EXHIBIT 10.3
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TRANSFER AND SALE AGREEMENT
by and between
EAGLEMARK, INC.
as Seller and Servicer
AND
EAGLEMARK CUSTOMER FUNDING CORPORATION-[ ]
as Purchaser
Dated as of April 1, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT. . . . . . . . . . . . . . 1
Section 2.01. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.02. Conditions to the Closing. . . . . . . . . . . . . . . . . 2
Section 2.03. Assignment of Agreement. . . . . . . . . . . . . . . . . . 3
Section 2.04. Subsequent Contracts.. . . . . . . . . . . . . . . . . . . 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . 4
Section 3.01. Representations and Warranties Regarding Seller. . . . . . 4
Section 3.02. Representations and Warranties Regarding Each Contract.. . 5
Section 3.03. Representations and Warranties Regarding the Contracts in
the Aggregate. . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.04. Representations and Warranties Regarding the Contract
Files. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS . . . . . . . 9
Section 4.01. Custody of Contracts.. . . . . . . . . . . . . . . . . . . 9
Section 4.02. Filing.. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.03. Name Change or Relocation. . . . . . . . . . . . . . . . .10
Section 4.04. Chief Executive Office.. . . . . . . . . . . . . . . . . .10
Section 4.05. Costs and Expenses.. . . . . . . . . . . . . . . . . . . .10
Section 4.06. Sale Treatment.. . . . . . . . . . . . . . . . . . . . . .10
ARTICLE V
REMEDIES UPON MISREPRESENTATION . . . . . . . . . . . . . . . . . . . . .10
Section 5.01. Repurchases of Contracts for Breach of Representations and
Warranties.. . . . . . . . . . . . . . . . . . . . . . . .10
Section 5.02. Seller's Repurchase Option . . . . . . . . . . . . . . . .11
ARTICLE VI
INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 6.01. Seller Indemnification . . . . . . . . . . . . . . . . . .11
Section 6.02. Liabilities to Obligors. . . . . . . . . . . . . . . . . .11
Section 6.03. Tax Indemnification. . . . . . . . . . . . . . . . . . . .11
Section 6.04. Operation of Indemnities.. . . . . . . . . . . . . . . . .11
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 7.01. Prohibited Transactions with Respect to the Trust. . . . .12
Section 7.02. Merger or Consolidation. . . . . . . . . . . . . . . . . .12
Section 7.03. Termination. . . . . . . . . . . . . . . . . . . . . . . .12
Section 7.04. Assignment or Delegation by Seller.. . . . . . . . . . . .12
Section 7.05. Amendment. . . . . . . . . . . . . . . . . . . . . . . . .12
Section 7.06. Notices. . . . . . . . . . . . . . . . . . . . . . . . .13
Section 7.07. Merger and Integration.. . . . . . . . . . . . . . . . . .14
Section 7.08. Headings.. . . . . . . . . . . . . . . . . . . . . . . . .14
Section 7.09. Governing Law. . . . . . . . . . . . . . . . . . . . . . .14
EXHIBITS
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Exhibit A Form of Assignment
Exhibit B Form of Officer's Certificate
Exhibit C Form of Subsequent Purchase Agreement
THIS AGREEMENT, dated as of [ ], is made by and between
Eaglemark, Inc., a Nevada corporation, as seller hereunder (together with its
successors and assigns "EAGLEMARK" or "SELLER"), and Eaglemark Customer Funding
Corporation-[ ], a Nevada corporation and wholly-owned subsidiary of Seller
(together with its successors and assigns "TRUST DEPOSITOR"), as purchaser
hereunder.
WHEREAS, in the regular course of its business, Seller purchases and
services motorcycle conditional sales contracts from Harley-Davidson motorcycle
retailers, each of which contracts provides for installment payment obligations
by or on behalf of the retailer's customer/purchaser and grants a security
interest in a Harley-Davidson motorcycle in order to secure such obligations;
WHEREAS, Seller and Trust Depositor wish to set forth the terms and
conditions pursuant to which Trust Depositor will acquire from time to time the
"CONTRACT ASSETS," as hereinafter defined; and
WHEREAS, Trust Depositor intends concurrently with its purchases from time
to time of Contract Assets hereunder to convey all right, title and interest in
such Contract Assets to Harley-Davidson Eaglemark Owner Trust [ ] (the
"TRUST") pursuant to the Sale and Servicing Agreement dated as of [ ]
by and among Trust Depositor, Eaglemark, as Servicer, and Harley-Davidson
Eaglemark Owner Trust [ ], as issuer (the "ISSUER") (as amended,
supplemented or otherwise modified from time to time, the "SALE AND SERVICING
AGREEMENT"), executed concurrently herewith;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, Seller and Trust Depositor agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) shall have the
meanings assigned to them in the Sale and Servicing Agreement.
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT
SECTION 2.01. CLOSING. Subject to and upon the terms and conditions set
forth in this Agreement, Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to Trust Depositor, in consideration of Trust Depositor's
payment of $______________ in cash as the Purchase Price therefor, (i) all the
right, title and interest of Seller in and to the Initial Contracts listed on
the initial List of Contracts in effect on the Closing Date (including, without
limitation, all security interests and all rights to receive payments which are
collected pursuant thereto on or after the Cutoff Date, including any
liquidation proceeds therefrom, but excluding any rights to receive payments
which were collected pursuant thereto prior to the Cutoff Date), (ii) all rights
of Seller under any physical damage or other individual insurance policy
(including a "FORCED PLACED" policy, if any) relating to any such Contract, an
Obligor or a Motorcycle securing such Contract, (iii) all security interests in
each such Motorcycle, (iv) all documents contained in the related Contract
Files, (v) all rights of Seller in the Lockbox, Lockbox Account and related
Lockbox Agreement to the extent they relate to the Contracts, (vi) all rights
(but not the obligations) of the Seller under any motorcycle dealer agreements
between the dealers (i.e. the originators of the Contracts) and the Seller, and
(vii) all proceeds and products of the foregoing (items (i) - (vii), together
with the additional assets referred to in Section 2.04 below which may be
transferred from time to time in respect of Subsequent Contracts, being
collectively referred to herein as the "CONTRACT ASSETS"). Although Seller and
Trust Depositor agree that any such transfer is intended to be a sale of
ownership in the Contract Assets, rather than the mere granting of a security
interest to secure a borrowing, in the event such transfer is deemed to be of a
mere security interest to secure indebtedness, Seller shall be deemed to have
granted Trust Depositor a
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perfected first priority security interest in such Contract Assets and this
Agreement shall constitute a security agreement under applicable law. If such
transfer is deemed to be the mere granting of a security interest to secure a
borrowing, Trust Depositor may, to secure Trust Depositor's own borrowing under
the Sale and Servicing Agreement (to the extent that the transfer of the
Contract Assets thereunder is deemed to be a mere granting of a security
interest to secure a borrowing) repledge and reassign (i) all or a portion of
the Contract Assets pledged to Trust Depositor and not released from the
security interest of this Agreement at the time of such pledge and assignment,
and (ii) all proceeds thereof. Such repledge and reassignment may be made by
Trust Depositor with or without a repledge and reassignment by Trust Depositor
of its rights under this Agreement, and without further notice to or
acknowledgment from Seller. Seller waives, to the extent permitted by
applicable law, all claims, causes of action and remedies, whether legal or
equitable (including any right of setoff), against Trust Depositor or any
assignee of Trust Depositor relating to such action by Trust Depositor in
connection with the transactions contemplated by the Sale and Servicing
Agreement.
