RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
between
ARCADIA RECEIVABLES FINANCE CORP.
Purchaser
and
ARCADIA FINANCIAL LTD.
Seller
dated as of
June 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS...........................................................................1
SECTION 1.1. General.................................................................1
SECTION 1.2. Specific Terms..........................................................2
SECTION 1.3. Usage of Terms..........................................................4
SECTION 1.4. Certain References......................................................4
SECTION 1.5. No Recourse.............................................................5
SECTION 1.6. Action by or Consent of Noteholders.....................................5
SECTION 1.7. Material Adverse Effect.................................................5
ARTICLE II
CONVEYANCE OF THE INITIAL RECEIVABLES
AND THE INITIAL OTHER CONVEYED PROPERTY...............................................5
SECTION 2.1. Conveyance of the Initial Receivables and the Initial Other Conveyed
Property................................................................5
SECTION 2.2. Purchase Price of Initial Receivables...................................6
SECTION 2.3. Conveyance of Subsequent Receivables and Subsequent Other
Conveyed Property.......................................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES........................................................8
SECTION 3.1. Representations and Warranties of AFL...................................8
SECTION 3.2. Representations and Warranties of ARFC.................................10
ARTICLE IV
COVENANTS OF AFL.....................................................................12
SECTION 4.1. Protection of Title of ARFC and the Trust..............................12
SECTION 4.2. Other Liens or Interests...............................................13
SECTION 4.3. Costs and Expenses.....................................................13
SECTION 4.4. Indemnification........................................................14
ARTICLE V
REPURCHASES..........................................................................16
SECTION 5.1. Repurchase of Receivables Upon Breach of Warranty......................16
SECTION 5.2. Reassignment of Purchased Receivables..................................16
SECTION 5.3. Waivers................................................................17
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ARTICLE VI
MISCELLANEOUS........................................................................17
SECTION 6.1. Liability of AFL.......................................................17
SECTION 6.2. Failure of AFL to Sell Subsequent Receivables..........................17
SECTION 6.3. Merger or Consolidation of AFL or ARFC.................................17
SECTION 6.4. Limitation on Liability of AFL and Others..............................18
SECTION 6.5. AFL May Own Notes......................................................18
SECTION 6.6. Amendment..............................................................18
SECTION 6.7. Notices................................................................19
SECTION 6.8. Merger and Integration.................................................20
SECTION 6.9. Severability of Provisions.............................................20
SECTION 6.10. Intention of the Parties...............................................20
SECTION 6.11. Governing Law..........................................................20
SECTION 6.12. Counterparts...........................................................20
SECTION 6.13 Conveyance of the Initial Receivables and the Initial Other
Conveyed Property to the Trust.........................................21
SECTION 6.14. Nonpetition Covenant...................................................21
SCHEDULES
Schedule A -- Schedule of Initial Receivables
Schedule B -- Representations and Warranties of AFL
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RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
THIS RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT, dated as
of June 1, 1999, executed between Arcadia Receivables Finance Corp., a Delaware
corporation, as purchaser ("ARFC"), and Arcadia Financial Ltd., a Minnesota
corporation, as seller ("AFL").
W I T N E S S E T H:
WHEREAS, ARFC has agreed to purchase from AFL and AFL,
pursuant to one or more assignment, transfer, purchase, repurchase or
reconveyance agreements by and among AFL or its affiliates, ARFC and certain
providers of warehouse financing for AFL (the "Warehouse Purchase
Agreements"), has transferred to ARFC certain of the Initial Receivables and
Initial Other Conveyed Property;
WHEREAS, ARFC has agreed to purchase from AFL and AFL,
pursuant to this Agreement, is transferring to ARFC the remainder of the Initial
Receivables and Initial Other Conveyed Property; and
WHEREAS, ARFC has agreed to purchase (or has purchased) from
AFL and AFL has agreed to transfer (or has transferred) to ARFC the Subsequent
Receivables and Subsequent Other Conveyed Property in an amount set forth
herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is acknowledged, ARFC and AFL, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. GENERAL. The specific terms defined in this
Article include the plural as well as the singular. The words "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise specified,
refer to Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement, dated as of
June 1, 1999, by and among Arcadia Receivables Finance Corp. (as Seller),
Arcadia Financial Ltd. (in its individual capacity and as Servicer), Arcadia
Automobile Receivables Trust, 1999-B (as Issuer) (the "Trust") and Norwest Bank
Minnesota, National Association, a national banking association (as Backup
Servicer).
SECTION 1.2. SPECIFIC TERMS. Whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
"AGREEMENT" shall mean this Receivables Purchase Agreement and
Assignment and all amendments hereof and supplements hereto.
"CLOSING DATE" means June 17, 1999.
"INDENTURE TRUSTEE" means Norwest Bank Minnesota, National
Association, a national banking association, as trustee and indenture collateral
agent under the Indenture, dated as of June 1, 1999, between the Trust, the
Indenture Trustee and the Indenture Collateral Agent.
"INITIAL OTHER CONVEYED PROPERTY" means all monies at any time
paid or payable on the Initial Receivables or in respect thereof after the
Initial Cutoff Date (including amounts due on or before the Initial Cutoff Date
but received by AFL after the Initial Cutoff Date), an assignment of security
interests in the Financed Vehicles, the Collection Account (including all
Eligible Investments therein and all proceeds therefrom), the Subcollection
Account, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Initial Receivables, the Obligors or the related Financed
Vehicles, including rebates of premiums, rights under any Collateral Insurance
and any Force-Placed Insurance relating to the Initial Receivables, an
assignment of the rights of AFL against Dealers with respect to the Initial
Receivables under the Dealer Agreements and the Dealer Assignments, all items
contained in the Receivable Files relating to the Initial Receivables, any and
all other documents or electronic records that AFL keeps on file in accordance
with its customary procedures relating to the Initial Receivables, the Obligors
or the related Financed Vehicles, property (including the right to receive
future Liquidation Proceeds) that secures an Initial Receivable and that has
been acquired by or on behalf of the Trust pursuant to liquidation of such
Initial Receivable, and all proceeds of the foregoing.
"INITIAL RECEIVABLES" means the Receivables listed on the
Schedule of Initial Receivables attached hereto as Schedule A.
"INITIAL SPREAD ACCOUNT DEPOSIT" means $0.
"INSURANCE AGREEMENT" means the Insurance and Indemnity
Agreement, dated as of June 17, 1999, among the Security Insurer, the Trust,
ARFC and AFL.
"LIQUIDATED DAMAGES" means an amount equal to the sum of the
Class A-1 Prepayment Premium, the Class A-2 Prepayment Premium, the Class A-3
Prepayment Premium, the Class A-4 Prepayment Premium and the Class A-5
Prepayment Premium.
"OTHER CONVEYED PROPERTY" means the Initial Other Conveyed
Property conveyed by AFL to ARFC pursuant to this Agreement together with any
and all Subsequent Other
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Conveyed Property conveyed by AFL to ARFC pursuant to each Subsequent Purchase
Agreement.
"OWNER TRUSTEE" means Wilmington Trust Company, a Delaware
corporation, not in its individual capacity but solely as trustee of the Trust,
and any successor trustee appointed and acting pursuant to the Trust Agreement.
