PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of this 9th day
of December, 1996, by and between AEGIS AUTO FINANCE, INC.
(the "Seller"), a Delaware corporation having its chief
executive office and principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and
ENTERPRISE NATIONAL BANK OF PALM BEACH ( the "Purchaser"), a
national banking association having offices at ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Seller has underwritten and purchased on
an indirect basis, in the ordinary course of its business,
certain retail installment sales contracts secured by new
and used automobiles, light duty trucks, vans and mini-vans;
and
WHEREAS, Purchaser wishes to purchase certain of
such contracts and related rights from the Seller; and
WHEREAS, Seller and the Purchaser wish to set
forth the terms pursuant to which such contracts and related
rights are to be sold by the Seller to the Purchaser.
NOW, THEREFORE, in consideration of the foregoing,
other good and valuable consideration, and the mutual terms
and covenants contained herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions. As used in this
Agreement, the following terms shall, unless the context
otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural
forms of the terms defined):
Additional Purchase Price shall have the meaning
given such term in Section 2.01(c) of this Agreement.
Administrative Agent shall mean the Seller or
any of its affiliates acceptable to the Purchaser or, if
such agent fails or is unable to perform its duties, the
Seller.
Administrative Report shall have the meaning
given such term in Section 2.04(E) hereof.
Advance Rate shall mean (i) 100% for Insured
Receivables (other than Unboarded Receivables), (ii) 95% for
Uninsured Receivables (other than Unboarded Receivables),
and (iii) 80% for Unboarded Receivables.
"Agreement" shall mean this Purchase Agreement and
all amendments hereof and supplements hereto.
"Assignment" shall mean the document of
assignment, in the form attached to this Agreement as
Exhibit A, to be executed by Seller in favor of Purchaser on
each Purchase Date with respect to the Receivables and other
Purchased Property being purchased on such day, and all
amendments thereof and supplements thereto.
Available Distribution Amount shall mean, for
any Payment Period, all Interest Collections for such period
plus all Principal Collections for such period less the
Servicing Fee for such period.
Business Day shall mean any day other than a
Saturday, Sunday or a day on which banking institutions are
authorized or required by law to close in the state in which
the Servicer s principal office is located.
Cash Purchase Price shall have the meaning given
such term in Section 2.01(B) of this Agreement.
"Cut-Off Date" shall mean, for each Receivable,
its Purchase Date (or such other date as may be established
by the Purchaser and the Seller).
"Dealer" shall mean an authorized new or used car
dealer who has executed a Dealer Agreement with Seller.
Dealer Agreements shall mean an agreement
between a Dealer and the Seller in substantially the form
supplied by the Seller to the Purchaser prior to the initial
Purchase Date.
Depository Account shall mean the bank account
of the Purchaser into which daily collections on the
Receivables from the Lock-Box Account (as defined in the
Servicing Agreement) shall be deposited by the Servicer
pursuant to the Servi cing Agreement and this Agreement.
Determination Date shall mean the last day of
each calendar month.
Distribution Amount shall mean, for any Payment
Period, the sum of (i) Principal Collections for such
period, (ii) Net Loss Paydowns for such period, and (iii)
interest accrued on the Outstanding Balance at the Purchaser
Interest Rate during such period.
Financed Vehicle shall mean, with respect to any
Receivable, the Vehicle that was purchased pursuant to such
Receivable and which serves as collateral for such
Receivable.
Insured Receivable shall mean any Receivable
which is covered by the RDI Policy.
Interest Collections shall mean all collections
of interest on the Receivables received by the Servicer
during the related Payment Period.
LIBOR shall mean an interest rate per annum
equal to the rate of interest per annum at which deposits in
U.S. dollars are offered for a period of one (1) month and
which appears as of 11:00 a.m., London time, on the date of
determination thereof (i) on the Bloomberg Quote Service, or
(ii) if such page on such service ceases to display such
information, such other page as may replace it on that
service for the purpose of displaying of such information,
or (iii) if such rate does not appear on the Bloomberg Quote
Service, then the rate quoted on the Telerate page 3751 or
Reuters Screen Page LIBO (as selected by Seller) as such
rate, or (iv) if such page on such service ceases to display
such information, such other page as may replace it on that
service for the purpose of displaying such information, or
(v) if that service ceases to display such information, the
determination shall be made on the basis of the rates which
are available from a recognized source mutually acceptable
to Seller and Purchaser. For purposes of this Agreement,
LIBOR for each Payment Period shall be determined on the
first Business Day of such period and shall be reset on the
first Business Day of each subsequent calendar month in such
Payment Period.
Liquidated Receivable shall mean (i) for Insured
Receivables, any Receivable liquidated by the Servicer
through the sale of the related Vehicle, or otherwise, and
for which a claim has been filed under the RDI Policy and
all other reasonably anticipated recoveries, including those
from insurance policies other than the RDI policy, have been
received by the Servicer and (ii) for Uninsured Receivables,
any Receivable liquidated by the Servicer through the sale
of the related Vehicle and for which all reasonably
anticipated recoveries, including those from insurance
policies, have been received by the Servicer.
Lock-box Account shall have the meaning
specified in the Servicing Agreement.
Net Loss shall mean, for any Liquidated
Receivable, the product of (i) the unpaid principal balance
of the Receivable at the time the Net Loss is computed and
(ii) the Advance Rate for such Receivable.
Net Loss Paydowns shall mean an amount equal to
the sum of the Net Losses realized during the associated
Payment Period.
Obligor shall mean, with respect to any
Receivable, any and all purchasers, co- purchasers,
co-signers or other Persons obligated to make payments on
such Receivable (other than a Dealer or the Seller).
Outstanding Balance shall mean, for any date for
which such amount is determined, the aggregate Cash Purchase
Price of all Receivables less all payments of Principal
Collections, all voluntary repurchases pursuant to Section
7.01 hereof, all mandatory repurchases pursuant to Section
7.02 hereof, and Net Loss Paydowns transferred to the
Purchaser before such date.
Payment Date shall mean the twentieth (20th) day
of the calendar quarter immediately following a Payment
Period (if such day is not a Business Day, then such Payment
Date shall be the Business Day next succeeding such
agreed-upon day).
Payment Period shall mean the first day through
and including the last day of the calendar quarter
immediately preceding a Payment Date. The first Payment
Period shall commence on the initial Purchase Date and end
on February 28, 1997.
Person shall mean any natural person or any
other legal entity, including without limitation any trust,
corporation, limited liability company, partnership, firm,
government, or government agency.
Principal Collections shall mean all collections
of principal and all other recoveries of principal on the
Receivables received by the Servicer during the related
Payment Period, except for purposes of computing the
Distribution Amount, in which case, Principal Collections
shall mean for each Receivable the product of its Advance
Rate times all collections of principal and all other
recoveries of principal received by the Servicer with
respect to such Receivables during the related Payment
Period.
