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EXHIBIT 4.4
RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
between
ARCADIA RECEIVABLES FINANCE CORP.
Purchaser
and
ARCADIA FINANCIAL LTD.
Seller
dated as of
June 1, 2000
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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. Usage of Terms.....................................................................3
SECTION 1.4. Certain References.................................................................3
SECTION 1.5. No Recourse........................................................................3
SECTION 1.6. Action by or Consent of Noteholders................................................3
ARTICLE II CONVEYANCE OF THE RECEIVABLES AND THE
OTHER CONVEYED PROPERTY.........................................................................4
SECTION 2.1. Conveyance of the Receivables and the Other Conveyed Property......................4
SECTION 2.2. Purchase Price of Receivables......................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................................................4
SECTION 3.1. Representations and Warranties of AFL..............................................4
SECTION 3.2. Representations and Warranties of ARFC.............................................6
ARTICLE IV COVENANTS OF AFL................................................................................8
SECTION 4.1. Protection of Title of ARFC and the Trust..........................................8
SECTION 4.2. Other Liens or Interests...........................................................9
SECTION 4.3. Costs and Expenses.................................................................9
SECTION 4.4. Indemnification....................................................................9
ARTICLE V REPURCHASES....................................................................................11
SECTION 5.1. Repurchase of Receivables Upon Breach of Warranty.................................11
SECTION 5.2. Reassignment of Purchased Receivables.............................................11
SECTION 5.3. Waivers...........................................................................12
ARTICLE VI MISCELLANEOUS..................................................................................12
SECTION 6.1. Liability of AFL..................................................................12
SECTION 6.2. Merger or Consolidation of AFL or ARFC............................................12
SECTION 6.3. Limitation on Liability of AFL and Others.........................................13
SECTION 6.4. AFL May Own Notes.................................................................13
SECTION 6.5. Amendment.........................................................................13
SECTION 6.6. Notices...........................................................................14
SECTION 6.7. Merger and Integration............................................................14
SECTION 6.8. Severability of Provisions........................................................14
SECTION 6.9. Intention of the Parties..........................................................14
SECTION 6.10. Governing Law.....................................................................14
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SECTION 6.11. Counterparts......................................................................15
SECTION 6.12. Conveyance of the Receivables and the Other Conveyed
Property to the Trust.............................................................15
SECTION 6.13. Nonpetition Covenant..............................................................15
SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties of AFL
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RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
THIS RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT, dated as
of June 1, 2000, executed between Arcadia Receivables Finance Corp., a Delaware
corporation, as purchaser ("ARFC"), and Arcadia Financial Ltd., a Minnesota
corporation, as seller ("AFL").
WITNESSETH:
WHEREAS, ARFC has agreed to purchase from AFL and AFL,
pursuant to this Agreement, has agreed to transfer to ARFC the Receivables and
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, ARFC and AFL, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this
Article include the plural as well as the singular. The words "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise specified,
refer to Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement, dated as of
June 1, 2000, by and among Arcadia Receivables Finance Corp. (as Seller),
Arcadia Financial Ltd. (in its individual capacity and as Servicer) and
Associates Automobile Receivables Trust 2000-1 (as Issuer) (the "Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and
Assignment and all amendments hereof and supplements hereto.
"Closing Date" means June 22, 2000.
"Indenture Trustee" means Bank One, National Association, a
national banking association, as trustee under the Indenture, dated as of June
1, 2000, between the Trust and the Indenture Trustee.
"Other Conveyed Property" means all monies at any time paid or
payable on the Receivables or in respect thereof after the Cutoff Date
(including amounts due on or before the Cutoff Date but received by AFL after
the Cutoff Date), an assignment of security interests in the Financed
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Vehicles, the Collection Account (including all Eligible Investments therein and
all proceeds therefrom), the Insurance Policies and any proceeds from any
Insurance Policies relating to the Receivables, the Obligors or the related
Financed Vehicles, including rebates of premiums, rights under any Collateral
Insurance relating to the Receivables, an assignment of the rights of AFL
against Dealers with respect to the Receivables under the Dealer Agreements and
the Dealer Assignments, all items contained in the Receivable Files relating to
the Receivables, any and all other documents or electronic records that AFL
keeps on file in accordance with its customary procedures relating to the
Receivables, the Obligors or the related Financed Vehicles, property (including
the right to receive future Liquidation Proceeds) that secures a Receivable and
that has been acquired by or on behalf of the Trust pursuant to liquidation of
such Receivable, and all proceeds of the foregoing.
"Owner Trustee" means Wilmington Trust Company, a Delaware
corporation, not in its individual capacity but solely as trustee of the Trust,
and any successor trustee appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Receivables listed on the Schedule of
Receivables attached hereto as Schedule A.