"RELATED DOCUMENTS" means the Notes, the Custodian Agreement,
the Trust Agreement, the Administration Agreement, the Indenture, each
Subsequent Purchase Agreement, the Sale and Servicing Agreement, each Subsequent
Transfer Agreement, the Note Policy, the Spread Account Agreement, the Insurance
Agreement, the Lockbox Agreement and the Underwriting Agreement among AFL, ARFC
and the underwriters of the Notes. The Related Documents to be executed by any
party are referred to herein as "such party's Related Documents," "its Related
Documents" or by a similar expression.
"REPURCHASE EVENT" means the occurrence of a breach of any of
AFL's representations and warranties hereunder or under any Subsequent Purchase
Agreement or any other event which requires the repurchase of a Receivable by
AFL under the Sale and Servicing Agreement.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing
Agreement, dated as of June 1, 1999, executed and delivered by Arcadia
Receivables Finance Corp., as Seller, Arcadia Financial Ltd., in its individual
capacity and as Servicer, Arcadia Automobile Receivables Trust, 1999-B, as
Issuer, and Norwest Bank Minnesota, National Association, as Backup Servicer.
"SCHEDULE OF INITIAL RECEIVABLES" means the schedule of all
retail installment sales contracts and promissory notes sold and transferred
pursuant to this Agreement which is attached hereto as Schedule A.
"SCHEDULE OF RECEIVABLES" means the Schedule of Initial
Receivables attached hereto as Schedule A as supplemented by each Schedule of
Subsequent Receivables attached to each Subsequent Purchase Agreement as
Schedule A.
"SCHEDULE OF REPRESENTATIONS" means the Representations and
Warranties of AFL attached hereto as Schedule B.
"SCHEDULE OF SUBSEQUENT RECEIVABLES" means the schedule of all
retail installment sales contracts and promissory notes sold and transferred
pursuant to a Subsequent Purchase Agreement which is attached to such Subsequent
Purchase Agreement as Schedule A, which Schedule of Subsequent Receivables shall
supplement the Schedule of Initial Receivables.
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"SPREAD ACCOUNT" means the Spread Account established and
maintained pursuant to the Spread Account Agreement. The Spread Account shall in
no event be deemed to be part of the Trust Property.
"SPREAD ACCOUNT AGREEMENT" means the Spread Account Agreement,
dated as of March 25, 1993, as thereafter amended and restated, among AFL, ARFC,
the Security Insurer, the Collateral Agent and the trustees specified therein,
as the same may be amended, supplemented or otherwise modified in accordance
with the terms thereof.
"SUBSEQUENT OTHER CONVEYED PROPERTY" means the Subsequent
Other Conveyed Property conveyed by AFL to ARFC pursuant to each Subsequent
Purchase Agreement.
"SUBSEQUENT RECEIVABLES" means the Receivables specified in
the Schedule of Subsequent Receivables attached as Schedule A to each Subsequent
Purchase Agreement.
"TRUST" means the trust created by the Trust Agreement, the
estate of which consists of the Trust Property.
"TRUST PROPERTY" means the property and proceeds of every
description conveyed pursuant to Section 2.5 of the Trust Agreement, Sections
2.1 and 2.4 of the Sale and Servicing Agreement and Section 2.1 hereof and
pursuant to any Subsequent Purchase Agreement and Subsequent Transfer Agreement,
together with the Trust Accounts (including all Eligible Investments therein and
all proceeds therefrom). Although ARFC has pledged the Spread Account to the
Collateral Agent pursuant to the Spread Account Agreement, the Spread Account
shall not under any circumstances be deemed to be a part of or otherwise
includable in the Trust or the Trust Property.
SECTION 1.3. USAGE OF TERMS. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4. CERTAIN REFERENCES. All references to the
Principal Balance of a Receivable as of an Accounting Date shall refer to the
close of business on such day, or as of the first day of a Monthly Period shall
refer to the opening of business on such day. All references to the last day of
a Monthly Period shall refer to the close of business on such day.
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SECTION 1.5. NO RECOURSE. Without limiting the obligations of
AFL hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of AFL, or
of any predecessor or successor of AFL.
SECTION 1.6. ACTION BY OR CONSENT OF NOTEHOLDERS. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Noteholders, such provision shall be deemed to refer to Noteholders of record as
of the Record Date immediately preceding the date on which such action is to be
taken, or consent given, by Noteholders. Solely for the purposes of any action
to be taken, or consented to, by Noteholders, any Note registered in the name of
the Seller, AFL or any Affiliate thereof shall be deemed not to be outstanding,
and the related Outstanding Amount, evidenced thereby shall not be taken into
account in determining whether the requisite Outstanding Amount necessary to
effect any such action or consent has been obtained; PROVIDED, HOWEVER, that,
solely for the purpose of determining whether the Indenture Trustee is entitled
to rely upon any such action or consent, only Notes which the Indenture Trustee
knows to be so owned shall be so disregarded.
SECTION 1.7. MATERIAL ADVERSE EFFECT. Whenever a determination
is to be made under this Agreement as to whether a given event, action, course
of conduct or set of facts or circumstances could or would have a material
adverse effect on the Trust or the Noteholders (or any similar or analogous
determination), such determination shall be made without taking into account the
funds available from claims under the Note Policy.
ARTICLE II
CONVEYANCE OF THE INITIAL RECEIVABLES
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. CONVEYANCE OF THE INITIAL RECEIVABLES AND THE
INITIAL OTHER CONVEYED PROPERTY. Subject to the terms and conditions of this
Agreement, AFL hereby sells, transfers, assigns, and otherwise conveys to ARFC
without recourse (but without limitation of its obligations in this Agreement),
and ARFC hereby purchases, all right, title and interest of AFL in and to the
Initial Receivables and the Initial Other Conveyed Property. AFL and ARFC
acknowledge that certain of the Initial Receivables and Initial Other Conveyed
Property have previously been sold, transferred, assigned and conveyed to ARFC
pursuant to the Telluride Purchase Agreement, and AFL hereby confirms such prior
sale, transfer, assignment and conveyance. It is the intention of AFL and ARFC
that the transfer and assignment contemplated by this Agreement shall constitute
a sale of the Initial Receivables and the Initial Other Conveyed Property from
AFL to ARFC, conveying good title thereto free and clear of any Liens, and the
Initial Receivables and the Initial Other Conveyed Property shall not be part of
AFL's estate in the event of the filing of a bankruptcy petition by or against
AFL under any bankruptcy or similar law.
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SECTION 2.2. PURCHASE PRICE OF INITIAL RECEIVABLES.
Simultaneously with the conveyance of the Initial Receivables and the Initial
Other Conveyed Property to ARFC, ARFC has paid or caused to be paid to or upon
the order of AFL approximately $453,923,908.92 by wire transfer of immediately
available funds (representing the proceeds to ARFC from the sale of the Initial
Receivables after (i) deducting expenses of $725,000 incurred by ARFC in
connection with such sale, (ii) depositing the Pre-Funded Amount in the
Pre-Funding Account and (iii) depositing the Reserve Amount in the Reserve
Account).
SECTION 2.3. CONVEYANCE OF SUBSEQUENT RECEIVABLES AND
SUBSEQUENT OTHER CONVEYED PROPERTY.
