EXHIBIT 4.3
RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT dated as of December 1, 1996 (this
"Agreement"), is among AFCO Credit Corporation, a New York corporation, AFCO
Acceptance Corporation, a California corporation (each, an "Originator" and,
collectively, the "Originators") and Mellon Bank, N.A., a national banking
association ("Purchaser").
W I T N E S S E T H:
WHEREAS, each of the Originators intends to sell Receivables to the
Purchaser on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Purchaser desires to purchase Receivables from the
Originators on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, to obtain the necessary funds to purchase such Receivables,
the Purchaser has entered into the Pooling and Serving Agreement;
NOW, THEREFORE, in consideration of premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADDITION DATE" means the date Additional Receivables are added to the
Receivables Schedule pursuant to subsection 2.1(h).
"ADDITIONAL PROPERTY" shall have the meaning set forth in subsection
2.1(b).
"CONVEYED PROPERTY" shall have the meaning set forth in subsection
2.1(a).
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing
Agreement dated as of December 1, 1996, among the Purchaser, the Servicer, the
Back-up Servicer and the Trustee, as such agreement may be amended,
supplemented, waived, or otherwise modified from time to time.
"PURCHASE PRICE" means with respect to any Receivable and as of any
date of determination the outstanding principal balance of such Receivable
conveyed to the Purchaser pursuant to Section 2.1(a) and 2.1(b).
All capitalized terms used herein and not otherwise defined have the
meanings assigned such terms in the Pooling and Servicing Agreement.
SECTION 1.2 ACCOUNTING AND UCC TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with United States
generally accepted accounting principles ("U.S. GAAP"); and all terms used in
Article 9 of the UCC that are used but not specifically defined herein are used
herein as defined therein.
ARTICLE II
SECTION 2.1 THE PURCHASES. (a) Each Originator hereby sells,
transfers, assigns and otherwise conveys to the Purchaser as of the Initial
Closing Date without recourse, all of its right, title and interest in and to
(i) each Premium Finance Agreement (including the power of attorney included
therein) that have an Aggregate Receivable Balance as of the day prior to the
Initial Closing Date and which as of its Cut Off Date satisfies the eligibility
criteria set forth in the definition of "Eligible Receivables" in the Pooling
and Servicing Agreement (the "Initial Receivables"), (ii) the Originator's
security interest in the related Unearned Premiums, (iii) all monies due or to
become due with respect to each such Initial Receivable on or after its Cut Off
Date, including all monies received from insurance companies and state insurance
guaranty funds representing returns of Unearned Premiums, the proceeds from any
guarantees issued by insurance agents in respect of the Receivables and other
charges, refunds and rebates due on such Receivables and, (iv) all proceeds of
all of the foregoing (the property described in clauses (i) - (iv) above being,
the "Conveyed Property").
(b) Each Originator hereby sells, transfers, assigns, and otherwise
conveys to the Purchaser without recourse, as of the related Addition Date, all
of its right title and interest in and to (i) each Premium Finance Agreement
(including the Power of Attorney included therein) originated on or after the
Initial Closing Date which as of the date of its origination satisfies the
eligibility criteria set forth in the definition of "Eligible Receivables" in
the Pooling and Servicing Agreement ("Additional Receivables" and together with
the Initial Receivables, the "Receivables"); PROVIDED HOWEVER that neither
Originator shall be required to sell, transfer, assign or convey to the
Purchaser any Premium Finance Agreement which was originated after the Initial
Closing Date, but prior to the date on which the state in which the stated
address of the Obligor in the related Premium Finance Agreement is located
became a Permitted State, (ii) such Originator's security interest in the
related Unearned Premiums, (iii) all monies due or to become due with respect to
such Additional Receivables on or after the related Addition Date, including all
monies received from insurance companies and state insurance guaranty funds
representing returns of Unearned Premiums, the proceeds of any guarantees issued
by insurance agents in respect of the Additional Receivables and other charges,
refunds or rebates due on such Additional Receivables, and (iv) all of the
proceeds of the foregoing (the property described in clauses (i) - (iv) above
being, the "Additional Property").