"Related Documents" means the Trust Agreement, the Indenture,
the Notes, the Certificates, the Sale and Servicing Agreement, the
Administration Agreement, the Custodian Agreement, the Lockbox Agreement, the
Depository Agreement, the letter agreement between Associates Corporation of
North America and the underwriters of the Notes and the Underwriting Agreement
among AFL, ARFC and the underwriters of the Notes. The Related Documents
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
AFL's representations and warranties hereunder or any other event which requires
the repurchase of a Receivable by AFL under the Sale and Servicing Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of June 1, 2000, executed and delivered by ARFC, as Seller,
AFL, in its individual capacity as Servicer, and Associates Automobile
Receivables Trust 2000-1, as Issuer.
"Schedule of Receivables" means the schedule of all retail
installment sales contracts and promissory notes sold and transferred pursuant
to this Agreement which is attached hereto as Schedule A.
"Schedule of Representations" means the Representations and
Warranties of AFL attached hereto as Schedule B.
"Trust" means the trust created by the Trust Agreement, the
estate of which consists of the Trust Property.
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"Trust Property" means the property and proceeds of every
description conveyed pursuant to Section 2.5 of the Trust Agreement, Section 2.1
of the Sale and Servicing Agreement and Section 2.1 hereof, together with the
Trust Accounts (including all Eligible Investments therein and all proceeds
therefrom).
SECTION 1.3. Usage of Terms. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4. Certain References. All references to the
Principal Balance of a Receivable as of an Accounting Date shall refer to the
close of business on such day, or as of the first day of a Monthly Period shall
refer to the opening of business on such day. All references to the last day of
a Monthly Period shall refer to the close of business on such day.
SECTION 1.5. No Recourse. Without limiting the obligations of
AFL hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of AFL, or
of any predecessor or successor of AFL.
SECTION 1.6. Action by or Consent of Noteholders. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Noteholders, such provision shall be deemed to refer to Noteholders of record as
of the Record Date immediately preceding the date on which such action is to be
taken, or consent given, by Noteholders. Solely for the purposes of any action
to be taken, or consented to, by Noteholders, any Note registered in the name of
the Seller, AFL or any Affiliate thereof shall be deemed not to be outstanding,
and the related Outstanding Amount (as defined in the Indenture), evidenced
thereby shall not be taken into account in determining whether the requisite
Outstanding Amount necessary to effect any such action or consent has been
obtained; provided, however, that, solely for the purpose of determining whether
the Indenture Trustee is entitled to rely upon any such action or consent, only
Notes which the Indenture Trustee knows to be so owned shall be so disregarded.
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ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Receivables and the Other
Conveyed Property. Subject to the terms and conditions of this Agreement, AFL
hereby sells, transfers, assigns, and otherwise conveys to ARFC without recourse
(but without limitation of its obligations in this Agreement), and ARFC hereby
purchases, all right, title and interest of AFL in and to the Receivables and
the Other Conveyed Property. It is the intention of AFL and ARFC that the
transfer and assignment contemplated by this Agreement shall constitute a sale
of the Receivables and the Other Conveyed Property from AFL to ARFC, conveying
good title thereto free and clear of any Liens, and the Receivables and the
Other Conveyed Property shall not be part of AFL's estate in the event of the
filing of a bankruptcy petition by or against AFL under any bankruptcy or
similar law.
SECTION 2.2. Purchase Price of Receivables. Simultaneously
with the conveyance of the Receivables and the Other Conveyed Property to ARFC,
ARFC has paid or caused to be paid to or upon the order of AFL approximately
$743,967,757.00 by wire transfer of immediately available funds (representing
the proceeds to ARFC from the sale of the Receivables to the Trust after
depositing $4,166,738.00 in the Reserve Account).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of AFL. AFL makes
the following representations and warranties, on which ARFC relies in purchasing
the Receivables and the Other Conveyed Property and in transferring the
Receivables and the Other Conveyed Property to the Trust under the Sale and
Servicing Agreement. Such representations are made as of the execution and
delivery of this Agreement, 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 ARFC to the Trust under the Sale and
Servicing Agreement. AFL and ARFC agree that ARFC will assign to the Trust all
of ARFC's rights under this Agreement and that the Trust will thereafter be
entitled to enforce this Agreement against AFL in the Trust's own name.
(a) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations are true and
correct.
(b) Organization and Good Standing. AFL has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Minnesota, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Receivables and the Other Conveyed Property
transferred to ARFC.
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(c) Due Qualification. AFL is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification and in which the failure so to qualify would have a
material adverse effect on (a) its business, properties, assets or
condition (financial or other) or (b) its performance of its
obligations under this Agreement and its Related Documents.
(d) Power and Authority. AFL has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; AFL has full power
and authority to sell and assign the Receivables and the Other Conveyed
Property to be sold and assigned to and deposited with ARFC hereunder
and has duly authorized such sale and assignment to ARFC by all
necessary corporate action; and the execution, delivery and performance
of this Agreement and AFL's Related Documents have been duly authorized
by AFL by all necessary corporate action.
