EXHIBIT 4.5
MASTER RECEIVABLES PURCHASE AGREEMENT
BETWEEN
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION
SELLER
AND
HOUSEHOLD AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ......................................................1
SECTION 1.1 General..................................................1
SECTION 1.2 Specific Terms...........................................1
SECTION 1.3 Other Definitional Provisions............................2
SECTION 1.4 Certain References.......................................2
SECTION 1.5 No Recourse..............................................3
ARTICLE II CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY....3
SECTION 2.1 Purchase.................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................5
SECTION 3.1 Representations and Warranties of Seller.................5
SECTION 3.2 Representations and Warranties of HARC...................6
ARTICLE IV COVENANTS OF SELLER..............................................8
SECTION 4.1 Seller's Covenants.......................................8
ARTICLE V REPURCHASES.......................................................9
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty........9
SECTION 5.2 Reassignment of Repurchased Receivables.................10
SECTION 5.3 Waivers.................................................10
ARTICLE VI MISCELLANEOUS...................................................10
SECTION 6.1 Liability of Seller.....................................10
SECTION 6.2 Amendment...............................................10
SECTION 6.3 GOVERNING LAW...........................................10
SECTION 6.4 Notices.................................................11
SECTION 6.5 Severability of Provisions..............................11
SECTION 6.6 Assignment..............................................11
SECTION 6.7 Acknowledgment and Agreement of each Seller.............11
SECTION 6.8 Further Assurances......................................12
SECTION 6.9 No Waiver; Cumulative Remedies..........................12
SECTION 6.10 Counterparts............................................12
SECTION 6.11 Binding Effect; Third-Party Beneficiaries...............12
SECTION 6.12 Merger and Integration..................................12
SECTION 6.13 Heading.................................................12
SECTION 6.14 Schedules and Exhibits..................................12
SECTION 6.15 Survival of Representations and Warranties..............12
i
SECTION 6.16 Nonpetition Covenant....................................12
ii
EXHIBITS
EXHIBIT A Form of Receivables Purchase Agreement Supplement
SCHEDULE A Schedule of Receivables
iii
MASTER RECEIVABLES PURCHASE AGREEMENT
THIS MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of ___________,
executed between Household Auto Receivables Corporation, a Nevada corporation,
as purchaser ("HARC") and Household Automotive Finance Corporation, a Delaware
corporation, as seller ("Seller").
W I T N E S S E T H :
WHEREAS, HARC has agreed to purchase from time to time from Seller,
and Seller, pursuant to this Agreement, has agreed to transfer from time to time
to HARC the Receivables and the Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, HARC and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
.1 GENERAL. Capitalized terms used herein without definition shall
have the respective meanings assigned to such terms in the Master Sale and
Servicing Agreement dated as of _________, by and among Household Automotive
Trust ___, as Issuer, HARC, as Seller, Household Finance Corporation, as Master
Servicer, and [Name of Trustee], as Trustee.
.2 SPECIFIC TERMS. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Agreement" means this Master Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Closing Date" means ____________.
"Conveyance" shall have the meaning specified in Section 2.1.
"Conveyance Papers" shall have the meaning specified in Section 3.1.
"Cutoff Date" shall have the meaning assigned to such term in the
applicable Series Supplement or Receivables Purchase Agreement Supplement.
"Other Conveyed Property" means all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture (including all property and interests granted
to the Trustee), including all proceeds thereof, other than the Receivables.
"Purchase Date" means, with respect to Receivables, any date, on which
Receivables are to be purchased by HARC pursuant to this Agreement and a
Purchase Agreement Supplement is executed and delivered by the Seller and HARC.
"Receivables" means the Receivables listed on the Schedules of
Receivables attached to this Agreement or to each Receivables Purchase Agreement
Supplement as Schedule A.
"Receivables Purchase Agreement Supplement" means the agreement
between HARC and the Seller, substantially in the form of Exhibit A hereto.
"Repurchase Event" means a determination pursuant to Section 3.2 of
the Master Sale and Servicing Agreement that HARC is required to repurchase a
Receivable.
