Exhibit 10.3
EXECUTION COPY
MASTER RECEIVABLES PURCHASE AGREEMENT
between
HOUSEHOLD AUTOMOTIVE CREDIT CORPORATION,
as Seller
and
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
dated as of
June 24, 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..............................................................1
SECTION 1.1 General...........................................................1
SECTION 1.2 Specific Terms....................................................1
SECTION 1.3 Other Definitional Provisions.....................................2
SECTION 1.4 Certain References................................................2
SECTION 1.5 No Recourse.......................................................3
ARTICLE II CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY...........3
SECTION 2.1 Purchase..........................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES.........................................5
SECTION 3.1 Representations and Warranties of Seller..........................5
SECTION 3.2 Representations and Warranties of HARC............................7
ARTICLE IV COVENANTS OF SELLER.....................................................8
SECTION 4.1 Seller's Covenants................................................8
ARTICLE V REPURCHASES..............................................................9
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.................9
SECTION 5.2 Reassignment of Repurchased Receivables..........................10
SECTION 5.3 Waivers..........................................................10
ARTICLE VI MISCELLANEOUS..........................................................10
SECTION 6.1 Liability of Seller..............................................10
SECTION 6.2 Amendment........................................................10
SECTION 6.3 GOVERNING LAW....................................................10
SECTION 6.4 Notices..........................................................11
SECTION 6.5 Severability of Provisions.......................................11
SECTION 6.6 Assignment.......................................................11
SECTION 6.7 Acknowledgment and Agreement of Seller...........................11
SECTION 6.8 Further Assurances...............................................12
SECTION 6.9 No Waiver; Cumulative Remedies...................................12
SECTION 6.10 Counterparts.....................................................12
SECTION 6.11 Binding Effect; Third-Party Beneficiaries........................12
SECTION 6.12 Merger and Integration...........................................12
SECTION 6.13 Heading..........................................................12
SECTION 6.14 Schedules and Exhibits...........................................12
SECTION 6.15 Survival of Representations and Warranties.......................12
SECTION 6.16 Nonpetition Covenant.............................................13
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EXHIBITS
EXHIBIT A Form of Receivables Purchase Agreement Supplement
SCHEDULE A Schedule of Receivables
ii
THIS
MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of June 24,
2002, executed between
Household Auto Receivables Corporation, a Nevada
corporation, as purchaser ("HARC") and Household Automotive Credit
Corporation, a Delaware Corporation, as seller ("SELLER").
W I T N E S S E T H :
WHEREAS, HARC has agreed to purchase from time to time from
Seller, and Seller, pursuant to this Agreement, has agreed to transfer from
time to time to HARC the Receivables and the Other Conveyed Property.
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, HARC and Seller,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 GENERAL. Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the
Master Sale and Servicing Agreement.
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" means this
Master Receivables Purchase Agreement and
all amendments hereof and supplements hereto.
"CONVEYANCE" shall have the meaning specified in Section 2.1.
"CONVEYANCE PAPERS" shall have the meaning specified in Section 3.1.
"CUTOFF DATE" shall have the meaning assigned to such term in the
Master Sale and Servicing Agreement or applicable Receivables Purchase
Agreement Supplement.
"MASTER SALE AND SERVICING AGREEMENT" means the Master Sale and
Servicing Agreement dated as of December 18, 2001, by and among Household
Automotive Warehouse Trust, as Issuer, HARC, as Seller, Household Finance
Corporation, as Master Servicer, and Xxxxx Fargo Bank Minnesota, National
Association, as Indenture Trustee, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
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"OTHER CONVEYED PROPERTY" means all money, instruments, rights
and other property that are subject or intended to be subject to the lien and
security interest of the Indenture (including all property and interests
granted to the Indenture Trustee), including all proceeds thereof, other than
the Receivables.
"PURCHASE DATE" means, with respect to Receivables, any date, on
which Receivables are to be purchased by HARC pursuant to this Agreement and
a Receivables Purchase Agreement Supplement is executed and delivered by
Seller and HARC.