(e) Binding Obligations. This Agreement and AFL's Related
Documents have been duly executed and delivered and constitute legal,
valid and binding obligations of AFL enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the articles of incorporation or bylaws of AFL,
or any indenture, agreement, mortgage, deed of trust or other
instrument to which AFL is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed
of trust or other instrument, other than this Agreement and the Sale
and Servicing Agreement, or violate any law, order, rule or regulation
applicable to AFL of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over AFL or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to AFL's knowledge, threatened against AFL, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over AFL or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by AFL of its obligations under, or the validity
or enforceability of, this Agreement or any of the Related Documents or
(iv) seeking to affect adversely the federal income tax or
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other federal, state or local tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Sale and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of AFL
is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
SECTION 3.2. Representations and Warranties of ARFC. ARFC
makes the following representations and warranties, on which AFL relies in
selling, assigning, transferring and conveying the Receivables and the Other
Conveyed Property to ARFC hereunder. Such representations are made as of the
execution and delivery of this Agreement, 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 ARFC to the Trust
under the Sale and Servicing Agreement.
(a) Organization and Good Standing. ARFC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Receivables and the Other Conveyed Property and
to transfer the Receivables and the Other Conveyed Property to the
Trust pursuant to the Sale and Servicing Agreement.
(b) Due Qualification. ARFC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect (i) ARFC's ability to
acquire the Receivables or the Other Conveyed Property, (ii) the
validity or enforceability of the Receivables and the Other Conveyed
Property or (iii) ARFC's ability to perform its obligations hereunder
and under the Related Documents.
(c) Power and Authority. ARFC has the power, authority and
legal right to execute and deliver this Agreement and its Related
Documents and to carry out the terms hereof and thereof and to acquire
the Receivables and the Other Conveyed Property hereunder; and the
execution, delivery and performance of this Agreement and its Related
Documents and all of the documents required pursuant hereto or thereto
have been duly authorized by ARFC by all necessary action.
(d) No Consent Required. ARFC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
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(e) Binding Obligation. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of ARFC,
enforceable against ARFC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and
to general equitable principles.
(f) No Violation. The execution, delivery and performance by
ARFC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice or lapse
of time) a default under the certificate of incorporation or bylaws of
ARFC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which ARFC is a party or by which ARFC is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement and the Indenture), or
violate any law, order, rule or regulation, applicable to ARFC or its
properties, of any federal or state regulatory body or any court,
administrative agency, or other governmental instrumentality having
jurisdiction over ARFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of ARFC, threatened against ARFC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over ARFC or its
properties: (i) asserting the invalidity of this Agreement or any of
the Related Documents, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by ARFC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property
hereunder or the transfer of the Receivables and the Other Conveyed
Property to the Trust pursuant to the Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by ARFC
hereunder, AFL covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the later of (i) the date on which all
pass-through certificates or other similar securities issued by the Trust, or a
trust or similar vehicle formed by ARFC, have been paid in full, or (ii) all
Notes or other similar securities issued by the Trust, or a trust or similar
vehicle formed by ARFC, have been paid in full. AFL and ARFC agree that damages
will not be an adequate remedy for such breach and that this covenant may be
specifically enforced by ARFC or by the Owner Trustee on behalf of the Trust.
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ARTICLE IV
COVENANTS OF AFL
SECTION 4.1. Protection of Title of ARFC and the Trust.
(a) At or prior to the Closing Date, AFL shall have filed or
caused to be filed a UCC-1 financing statement, executed by AFL as seller or
debtor, naming ARFC as purchaser or secured party and describing the Receivables
and the Other Conveyed Property being sold by it to ARFC as collateral, with the
office of the Secretary of State of the State of Texas and in such other
locations as ARFC shall have required. From time to time thereafter, AFL shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of ARFC
under this Agreement and of the Trust under the Sale and Servicing Agreement in
the Receivables and the Other Conveyed Property and in the proceeds thereof. AFL
shall deliver (or cause to be delivered) to ARFC, the Owner Trustee and the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing. In the
event that AFL fails to perform its obligations under this subsection, ARFC or
the Owner Trustee may do so at the expense of AFL.
(b) AFL shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by AFL (or by ARFC or the Owner Trustee on
behalf of AFL) in accordance with paragraph (a) above seriously misleading
within the meaning of Section 9-402(7) of the UCC, unless it shall have given
ARFC and the Owner Trustee at least 60 days' prior written notice thereof, and
shall promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(c) AFL shall give ARFC, the Indenture Trustee and the Owner
Trustee at least 60 days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement. AFL shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) AFL shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to ARFC, and the
conveyance of the Receivables by ARFC to the Trust, AFL's master computer
records (including archives) that shall refer to a Receivable, indicate clearly
that such Receivable has been sold to ARFC and has been conveyed by ARFC to the
Trust. Indication of the Trust's ownership of a Receivable shall be deleted from
or modified on AFL's computer systems when, and only when, the Receivable shall
become a Purchased Receivable or shall have been paid in full.