"Schedule of Receivables" means the schedule of Receivables sold and
transferred pursuant to this Agreement and the related Receivables Purchase
Agreement Supplement which is attached as Schedule A to this Agreement or to the
related Receivables Purchase Agreement Supplement.
.3 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, other documents, or Conveyance Paper made
or delivered pursuant hereto unless otherwise defined herein.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement or any Conveyance Paper shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, Subsection, Schedule and Exhibit references contained in this Agreement
are references to Sections, Subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge balance of
Receivables, and of any collections thereof, shall be made in accordance with
the Master Sale and Servicing Agreement and all applicable Series Supplements.
.4 CERTAIN REFERENCES. All references to the Principal Balance of a
Receivable as of any date of determination shall refer to the close of business
on such day, or as of the first day of a Collection Period shall refer to the
opening of business on such day. All references to the last day of a Collection
Period shall refer to the close of business on such day.
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.5 NO RECOURSE. Without limiting the obligations of Seller hereunder,
no recourse may be taken, directly or indirectly, under this Agreement or any
certificate or other writing delivered in connection herewith or therewith,
against any stockholder, officer or director, as such, of Seller, or of any
predecessor or successor of Seller.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
.1 PURCHASE.
(a) By execution of this Agreement and subject to the terms and
conditions of this Agreement, the Seller shall sell, transfer, assign, and
otherwise convey to HARC (collectively, the "Conveyance") without recourse (but
without limitation of its obligations in this Agreement), and HARC shall
purchase, all right, title and interest of Seller in and to:
(i) each and every Receivable listed on Schedule A hereto or to the
related Receivables Purchase Agreement Supplement and all monies paid or
payable thereon or in respect thereof on or after the related Cutoff Date
(including amounts due on or before the related Cutoff Date but received by
the Seller on or after such date);
(ii) the security interests in the related Financed Vehicles granted
by Obligors pursuant to such Receivables and any other interest of the
Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers pursuant to Dealer
Agreements or Dealer Assignments related to such Receivables;
(iv) any proceeds and the right to receive proceeds with respect to
such Receivables repurchased by a Dealer, pursuant to a Dealer Agreement,
as a result of a breach of representation or warranty in the related Dealer
Agreement;
(v) all rights of Seller under any Service Contracts on the related
Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with respect to
the related Receivables from claims on any physical damage, loss, credit
life or disability insurance policies, if any, covering Financed Vehicles
or Obligors, including rebates of insurance premiums relating to the
Receivables and any proceeds from the liquidation of such Receivables;
(vii) all items contained in the Receivables Files with respect to
such Receivables and any and all other documents that Seller or Master
Servicer keeps
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on file in accordance with its customary procedures relating to the
related Receivables, or the related Financed Vehicles or Obligor;
(viii) property (including the right to receive future Net Liquidation
Proceeds) that secures each related Receivable and that has been acquired
by or on behalf of HARC pursuant to liquidation of such Receivable;
(ix) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any
time constitute all or part of or are included in the proceeds of any of
the foregoing.
(b) Simultaneously with the conveyance of the Receivables and the
Other Conveyed Property to HARC by Seller, HARC has paid or caused to be paid to
or upon the order of Seller an amount equal to 100% of the Principal Balance of
the Receivables on the books and records of Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into account
any uncertainty as to future performance matching historical performance,
servicing fees, delinquencies, pay down rates, yield and such other factors as
may be mutually agreed upon between Seller and HARC, by wire transfer of
immediately available funds.
(c) In connection with such Conveyance, Seller further agrees that it
will, at its own expense, on or prior to the Purchase Date (i) indicate in its
computer files or microfiche lists that the Receivables have been conveyed to
HARC in accordance with this Agreement and have been conveyed by HARC to the
Trustee pursuant to the Master Sale and Servicing Agreement for the benefit of
the Noteholders by including in such computer files and microfiche lists the
code identifying each such Receivable and (ii) deliver to HARC (or to the
Trustee if HARC so directs) a computer file or microfiche list containing a true
and complete list of all such Receivables specifying for each such Receivable,
as of the Cutoff Date (A) its account number and (B) the outstanding balance of
such Receivable. Such computer files or microfiche lists shall be delivered to
HARC (or to the Trustee if so directed by HARC) and marked as proprietary and
confidential. Seller further agrees not to alter the code referenced in clause
(i) of this paragraph with respect to any Receivable during the term of this
Agreement.
