Exhibit 99.1
[EXECUTION COPY]
FIRST TIER RECEIVABLES PURCHASE AGREEMENT
This FIRST TIER RECEIVABLES PURCHASE AGREEMENT dated as of June 15,
2001 (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 (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Originators and the Purchaser are parties to that certain
Receivables Purchase Agreement, dated as of December 1, 1996 (the "Original
Agreement"), among the Originators and Purchaser;
WHEREAS, the Originators and the Purchaser desire to amend and restate
the Original Agreement on the terms and conditions set forth in this Agreement;
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;
WHEREAS, the Purchaser intends to sell the Receivables to Mellon
Premium Finance Loan Owner Trust, a Delaware business trust (the "Transferor"),
pursuant to the terms and conditions of the Second Tier Receivables Purchase
Agreement, dated as of June 15, 2001 (the "Second Tier Purchase Agreement"); and
WHEREAS, the Transferor intends to transfer the Receivables to Xxxxx
Fargo Bank Minnesota, National Association, as trustee (the "Trustee") pursuant
to an Amended and Restated Pooling and Servicing Agreement, dated as of June 15,
2001 (the "Pooling and Servicing Agreement"), among the Transferor, the Trustee,
AFCO Credit Corporation and AFCO Acceptance Corporation, as servicers, and
Premium Financing Specialists, Inc. and Premium Financing Specialists of
California, Inc., as back-up servicers;
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).
"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 or, to the
extent not defined therein, in any Supplement thereto.
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 IA
SECTION 1A.1 AMENDMENT AND RESTATEMENT. The Original Agreement is
hereby amended and restated in its entirety and replaced for all purposes by
this Agreement from and as of the date hereof; provided, however, that the terms
and conditions of the Original Agreement shall continue to be in full force and
effect and apply for all periods prior to the date of this Agreement.
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) originated prior to the Initial Closing Date and set forth in the
Receivables Schedule delivered on the Initial Closing Date that as of the
Initial Closing Date satisfies the eligibility criteria set forth in the
definition of "Eligible Receivable" in the Pooling and Servicing Agreement for
transfer to the Trust on the Initial Closing Date (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 the Initial Closing 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 or acquired on or
after the Initial Closing Date which as of its date of its origination satisfies
the eligibility criteria set forth in the definition of "ELIGIBLE RECEIVABLE" 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 or acquired 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 (i) to the Purchaser
pursuant to this Agreement, (ii) by the Purchaser to the Transferor pursuant to
the Second Tier Purchase Agreement and (iii) by the Transferor to the Trustee,
on behalf of the Trust, for the benefit of the Holders, pursuant to the Pooling
and Servicing Agreement.
(e) [Reserved].
(f) Each Originator hereby acknowledges that the Receivables will be
sold by the Purchaser to the Transferor pursuant to the terms of the Second Tier
Purchase Agreement and hereby agrees to cooperate fully with the Purchaser to
effect the sale of the Receivables to the Transferor; and the Originators
further agree to assist the Transferor in the transfer of the Receivables to the
Trustee, on behalf of the Trust, for the benefit of the Holders, pursuant to the
terms and conditions set forth in the Pooling and Servicing Agreement.
(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; and
(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 and as a result
thereof, the Purchaser is required to repurchase any Receivable from the
Transferor pursuant to the Second Tier Purchase Agreement, as a result of the
Transferor being required to repurchase such Receivable from the Trustee (on
behalf of the Trust) pursuant to subsection 2.4(d) of the Pooling and Servicing
Agreement or (ii) any Receivable is repurchased from the Trust pursuant to
Section 2.6 of the Pooling and Servicing Agreement, then the Originator of the
repurchased Receivable shall pay to the Purchaser immediately upon the
Purchaser's demand therefor an amount equal to the Aggregate Receivables Balance
of the repurchased Receivables, as well as, in the case of a breach of a
representation or warranty of an Originator as set forth in clause (i), the
amount of all losses, damages and liabilities of the Purchaser that result from
such breach. Upon receipt by the Purchaser of such amounts, the Purchaser shall
(and shall cause the Transferor to) automatically and without further action be
deemed to transfer, assign and otherwise convey to such Originator, without
recourse, representation or warranty, all the right, title and interest of the
Purchaser (and the Transferor) in and to such Receivable, all monies due or to
become due with respect to such Receivable and all proceeds of such Receivable,
as well as Recoveries relating to such Receivable. The Purchaser will (and will
cause the Transferor to) execute any documents and instruments of transfer or
assignment and take other actions reasonably requested by such Originator to
evidence the conveyance of such Receivable to the Originator.
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) (i) VALID TRANSFER AND ASSIGNMENT. 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) BINDING OBLIGATION. 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) GENERAL. 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) VALID TRANSFER AND ASSIGNMENT. 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) BINDING OBLIGATION. 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 each
Originator 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 Purchaser
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 Purchaser
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 Purchaser on such date, free and clear of all Liens and, immediately upon
the transfer thereof, the Purchaser 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 Initial Closing 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 Initial Closing Date or on the day any Additional Receivable
is conveyed to the Purchaser, for any related Additional Receivable.
