Exhibit 10(b)
CONFIDENTIAL TREATMENT
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
Dated as of May 31, 2002
between
AFC FUNDING CORPORATION
and
AUTOMOTIVE FINANCE CORPORATION
TABLE OF CONTENTS
PAGE
ARTICLE I
AGREEMENT TO PURCHASE AND CONTRIBUTE
1.1. Agreement to Purchase and Sell.........................................-2-
1.2. Timing of Purchases....................................................-3-
1.3. Consideration for Purchases............................................-3-
1.4. Purchase and Sale Termination Date.....................................-3-
1.5. Intention of the Parties...............................................-3-
1.6. Certain Definitions....................................................-4-
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price..........................................-5-
ARTICLE III
CONTRIBUTION OF RECEIVABLES;
PAYMENT OF PURCHASE PRICE
3.1. Contribution of Receivables............................................-6-
3.2. Initial Purchase Price Payment.........................................-6-
3.3. Subsequent Purchase Price Payments.....................................-6-
3.4. Settlement as to Specific Receivables..................................-7-
3.5. Reconveyance of Receivables............................................-8-
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to Initial Purchase...............................-8-
4.2. Certification as to Representations and Warranties.....................-9-
4.3. Conditions Precedent to Effectiveness of this Agreement................-9-
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
5.1. Organization and Good Standing........................................-11-
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TABLE OF CONTENTS
(continued)
PAGE
5.2. Due Qualification.....................................................-11-
5.3. Power and Authority; Due Authorization................................-11-
5.4. Valid Sale or Contribution; Binding Obligations.......................-12-
5.5. No Violation..........................................................-12-
5.6. Proceedings...........................................................-12-
5.7. Bulk Sales Act........................................................-12-
5.8. Government Approvals..................................................-13-
5.9. Financial Condition...................................................-13-
5.10. Margin Regulations...................................................-13-
5.11. Quality of Title.....................................................-13-
5.12. Accuracy of Information..............................................-13-
5.13. Offices..............................................................-14-
5.14. Trade Names..........................................................-14-
5.15. Taxes................................................................-14-
5.16. Licenses and Labor Controversies.....................................-14-
5.17. Compliance with Applicable Laws......................................-14-
5.18. Reliance on Separate Legal Identity..................................-15-
5.19. Purchase Price.......................................................-15-
5.20. Eligibility of Receivables...........................................-15-
5.21. Perfection Representations...........................................-15-
5.22. Credit and Collection Policy.........................................-15-
5.23. Transaction Documents................................................-15-
ARTICLE VI
COVENANTS OF THE ORIGINATOR
6.1. Affirmative Covenants.................................................-15-
6.2. Reporting Requirements................................................-18-
6.3. Negative Covenants....................................................-19-
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS INRESPECT OF THE RECEIVABLES
7.1. Rights of the Company.................................................-20-
7.2. Responsibilities of the Originator....................................-20-
7.3. Further Action Evidencing Purchases...................................-21-
7.4. Application of Collections............................................-21-
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
8.1. Purchase and Sale Termination Events..................................-22-
8.2. Remedies..............................................................-23-
ARTICLE IX
INDEMNIFICATION
9.1. Indemnities by the Originator.........................................-24-
ARTICLE X
MISCELLANEOUS
10.1. Amendments, etc......................................................-27-
10.2. Notices, etc.........................................................-27-
10.3. No Waiver; Cumulative Remedies.......................................-27-
10.4. Binding Effect; Assignability........................................-27-
10.5. Governing Law........................................................-28-
10.6. Costs, Expenses and Taxes............................................-28-
10.7. Submission to Jurisdiction...........................................-28-
10.8. Waiver of Jury Trial.................................................-29-
10.9. Captions and Cross References; Incorporation by Reference............-29-
10.10. Execution in Counterparts...........................................-29-
10.11. Acknowledgment and Agreement........................................-29-
SCHEDULES
SCHEDULE 1.1(b) Excluded Receivables
SCHEDULE 5.13 Office Locations
SCHEDULE 5.14 Trade Names
SCHEDULE 5.15 Tax Matters
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EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Form of Company Note
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AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (as amended,
supplemented or modified from time to time, this "AGREEMENT"), dated as of May
31, 2002, is between AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation (the
"ORIGINATOR"), as seller, and AFC FUNDING CORPORATION, an Indiana corporation
(the "COMPANY"), as purchaser.
Upon the effectiveness of this Agreement, the terms and provisions of
the Purchase and Sale Agreement dated as of December 31, 1996 (as amended or
otherwise modified prior to the date hereof, the "ORIGINAL PURCHASE AND SALE
AGREEMENT") shall, subject to this paragraph, be superseded hereby in their
entirety. Notwithstanding the amendment and restatement of the Original Purchase
and Sale Agreement by this Agreement, the Originator shall continue to be liable
for all unpaid amounts accrued to the date hereof and owing by it under the
Original Purchase and Sale Agreement and all agreements thereunder to indemnify
such parties in connection with events or conditions arising or existing prior
to the date that the conditions are satisfied in SECTION 4.3 hereof (the
"AMENDED AND RESTATED CLOSING DATE"). Upon the effectiveness of this Agreement,
each reference to the Original Purchase and Sale Agreement in any other
document, instrument or agreement shall mean and be a reference to this
Agreement.
DEFINITIONS
Unless otherwise indicated in this Agreement, certain terms that are
capitalized and used throughout this Agreement are defined in EXHIBIT I to the
Amended and Restated Receivables Purchase Agreement of even date herewith (as
amended, supplemented or otherwise modified from time to time, the "RECEIVABLES
PURCHASE AGREEMENT"), among the Company, the Originator, as initial Servicer,
Fairway Finance Corporation and such other entities from time to time as may
become purchasers thereunder as purchasers (together with their successors and
assigns, the "PURCHASERS"), and BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP., as the initial agent
and as purchaser agent for Fairway Finance Corporation (together with its
successors and assigns, the "AGENT") and XL Capital Assurance Inc., as Insurer
(the "INSURER").
BACKGROUND
1. The Company is a special purpose corporation, all of the capital
stock of which is wholly-owned by the Originator.
2. On the Original Closing Date (as defined below), the Originator
transferred certain Receivables and Related Rights to the Company as a capital
contribution to the Company.
3. In order to finance its business, the Originator wishes to sell
certain Receivables and Related Rights from time to time to the Company, and the
Company is willing, on the terms and subject to the conditions set forth herein,
to purchase such Receivables and Related Rights from the Originator.
4. The Company intends to sell to Purchasers an undivided variable
percentage interest in its Receivables and Related Rights pursuant to the
Receivables Purchase Agreement in order to finance its purchases of certain
Receivables and Related Rights hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND CONTRIBUTE
1.1. AGREEMENT TO PURCHASE AND SELL. On the terms and subject to the
conditions set forth in this Agreement (including ARTICLE IV), and in
consideration of the Purchase Price, the Originator agrees to sell to the
Company, and does hereby sell to the Company, and the Company agrees to purchase
from the Originator, and does hereby purchase from the Originator, without
recourse and without regard to collectibility, all of the Originator's right,
title and interest in and to:
(a) each Receivable of the Originator that existed and was owing to the
Originator as of the opening of the Originator's business on December 31, 1996
(the "ORIGINAL CLOSING DATE") (other than the Receivables and Related Rights
contributed by the Originator to the Company pursuant to SECTION 3.1 (the
"CONTRIBUTED RECEIVABLES"));
(b) each Receivable created or originated by the Originator from the
opening of the Originator's business on the Original Closing Date to and
including the Purchase and Sale Termination Date (other than any Excluded
Receivables identified from time on SCHEDULE 1.1(b) and consented to by the
Agent and the Insurer, as such Schedule may be amended, supplemented or modified
from time to time with the consent of the Agent and the Insurer);
(c) all rights to, but not the obligations under, all Related Security
(other than with respect to the Contributed Receivables);
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all proceeds thereof (as defined in the UCC) received or applied on
or after the Original Closing Date including, without limitation, all funds
which either are received by the Originator, the Company or the Servicer from or
on behalf of the Obligors in payment of any
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amounts owed (including, without limitation, finance charges, interest and all
other charges) in respect of any Receivable (other than Contributed
Receivables), or that are (or are to be) applied to amounts owed in respect of
any 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 any such Receivable that are (or are to be) applied
thereto).