(d) The parties hereto intend that the conveyance of the Seller's
right, title and interest in and to the Receivables and Other Conveyed Property
shall constitute a sale, conveying good title free and clear of any liens,
claims, encumbrances or rights of others from Seller to HARC and that the
Receivables and Other Conveyed Property shall
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not be part of Seller's estate in the event of the insolvency of Seller or a
conservatorship, receivership or similar event with respect to Seller. It is
the intention of the parties hereto that the arrangements with respect to the
Receivables and Other Conveyed Property shall constitute a purchase and sale
of such Receivables and not a loan. In the event, however, that a court of
competent jurisdiction were to hold that the transactions evidenced hereby
constitute a loan and not a purchase and sale, it is the intention of the
parties hereto that this Agreement shall constitute a security agreement
under applicable law, and that Seller shall be deemed to have granted to HARC
a first priority perfected security interest in all of such Seller's right,
title and interest in and to the Receivables and Other Conveyed Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller makes the
following representations and warranties as of the date hereof on which HARC
relies in purchasing the Receivables and the Other Conveyed Property and in
transferring the Receivables and the Other Conveyed Property to the Issuer under
the Master Sale and Servicing Agreement. Such representations are made as of the
execution and delivery of this Agreement and as to Receivables and Other
Conveyed Property conveyed thereunder, as of the execution and delivery of each
Receivables Purchase Agreement Supplement, but shall survive the sale, transfer
and assignment of the Receivables and the Other Conveyed Property hereunder, and
the sale, transfer and assignment thereof by HARC to the Issuer under the Master
Sale and Servicing Agreement. Seller and HARC agree that HARC will assign to
Issuer all HARC's rights under this Agreement and each Receivables Purchase
Agreement Supplement and that the Trustee will thereafter be entitled to enforce
this Agreement and each Receivables Purchase Agreement Supplement against Seller
in the Trustee's own name on behalf of the Securityholders.
(a) ELIGIBILITY CRITERIA. Each of the Receivables which is to be
pledged as collateral for a Series of Notes satisfies the applicable Eligibility
Criteria set forth in, or to be set forth in, Schedule I to the Series
Supplement establishing such Series.
(b) ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware and has, in all material respects, full power and authority to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(c) DUE OBLIGATION. The Seller is duly qualified to do business and is
in good standing as a foreign corporation (or is exempt from such requirements)
and has obtained all necessary licenses and approvals, in each jurisdiction in
which failure to so qualify or to obtain such licenses and approvals would (i)
render any Receivable
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unenforceable by the Seller, HARC or the Trust and (ii) have a material
adverse effect on the Noteholders.
(d) DUE AUTHORIZATION. The execution, delivery and performance of this
Agreement and any other document or instrument delivered pursuant hereto (such
other documents and instruments, including, but not limited to, the Receivables
Purchase Agreement Supplement collectively, the "CONVEYANCE PAPERS") and the
consummation of the transactions provided for in this Agreement or any other
Conveyance Papers have been duly authorized by all necessary corporate action on
the part of the Seller.
(e) NO CONFLICT. The execution and delivery of this Agreement and the
Conveyance Papers, the performance of the transactions contemplated by this
Agreement and the Conveyance Papers, and the fulfillment of the terms of this
Agreement and the Conveyance Papers applicable to the Seller will not conflict
with, violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or by which it or any
of its properties are bound.
(f) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers and the fulfillment of the terms
contemplated herein and therein applicable to the Seller will not conflict with
or violate any requirements of law applicable to the Seller.