(b) THE RECEIVABLES. Each Originator hereby jointly and severally
represents and warrants to the Purchaser that as of the Initial Closing Date,
with respect to the Initial Receivables, and as of the related Addition Date,
with respect to Additional Receivables, such that:
(i) ELIGIBLE RECEIVABLES. Each Receivable conveyed to the
Purchaser on such date is an Eligible Receivable.
(ii) NO LIENS; COMPLIANCE WITH LAW. 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 or notice to 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 or receiving notice of 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 (and as
contemplated under the Second Tier Purchase Agreement and the Pooling and
Servicing Agreement), 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 such Originator; 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
the ruling by any court of competent jurisdiction that such Originator may 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) INDEMNIFICATION OF PURCHASER. 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 Purchaser 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) MAINTENANCE OF INTEREST RATES. 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 Interest or the Class B Optimal Interest, respectively on any
Distribution Date.
(f) ALLOCATION OF COLLECTIONS. In the event that Premium Finance
Agreements of the same Obligor are owned by any such Originator and by the
Purchaser, the Transferor or the Trustee (on behalf of the Trust), to the extent
any payment is received from such Obligor that cannot be allocated to a specific
Premium Finance Agreement, each Originator hereby agrees that it shall allocate
a pro rata portion of such amount to such Premium Finance Agreements owned by
the Purchaser, the Transferor or the Trustee (on behalf of the Trust) (based on
the Aggregate Receivables Balances of such Premium Finance Agreements as a
percentage of the Aggregate Receivables Balances of all Premium Finance
Agreements of such Obligor), until the Aggregate Receivables Balances thereof
have been reduced to zero.
(g) PROTECTION OF RIGHT, TITLE AND INTEREST TO THE CONVEYED PROPERTY
AND THE ADDITIONAL PROPERTY. Within 30 days after either Originator makes any
change in its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance with
subsection (a) seriously misleading within the meaning of Section 9-402(7) of
the UCC as in effect in the States of New York and/or California, such
Originator shall give the Purchaser notice of any such change and shall file
such financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's security interest in the Conveyed Property and the
Additional Property. In addition, if the UCC as in effect in the States of New
York and/or California shall have been revised, within 30 days of such revision,
with respect to a revision to the UCC in effect in the State of New York, AFCO
Credit Corporation, and with respect to a revision to the UCC in effect in the
State of California, AFCO Acceptance Corporation, shall (i) give the Purchaser
notice thereof and (ii) file such financing statements or amendments as may be
necessary to continue the perfection of the Purchaser's security interest in the
Conveyed Property and the Additional Property.
ARTICLE V
PURCHASE TERMINATION EVENTS
SECTION 5.1 PURCHASE TERMINATION. If the 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
"Purchase Termination Date") 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) This Agreement may be amended in writing from time to time by the
Originators and the Purchaser, without the consent of the Transferor, the
Trustee or any of Holders; PROVIDED that such action shall not, as evidenced by
an Opinion of Counsel for the Transferor addressed and delivered to the 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) This Agreement may also be amended in writing from time to time by
the Purchaser and the Originators with the consent of each Credit Enhancement
Provider, the Transferor, 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)), the 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 the 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, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Esq., Senior
Vice President, General Counsel and Secretary and to AFCO Credit Corporation,
Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxx X'Xxxxxxx,
Chief Financial Officer; and if to the Purchaser, to Mellon Bank, N.A., One
Mellon 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 Section 4.1(d) 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 INTENDED THIRD PARTY BENEFICIARIES; ACKNOWLEDGMENT OF
ASSIGNMENTS. The Originators and the Purchaser hereby acknowledge, consent and
agree that each of the Transferor and the Trust are intended third party
beneficiaries of this Agreement. The Originators hereby acknowledge, consent and
agree that the rights and remedies of the Purchaser under this Agreement will be
assigned to the Transferor pursuant to the Second Tier Purchase Agreement, and
by the Transferor to the Trustee (on behalf of the Trust) pursuant to the
Pooling and Servicing Agreement. Each Originator hereby acknowledges, consents
and agrees that, subsequent to such assignments, the rights and remedies of the
Purchaser may be exercised directly by the Trustee (on behalf of the Trust)
against each Originator.
SECTION 6.7 CUSTODY OF PREMIUM FINANCE AGREEMENTS. For administrative
convenience and in contemplation of the subsequent transfer by the Purchaser to
the Transferor and by the Transferor to the Trustee (on behalf of the Trust) 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 Transferor and its sale by the Transferor to the Trustee (on
behalf of the Trust), 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/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: President
AFCO ACCEPTANCE CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: President
THE PURCHASER:
MELLON BANK, N.A.
By: Xxxxxx X. Xxxxxxx
By: /s/ Xxx X. Au
--------------------------
Name: Xxx X. Au
Title: Attorney-in-Fact