(c) In connection with any sale, transfer, assignment and conveyance
pursuant Section 2.1(a) or Section 2.1(b), each Originator agrees to record and
file, at its own expense, a financing statement (including any continuation
statements with respect to such financing statement when applicable) with
respect to the Conveyed Property and the Additional Property meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect the assignment of the Conveyed Property and the
Additional Property to the Purchaser, and to deliver a file-stamped copy of such
financing statement or continuation statement or other evidence of such filing
to the Purchaser on or prior to the Initial Closing Date (and in the case of any
continuation statements filed pursuant to this Section 2.1, as soon as
practicable after receipt thereof by the applicable Originator).
(d) In connection with any sale, transfer, assignment and conveyance
pursuant to Section 2.1, each Originator agrees, at its own expense, (i) on or
prior to the Initial Closing Date and each Addition Date, as applicable, to
indicate in its computer files that the Initial Receivables and the related
Additional Receivables, as applicable, have been sold to Transferor by
identifying such Initial Receivables or Additional Receivables, as applicable,
as those that may be accessed on the applicable Originator's computer files
through use of one or more of the Database Codes set forth on Schedule I.
(e) Each Originator covenants and agrees that it shall not sell,
transfer, assign or convey on any day any Receivable to the Purchaser which if
transferred by the Purchaser to the Trust on such day to the Trust would cause
as of such day, after giving effect to such transfer (i) an Excess Obligor
Concentration Amount (as calculated on the Determination Date immediately
preceding such day) to exist or be increased; (ii) an Excess Insurer
Concentration Amount (as calculated on the Determination Date immediately
preceding such day) to exist or be increased; (iii) the Investment Grade Insurer
Percentage (as calculated on the Determination Date immediately preceding such
day) to be less than the required Investment Grade Insurer Percentage; (iv) the
Investment Grade Insurer Percentage (as calculated on the Determination Date
immediately preceding such day) to be decreased, if on such day the Investment
Grade Insurer Percentage is equal to or less than the Required Investment Grade
Insurer Percentage; (v) the Top 10 Insurer Percentage (as calculated on the
Determination Date immediately preceding such day) to exceed the Maximum Top
Insurer Percentage; (vi) the Top 10 Insurer Percentage to be increased, if on
such day the Top 10 Insurer Percentage (as calculated on the Determination Date
immediately preceding such day) is equal to or greater than the Maximum Top 10
Insurer Percentage; or (vii) a breach of any Rating Agency Limitation specified
in a Supplement.
(f) Notwithstanding anything to the contrary contained in Section 6.1,
subsection 2.1(e) may be amended at any time by the Servicer, the Trustee and
the Transferor with the consent of the Credit Enhancement Provider, but without
the consent of the Holders, if the Rating Agency Condition has been satisfied
with respect to such amendment.
(g) It is the intention of each Originator that the sale, transfer,
assignment and conveyance contemplated by this Agreement shall constitute a sale
of the Conveyed Property and Additional Property from each Originator to the
Purchaser and the beneficial interest in and title to the Receivables and such
other Conveyed Property and Additional Property shall not be part of an
Originator's estate in the event of the filing of a bankruptcy petition by or
against such Originator under any bankruptcy law. In the event that,
notwithstanding the intent of each Originator, the sale, transfer, assignment
and conveyance contemplated hereby is held not to be a sale, this Agreement
shall constitute a grant to the Purchaser of a security interest in the Conveyed
Property and Additional Property of the applicable Originator.