(g) NO PROCEEDINGS. There are no proceedings or investigations pending
or, to the best knowledge of the Seller, threatened against the Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement or
the Conveyance Papers, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment of the
Seller, would materially and adversely affect the performance by the Seller of
its obligations under this Agreement or the Conveyance Papers, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or the Conveyance Papers or (v) seeking to
affect adversely the income tax attributes of the Trust under United States
Federal, Nevada or California income tax systems.
(h) ALL CONSENTS. All authorizations, consents, orders, approvals,
registrations or declarations with, or of, any Governmental Authority required
to be obtained, effected or given by the Seller in connection with the execution
and delivery by the Seller of this Agreement or the Conveyance Papers and the
performance of the transactions contemplated by this Agreement or the Conveyance
Papers by the Seller have been duly obtained, effected or given and are in full
force and effect.
.2 REPRESENTATIONS AND WARRANTIES OF HARC. HARC makes the following
representations and warranties, on which Seller relies in selling, assigning,
transferring
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and conveying the Receivables and the Other Conveyed Property to HARC
hereunder. Such representations are made as of the execution and delivery of
this Agreement and as to Receivables and Other Conveyed Property conveyed
thereunder, as of the execution and delivery of each Receivables Purchase
Agreement Supplement, but shall survive the sale, transfer and assignment of
the Receivables and the Other Conveyed Property hereunder and the sale,
transfer and assignment thereof by HARC to the Issuer under the Master Sale
and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. HARC is a corporation duly
organized and validly existing under the laws of the State of Nevada and has, in
all material respects, full power and authority to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement and the Conveyance Papers.
(b) DUE AUTHORIZATION. The execution and delivery of this Agreement
and the Conveyance Papers and the consummation of the transactions provided for
in this Agreement and the Conveyance Papers have been duly authorized by HARC by
all necessary corporate action on the part of HARC .
(c) NO CONFLICT. The execution and delivery of this Agreement and the
Conveyance Papers, the performance of the transactions contemplated by this
Agreement and the Conveyance Papers, and the fulfillment of the terms hereof and
thereof, will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which HARC is a party or by which it or its
properties is bound.
(d) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers by HARC and the fulfillment of the terms
contemplated herein and therein applicable to HARC will not conflict with or
violate any requirements of law applicable to HARC.
(e) NO PROCEEDING. There are no proceedings or investigations pending
or, to the best knowledge of HARC, threatened against HARC, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of HARC, would
materially and adversely affect the performance by HARC of its obligations under
this Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers.
(f) ALL CONSENTS. All authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required to be
obtained,
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effected or given by HARC in connection with the execution and delivery by
HARC of this Agreement and the Conveyance Papers and the performance of the
transactions contemplated by this Agreement and the Conveyance Papers or the
fulfillment of the terms of this Agreement and the Conveyance Papers by HARC
have been duly obtained.
In the event of any breach of a representation and warranty made by
HARC hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes and
Certificates issued by the Trust, have been paid in full. Seller and HARC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by HARC, Issuer or by the Trustee on
behalf of the Noteholders and Owner Trustee on behalf of the Certificateholders.
Seller agrees that with respect to its obligations in connection with a
Repurchase Event it will exercise no rights of offset with respect to any claims
it may have against HARC.
ARTICLE IV
COVENANTS OF SELLER
.1 SELLER'S COVENANTS. Seller hereby covenants and agrees with HARC as
follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. Seller will
take no action to cause any Receivable to be evidenced by any instrument (as
defined in the UCC).
(b) SECURITY INTERESTS. Except for the conveyances hereunder or as
otherwise provide herein, Seller will not sell, pledge, assign or transfer to
any other Person, or take any other action inconsistent with HARC's ownership of
the Receivables or grant, create, incur, assume or suffer to exist any Lien on
any Receivable, whether now existing or hereafter created, or any interest
therein, and Seller shall not claim any ownership interest in the Receivables
and shall defend the right, title and interest of HARC in and to the
Receivables, whether now existing or hereafter created, against all claims of
third parties claiming through or under Seller.