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(e) If at any time AFL shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle receivables to
any prospective purchaser, lender or other transferee, AFL shall give to such
prospective purchaser, lender, or other transferee computer tapes, records, or
print-outs (including any restored from archives) that, if they shall refer in
any manner whatsoever to any Receivable, shall indicate clearly that such
Receivable has been sold to ARFC and is owned by the Trust.
SECTION 4.2. Other Liens or Interests. Except for the
conveyances hereunder, AFL will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on the
Receivables or the Other Conveyed Property, or any interest therein, and AFL
shall defend the right, title, and interest of ARFC and the Trust in and to the
Receivables and the Other Conveyed Property against all claims of third parties
claiming through or under AFL.
SECTION 4.3. Costs and Expenses. AFL shall pay all reasonable
costs and disbursements in connection with the performance of its obligations
hereunder and under the Related Documents.
SECTION 4.4. Indemnification.
(a) AFL shall defend, indemnify and hold harmless ARFC, the
Trust, the Owner Trustee, the Indenture Trustee and the Noteholders from and
against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from any breach of any of AFL's representations and
warranties contained herein.
(b) AFL shall defend, indemnify and hold harmless ARFC, the
Trust, the Owner Trustee, the Indenture Trustee and the Noteholders from and
against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the use, ownership or operation by AFL or any
Affiliate thereof of a Financed Vehicle.
(c) AFL shall defend and indemnify ARFC, the Trust, the Owner
Trustee, the Indenture Trustee and the Noteholders against any and all costs,
expenses, losses, damages, claims and liabilities arising out of or resulting
from any action taken, or failed to be taken, by it in respect of any portion of
the Trust Property other than in accordance with this Agreement or the Sale and
Servicing Agreement.
(d) AFL agrees to pay, and shall defend, indemnify and hold
harmless ARFC, the Trust, the Owner Trustee, the Indenture Trustee and the
Noteholders from and against any taxes that may at any time be asserted against
ARFC, the Owner Trustee, the Indenture Trustee and the Noteholders with respect
to the transactions contemplated in this Agreement, including, without
limitation, any sales, gross receipts, general corporation, tangible or
intangible personal property, privilege, or license taxes (but not including any
taxes asserted with respect to, and as of the date of, the sale, transfer and
assignment of the Receivables and the Other Conveyed Property to ARFC and of the
Trust Property to the Trust or the issuance and original sale of the Notes, or
asserted with respect to
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ownership of the Receivables and Other Conveyed Property or the Receivables or
Other Conveyed Property or the Trust Property which shall be indemnified by AFL
pursuant to clause (e) below, or federal, state or other income taxes, arising
out of distributions on the Notes or transfer taxes arising in connection with
the transfer of the Notes) and costs and expenses in defending against the same,
arising by reason of the acts to be performed by AFL under this Agreement or
imposed against such Persons.
(e) AFL agrees to pay, and to indemnify, defend and hold
harmless ARFC, the Trust, the Owner Trustee, the Indenture Trustee and the
Noteholders from, any taxes which may at any time be asserted against such
Persons with respect to, and as of the date of, the conveyance or ownership of
the Receivables or the Other Conveyed Property hereunder and the conveyance or
ownership of the Trust Property under the Sale and Servicing Agreement or the
issuance and original sale of the Notes, including, without limitation, any
sales, gross receipts, personal property, tangible or intangible personal
property, privilege or license taxes (but not including any federal or other
income taxes, including franchise taxes, arising out of the transactions
contemplated hereby or transfer taxes arising in connection with the transfer of
Notes) and costs and expenses in defending against the same, arising by reason
of the acts to be performed by AFL under this Agreement or imposed against such
Persons.
(f) AFL shall defend, indemnify, and hold harmless ARFC, the
Owner Trustee, the Indenture Trustee, the Trust and the Noteholders from and
against any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability arose out
of, or was imposed upon ARFC, the Trust, the Indenture Trustee and the
Noteholders through the negligence, willful misfeasance, or bad faith of AFL in
the performance of its duties under this Agreement or by reason of reckless
disregard of AFL's obligations and duties under this Agreement.
(g) AFL shall indemnify, defend and hold harmless ARFC, the
Owner Trustee, the Indenture Trustee, the Trust and the Noteholders from and
against any loss, liability or expense incurred by reason of the violation by
AFL of federal or state securities laws in connection with the registration or
the sale of the Notes.