SECTION 2.02. CONDITIONS TO THE CLOSING. On or before the Closing Date,
Seller shall deliver or cause to be delivered to Trust Depositor each of the
documents, certificates and other items as follows:
(a) The initial List of Contracts, certified by the Chairman of
the Board, President or any Vice President of Seller together with an
Assignment substantially in the form attached as EXHIBIT A hereto.
(b) A certificate of an officer of Seller substantially in the
form of EXHIBIT B hereto.
(c) An opinion of counsel for Seller substantially in the form
of EXHIBIT D to the Sale and Servicing Agreement.
(d) A letter from Xxxxxx Xxxxxxxx LLP, or another nationally
recognized accounting firm, addressed to Trust Depositor and the Issuer and
the Trustees and stating that such firm has reviewed a sample of the
Initial Contracts and performed specific procedures for such sample with
respect to certain contract terms and identifying those Initial Contracts
which do not so conform.
(e) Copies of resolutions of the Board of Directors of Seller or
of the Executive Committee of the Board of Directors of Seller approving
the execution, delivery and performance of this Agreement and the
transactions contemplated hereunder, certified in each case by the
Secretary or an Assistant Secretary of Seller.
(f) Officially certified recent evidence of due incorporation
and good standing of Seller under the laws of Nevada.
(g) Evidence of proper filing with the appropriate offices in
Nevada and Illinois of UCC financing statements executed by Seller as
debtor/seller, naming Trust Depositor as secured party/purchaser and the
Owner Trust as assignee, and listing the Contract Assets as collateral as
well as evidence of proper filing with the appropriate offices in Delaware
of UCC Financing statements executed by the Issuer as debtor, naming the
Indenture Trustee, as assignee, and listing the Contract Assets as
collateral.
(h) An Officer's Certificate from Seller confirming that
Seller's compliance officer has reviewed the original of each Initial
Contract and each related Contract File, that each Initial Contract and
related Contract File conforms in all material respects with the initial
List of Contracts and each such Contract File is complete, that each
document required be an original, and that the face of each original
Initial Contract has been stamped with the following notation:
"This Contract/Note is subject to a security interest
granted to Harley-Davidson Eaglemark Owner Trust 1997-1, as Owner
Trustee. UCC-1 Financing Statements covering this Contract/Note
have been filed with the Secretary of State of the State of Nevada
and the Secretary of State of the State of Illinois. Such lien
will be released only in connection with appropriate filings in
such offices.
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Consequently, potential purchasers of this Contract/Note must refer
to such filings to determine whether such lien has been released."
(i) The documents, certificates and other items described in
Section 2.02 of the Sale and Servicing Agreement, to the extent not already
described above.
SECTION 2.03. ASSIGNMENT OF AGREEMENT. Trust Depositor has the right to
assign its interest under this Agreement to the Issuer and Owner Trustee as may
be required to effect the purposes of the Sale and Servicing Agreement, without
further notice to, or consent of, Seller, and the Issuer and the Trustees shall
succeed to such of the rights of Trust Depositor hereunder as shall be so
assigned. Seller acknowledges that, pursuant to the Sale and Servicing
Agreement, Trust Depositor will assign all of its right, title and interest in
and to the Contract Assets and its right to exercise the remedies created by
Section 5.01 hereof for breaches of representations and warranties of Seller
contained in Sections 3.01, 3.02, 3.03 and 3.04 hereof to the Issuer and the
Trustees for the benefit of the Noteholders and Certificateholders. Seller
agrees that, upon such assignment to the Issuer and the Trustees, such
representations will run to and be for the benefit of the Issuer and the
Trustees and the Issuer and the Trustees may enforce directly without joinder
of Trust Depositor, the repurchase obligations of Seller set forth herein with
respect to breaches of such representations and warranties as set forth herein
and in Section 7.08 of the Sale and Servicing Agreement.
SECTION 2.04. SUBSEQUENT CONTRACTS. (a) Subject to and upon the terms and
conditions set forth in paragraph (b) below and in the related Subsequent
Purchase Agreement, Seller hereby agrees to sell, transfer, assign, set over and
otherwise convey to Trust Depositor, in consideration of Trust Depositor's
payment on the related Subsequent Transfer Date of the purchase price therefor
(as set forth in the related Subsequent Purchase Agreement), and Trust Depositor
hereby agrees to purchase, (i) all the right, title and interest of Seller in
and to the Subsequent Contracts listed on the related Subsequent List of
Contracts (including, without limitation, all security interests and all rights
to receive payments which are collected pursuant thereto on or after the
applicable Subsequent Cutoff Date, including any liquidation proceeds therefrom,
but excluding any rights to receive payments which were collected pursuant
thereto prior to such Subsequent Cutoff Date), (ii) all rights of Seller under
any physical damage or other individual insurance policy (including a "FORCED
PLACED" policy, if any) relating to any such Contract, an Obligor or a
Motorcycle securing such Contract, (iii) all security interests in each such
Motorcycle, (iv) all documents contained in the related Contract Files, (v) all
rights of Seller in the Lockbox, Lockbox Account and related Lockbox Agreement
to the extent they relate to the Contracts, (vi) all rights (but not the
obligations) of the Seller under any motorcycle dealer agreements between the
dealers (I.E. the originators of such Subsequent Contracts) and the Seller, and
(vii) all proceeds and products of the foregoing (items (i) - (vii), upon
consummation of any above-described purchase, becoming part of the "CONTRACT
ASSETS"). Seller agrees, subject to the terms and conditions herein applicable
to transfers of Subsequent Contracts, to sell an aggregate Principal Balance of
Subsequent Contracts at or prior to the end of the Funding Period equal to the
Pre-Funded Amount on the Closing Date.