(c) SECURITY'S INTEREST. Except for the conveyances hereunder and in
connection with any transaction permitted pursuant to Section 6.6, Seller hereby
agrees not to transfer, assign, exchange or otherwise convey or pledge,
hypothecate or otherwise grant a security interest in the Receivables and any
such attempted transfer, assignment, exchange, conveyance, pledge, hypothecation
or grant shall be void.
(d) DELIVERY OF COLLECTIONS OR RECOVERIES. In the event that Seller
receives collections or recoveries with respect to the Receivables, Seller
agrees to pay to HARC (or to the Master Servicer if HARC so directs) all such
collections and recoveries
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to the extent such amounts are payable to HARC as soon as practicable after
receipt thereof.
(e) NOTICE OF LIENS. The Seller shall notify HARC promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder.
(f) DOCUMENTATION OF TRANSFER. The Seller shall undertake to file the
documents which would be necessary to perfect and maintain the transfer of the
security interest in and to the Receivables and Other Conveyed Assets.
(g) APPROVAL OF OFFICE RECORDS. Seller shall cause this Agreement to
be duly approved by Seller's Board of Directors, and Seller shall maintain the
Agreement as a part of the official records of Seller for the term of the
Agreement.
ARTICLE ▇
▇▇▇▇▇▇▇▇▇▇▇
.▇ ▇▇▇▇▇▇▇▇▇▇ OF RECEIVABLES UPON BREACH OF WARRANTY. Upon the
occurrence of a Repurchase Event, Seller shall, unless the breach which is the
subject of such Repurchase Event shall have been cured in all material respects,
repurchase the Receivable relating thereto from the Issuer by the last day of
the first full calendar month following the discovery of such breach by the
Seller or receipt by the Seller of notice of such breach from any of the Master
Servicer, HARC, a Trust Officer of the Trustee or the Owner Trustee and,
simultaneously with the repurchase of the Receivable, Seller shall deposit the
Repurchase Amount in full, without deduction or offset, in the Master Collection
Account, pursuant to Section 3.2 of the Master Sale and Servicing Agreement. It
is understood and agreed that, except as set forth in Section 6.1 hereof, the
obligation of Seller to repurchase any Receivable, as to which a breach occurred
and is continuing, shall, if such obligation is fulfilled, constitute the sole
remedy against Seller for such breach available to HARC, the Issuer, the
Noteholders, the Certificateholders, the Trustee, on behalf of the Noteholders
or the Owner Trustee on behalf of Certificateholders. The provisions of this
Section 5.1 are intended to grant the Trustee or the Issuer a direct right
against Seller to demand performance hereunder, and in connection therewith,
Seller waives any requirement of prior demand against HARC with respect to such
repurchase obligation. Any such repurchase shall take place in the manner
specified in Section 3.2 of the Master Sale and Servicing Agreement.
Notwithstanding any other provision of this Agreement or the Master Sale and
Servicing Agreement to the contrary, the obligation of Seller under this Section
shall not terminate upon a termination of Household Finance Corporation as
Master Servicer under the Master Sale and Servicing Agreement and shall be
performed in accordance with the terms hereof notwithstanding the failure of the
Master Servicer or HARC to perform any of their respective obligations with
respect to such Receivable under the Master Sale and Servicing Agreement.
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.2 REASSIGNMENT OF REPURCHASED RECEIVABLES. Upon deposit in the Master
Collection Account of the Repurchase Amount of any Receivable repurchased by
Seller under Section 5.1 hereof, HARC and the Issuer shall take such steps as
may be reasonably requested by Seller in order to assign to Seller all of HARC's
and the Issuer's right, title and interest in and to such Receivable and all
security and documents and all Other Conveyed Property conveyed to HARC and the
Issuer directly relating thereto, without recourse, representation or warranty,
except as to the absence of liens, charges or encumbrances created by or arising
as a result of actions of HARC or the Issuer. Such assignment shall be a sale
and assignment outright, and not for security. If, following the reassignment of
a Repurchased Receivable, in any enforcement suit or legal proceeding, it is
held that Seller may not enforce any such Receivable on the ground that it shall
not be a real party in interest or a holder entitled to enforce the Receivable,
HARC and the Issuer shall, at the expense of Seller, take such steps as Seller
deems reasonably necessary to enforce the Receivable, including bringing suit in
HARC's or in the Issuer's name.