(h) Each Originator shall on the Closing Date prepare the Receivables
Schedule in accordance with terms of the Pooling and Servicing Agreement with
respect to each of the Initial Receivables and Additional Receivables to the
Receivables Schedule on each Addition Date. The Originators shall deliver the
Receivables Schedule to the Purchaser on the Initial Closing Date and on each
Addition Date after any required additions pursuant to this subsection 2.1(h)
are made to the Receivables Schedule on such date.
SECTION 2.2 PAYMENTS AND COMPUTATIONS. (a) The Purchase Price for
Receivables shall be paid or provided for on the Initial Closing Date, with
respect to the Initial Receivables , or on the related Addition date, with
respect to Additional Receivables in either of the following ways, at the
election of the Purchaser: (i) by payment in cash in immediately available
funds; or (ii) in the event that the total Purchase Price is not paid in full in
cash by the Purchaser on the date of Purchase, the applicable Originator shall
receive an unsecured promissory note (each such note, a "Purchase Note") from
the Purchaser in an original principal amount equal to the portion of such cash
shortfall owed to such Originator. The characteristics of each Purchase Note
shall be as follows:
(i) interest shall accrue on the outstanding principal amount of
each Purchase Note at a per annum rate of interest (calculated on the
basis of a 360-day year of twelve 30-day months) equal to 5.55%;
(ii) the outstanding principal of and accrued interest on each
Purchase Note shall be payable on demand by the applicable
Originators;
(iii) all amounts paid with respect to an outstanding Purchase
Note shall be allocated first to accrued interest until all such
interest is paid, and then to outstanding principal;
(iv) the obligation of the Purchaser to repay Purchase Notes
issued to the applicable Originator from the amounts paid to such
Purchaser shall not be subject to any right of setoff or counterclaim
whatsoever.
The Purchaser, at its option, may repay all or any portion of the
accrued interest on and principal of any Purchase Note at any time.
(b) The Purchaser shall pay all amounts to be paid in cash with
respect to the purchases to the Originator on the date of the purchase thereof
and shall pay all amounts in respect of principal of and interest on any
Purchase Note in accordance with the terms thereof.
SECTION 2.3 REPURCHASE OF RECEIVABLES. If (i) any of the
representations or warranties of any Originator contained in Sections 3.2 or 3.3
hereof were not true with respect to such Originator or any Receivable, as
applicable, at the time such representation or warranty was made, or (ii) if the
Originators breach any of the covenants contained in subsection 2.1(e), and as a
result thereof, the Purchaser is required to repurchase any Receivable from the
Trust pursuant to subsection 2.4(d) of the Pooling and Servicing Agreement, then
the Originator of the repurchased Receivable shall be obligated to pay to the
Purchaser immediately upon the Purchaser's demand therefor an amount equal to
the amount of all losses, damages and liabilities of the Purchaser that result
from such breach, including but not limited to the cost of the Purchaser's
repurchase obligations pursuant to subsection 2.4(d) of the Pooling and
Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to the Originators as follows:
(a) Organization and Good Standing. The Purchaser is a national
banking association duly organized and validly existing in good standing under
the laws of the United States and has full corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Purchaser is duly qualified to do business
and is in good standing (or is exempt from such requirement) in any state
required in order to conduct its business, and has obtained all necessary
licenses and approvals with respect to the Purchaser required under Federal and
Pennsylvania law (including any necessary licenses required under the Licensing
Laws of each Permitted State).
(c) Purchaser's Deposit Accounts. As of the Initial Closing Date,
deposits in the Purchaser's deposit accounts were insured to the limits provided
by law by BIF.
(d) Binding Obligation; Valid Transfer and Assignment.
(i) The execution and delivery of this Agreement by
the Purchaser and the consummation of the transactions provided
for in this Agreement have been duly authorized by the Purchaser by all
necessary corporate action on its part, and this Agreement will remain from the
time of its execution, an official record of the Purchaser.
(ii) This Agreement constitutes legal, valid and binding
obligations of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except (A) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and the rights of creditors of national banking associations, and (B) as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(iii) No Conflict. The execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof and thereof will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Purchaser is a party or by which it or any of its
properties are bound.