(b) Seller shall transfer to Trust Depositor, and Trust
Depositor shall purchase, the Subsequent Contracts and related assets to be
transferred on any Subsequent Transfer Date only upon the satisfaction of each
of the following conditions on or prior to the Subsequent Transfer Date:
(i) The Seller shall have provided the Trustees, the Initial
Purchaser and the Rating Agencies with a timely Addition Notice and shall
have provided any information reasonably requested by any of the foregoing
with respect to the Subsequent Contracts;
(ii) the Funding Period shall not have terminated;
(iii) the Seller shall have delivered to the Trust Depositor a
duly executed Purchase Agreement and Assignment in substantially the form
of EXHIBIT C hereto (the "SUBSEQUENT PURCHASE AGREEMENT"), which
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shall include a Subsequent List of Contracts listing the Subsequent
Contracts being purchased;
(iv) as of each Subsequent Transfer Date, neither the Seller nor
the Trust Depositor was insolvent nor will either of them have been made
insolvent by such transfer nor is either of them aware of any pending
insolvency;
(v) each Rating Agency shall have notified the Trust Depositor
and the Trustees in writing that following such transfer, and the transfer
immediately thereafter of the Subsequent Contracts to the Trust, the
Class A-1 Notes and the Class A-2 Notes will be rated in the highest rating
category by such Rating Agency and the Certificates will be rated at least
"A" by Standard & Poor's and BAA2 by Xxxxx'x.
(vi) such addition will not result in a material adverse tax
consequence to the Issuer, the Noteholders or the Certificateholders as
evidenced by an Opinion of Counsel to be delivered by the Seller to the
Issuer, the Trustees, and the Initial Purchaser;
(vii) the Seller shall have delivered to the Rating Agencies and
to the Initial Purchaser one or more opinions of counsel with respect to
the transfer of the Subsequent Contracts substantially in the form of the
opinions of counsel delivered to such Persons on the Closing Date;
(viii) the Seller shall have taken any action necessary to maintain
the first perfected ownership interest of the Trust in the Trust Corpus and
the first perfected security interest of the Trust Depositor in the
Contract Assets, the Trust in the Trust Corpus and the Indenture Trustee in
the Reserve Fund Deposits;
(ix) there shall have been delivered to Seller any release
agreement of BofA (as defined and contemplated in Section 3.02(m) below)
required in connection with the transfer of Subsequent Contracts; and
(x) no selection procedures believed by the Seller to be adverse
to the interests of the Noteholders and Certificateholders shall have been
utilized in selecting the Subsequent Contracts.
(c) Seller agrees to pay all reasonable out-of-pocket expenses in
connection with any request for the conveyance of Subsequent Contracts, whether
or not such conveyance is actually consummated.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller makes the following representations and warranties, on which Trust
Depositor will rely in purchasing the initial Contract Assets on the Closing
Date (and any Subsequent Contracts on the related Subsequent Transfer Date) and
concurrently reconveying the same to the Trust, and on which the Trust, the
Noteholders and Certificateholders will rely under the Sale and Servicing
Agreement. Such representations speak as of the execution and delivery of this
Agreement and as of the Closing Date in the case of the Initial Contracts, and
as of the applicable Subsequent Transfer Date in the case of Subsequent
Contracts, but shall survive the sale, transfer and assignment of the Contracts
to the Trust. The repurchase obligation of Seller set forth in Section 5.01
below and in Section 7.08 of the Sale and Servicing Agreement constitutes the
sole remedy available for a breach of a representation or warranty of Seller set
forth in Section 3.02, 3.03 or 3.04 of this Agreement.
SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING SELLER. Seller
represents and warrants, as of the execution and delivery of this Agreement and
as of the Closing Date, in the case of the Initial Contracts, and as of the
applicable Subsequent Transfer Date, in the case of Subsequent Contracts, that:
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(a) ORGANIZATION AND GOOD STANDING. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged.
Seller is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or otherwise) of Seller or Trust Depositor. Seller is properly licensed in
each jurisdiction to the extent required by the laws of such jurisdiction
to service the Contracts in accordance with the terms of the Sale and
Servicing Agreement.
(b) AUTHORIZATION; BINDING OBLIGATION. Seller has the power and
authority to make, execute, deliver and perform this Agreement and the
other Transaction Documents to which the Seller is a party and all of the
transactions contemplated under this Agreement and the other Transaction
Documents to which the Seller is a party, and has taken all necessary
corporate action to authorize the execution, delivery and performance of
this Agreement and the other Transaction Documents to which the Seller is a
party. This Agreement and the other Transaction Documents to which the
Seller is a party constitute the legal, valid and binding obligation of
Seller enforceable in accordance with their terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) NO CONSENT REQUIRED. Seller is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement and the other
Transaction Documents to which the Seller is a party.
(d) NO VIOLATIONS. Seller's execution, delivery and performance
of this Agreement and the other Transaction Documents to which the Seller
is a party will not violate any provision of any existing law or regulation
or any order or decree of any court or the Articles of Incorporation or
Bylaws of Seller, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which Seller is a party or by
which Seller or any of Seller's properties may be bound.
(e) LITIGATION. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or
to the knowledge of Seller threatened, against Seller or any of its
properties or with respect to this Agreement or any other Transaction
Document to which the Seller is a party which, if adversely determined,
would in the opinion of Seller have a material adverse effect on the
business, properties, assets or condition (financial or other) of Seller or
the transactions contemplated by this Agreement or any other Transaction
Document to which the Seller is a party.
(f) PLACE OF BUSINESS; NO CHANGES. Seller's sole place of
business (within the meaning of Article 9 of the UCC) is as set forth in
Section 7.06 below. Seller has not changed its name whether by amendment
of its Articles of Incorporation, by reorganization or otherwise, and has
not changed the location of its place of business, within the four months
preceding the Closing Date.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT.
Seller represents and warrants as to each Contract as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Initial Contracts, and as of the applicable Subsequent Transfer Date, in the
case of Subsequent Contracts, that:
(a) LIST OF CONTRACTS. The information set forth in the List of
Contracts (or Subsequent List of Contracts, in the case of Subsequent
Contracts) is true, complete and correct as of the Initial Cutoff Date or
applicable Subsequent Cutoff Date, as the case may be.
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(b) PAYMENTS. As of the Initial Cutoff Date or applicable
Subsequent Cutoff Date, as the case may be, the most recent scheduled
payment with respect to any Contract either had been made or was not
delinquent for more than 30 days. To the best of Seller's knowledge, all
payments made on each Contract were made by the respective Obligor.
(c) NO WAIVERS. As of the Closing Date (or the applicable
Subsequent Transfer Date, in the case of Subsequent Contracts), the terms
of the Contracts have not been waived, altered or modified in any respect,
except by instruments or documents included in the related Contract File.
(d) BINDING OBLIGATION. Each Contract is the genuine, legal,
valid and binding obligation of the Obligor thereunder and is enforceable
in accordance with its terms, except as such enforceability may be limited
by laws affecting the enforcement of creditors' rights generally.
(e) NO DEFENSES. No Contract is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of such Contract or the
exercise of any right thereunder will not render the Contract unenforceable
in whole or in part or subject to any right of rescission, setoff,
counterclaim or defense, including the defense of usury, and no such right
of rescission, setoff, counterclaim or defense has been asserted with
respect thereto.