.3 WAIVERS. No failure or delay on the part of HARC, or the Issuer as
assignee of HARC, in exercising any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or future exercise thereof or
the exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
.1 LIABILITY OF SELLER. Seller shall be liable in accordance herewith
only to the extent of the obligations in this Agreement specifically undertaken
by Seller and the representations and warranties of Seller.
.2 AMENDMENT. This Agreement and any Conveyance Papers and the rights
and obligations of the parties hereunder may not be changed orally, but only by
an instrument in writing signed by HARC and the Seller in accordance with this
Section 6.2. This Agreement and any Conveyance Papers may be amended from time
to time by HARC and the Seller, provided that HARC provides to the Seller (a) an
Officer's Certificate to the effect that HARC reasonably believes that such
amendment will not have an adverse effect upon the interest of the Noteholders
or Certificateholders and (b) an Opinion of Counsel addressed and delivered to
the Seller, dated the date of such amendment, to the effect that the conditions
precedent to any such amendment have been satisfied.
.3 GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE PAPERS SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
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REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
.4 NOTICES. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, return receipt requested, to (a) in the case of
the Seller, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, Attention: Chief
Operating Officer, with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Attention: Director--Asset Securitization, (b) in the case of HARC, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Compliance Officer, with a
copy to ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer; or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
.5 SEVERABILITY OF PROVISIONS. If any one or more of the covenants,
agreements, provisions, or terms of this Agreement or Conveyance Paper shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, and terms of this Agreement or any Conveyance Paper and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of any Conveyance Paper.
.6 ASSIGNMENT. Notwithstanding anything to the contrary contained
herein, other than HARC's assignment of its rights, title, and interests in, to,
and under this Agreement to the Trustee for the benefit of the Noteholders, as
contemplated by the Master Sale and Servicing Agreement and Section 6.6 hereof,
the Receivables, the Other Conveyed Property, this Agreement and all other
Conveyance Papers may not be assigned by the parties hereto; PROVIDED, HOWEVER,
that Seller shall have the right to assign its rights, title and interests, in
to and under this Agreement to (i) any successor by merger or consolidation, or
any Person which acquires by conveyance, transfer or sale the properties and
assets of Seller (ii) any Affiliate owned directly or indirectly by Household
International, Inc. or (iii) to any entity provided that the Rating Agency has
advised HARC and Seller that the Rating Agency Condition has been satisfied. The
right granted in the foregoing proviso is subject to the further condition that
any such successor or other Person shall expressly assume by written agreement,
in form and substance satisfactory to HARC, the obligations of Seller hereunder
and under the Conveyance Papers.
.7 ACKNOWLEDGMENT AND AGREEMENT OF EACH SELLER. By execution below,
the Seller expressly acknowledges and agrees that all of HARC's right, title,
and interest in, to, and under this Agreement, including, without limitation,
all of HARC's right title, and interest in and to the Receivables purchased
pursuant to this Agreement, shall be assigned by HARC to the Trustee for the
benefit of the Noteholders, and Seller consents to such assignment.
Additionally, Seller agrees for the benefit of the Trustee that any amounts
payable by Seller to HARC hereunder which are to be paid by HARC to the Trustee
for the benefit of the Noteholders shall be paid by Seller, on behalf of HARC,
directly to the Trustee. Any payment required to be made on or before a
specified date in same-day funds may be made on the prior business day in
next-day funds.
11
.8 FURTHER ASSURANCES. HARC and Seller agree to do and perform, from
time to time, any and all acts and to execute any and further instruments
required or reasonably requested by the other party more fully to effect the
purposes of this Agreement and the Conveyance Papers, including, without
limitation, the execution of any financing statements or continuation statements
or equivalent documents relating to the Receivables for filing under the
provisions of the UCC or other law of any applicable jurisdiction.