"RECEIVABLES" means the Receivables listed on the Schedules of
Receivables attached to this Agreement or to each Receivables Purchase
Agreement Supplement as Schedule A.
"RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT" means an agreement
between HARC and Seller, substantially in the form of Exhibit A hereto.
"REPURCHASE EVENT" means a determination pursuant to Section 3.2
or Section 4.7 of the Master Sale and Servicing Agreement that HARC is
required to repurchase a Receivable.
"SCHEDULE OF RECEIVABLES" means the schedule of Receivables sold
and transferred pursuant to this Agreement and each related Receivables
Purchase Agreement Supplement from time to time, which schedule collectively
includes the schedules attached as Schedule A to this Agreement and Schedule
A to each related Receivables Purchase Agreement Supplement.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, other documents, or Conveyance Paper
made or delivered pursuant hereto unless otherwise defined herein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper shall
refer to this Agreement as a whole and not to any particular provision of
this Agreement; and Section, Subsection, Schedule and Exhibit references
contained in this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge balance
of Receivables, and of any collections thereof, shall be made in accordance
with the Master Sale and Servicing Agreement and the Series Supplement.
SECTION 1.4 CERTAIN REFERENCES. All references to the
Principal Balance of a Receivable as of any date of determination shall refer
to the close of business on such day, or as of the first day of a Collection
Period shall refer to the opening of business on such day. All references to
the last day of a Collection 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
Seller 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 Seller, or of any predecessor or successor of Seller.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 PURCHASE.
(a) By execution of this Agreement and subject to the terms and
conditions of this Agreement, on each Purchase Date Seller shall sell,
transfer, assign, and otherwise convey to HARC (collectively, the
"CONVEYANCE") without recourse (but without limitation of its obligations in
this Agreement), and HARC shall purchase, all right, title and interest of
Seller in and to:
(i) each and every Receivable listed from time to time on
Schedule A hereto or to each related Receivables Purchase Agreement
Supplement and all monies paid or payable thereon or in respect
thereof on or after the related Cutoff Date (including amounts due
on or before the related Cutoff Date but received by Seller on or
after such date);
(ii) the security interests in the related Financed Vehicles
granted by Obligors pursuant to such Receivables and any other
interest of Seller in such Financed Vehicles;
(iii) all rights of Seller against Dealers pursuant
to Dealer Agreements or Dealer Assignments related to such
Receivables;
(iv) any proceeds and the right to receive proceeds with
respect to such Receivables repurchased by a Dealer, pursuant to a
Dealer Agreement;
(v) all rights of Seller under any Service
Contracts on the related Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with
respect to the related Receivables from claims on any physical
damage, loss, credit life or disability insurance policies, if any,
covering Financed Vehicles or Obligors, including rebates of
insurance premiums relating to the Receivables and any proceeds from
the liquidation of such Receivables;
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(vii) all items contained in the Receivables Files with
respect to such Receivables and any and all other documents that
Seller or Master Servicer keeps on file in accordance with its
customary procedures relating to the related Receivables, or the
related Financed Vehicles or Obligor;
(viii) all property (including the right to receive future Net
Liquidation Proceeds) that secures each related Receivable and that
has been acquired by or on behalf of HARC pursuant to the
liquidation of such Receivable; and
(ix) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or
part of or are included in the proceeds of any of the foregoing.
(b) Simultaneously with the conveyance of the Receivables and the
Other Conveyed Property to HARC by Seller, HARC has paid or caused to be paid
to or upon the order of Seller an amount equal to 100% of the Principal
Balance of the Receivables on the books and records of Seller, plus the
present value of anticipated excess spread on such Receivables, discounted to
take into account any uncertainty as to future performance matching
historical performance, servicing fees, delinquencies, pay down rates, yield
and such other factors as may be mutually agreed upon between Seller and
HARC, by wire transfer of immediately available funds.