(a) Subject to the conditions set forth in paragraph (b) below
and the terms and conditions in the related Subsequent Purchase Agreement, in
consideration of AFL's delivery on the related Subsequent Transfer Date to or
upon the order of ARFC of an amount equal to the purchase price of the
Subsequent Receivables (as set forth in the related Subsequent Purchase
Agreement), AFL hereby agrees to sell, transfer, assign, and otherwise convey to
ARFC without recourse (but without limitation of its obligations in this
Agreement and the related Subsequent Purchase Agreement), and ARFC hereby agrees
to purchase all right, title and interest of AFL in and to the Subsequent
Receivables and the Subsequent Other Conveyed Property described in the related
Subsequent Purchase Agreement.
(b) AFL shall transfer to ARFC, and ARFC shall acquire, the
Subsequent Receivables and the Subsequent Other Conveyed Property to be
transferred on any Subsequent Transfer Date only upon the satisfaction of each
of the following conditions on or prior to such Subsequent Transfer Date:
(i) ARFC shall have provided the Owner Trustee, the
Indenture Trustee, the Security Insurer 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 Receivables;
(ii) the Funding Period shall not have terminated;
(iii) the Security Insurer (so long as an Insurer
Default shall not have occurred and be continuing) shall in its sole
and absolute discretion have given its prior written approval of the
transfer of the Subsequent Receivables and the Subsequent Other
Conveyed Property by AFL to ARFC and, in turn, by ARFC to the Trust;
(iv) ARFC shall have delivered to AFL a duly executed
Subsequent Receivables Purchase Agreement and Assignment, in
substantially the form of Exhibit A hereto (the "Subsequent Purchase
Agreement"), which shall include a Schedule of Subsequent Receivables;
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(v) as of each Subsequent Transfer Date, neither AFL
nor ARFC was insolvent nor will either of them have been made insolvent
by such transfer nor is either of them aware of any pending insolvency;
(vi) each Rating Agency shall have notified the
Security Insurer that following such transfer the Notes will be rated
in the highest rating category by such Rating Agency;
(vii) such addition will not result in a material
adverse tax consequence to the Trust or the Noteholders as evidenced by
an Opinion of Counsel to be delivered by AFL;
(viii) ARFC shall have delivered to the Rating
Agencies and to the Security Insurer one or more Opinions of Counsel
with respect to the transfer of the Subsequent Receivables
substantially in the form of the Opinions of Counsel delivered to such
persons on the Closing Date;
(ix) (A) the Receivables in the Trust, including the
Subsequent Receivables to be conveyed by AFL to ARFC and, in turn, by
ARFC to the Trust on the Subsequent Transfer Date, shall meet the
following criteria (based on the characteristics of the Initial
Receivables on the Initial Cutoff Date and the Subsequent Receivables
on each related Subsequent Cutoff Date): (1) the weighted average APR
of such Receivables will not be less than 16.29%, (2) the weighted
average remaining term of such Receivables will not be more than 68 nor
less than 60 months, (3) not more than 90% of the Aggregate Principal
Balance of such Receivables will represent used Financed Vehicles, (4)
not more than 4.00% of the Aggregate Principal Balance of such
Receivables will be attributable to Receivables with an Annual
Percentage Rate in excess of 21.00%, (5) not more than 0.25% of the
Aggregate Principal Balance of such Receivables will represent loans on
Financed Vehicles in excess of $50,000.00, (6) not more than 3.00% of
the Aggregate Principal Balance of such Receivables will represent
loans with original terms greater than 72 months and (7) not more than
0.25% of the Aggregate Principal Balance of such Receivables will
represent loans secured by Financed Vehicles that previously secured a
loan originated by AFL with an obligor other than the current Obligor,
and (B) the Trust, the Owner Trustee, the Indenture Trustee and the
Security Insurer shall have received written confirmation from a firm
of certified independent public accountants as to the satisfaction of
such criteria;
(x) AFL shall have taken any action necessary, or if
requested by the Security Insurer, advisable to maintain the first
perfected ownership interest of the Trust in the Trust Property and the
first perfected security interest of ARFC in the Subsequent Receivables
and the Subsequent Other Conveyed Property, the Trust in the Trust
Property and the first perfected security interest of the Indenture
Collateral Agent in the Indenture Collateral;
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(xi) AFL is conveying Subsequent Receivables to the
Seller in substantially the order they were originated by AFL; and
(xii) no selection procedures believed by AFL to be
adverse to the interests of the Noteholders shall have been utilized in
selecting the Subsequent Receivables.
It is the intention of AFL and ARFC that the transfer and assignment
contemplated by this Agreement and the related Subsequent Purchase Agreement
shall constitute a sale of the Subsequent Receivables and the Subsequent Other
Conveyed Property from AFL to ARFC, conveying good title thereto free and clear
of any Liens, and the Subsequent Receivables and the Subsequent Other Conveyed
Property shall not be part of AFL's estate in the event of the filing of a
bankruptcy petition by or against AFL under any bankruptcy or similar law.
(c) AFL covenants to transfer to ARFC pursuant to paragraph
(a) above Subsequent Receivables with an aggregate Principal Balance
approximately equal to $194,212,600.77; PROVIDED, HOWEVER, that the sole remedy
of ARFC with respect to a failure of such covenant shall be to enforce the
provisions of Section 6.2 of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF AFL. AFL makes
the following representations and warranties, on which ARFC relies in purchasing
the Initial Receivables and the Initial Other Conveyed Property and in
transferring the Initial Receivables and the Initial Other Conveyed Property to
the Trust under the Sale and Servicing Agreement and on which the Security
Insurer will rely in issuing the Note Policy. Such representations are made as
of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial Receivables and the Initial Other
Conveyed Property hereunder and the sale, transfer and assignment thereof by
ARFC to the Trust under the Sale and Servicing Agreement. AFL and ARFC agree
that ARFC will assign to the Trust all of ARFC's rights under this Agreement and
that the Trust will thereafter be entitled to enforce this Agreement against AFL
in the Trust's own name.
(a) SCHEDULE OF REPRESENTATIONS. The representations and
warranties set forth on the Schedule of Representations are true and
correct.
(b) ORGANIZATION AND GOOD STANDING. AFL has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Minnesota, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
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all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Initial Receivables and the Initial Other
Conveyed Property transferred to ARFC.
(c) DUE QUALIFICATION. AFL is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) POWER AND AUTHORITY. AFL has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; AFL has full power
and authority to sell and assign the Initial Receivables and the
Initial Other Conveyed Property to be sold and assigned to and
deposited with ARFC hereunder and has duly authorized such sale and
assignment to ARFC by all necessary corporate action; and the
execution, delivery and performance of this Agreement and AFL's Related
Documents have been duly authorized by AFL by all necessary corporate
action.
(e) VALID SALE; BINDING OBLIGATIONS. This Agreement and AFL's
Related Documents have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Initial Receivables and the
Initial Other Conveyed Property, enforceable against AFL and creditors
of and purchasers from AFL; and this Agreement and AFL's Related
Documents constitute legal, valid and binding obligations of AFL
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice, lapse of time or
both) a default under, the articles of incorporation or bylaws of AFL,
or any indenture, agreement, mortgage, deed of trust or other
instrument to which AFL is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed
of trust or other instrument, other than this Agreement, the Spread
Account Agreement and the Sale and Servicing Agreement, or violate any
law, order, rule or regulation applicable to AFL of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over AFL or any of its
properties.