All purchases and contributions hereunder shall be made without recourse, but
shall be made pursuant to and in reliance upon the representations, warranties
and covenants of the Originator, in its capacity as seller and contributor, set
forth in each Transaction Document. The Company's foregoing commitment to
purchase such Receivables and the proceeds and rights described in SUBSECTIONS
(c) through (f) of this SECTION 1.1 (collectively, including such item relating
to Contributed Receivables, the "RELATED RIGHTS") is herein called the "PURCHASE
FACILITY."
1.2. TIMING OF PURCHASES.
(a) ORIGINAL CLOSING DATE PURCHASES. The Originator's entire right,
title and interest in (i) each Receivable that existed and was owing to the
Originator as of the opening of the Originator's business on the Original
Closing Date (other than Contributed Receivables), and (ii) all Related Rights
with respect thereto was sold to the Company on the Original Closing Date.
(b) REGULAR PURCHASES. After the Original Closing Date, each Receivable
created or originated by the Originator and all Related Rights shall be
purchased and owned by the Company (without any further action) upon the
creation or origination of such Receivable (other than any Excluded Receivables
created or originated by the Originator from the opening of the Originator's
business on the Amended and Restated Closing Date to and including the Purchase
and Sale Termination Date).
1.3. CONSIDERATION FOR PURCHASES. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to make all Purchase
Price payments to the Originator.
1.4. PURCHASE AND SALE TERMINATION DATE. The "PURCHASE AND SALE
TERMINATION DATE" shall be the earlier to occur of (a) the date of the
termination of this Agreement pursuant to SECTION 8.2 and (b) the Payment Date
immediately following the day on which the Originator shall have given notice to
the Company that the Originator desires to terminate this Agreement.
As used herein, "PAYMENT DATE" means (i) the Original Closing Date and
(ii) each Business Day thereafter that the Originator is open for business.
1.5. INTENTION OF THE PARTIES. It is the express intent of the parties
hereto that the transfers of the Receivables (other than Contributed
Receivables) and Related Rights (other than those relating to the Contributed
Receivables) by the Originator to the Company, as contemplated by this Agreement
be, and be treated as, sales and not as secured loans secured by the Receivables
and
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Related Rights. If, however, notwithstanding the intent of the parties, such
transactions are deemed to be loans, the Originator hereby grants to the Company
a security interest in all of the Originator's right, title and interest in and
to the Receivables and the Related Rights now existing and hereafter created,
all monies due or to become due and all amounts received with respect thereto,
and all proceeds thereof, to secure all of the Originator's obligations
hereunder.
1.6. CERTAIN DEFINITIONS. As used in this Agreement, the terms
"Material Adverse Effect" and "Solvent" are defined as follows:
"MATERIAL ADVERSE EFFECT" means, with respect to any event or
circumstance, a material adverse effect on:
(i) the business, operations, property or financial condition
of the Originator;
(ii) the ability of the Originator or the Servicer (if it is the
Originator) to perform its obligations under the Receivables Purchase
Agreement or any other Transaction Document to which it is a party or
the performance of any such obligations;
(iii) the validity or enforceability of the Receivables Purchase
Agreement or any other Transaction Document;
(iv) the status, existence, perfection, priority or
enforceability of the Company's interest in the Receivables or Related
Rights; or
(v) the collectibility of the Receivables.
"SOLVENT" means, with respect to any Person at any time, a
condition under which:
(i) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater than
such Person's total liabilities (including contingent and unliquidated
liabilities) at such time;
(ii) such Person is and shall continue to be able to pay all of
its liabilities as such liabilities mature; and
(iii) such Person does not have unreasonably small capital with
which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light of all the
facts and circumstances then existing,
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represents the amount which can reasonably be expected to become an
actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may
be realized within a reasonable time either through collection or sale
of such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such
asset from an interested buyer who is willing to purchase such asset
under ordinary selling conditions; and
(D) the "present fair saleable value" of an asset means the
amount which can be obtained if such asset is sold with reasonable
promptness in an arm's length transaction in an existing and not
theoretical market.
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. CALCULATION OF PURCHASE PRICE. On each Servicer Report Date, the
Servicer shall deliver to the Company, the Agent, the Insurer and the Originator
(if the Servicer is other than the Originator) a report in substantially the
form of EXHIBIT A (each such report being herein called a "PURCHASE REPORT")
with respect to the matters set forth therein and the Company's purchases of
Receivables from the Originator
(a) that were made on the Original Closing Date (in the case of the
Purchase Report delivered on the Original Closing Date), or
(b) that were made during the period commencing on the Servicer Report
Date immediately preceding such Servicer Report Date to (but not including) such
Servicer Report Date (in the case of each subsequent Purchase Report).
The "PURCHASE PRICE" (to be paid to the Originator in accordance with the terms
of ARTICLE III) for the Receivables and the Related Rights that are purchased
hereunder shall be the fair market value of the Receivables as agreed to from
time to time by the Company and the Originator.
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CONFIDENTIAL TREATMENT
ARTICLE III
CONTRIBUTION OF RECEIVABLES;
PAYMENT OF PURCHASE PRICE
3.1. CONTRIBUTION OF RECEIVABLES. On the Original Closing Date, the
Originator contributed to the capital of the Company, Receivables and Related
Rights with respect thereto consisting of each Receivable of the Originator that
existed and was owing to the Originator on the Original Closing Date that as of
such date was not an Eligible Receivable and Receivables that existed and were
owing to the Originator on the Original Closing Date that as of such date were
Eligible Receivables, beginning with the oldest of such Eligible Receivables and
continuing chronologically thereafter, and all or an undivided interest in the
most recent of such contributed Eligible Receivables such that the aggregate
Outstanding Balance of all such contributed Receivables [ * ].
3.2. INITIAL PURCHASE PRICE PAYMENT. On the terms and subject to the
conditions set forth in this Agreement, the Company agreed to pay to the
Originator the Purchase Price for the purchase of Receivables made on the
Original Closing Date, [ * ].
3.3. SUBSEQUENT PURCHASE PRICE PAYMENTS. On each Business Day falling
after the Original Closing Date and on or prior to the Purchase and Sale
Termination Date, on the terms and subject to the conditions set forth in this
Agreement, the Company shall pay to the Originator the Purchase Price for the
Receivables sold by the Originator to the Company on such Business Day, in cash,
to the extent funds are available to make such payment and such payment is
permitted by paragraph (o) of Exhibit IV to the Receivables Purchase Agreement,
[ * ].
Servicer shall make all appropriate record keeping entries with respect
to the Company Note or otherwise to reflect the foregoing payments and
adjustments pursuant to SECTION 3.4, and Servicer's books and records shall
constitute rebuttable presumptive evidence of the principal amount of and
accrued interest on the Company Note at any time. Furthermore, Servicer shall
hold the Company Note for the benefit of the Originator, and all payments under
the Company Note shall be made to the Servicer for the account of the applicable
payee thereof. The Originator hereby irrevocably authorizes Servicer to ▇▇▇▇ the
Company Note "CANCELLED" and to return the Company Note to the Company upon the
final payment thereof after the occurrence of the Purchase and Sale Termination
Date.