.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay
in exercising, on the part of HARC or Seller, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
.10 COUNTERPARTS. This Agreement and all Conveyance Papers may be
executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
.11 BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Each of the
Trustee and the Issuer shall be considered a third-party beneficiary of this
Agreement.
.12 MERGER AND INTEGRATION. Except as specifically stated otherwise
herein, this Agreement and the Conveyance Papers set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Conveyance Papers. This Agreement and the Conveyance Papers may not be modified,
amended, waived or supplemented except as provided herein.
.13 HEADING. The headings are for purposes of reference only and shall
not otherwise affect the meaning or interpretation of any provision hereof.
.14 SCHEDULES AND EXHIBITS. The schedules and exhibits attached hereto
and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties and agreements contained in this Agreement or contained in any
Conveyance Paper, shall remain operative and in full force and effect and shall
survive conveyance of the Receivables by HARC to the Trustee pursuant to the
Master Sale and Servicing Agreement.
.16 NONPETITION COVENANT. Until the date which is one year and one day
after payment in full of all the Notes of all Series, neither HARC nor Seller
shall petition or otherwise invoke the process of any court or government
authority for the purpose of
12
commencing or sustaining a case against HARC, Seller or the Issuer under any
Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of HARC, Seller or the Issuer or any substantial part of
their respective properties, or ordering the winding up or liquidation of the
affairs of HARC, Seller or the Issuer. This provision shall survive the
termination of this Agreement.
[Signature Page Follows]
13
IN WITNESS WHEREOF, the parties have caused this Master Purchase
Agreement to be duly executed by their respective officers as of the day and
year first above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By:
---------------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By:
---------------------------------------
Name:
Title:
[Signature Page for Master Purchase Agreement]
14
EXHIBIT A
FORM OF RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT
Transfer No. of Receivables, dated as of ___________________, pursuant
to a Master Receivables Purchase Agreement (the "Purchase Agreement") dated as
of ________, between Household Automotive Finance Corporation, a Delaware
corporation (the "Seller") and Household Auto Receivables Corporation, a Nevada
corporation ("HARC").
W I T N E S S E T H :
WHEREAS pursuant to the Purchase Agreement, the Seller wishes to
convey Receivables and Other Conveyed Property to HARC; and
WHEREAS, HARC is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, the Seller and HARC hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall have the
meanings ascribed to them in the Purchase Agreement unless otherwise defined
herein.
"Cutoff Date" shall mean with respect to the Receivables conveyed
hereby, __________________________.
"Purchase Date" shall mean with respect to the Receivables conveyed
hereby, __________________________.
"Purchase Price" shall mean 100% of the Principal Balance of the
Receivables on the books and records of the Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into account
any uncertainty as to future performance matching historical performance,
servicing fees, delinquencies, paydown rates, yield and such other factors as
may be mutually agreed upon by Seller and HARC.
2. SCHEDULE OF RECEIVABLES. Annexed as Schedule A hereto is a computer
tape which reflects the Receivables that constitute the Receivables to be
conveyed pursuant to this Agreement on the Purchase Date.
3. CONVEYANCE OF RECEIVABLES. In consideration of HARC's delivery to
or upon the order of the Seller of the Purchase Price, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to HARC, without recourse
(except as expressly provided in the Purchase Agreement), all right, title and
interest of the Seller in and to:
A-1
(i) each and every Receivable listed on Schedule A hereto and all
monies paid or payable thereon or in respect thereof on or after the
related Cutoff Date (including amounts due on or before the related Cutoff
Date but received by the Seller on or after such date);
(ii) the security interests in the related Financed Vehicles granted
by Obligors pursuant to such Receivables and any other interest of the
Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers pursuant to Dealer
Agreements or Dealer Assignments related to such Receivables;
(iv) any proceeds and the right to receive proceeds with respect to
such Receivables repurchased by a Dealer, pursuant to a Dealer Agreement,
as a result of a breach of representation or warranty in the related Dealer
Agreement;
(v) all rights of Seller under any Service Contracts on the related
Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with respect to
the related Receivables from claims on any physical damage, loss, credit
life or disability insurance policies, if any, covering Financed Vehicles
or Obligors, including rebates of insurance premiums relating to the
Receivables and any proceeds from the liquidation of such Receivables;
(vii) all items contained in the Receivables Files with respect to
such Receivables and any and all other documents that Seller or Master
Servicer keeps on file in accordance with its customary procedures relating
to the related Receivables, or the related Financed Vehicles or Obligor;
(viii) property (including the right to receive future Net Liquidation
Proceeds) that secures each related Receivable and that has been acquired
by or on behalf of HARC pursuant to liquidation of such Receivable;
(ix) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any
time constitute all or part of or are included in the proceeds of any of
the foregoing.