(g) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to AFL's knowledge, threatened against AFL,
before any court, regulatory body,
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administrative agency or other tribunal or governmental instrumentality
having jurisdiction over AFL or its properties (i) asserting the
invalidity of this Agreement or any of the Related Documents, (ii)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by AFL of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of,
or seeking to impose any excise, franchise, transfer or similar tax
upon, the transfer and acquisition of the Initial Receivables and the
Initial Other Conveyed Property hereunder or under the Sale and
Servicing Agreement.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of AFL
is located at 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000-0000.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF ARFC. ARFC
makes the following representations and warranties, on which AFL relies in
selling, assigning, transferring and conveying the Initial Receivables and the
Initial Other Conveyed Property to ARFC hereunder. Such representations are made
as of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Initial Receivables and the Initial Other
Conveyed Property hereunder and the sale, transfer and assignment thereof by
ARFC to the Trust under the Sale and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. ARFC has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had
at all relevant times, and has, full power, authority and legal right
to acquire and own the Initial Receivables and the Initial Other
Conveyed Property and to transfer the Initial Receivables and the
Initial Other Conveyed Property to the Trust pursuant to the Sale and
Servicing Agreement.
(b) DUE QUALIFICATION. ARFC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect (i) ARFC's ability to
acquire the Initial Receivables or the Initial Other Conveyed Property,
(ii) the validity or enforceability of the Initial Receivables and the
Initial Other Conveyed Property or (iii) ARFC's ability to perform its
obligations hereunder and under the Related Documents.
(c) POWER AND AUTHORITY. ARFC has the power, authority and
legal right to execute and deliver this Agreement and its Related
Documents and to carry out the terms hereof and thereof and to acquire
the Initial Receivables and the Initial Other Conveyed
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Property hereunder; and the execution, delivery and performance of this
Agreement and its Related Documents and all of the documents required
pursuant hereto or thereto have been duly authorized by ARFC by all
necessary action.
(d) NO CONSENT REQUIRED. ARFC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(e) BINDING OBLIGATION. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of ARFC,
enforceable against ARFC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and
to general equitable principles.
(f) NO VIOLATION. The execution, delivery and performance by
ARFC of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice or lapse
of time) a default under the certificate of incorporation or bylaws of
ARFC, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument
to which ARFC is a party or by which ARFC is bound or to which any of
its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than the Sale and Servicing Agreement and the Indenture), or
violate any law, order, rule or regulation, applicable to ARFC or its
properties, of any federal or state regulatory body or any court,
administrative agency, or other governmental instrumentality having
jurisdiction over ARFC or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the knowledge of ARFC, threatened against ARFC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over ARFC or its
properties: (i) asserting the invalidity of this Agreement or any of
the Related Documents, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by ARFC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Initial Receivables and the Initial
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Other Conveyed Property hereunder or the transfer of the Initial
Receivables and the Initial Other Conveyed Property to the Trust
pursuant to the Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by ARFC
hereunder, AFL covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the later of (i) the date on which all
pass-through certificates or other similar securities issued by the Trust, or a
trust or similar vehicle formed by ARFC, have been paid in full, or (ii) all
Notes or other similar securities issued by the Trust, or a trust or similar
vehicle formed by ARFC, have been paid in full. AFL and ARFC agree that damages
will not be an adequate remedy for such breach and that this covenant may be
specifically enforced by ARFC or by the Owner Trustee on behalf of the Trust.
ARTICLE IV
COVENANTS OF AFL
SECTION 4.1. PROTECTION OF TITLE OF ARFC AND THE TRUST.
(a) At or prior to the Closing Date or each Subsequent
Transfer Date, as the case may be, AFL shall have filed or caused to be filed a
UCC-1 financing statement, executed by AFL as seller or debtor, naming ARFC as
purchaser or secured party and describing the Initial Receivables and the
Initial Other Conveyed Property, with respect to this Agreement, and the
Subsequent Receivables and the Subsequent Other Conveyed Property, with respect
to each Subsequent Purchase Agreement, being sold by it to ARFC as collateral,
with the office of the Secretary of State of the State of Minnesota and in such
other locations as ARFC shall have required. From time to time thereafter, AFL
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain and protect the interest of ARFC
under this Agreement and each Subsequent Purchase Agreement and of the Trust
under the Sale and Servicing Agreement and each Subsequent Transfer Agreement in
the Initial Receivables and the Initial Other Conveyed Property and the
Subsequent Receivables and the Subsequent Other Conveyed Property, as the case
may be, and in the proceeds thereof. AFL shall deliver (or cause to be
delivered) to ARFC, the Owner Trustee, the Indenture Trustee and the Security
Insurer file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. In the event that
AFL fails to perform its obligations under this subsection, ARFC or the Owner
Trustee may do so at the expense of AFL.
(b) AFL shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by AFL (or by ARFC or the Owner
Trustee on behalf of AFL) in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given ARFC, the Owner Trustee and the Security Insurer at least 60 days'
prior written notice
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thereof, and shall promptly file appropriate amendments to all previously filed
financing statements and continuation statements.
(c) AFL shall give ARFC, the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing), the Indenture
Trustee and the Owner Trustee at least 60 days' prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement. AFL shall at all times maintain each office from which it
services Receivables and its principal executive office within the United States
of America.
(d) AFL shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Initial Receivables to ARFC,
and from and after the time of sale under each Subsequent Purchase Agreement of
the Subsequent Receivables to ARFC, and the conveyance of the Initial
Receivables and the Subsequent Receivables by ARFC to the Trust, AFL's master
computer records (including archives) that shall refer to an Initial Receivable
or Subsequent Receivable indicate clearly that such Initial Receivable or
Subsequent Receivable has been sold to ARFC and has been conveyed by ARFC to the
Trust. Indication of the Trust's ownership of an Initial Receivable or
Subsequent Receivable shall be deleted from or modified on AFL's computer
systems when, and only when, the Initial Receivable or Subsequent Receivable
shall become a Purchased Receivable or shall have been paid in full.
(e) If at any time AFL shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle receivables to
any prospective purchaser, lender or other transferee, AFL shall give to such
prospective purchaser, lender, or other transferee computer tapes, records, or
print-outs (including any restored from archives) that, if they shall refer in
any manner whatsoever to any Initial Receivable or Subsequent Receivable, shall
indicate clearly that such Initial Receivable or Subsequent Receivable has been
sold to ARFC and is owned by the Trust.
SECTION 4.2. OTHER LIENS OR INTERESTS. Except for the
conveyances hereunder and under any Subsequent Purchase Agreement, AFL will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on the Initial Receivables or the Initial
Other Conveyed Property or on the Subsequent Receivables or the Subsequent Other
Conveyed Property, or any interest therein, and AFL shall defend the right,
title, and interest of ARFC and the Trust in and to the Initial Receivables and
the Initial Other Conveyed Property and the Subsequent Receivables and the
Subsequent Other Conveyed Property against all claims of third parties claiming
through or under AFL.