Purchase Date shall mean any Business Day on
which any Receivables are purchased by the Purchaser
hereunder.
Purchase Documents shall mean this Agreement,
the Assignments, the Servicing Agreement, the Servicing
Agreement Addendum and all other agreements, assignments,
certificates, powers of attorneys, consents, notices,
financing statements, instruments and other documents which
may be now or hereafter executed by or on behalf of the
Seller in connection with the transactions contemplated by
this Agreement.
Purchased Property shall mean, collectively, any
and all Receivables and other property which are transferred
hereunder by Seller to Purchaser on any and all Purchase
Dates pursuant to Section 2.01(A) hereof.
"Purchaser" shall mean Enterprise National Bank of
Palm Beach, a national banking association, and its
successors and assigns.
Purchaser Interest Rate shall mean the rate per
annum (calculated on the basis of a 360-day year and the
actual day elapsed) equal to one-month LIBOR plus two and
seven- eighths percentage points (2-7/8ths%).
"Receivable File" means, with respect to any
particular Receivable, (a) the note, retail installment
sales contract or other evidence of the Obligor's
indebtedness to repay such Receivable, (b) any and all
documents evidencing the existence of any physical damage,
credit life, credit loss, credit disability, single interest
or risk default insurance policies relating to such
Receivable or the related Financed Vehicle or Obligor, (c)
the credit application relating to such Receivable, (d) the
certificate of title covering the Financed Vehicle relating
to such Receivable and any application therefor (or any
other comparable document evidencing title to such Financed
Vehicle issued in any jurisdiction which does not issue
certificates of title), (e) the Dealer Agreement executed by
the Dealer which originated and assigned such Receivable to
Seller and any assignment executed by such Dealer conveying
such Receivable to the Seller, and (g) any and all other
documents, books or records that the Seller or the Servicer,
as the case may be, shall maintain, in accordance with its
customary procedures, relating to such Receivable or the
related Obligor or Financed Vehicle.
Receivables shall mean any and all of the notes,
retail installment sale contracts or other evidences of
indebtedness listed on the Schedules of Receivables and the
indebtednesses of the Obligors evidenced thereby.
''Repurchase Amount" shall mean (i) for a
repurchase of all outstanding Receivables, the Outstanding
Balance plus any accrued and unpaid interest thereon at the
Purchaser Interest Rate and (ii) for a repurchase of less
than all outstanding Receivables, the sum for each
Receivable to be repurchased of (x) the product of such
Receivable s Outstanding Balance at the time of such
repurchase and its Advance Rate plus (y) any accrued and
unpaid interest on such sum at the Purchaser Interest Rate.
RDI Policy shall mean the risk default policy
maintained with respect to the Insured Receivables in
substantially the form supplied by the Seller to the
Purchaser prior to the initial Purchase Date.
"Schedules of Receivables" shall mean,
collectively, any and all lists of Receivables attached as
Schedule 1 to the Assignments, as such schedules may be
amended, supplemented or restated from time to time pursuant
to this Agreement.
"Seller" shall mean Aegis Auto Finance, Inc., a
Delaware corporation, and its successors and assigns.
Seller Bankruptcy shall mean the commencement by
or against the Seller of any proceeding under any
bankruptcy, receivership, insolvency or other similar laws
for the relief of debts.
"Servicer" shall mean American Lenders Facilities,
Inc., a California corporation, and its successors and
assigns.
Servicer Confirmation shall have the meaning
given such term in Section 2.04(A) hereof.
"Servicing Agreement" shall mean the Master
Servicing Agreement, dated as of April 6, 1996, by and among
the Servicer, as servicer; and the Seller s affiliate Aegis
Consumer Finance, Inc., as the same may be amended,
supplemented or replaced from time to time .
Servicing Agreement Addendum shall have the
meaning specified in Section 2.04(A) hereof.
Servicing Fee shall mean the fee payable to the
Servicer for services rendered during the related Payment
Period, determined in accordance with the Servicing
Agreement.
Servicing Report shall have the meaning
specified in Section 2.04 hereof.
Shortfall Amount shall mean, for any Payment
Period, an amount equal to the greater of (i) zero and (ii)
the lesser of (a) the difference between (1) the
Distribution Amount for such period and (2) the Available
Distribution Amount for such period and (b) the sum of (1)
the Net Loss Paydowns for such period and (2) the Servicing
Fee for such period.
"UCC" shall mean the Uniform Commercial Code as in
effect from time to time in the relevant jurisdiction.
Unboarded Receivable shall mean any Receivable
purchased hereunder by the Purchaser for which the Purchaser
has not yet received a Servicer Confirmation.
Uninsured Receivable shall mean any Receivable
which is not covered by the RDI Policy.
Underwriting Criteria shall mean the
underwriting criteria in place for the purchase and
origination of Receivables customarily adhered to by the
Seller as described on Exhibit F attached to this Agreement.
Vehicle shall mean the new or used automobile,
light truck, van or mini-van that is purchased by the
Obligor to which a particular Receivable relates.
VSI Policy shall mean the venders single
interest physical damage insurance policy maintained with
respect to the Receivables in substantially the form
submitted by the Seller to the Purchaser prior to the
initial Purchase Date.
1.02 Additional Definitions. All other terms
contained in this Agreement (and which are not otherwise
specifically defined herein) shall have the respective
meanings provided by the UCC as in effect from time to time
in the State of New Jersey to the extent the same are used
or defined therein. All accounting terms not specifically
defined herein shall be construed in accordance with
generally accepted accounting principles consistently
applied. Any references herein to exhibits, sections,
articles or schedules, unless otherwise specified, are
references to exhibits, sections, articles or schedules of
this Agreement. The words hereof herein and hereunder
and words of single inport when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement. Wherever appropriate in the
context, terms used herein in the singular also include the
plural and vice versa, and each masculine, feminine or
neutral pronoun used herein shall also include the other
gender or genders.
ARTICLE II
PURCHASE, SALE AND SERVICING OF RECEIVABLES
2.01 (A) Purchase and Sale of Receivables. No
later than 11:00 p.m. (Eastern Time) on any proposed
Purchase Date, Seller shall provide Purchaser with a listing
of the Receivables which the Seller proposes to sell to
Purchaser hereunder on such day together with such other
information regarding such Receivables as the Purchaser may
reasonably request to enable the Purchaser to complete its
own independent evaluation of the credit quality of such
Receivables. In the event that Purchaser purchases any or
all of such Receivables on such Purchase Date, Purchaser
shall notify Seller of such election by written notice given
to Seller by no later than 4:00 p.m. (Eastern Time) on such
Purchase Date, and on such Purchase Date, subject to the
terms and conditions of this Agreement, the Seller shall
sell to the Purchaser, and the Purchaser shall purchase from
the Seller, all of the Seller s rights, titles and interests
in, to and under all of the following Purchased Property
relating to such Receivables:
(i) such Receivables, and all monies due on
such Receivables on and after the Cut-Off Date for such
Receivables, excepting for monies due the Seller relating to
interest accrued prior to the Cut-Off Date;
(ii) the security interests of the Seller in
the related Financed Vehicles granted by the Obligors
pursuant to such Receivables;
(iii) the interests of the Seller in any
proceeds from claims on any physical damage, credit life,
credit loss, credit disability, single interest or risk
default insurance policies relating to such Financed
Vehicles, such Obligors or such Receivables;
(iv) the Receivable Files relating to such
Receivables;
(v) the interests of the Seller with respect
to such Receivables under the Servicing Agreement; and
(vi) all proceeds of any and all of the
foregoing.