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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.
3.4. SETTLEMENT AS TO SPECIFIC RECEIVABLES AND DILUTION.
(a) If on the day of purchase or contribution of any Receivable from
the Originator hereunder, any of the representations or warranties set forth in
SECTION 5.4, 5.11 or 5.20 is not true with respect to such Receivable or as a
result of any action or inaction of the Originator, on any day any of the
representations or warranties set forth in SECTION 5.4, 5.11 or 5.20 is no
longer true with respect to such a Receivable, then the Purchase Price with
respect to the Receivables purchased hereunder shall be reduced by an amount
equal to the Outstanding Balance of such Receivable and shall be accounted to
the Originator as provided in SUBSECTION (c) below; PROVIDED, that if the
Company thereafter receives payment on account of Collections due with respect
to such Receivable, the Company promptly shall deliver such funds to the
Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
purchased or contributed hereunder is reduced or adjusted as a result of any
discount, rebate or other adjustment made by the Originator, Company or Servicer
or any setoff or dispute between the Company, the Originator or the Servicer and
an Obligor, then the Purchase Price with respect to the Receivables purchased
hereunder shall be reduced by the amount of such reduction and shall be
accounted to the Originator as provided in SUBSECTION (c) below.
(c) Any reduction in the Purchase Price of the Receivables pursuant
to SUBSECTION (a) or (b) above shall be applied as a credit for the account of
the Company against the Purchase Price of Receivables subsequently purchased by
the Company from the Originator hereunder; PROVIDED, HOWEVER if there have been
no purchases of Receivables (or insufficiently large purchases of Receivables)
to create a Purchase Price sufficient to so apply such credit against, the
amount of such credit
(i) shall be paid in cash to the Company by the Originator in
the manner and for application as described in the following proviso,
or
(ii) shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under, the Company Note,
to the extent that such payment is permitted under paragraph (o) of
Exhibit IV of the Receivables Purchase Agreement;
PROVIDED, FURTHER, that at any time (y) when a Termination Event or Unmatured
Termination Event exists or (z) on or after the Termination Date, the amount of
any such credit shall be paid by the Originator to the Company by deposit in
immediately available funds into the Collection Account for application by
Servicer to the same extent as if Collections of the applicable Receivable in
such amount had actually been received on such date.
(d) Each Purchase Report (other than the Purchase Report delivered on
the Original Closing Date) shall include, in respect of the Receivables
previously generated by the Originator (including the Contributed Receivables),
a calculation of the aggregate reductions described in SUBSECTION (a) or (b)
relating to such Receivables since the last Purchase Report delivered hereunder.
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3.5. RECONVEYANCE OF RECEIVABLES. In the event that the Originator
has paid to the Company the full Outstanding Balance of any Receivable pursuant
to SECTION 3.4, the Company shall reconvey such Receivable to the Originator,
without representation or warranty, but free and clear of all liens created by
the Company.
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial purchase
under the Original Purchase and Sale Agreement was subject to the condition
precedent that the Company shall have received, on or before the Original
Closing Date, the following, each (unless otherwise indicated) dated the
Original Closing Date, and each in form, substance and date satisfactory to the
Company:
(a) A copy of the resolutions of the Board of Directors of the
Originator approving the Transaction Documents to be delivered by it and the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of the Originator;
(b) A Certificate of Existence for the Originator issued as of a
recent date by the Indiana Secretary of State;
(c) A certificate of the Secretary or Assistant Secretary of the
Originator certifying the names and true signatures of the officers authorized
on the Originator's behalf to sign the Transaction Documents to be delivered by
it (on which certificate the Company and the Servicer (if other than the
Originator) may conclusively rely until such time as the Company and the
Servicer shall receive from the Originator a revised certificate meeting the
requirements of this SUBSECTION (c));
(d) The articles of incorporation of the Originator together with
a copy of the by-laws of the Originator, each duly certified by the Secretary or
an Assistant Secretary of the Originator;
(e) Copies of the proper financing statements (Form UCC-1) that have
been duly executed and name the Originator as the assignor and the Company as
the assignee (and Purchaser as assignee of the Company) of the Receivables
generated by the Originator and Related Rights or other, similar instruments or
documents, as may be necessary or, in Servicer's or the Agent's opinion,
desirable under the UCC of all appropriate jurisdictions or any comparable law
of all appropriate jurisdictions to perfect the Company's ownership interest in
all Receivables and Related Rights in which an ownership interest may be
transferred to it hereunder;
(f) A written search report from a Person satisfactory to Servicer
and the Agent listing all effective financing statements that name the
Originator as debtor or assignor and that are filed in the jurisdictions in
which filings were made pursuant to the foregoing SUBSECTION (e), together with
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copies of such financing statements (none of which, except for those described
in the foregoing SUBSECTION (e), shall cover any Receivable or any Related
Right), and tax and judgment lien search reports from a Person satisfactory to
Servicer and the Agent showing no evidence of such liens filed against the
Originator;
(g) Favorable opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., general counsel
to the Originator and Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇, special counsel to the
Originator, concerning enforceability of this Agreement and certain other
matters, and Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇, concerning certain bankruptcy matters,
and such other opinions as the Company may reasonably request;
(h) Evidence (i) of the execution and delivery by each of the parties
thereto of each of the other Transaction Documents to be executed and delivered
in connection herewith and (ii) that each of the conditions precedent to the
execution, delivery and effectiveness of such other Transaction Documents has
been satisfied to the Company's satisfaction; and
(i) A certificate from an officer of the Originator to the effect
that Servicer and the Originator have placed on the most recent, and have taken
all steps reasonably necessary to ensure that there shall be placed on
subsequent, summary master control data processing reports the following legend
(or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE
BEEN SOLD TO AFC FUNDING CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT,
DATED AS OF DECEMBER 31, 1996, BETWEEN AUTOMOTIVE FINANCE CORPORATION AND AFC
FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS
BEEN GRANTED TO POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF DECEMBER 31, 1996, AMONG AFC FUNDING
CORPORATION, AS SELLER, AUTOMOTIVE FINANCE CORPORATION, AS SERVICER, POOLED
ACCOUNTS RECEIVABLE CAPITAL CORPORATION, AS PURCHASER AND ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECURITIES INC., AS AGENT."
4.2. CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. The
Originator, by accepting the Purchase Price (including by the increase in the
outstanding balance of the Company Note) related to each purchase of Receivables
and Related Rights shall be deemed to have certified that the representations
and warranties contained in ARTICLE V are true and correct on and as of such
day, with the same effect as though made on and as of such day.