SECTION 4.3. COSTS AND EXPENSES. AFL shall pay all reasonable
costs and disbursements in connection with the performance of its obligations
hereunder and under each Subsequent Purchase Agreement and its Related
Documents.
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SECTION 4.4. INDEMNIFICATION.
(a) AFL shall defend, indemnify and hold harmless ARFC, the
Trust, the Owner Trustee, the Security Insurer, the Indenture Trustee, the
Backup Servicer and the Noteholders from and against any and all costs,
expenses, losses, damages, claims, and liabilities, arising out of or resulting
from any breach of any of AFL's representations and warranties contained herein
or in any Subsequent Purchase Agreement.
(b) AFL shall defend, indemnify and hold harmless ARFC, the
Trust, the Owner Trustee, the Indenture Trustee, the Backup Servicer and the
Noteholders from and against any and all costs, expenses, losses, damages,
claims, and liabilities, arising out of or resulting from the use, ownership or
operation by AFL or any affiliate thereof of a Financed Vehicle.
(c) AFL shall defend and indemnify ARFC, the Trust, the Owner
Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer and
the Noteholders against any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from any action taken, or failed to be
taken, by it in respect of any portion of the Trust Property other than in
accordance with this Agreement, each Subsequent Purchase Agreement or the Sale
and Servicing Agreement and each Subsequent Transfer Agreement.
(d) AFL agrees to pay, and shall defend, indemnify and hold
harmless ARFC, the Trust, the Owner Trustee, the Indenture Trustee, the Backup
Servicer and the Noteholders from and against any taxes that may at any time be
asserted against ARFC, the Owner Trustee, the Indenture Trustee, the Backup
Servicer and the Noteholders with respect to the transactions contemplated in
this Agreement or in any Subsequent Purchase Agreement, including, without
limitation, any sales, gross receipts, general corporation, tangible or
intangible personal property, privilege, or license taxes (but not including any
taxes asserted with respect to, and as of the date of, the sale, transfer and
assignment of the Initial Receivables and the Initial Other Conveyed Property or
the Subsequent Receivables or Subsequent Other Conveyed Property to ARFC and of
the Trust Property to the Trust or the issuance and original sale of the Notes,
or asserted with respect to ownership of the Initial Receivables and Initial
Other Conveyed Property or the Subsequent Receivables or Subsequent Other
Conveyed Property or the Trust Property which shall be indemnified by AFL
pursuant to clause (e) below, or federal, state or other income taxes, arising
out of distributions on the Notes or transfer taxes arising in connection with
the transfer of the Notes) and costs and expenses in defending against the same,
arising by reason of the acts to be performed by AFL under this Agreement or
under any Subsequent Purchase Agreement or imposed against such Persons.
(e) AFL agrees to pay, and to indemnify, defend and hold
harmless ARFC, the Trust, the Owner Trustee, the Indenture Trustee, the Backup
Servicer and the Noteholders from, any taxes which may at any time be asserted
against such Persons with respect to, and as of the date of, the conveyance or
ownership of the Initial Receivables or the Initial Other Conveyed Property
hereunder or the Subsequent Receivables or Subsequent Other Conveyed Property
- 14 -
under each Subsequent Purchase Agreement and the conveyance or ownership of the
Trust Property under the Sale and Servicing Agreement and the Subsequent
Transfer Agreements or the issuance and original sale of the Notes, including,
without limitation, any sales, gross receipts, personal property, tangible or
intangible personal property, privilege or license taxes (but not including any
federal or other income taxes, including franchise taxes, arising out of the
transactions contemplated hereby or transfer taxes arising in connection with
the transfer of Notes) and costs and expenses in defending against the same,
arising by reason of the acts to be performed by AFL under this Agreement or
under any Subsequent Purchase Agreement or imposed against such Persons.
(f) AFL shall defend, indemnify, and hold harmless ARFC, the
Owner Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer,
the Trust and the Noteholders from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost, expense,
loss, claim, damage, or liability arose out of, or was imposed upon ARFC, the
Trust, the Indenture Trustee and the Noteholders through the negligence, willful
misfeasance, or bad faith of AFL in the performance of its duties under this
Agreement or under any Subsequent Purchase Agreement or by reason of reckless
disregard of AFL's obligations and duties under this Agreement or under any
Subsequent Purchase Agreement.
(g) AFL shall indemnify, defend and hold harmless ARFC, the
Owner Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer,
the Trust and the Noteholders from and against any loss, liability or expense
incurred by reason of the violation by AFL of federal or state securities laws
in connection with the registration or the sale of the Notes.
(h) AFL shall indemnify, defend and hold harmless ARFC, the
Owner Trustee, the Security Insurer, the Indenture Trustee, the Backup Servicer,
the Trust and the Noteholders from and against any loss, liability or expense
imposed upon, or incurred by, ARFC, the Owner Trustee, the Indenture Trustee,
the Trust or the Noteholders as a result of the failure of any Initial
Receivable or Subsequent Receivable, or the sale of the related Financed
Vehicle, to comply with all requirements of applicable law.
(i) AFL shall defend, indemnify, and hold harmless ARFC from
and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or performance of
AFL's trusts and duties as Servicer under the Sale and Servicing Agreement,
except to the extent that such cost, expense, loss, claim, damage, or liability
shall be due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of ARFC.
(j) AFL shall indemnify, defend and hold harmless ARFC, the
Owner Trustee, the Indenture Trustee, the Backup Servicer, the Trust and the
Noteholders from and against any loss, liability or expense imposed upon, or
incurred by, ARFC, the Owner Trustee
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and the Indenture Trustee, the Trust and the Noteholders as a result of AFL's
or ARFC's use of the name "Arcadia."
Indemnification under this Section 4.4 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive termination of the Trust. The indemnity obligations hereunder shall be
in addition to any obligation that AFL may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.1. REPURCHASE OF RECEIVABLES UPON BREACH OF
WARRANTY. Upon the occurrence of a Repurchase Event AFL shall, unless such
breach shall have been cured in all material respects, repurchase such
Receivable from the Trust and, on or before the related Deposit Date, AFL shall
pay the Purchase Amount to the Trust pursuant to Section 4.5 of the Sale and
Servicing Agreement. It is understood and agreed that, except as set forth in
Section 6.1, the obligation of AFL to repurchase any Receivable as to which a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against AFL for such breach available to ARFC, the
Security Insurer, Noteholders, or the Indenture Trustee on behalf of
Noteholders. The provisions of this Section 5.1 are intended to grant the Owner
Trustee and the Indenture Trustee a direct right against AFL to demand
performance hereunder, and in connection therewith, AFL waives any requirement
of prior demand against ARFC with respect to such repurchase obligation. Any
such purchase shall take place in the manner specified in Section 2.6 of the
Sale and Servicing Agreement. Notwithstanding any other provision of this
Agreement, any Subsequent Purchase Agreement or the Sale and Servicing Agreement
or any Subsequent Transfer Agreement to the contrary, the obligation of AFL
under this Section shall not terminate upon a termination of AFL as Servicer
under the Sale and Servicing Agreement and shall be performed in accordance with
the terms hereof notwithstanding the failure of the Servicer or ARFC to perform
any of their respective obligations with respect to such Receivable under the
Sale and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the
related Receivable shall have been purchased by AFL, AFL shall indemnify the
Owner Trustee, the Indenture Trustee, the Backup Servicer, the Security Insurer,
the Trust and the Noteholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of third party
claims arising out of the events or facts giving rise to such Repurchase Events.