(B) Cash Purchase Price. In consideration for
the transfer on each Purchase Date of Receivables and the
other Purchased Property transferred hereunder on such date,
the Purchaser shall, no later than 4:00 p.m. (Eastern Time)
on such Purchase Date, pay to the Seller in immediately
available funds the aggregate Cash Purchase Price for such
Receivables. If the listing of Receivables described in
Section 2.01(A) is received after 11:00 a.m. (Eastern Time),
the Purchaser will endeavor to notify the Seller of the
Receivables to be purchased and to pay the Seller in
immediately available funds for such Receivables on such
day, but may provide such notification and payment on the
next Business Day. The Cash Purchase Price for any
Receivable transferred hereunder on any Purchase Date shall
be equal to the sum (i) the product of such Receivable s
outstanding principal balance as of its Cut-Off Date and its
Advance Rate and (ii) accrued interest thereon at the
Purchaser Interest Rate from and including the Cut-Off Date
to such Purchase Date. For any Receivable that was an
Unboarded Receivable on the date on which its Cash Purchase
Price was first paid, upon receipt by the Purchaser of a
Servicer Confirmation covering such Receivable in accordance
with Section 2.04(A) hereof (and provided that Purchaser has
not already requested that Seller repurchase such Receivable
pursuant to Sections 2.04(A) and 7.02 hereof), the Cash
Purchase Price for such Receivable shall be increased by the
difference between (i) the product of the outstanding
principal balance of such Receivable as of its Cut-Off Date
and such Receivable s Advance Rate, which Advance Rate shall
be determined after giving effect to the receipt of such
Servicer Confirmation, and (ii) the principal portion of the
Cash Purchase Price paid for the Receivable on its original
Purchase Date. The amount of such increase shall be paid by
the Purchaser to the Seller in immediately available funds
no later than 4:00 p.m. (Eastern Time) on the date such
Servicer Confirmation is received (or the following Business
Day (x) if such day is not a Business Day or (y) such
Servicer Confirmation is received after 4:00 p.m., Eastern
Time, on a Business Day). If on or before ninety (90) days
after the Purchase Date for any Uninsured Receivable Seller
provides written evidence satisfactory to the Purchaser that
(x) such Receivable has become an Insured Receivable and (y)
Purchaser has been named as the loss payee under the RDI
Policy with respect to such Receivable and the related
Financed Vehicles, Purchaser shall pay to Seller on receipt
of such evidence, and in immediately available funds, an
amount equal to five percent (5%) of such Receivable s
aggregate outstanding principal balance as of the
immediately preceding Determination Date, which additional
amount shall be added to (and shall form a part of) the Cash
Purchase Price for such Receivable.
(C) Additional Purchase Price. As additional
consideration for the transfer of the Receivables and the
other Purchased Property hereunder, the Seller shall
receive, on each Payment Date and solely from collections on
the Receivables, a payment (all such payments being herein
called the Additional Purchase Price ) equal to the amount
(if any) by which (i) the Available Distribution Amount for
the related Payment Period exceeds (ii) the Distribution
Amount for such period. The Purchaser shall have no
liability for the payment of the Additional Purchase Price
beyond its interest in such Available Distribution Amount.
2.02 Purchaser Election to Purchase. Purchaser
may elect to purchase any or all of the Receivables offered
by Seller on any Purchase Date, and Purchaser shall be under
no obligation to purchase any Receivable unless it is
acceptable in all respects to Purchaser, but Purchaser shall
not unreasonably withhold its acceptance of any Receivable
as to which all of Seller s representations and warranties
in Section 3.02(B) hereof are true and correct as of the
Purchase Date thereof; provided, however, that under no
circumstance shall Purchaser be under any obligation
hereunder to purchase Receivables having an aggregate
cumulative Cash Purchase Price in excess of $15,000,000.
2.03 No Assumption of Obligations.
Notwithstanding anything herein or in any of the other
Purchased Documents to the contrary, the transfer of the
Purchased Property hereunder from the Seller to the
Purchaser shall not constitute and is not intended to result
in any assumption by the Purchaser of any obligation of the
Seller to the Obligors, the Dealers, any insurers or any
other Person in connection with the Receivables, the
Receivable Files, the Servicer Files (as defined in the
Servicing Agreement), the Servicing Agreement, any insurance
policies or any agreement or instrument relating to any of
the foregoing.
2.04 Servicing of the Receivables.
(A) The Purchaser and the Seller agree that the
Receivables will continue to be serviced by the Servicer, in
accordance with those portions of the Servicing Agreement (a
true, correct and complete copy of which is attached hereto
and marked as Exhibit B) applicable to the Receivables. The
Purchaser and the Seller acknowledge and agree that the
Servicer will act as custodian and bailee for the Purchaser
of the Receivables and the Receivable Files in accordance
with the provisions of the Servicing Agreement relating
thereto. All fees, expenses or other sums owing to the
Servicer under the Servicing Agreement for servicing the
Receivables and acting as custodian and bailee for Purchaser
of the Receivables and the Receivable Files shall be paid
from Interest Collections and Principal Collections in
accordance with the Servicing Agreement, and the Seller
shall be entitled to receive all interest earned on any
collections while on deposit in any Lock-Box Account, the
Depository Account or other related bank account under the
Servicing Agreement. On or prior to the initial Purchase
Date, the Purchaser, the Seller, the Servicer and Aegis
Consumer Finance, Inc. shall enter into a written addendum
to the Servicing Agreement in the form of Exhibit C-1
attached hereto (the "Servicing Agreement Addendum")
pursuant to which the Servicer shall agree to act as
custodian and bailee for the Purchaser of the Receivables
and the Receivables Files relating thereto in accordance
with the provisions of the Servicing Agreement. Within
fifteen (15) days after each Purchase Date, the Seller shall
cause the Servicer to deliver to Purchaser (with a copy to
Seller) a Servicer Confirmation letter (a Servicer
Confirmation ), in the form of Exhibit C-2 attached hereto,
with respect to all of the Receivables transferred hereunder
on such Purchase Date. In the event the Purchaser does not
receive a Servicer Confirmation by the aforesaid deadline
with respect to any or all of the Receivables transferred
hereunder on a particular Purchase Date, the Seller shall
repurchase such Receivables from the Purchaser pursuant to
Section 7.02 hereof if and to the extent requested by the
Purchaser.