(c) In connection with such Conveyance, Seller further agrees
that it will, at its own expense, on or prior to the Purchase Date (i)
indicate in its computer files or microfiche lists that the Receivables have
been conveyed to HARC in accordance with this Agreement and have been
conveyed by HARC to the Indenture Trustee pursuant to the Master Sale and
Servicing Agreement for the benefit of the Secured Parties by including in
such computer files and microfiche lists the code identifying each such
Receivable and (ii) deliver to HARC (or to the Indenture Trustee if HARC so
directs) a computer file or microfiche list containing a true and complete
list of all such Receivables specifying for each such Receivable, as of the
Cutoff Date (A) its account number and (B) the outstanding balance of such
Receivable. Such computer files or microfiche lists shall be delivered to
HARC (or to the Indenture Trustee if so directed by HARC) and marked as
proprietary and confidential. Seller further agrees not to alter the code
referenced in clause (i) of this paragraph with respect to any Receivable
during the term of this Agreement.
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(d) The parties hereto intend that the conveyance of Seller's
right, title and interest in and to the Receivables and Other Conveyed
Property shall constitute a sale, conveying good title free and clear of any
liens, claims, encumbrances or rights of others from Seller to HARC and that
the Receivables and Other Conveyed Property shall not be part of Seller's
estate in the event of the insolvency of Seller or a conservatorship,
receivership or similar event with respect to Seller. It is the intention of
the parties hereto that the arrangements with respect to the Receivables and
Other Conveyed Property shall constitute a purchase and sale of such
Receivables and not a loan. In the event, however, that a court of competent
jurisdiction were to hold that the transactions evidenced hereby constitute a
loan and not a purchase and sale, it is the intention of the parties hereto
that this Agreement shall constitute a security agreement under applicable
law, and that Seller shall be deemed to have granted to HARC a first priority
perfected security interest in all of such Seller's right, title and interest
in and to the Receivables and Other Conveyed Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
makes the following representations and warranties as of the date hereof on
which HARC relies in purchasing the Receivables and the Other Conveyed
Property and in transferring the Receivables and the Other Conveyed Property
to the Issuer under the Master Sale and Servicing Agreement. Such
representations are made as of the execution and delivery of this Agreement
and as to Receivables and Other Conveyed Property conveyed thereunder, as of
the execution and delivery of each Receivables Purchase Agreement Supplement,
but shall survive the sale, transfer and assignment of the Receivables and
the Other Conveyed Property hereunder, and the sale, transfer and assignment
thereof by HARC to the Issuer under the Master Sale and Servicing Agreement.
Seller and HARC agree that HARC will assign to Issuer all HARC's rights under
this Agreement and each Receivables Purchase Agreement Supplement and that
the Indenture Trustee will thereafter be entitled to enforce this Agreement
and each Receivables Purchase Agreement Supplement against Seller in the
Indenture Trustee's own name on behalf of the Securityholders.
(a) ELIGIBILITY CRITERIA. Each of the Receivables which is to
be pledged as collateral for the Notes will satisfy the Eligibility Criteria
set forth in Schedule I to the Series Supplement.
(b) ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized and validly existing in good standing under the laws of the state
of Delaware and has, in all material respects, full power and authority to
own its properties and conduct its business as such properties are presently
owned and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(c) DUE OBLIGATION. Seller is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements) and has obtained
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all necessary licenses and approvals, in each jurisdiction in which failure
to so qualify or to obtain such licenses and approvals would (i) render any
Receivable unenforceable by Seller, HARC or the Trust and (ii) have a
material adverse effect on the Secured Parties.
(d) DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement and any other document or instrument delivered pursuant hereto
(such other documents and instruments, including, but not limited to, the
Receivables Purchase Agreement Supplement collectively, the "CONVEYANCE
PAPERS") and the consummation of the transactions provided for in this
Agreement or any other Conveyance Papers have been duly authorized by all
necessary corporate action on the part of Seller and constitute or will
constitute the legal, valid and binding obligation of Seller, enforceable in
accordance with their terms.
(e) NO CONFLICT. The execution and delivery of this Agreement and
the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms of
this Agreement and the Conveyance Papers applicable to Seller will not
conflict with, violate or result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which Seller is a party or by which it
or any of its properties are bound.