(f) INSURANCE. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), the related
Motorcycle securing each Contract is covered by physical damage insurance
(i) in an amount not less than the value of the Motorcycle at the time of
origination of the Contract, (ii) naming Seller as a loss payee and
(iii) insuring against loss and damage due to fire, theft, transportation,
collision and other risks covered by comprehensive coverage, and all
premiums due on such insurance have been paid in full from the date of the
Contract's origination.
(g) ORIGINATION. Each Contract was originated by a
Harley-Davidson motorcycle dealer in the regular course of its business
which dealer had all necessary licenses and permits to originate the
Contracts in the state where such dealer was located, was fully and
properly executed by the parties thereto, and has been purchased by Seller
in the regular course of its business. Each Contract was sold by such
motorcycle dealer to the Seller without any fraud or misrepresentation on
the part of such motorcycle dealer.
(h) LAWFUL ASSIGNMENT. No Contract was originated in or is
subject to the laws of any jurisdiction whose laws would make the sale,
transfer and assignment of the Contract under this Agreement or under the
Sale and Servicing Agreement or under the Indenture or pursuant to
transfers of the Certificates unlawful, void or voidable.
(i) COMPLIANCE WITH LAW. None of the Contracts, the origination
of the Contracts by the dealers, the purchase of the Contracts by the
Seller, the sale of the Contracts by the Seller to the Trust Depositor or
by the Trust Depositor to the Trust, or any combination of the foregoing,
violated as of the Closing Date or as of any Subsequent Transfer Date, as
applicable, any requirement of any federal, state or local law and
regulations thereunder, including, without limitation, usury, truth in
lending, motor vehicle installment loan and equal credit opportunity laws,
applicable to the Contracts and the sale of Motorcycles. Seller shall, for
at least the period of this Agreement, maintain in its possession,
available for the Trust Depositor's and the Trustees' inspection, and
shall deliver to Trust Depositor or the Trustee upon demand, evidence of
compliance with all such requirements.
(j) CONTRACT IN FORCE. As of the Closing Date (or the
applicable Subsequent Transfer Date in the case of Subsequent Contracts),
no Contract has been satisfied or subordinated in whole or in part or
rescinded, and the related Motorcycle securing any Contract has not been
released from the lien of the Contract in whole or in part.
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(k) VALID SECURITY INTEREST. Each Contract creates a valid,
subsisting and enforceable first priority perfected security interest in
favor of Seller in the Motorcycle covered thereby, and such security
interest has been assigned by Seller to the Trust Depositor. The original
certificate of title, certificate of lien or other notification (the "LIEN
CERTIFICATE") issued by the body responsible for the registration of, and
the issuance of certificates of title relating to, motor vehicles and liens
thereon (the "REGISTRAR OF TITLES") of the applicable state to a secured
party which indicates the lien of the secured party on the Motorcycle is
recorded on the original certificate of title, and original certificate of
title for each Motorcycle, show, or if a new or replacement Lien
Certificate is being applied for with respect to such Motorcycle the Lien
Certificate will be received within 180 days of the Closing Date (or the
applicable Subsequent Transfer Date in the case of Subsequent Contracts)
and will show, the Seller as original secured party under each Contract as
the holder of a first priority security interest in such Motorcycle. With
respect to each Contract for which the Lien Certificate has not yet been
returned from the Registrar of Titles, the Seller has received written
evidence from the related dealer that such Lien Certificate showing the
Seller as lienholder has been applied for. The Seller's security interest
has been validly assigned by the Seller to the Trust Depositor and by the
Trust Depositor to the Issuer and Owner Trustee pursuant to this Agreement.
Immediately after the sale, each Contract will be secured by an enforceable
and perfected first priority security interest in the Motorcycle in favor
of the Trust as secured party, which security interest is prior to all
other liens upon and security interests in such Motorcycle which now exist
or may hereafter arise or be created (except, as to priority, for any lien
for taxes, labor, materials or of any state law enforcement agency
affecting a Motorcycle).
(l) CAPACITY OF PARTIES. All parties to any Contract had
capacity to execute such Contract and all other documents related thereto
and to grant the security interest purported to be granted thereby.
(m) GOOD TITLE. Each Contract was purchased by Seller for value
and taken into possession prior to the Cutoff Date (or the applicable
Subsequent Cutoff Date in the case of Subsequent Contracts) in the ordinary
course of its business, without knowledge that the Contract was subject to
a security interest. Except with respect to (i) the security interest of
NBD Bank, N.A. individually and as agent for certain other lenders, which
security interest is released and of no further force and effect by its
terms upon the transfer of such Contract pursuant hereto, and (ii) the
security interest of Bank of America National Trust and Savings Association
("BOFA") as administrator for the Secured Parties under the Security
Agreement dated as of March 5, 1996 between Eaglemark and BofA, which
security interest shall be released (A) in the case of the Initial
Contracts, concurrently with the issuance of the Certificates upon receipt
by BofA of monies in the amount described in a release agreement provided
by BofA, and (B) in the case of Subsequent Contracts, concurrently with the
Subsequent Transfer Date upon receipt by BofA of monies in the amount
described in a similar release agreement to be provided by BofA, no
Contract has been sold, assigned or pledged to any person other than Trust
Depositor and the Trustee as the transferee of Trust Depositor, and prior
to the transfer of the Contract to Trust Depositor, Seller had good and
marketable title to each Contract free and clear of any encumbrance,
equity, loan, pledge, charge, claim or security interest (other than the
self-extinguishing interest of NBD Bank, N.A. described above and the
extinguished interest of BofA described above) and was the sole owner
thereof and had full right to transfer the Contract to Trust Depositor and
to permit Trust Depositor to transfer the same to the Issuer and the Owner
Trustee, and, as of the Closing Date (or the applicable Subsequent Transfer
Date in the case of Subsequent Contracts), the Issuer and the Owner Trustee
will have a first priority perfected security interest therein.
(n) NO DEFAULTS. As of the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts), no
default, breach, violation or event permitting acceleration existed with
respect to any Contract and no event had occurred which, with notice and
the expiration of any grace or cure period, would constitute such a
default, breach, violation or event permitting acceleration under such
Contract. Seller has not waived any such default, breach, violation or
event permitting acceleration, and Seller has not granted any extension of
payment terms on any Contract. As of the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts), no
Motorcycle had been repossessed.
7
(o) NO LIENS. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts) there are,
to the best of Seller's knowledge, no liens or claims which have been filed
for work, labor or materials affecting the Motorcycle securing any Contract
which are or may be liens prior to, or equal with, the lien of such
Contract.
(p) INSTALLMENTS. Each Contract has a fixed Contract Rate and
provides for monthly payments of principal and interest which, if timely
made, would fully amortize the loan on a simple-interest basis over its
term.
(q) ENFORCEABILITY. Each Contract contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the collateral of the
benefits of the security.