4.3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT. This
Agreement shall become effective when each of the conditions precedent in this
SECTION 4.3 has been satisfied on or before the Amended and Restated Closing
Date. The effectiveness of this Agreement shall be subject to the condition
precedent that the Company, the Agent and the Insurer shall have received, on or
before the Amended and Restated Closing Date, the following, each (unless
otherwise indicated) dated as of the date hereof, and each in form and substance
satisfactory to the Company, the Agent and the Insurer:
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(a) A copy of the resolutions of the Board of Directors of the
Originator approving the Transaction Documents to be delivered by it and the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of the Originator;
(b) A Certificate of Existence for the Originator issued as of a
recent date by the Indiana Secretary of State;
(c) A certificate of the Secretary or Assistant Secretary of the
Originator certifying the names and true signatures of the officers authorized
on the Originator's behalf to sign the Transaction Documents to be delivered by
it (on which certificate the Company, the Agent, the Insurer and the Servicer
(if other than the Originator) may conclusively rely until such time as the
Company, the Agent, the Insurer and the Servicer shall receive from the
Originator a revised certificate meeting the requirements of this SUBSECTION
(c));
(d) The articles of incorporation of the Originator together with a
copy of the by-laws of the Originator, each duly certified as of the Amended and
Restated Closing Date by the Secretary or an Assistant Secretary of the
Originator;
(e) Copies of the proper financing statements (Form UCC-1) that are
suitable for filing and name the Originator as the assignor and the Company as
the assignee (and the Agent (for the benefit of the Secured Parties) as assignee
of the Company) of the Receivables generated by the Originator and Related
Rights or other, similar instruments or documents, as may be necessary or, in
Servicer's, the Insurer's or the Agent's opinion, desirable under the UCC of all
appropriate jurisdictions or any comparable law of all appropriate jurisdictions
to perfect the Company's ownership interest in all Receivables and Related
Rights in which an ownership interest may be transferred to it hereunder;
(f) A written search report as of a recent date from a Person
satisfactory to Servicer, the Insurer and the Agent listing all effective
financing statements that name the Originator as debtor or assignor and that are
filed in the jurisdictions in which filings were made pursuant to the foregoing
SUBSECTION (e), together with copies of such financing statements (none of
which, except for those described in the foregoing SUBSECTION (e), shall cover
any Receivable or any Related Right), and tax and judgment lien search reports
from a Person satisfactory to Servicer, the Insurer and the Agent showing no
evidence of such liens filed against the Originator;
(g) Favorable opinions of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel to
the Originator and Ice ▇▇▇▇▇▇, special counsel to the Originator, concerning
enforceability of this Agreement and certain other matters, and Ice ▇▇▇▇▇▇,
concerning certain bankruptcy matters, and such other opinions as the Company,
the Agent or the Insurer may reasonably request;
(h) Evidence (i) of the execution and delivery by each of the parties
thereto of each of the other Transaction Documents to be executed and delivered
in connection herewith and (ii) that each of the conditions precedent to the
execution, delivery and effectiveness of such other
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Transaction Documents has been satisfied to the Company's, the Agent's and the
Insurer's satisfaction; and
(i) A certificate from an officer of the Originator to the effect that
Servicer and the Originator have placed on the most recent, and have taken all
steps reasonably necessary to ensure that there shall be placed on subsequent,
summary master control data processing reports the following legend (or the
substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN
SOLD TO AFC FUNDING CORPORATION PURSUANT TO AN AMENDED AND RESTATED PURCHASE AND
SALE AGREEMENT, DATED AS OF MAY 31, 2002 BETWEEN AUTOMOTIVE FINANCE CORPORATION
AND AFC FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN
HAS BEEN GRANTED TO THE AGENT FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT
TO AN 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 THEREUNDER, BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP. AS AGENT AND
PURCHASER AGENT FOR FAIRWAY FINANCE CORPORATION AND XL CAPITAL ASSURANCE INC.,
AS INSURER."
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
In order to induce the Company to enter into this Agreement and to make
purchases and accept contributions hereunder, the Originator, in its capacity as
seller under this Agreement, hereby makes the representations and warranties set
forth in this ARTICLE V.
5.1. ORGANIZATION AND GOOD STANDING. The Originator has been duly
incorporated and in existence as a corporation under the laws of the State of
Indiana, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted.
5.2. DUE QUALIFICATION. The Originator is duly licensed or qualified
to do business as a foreign corporation in good standing in the jurisdiction
where its chief executive office and principal place of business are located and
in all other jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such licensing or qualification except
where the failure to be so licensed or qualified has not had and could not
reasonably be expected to have a Material Adverse Effect.
5.3. POWER AND AUTHORITY; DUE AUTHORIZATION. The Originator has (a)
all necessary corporate power, authority and legal right (i) to execute and
deliver, and perform its obligations under, each
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Transaction Document to which it is a party, as seller, and (ii) to generate,
own, sell, contribute and assign Receivables and Related Rights on the terms and
subject to the conditions herein and therein provided; and (b) duly authorized
such execution and delivery and such sale, contribution and assignment and the
performance of such obligations by all necessary corporate action.
5.4. VALID SALE OR CONTRIBUTION; BINDING OBLIGATIONS. Each sale or
contribution, as the case may be, of Receivables and Related Rights made by the
Originator pursuant to this Agreement shall constitute a valid sale or
contribution, as the case may be, transfer, and assignment thereof to the
Company, enforceable against creditors of, and purchasers from, the Originator;
and this Agreement constitutes, and each other Transaction Document to be signed
by the Originator, as seller, when duly executed and delivered, will constitute,
a legal, valid, and binding obligation of the Originator, enforceable 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 such enforceability is considered in a proceeding in
equity or at law.
5.5. NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and the other Transaction Documents to which the Originator is
a party as seller, and the fulfillment of the terms hereof or thereof will not
(a) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default under
(i) the Originator's articles of incorporation or by-laws, or (ii) any
indenture, loan agreement, mortgage, deed of trust, or other agreement or
instrument to which it is a party or by which it is bound, (b) result in the
creation or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, loan agreement, mortgage, deed of trust, or
other agreement or instrument, other than the Transaction Documents, or (c)
violate any law or any order, writ, judgment, award, injunction, decree, rule,
or regulation applicable to it or its properties, where, in the cases of ITEMS
(a)(ii), (b) or (c), such conflict, breach, default, Adverse Claim or violation
has had or could reasonably be expected to have a Material Adverse Effect.
5.6. PROCEEDINGS. (i) There is no litigation, proceeding or
investigation pending or, to the Originator's knowledge threatened, before any
Government Authority or arbitrator (a) asserting the invalidity of any
Transaction Document to which the Originator is a party as seller, (b) seeking
to prevent the sale or contribution of Receivables and Related Rights to the
Company or the consummation of any of the other transactions contemplated by any
Transaction Document to which the Originator is a party as seller, or (c)
seeking any determination or ruling that could reasonably be expected to have a
Material Adverse Effect. (ii) The Originator is not subject to any order,
judgment, decree, injunction, stipulation or consent order that could reasonably
be expected to have a Material Adverse Effect.
5.7. BULK SALES ACT. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
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CONFIDENTIAL TREATMENT
5.8. GOVERNMENT APPROVALS. Except for the filing of the UCC financing
statements referred to in ARTICLE IV, all of which, at the time required in
ARTICLE IV, shall have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the Originator's
due execution, delivery and performance of any Transaction Document to which it
is a party, as seller.
5.9. FINANCIAL CONDITION.
(a) On the date hereof, and on the date of each sale of Receivables
by the Originator to the Company (both before and after giving effect to such
sale), the Originator shall be Solvent.
(b) The consolidated balance sheets of the Originator and its
consolidated subsidiaries as of December 31, 2001, and the related statements of
income and shareholders' equity of the Originator and its consolidated
subsidiaries for the fiscal year then ended certified by the Originator's
independent accountants, copies of which have been furnished to the Company,
present fairly the consolidated financial position of the Originator and its
consolidated subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles consistently applied; and since
such date no event has occurred that has had, or is reasonably likely to have, a
Material Adverse Effect.
5.10. MARGIN REGULATIONS. No use of any funds acquired by the
Originator under this Agreement will conflict with or contravene any of
Regulations G, T, U and X promulgated by the Board of Governors of the Federal
Reserve System from time to time.
5.11. QUALITY OF TITLE.
(a) Each Receivable (together with the Related Rights) which is to be
sold or contributed to the Company hereunder is or shall be owned by the
Originator, free and clear of any Adverse Claim excepting only Permitted Liens.
Whenever the Company makes a purchase, or accepts a contribution, hereunder, it
shall have acquired a valid and perfected ownership interest (free and clear of
any Adverse Claim, excepting only Permitted Liens) in all Receivables generated
by the Originator and all Collections related thereto, and in the Originator's
entire right, title and interest in and to the other Related Rights with respect
thereto.
[ * ].