(f) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers and the fulfillment of the terms
contemplated herein and therein applicable to Seller will not conflict with
or violate any requirements of law applicable to Seller.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of Seller, threatened against Seller,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement
or the Conveyance Papers, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Conveyance Papers,
(iii) seeking any determination or ruling that, in the reasonable judgment of
Seller, would materially and adversely affect the performance by Seller of
its obligations under this Agreement or the Conveyance Papers, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or the Conveyance Papers or (v)
seeking to affect adversely the income tax attributes of the Trust under
United States Federal, Nevada or California income tax systems.
(h) ALL CONSENTS. All authorizations, consents, orders, approvals,
registrations or declarations with, or of, any Governmental Authority required
to be obtained, effected or given by Seller in connection with the execution and
delivery by Seller of this Agreement or the Conveyance Papers and the
performance of the transactions contemplated by this Agreement or the Conveyance
Papers by Seller have been duly obtained, effected or given and are in full
force and effect
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SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF HARC. HARC makes
the following representations and warranties, on which Seller relies in
selling, assigning, transferring and conveying the Receivables and the Other
Conveyed Property to HARC hereunder. Such representations are made as of the
execution and delivery of this Agreement and as to Receivables and Other
Conveyed Property conveyed thereunder, as of the execution and delivery of
each Receivables Purchase Agreement Supplement, but shall survive the sale,
transfer and assignment of the Receivables and the Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by HARC to the Issuer
under the Master Sale and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. HARC is a corporation duly
organized and validly existing under the laws of the State of Nevada and has,
in all material respects, full power and authority to own its properties and
conduct its business as such properties are presently owned and such business
is presently conducted and to execute, deliver and perform its obligations
under this Agreement and the Conveyance Papers.
(b) DUE AUTHORIZATION. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by HARC by all necessary corporate action on the part of HARC.
(c) NO CONFLICT. The execution and delivery of this Agreement and
the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms
hereof and thereof, will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which HARC is a
party or by which it or its properties is bound.
(d) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers by HARC and the fulfillment of the terms
contemplated herein and therein applicable to HARC will not conflict with or
violate any requirements of law applicable to HARC.
(e) NO PROCEEDING. There are no proceedings or investigations
pending or, to the best knowledge of HARC, threatened against HARC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement
or the Conveyance Papers, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Conveyance Papers,
(iii) seeking any determination or ruling that, in the reasonable judgment of
HARC, would materially and adversely affect the performance by HARC of its
obligations under this Agreement or the Conveyance Papers or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or the Conveyance Papers.
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(f) ALL CONSENTS. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by HARC in connection with the
execution and delivery by HARC of this Agreement and the Conveyance Papers
and the performance of the transactions contemplated by this Agreement and
the Conveyance Papers or the fulfillment of the terms of this Agreement and
the Conveyance Papers by HARC have been duly obtained.
In the event of any breach of a representation and warranty made
by HARC hereunder, Seller 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 date on which all
Notes and Certificates issued by the Trust, have been paid in full. Seller
and HARC agree that damages will not be an adequate remedy for such breach
and that this covenant may be specifically enforced by HARC, Issuer or by the
Indenture Trustee on behalf of the Noteholders and the Owner Trustee on
behalf of the Certificateholders. Seller agrees that with respect to its
obligations in connection with a Repurchase Event it will exercise no rights
of offset with respect to any claims it may have against HARC.
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 SELLER'S COVENANTS. Seller hereby covenants and
agrees with HARC as follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. Seller
will take no action to cause any Receivable to be evidenced by any instrument
(as defined in the UCC).
(b) SECURITY INTERESTS. Except for the conveyances hereunder or
as otherwise provide herein, Seller will not sell, pledge, assign or transfer
to any other Person, or take any other action inconsistent with HARC's
ownership of the Receivables or grant, create, incur, assume or suffer to
exist any Lien on any Receivable, whether now existing or hereafter created,
or any interest therein, and Seller shall not claim any ownership interest in
the Receivables and shall defend the right, title and interest of HARC in and
to the Receivables, whether now existing or hereafter created, against all
claims of third parties claiming through or under Seller.