SECTION 5.2. REASSIGNMENT OF PURCHASED RECEIVABLES. Upon
deposit in the Collection Account of the Purchase Amount of any Receivable
repurchased by AFL under Section 5.1, ARFC and the Owner Trustee shall take such
steps as may be reasonably requested by AFL in order to assign to AFL all of
ARFC's and the Trust's right, title and interest in and to such Receivable and
all security and documents and all Other Conveyed Property conveyed to ARFC and
the Trust directly relating thereto, without recourse, representation or
warranty, except
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as to the absence of liens, charges or encumbrances created by or arising as a
result of actions of ARFC or the Owner Trustee. Such assignment shall be a sale
and assignment outright, and not for security. If, following the reassignment of
a Purchased Receivable, in any enforcement suit or legal proceeding, it is held
that AFL may not enforce any such Receivable on the ground that it shall not be
a real party in interest or a holder entitled to enforce the Receivable, ARFC
and the Owner Trustee shall, at the expense of AFL, take such steps as AFL deems
reasonably necessary to enforce the Receivable, including bringing suit in
ARFC's or the Owner Trustee's name.
SECTION 5.3. WAIVERS. No failure or delay on the part of ARFC,
or the Owner Trustee as assignee of ARFC, in exercising any power, right or
remedy under this Agreement or under any Subsequent Purchase Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or future exercise thereof or the
exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. LIABILITY OF AFL. AFL shall be liable in
accordance herewith only to the extent of the obligations in this Agreement or
in any Subsequent Purchase Agreement specifically undertaken by AFL and the
representations and warranties of AFL.
SECTION 6.2. FAILURE OF AFL TO SELL SUBSEQUENT RECEIVABLES. In
the event that AFL shall fail to deliver and sell to ARFC any or all of the
Subsequent Receivables required under this Agreement and the Pre-Funded Amount
at the end of the Funding Period is greater than $100,000, AFL shall be
obligated to pay to ARFC the Liquidated Damages on the Business Day immediately
preceding the Distribution Date on which the Funding Period ends (or, if the
Funding Period does not end on a Distribution Date, on the first Distribution
Date following the end of the Funding Period).
SECTION 6.3. MERGER OR CONSOLIDATION OF AFL OR ARFC. Any
corporation or other entity (i) into which AFL or ARFC may be merged or
consolidated, (ii) resulting from any merger or consolidation to which AFL or
ARFC is a party or (iii) succeeding to the business of AFL or ARFC, in the case
of ARFC, which corporation has a certificate of incorporation containing
provisions relating to limitations on business and other matters substantively
identical to those contained in ARFC's certificate of incorporation, provided
that in any of the foregoing cases such corporation shall execute an agreement
of assumption to perform every obligation of AFL or ARFC, as the case may be,
under this Agreement and each Subsequent Purchase Agreement and, whether or not
such assumption agreement is executed, shall be the successor to AFL or ARFC, as
the case may be, hereunder and under each such Subsequent Purchase Agreement
(without relieving AFL or ARFC of its responsibilities hereunder, if it survives
such merger or consolidation) without the execution or filing of any document or
any further act by any of the parties to this Agreement or each Subsequent
Purchase Agreement. Notwithstanding
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the foregoing, so long as an Insurer Default shall not have occurred and be
continuing, ARFC shall not merge or consolidate with any other Person or permit
any other Person to become the successor to ARFC's business without the prior
written consent of the Security Insurer. AFL or ARFC shall promptly inform the
other party, the Owner Trustee and the Indenture Trustee and, so long as an
Insurer Default shall not have occurred and be continuing, the Security Insurer
of such merger, consolidation or purchase and assumption. Notwithstanding the
foregoing, as a condition to the consummation of the transactions referred to in
clauses (i), (ii) and (iii) above, (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Sections 3.1 and 3.2
and this Agreement, or similar representation or warranty made in any Subsequent
Purchase Agreement, shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation of
such transaction) and no event that, after notice or lapse of time, or both,
would become an event of default under the Insurance Agreement, shall have
occurred and be continuing, (y) AFL or ARFC, as applicable, shall have delivered
written notice of such consolidation, merger or purchase and assumption to the
Rating Agencies prior to the consummation of such transaction and shall have
delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
6.3 and that all conditions precedent, if any, provided for in this Agreement,
or in each Subsequent Purchase Agreement, relating to such transaction have been
complied with, and (z) AFL or ARFC, as applicable, shall have delivered to the
Owner Trustee and the Indenture Trustee an Opinion of Counsel, stating that, in
the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary to preserve and protect the interest of the Owner Trustee in the
Trust Property and reciting the details of the filings or (B) no such action
shall be necessary to preserve and protect such interest.
SECTION 6.4. LIMITATION ON LIABILITY OF AFL AND OTHERS. AFL
and any director, officer, employee or agent may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
AFL shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement, any
Subsequent Purchase Agreement or its Related Documents and that in its opinion
may involve it in any expense or liability.
SECTION 6.5. AFL MAY OWN NOTES. Subject to the provisions of
the Sale and Servicing Agreement, AFL and any Affiliate of AFL may in its
individual or any other capacity become the owner or pledgee of Notes with the
same rights as it would have if it were not AFL or an Affiliate thereof.
SECTION 6.6. AMENDMENT.
(a) This Agreement and any Subsequent Purchase Agreement may
be amended by AFL and ARFC, so long as an Insurer Default shall not have
occurred and be
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continuing, with the prior written consent of the Security Insurer and without
the consent of the Owner Trustee, the Indenture Trustee or any of the
Noteholders (A) to cure any ambiguity or (B) to correct any provisions in this
Agreement or any such Subsequent Purchase Agreement; PROVIDED, HOWEVER, that
such action shall not, as evidenced by an Opinion of Counsel delivered to the
Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by
AFL and ARFC, so long as an Insurer Default shall not have occurred and be
continuing, with the prior written consent of the Security Insurer, the Owner
Trustee and the Indenture Trustee and a Note Majority, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, or of modifying in any manner the rights of the Noteholders;
PROVIDED, HOWEVER, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables, distributions that shall be required to be made on any
Note or the Note Interest Rate or (ii) reduce the aforesaid percentage required
to consent to any such amendment or any waiver hereunder, without the consent of
the Holders of all Notes then outstanding.
(c) Prior to the execution of any such amendment or consent,
AFL shall have furnished written notification of the substance of such amendment
or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee or the Indenture Trustee, as applicable, shall
furnish written notification of the substance of such amendment or consent to
each Noteholder.
(e) It shall not be necessary for the consent of Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Noteholders shall be subject to
such reasonable requirements as the Owner Trustee or the Indenture Trustee, as
applicable, may prescribe, including the establishment of record dates. The
consent of any Holder of a Note given pursuant to this Section or pursuant to
any other provision of this Agreement shall be conclusive and binding on such
Holder and on all future Holders of such Note and of any Note issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Note.