(B) The Purchaser shall establish and maintain
the Depository Account for the Receivables with the
Purchaser for the benefit of the Purchaser, the Seller and
the Servicer. All monies constituting Principal Collections
and Interest Collections shall be deposited by the Servicer
into the Depository Account. All monies transferred by the
Seller constituting the Shortfall Amount as provided in
Section 2.04(E) hereto shall also be deposited into the
Depository Account. No other funds shall be allowed to be
deposited into the Depository Account. The collected funds
on deposit in the Depository Account on any day shall earn
interest at the current rate then being paid by the
Purchaser on deposit accounts of that type. The Purchaser
waives all rights of set-off with respect to the Depository
Account (except its right to charge such account for amounts
due to it under this Agreement and the Servicing Agreement
Addendum). On each Payment Date, the Purchaser shall
withdraw from the Depository Account monies, to the extent
available therein, equal to, first, the Servicing Fee for
the related Payment Period and shall transfer such amount to
the Servicer and, second, the Distribution Amount for the
related Payment Period and shall transfer such amount to the
Purchaser. The remaining balance, if any, which constitutes
the Additional Purchase Price for the related Payment
Period, shall be transferred by the Purchaser to the Seller.
In making the aforesaid withdrawals and transfers, the
Purchaser shall rely on the computations of the aforesaid
amounts made by the Administrative Agent and disclosed in
the Administrative Reports.
(C) If after the Purchase Date for any Receivable
the Seller receives any payment on any of such Receivable,
the Seller shall hold such payment in trust for the
Purchaser, the Seller shall not commingle such payment with
its other funds or assets, and the Seller shall cause such
payment to be deposited to the Lock-box Account within one
(1) Business Day after the Seller's receipt thereof.
(D) The Seller retains the right to receive
ongoing electronic transmissions from the Servicer relating
to all servicing activities regarding the Receivables. The
Seller shall cause the Servicer to provide each of the
Purchaser and the Seller with a copy of a monthly Servicing
Report for the Receivables (the Servicing Report ), which
report will be substantially consistent with the sample
Servicing Report appearing as Exhibit D of this document.
The Seller shall also cause the Administrative Agent to
provide each of the Purchaser, the Seller and the Servicer
with a copy of a monthly Administrative Report for the
Receivables (the Administrative Report ), which report will
be substantially consistent with the sample Administrative
Report appearing as Exhibit G to this Agreement.
(E) If a Shortfall Amount greater than zero for
any Payment Period is shown on the Administrative Report
prepared in accordance with Section 2.04(D) hereto, the
Seller shall transfer funds equal to the amount of such
Shortfall Amount to the Servicer, or at the Servicer s
direction, to the Depository Account, no later than one
Business Day before the Payment Date relating to which such
Administrative Report was prepared.
(F) The computations contemplated by Section
2.01(C), 2.04(B), or 7.01 hereof shall be completed by the
Administrative Agent and disclosed in the Administrative
Reports.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Warranties of
the Purchaser. The Purchaser hereby represents and warrants
to the Seller as of the date hereof and as of each Purchase
Date the following (but such representations and warranties
shall survive Purchaser s purchase of the Receivables
hereunder):
(A) Organization. The Purchaser is duly
organized and validly existing as a national banking
association in good standing under the laws of the United
States, and has all necessary and proper governmental and
private authorizations to own and operate its property and
conduct the business in which it is now engaged. The
Purchaser is duly qualified to do business and has obtained
all necessary licenses and approvals in each jurisdiction in
which failure to so qualify or obtain such licenses and
approvals would have a material and adverse effect on the
ability of the Purchaser to perform its obligations
hereunder.
(B) Due Authorization. The execution, delivery
and performance by the Purchaser of this Agreement and the
other Purchase Documents executed by it have been duly
authorized by all necessary corporate action on its part,
and each of the Purchase Documents executed by it is the
legal valid, and binding obligations of Purchaser,
enforceable against Purchaser in accordance to its terms.
(C) Consents. Purchaser has obtained all
necessary governmental and private authorizations, and made
all governmental filings required under applicable law, for
the execution, delivery and performance by Purchaser of this
Agreement and the other Purchase Documents executed by it.
Purchaser has obtained or has caused to be waived all
consents which are required to be obtained in connection
with the Purchaser s execution, delivery or performance of
this Agreement and the other Purchase Documents executed by
it under any instruments to which Purchaser is a party or by
which it or any of its property is bound.
(D) No Violation. The consummation of the
transactions contemplated by this Agreement and the other
Purchase Documents and the fulfillment of the terms thereof
do not:
(i) conflict with, or result in the breach
of any of the terms or provisions of, nor constitute (with
or without notice or lapse of time) a default under, the
articles of association or by-laws of the Purchaser, or any
indenture, agreement or other instrument (other than this
Agreement) applicable to the Purchaser or its property; or
(ii) violate any law or, to the best of the
Purchaser s knowledge, any order, rule or regulation
applicable to the Purchaser or its properties, of any court
or of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Purchaser or its properties.
(E) No Litigation. No litigation or
administrative proceeding of or before any arbitrator,
court, tribunal or governmental body is presently pending,
or to the knowledge of the Purchaser threatened, against the
Purchaser or its properties or with respect to this
Agreement or any of the other Purchase Documents, which, if
adversely determined, could reasonably be expected to have a
material adverse effect on the transactions contemplated by
this Agreement, or which asserts the invalidity of this
Agreement or any of the other Purchase Documents or seeks to
prevent the consummation of any of the transactions
contemplated by this Agreement or seeks any determination or
ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement or any of the
other Purchase Documents.
3.02 Representations and Warranties of the Seller.
(A) General Representations and Warranties. The
Seller hereby represents and warrants to the Purchaser as of
the date hereof and as of each Purchase Date the following
(but such representations and warranties shall survive the
Purchaser s purchase of the Receivables hereunder):
(i) Organization. The Seller is duly
organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, and has
all necessary and proper governmental and private
authorizations to own and operate its property and conduct
the business in which it is now engaged. The Seller is duly
qualified to do business and has obtained all necessary
licenses and approvals in each jurisdiction in which failure
to so qualify or obtain such licenses and approvals could
have a material adverse effect on the ability of the Seller
to perform its obligations hereunder.
(ii) Due Authorization. The execution,
delivery and performance by the Seller of this Agreement and
the other Purchase Documents executed by it have been duly
authorized by all necessary corporate action on its part,
and each of the Purchase Documents executed by it is the
legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms.