(iv) No Violation. The execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to the Purchaser.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF EACH OF THE ORIGINATORS.
(a) Organization and Good Standing. Each Originator is a corporation
duly organized and validly existing in good standing under the laws of the
jurisdiction of its incorporation and has full corporate power, authority and
legal right to own its properties and conduct its business as such properties
are presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
(b) Due Qualification. Each Originator is duly qualified to do
business and is in good standing (or is exempt from such requirement) in any
state required in order to conduct business, and has obtained all necessary
licenses and approvals with respect to such Originator required under federal
and applicable state law.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES OF EACH ORIGINATOR RELATING
TO THIS AGREEMENT AND THE RECEIVABLES.
(a) Binding Obligation; Valid Transfer and Assignment. Each Originator
jointly and severally hereby represents and warrants to the Purchaser that, as
of the Initial Closing Date and as of any Addition Date:
(i) The execution and delivery of this Agreement by each
Originator and the consummation of the transactions provided for in this
Agreement have been duly authorized by each Originator by all necessary
corporate action on its part, and this Agreement will remain, from the time of
its execution, an official record of each Originator.
(ii) This Agreement constitutes legal, valid and binding
obligations of each Originator, enforceable against each Originator in
accordance with its terms, except (A) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banking associations, and (B)
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(iii) No Conflict. The execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement,
and the fulfillment of the terms hereof will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust or other instrument to
which Transferor is a party or by which it or any of its properties are bound.
(iv) No Violation. The execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to each Originator.
(v) Title. (i) It is the intention of each Originator that the
transfer and assignment contemplated by this Agreement constitute a sale of the
Conveyed Property and Additional Property from each Originator to the Transferor
and that the beneficial interest in and title to such Conveyed Property and
Additional Property not be part of the debtor's estate in the event of the
filing of a petition for bankruptcy or insolvency by or against each Originator.
No Conveyed Property and Additional Property has been sold, transferred,
assigned or pledged by each Originator to any Person other than
the Transferor pursuant to this Agreement. Immediately prior to the sale,
transfer, assignment and conveyance contemplated by this Agreement, each
Originator had good and marketable title to the Conveyed Property and Additional
Property conveyed by it to the Transferor on such date, free and clear of all
Liens and, immediately upon the transfer thereof, the Transferor shall have good
and marketable title to such Conveyed Property and Additional Property free and
clear of all Liens.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of each Originator, threatened
against an Originator before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Originators, would materially and
adversely affect the performance by the Originators of their obligations under
this Agreement or (iv) seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this Agreement,
(vii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof, have been obtained.
(viii) Receivable Schedule. The related Receivable Schedule is
an accurate and complete listing in all material respects of (A) on the Initial
Closing Date, all the Receivables as of the Cut Off Date and (B) on the day any
Additional Receivables are conveyed to the Purchaser, the related Additional
Receivables. In either case, the information contained therein with respect to
the identity of such Receivables is true and correct in all material respects as
of the Cut Off Date or on the day any Additional Receivable is conveyed to the
Purchaser, for any related Additional Receivable. As of November 30, 1996, the
aggregate amount of Receivables was $614,886,198.16, of which $600,754,711.61
were Principal Receivables.
(b) Eligibility of Receivables. Each Originator hereby jointly and
severally represents and warrants to the Purchaser that as of the Cut Off Date,
with respect to the Initial Receivables, and as of the related Addition Date,
with respect to Additional Receivables, such that:
(i) Each Receivable conveyed to the Purchaser on
such date is an Eligible Receivable.
(ii) Each Receivable conveyed to the Purchaser on such date
has been conveyed to the Purchaser free and clear of any Lien of any Person
claiming through or under Originators or any of its Affiliates (other than Liens
permitted under subsection 2.5(b) of the Pooling and Servicing Agreement) and in
compliance, in all material respects, with all Requirements of Law applicable to
the Originators.