SECTION 6.7. NOTICES. All demands, notices and communications
to AFL or ARFC hereunder shall be in writing, personally delivered, or sent by
telecopier (subsequently confirmed in writing), reputable overnight courier or
mailed by certified mail, return receipt requested, and shall be deemed to have
been given upon receipt (a) in the case of AFL, to Arcadia Financial Ltd., 0000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Xxxx X.
Xxxxxx, or such other address as shall be designated by AFL in a written
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notice delivered to the other party or to the Owner Trustee or the Indenture
Trustee, as applicable, or (b) in case of ARFC, to Arcadia Receivables Finance
Corp., 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Xxxx X. Xxxxxx.
SECTION 6.8. MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the Related Documents set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.9. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.10. INTENTION OF THE PARTIES. The execution and
delivery of this Agreement and of each Subsequent Purchase Agreement shall
constitute an acknowledgment by AFL and ARFC that they intend that each
assignment and transfer herein and therein contemplated constitute a sale and
assignment outright, and not for security, of the Initial Receivables and the
Initial Other Conveyed Property and the Subsequent Receivables and Subsequent
Other Conveyed Property, as the case may be, conveying good title thereto free
and clear of any Liens, from AFL to ARFC, and that the Initial Receivables and
the Initial Other Conveyed Property and the Subsequent Receivables and
Subsequent Other Conveyed Property shall not be a part of AFL's estate in the
event of the bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, or the occurrence of another similar event, of, or with respect to, AFL. In
the event that such conveyance is determined to be made as security for a loan
made by ARFC, the Trust or the Noteholders to AFL, the parties intend that AFL
shall have granted to ARFC a security interest in all of AFL's right, title and
interest in and to the Initial Receivables and the Initial Other Conveyed
Property and the Subsequent Receivables and Subsequent Other Conveyed Property,
as the case may be, conveyed pursuant to Section 2.1 hereof or pursuant to any
Subsequent Purchase Agreement, and that this Agreement and each Subsequent
Purchase Agreement shall constitute a security agreement under applicable law.
SECTION 6.11. GOVERNING LAW. This Agreement shall be construed
in accordance with, the laws of the State of New York without regard to the
principles of conflicts of laws thereof, and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
SECTION 6.12. COUNTERPARTS. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any
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number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 6.13. CONVEYANCE OF THE INITIAL RECEIVABLES AND THE
INITIAL OTHER CONVEYED PROPERTY TO THE TRUST. AFL acknowledges that ARFC
intends, pursuant to the Sale and Servicing Agreement, to convey the Initial
Receivables and the Initial Other Conveyed Property, together with its rights
under this Agreement, to the Trust on the date hereof. AFL acknowledges and
consents to such conveyance and waives any further notice thereof and covenants
and agrees that the representations and warranties of AFL contained in this
Agreement and the rights of ARFC hereunder are intended to benefit the Security
Insurer, the Owner Trustee, the Indenture Trustee, the Trust, and the
Noteholders. In furtherance of the foregoing, AFL covenants and agrees to
perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Security Insurer, the Owner Trustee, the Indenture
Trustee, the Trust, and the Noteholders and that, notwithstanding anything to
the contrary in this Agreement, AFL shall be directly liable to the Owner
Trustee and the Trust (notwithstanding any failure by the Servicer, the Backup
Servicer or ARFC to perform its duties and obligations hereunder or under the
Sale and Servicing Agreement) and that the Owner Trustee may enforce the duties
and obligations of AFL under this Agreement against AFL for the benefit of the
Security Insurer, the Trust, and the Noteholders.
SECTION 6.14. NONPETITION COVENANT. Neither ARFC nor AFL shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust (or, in the
case of AFL, against ARFC) under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or ARFC) or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Trust (or ARFC).
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IN WITNESS WHEREOF, the parties have caused this
Receivables Purchase Agreement and Assignment to be duly executed by their
respective officers as of the day and year first above written.
ARCADIA RECEIVABLES FINANCE CORP.,
as Purchaser
By /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
ARCADIA FINANCIAL LTD., as Seller
By /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
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SCHEDULE A
SCHEDULE OF INITIAL RECEIVABLES
[Available in transactional files.]
A-1
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF AFL
1. CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was
originated by a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business and such Dealer had all necessary licenses and
permits to originate Receivables in the state where such Dealer was located, was
fully and properly executed by the parties thereto, was purchased by AFL from
such Dealer under an existing Dealer Agreement with AFL and was validly assigned
by such Dealer to AFL, (B) contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for realization
against the collateral security, and (C) is fully amortizing and provides for
level monthly payments (provided that the payment in the first Monthly Period
and the final Monthly Period of the life of the Receivable may be minimally
different from the level payment) which, if made when due, shall fully amortize
the Amount Financed over the original term.
2. NO FRAUD OR MISREPRESENTATION. Each Receivable was
originated by a Dealer and was sold by the Dealer to AFL without any fraud or
misrepresentation on the part of such Dealer in either case.
3. COMPLIANCE WITH LAW. All requirements of applicable
federal, state and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations "B" and "Z",
the Soldiers' and Sailors' Civil Relief Act of 1940, the Minnesota Motor Vehicle
Retail Installment Sales Act, and state adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code and other consumer credit laws and equal
credit opportunity and disclosure laws) in respect of all of the Receivables and
each and every sale of Financed Vehicles, have been complied with in all
material respects, and each Receivable and the sale of the Financed Vehicle
evidenced by each Receivable complied at the time it was originated or made and
now complies in all material respects with all applicable legal requirements.
4. ORIGINATION. Each Receivable was originated in the United
States.
5. BINDING OBLIGATION. Each Receivable represents the
genuine, legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law
and (B) as such Receivable may be modified by the application after the
Initial Cutoff Date or any Subsequent Cutoff Date, as the
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case may be, of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended;
and all parties to each Receivable had full legal capacity to execute and
deliver such Receivable and all other documents related thereto and to grant the
security interest purported to be granted thereby.
6. NO GOVERNMENT OBLIGOR. No Obligor is the United States of
America or any State or any agency, department, subdivision or instrumentality
thereof.
7. OBLIGOR BANKRUPTCY. At the Initial Cutoff Date or each
Subsequent Cutoff Date, as applicable, no Obligor had been identified on the
records of AFL as being the subject of a current bankruptcy proceeding.
8. SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
Initial Cutoff Date or each Subsequent Cutoff Date, as applicable.
9. MARKING RECORDS. By the Closing Date or by each Subsequent
Transfer Date, as applicable, AFL will have caused the portions of the
Electronic Ledger relating to the Receivables to be clearly and unambiguously
marked to show that the Receivables constitute part of the Trust Property and
are owned by the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. COMPUTER TAPE. The Computer Tape made available by AFL to
ARFC, the Owner Trustee and the Indenture Trustee on the Closing Date or on each
Subsequent Transfer Date was complete and accurate as of the Initial Cutoff Date
or Subsequent Cutoff Date, as applicable, and includes a description of the same
Receivables that are described in the Schedule of Receivables.
11. ADVERSE SELECTION. No selection procedures adverse to the
Noteholders were utilized in selecting the Receivables from those receivables
owned by AFL which met the selection criteria contained in the Sale and
Servicing Agreement.