(iii) Consents. Seller has obtained all
necessary governmental and private authorizations, and made
all governmental filings required under applicable law, for
the execution, delivery and performance by Seller of this
Agreement and each of the other Purchase Documents executed
by it. Seller has obtained or caused to be waived all
consents which are required to be obtained in connection
with Seller s execution, delivery or performance of this
Agreement and the other Purchase Documents executed by it
under any instruments to which the Seller is a party or by
which it or any of its property is bound.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the other
Purchase Documents and the fulfillment of the terms thereof
do not:
(a) conflict with, result in the breach
of any of the terms or provisions of, nor constitute (with
or without notice or lapse of time) a default under, the
certificate of incorporation or bylaws of the Seller, or any
indenture, agreement or other instrument (other than this
Agreement) applicable to Seller or its properties; or
(b) violate any law or, to the best of
the Seller s knowledge, any order, rule or regulation
applicable to the Seller or its properties, of any court or
of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(v) No Proceedings. To the Seller's best
knowledge, there are no proceedings or investigations
pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties,
asserting the invalidity of this Agreement or any of the
other Purchase Documents or seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or seeking any determination or ruling that might
materially and adversely affect the performance by the
Seller of its obligations under, or the validity or
enforceability of, this Agreement or any of the other
Purchase Documents.
(vi) No Litigation. Except as disclosed in
the most recent 10K and 10Q reports for Aegis Consumer
Holdings, Inc. filed with the Securities and Exchange
Commission prior to the date of this Agreement, no
litigation or administrative proceeding of or before any
arbitrator, court, tribunal or governmental body is
presently pending, or to the knowledge of the Seller
threatened, against the Seller or its properties or with
respect to this Agreement or the other Purchase Documents,
which, if adversely determined, could reasonably be expected
to have a material adverse effect on the transactions
contemplated by this Agreement.
(vii) Use of Proceeds. None of the
proceeds of the Cash Purchase Price for any Receivables or
any Additional Purchase Price will be paid by or on behalf
of the Seller to III Finance, Ltd., a Cayman Islands
company.
(B) Receivable Representations and Warranties.
Seller makes the following representations and warranties
with respect to the Receivables transferred hereunder on
each Purchase Date on which the Purchaser will rely in
purchasing such Receivables (such representations and
warranties speak as of the execution and delivery of this
Agreement and as of such Purchase Date, but shall survive
the sale, transfer and assignment of such Receivables to the
Purchaser hereunder):
(i) Characteristics of Receivables. Each
Receivable purchased by the Purchaser hereunder on such
Purchase Date:
(a) has been originated in the United
States of America by a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's
business which has been delivered to and accepted by the
Obligor on such Receivable, has been fully and properly
signed by the parties thereto, has been purchased by the
Seller from such Dealer under an existing Dealer Agreement
with the Seller and properly assigned to the Seller;
(b) has created or creates a valid,
subsisting, and enforceable first priority security interest
in favor of the Seller in the Financed Vehicle (except as
limited by any applicable bankruptcy, insolvency or other
similar laws affecting creditors rights generally), which
security interest shall be assigned by the Seller to the
Purchaser as of such Purchase Date and which vehicle is
titled or registered in one of the states of the United
States or the District of Columbia;
(c) contains customary and enforceable
provisions (except as limited by any applicable bankruptcy,
insolvency or other similar laws affecting creditors rights
generally) such that the rights and remedies of the holder
thereof shall be adequate for realization against the
collateral therefor of the benefits of the security; and
(d) is a simple interest installment
contract payable in U.S. Dollars that (i) has a term not to
exceed 61 months at origination, (ii) provides for level
monthly payments (provided that the payment in the first or
last month in the life of the Receivable may be minimally
different from the level payment) that fully amortize the
amount financed by maturity, (iii) yields interest at an
annual percentage rate of not less than 12%, and (iv) is not
30 days or more past due as of the Cut-Off Date.
(ii) Schedule of Receivables. The
information set forth in the Schedule of Receivables
attached to be Assignment executed and delivered by the
Seller on such Purchase Date is true, correct and complete
in all material respects as of the opening of business on
the Cut-Off Date.
(iii) Underwriting. Such Receivables
were originated in accordance with the Underwriting
Criteria, and no selection procedures believed to be adverse
to the Purchaser have been utilized in selecting such
Receivables. All information regarding such Receivables
made available to the Purchaser by or on behalf of the
Seller and its affiliates is true, correct and complete in
all material aspects.
(iv) Form of Receivables. Each of such
Receivables is substantially in the form described on
Exhibit E attached hereto.
(v) Compliance with Law. Each such
Receivable and the sale of the Financed Vehicle financed
thereunder complied at the time it was originated or made,
and at the execution of this Agreement and as of such
Purchase Date does comply, in all material respects with all
requirements of applicable federal, state and local laws,
rules and regulations, including, without limitation, usury
laws, the Fair Credit Reporting Act, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal
Reserve Board's Regulations B and Z, and any other consumer
credit, equal credit opportunity, or disclosure laws, rules
and regulations.
(vi) Binding Obligation. Each such
Receivable represents the genuine, legal, valid and binding
payment obligation in writing of the Obligor, enforceable by
the holder thereof in accordance with its terms, except as
limited by bankruptcy, insolvency or other similar laws
affecting creditors rights generally.
(vii) No Government or Foreign Obligor.
No such Receivable is due from the United States of America
or any State or from any agency, department or
instrumentality of the United States of America or any
State. To the best of Seller s knowledge, no such
Receivable is due from an Obligor whose primary residence as
of such Purchase Date is located outside of the United
States of America.
(viii) Security Interest in Financed
Vehicle. Immediately prior to the sale, assignment and
transfer thereof hereunder, each such Receivable was secured
by a validly perfected first security interest in the
Financed Vehicle in favor of the Seller as secured party.
(ix) Receivables in Force. No such
Receivable has been satisfied, subordinated or rescinded,
nor has any Financed Vehicle relating to any such Receivable
been released from the security interest in favor of the
Seller granted by the related Receivable in whole or in
part.
(x) No Waiver. No material provision of any
such Receivable has been waived by the Dealer or the
Seller.
(xi) No Amendments. No such Receivable has
been amended such that the number of the Obligor's scheduled
Payments have been increased or the due date of any such
payments have been extended except to the extent permitted
under the Servicing Agreement.
(xii) No Defenses. No right of
rescission, set-off, counterclaim or defense has been
asserted or threatened by any Obligor or Dealer with respect
to any such Receivable and, to the Seller's knowledge, no
such rights will exist as of such Purchase Date.
(xiii) No Liens. To the best of Seller's
knowledge, no liens or claims have been filed for work,
labor or materials relating to a Financed Vehicle under any
such Receivable that would be liens prior to, or equal or
co-equal with, the security interest in the Financed Vehicle
granted by the Obligor in favor of the Seller pursuant to
the related Receivable.