(c) Notice of Breach. The representations and warranties set forth in
this Section 3.3 shall survive the transfer and assignment of the respective
Receivables to the Purchaser. Upon discovery by the Purchaser or any Originator
of a breach of any of the representations and warranties set forth in this
Section 3.3, the party discovering such breach shall give prompt written notice
to the other parties mentioned above. The Originators agree to cooperate with
the Purchaser in attempting to cure any such breach.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1 COVENANTS OF EACH ORIGINATOR. Each Originator jointly and
severally covenants that:
(a) Receivables to be General Intangibles. The Originators will take
no action to cause any Receivable to be anything other than a general intangible
as defined under the UCC of the States of New York and California.
(b) Security Interests. Except for the conveyances hereunder, the
Originators shall not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein; The
Originators shall immediately notify the Purchaser of the existence of any Lien
on any Receivable; and the Originators shall defend the right, title and
interest of the Purchaser in, to and under the Receivables, whether now existing
or hereafter created, against all claims of third parties claiming through or
under Transferor; PROVIDED that nothing in this subsection 4.1(b) shall prevent
or be deemed to prohibit the Originators from suffering to exist upon any of the
Receivables any Liens for municipal or other local taxes if such taxes shall not
at the time be due and payable or if an Originator shall currently be contesting
the validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto.
(c) Receivable Allocations. If any Originator is unable for any reason
to transfer Receivables to the Purchaser in accordance with the provisions of
this Agreement (including by reason of the application of an order by any
Federal governmental agency having regulatory authority over such Originator or
any court of competent jurisdiction that Originator not transfer any additional
Principal Receivables to the Purchaser) then, in any such event the Originators
agree to allocate and pay to the Purchaser, after the date of such inability,
all Collections with respect to Principal Receivables, and all amounts which
would have constituted Collections with respect to Principal Receivables but for
such Originator's inability to transfer such Receivables (up to an aggregate
amount equal to the amount of Principal Receivables in the Trust on such date).
(d) The Originators agree to jointly and severally indemnify, defend
and hold the Purchaser harmless from and against any and all loss, liability,
damage, judgment, claim, deficiency or expense including interest, penalties,
reasonable attorneys' fees and disbursements and amounts paid in settlement to
which the Company may become subject insofar as such loss, liability, damage,
judgment, claim, deficiency or expense arises out of, or is based upon or
relates to, a breach by an Originator of any warranty, representation, covenant
or agreement contained in this Agreement.
(e) Each Originator hereby covenants and agrees not to decrease the
interest rates payable under Premium Finance Agreements it originates on or
after the Initial Closing Date that are eligible for sale hereunder (other than
as a result of a decrease in LIBOR) so as to materially increase the likelihood
that a Pay Out Event will occur or the Class A Available Funds or Class B
Available Funds will be less than the Class A Optimal Amount or the Class B
Optimal Amount, respectively on any Distribution Date.
(f) Each Originator hereby agrees that in the event Premium Finance
Agreements of the same Obligor are owned by any such Originator and by the
Purchaser or the Trust, to the extent payments are received from such Obligors
on such Receivables, such amounts will be applied first as Collections until the
Aggregate Receivable Balance for such Receivable is zero.
ARTICLE V
PURCHASE TERMINATION EVENTS
SECTION 5.1 PURCHASE TERMINATION. If Purchaser or an Originator shall
consent to the appointment of a conservator or receiver or liquidator for the
winding-up or liquidation of its affairs, or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator for the winding-up or
liquidation of its affairs shall have been entered against the Purchaser or an
Originator (an "Insolvency Event"), the Originators, in the case of an
insolvency of the Purchaser, or the insolvent Originator in the case of an
insolvency of an Originator shall on the day of such Insolvency Event (the
"Appointment Day") immediately cease to transfer Receivables to the Purchaser
and shall promptly give notice to the Purchaser of such Insolvency Event.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 AMENDMENT.