12. CHATTEL PAPER. The Receivables constitute chattel paper
within the meaning of the UCC as in effect in the States of Minnesota and New
York.
13. ONE ORIGINAL. There is only one original executed copy of
each Receivable.
14. RECEIVABLE FILES COMPLETE. There exists a Receivable File
pertaining to each Receivable, and such Receivable File contains (a) a fully
executed original of the Receivable, (b) a certificate of insurance, application
form for insurance signed by the Obligor or a signed representation letter from
the Obligor named in the Receivable pursuant to which the Obligor has agreed to
obtain physical damage insurance for the Financed Vehicle, or copies
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thereof, (c) the original Lien Certificate or application therefor and (d) a
credit application signed by the Obligor, or a copy thereof. Each of such
documents which is required to be signed by the Obligor has been signed by the
Obligor in the appropriate spaces. All blanks on any form have been properly
filled in and each form has otherwise been correctly prepared. The complete file
for each Receivable currently is in the possession of the Custodian.
15. RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No provisions of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified as
a result of application of the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
16. LAWFUL ASSIGNMENT. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful,
void or voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Notes.
17. GOOD TITLE. No Receivable has been sold, transferred,
assigned or pledged by AFL to any Person other than ARFC; immediately prior to
the conveyance of the Receivables to ARFC pursuant to this Agreement or any
Subsequent Purchase Agreement, as applicable, ARFC or AFL had good and
indefeasible title thereto, free and clear of any Lien, and immediately upon the
transfer thereof, ARFC shall have good and indefeasible title to and will be the
sole owner of each Receivable, free of any Lien. No Dealer has a participation
in, or other right to receive, proceeds of any Receivable. AFL has not taken any
action to convey any right to any Person that would result in such Person having
a right to payments received under the related Insurance Policies or the related
Dealer Agreements or Dealer Assignments or to payments due under such
Receivables.
18. SECURITY INTEREST IN FINANCED VEHICLE. Each Receivable
created or shall create a valid, binding and enforceable first priority security
interest in favor of AFL in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle, the Lien Certificate will be received within 180 days of the Closing
Date or any Subsequent Transfer Date, as applicable, and will show, AFL named as
the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Receivable for which the Lien Certificate has not yet been returned from the
Registrar of Titles, AFL has received written evidence from the related Dealer
that such Lien Certificate showing AFL as first lienholder has been applied for.
AFL's security interest has been validly assigned by AFL to ARFC pursuant to
this Agreement or any Subsequent Purchase Agreement, as applicable. Immediately
after the sale, transfer and assignment thereof by ARFC to the Trust, each
Receivable will be secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in favor of the Trust as secured
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party, which security interest is prior to all other Liens upon and security
interests in such Financed Vehicle which now exist or may hereafter arise or be
created (except, as to priority, for any lien for taxes, labor or materials
affecting a Financed Vehicle). As of the Initial Cutoff Date or each Subsequent
Cutoff Date, as applicable, there were no Liens or claims for taxes, work, labor
or materials affecting a Financed Vehicle which are or may be Liens prior or
equal to the lien of the related Receivable.
19. ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) required to be made by any Person and actions required
to be taken or performed by any Person in any jurisdiction to give the Trust a
first priority perfected lien on, or ownership interest in, the Receivables and
the Other Conveyed Property have been made, taken or performed.
20. NO IMPAIRMENT. AFL has not done anything to convey any
right to any Person that would result in such Person having a right to payments
due under a Receivable or otherwise to impair the rights of ARFC, the Trust, the
Indenture Trustee, the Security Insurer and the Noteholders in any Receivable or
the proceeds thereof.
21. RECEIVABLE NOT ASSUMABLE. No Receivable is assumable by
another Person in a manner which would release the Obligor thereof from such
Obligor's obligations to AFL with respect to such Receivable.
22. NO DEFENSES. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been asserted
or threatened with respect to any Receivable.
23. NO DEFAULT. There has been no default, breach, violation
or event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or both
would constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date or any Subsequent Transfer Date, as applicable,
no Financed Vehicle had been repossessed.
24. INSURANCE. As of the date hereof or as of the date of any
Subsequent Purchase Agreement, as applicable, each Financed Vehicle is covered
by a comprehensive and collision insurance policy (i) in an amount at least
equal to the lesser of (a) its maximum insurable value or (b) the principal
amount due from the Obligor under the relate Receivable, (ii) naming AFL as loss
payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage. Each Receivable requires the Obligor to maintain physical
loss and damage insurance, naming AFL and its successors and assigns as
additional insured parties, and each Receivable permits the holder thereof to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle was or had previously been insured
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under a policy of Force-Placed Insurance on the Initial Cutoff Date or any
Subsequent Cutoff Date, as applicable.
25. PAST DUE. At the Initial Cutoff Date or any Subsequent
Cutoff Date, as applicable, no Receivable was more than 30 days past due.
26. REMAINING PRINCIPAL BALANCE. At the Initial Cutoff Date or
any Subsequent Cutoff Date, as applicable, each Receivable had a remaining
principal balance equal to or greater than $500.00 and the Principal Balance of
each Receivable set forth in the Schedule of Receivables is true and accurate in
all material respects.
27. FINAL SCHEDULED MATURITY DATE. No Receivable has a final
maturity later than August 31, 2006.
28. CERTAIN CHARACTERISTICS. (A) Each Initial Receivable had a
remaining maturity, as of the Initial Cutoff Date, of at least 3 months but not
more than 84 months; (B) each Initial Receivable had an original maturity of at
least 12 months but not more than 84 months; (C) each Initial Receivable had an
original principal balance of at least $3,800.00 and not more than $61,115.23;
(D) each Initial Receivable had a remaining Principal Balance as of the Initial
Cutoff Date of at least $526.88 and not more than $61,115.23; (E) each Initial
Receivable has an Annual Percentage Rate of at least 7.00% and not more than
23.99%; (F) no Initial Receivable was more than 30 days past due as of the
Initial Cutoff Date; (G) no funds have been advanced by the Seller, the
Servicer, any Dealer, or anyone acting on behalf of any of them in order to
cause any Receivable to qualify under clause (F) above; (H) no Initial
Receivable has a final scheduled payment date on or before September 1, 1999;
(I) the Principal Balance of each Receivable set forth in Schedule of
Receivables is true and accurate in all material respects as of the Initial
Cutoff Date; (J) 13.31% of the Initial Receivables, by principal balance as of
the Initial Cutoff Date, was attributable to loans for the purchase of new
Financed Vehicles and 86.69% of the Initial Receivables was attributable to
loans for the purchase of used Financed Vehicles; (K) not more than 4.00% of the
Aggregate Principal Balance of such Receivables will be attributable to
Receivables with an Annual Percentage Rate in excess of 21.00%, (L) not more
than 0.25% of the Aggregate Principal Balance of such Receivables will represent
loans on Financed Vehicles in excess of $50,000.00, (M) not more than 3.00% of
the Aggregate Principal Balance of such Receivables will represent loans with
original terms greater than 72 months and (N) not more than 0.25% of the
Aggregate Principal Balance of such Receivables will represent loans secured by
Financed Vehicles that previously secured a loan originated by AFL with an
obligor other than the current Obligor.
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