(xiv) No Default. For such Receivable,
except for payment defaults continuing for a period of not
more than thirty (30) days as of such Receivable s Cut-Off
Date, no default, breach, violation or event permitting
acceleration under the terms of any such Receivable has
occurred to the best of Seller s knowledge; and no
continuing condition that with notice or lapse of time (or
both) would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable
has arisen to the best of Seller s knowledge.
(xv) Insurance. The Seller, in accordance
with its customary procedures, has required that each
Obligor obtain, and has determined that each Obligor has
obtained, physical damage insurance covering the Financed
Vehicle (and in an amount not less than the outstanding
principal balance of the related Receivable) prior to the
Seller's purchase of such Receivable.
(xvi) Title. No such Receivable has
been sold, transferred, assigned or pledged by the Seller to
any Person other than the Purchaser; immediately prior to
the transfer and assignment herein contemplated, the Seller
has good and marketable title to each such Receivable free
and clear of all liens, encumbrances, security interest and
rights of others and, immediately upon the transfer thereof,
the Purchaser will have good and marketable title to each
such Receivable, free and clear of all liens, encumbrances,
security interests and rights of others (other Seller s
repurchase right hereunder); and the security interest in
the related Financed Vehicle and related underlying
collateral has been validly perfected and assigned to
Purchaser under the UCC and other applicable law.
(xvii) Lawful Assignment. No such
Receivable has been originated in, or is subject to the laws
of, any jurisdiction under which the sale, transfer and
assignment of such Receivable by the Seller to the Purchaser
hereunder would be unlawful, void or voidable.
(xviii) All Filings Made. All filings
(including, without limitation, UCC filings) necessary in
any jurisdiction to give the Purchaser a first perfected
ownership interest in such Receivables and to assign to
Purchaser a first priority security interest in the related
Financed Vehicles have been made.
(xix) One Original. There is only one
executed original counterpart of each such Receivable which
is and will remain in the possession of the Servicer as
custodian and bailee for the Purchaser.
(xx) Insured Receivables. Each such
Receivable which is represented by the Seller to be an
Insured Receivable is covered by the RDI Policy.
(xxi) Servicing Agreement. Each such
Receivable is covered by, and is being serviced by the
Servicer pursuant to, the Servicing Agreement as
supplemented by the Servicing Agreement Addendum dated as of
such Purchase Date.
(xxii) Bankruptcy Proceeding. No such
Receivable as of its Cut-Off Date was or should have been
noted in the Seller's records as a dischargeable debt under
a bankruptcy proceeding.
(xxiii) Chattel Paper. Each such
Receivable constitutes "chattel paper" as defined in the
UCC.
(xxiv) Down Payments. To the best of
Seller s knowledge, the down payment described in the
Receivables File for each such Receivable was paid to the
related Dealer in the manner stated therein and was not
financed as part of such Receivable.
(xxv) No Adverse Information. The Seller
has no knowledge of any fact which should have led it to
expect at the time of its acquisition of each such
Receivable that such Receivable will not be paid in full
when due because of fraud or misrepresentation on the part
of the Obligor or the Dealer related thereto and the Seller
has no knowledge of any fact which should have led Seller to
expect on such Purchase Date that such Receivable would not
be paid in full when due because of such fraud or
misrepresentation.
ARTICLE IV
CONDITIONS TO PURCHASES
4.01 Conditions to Obligations of the Purchaser.
The obligation of the Purchaser to purchase Receivables
hereunder on any Purchase Date is subject to the
satisfaction of the following conditions as of such Purchase
Date:
(A) Representations and Warranties True.
The representations and warranties of the Seller hereunder
shall be true and correct on such Purchase Date with the
same effect as if then made, and the Seller shall have
performed all obligations to be performed by it hereunder on
or prior to such Purchase Date.
(B) Files Marked and Assignment Delivered.
The Seller shall, at its own expense, on or prior to such
Purchase Date, indicate in its files that Receivables
transferred on such Purchase Date have been sold to the
Purchaser pursuant to this Agreement and the Seller shall
deliver to the Purchaser the Assignment covering such
Receivables duly executed on behalf of Seller and to which
shall be attached the Schedule of Receivables for such
Receivables certified by the President, the Vice President,
Secretary or the Treasurer of the Seller to be true, correct
and complete (such Assignment and Schedule of Receivables
may be sent by telecopy to the Purchaser so long as executed
original counterparts thereof are promptly sent by the
Seller to the Purchaser).
(C) Other Transactions. On or prior to the
initial Purchase Date, the Purchaser, the Seller, the Seller
s affiliate Aegis Consumer Finance, Inc. and the Servicer
shall have entered into the Servicing Agreement Addendum.
(D) Documents to be Delivered by Seller on the
Initial Purchase Date. On or before the initial Purchase
Date, the Seller shall provide the Purchaser with the
following:
(i) Evidence of UCC Filing. Prior to
the initial Purchase Date, the Seller shall record and file,
at its own expense, a UCC-1 financing statement in each
jurisdiction in which required by applicable law, executed
by the Seller, as seller or debtor, and naming the
Purchaser, as purchaser or secured party, identifying the
Receivables and the other Purchased Property as collateral,
meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect
the sale, transfer, assignment and conveyance of such
property to the Purchaser hereunder. The Seller shall
deliver a file-stamped copy, or other evidence satisfactory
to the Purchaser of such filing, to the Purchaser on or
prior to the initial Purchase Date.
(ii) Evidence of RDI and VSI Policies.
On or prior to the initial Purchase Date, the Seller shall
deliver to the Purchaser written evidence that (x) the
Insured Receivables and the related Financed Vehicles will
be covered by the RDI Policy and that all Receivables and
all Financed Vehicles will be covered by the VSI Policy and
(y) such polices are in full force and effect as of such
date(and promptly after each Purchase Date, Seller shall
cause endorsements to be issued with respect to such
policies naming the Purchaser as the loss payee under such
policies with respect to the Receivables purchased hereunder
on such date and the related Financed Vehicles).
(iii) Record Examination Reports.
Prior to the initial Purchase Date, the Purchaser shall have
received satisfactory reports of examinations of the Uniform
Commercial Code financing statement records and other public
records of such jurisdictions as are deemed appropriate by
the Purchaser and conducted under the Seller's current and
past names (including any fictitious names), which reports
must demonstrate that there are no financing statements or
other liens of record against the Seller which cover any or
all of the Receivables or the other Purchased Property.
(iv) Closing Documents. The Seller
shall have executed and delivered such closing certificates
and shall have provided such opinions of counsel as the
Purchaser may reasonably request.
(v)Other Documents. The Seller shall have provided
such other documents as the Purchaser may reasonably
request.
4.02 Conditions to Obligation of the Seller. The
obligation of the Seller to sell any Receivables to the
Purchaser hereunder on any Purchase Date is subject to the
satisfaction of the following conditions:
(A) Representations and Warranties True.