(c) SECURITY'S INTEREST. Except for the conveyances hereunder and
in connection with any transaction permitted pursuant to Section 6.6, Seller
hereby agrees not to transfer, assign, exchange or otherwise convey or
pledge, hypothecate or otherwise grant a security interest in the Receivables
and any such attempted transfer, assignment, exchange, conveyance, pledge,
hypothecation or grant shall be void.
(d) DELIVERY OF COLLECTIONS OR RECOVERIES. In the event that Seller
receives collections or recoveries with respect to the Receivables, Seller
agrees to pay to HARC
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(or to the Master Servicer if HARC so directs) all such collections and
recoveries to the extent such amounts are payable to HARC as soon as
practicable after receipt thereof.
(e) NOTICE OF LIENS. Seller shall notify HARC promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder.
(f) DOCUMENTATION OF TRANSFER. Seller shall undertake to file the
documents which would be necessary to perfect and maintain the transfer of
the security interest in and to the Receivables and Other Conveyed Assets.
(g) APPROVAL OF OFFICE RECORDS. Seller shall cause this Agreement
to be duly approved by Seller's Board of Directors, and Seller shall maintain
the Agreement as a part of the official records of Seller for the term of the
Agreement.
(h) MAINTENANCE OF SECURITY INTERESTS IN VEHICLES. In the event
that the assignment of a Receivable to HARC or any assignee thereof is
insufficient, without a notation on the related Financed Vehicle's
certificate of title, or without fulfilling any additional administrative
requirements under the laws of the state in which the Financed Vehicle is
located, to perfect a security interest in the related Financed Vehicle in
favor of HARC or any assignee thereof, Seller hereby agrees that the
designation of Seller or any Affiliate of Seller as the secured party on the
certificate of title is in its capacity as agent of HARC or the agent of any
assignee of HARC for such limited purpose.
ARTICLE V
REPURCHASES
SECTION 5.1 REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY.
Upon the occurrence of a Repurchase Event, Seller shall, unless the breach
which is the subject of such Repurchase Event shall have been cured in all
material respects, repurchase the Receivable relating thereto from the Issuer
by the last day of the first full calendar month following the discovery of
such breach by Seller or receipt by Seller of notice of such breach from any
of the Master Servicer, HARC, a Trust Officer of the Indenture Trustee or the
Owner Trustee and, simultaneously with the repurchase of the Receivable,
Seller shall deposit the Repurchase Amount in full, without deduction or
offset, in the Collection Account, pursuant to Section 3.2 of the Master Sale
and Servicing Agreement. It is understood and agreed that, except as set
forth in Section 6.1 hereof, the obligation of Seller to repurchase any
Receivable, as to which a breach occurred and is continuing, shall, if such
obligation is fulfilled, constitute the sole remedy against Seller for such
breach available to HARC, the Issuer, the Secured Parties, the
Certificateholders, the Indenture Trustee, on behalf of the Noteholders or
the Owner Trustee on behalf of the Certificateholders. The provisions of this
Section 5.1 are intended to grant the Indenture Trustee or the Issuer a
direct right against Seller to demand performance hereunder, and in
connection therewith, Seller waives any requirement of prior demand against
HARC with respect to such repurchase obligation. Any such repurchase shall
take place in the manner specified in Section 3.2 of the Master Sale and
Servicing Agreement. Notwithstanding any other provision of this Agreement
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or the Master Sale and Servicing Agreement to the contrary, the obligation of
Seller under this Section shall not terminate upon a termination of Household
Finance Corporation as Master Servicer under the Master Sale and Servicing
Agreement and shall be performed in accordance with the terms hereof
notwithstanding the failure of the Master Servicer or HARC to perform any of
their respective obligations with respect to such Receivable under the Master
Sale and Servicing Agreement.