(h) AFL shall indemnify, defend and hold harmless ARFC, the
Owner Trustee, the Indenture Trustee, the Trust and the Noteholders from and
against any loss, liability or expense imposed upon, or incurred by, ARFC, the
Owner Trustee, the Indenture Trustee, the Trust or the Noteholders as a result
of the failure of any Receivable, or the sale of the related Financed Vehicle,
to comply with all requirements of applicable law.
(i) AFL shall defend, indemnify, and hold harmless ARFC from
and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or performance of
AFL's trusts and duties as Servicer under the Sale and Servicing Agreement,
except to the extent that such cost, expense, loss, claim, damage, or liability
shall be due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of ARFC.
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(j) AFL shall indemnify, defend and hold harmless ARFC, the
Owner Trustee, the Indenture Trustee, the Trust and the Noteholders from and
against any loss, liability or expense imposed upon, or incurred by, ARFC, the
Owner Trustee and the Indenture Trustee, the Trust and the Noteholders as a
result of AFL's or ARFC's use of the name "Arcadia."
Indemnification under this Section 4.4 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive termination of the Trust. The indemnity obligations hereunder shall be
in addition to any obligation that AFL may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Receivables Upon Breach of
Warranty. Upon the occurrence of a Repurchase Event, AFL shall, unless such
breach shall have been cured in all material respects, repurchase such
Receivable from the Trust and, on or before the related Draw Date, AFL shall pay
the Purchase Amount to the Trust pursuant to Section 4.5 of the Sale and
Servicing Agreement. It is understood and agreed that, except as set forth in
Section 6.1, the obligation of AFL to repurchase any Receivable as to which a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against AFL for such breach available to ARFC, the
Noteholders or the Indenture Trustee on behalf of the Noteholders. The
provisions of this Section 5.1 are intended to grant the Owner Trustee and the
Indenture Trustee a direct right against AFL to demand performance hereunder,
and in connection therewith, AFL waives any requirement of prior demand against
ARFC with respect to such repurchase obligation. Any such purchase shall take
place in the manner specified in Section 2.5 of the Sale and Servicing
Agreement. Notwithstanding any other provision of this Agreement or the Sale and
Servicing Agreement to the contrary, the obligation of AFL under this Section
shall not terminate upon a termination of AFL as Servicer under the Sale and
Servicing Agreement and shall be performed in accordance with the terms hereof
notwithstanding the failure of the Servicer or ARFC to perform any of their
respective obligations with respect to such Receivable under the Sale and
Servicing Agreement.
SECTION 5.2. Reassignment of Purchased Receivables. Upon
deposit in the Collection Account of the Purchase Amount of any Receivable
repurchased by AFL under Section 5.1, ARFC and the Owner Trustee shall take such
steps as may be reasonably requested by AFL in order to assign to AFL all of
ARFC's and the Trust's right, title and interest in and to such Receivable and
all security and documents and all Other Conveyed Property conveyed to ARFC and
the Trust directly relating thereto, without recourse, representation or
warranty, except as to the absence of liens, charges or encumbrances created by
or arising as a result of actions of ARFC or the Owner Trustee. Such assignment
shall be a sale and assignment outright, and not for security. If, following the
reassignment of a Purchased Receivable, in any enforcement suit or legal
proceeding, it is held that AFL may not enforce any such Receivable on the
ground that it shall not be a real party in interest or a holder entitled to
enforce the Receivable, ARFC and the Owner Trustee shall, at the expense of AFL,
take such steps as AFL deems reasonably necessary to enforce the Receivable,
including bringing suit in ARFC's or the Owner Trustee's name.
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SECTION 5.3. Waivers. No failure or delay on the part of ARFC,
or the Owner Trustee as assignee of ARFC, in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
or future exercise thereof or the exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of AFL. AFL shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by AFL and the representations and warranties of AFL.
SECTION 6.2. Merger or Consolidation of AFL or ARFC. Any
corporation or other entity (i) into which AFL or ARFC may be merged or
consolidated, (ii) resulting from any merger or consolidation to which AFL or
ARFC is a party or (iii) succeeding to the business of AFL or ARFC, in the case
of ARFC, which corporation has a certificate of incorporation containing
provisions relating to limitations on business and other matters substantively
identical to those contained in ARFC's certificate of incorporation, provided
that in any of the foregoing cases such corporation shall execute an agreement
of assumption to perform every obligation of AFL or ARFC, as the case may be,
under this Agreement and, whether or not such assumption agreement is executed,
shall be the successor to AFL or ARFC, as the case may be, hereunder (without
relieving AFL or ARFC of its responsibilities hereunder, if it survives such
merger or consolidation) without the execution or filing of any document or any
further act by any of the parties to this Agreement. AFL or ARFC shall promptly
inform the other party, the Owner Trustee and the Indenture Trustee of such
merger, consolidation or purchase and assumption. Notwithstanding the foregoing,
as a condition to the consummation of the transactions referred to in clauses
(i), (ii) and (iii) above, (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Sections 3.1 and 3.2
of this Agreement shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation of
such transaction), (y) AFL or ARFC, as applicable, shall have delivered written
notice of such consolidation, merger or purchase and assumption to the Rating
Agencies prior to the consummation of such transaction and shall have delivered
to the Owner Trustee and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 6.2 and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with and none of the Rating Agencies shall have
indicated that the transaction will result in a downgrade of any Notes, and (z)
AFL or ARFC, as applicable, shall have delivered to the Owner Trustee and the
Indenture Trustee an Opinion of Counsel, stating that, in the opinion of such
counsel, either (A) all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary to preserve
and protect the interest of the Owner Trustee in the Trust Property and reciting
the details of the filings or (B) no such action shall be necessary to preserve
and protect such interest.