5.12. ACCURACY OF INFORMATION. No factual written information furnished
or to be furnished in writing by the Originator, as seller, to the Company, the
Purchasers, the Insurer or the Agent for purposes of or in connection with any
Transaction Document or any transaction contemplated hereby or thereby
(including the information contained in any Purchase Report) is, and no other
such factual
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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.
written information hereafter furnished (and prepared) by the Originator, as
seller, to the Company, the Purchasers, the Insurer or the Agent pursuant to or
in connection with any Transaction Document, taken as a whole, will be
inaccurate in any material respect as of the date it was furnished or (except as
otherwise disclosed to the Company at or prior to such time) as of the date as
of which such information is dated or certified, or shall contain any material
misstatement of fact or omitted or will omit to state any material fact
necessary to make such information, in the light of the circumstances under
which any statement therein was made, not materially misleading on the date as
of which such information is dated or certified.
5.13. OFFICES. The Originator's principal place of business and
chief executive office is located at the address set forth under the
Originator's signature hereto, and the offices where the Originator keeps all
its books, records and documents evidencing the Receivables, the related
Contracts and all other agreements related to such Receivables are located at
the addresses specified on SCHEDULE 5.13 (or at such other locations, notified
to Servicer (if other than the Originator), the Insurer and the Agent in
accordance with SECTION 6.1(f), in jurisdictions where all action required by
SECTION 7.3 has been taken and completed).
5.14. TRADE NAMES. Except as disclosed on SCHEDULE 5.14, the Originator
does not use any trade name other than its actual corporate name. From and after
the date that fell six years before the date hereof, the Originator has not been
known by any legal name or trade name other than its corporate name as of the
date hereof, nor has the Originator been the subject of any merger or other
corporate reorganization except, in each case, as disclosed on SCHEDULE 5.14.
5.15. TAXES. Except as set forth on SCHEDULE 5.15 the Originator has
filed all 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, except
any such taxes which are not yet delinquent or are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles shall have been set
aside on its books.
5.16. LICENSES AND LABOR CONTROVERSIES.
(a) The Originator has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
its properties or to the conduct of its business, which violation or failure to
obtain would be reasonably likely to have a Material Adverse Effect; and
(b) There are no labor controversies pending against the Originator
that have had (or are reasonably likely to have) a Material Adverse Effect.
5.17. COMPLIANCE WITH APPLICABLE LAWS. The Originator is in compliance,
in all material respects, with the requirements of (i) all applicable laws,
rules, regulations, and orders of all governmental authorities (including,
without limitation, Regulation Z, laws, rules and regulations relating to usury,
truth in lending, fair credit billing, fair credit reporting, equal credit
opportunity,
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CONFIDENTIAL TREATMENT
fair debt collection practices and privacy and all other consumer laws
applicable to the Receivables and related Contracts) (excluding with respect to
environmental matters which are covered by CLAUSE (ii)), and (ii) to the best of
its knowledge, all applicable environmental laws, rules, regulations and orders
of all governmental authorities.
5.18. RELIANCE ON SEPARATE LEGAL IDENTITY. The Originator is aware that
Purchasers, the Insurer and the Agent are entering into the Transaction
Documents to which they are parties in reliance upon the Company's identity as a
legal entity separate from the Originator.
5.19. PURCHASE PRICE. The purchase price payable by the Company to the
Originator hereunder is intended by the Originator and Company to be consistent
with the terms that would be obtained in an arm's length sale. The Servicing Fee
payable to the Originator is intended to be consistent with terms that would be
obtained in an arm's length servicing arrangement.
5.20. ELIGIBILITY OF RECEIVABLES. Unless otherwise identified to the
Company on the date of the purchase hereunder, each Receivable purchased
hereunder is on the date of purchase an Eligible Receivable and, so long as the
Originator is the Servicer, each Pool Receivable included as an Eligible
Receivable in the calculation of Net Receivables Pool Balance is an Eligible
Receivable as of the date of such calculation.
5.21. PERFECTION REPRESENTATIONS. [ * ].
5.22. CREDIT AND COLLECTION POLICY. The Originator has complied in
all material respects with the Credit and Collection Policy with regard to each
Receivable prior to its transfer hereunder.
5.23. TRANSACTION DOCUMENTS. The Originator has complied in all
material respects with all terms, covenants and agreements contained in this
Agreement and the other Transaction Documents applicable to it prior to the
Amended and Restated Closing Date and will comply in all material respects from
and after the Amended and Restated Closing Date with all terms, covenants and
agreements contained in this Agreement and the other Transaction Documents
applicable to it.
ARTICLE VI
COVENANTS OF THE ORIGINATOR
6.1. AFFIRMATIVE COVENANTS. From the date hereof until the first day
following the Final Payout Date, the Originator will, unless the Company and the
Control Party (or if the Control Party is the Majority Purchasers, the Agent)
shall otherwise consent in writing:
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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.
(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects with
all applicable laws, rules, regulations and orders, including those with respect
to the Receivables generated by it and the related Contracts and other
agreements related thereto.
(b) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualification could
reasonably be expected to have a Material Adverse Effect.
(c) RECEIVABLES REVIEW. (i) From time to time during regular
business hours, upon reasonable prior notice as requested by the Company, the
Insurer or the Agent, permit the Company, the Agent or the Control Party, or
their respective agents or representatives, (A) 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 Originator relating to the Receivables and Related Rights, including,
without limitation, the related Contracts, and (B) to visit the Originator's
offices and properties for the purpose of examining such materials described in
the foregoing CLAUSE (A) and to discuss matters relating to the Receivables and
Related Rights or the Originator's performance hereunder or under the Contracts
with any of the officers or employees of the Originator having knowledge of such
matters; and (ii) without limiting the provisions of CLAUSE (i) next above, from
time to time on request of the Insurer or the Agent permit certified public
accountants or other auditors acceptable to the Insurer or the Agent, as
applicable to conduct a review of its books and records with respect to the
Receivables and Related Rights; PROVIDED that so long as no Purchase and Sale
Termination Event or Unmatured Termination Event has occurred the Company, the
Agent, the Control Party, certified public accountants or other auditors
acceptable to the Control Party (or if the Control Party is the Majority
Purchasers, the Agent), as applicable, shall not conduct more than two such
examinations or reviews, as applicable, 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.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain an ability to
recreate records evidencing the Receivables in the event of the destruction of
the originals thereof.
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. At
its expense timely and fully perform and comply with all provisions, covenants
and other promises required to be observed by it under the related Contracts and
all other agreements related to the Receivables and Related Rights.
(f) LOCATION OF RECORDS, ETC.. (i) Keep its principal place of
business and chief executive office, and the offices where it keeps its records
concerning or related to Receivables and Related Rights, at the address(es)
referred to in SCHEDULE 5.13 or, upon 30 days' prior written notice to the
Company, the Insurer and the Agent, at such other locations in jurisdictions
where all action required
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by SECTION 7.3 shall have been taken and completed, and (ii) provide the
Company, the Insurer and the Agent with at least 60 days' written notice prior
to making any change in its name, jurisdiction of organization or location or
making any other change in its identity or corporate structure (including a
merger) which could render any UCC financing statement filed in connection with
this Agreement "seriously misleading" as such term is used in the UCC (which
written notice sets forth the applicable change and the effective date thereof).
(g) CREDIT AND COLLECTION POLICIES. Comply in all material respects
with its Credit and Collection Policy in connection with the Receivables and the
related Contracts prior to their transfer hereunder.