The representations and warranties of the Purchaser
hereunder shall be true and correct on such Purchase Date
with the same effect as if then made, and the Purchaser
shall have performed all obligations to be performed by it
hereunder on or prior to such Purchase Date.
(B) Payment of Cash Purchase Price. At such
Purchase Date, the Purchaser will pay to the Seller the Cash
Purchase Price for the Receivables transferred hereunder on
such date, as provided in Section 2.01(B).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows:
5.01 Protection of Purchaser s Right, Title and
Interest.
(A) Filings. The Seller shall cause all
financing statements and continuation statements and any
other necessary documents covering the right, title and
interest of the Purchaser in and to the Receivables, and the
other Purchased Property to be promptly filed, and at all
times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the
Purchaser hereunder to the Receivables and the other
Purchased Property. The Seller shall deliver to the
Purchaser file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided
above, as soon as available following such recordation,
registration or filing. The Purchaser shall cooperate fully
with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably
required to fulfill the intent of this Section 5.01(A).
(B) Servicing Agreement. Without the
Purchaser s express prior written consent, the Seller shall
not permit the Servicing Agreement to be amended, modified,
restated, canceled or terminated, the Seller shall not waive
(or permit to be waived) any of its rights under any
provision of the Servicing Agreement, the Seller shall not
consent to any deviation from the terms thereof or otherwise
grant any consents provided for therein, and the Seller
shall not default in any of its obligations thereunder.
5.02 Other Liens or Interests. Except for the
conveyances hereunder and pursuant to the Servicing
Agreement and except for liens for taxes not yet due and
payable, the Seller will not sell, pledge, assign or
transfer to any other person, or grant, create, incur,
assume or suffer to exist any lien on any interest therein,
and the Seller shall defend the right, title, and interest
of the Purchaser in, to and under the Receivables and the
other Purchased Property against all claims of third parties
claiming through or under the Seller; provided, however,
that the Seller's obligations under this Section 5.02 shall
be terminated upon satisfaction of all Receivables sold to
the Purchaser hereunder or upon Seller s repurchase of all
of the Receivables pursuant to Article VII.
5.03 Costs and Expenses. The Seller agrees to pay
all reasonable costs and disbursements in connection with
the perfection, as against all third parties, of the
Purchaser's right, title and interest in and to the
Receivables and the other Purchased Property.
5.05 Control of Receivable Files. The Receivable
Files are to be kept in the control of the Servicer in
accordance with Servicing Agreement and shall not be removed
from the Servicer s control without Purchaser's prior
written consent.
ARTICLE VI
SELLER INDEMNIFICATION
6.01 Seller Indemnification. The Seller shall
indemnify the Purchaser for any loss, expense or liability
incurred or suffered by the Purchaser as a result of the
failure of a Receivable to be originated in compliance with
all requirements of any applicable law, rule or regulation
or for any breach of any of the Seller s representations,
warranties or covenants contained herein. These indemnity
obligations shall be in addition to any obligation that the
Seller may otherwise have to Purchaser hereunder or
otherwise and shall survive the sale, transfer and
assignment of the Receivables to Purchaser hereunder and
also shall survive any termination of this Agreement.
ARTICLE VII
SELLER S REPURCHASE RIGHTS AND OBLIGATIONS
7.01 Voluntary Repurchase. The Seller may, at its
option and on not less than five (5) day s prior written
notice to the Purchaser, repurchase all (or less if mutually
agreeable to both parties) of the Receivables and the
Purchased Property from the Purchaser at a price equal to
the Repurchase Amount as of such date, which shall be
payable in full by wire transfer of such amount to Purchaser
in immediately available funds on the date of such
repurchase.
7.02 Mandatory Repurchase. (A) The Seller hereby
covenants and agrees with the Purchaser for the benefit of
the Purchaser that, upon the occurrence of a breach of any
of the Seller s representations and warranties contained in
Section 3.02(B) hereof with respect to any Receivable, or
upon the failure of the Purchaser to receive a Servicer
Confirmation covering a Receivable by the deadline
prescribed in Section 2.04(A) hereof, the Purchaser shall
have the right, at its option and on not less than five (5)
days prior written notice to the Seller, to require that
the Seller repurchase such Receivable at a repurchase price
equal to the Repurchase Amount as of such date, which shall
be payable in full by wire transfer of such amount to
Purchaser in immediately available funds on the date of such
repurchase. Such repurchase obligation of the Seller shall
constitute the sole remedy of the Purchaser against the
Seller with respect to any such breach of representation,
warranty or covenant.
(B) In addition, the Seller hereby further
covenants and agrees with the Purchaser for the benefit of
the Purchaser that on the two hundred and tenth (210th) day
after the initial Purchase Date the Seller shall repurchase
all of the Receivables from the Purchaser at a repurchase
price equal to the Repurchase Amount as of such date, which
shall be payable in full by wire transfer of such amount to
Purchaser in immediately available funds on the date of such
repurchase.
7.03 Purchaser s Assignment of Repurchased
Receivables. With respect to all Receivables repurchased by
the Seller pursuant to this Article VII, the Purchaser shall
at the time of such repurchase assign, without recourse,
representation or warranty, to the Seller all of the
Purchaser s rights, titles and interest in, to and under
such Receivables and all of the Purchased Property relating
thereto and Purchaser shall execute and deliver to Seller
any and all termination statements and other evidences of
the reassignment of the Receivables as Seller may reasonably
request.
7.04 Seller s Obligations Absolute. The Seller s
repurchase obligations under Section 7.02 above shall be
absolute, unconditional and irrevocable and shall not be
released, discharged, modified or in any other way affected
or impaired, nor shall the Seller have any rights, defenses,
counterclaims or recourse against the Purchaser, by reason
of (i) any invalidity, illegality, unenforcability,
uncollectability, or other irregularlity regarding any
Receivable or any of the other Purchased Property or (ii)
any action or inaction on the part of the Purchaser, the
Seller or the Servicer in connection with the origination,
administration or enforcement of any of the Receivables or
the other Purchased Property.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01. Amendment. This Agreement may only be
amended by mutual agreement from time to time by a written
amendment duly executed and delivered by the Seller and the
Purchaser.
8.02. Waivers. No failure or delay on the
part of the Purchaser in exercising any power, right or
remedy under this Agreement or the Assignment shall operate
as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any
other or further exercise thereof or the exercise of any
other power, right or remedy.
8.03. Notices. All notices and other
communications provided for hereunder shall be in writing
(including telecopy transmission) and mailed by registered
mail, return receipt requested, telecopied or hand delivered
to each party at its address or telecopy number indicated
beneath its signature below or to such other address or
telecopy number as shall be designated by such party by
written notice to the other party. All such notices and
communications shall be effective and deemed delivered only
when received by the party to which it is sent; provided,
however, that a telecopy transmission shall be deemed to
have been received when transmitted so long as the
transmitting machine has provided an electronic confirmation
of such transmission.
