Receivables Purchase Agreement and Assignment dated as of July 21, 1998
(hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Purchase Agreement"); and
WHEREAS, pursuant to the Purchase Agreement, AFL wishes to convey
Receivables and Other Conveyed Property (as each such term is defined in the
Purchase Agreement) to ARFC hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, ARFC and AFL,
intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. All terms defined in the Purchase Agreement
(whether directly or by reference to other documents) and used herein shall
have such defined meanings when used herein, unless otherwise defined herein.
"Assignment Date" shall mean, with respect to the Receivables and
the related Other Conveyed Property being conveyed hereby, ______________ __,
_______.
"Cut-Off Date" shall mean, with respect to the Receivables and the
related Other Conveyed Property being conveyed hereby, the date specified in
the Related Document(s) conveying such Receivables to an Assignee.
2. CONVEYANCE OF RECEIVABLES. Subject to the conditions
specified in Section 2.2(b) of the Purchase Agreement and subject to the
mutually agreed upon terms contained in the Purchase Agreement, AFL hereby
sells, transfers, assigns and otherwise conveys to ARFC without recourse (but
without limitation of its obligations in the Purchase Agreement, or any other
Related Document), all of the right, title and interest of AFL, whether now
existing or hereafter acquired, in and to all accounts, contract rights,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and uncertificated securities consisting of, arising from or relating
to the Receivables listed on Schedule A hereto and the related Other Conveyed
Property.
3. COUNTERPARTS. This Assignment Agreement may be executed in
two or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
4. GOVERNING LAW. This Assignment Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused this Assignment
Agreement to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
ARCADIA RECEIVABLES FINANCE CORP.,
as Purchaser
By:
--------------------------------
Name:
Title:
ARCADIA FINANCIAL LTD., as Seller
By:
--------------------------------
Name:
Title:
[Signature Page to Amended and Restated Master Receivables Purchase Agreement
and Assignment]