(r) ONE ORIGINAL. Each Contract is evidenced by only one
original executed Contract, which original has been delivered to the Issuer
and the Owner Trustee or its designee on or before the Closing Date (or the
applicable Subsequent Transfer Date in the case of Subsequent Contracts).
(s) NO GOVERNMENT CONTRACTS. No Obligor is the United States
government or an agency, authority, instrumentality or other political
subdivision of the United States government.
(t) LOCKBOX BANK. The Lockbox Bank is the only institution
holding any Lockbox Account for receipt of payments from Obligors, and all
Obligors, and only such Obligors, have been instructed to make payments to
the Lockbox Account, and no person claiming through or under Seller has any
claim or interest in the Lockbox Account other than the Lockbox Bank;
PROVIDED, HOWEVER, NBD Bank, N.A. ("NBD"), Eagle Credit Trust 1994-1, Eagle
Credit Trust 1994-2, Eagle Credit Trust 1994-3, Eagle Credit Trust 1994-4,
Eaglemark Trust 1995-1, Eaglemark Trust 1995-2, Eaglemark Trust 0000-0,
Xxxxxxxxx Xxxxx 0000-0, Xxxxxx-Xxxxxxxx Eaglemark Owner Trust 1997-1 and
any other Trusts (as that term is defined in the Third Amended and Restated
Lockbox Agreement dated as of February 1, 1996 by and among Seller,
Eaglemark Customer Funding Corporation - II, Purchaser, NBD and BofA and
acknowledged by Norwest in its capacity as Trustee of Eagle Credit Trust
1994-1, Eagle Credit Trust 1994-2, Eagle Credit Trust 1994-3, Eagle Credit
Trust 1994-4, Eaglemark Trust 1995-1, Eaglemark Trust 1995-2 and Xxxxxx
Trust and Savings Bank with respect to Future Trusts (as defined therein))
shall have an interest in certain other collections therein not related to
the Contracts.
(u) OBLIGOR BANKRUPTCY. At the Cutoff Date (or the applicable
Subsequent Cutoff Date in the case of Subsequent Contracts), no Obligor was
subject to a bankruptcy proceeding within the one year preceding such
Cutoff Date.
(v) CHATTEL PAPER. The Contracts constitute chattel paper
within the meaning of the UCC as in effect in the States of Nevada and
Illinois.
(w) NO IMPAIRMENT. Neither the Seller nor the Trust Depositor
has done anything to convey any right to any Person that would result in
such Person having a right to payments due under the Contract or otherwise
to impair the rights of the Trust and the Certificateholders in any
Contract or the proceeds thereof.
(x) CONTRACT NOT ASSUMABLE. No Contract is assumable by another
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to the Trust Depositor with respect to such Contract.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS IN
THE AGGREGATE. Seller represents
8
and warrants, as of the execution and delivery of this Agreement and as of the
Closing Date, in the case of the Initial Contracts, and as of the applicable
Subsequent Transfer Date, in the case of Subsequent Contracts, that:
(a) AMOUNTS. The sum of the aggregate Principal Balances
payable by Obligors under the Contracts as of the Initial Cutoff Date (or
the applicable Subsequent Cutoff Date in the case of Subsequent Contracts),
plus the Pre-Funded Amount as of such date, equals the sum of the principal
balance of the Class A-1 Notes, the Class A-2 Notes and Certificates on
the Closing Date or the related Subsequent Transfer Date, as applicable.
(b) CHARACTERISTICS. The Initial Contracts have the following
characteristics: (i) all the Contracts are secured by Motorcycles; (ii) no
Initial Contract has a remaining maturity of more than 72 months; and (iii)
the final scheduled Distribution Date on the Initial Contract with the
latest maturity is not later than April 2003. Approximately [ ]% of
the Principal Balance of the Initial Contracts as of the Initial Cutoff
Date is attributable to loans for purchases of new Motorcycles and
approximately [ ]% is attributable to loans for purchases of used
Motorcycles. No Initial Contract was originated after the Initial Cutoff
Date. No Initial Contract has a Contract Rate less than 8.50%. The first
payment on each Initial Contract is due on or before [May] 1997.
(c) MARKING RECORDS. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), Seller has
caused the Computer Disk relating to the Contracts sold hereunder and
concurrently reconveyed by Trust Depositor to the Trust and by the Trust to
the Indenture Trustee to be clearly and unambiguously marked to indicate
that such Contracts constitute part of the Trust, are owned by the Trust
and constitute security for the Notes.
(d) NO ADVERSE SELECTION. No selection procedures adverse to
Noteholders and Certificateholders have been employed in selecting the
Contracts.
(e) TRUE SALE. The transaction contemplated by this Agreement
constitutes a valid sale, transfer and assignment from Seller to Trust
Depositor and from Trust Depositor to the Trust of all of Seller's right,
title and interest in the Contract Assets as of the Closing Date and any
Subsequent Transfer Date, as applicable.
(f) 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 Trustee a first priority perfected lien on, or ownership interest in,
the Contracts and the proceeds thereof and the rest of the Trust Corpus
have been made, taken or performed.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT FILES.
Seller represents and warrants as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Contracts, and
as of the applicable Subsequent Transfer Date, in the case of Subsequent
Contracts, that:
(a) POSSESSION. Immediately prior to the Closing Date or any
Subsequent Transfer Date, Seller will have possession of each original
Contract and the related complete Contract File, and there are and there
will be no custodial agreements relating to the same in effect. 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 Contract File for each Contract currently is in the
possession of the Servicer.
(b) BULK TRANSFER LAWS. The transfer, assignment and conveyance
of the Contracts and the Contract Files by Seller pursuant to this
Agreement or any Subsequent Purchase Agreement and by Trust Depositor
pursuant to the Sale and Servicing Agreement is not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
9
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. CUSTODY OF CONTRACTS. Subject to the terms and conditions
of this Section 4.01, the contents of each Contract File shall be held in the
custody of Seller in its capacity as Servicer for the benefit of the Owner
Trustee as the owner thereof. Seller agrees to comply with all its obligations
under the Sale and Servicing Agreement in respect of the Contract Assets, which
agreement it is executing concurrently herewith in its capacity as Servicer
thereunder, and acknowledges and consents to the transactions contemplated
therein.
SECTION 4.02. FILING. On or prior to the Closing Date and each Subsequent
Transfer Date, Seller shall cause the UCC financing statement(s) referred to in
Section 2.02(g) hereof and in Section 2.02(h) of the Sale and Servicing
Agreement to be filed and from time to xxxx Xxxxxx shall take and cause to be
taken such actions and execute such documents as are necessary or desirable or
as Trust Depositor or the Owner Trustee may reasonably request to perfect and
protect the Owner Trustee's ownership interest in the Trust against all other
persons, including, without limitation, the filing of financing statements,
amendments thereto and continuation statements, the execution of transfer
instruments and the making of notations on or taking possession of all records
or documents of title.