(h) SEPARATE CORPORATE EXISTENCE OF THE COMPANY. Take such actions
as shall be required in order that:
(i) the Company's operating expenses (other than certain
organization expenses and expenses incurred in connection with the
preparation, negotiation and delivery of the Transaction Documents)
will not be paid by the Originator unless the Company shall have agreed
in writing with the Originator to reimburse the Originator for any such
payments;
(ii) the Originator will have its own separate mailing address
and stationery;
(iii) the Company's books and records will be maintained
separately from those of the Originator;
(iv) any financial statements of the Originator which are
consolidated to include the Company will contain detailed notes clearly
stating that (A) all of the Company's assets are owned by the Company,
and (B) the Company is a separate corporate entity and has sold
ownership interests in the Company's accounts receivable;
(v) the Company's assets will be maintained in a manner that
facilitates their identification and segregation from those of the
Originator;
(vi) the Originator will strictly observe corporate
formalities in its dealing with the Company, and funds or other assets
of the Originator will not be commingled with those of the Company. The
Originator shall not maintain joint bank accounts or other depository
accounts to which the Company has independent access and shall not pool
any of Originator's funds at any time with any funds of the Company;
(vii) the Originator will maintain arm's length relationships
with the Company, and the Originator will be compensated at market
rates for any services it renders or otherwise furnishes to the
Company; and
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CONFIDENTIAL TREATMENT
(viii) the Originator will not be, and will not hold itself
out to be, responsible for the debts of the Company or the decisions or
actions in respect of the daily business and affairs of the Company
(other than with respect to such decisions or actions of the Originator
in its capacity as Servicer).
(i) PERFECTION COVENANT. [ * ].
6.2. REPORTING REQUIREMENTS. From the date hereof until the first
day following the Purchase and Sale Termination Date, the Originator shall,
unless the Agent, the Insurer and the Company shall otherwise consent in
writing, furnish to the Company, the Insurer and the Agent:
(a) PROCEEDINGS. As soon as possible and in any event within three
Business Days after the Originator has knowledge thereof, written notice to the
Company, the Insurer and the Agent of (i) all pending proceedings and
investigations of the type described in SECTION 5.6 not previously disclosed to
the Company, the Insurer and the Agent and (ii) all material adverse
developments that have occurred with respect to any previously disclosed
proceedings and investigations;
(b) as soon as possible and in any event within three Business Days
after the occurrence of each Purchase and Sale Termination Event or event which,
with the giving of notice or lapse of time, or both, would constitute a Purchase
and Sale Termination Event, a statement of the chief financial officer of the
Originator setting forth details of such Purchase and Sale Termination Event or
event and the action that the Originator has taken and proposes to take with
respect thereto;
(c) promptly after the filing or receiving thereof, copies of all
reports and notices that the Originator 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 Originator or any ERISA Affiliate receives from
any of the foregoing or from any Multiemployer Plan to which the Originator 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 Originator and/or any such ERISA Affiliate in excess of
$250,000; and
(d) promptly after the occurrence of any event or condition that
could reasonably be expected to have a Material Adverse Effect, notice of such
event or condition.
(e) OTHER. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables, the Related Rights or
the Originator's performance hereunder that the Company, the Insurer or the
Agent may from time to time reasonably request in order to protect the interests
of the Company, the Purchasers, the Agent, the Insurer or any other Affected
Party under or as contemplated by the Transaction Documents.
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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.
6.3. NEGATIVE COVENANTS. From the date hereof until the date
following the Final Payout Date, the Originator agrees that, unless the Control
Party (or if the Control Party is the Majority Purchasers, the Agent) and the
Company shall otherwise consent in writing, it shall not:
(a) SALES, LIENS, ETC. Except as otherwise provided herein or in
any other Transaction Document, sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Adverse Claim except
for Permitted Liens upon or with respect to, any Receivable or related Contract,
Collections or Related Security, or any interest therein, or assign any right to
receive income in respect thereof.
(b) EXTENSION OR AMENDMENT OF RECEIVABLES. Except in its capacity
as Servicer to the extent permitted by paragraph (f) of Exhibit IV to the
Receivables Purchase Agreement, extend, amend or otherwise modify the terms of
any Receivable in any respect, or amend, modify or waive, any term or condition
of any Contract related thereto.
(c) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. Make (i)
any material change in the character of its business, 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 Originator or the Company to perform its obligations under any
related Contract or under any Transaction Document; or (ii) any other material
change in the Credit and Collection Policy without prior written consent of the
Company and the Control Party (or if the Control Party is the Majority
Purchasers, the Agent).
(d) RECEIVABLES NOT TO BE EVIDENCED BY INSTRUMENTS. Take any action
to cause or permit any Receivable generated by it to become evidenced by any
"instrument" (as defined in the applicable UCC) unless such "instrument" shall
be delivered to the Company (which in turn shall deliver the same to the Agent
on behalf of the Secured Parties).
(e) MERGERS, ACQUISITIONS, SALES, ETC. Merge or consolidate with
another Person (except pursuant to a merger or consolidation involving the
Originator where the Originator is the surviving corporation), or convey,
transfer, lease or otherwise dispose of (whether in one or in a series of
transactions), all or substantially all of its assets (whether now owned or
hereafter acquired), other than pursuant to this Agreement.
(f) DEPOSIT BANKS. Add or terminate any Deposit Bank unless the
requirements of PARAGRAPH (i) of EXHIBIT IV of the Receivables Purchase
Agreement have been met.
(g) ACCOUNTING FOR PURCHASES. Account for or treat (whether in
financial statements or otherwise) the transactions contemplated hereby in any
manner other than as sales of the Receivables and Related Security by the
Originator to the Company.
(h) TRANSACTION DOCUMENTS. Enter into, execute, deliver or
otherwise become bound by any agreement, instrument, document or other
arrangement that restricts the right of the Originator
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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
Documents.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
7.1. RIGHTS OF THE COMPANY. The Originator hereby authorizes the
Company or its respective designees to take any and all steps in the
Originator's name necessary or desirable, in their respective determination, to
collect all amounts due under any and all Receivables and Related Rights,
including, without limitation, endorsing the Originator's name on checks and
other instruments representing Collections and enforcing such Receivables and
the provisions of the related Contracts that concern payment and/or enforcement
of rights to payment.
7.2. RESPONSIBILITIES OF THE ORIGINATOR. Anything herein to the
contrary notwithstanding:
(a) The Originator agrees to transfer any Collections that it
receives directly to a Deposit Account within one Business Day of receipt
thereof, and agrees that all such Collections shall be segregated and held in
trust for the Company and the Agent for the benefit of the Secured Parties;
PROVIDED that if the Company or the Servicer is required by SECTION 4.4 of the
Receivables Purchase Agreement to remit Collections directly to the Agent for
the benefit of the Secured Parties (or its designee) the Originator shall remit
such Collections directly to the Agent for the benefit of the Secured Parties
(or its designee) in the same manner as the Company and Servicer may be required
to do so by Section 4.4 of the Receivables Purchase Agreement. The Originator
further agrees not to deposit any funds other than Collections in a Deposit
Account.
(b) The Originator shall perform its obligations hereunder, and the
exercise by the Company or its designee of its rights hereunder shall not
relieve the Originator from such obligations.
(c) None of the Company, Servicer (if other than the Originator),
Purchasers, the Insurer or the Agent shall have any obligation or liability to
any Obligor or any other third Person with respect to any Receivables, Contracts
related thereto or any other related agreements, nor shall the Company, Servicer
(if other than the Originator), Purchasers, the Insurer or the Agent be
obligated to perform any of the obligations of the Originator thereunder.
(d) The Originator hereby grants to Servicer (if other than the
Originator) an irrevocable power of attorney, with full power of substitution,
coupled with an interest, to take in the name of the Originator all steps
necessary or advisable to indorse, negotiate or otherwise realize on any writing
or other right of any kind held or transmitted by the Originator or transmitted
or received by
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the Company (whether or not from the Originator) in connection with any
Receivable or Related Right.