8.04 Costs and Expenses. Except as expressly
provided in the immediately succeeding sentence of this
section, each party hereto agrees to pay its own costs and
expenses (including attorney s fees and expenses) in
connection with the negotiation, structuring, documenting,
closing and performance of this Agreement and the other
Purchase Documents. The Seller agrees to pay (a) the costs
and expenses of the Purchaser covered by Section 5.03
hereof, (b) any indemnity claims for costs or expenses made
by Purchaser pursuant to Section 6.01 hereof, and (c) all
costs and expenses of the Purchaser (including reasonable
attorney s fees and expenses) incurred in connection with
the Purchaser s enforcement of this Agreement and the other
Purchased Documents against the Seller.
8.04. Survival. The respective agreements,
representations, warranties and other statements by the
Seller and the Purchaser set forth in or made pursuant to
this Agreement and the Assignment shall remain in full force
and effect and will survive each Purchase Date under Section
2.02 hereof.
8.05. Confidential Information. The Purchaser
agrees that it will neither use nor disclose to any person
the names and addresses of the Obligors, except in
connection with the enforcement of the Purchaser s rights
hereunder, under the Receivable, under the Servicing
Agreement or as required by law.
8.06. Headings and Cross-References. The
various headings in this Agreement are included for
convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement.
8.07. Governing Law. This Agreement and the
Assignment shall be governed by and construed in accordance
with the internal laws of the State of New Jersey.
8.08. Counterparts. This Agreement may be
executed in two or more counterparts and by different
parties on separate counterparts, each of which shall be
original, but all of which together shall constitute one and
the same instrument.
8.09. Intended Characterizations; Cautionary
Security Interest.
(A) It is the intention of the Seller and
the Purchaser that the transfer of the Receivables and the
other Purchased Property to be made pursuant to the terms
hereof shall constitute a purchase and sale by the Purchaser
and the Seller, respectively, and not a loan transaction.
In the event, however, that a court of competent
jurisdiction were to hold that such transfer constitutes a
loan and not a purchase and sale transaction, it is the
additional intention of the Seller and the Purchaser that
the Seller shall be deemed to have granted to the Purchaser
as of the Closing Date a first priority perfected security
interest in the Receivables and the other Purchased Property
and all proceeds thereof. Further, in the event of the
characterization of any such transfer as a loan, the amount
of interest paid or payable with respect to such loan under
the terms of this Agreement shall be limited to maximum
permitted under applicable law.
(B) Notwithstanding any provision of this
Agreement to the contrary, it is the additional intention of
the parties hereto that they are not co-venturers, partners
or members of a joint venture, partnership or any other
similar entity or organization with respect to the
transactions contemplated by this Agreement.
8.10. Binding Effect. This Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
8.11. Severability. In the event any
particular provision of this Agreement shall be held by a
court of competent jurisdiction to be prohibited or
unenforceable under applicable law, such prohibition or
unenforceability shall not affect any other provision of
this Agreement.
8.12. Entire Agreement. This Agreement, the
Assignment, the Servicing Agreement and the Servicing
Agreement Addendum constitutes the sole and entire agreement
between the Purchaser and the Seller with respect to the
subject matter hereof and supersede and replace all prior
discussions, negotiations, commitments, understandings or
agreements between them with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereby have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, all as of the date and year first
above written.
SELLER:
AEGIS AUTO FINANCE, INC.
By:
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER:
ENTERPRISE NATIONAL BANK OF
PALM BEACH
By:
Name:
Title:
Address: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
ASSIGNMENT
FOR VALUE RECEIVED, in accordance with the
Purchase Agreement dated as of December 9, 1996 (the
Purchase Agreement ), by and between the Seller and
Enterprise National Bank of Palm Beach (the Purchaser ),
the undersigned does hereby sell, assign, transfer and
otherwise convey to the Purchaser, without recourse (except
to the extent expressly provided in the Purchase Agreement),
all right, title and interest of the undersigned in, to and
under (i) the Receivables identified on the Schedule of
Receivables attached to this Assignment as Schedule 1 and
all moneys due thereon on and after the Cut-Off Date for
such Receivables, except for any monies due the Seller
relating to interest accrued between each such Receivable s
last paid to date and the Cut-Off-Date for such Receivable;
(ii) the security interests of the Seller in the Financed
Vehicles granted by the Obligors pursuant to such
Receivables; (iii) the interests of the Seller in any
proceeds from claims on any physical damage, credit life,
credit loss, credit disability, single interest or risk
default insurance policies relating to such Financed
Vehicles, such Obligors or such Receivables; (iv) the
Receivable Files relating to such Receivables, (v) the
interests of the Seller with respect to such Receivables
under the Servicing Agreement, and (vi) all proceeds of any
and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption
by the Purchaser of any obligation of the undersigned to the
Obligors, Dealers, insurers, or any other Person in
connection with such Receivables, such Receivable Files, the
Servicer Files relating to such Receivables (as defined in
the Servicing Agreement), any insurance policies or any
other agreement or instrument relating to any of them. In
order to effectuate the transactions contemplated by this
Assignment, the Seller hereby appoints the Purchaser (which
appointment is coupled with an interest and shall be
irrevocable) to be the Seller s attorney-in-fact with full
power and authority to execute or deliver any and all
documents (including, without limitation, certificate of
title applications) in the Seller s or the Purchaser s name
as may be necessary in order to perfect, protect or enforce
any of the Purchaser s right, titles or interests in, to and
under any of such Receivables, such Financed Vehicles, any
of the other Purchase Document relating to such Receivables,
or any proceeds of any of the foregoing.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of
the undersigned contained in the Purchase Agreement and is
to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the
Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused
this Assignment to be duly executed as of ________________,
19__.
SELLER:
AEGIS AUTO FINANCE, INC.
By:
Name:
Title:
SCHEDULE 1
SCHEDULE OF RECEIVABLES EXHIBIT B
COPY OF SERVICING AGREEMENT
See attached copy of Master Servicing Agreement,
dated as of April 6, 1996, among the Servicer and Aegis
Consumer Finance, Inc.
EXHIBIT C-1
FORM OF SERVICING AGREEMENT ADDENDUMEXHIBIT C-2
FORM OF SERVICER CONFIRMATIONEXHIBIT D
FORM OF SERVICING REPORTS
See attachedEXHIBIT E
FORM OF RECEIVABLES
Each of the Receivables will be in substantially
the form disclosed by Seller to Purchaser in Seller s
November 20, 1996 response to Purchaser s due diligence
requests.EXHIBIT F
UNDERWRITING CRITERIA
See attached
EXHIBIT G
FORM OF ADMINISTRATIVE REPORT
See attached.