SECTION 4.03. NAME CHANGE OR RELOCATION. (a) During the term of this
Agreement, Seller shall not change its name, identity or structure or relocate
its chief executive office without first giving at least 30 days' prior written
notice to Trust Depositor and to the Trustees.
(b) If any change in Seller's name, identity or structure or other action
would make any financing or continuation statement or notice of ownership
interest or lien filed under this Agreement seriously misleading within the
meaning of applicable provisions of the UCC or any title statute, Seller, no
later than five days after the effective date of such change, shall file such
amendments as may be required to preserve and protect the Trustees' interests in
the Trust and proceeds thereof. In addition, Seller shall not change its place
of business or its chief executive office (within the meaning of Article 9 of
the UCC) from the location specified in Section 7.06 below unless it has first
taken such action as is advisable or necessary to preserve and protect the
Issuer's and Trustees' interest in the Contract Assets. Promptly after taking
any of the foregoing actions, Seller shall deliver to Trust Depositor and the
Trustees an opinion of counsel stating that, in the opinion of such counsel, all
financing statements or amendments necessary to preserve and protect the
interests of the Trustees in the Contract Assets have been filed, and reciting
the details of such filing.
SECTION 4.04. CHIEF EXECUTIVE OFFICE. During the term of this Agreement,
Seller will maintain its chief executive office in one of the States of the
United States, except Louisiana, Tennessee, Colorado, Kansas, New Mexico,
Oklahoma, Utah or Wyoming.
SECTION 4.05. COSTS AND EXPENSES. Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection and the maintenance of
perfection, as against all third parties, of (i) Trust Depositor's and the
Trustees' right, title and interest in and to the Contract Assets (including,
without limitation, the security interest in the Motorcycles related thereto)
and (ii) the security interests provided for in the Indenture.
SECTION 4.06. SALE TREATMENT. Each of Seller and Trust Depositor shall
treat the transfer of Contract Assets made hereunder (including in respect of
Subsequent Contracts) for all purposes (including tax and financial accounting
purposes) as a sale and purchase on all of its relevant books, records,
financial statements and other applicable documents.
10
ARTICLE V
REMEDIES UPON MISREPRESENTATION
SECTION 5.01. REPURCHASES OF CONTRACTS FOR BREACH OF REPRESENTATIONS AND
WARRANTIES. Seller hereby agrees, for the benefit of the Trustees and the Trust
Depositor, that it shall repurchase a Contract including any Subsequent
Contracts (together with all related Contract Assets), at its Repurchase Price,
not later than two Business Days prior to the first Determination Date after
Seller becomes aware, or should have become aware, or receives written notice
from Trust Depositor, either of the Trustees or the Servicer of any breach of a
representation or warranty of Seller set forth in Article III of this Agreement
that materially adversely affects Trust Depositor's or the Trust's interest in
such Contract (without regard to the benefits of the Reserve Fund) and which
breach has not been cured; PROVIDED, HOWEVER, that with respect to any Contract
incorrectly described on the List of Contracts with respect to unpaid Principal
Balance which Seller would otherwise be required to repurchase pursuant to this
Section 5.01 and Section 7.08 of the Sale and Servicing Agreement, Seller may,
in lieu of repurchasing such Contract, deposit in the Collection Account not
later than two Business Days prior to such Determination Date cash in an amount
sufficient to cure such deficiency or discrepancy, and PROVIDED FURTHER that
with respect to a breach of representation or warranty relating to the Contracts
in the aggregate and not to any particular Contract, Seller may select Contracts
(without adverse selection) to repurchase such that had such Contracts not been
reconveyed by Trust Depositor and included as part of the Trust there would have
been no breach of such representation or warranty; PROVIDED FURTHER that (a) the
failure of a Contract File to be complete or of the original certificate of
title and evidence of recordation of such certificate to be included in the
Contract File as of 180 days after the Closing Date (or Subsequent Transfer
Date, in the case of Subsequent Contracts), or (b) the failure to maintain
perfection of the security interest in the Motorcycle securing a Contract in
accordance with the Sale and Servicing Agreement, shall be deemed to be a breach
materially and adversely affecting the Trust's interest in the Contracts or in
the related Contracts. Notwithstanding any other provision of this Agreement,
the obligation of Seller under this Section 5.01 and under Section 7.08 of the
Sale and Servicing Agreement shall not terminate upon a Service Transfer
pursuant to Article VIII of the Sale and Servicing Agreement.
SECTION 5.02. SELLER'S REPURCHASE OPTION. On written notice to the Owner
Trustee and the Indenture Trustee at least 20 days prior to a Distribution Date,
provided the Pool Balance is then less than 10% of the Initial Pool Balance,
Seller may (but is not required to) repurchase from the Trust on that
Distribution Date all outstanding Contracts (and related Contract Assets) at a
price equal to the Class A-2 Notes and the principal balance of the Certificates
on the previous Distribution Date plus the aggregate of the Note Interest
Distributable Amount and the Certificate Interest Distributable Amount for the
current Distribution Date as well as the accrued and unpaid Monthly Servicing
Fee and Trustees' Fees to the date of such repurchase, provided the Seller is in
receipt of a valuation letter by the Seller's financial advisor that the
Seller's repurchase is for fair and adequate consideration. Such price will be
deposited in the Collection Account not later than one Business Day before such
Distribution Date, against the Trustees' release of the Contracts and Contract
Files as described in Section 7.10 of the Sale and Servicing Agreement.
ARTICLE VI
INDEMNITIES
SECTION 6.01. SELLER INDEMNIFICATION. Seller will defend and indemnify
Trust Depositor, the Trust, the Trustees, any agents of the Trustees and the
Certificateholders and Noteholders against any and all costs, expenses, losses,
damages, claims and liabilities, joint or several, including reasonable fees and
expenses of counsel and expenses of litigation arising out of or resulting from
(i) this Agreement or the use, ownership or operation of any Motorcycle by
Seller or the Servicer or any Affiliate of either, (ii) any representation or
warranty or covenant made by Seller in this Agreement being untrue or incorrect
(subject to the second sentence of the preamble to Article III of this Agreement
above), and (iii) any untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum or in any amendment thereto or the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, in each case to
11
the extent, but only to the extent, that such untrue statement or alleged untrue
statement was made in conformity with information furnished to Trust Depositor
by Seller specifically for use therein. Notwithstanding any other provision of
this Agreement, the obligation of Seller under this Section 6.01 shall not
terminate upon a Service Transfer pursuant to Article VIII of the Sale and
Servicing Agreement and shall survive any termination of that agreement or this
Agreement.
SECTION 6.02. LIABILITIES TO OBLIGORS. No obligation or liability to any
Obligor under any of the Contracts is intended to be assumed by the Trustees,
the Trust, the Noteholders or the Certificateholders under or as a result of
this Agreement and the transactions contemplated hereby.