(a) Subject to subsection 2.1(f), this Agreement may be amended in
writing from time to time by the Originators and the Purchaser, without the
consent of any of Holders; PROVIDED that such action shall not, as evidenced by
an Opinion of Counsel for Transferor addressed and delivered to Trustee,
adversely affect in any material respect the interests of any Investor Holder or
Credit Enhancement Provider; PROVIDED further that the Rating Agency Condition
shall have been satisfied with respect to such action.
(b) Subject to subsection 2.1(f), this Agreement may also be amended
in writing from time to time by Purchaser and the Originators with the consent
of each Credit Enhancement Provider and the Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 66-2/3% of the Investor
Interest of each outstanding Series adversely affected by such amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or modifying in any manner the rights of
Investor Holders of any Series then issued and outstanding; PROVIDED that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Investor Certificates of
such Series without the consent of each Investor Holder of such Series, or (ii)
reduce the aforesaid percentage required to consent to any such amendment,
without the consent of each Investor Holder of all Series adversely affected.
(c) Promptly after the execution of any such amendment (other than an
amendment pursuant to subsection (a)), Purchaser shall furnish notification of
the substance of such amendment to each Investor Holder of each Series adversely
affected and to each Rating Agency providing a rating for such Series.
(d) It shall not be necessary for the consent of Investor Holders
under this Section 6.1 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 Investor Holders shall be subject to such reasonable
requirements as Trustee may prescribe.
SECTION 6.2 NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex,
facsimile or cable communication) and mailed, telegraphed, telexed, transmitted,
cabled or delivered, if to the Originators, to AFCO Credit Corporation, 00
Xxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxx
III, Vice President and Chief Financial Officer, with a copy to Xxxxxx Xxxxxx,
Esq., Senior Vice President, General Counsel and Secretary; and if to the
Purchaser, to Mellon Bank, N.A., One Mellon Bank Center, Suite 1910, 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Attention: Chief Financial Officer and
General Counsel, or as to each party, at such other address as shall be
designated by such party in a written notice to the other parties.
SECTION 6.3 NO WAIVER; REMEDIES. No failure on the part of the
Purchaser to exercise, and no delay in exercising, any right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 6.4 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of each Originator and the Purchaser and their respective
successors and assigns, except that no Originator shall have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Purchaser. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect as between the Purchaser and each Originator until such
time, after the Purchase Termination Date applicable to such Originator, as the
Purchaser shall not have any net ownership interest in any Receivables;
PROVIDED, HOWEVER, that the indemnification provisions of Article VIII shall be
continuing and shall survive any termination of this Agreement.
SECTION 6.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.6 ACKNOWLEDGMENT OF ASSIGNMENTS. Each of the Originators
hereby acknowledges and consents to the assignment by the Purchaser of
Receivables and the rights of the Purchaser under this Agreement pursuant to the
Pooling and Servicing Agreement.
SECTION 6.7 CUSTODY OF PREMIUM FINANCE AGREEMENTS. For administrative
convenience and in contemplation of the subsequent transfer by the Purchaser to
the Trustee of the Receivables sold to the Purchaser hereunder, each Originator
hereby acknowledges its obligation to maintain custody of the Premium Finance
Agreements sold to the Purchaser hereunder under the Pooling and Servicing
Agreement and hereby agrees to maintain custody of the Premium Finance
Agreements in accordance with the Pooling and Servicing Agreement and, prior to
its sale to the Trustee, permit the Purchaser access to such Premium Finance
Agreements at all times during normal business hours.
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 above written.
THE ORIGINATORS:
AFCO CREDIT CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
Title: President and CEO
AFCO ACCEPTANCE CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
Title: President and CEO
THE PURCHASER:
MELLON BANK, N.A.
By:/s/ Xxxxxx X. Xxxxxx
Title: _______________________