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SECTION 6.3. Limitation on Liability of AFL and Others. AFL
and any director, officer, employee or agent may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
AFL shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement or
its Related Documents and that in its opinion may involve it in any expense or
liability.
SECTION 6.4. AFL May Own Notes. Subject to the provisions of
the Sale and Servicing Agreement, AFL and any Affiliate of AFL may in its
individual or any other capacity become the owner or pledgee of Notes or
Certificates with the same rights as it would have if it were not AFL or an
Affiliate thereof.
SECTION 6.5. Amendment.
(a) This Agreement may be amended by AFL and ARFC without the
consent of the Owner Trustee, the Indenture Trustee or any of the Noteholders
(A) to cure any ambiguity or (B) to correct any provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by
AFL and ARFC, with the prior written consent of the Owner Trustee, the Indenture
Trustee and a Note Majority, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Noteholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables,
distributions that shall be required to be made on any Note or the Note Interest
Rate or (ii) reduce the aforesaid percentage required to consent to any such
amendment or any waiver hereunder, without the consent of the Holders of all
Notes then outstanding.
(c) Prior to the execution of any such amendment or consent,
AFL shall have furnished written notification of the substance of such amendment
or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee or the Indenture Trustee, as applicable, shall
furnish written notification of the substance of such amendment or consent to
each Noteholder.
(e) It shall not be necessary for the consent of Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Noteholders shall be subject to
such reasonable requirements as the Owner Trustee or the Indenture Trustee, as
applicable, may prescribe, including the establishment of record dates. The
consent of any Holder of a Note given pursuant to this Section or pursuant to
any other provision of this Agreement shall be conclusive and binding on such
Holder and
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on all future Holders of such Note and of any Note issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Note.
SECTION 6.6. Notices. All demands, notices and communications
to AFL or ARFC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), reputable overnight courier or
mailed by certified mail, return receipt requested, and shall be deemed to have
been given upon receipt (a) in the case of AFL, to Arcadia Financial Ltd., ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President, with a
copy to Associates Corporation of North America, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President - Capital Markets, or such
other address as shall be designated by AFL in a written notice delivered to the
other party or to the Owner Trustee or the Indenture Trustee, as applicable, or
(b) in case of ARFC, to Arcadia Receivables Finance Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant General Counsel,
with a copy to Associates Corporation of North America, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President - Capital
Markets.
SECTION 6.7. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Related Documents 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 Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.8. Severability of Provisions. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9. Intention of the Parties. The execution and
delivery of this Agreement shall constitute an acknowledgment by AFL and ARFC
that they intend that each assignment and transfer herein and therein
contemplated constitute a sale and assignment outright, and not for security, of
the Receivables and the Other Conveyed Property, conveying good title thereto
free and clear of any Liens, from AFL to ARFC, and that the Receivables and the
Other Conveyed Property shall not be a part of AFL's estate in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, AFL. In the event
that such conveyance is determined to be made as security for a loan made by
ARFC, the Trust or the Noteholders to AFL, the parties intend that AFL shall
have granted to ARFC a security interest in all of AFL's right, title and
interest in and to the Receivables and the Other Conveyed Property conveyed
pursuant to Section 2.1 hereof, and that this Agreement shall constitute a
security agreement under applicable law.
SECTION 6.10. Governing Law. This Agreement shall be construed
in accordance with, the laws of the State of New York without regard to the
principles of conflicts of laws thereof,
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and the obligations, rights and remedies of the parties under this Agreement
shall be determined in accordance with such laws.