SECTION 6.03. TAX INDEMNIFICATION. Seller agrees to pay, and to
indemnify, defend and hold harmless the Trust Depositor, the Trust, the
Trustees, the Noteholders or the Certificateholders from, any taxes which may at
any time be asserted with respect to, and as of the date of, the transfer of the
Contracts to Trust Depositor hereunder and the concurrent reconveyance to the
Trust and the further pledge by the Trust to the Indenture Trustee, including,
without limitation, any sales, gross receipts, general corporation, personal
property, privilege or license taxes (but not including any federal, state or
other taxes arising out of the creation of the Trust and the issuance of the
Notes and Certificates) and costs, expenses and reasonable counsel fees in
defending against the same, whether arising by reason of the acts to be
performed by Seller or the Servicer under this Agreement or the Sale and
Servicing Agreement or imposed against the Trust, a Noteholder, a
Certificateholder or otherwise. Notwithstanding any other provision of this
Agreement, the obligation of Seller under this Section 6.03 shall not terminate
upon a Service Transfer pursuant to Article VIII of the Sale and Servicing
Agreement and shall survive any termination of this Agreement.
SECTION 6.04. OPERATION OF INDEMNITIES. Indemnification under this
Article VI shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If Seller has made any indemnity payments
to Trust Depositor or the Trustees pursuant to this Article VI and Trust
Depositor or the Trustees thereafter collects any of such amounts from others,
Trust Depositor or the Trustees will repay such amounts collected to Seller,
except that any payments received by Trust Depositor or the Trustees from an
insurance provider as a result of the events under which the Seller's indemnity
payments arose shall be repaid prior to any repayment of the Seller's indemnity
payment.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01.PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST. Seller
shall not:
(a) Provide credit to any Noteholder or Certificateholder for
the purpose of enabling such Noteholder or Certificateholder to purchase
Notes or Certificates, respectively;
(b) Purchase any Notes or Certificates in an agency or trustee
capacity; or
(c) Except in its capacity as Servicer as provided in the Sale
and Servicing Agreement, lend any money to the Trust.
SECTION 7.02. MERGER OR CONSOLIDATION. (a) Except as otherwise provided
in this Section 7.02, Seller will keep in full force and effect its existence,
rights and franchises as a Nevada corporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and of any of the Contracts and to perform its
duties under this Agreement.
(b) Any person into which Seller may be merged or consolidated, or any
corporation resulting from such
12
merger or consolidation to which Seller is a party, or any person succeeding to
the business of Seller, shall be the successor to Seller hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
(c) Upon the merger or consolidation of the Seller as described in this
Section 7.02, the Seller shall provide Standard & Poor's and Moody's notice of
such merger or consolidation within thirty (30) days after completion of the
same.
SECTION 7.03. TERMINATION. This Agreement shall terminate (after
distribution of any Note Distributable Amount and Certificate Distributable
Amount due pursuant to Section 7.05 of the Sale and Servicing Agreement) on the
Distribution Date on which the principal balance of the Class A-1 Notes,
Class A-2 Notes and the Certificates is reduced to zero; PROVIDED, that Seller's
representations and warranties and indemnities by Seller shall survive
termination.
SECTION 7.04. ASSIGNMENT OR DELEGATION BY SELLER. Except as specifically
authorized hereunder, Seller may not convey and assign or delegate any of its
rights or obligations hereunder absent the prior written consent of Trust
Depositor and the Trustees, and any attempt to do so without such consent shall
be void.
SECTION 7.05. AMENDMENT. (a) This Agreement may be amended from time to
time by Seller and Trust Depositor, with notice to the Rating Agencies, but
without the consent of the Trustees or any of the Noteholders or
Certificateholders, to correct manifest error, to cure any ambiguity, to correct
or supplement any provisions herein or therein which may be inconsistent with
any other provisions herein or therein, as the case may be, or to add any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an opinion of Counsel for
Seller acceptable to the Trustees, adversely affect the interests of any
Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by Seller and
Trust Depositor, with consent of Certificateholders with aggregate fractional
interests representing beneficial interests of 66-2/3% or more and aggregate
principal of the Class A-1 Notes and the Class A-2 Notes representing 66-2/3% or
more of each Class voting as a separate Class, 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 Trustees for the
benefit of Noteholders or Certificateholders; PROVIDED, HOWEVER, that no such
amendment or waiver shall (a) reduce in any manner the amount of, or delay the
timing of, collections of payments on the Contracts or distributions which are
required to be made on any Note or Certificate or (b) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of the
holders of all Certificates then outstanding.
(c) Promptly after the execution of any amendment or consent pursuant
to this Section 7.05, Trust Depositor shall furnish written notification of the
substance of such amendment and a copy of such amendment to each Trustee,
Moody's and Standard & Poor's.
(d) It shall not be necessary for the consent of Noteholders or
Certificateholders under this Section 7.05 to approve the particular form of any
proposed amendment, 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 and Certificateholders
shall be subject to such reasonable requirements as the Trustees may prescribe.
(e) Upon the execution of any amendment or consent pursuant to this
Section 7.05, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part of this Agreement for all purposes, and
every holder of Notes and Certificates theretofore or thereafter issued
hereunder shall be bound thereby.
SECTION 7.06. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or
13
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Seller:
Eaglemark, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
(ii) If to the Trust Depositor:
Eaglemark Customer Funding Corporation-[ ]
0000 Xxxxxxxx Xxxxx, Xxxxx X
Xxxxxx Xxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
(iii) If to the Indenture Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Telecopier No.: (000) 000-0000
(iv) If to the Owner Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopier No.: (000) 000-0000
(v) If to Moody's:
Moody's Investor's Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Telecopier No.: (000) 000-0000
14
(vi) If to Standard & Poor's:
Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
All communications and notices pursuant hereto to a Noteholders or
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Note Register or Certificate Register, respectively.
SECTION 7.07. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.08. HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 7.09. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Illinois.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
EAGLEMARK CUSTOMER FUNDING CORPORATION-[ ]
By:________________________________________________
Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
EAGLEMARK, INC.
By:________________________________________________
Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
16
Exhibit A
Transfer and Sale
Agreement
FORM OF ASSIGNMENT
In accordance with the Transfer and Sale Agreement (the "AGREEMENT") dated
as of [ ] made by and between the undersigned, as seller thereunder
("SELLER"), and Eaglemark Customer Funding Corporation-[ ], a Nevada
corporation and wholly-owned subsidiary of Seller ("TRUST DEPOSITOR"), as
purchaser thereunder, the undersigned does hereby sell, transfer, convey and
assign, set over and otherwise convey to Trust Depositor (i) all right, title
and interest in and to the Initial Contracts (including, without limitation, all
security interests and any and all rights to receive payments which are
collected pursuant thereto on or after [ ] (including liquidation
proceeds therefrom) but excluding any rights to receive payments which were
collected pursuant thereto prior to [ ]) identified in the initial
List of Contracts delivered pursuant to Section 2.02(a) of the Agreement, (ii)
all rights under any physical damage or other individual insurance policy
(including a "FORCED PLACED" policy, if any) relating to any such Contract, an
Obligor or a Motorcycle securing a Contract, (iii) all security interests in
each Motorcycle, (iv) all documents contained in the Contract Files, (v) all
rights of the Seller in the Lockbox, Lockbox Account and related Lockbox
Agreement, (vi) all rights (but not the obligations) of the Seller under any
motorcycle dealer agreements between the dealers originating the Contracts and
the Seller, and (vii) all proceeds and products of the foregoing.