SECTION 5.2 REASSIGNMENT OF REPURCHASED RECEIVABLES. Upon
deposit in the Collection Account of the Repurchase Amount of any Receivable
repurchased by Seller under Section 5.1 hereof, HARC and the Issuer shall
take such steps as may be reasonably requested by Seller in order to assign
to Seller all of HARC's and the Issuer's right, title and interest in and to
such Receivable and all security and documents and all Other Conveyed
Property conveyed to HARC and the Issuer directly relating thereto, without
recourse, representation or warranty, except as to the absence of liens,
charges or encumbrances created by or arising as a result of actions of HARC
or the Issuer. Such assignment shall be a sale and assignment outright, and
not for security. If, following the reassignment of a Repurchased Receivable,
in any enforcement suit or legal proceeding, it is held that Seller 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, HARC and the
Issuer shall, at the expense of Seller, take such steps as Seller deems
reasonably necessary to enforce the Receivable, including bringing suit in
HARC's or in the Issuer's name.
SECTION 5.3 WAIVERS. No failure or delay on the part of HARC,
or the Issuer as assignee of HARC, in exercising any power, right or remedy
under this 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 SELLER. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
SECTION 6.2 AMENDMENT. This Agreement and any Conveyance
Papers and the rights and obligations of the parties hereunder may not be
changed orally, but only by an instrument in writing signed by HARC and
Seller in accordance with this Section 6.2. This Agreement and any Conveyance
Papers may be amended from time to time, with the prior written consent of
the Administrative Agent, where one exists, or otherwise, the Managing
Agents, by HARC and Seller.
SECTION 6.3 GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW
YORK, WITHOUT REFERENCE TO ITS
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CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.4 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt
requested, to (a) in the case of Seller, 0000 Xxxxxx Xxxxx, Xxx Xxxxx, XX
00000, Attention: Chief Operating Officer, with a copy to 0000 Xxxxxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 Attention: Director--Asset Securitization,
(b) in the case of HARC, 0000 Xxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000
Attention: Compliance Officer, with a copy to 0000 Xxxxxxx Xxxx, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer; or, as to each party, at such
other address as shall be designated by such party in a written notice to
each other party.
SECTION 6.5 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement or Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any
Conveyance Paper and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of any Conveyance Paper.
SECTION 6.6 ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, other than HARC's assignment of its rights, title,
and interests in, to, and under this Agreement to the Issuer and by the
Issuer to the Indenture Trustee for the benefit of the Secured Parties, as
contemplated by the Master Sale and Servicing Agreement and Section 6.7
hereof, the Receivables, the Other Conveyed Property, this Agreement and all
other Conveyance Papers may not be assigned by the parties hereto; PROVIDED,
HOWEVER, that Seller shall have the right to assign its rights, title and
interests, in to and under this Agreement to (i) any successor by merger or
consolidation, or any Person which acquires by conveyance, transfer or sale
the properties and assets of Seller or (ii) any Affiliate owned directly or
indirectly by Household International, Inc. The right granted in the
foregoing proviso is subject to the further condition that any such successor
or other Person shall expressly assume by written agreement, in form and
substance satisfactory to HARC, the obligations of Seller hereunder and under
the Conveyance Papers.
SECTION 6.7 ACKNOWLEDGMENT AND AGREEMENT OF SELLER. By
execution below, Seller expressly acknowledges and agrees that all of HARC's
right, title, and interest in, to, and under this Agreement, including,
without limitation, all of HARC's right title, and interest in and to the
Receivables purchased pursuant to this Agreement, shall be assigned by HARC
to the Issuer and by the Issuer to the Indenture Trustee for the benefit of
the Secured Parties, and Seller consents to such assignment. Additionally,
Seller agrees for the benefit of the Indenture Trustee that any amounts
payable by Seller to HARC hereunder which are to be paid by HARC to the
Indenture Trustee for the benefit of the Secured Parties shall be paid by
Seller, on behalf of HARC, directly to the
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Indenture Trustee. Any payment required to be made on or before a specified
date in same-day funds may be made on the prior business day in next-day
funds.
SECTION 6.8 FURTHER ASSURANCES. HARC and Seller agree to do
and perform, from time to time, any and all acts to authenticate any and
further records, to execute any and further instruments, in each case
required or reasonably requested by the other party more fully to effect the
purposes of this Agreement and the Conveyance Papers, including, without
limitation, the execution of any financing statements or continuation
statements or equivalent documents relating to the Receivables for filing
under the provisions of the UCC or other law of any applicable jurisdiction.