SECTION 6.11. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.12. Conveyance of the Receivables and the Other
Conveyed Property to the Trust. AFL acknowledges that ARFC intends, pursuant to
the Sale and Servicing Agreement, to convey the Receivables and the Other
Conveyed Property, together with its rights under this Agreement, to the Trust
on the date hereof. AFL acknowledges and consents to such conveyance and waives
any further notice thereof and covenants and agrees that the representations and
warranties of AFL contained in this Agreement and the rights of ARFC hereunder
are intended to benefit the Owner Trustee, the Indenture Trustee, the Trust and
the Noteholders. In furtherance of the foregoing, AFL covenants and agrees to
perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Owner Trustee, the Indenture Trustee, the Trust
and the Noteholders and that, notwithstanding anything to the contrary in this
Agreement, AFL shall be directly liable to the Owner Trustee and the Trust
(notwithstanding any failure by the Servicer or ARFC to perform its duties and
obligations hereunder or under the Sale and Servicing Agreement) and that the
Owner Trustee may enforce the duties and obligations of AFL under this Agreement
against AFL for the benefit of the Trust and the Noteholders.
SECTION 6.13. Nonpetition Covenant. Neither ARFC nor AFL shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust (or, in the
case of AFL, against ARFC) under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or ARFC) or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Trust (or ARFC).
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IN WITNESS WHEREOF, the parties have caused this Receivables
Purchase Agreement and Assignment to be duly executed by their respective
officers as of the day and year first above written.
ARCADIA RECEIVABLES FINANCE CORP.,
as Purchaser
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
ARCADIA FINANCIAL LTD., as Seller
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
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SCHEDULE A
SCHEDULE OF RECEIVABLES
[Available in transactional files.]
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SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF AFL
1. Characteristics of Receivables. Each Receivable (A) was
originated by a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business and such Dealer had all necessary licenses and
permits to originate Receivables in the state where such Dealer was located, was
fully and properly executed by the parties thereto, was purchased by AFL from
such Dealer under an existing Dealer Agreement with AFL and was validly assigned
by such Dealer to AFL, (B) contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for realization
against the collateral security, and (C) is fully amortizing and provides for
level monthly payments (provided that the payment in the first Monthly Period
and the final Monthly Period of the life of the Receivable may be minimally
different from the level payment) which, if made when due, shall fully amortize
the Amount Financed over the original term.
2. No Fraud or Misrepresentation. Each Receivable was
originated by a Dealer and was sold by the Dealer to AFL without any fraud or
misrepresentation on the part of such Dealer in either case.
3. Compliance with Law. All requirements of applicable
federal, state and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations "B" and "Z",
the Soldiers' and Sailors' Civil Relief Act of 1940, the Minnesota Motor Vehicle
Retail Installment Sales Act, and state adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code and other consumer credit laws and equal
credit opportunity and disclosure laws) in respect of all of the Receivables and
each and every sale of Financed Vehicles, have been complied with in all
material respects, and each Receivable and the sale of the Financed Vehicle
evidenced by each Receivable complied at the time it was originated or made and
now complies in all material respects with all applicable legal requirements.
4. Origination. Each Receivable was originated in the United
States.
5. Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon, enforceable
by the holder thereof in accordance with its terms, except (A) as enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B) as such
Receivable may be modified by the application after the Cutoff Date of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended; and all parties to
each Receivable
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had full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of
America or any State or any agency, department, subdivision or instrumentality
thereof.
7. Obligor Bankruptcy. At the Cutoff Date no Obligor had been
identified on the records of AFL as being the subject of a current bankruptcy
proceeding.
8. Schedule of Receivables. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
Cutoff Date.
9. Marking Records. By the Closing Date AFL will have caused
the portions of the Electronic Ledger relating to the Receivables to be clearly
and unambiguously marked to show that the Receivables constitute part of the
Trust Property and are owned by the Trust in accordance with the terms of the
Sale and Servicing Agreement.
10. Computer Tape. The Computer Tape made available by AFL to
ARFC, the Owner Trustee and the Indenture Trustee on the Closing Date was
complete and accurate as of the Cutoff Date and includes a description of the
same Receivables that are described in the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Noteholders were utilized in selecting the Receivables from those receivables
owned by AFL which met the selection criteria contained in the Sale and
Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper
within the meaning of the UCC as in effect in the States of Minnesota, Texas and
New York.
13. One Original. There is only one original executed copy of
each Receivable.
14. Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable, and such Receivable File contains (a) a fully
executed original of the Receivable, (b) a certificate of insurance, application
form for insurance signed by the Obligor or a signed representation letter from
the Obligor named in the Receivable pursuant to which the Obligor has agreed to
obtain physical damage insurance for the Financed Vehicle, or microfiche or
computer scanned copies thereof, (c) the original Lien Certificate or
application therefor and (d) a credit application signed by the Obligor, or a
microfiche or computer scanned copy thereof. Each of such documents which is
required to be signed by the Obligor has been signed by the Obligor in the
appropriate spaces. All blanks on any form have been properly filled in and each
form has otherwise been correctly prepared. The complete file for each
Receivable currently is in the possession of the Custodian.