This Assignment is made pursuant to and in reliance upon the representation
and warranties on the part of the undersigned contained in Article III of the
Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of [ ].
EAGLEMARK, INC.
By:___________________________________
Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Exhibit B
Transfer and Sale
Agreement
FORM OF OFFICER'S CERTIFICATE
(See Exhibit C-2 to the Sale and Servicing Agreement)
Exhibit C
Transfer and Sale
Agreement
FORM OF SUBSEQUENT PURCHASE AGREEMENT
SUBSEQUENT PURCHASE AGREEMENT (the "AGREEMENT"), dated as of [ ],
by and among Eaglemark Customer Funding Corporation-[ ], a Nevada
corporation (the "TRUST DEPOSITOR"), and Eaglemark , Inc., a Nevada corporation
(the "SELLER"), pursuant to the Transfer and Sale Agreement referred to below.
WITNESSETH:
WHEREAS, the Trust Depositor and the Seller are parties to the Transfer and
Sale Agreement, dated as of [ ] (the "TRANSFER AND SALE AGREEMENT");
WHEREAS, pursuant to the Transfer and Sale Agreement, the Seller wishes to
sell the Subsequent Contracts to the Trust Depositor, and the Trust Depositor
wishes to purchase the same, for the purchase price set forth in SECTION 3
below; and
WHEREAS, the Seller has timely delivered an Addition Notice related to such
conveyance as required in the Sale and Servicing Agreement dated as of [ ]
among the Seller (in the capacity of Servicer thereunder), the Trust
Depositor and the Trustee as defined therein (the "SALE AND SERVICING
AGREEMENT").
NOW, THEREFORE, the Trust Depositor and the Seller hereby agree as follows:
SECTION 1. Capitalized terms used herein shall have the meanings ascribed
to them in the Sale and Servicing Agreement unless otherwise defined herein.
"SUBSEQUENT CUTOFF DATE" shall mean, with respect to
the Subsequent Contracts transferred hereby, [_________],
1997.
"SUBSEQUENT CONTRACTS" shall mean, for purposes of this
Agreement, the Subsequent Contracts listed in the Subsequent
List of Contracts attached hereto as Exhibit A.
"SUBSEQUENT TRANSFER DATE" shall mean, with respect to
the Subsequent Contracts transferred hereby, [__________],
1997.
SECTION 2. SUBSEQUENT LIST OF CONTRACTS. THE SUBSEQUENT LIST OF CONTRACTS
ATTACHED HERETO AS EXHIBIT A is a supplement to the initial List of Contracts
attached as EXHIBIT I to the Sale and Servicing Agreement. The Contracts listed
in the Subsequent List of Contracts constitute the Subsequent Contracts to be
transferred pursuant to this Agreement on the subsequent Transfer Date.
SECTION 3. TRANSFER OF SUBSEQUENT CONTRACTS. Subject to and upon the
terms and conditions set forth in Section 2.04(b) of the Transfer and Sale
Agreement and this Agreement, Seller hereby sells, transfers, assigns, sets over
and otherwise conveys to Trust Depositor, in consideration of Trust Depositor's
payment of $[_____________] as the purchase price therefor, (i) all the right,
title and interest of Seller in and to the Subsequent Contracts listed on the
Subsequent List of Contracts (including, without limitation, all security
interests and all rights to receive payments which are collected pursuant
thereto on or after the Subsequent Cutoff Date, including any liquidation
proceeds therefrom, but excluding any rights to receive payments which were
collected pursuant thereto prior to the Subsequent Cutoff Date), (ii) all rights
of Seller under any physical damage or other individual insurance policy (and
rights under a "FORCED PLACED" policy, if any) relating to any such Contracts,
an Obligor or a Motorcycle securing such Contract, (ii) all security interests
in each such Motorcycle, (iv) all documents contained in the related Contract
Files, (v) all rights
of the Seller in the Lockbox, the Lockbox Account and the related Lockbox
Agreement to the extent they relate to such Contracts, (vi) all rights (but not
the obligations) of Seller under any related motorcycle dealer agreements
between dealers (i.e., the originators of such Contracts) and the Seller, and
(vii) all proceeds and products of the foregoing. It is the intention of the
Seller and the Trust Depositor that the transfer contemplated by this Agreement
shall constitute a sale of the Subsequent Contracts from the Seller to the Trust
Depositor, conveying good title thereto free and clear of any Liens, and that
the Subsequent Contracts shall not be part of the Seller's estate in the event
of the filing of a bankruptcy petition by or against Seller under any bankruptcy
or similar law.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) Seller hereby
represents and warrants to the Trust Depositor that the representations and
warranties of Seller in Section 3.01 of the Transfer and Sale Agreement are true
and correct as of the Subsequent Transfer Date.
(b) Seller hereby repeats and remakes with respect to the Subsequent
Contracts as of the Subsequent Transfer Date (i) the representations and
warranties of Seller in Sections 3.02, 3.03 and 3.04 of the Transfer and Sale
Agreement, except that, with respect to subsection (b) of Section 3.03,
(A) approximately _____% of the Principal Balance of the Contracts as of the
Subsequent Cutoff Date is attributable to loans for purchases of used
Motorcycles, and (B) no Contract was originated after the Subsequent Cutoff
Date, as well as (ii) covenants to provide the certificate required by
Section 2.02(h) (solely with respect to the Subsequent Contracts).
(c) Seller hereby represents and warrants that (a) the aggregate
Principal Balance of the Subsequent Contracts listed on the Subsequent List of
Contracts and conveyed to the Trust Depositor pursuant to this Agreement is
$[ ] as of the Subsequent Cutoff Date, and (b) the conditions set forth in
Section 2.04(b) of the Transfer and Sale Agreement have been satisfied as of the
Subsequent Transfer Date.
SECTION 5. RATIFICATION OF AGREEMENT. As supplemented by this Agreement,
the Transfer and Sale Agreement is in all respects ratified and confirmed and,
as so supplemented by this Agreement, shall be read, taken and construed as one
and the same instrument.
SECTION 6. 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.
SECTION 7. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Illinois, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
EAGLEMARK CUSTOMER FUNDING CORPORATION-[ ]
By:________________________________________________
Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
EAGLEMARK, INC..
By:________________________________________________
Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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