7.3. FURTHER ACTION EVIDENCING PURCHASES. The Originator agrees that
from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action that the Company
or Servicer, the Agent or the Insurer may reasonably request or that may be
otherwise necessary or desirable in order to establish or maintain a valid and
enforceable ownership interest in the Receivables and Related Rights and
Collections and other proceeds with respect thereto, and a perfected security
interest in the items described in SECTION 1.5, in each case free and clear of
any Adverse Claim, excepting only Permitted Liens, in favor of the Company
including, without limitation, taking such action to perfect, protect or more
fully evidence the interest of the Company under this Agreement or to enable the
Company to exercise or enforce any of its rights hereunder or under any other
Transaction Document. Without limiting the generality of the foregoing, the
Originator will at Originator's expense:
(a) upon the request of the Company or the Insurer and the Agent
authorize and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices, as may be
necessary or appropriate; and
(b) ▇▇▇▇ the summary master control data processing records relating
to the Receivables and related Contracts with the legend set forth in SECTION
4.1(i).
The Originator hereby authorizes the Company or its designee to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Receivables (and the Related Rights) now
existing or hereafter generated by the Originator. If the Originator fails to
perform any of its agreements or obligations under this Agreement, the Company
or its designee may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the expenses of the Company or
its designee incurred in connection therewith shall be payable by the Originator
as provided in SECTION 10.6.
7.4. APPLICATION OF COLLECTIONS. Any payment by an Obligor in respect
of any indebtedness owed by it to the Originator or the Company, shall be
applied first, as a Collection of any Receivables owed by such Obligor to the
Company, and second to any other indebtedness of such Obligor. The foregoing
notwithstanding, a different application of such payment is permissible if (a)
required by contract or law, (b) otherwise instructed by the Obligor or (c)
instructed by the Company or the Agent and, in the case of (c) above, only with
the prior written consent of the Insurer.
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ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
8.1. PURCHASE AND SALE TERMINATION EVENTS. Each of the following
events or occurrences described in this SECTION 8.1 shall constitute a "PURCHASE
AND SALE TERMINATION EVENT":
(a) The Termination Date (as defined in the Receivables Purchase
Agreement) shall have occurred; or
(b) The Originator shall fail to make any payment or deposit to be
made by it hereunder or under the Transaction Documents when due and such
failure shall remain unremedied for two Business Days after notice or discovery
thereof; or
(c) Any representation or warranty made or deemed to be made by the
Originator (or any of its officers) under or in connection with this Agreement,
any other Transaction Document or any other information or report delivered
pursuant hereto or thereto shall prove to have been false, incorrect or
incomplete (with respect to such information or report delivered) in any
material respect when made or deemed made provided, however, if the violation of
this paragraph (c) by the Originator may be cured without any potential or
actual detriment to the Company, the Purchasers, the Agent, the Insurer or any
Program Support Provider, the Originator shall have 30 days from the earlier of
(i) the Originator's knowledge of such failure and (ii) notice to the Originator
of such failure to so cure any such violation before a Purchase and Sale
Termination Event shall occur so long as the Originator is diligently attempting
to effect such cure; or
(d) The Originator shall fail to perform or observe in any material
respect any agreement contained in any of SECTIONS 6.1(h) or 6.3; or
(e) The Originator shall fail to perform or observe any other
material term, covenant or agreement contained in this Agreement or any other
Transaction Document on its part to be performed or observed and such failure
shall remain unremedied for 30 days after the earlier of (i) the Originator's
knowledge of such failure and (ii) written notice thereof shall have been given
by Servicer, the Agent, the Insurer or the Company to the Originator; or
(f)(i) The Originator or any of its subsidiaries 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
or any of its subsidiaries 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, or other
similar official for it or for all or any substantial part of its property and,
in the case of any such
-22-
proceeding instituted against it (but not instituted by it), such proceeding
shall remain undismissed or unstayed for a period of 45 days; or (ii) the
Originator or any of its subsidiaries shall take any corporate action to
authorize any of the actions set forth in CLAUSE (i) above in this SECTION
8.1(f);
(g)(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 Originator 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
Originator 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.
(h) The Internal Revenue Service shall file notice of a lien pursuant
to Section 6323 of the Internal Revenue Code with regard to any of assets of the
Originator 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 with
regard to any of the assets of the Originator; or
(i) This Agreement or any purchase pursuant to this Agreement shall
for any reason (other than pursuant to the terms hereof) (i) cease to create, a
valid and enforceable perfected ownership interest in each Receivable and the
Related Rights 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 1.5, or the interest of
the Company with respect to such items shall cease to be, a valid and
enforceable perfected security interest, free and clear of any Adverse Claim,
excepting only Permitted Liens.
8.2. REMEDIES.
(i) OPTIONAL TERMINATION. Upon the occurrence of a Purchase
and Sale Termination Event, the Company (and not Servicer) shall have
the option by notice to the Originator (with a copy to the Agent and
the Insurer) to declare the Purchase and Sale Termination Date to have
occurred.
-23-
CONFIDENTIAL TREATMENT
(ii) REMEDIES CUMULATIVE. Upon any termination of the Purchase
Facility pursuant to this SECTION 8.2, the Company shall have, in
addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the UCC of each
applicable jurisdiction and other applicable laws, which rights shall
be cumulative. Without limiting the foregoing, the occurrence of the
Purchase and Sale Termination Date shall not deny the Company any
remedy in addition to termination of the Purchase Facility to which the
Company may be otherwise appropriately entitled, whether at law or
equity.
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNITIES BY THE ORIGINATOR. Without limiting any other rights
which the Company may have hereunder or under applicable law, the Originator
hereby agrees to indemnify the Company, the Purchasers, the Agent, the Insurer
and each of their respective assigns, officers, directors, employees and agents
(each of the foregoing Persons being individually called a "PURCHASE AND SALE
INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages,
losses, claims, judgments, liabilities and related costs and expenses, including
reasonable attorneys' fees and disbursements (all of the foregoing being
collectively called "PURCHASE AND SALE INDEMNIFIED AMOUNTS"), regardless of
whether any such Purchase and Sale Indemnified Amount is the result of a
Purchase and Sale Indemnified Party's negligence, strict liability or other acts
or omissions of a Purchase and Sale Indemnified Party, awarded against or
incurred by any of them arising out of or as a result of the following:
(a) the transfer by the Originator of an interest in any Receivable
or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the
Originator under or in connection with this Agreement or any other Transaction
Document, or any information or report delivered by the Originator pursuant
hereto or thereto (including any information contained in a Purchase Report)
which shall have been false, incorrect or misleading in any material respect
when made, deemed made or delivered;
(c) the failure by the Originator to comply with any applicable law,
rule or regulation with respect to any Receivable or the related Contract, or
the nonconformity of any Receivable or the related Contract with any such
applicable law, rule or regulation;
(d) [ * ]
-24-
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(e) the failure of the Originator to file with respect to itself, or
any delay by the Originator 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 or purported Receivables
generated by the Originator or Related Rights, whether at the time of any
purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by the Originator (including, without limitation, a defense
based on such Receivables or the related Contracts 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 any Receivable or relating to collection activities with respect to any
Receivable (if such collection activities were performed by the Originator or
any of its Affiliates acting as Servicer or by any agent or independent
contractor retained by the Originator or any of its Affiliates);
(g) any products liability or other claim, investigation, litigation
or proceeding arising out of or in connection with goods, insurance or services
that secure or relate to any Receivable;
(h) any litigation, proceeding or investigation against the
Originator or in respect of any Receivable or Related Right;
(i) any tax or governmental fee or charge (other than any tax
excluded pursuant to the proviso below), all interest and penalties thereon or
with respect thereto, and all 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, contribution or ownership of the Receivables or
any Related Right connected with any such Receivables;
(j) any failure of the Originator to perform its duties or
obligations in accordance with the provisions of this Agreement or any other
Transaction Document;
(k) the commingling of any Collections at any time with other funds;
(l) the failure by the Originator to pay when due any taxes payable
by it, including without limitation, franchise taxes and sales, excise or
personal property taxes payable in connection with the Receivables or any
Related Right connected with any such Receivables; and
(m) the failure by the Originator 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;
EXCLUDING, HOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of a Purchase
and Sale Indemnified Party, (ii) any indemnification which has the effect of
recourse for non-payment of the Receivables due to credit
-25-
reasons to the Originator (except as otherwise specifically provided under this
SECTION 9.1) and (iii) any tax based upon or measured by net income or gross
receipts.