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15. Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No provisions of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified as
a result of application of the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
16. Lawful Assignment. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful,
void or voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Notes.
17. Good Title. No Receivable has been sold, transferred,
assigned or pledged by AFL to any Person other than ARFC; immediately prior to
the conveyance of the Receivables to ARFC pursuant to this Agreement, ARFC or
AFL had good and indefeasible title thereto, free and clear of any Lien, and
immediately upon the transfer thereof, ARFC shall have good and indefeasible
title to and will be the sole owner of each Receivable, free of any Lien. No
Dealer has a participation in, or other right to receive, proceeds of any
Receivable. AFL has not taken any action to convey any right to any Person that
would result in such Person having a right to payments received under the
related Insurance Policies or the related Dealer Agreements or Dealer
Assignments or to payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable
created or shall create a valid, binding and enforceable first priority security
interest in favor of AFL in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle, the Lien Certificate will be received within 180 days of the Closing
Date and will show, AFL named as the original secured party under each
Receivable as the holder of a first priority security interest in such Financed
Vehicle. With respect to each Receivable for which the Lien Certificate has not
yet been returned from the Registrar of Titles, AFL has received written
evidence from the related Dealer that such Lien Certificate showing AFL as first
lienholder has been applied for. AFL's security interest has been validly
assigned by AFL to ARFC pursuant to this Agreement. Immediately after the sale,
transfer and assignment thereof by ARFC to the Trust, each Receivable will be
secured by an enforceable and perfected first priority security interest in the
Financed Vehicle in favor of the Trust as secured party, which security interest
is prior to all other Liens upon and security interests in such Financed Vehicle
which now exist or may hereafter arise or be created (except, as to priority,
for any lien for taxes, labor or materials affecting a Financed Vehicle). As of
the Cutoff Date there were no Liens or claims for taxes, work, labor or
materials affecting a Financed Vehicle which are or may be Liens prior or equal
to the lien of the related Receivable.
19. All Filings Made. All filings (including, without
limitation, UCC filings) required to be made by any Person and actions required
to be taken or performed by any Person in any jurisdiction to give the Trust a
first priority perfected lien on, or ownership interest in, the Receivables and
the Other Conveyed Property have been made, taken or performed.
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20. No Impairment. AFL has not done anything to convey any
right to any Person that would result in such Person having a right to payments
due under a Receivable or otherwise to impair the rights of ARFC, the Trust, the
Indenture Trustee and the Noteholders in any Receivable or the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by
another Person in a manner which would release the Obligor thereof from such
Obligor's obligations to AFL with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been asserted
or threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation
or event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or both
would constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date, no Financed Vehicle had been repossessed.
24. Insurance. As of the date hereof, each Financed Vehicle is
covered by a comprehensive and collision insurance policy (i) in an amount at
least equal to the lesser of (a) its maximum insurable value or (b) the
principal amount due from the Obligor under the relate Receivable, (ii) naming
AFL as loss payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage. Each Receivable requires the Obligor to maintain physical
loss and damage insurance, naming AFL and its successors and assigns as
additional insured parties, and each Receivable permits the holder thereof to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle was or had previously been insured
under a policy of Force-Placed Insurance on the Cutoff Date.
25. Past Due. At the Cutoff Date no Receivable was more than
30 days past due.
26. Remaining Principal Balance. At the Cutoff Date each
Receivable had a remaining principal balance equal to or greater than $500.00
and the Principal Balance of each Receivable set forth in the Schedule of
Receivables is true and accurate in all material respects.
27. Final Scheduled Maturity Date. No Receivable has a final
maturity later than February 28, 2007.
28. Certain Characteristics. (A) Each Receivable had a
remaining maturity, as of the Cutoff Date, of at least 3 months but not more
than 84 months; (B) each Receivable had an original maturity of at least 12
months but not more than 84 months; (C) each Receivable had an original
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principal balance of at least $4,124 and not more than $56,431; (D) each
Receivable had a remaining Principal Balance as of the Cutoff Date of at least
$500 and not more than $56,431; (E) each Receivable has an Annual Percentage
Rate of at least 7.75% and not more than 26.99%; (F) no Receivable was more than
30 days past due as of the Cutoff Date; (G) no funds have been advanced by the
Seller, the Servicer, any Dealer, or anyone acting on behalf of any of them in
order to cause any Receivable to qualify under clause (F) above; (H) no
Receivable has a final scheduled payment date on or before May 29, 2000; (I) the
Principal Balance of each Receivable set forth in Schedule of Receivables is
true and accurate in all material respects as of the Cutoff Date; and (J) 11.43%
of the Receivables, by principal balance as of the Cutoff Date, was attributable
to loans for the purchase of new Financed Vehicles and 88.57% of the Receivables
was attributable to loans for the purchase of used Financed Vehicles.
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