SECTION 6.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of HARC or Seller, any
right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 6.10 COUNTERPARTS. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.11 BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This
Agreement and the Conveyance Papers will inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Each of the Indenture Trustee and the Owner Trustee shall be
considered a third-party beneficiary of this Agreement.
SECTION 6.12 MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers 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 Conveyance Papers. This Agreement and the Conveyance Papers
may not be modified, amended, waived or supplemented except as provided
herein.
SECTION 6.13 HEADING. The headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 6.14 SCHEDULES AND EXHIBITS. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
SECTION 6.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and agreements contained in this Agreement or
contained in any Conveyance Paper, shall remain operative and in full force
and effect and shall
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survive conveyance of the Receivables by HARC to the Issuer pursuant to the
Master Sale and Servicing Agreement.
SECTION 6.16 NONPETITION COVENANT. Until the date which is one
year and one day after payment in full of all the Notes, neither HARC nor
Seller shall petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against HARC, Seller or the Issuer under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of HARC, Seller or
the Issuer or any substantial part of their respective properties, or
ordering the winding up or liquidation of the affairs of HARC, Seller or the
Issuer. This provision shall survive the termination of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this
Master
Receivables Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
HOUSEHOLD AUTOMOTIVE CREDIT CORPORATION
as Seller
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President & CFO
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Assistant
Treasurer
14
EXHIBIT A
FORM OF RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT
Transfer No. __ of Receivables, dated as of ___________________,
pursuant to a
Master Receivables Purchase Agreement (the "PURCHASE
AGREEMENT") dated as of June 12, 2002, between Household Automotive Credit
Corporation, a Delaware corporation (the "SELLER") and
Household Auto
Receivables Corporation, a Nevada corporation ("HARC").
W I T N E S S E T H :
WHEREAS pursuant to the Purchase Agreement, Seller wishes to
convey Receivables and Other Conveyed Property to HARC; and
WHEREAS, HARC is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, Seller and HARC hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall
have the meanings ascribed to them in the Purchase Agreement unless
otherwise defined herein.
"CUTOFF DATE" shall mean with respect to the Receivables conveyed
hereby, the close of business on ___________________, 200_.
"PURCHASE DATE" shall mean with respect to the Receivables conveyed
hereby, ___________________, 200_.
"PURCHASE PRICE" shall mean 100% of the Principal Balance of the
Receivables on the books and records of the Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into
account any uncertainty as to future performance matching historical
performance, servicing fees, delinquencies, paydown rates, yield and such
other factors as may be mutually agreed upon by Seller and HARC.
"TRANSFER DATE" means, with respect to Receivables, any date on
which Receivables are to be transferred to the Trust pursuant to the Master
Sale and Servicing Agreement and this Agreement.
2. SCHEDULE OF RECEIVABLES. Annexed as Schedule A
hereto is a computer file which reflects the Receivables that
constitute the Receivables to be conveyed pursuant to this Agreement on
the Purchase Date.
3. CONVEYANCE OF RECEIVABLES. In consideration of HARC's
delivery to or upon the order of the Seller of the Purchase Price, Seller
does hereby sell, transfer,
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assign, set over and otherwise convey to HARC, without recourse (except as
expressly provided in the Purchase Agreement), all right, title and interest
of the Seller in and to:
(i) each and every Receivable listed on Schedule A hereto and all
monies paid or payable thereon or in respect thereof on or after the
Cutoff Date (including amounts due on or before the Cutoff Date but
received by Seller on or after such date);
(ii) the security interests in the related Financed Vehicles
granted by Obligors pursuant to such Receivables and any other interest
of the Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers pursuant to Dealer
Agreements, or Dealer Assignments related to such Receivables;
(iv) any proceeds and the right to receive proceeds with respect
to such Receivables repurchased by a Dealer pursuant to a Dealer
Agreement;
(v) all rights of Seller under any Service Contracts on the
related Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with respect
to the related Receivables from claims on any physical damage, loss,
credit life or disability insurance policies, if any, covering Financed
Vehicles or Obligors, including rebates of insurance premiums relating
to the Receivables and any proceeds from the liquidation of such
Receivables;
(vii) all items contained in the Receivables Files with respect
to such Receivables and any and all other documents that the Seller or
the Master Servicer keeps on file in accordance with its customary
procedures relating to the related Receivables, or the related Financed
Vehicles or Obligor;
(viii) property (including the right to receive future Net
Liquidation Proceeds) that secures each related Receivable and that has
been acquired by or on behalf of HARC pursuant to liquidation of such
Receivable;
(ix) all present and future claims, demands, causes and chooses
in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing.