If for any reason the indemnification provided above in this SECTION
9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient
to hold such Purchase and Sale Indemnified Party harmless, then the Originator
shall contribute to the amount paid or payable by such Purchase and Sale
Indemnified Party as a result of such loss, claim, damage or liability to the
maximum extent permitted under applicable law. Promptly after receipt by a
Purchase and Sale Indemnified Party under this ARTICLE IX of notice of any claim
or the commencement of any action arising out of or as a result of any of
paragraphs (a) through (m) above, the Purchase and Sale Indemnified Party shall,
if a claim in respect thereof is to be made against the Originator under this
ARTICLE IX, notify the Originator in writing of the claim or the commencement of
that action; PROVIDED, HOWEVER, that the failure to notify the Originator shall
not relieve it from any liability which it may have under this ARTICLE IX except
to the extent it has been materially prejudiced by such failure and, PROVIDED,
FURTHER, that the failure to notify the Originator shall not relieve it from any
liability which it may have to a Purchase and Sale Indemnified Party otherwise
than under this ARTICLE IX. If any such claim or action shall be brought against
a Purchase and Sale Indemnified Party, the Originator shall be entitled to
participate therein and, to the extent that it wishes, to assume the defense
thereof with counsel satisfactory to the Purchase and Sale Indemnified Party.
After notice from the Originator to the Purchase and Sale Indemnified Party of
its election to assume the defense of such claim or action, the Originator shall
not be liable to the Purchase and Sale Indemnified Party under this ARTICLE IX
for any legal or other expenses subsequently incurred by Purchase and Sale
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation. The Originator shall not (i) without the prior written
consent of the relevant Purchase and Sale Indemnified Party or Parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Purchase and Sale Indemnified Party
or Parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
Purchase and Sale Indemnified Party from all liability arising out of such
claim, action, suit or proceeding or (ii) be liable for any settlement of any
such action affected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment of the plaintiff in any such action, the Originator agrees to
indemnify and hold harmless any indemnified party from and against any Purchase
and Sale Indemnified Amounts relating thereto.
-26-
ARTICLE X
MISCELLANEOUS
10.1. AMENDMENTS, ETC.
(a) The provisions of this Agreement may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to by the Originator, the Company, the Servicer (if other
than the Originator) and the Control Party (or if the Control Party is the
Majority Purchasers, the Agent); PROVIDED, HOWEVER, that no such amendment,
modification or waiver shall materially adversely affect the Insurer without the
prior written consent of the Insurer.
(b) No failure or delay on the part of the Company, the Originator
or any third party beneficiary in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Company,
Servicer, or the Originator in any case shall entitle it to any notice or demand
in similar or other circumstances. No waiver or approval by the Company or
Servicer under this Agreement shall, except as may otherwise be stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
10.2. 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.
10.3. NO WAIVER; CUMULATIVE REMEDIES. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
10.4. BINDING EFFECT; ASSIGNABILITY. This Agreement shall be binding
upon and inure to the benefit of the Company, the Originator and its respective
successors and permitted assigns. The Originator may not assign its rights
hereunder or any interest herein without the prior consent of the Company, the
Insurer and the Agent. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until the date after the Purchase and Sale Termination
Date on which the Originator has received payment in full for all Receivables
and Related Rights purchased pursuant to SECTION 1.1 hereof. The
-27-
rights and remedies with respect to any breach of any representation and
warranty made by the Originator pursuant to ARTICLE V and the indemnification
and payment provisions of ARTICLE IX and SECTION 10.6 shall be continuing and
shall survive any termination of this Agreement.
10.5. GOVERNING LAW. 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 VALIDITY OR PERFECTION OF THE INTERESTS OF PURCHASERS IN THE RECEIVABLES OR
RELATED RIGHTS, OR REMEDIES HEREUNDER IN RESPECT THEREOF, ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF INDIANA.
10.6. COSTS, EXPENSES AND TAXES. In addition to the obligations of
the Originator under ARTICLE IX, the Originator agrees to pay on demand:
(a) all reasonable costs and expenses in connection with the
preparation, execution, delivery and administration (including periodic auditing
of the Receivables) of this Agreement, the Liquidity Agreement, the Receivables
Purchase 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 Receivables Purchase 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 Company, the Agent, the Insurer, the
Purchasers and their respective Affiliates and agents with respect thereto and
with respect to advising the Company, the Agent, the Insurer, the Purchasers and
their respective Affiliates and agents as to their rights and remedies under
this Agreement and the other Transaction Documents, and all reasonable costs and
expenses, if any (including Attorney Costs), of the Company, the Agent, the
Insurer, the Purchasers and their respective Affiliates and agents, in
connection with the enforcement of this Agreement and the other Transaction
Documents; and
(b) 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 Purchase and Sale 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.
10.7. SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY ILLINOIS, ▇▇▇▇
COUNTY, CITY OF CHICAGO OR NEW YORK ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
AND THE SOUTHERN DISTRICT OF NEW YORK, OVER ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR
-28-
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES DISTRICT
COURT; (c) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING; (d) CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH
PERSON AT ITS ADDRESS SPECIFIED IN SECTION 10.2; AND (e) TO THE EXTENT ALLOWED
BY LAW, AGREES THAT A NONAPPEALABLE FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
SECTION 10.7 SHALL AFFECT THE COMPANY'S RIGHT TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST THE
ORIGINATOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.
10.8. WAIVER OF JURY TRIAL. EACH PARTY HERETO EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR UNDER ANY
AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
10.9. CAPTIONS AND CROSS REFERENCES; INCORPORATION BY REFERENCE. The
various captions (including, without limitation, the table of contents) in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be. The Exhibits hereto are hereby incorporated by
reference into and made a part of this Agreement.
10.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
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.
10.11. ACKNOWLEDGMENT AND AGREEMENT. By execution below, the
Originator expressly acknowledges and agrees that all of the Company's rights,
title, and interests in, to, and under this Agreement shall be assigned by the
Company to the Agent (for the benefit or the Secured Parties) pursuant to the
Receivables Purchase Agreement, and the Originator consents to such assignment.
Each of the parties hereto acknowledges and agrees that the Agent, the Insurer
and the Purchasers are third party beneficiaries of the rights of the Company
arising hereunder and under the other
-29-
Transaction Documents to which the Originator is a party and that the Control
Party may enforce the rights of the Company under this Agreement.
-30-
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.
AUTOMOTIVE FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO & Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (317) 815-9645 ext. 2185
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
[Notary]
AFC FUNDING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO & Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (317) 815-9645 ext. 2185
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
[Notary]
S-1 (Amended and Restated PSA)
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, 2008
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 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
S-2 (Amended and Restated PSA)
CONFIDENTIAL TREATMENT
SCHEDULE 1.1b
EXCLUDED RECEIVABLES
"EXCLUDED RECEIVABLES" means any right to payment under:
[ * ]
S-3 (Amended and Restated PSA)
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
[ * ]
S-4 (Amended and Restated PSA)
* TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.