A-2
1. REPRESENTATIONS AND WARRANTIES OF THE SELLER. As of the Purchase
Date, the Seller hereby makes the representations and warranties to HARC that
are set forth in Section 3.1 of the Purchase Agreement with respect to the
Conveyance effected hereby to the same extent as if set forth in full herein.
2. REPRESENTATIONS AND WARRANTIES OF HARC. As of the Purchase Date,
HARC hereby makes the representations and warranties to the Seller that are set
forth in Section 3.2 of the Purchase Agreement with respect to the Conveyance
effected hereby to the same extent as if set forth in full herein.
In the event of any breach of a representation and warranty made by
HARC hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes and
Certificates issued by the Trust have been paid in full. Seller and HARC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by HARC, Issuer or by the Trustee on
behalf of the Noteholders and Owner Trustee on behalf of the Certificateholders.
3. CONDITIONS PRECEDENT. The obligation of HARC to acquire the
Receivables hereunder is subject to the satisfaction, on or prior to the
Purchase Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Seller in Section 4 of this Agreement and in Section 3.1
of the Master Receivables Purchase Agreement shall be true and correct as of the
date of this Agreement and as of the Purchase Date.
(b) ADDITIONAL INFORMATION. The Seller shall have delivered to HARC
such information as was reasonably requested by HARC to satisfy itself as to (i)
the accuracy of the representations and warranties set forth in Section 4 of
this Agreement and in Section 3.1 of the Master Receivables Purchase Agreement
and (ii) the satisfaction of the conditions set forth in this Section.
4. RATIFICATION OF AGREEMENT. As supplemented by this Agreement, the
Master Receivables Purchase Agreement is in all respects ratified and confirmed
and the Master Receivables Purchase Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
6. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY TO
THE ISSUER. Seller acknowledges that HARC intends, pursuant to the Master Sale
and Servicing Agreement, to convey the Receivables and the Other Conveyed
Property,
A-3
together with its rights under this Agreement, to the Issuer on the Transfer
Date. Seller acknowledges and consents to such conveyance and pledge and
waives any further notice thereof and covenants and agrees that the
representations and warranties of Seller contained in this Agreement and the
rights of HARC hereunder are intended to benefit the Issuer, the Owner
Trustee, the Noteholders and the Certificateholders. In furtherance of the
foregoing, Seller covenants and agrees to perform its duties and obligations
hereunder, in accordance with the terms hereof for the benefit of the Issuer,
the Owner Trustee, the Trustee and the Noteholders and that, notwithstanding
anything to the contrary in this Agreement, Seller shall be directly liable
to the Issuer, the Owner Trustee, the Trustee and the Noteholders
(notwithstanding any failure by the Master Servicer or HARC to perform their
respective duties and obligations hereunder or under Basic Documents) and
that the Trustee may enforce the duties and obligations of Seller under this
Agreement against Seller for the benefit of the Noteholders and the Owner
Trustee.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Seller and HARC have caused this Purchase
Agreement to be duly executed and delivered by their respective duly authorized
officers as of day and the year first above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By:
---------------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By:
---------------------------------------
Name:
Title:
A-5
SCHEDULE A
SCHEDULE OF RECEIVABLES
(COMPUTER TAPE)