A-2
4. REPRESENTATIONS AND WARRANTIES OF SELLER. As of the
Purchase Date, Seller hereby makes the representations and warranties to HARC
that are set forth in Section 3.1 of the Purchase Agreement with respect to
the Conveyance effected hereby to the same extent as if set forth in full
herein.
5. REPRESENTATIONS AND WARRANTIES OF HARC. As of the Purchase
Date, HARC hereby makes the representations and warranties to Seller that are
set forth in Section 3.2 of the Purchase Agreement with respect to the
Conveyance effected hereby to the same extent as if set forth in full herein.
In the event of any breach of a representation and warranty made by HARC
hereunder, the Seller 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 date on which all
notes and certificates issued by the trust have been paid in full. The Seller
and HARC agree that damages will not be an adequate remedy for such breach
and that this covenant may be specifically enforced by HARC, the Issuer or by
the Indenture Trustee on behalf of the Noteholders and the Owner Trustee on
behalf of the Certificateholders.
6. CONDITIONS PRECEDENT. The obligation of HARC to acquire
the Receivables hereunder is subject to the satisfaction, on or prior to the
Purchase Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by the Seller in Section 4 of this Agreement and in
Section 3.1 of the
Master Receivables Purchase Agreement shall be true and
correct as of the date of this Agreement and as of the Purchase Date.
(b) ADDITIONAL INFORMATION. Seller shall have delivered to HARC
such information as was reasonably requested by HARC to satisfy itself as to
(i) the accuracy of the representations and warranties set forth in Section 4
of this Agreement and in Section 3.1 of the Purchase Agreement and (ii) the
satisfaction of the conditions set forth in this Section.
7. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Purchase Agreement is in all respects ratified and confirmed
and the Purchase Agreement as so supplemented by this Agreement shall be
read, taken and construed as one and the same instrument.
8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument.
9. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY TO THE ISSUER. The Seller acknowledges that HARC intends, pursuant
to the Master Sale and Servicing Agreement, to convey the Receivables and the
Other Conveyed Property, together with its rights under this Agreement, to
the Issuer on the Transfer Date. The Seller acknowledges and consents to such
conveyance and pledge and waives any further notice thereof and covenants and
agrees that the representations and warranties of the
A-3
Seller contained in this Agreement and the rights of HARC hereunder are
intended to benefit the Issuer, the Owner Trustee, the Indenture Trustee, the
Secured Parties and the Certificateholders. In furtherance of the foregoing,
the Seller covenants and agrees to perform its duties and obligations
hereunder, in accordance with the terms hereof for the benefit of the Issuer,
the Owner Trustee, the Indenture Trustee and the Secured Parties and that,
notwithstanding anything to the contrary in this Agreement, the Seller shall
be directly liable to the Issuer, the Owner Trustee, the Indenture Trustee
and the Secured Parties (notwithstanding any failure by the Master Servicer
or HARC to perform their respective duties and obligations hereunder or under
any Basic Document) and that the Indenture Trustee may enforce the duties and
obligations of the Seller under this Agreement against Seller for the benefit
of the Secured Parties and the Owner Trustee.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Seller and HARC have caused this Purchase
Agreement to be duly executed and delivered by their respective duly authorized
officers as of day and the year first above written.
HOUSEHOLD AUTOMOTIVE CREDIT CORPORATION
as Seller
By:
-------------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By:
-------------------------------------
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
(COMPUTER FILE HELD AT THE OFFICES OF XXXXX XXXXXXXXXX LLP)
