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EXHIBIT 10.1
MASTER PURCHASING AGREEMENT
This Master Purchasing Agreement (this "Agreement") effective as of
this _____ day of _______________, 2001, by and between Transition Leasing
Management, Inc., a Texas corporation ("Acquisition Agent") and Transition Auto
Finance IV, Inc., a Texas corporation ("Buyer").
BACKGROUND STATEMENT
Buyer has no paid employees, and intends to rely upon Acquisition Agent
to acquire assets in the name of, and for the benefit of, Buyer. This Agreement,
under which from time to time Acquisition Agent will acquire on behalf of,
Buyer, and Buyer will agree to buy (i) motor vehicles that will be made subject
to motor vehicle lease contracts and liens on such vehicles securing the
obligations, and (ii) existing lease contract, shall govern the purchase and
transfer of the vehicles and obligations for the benefit of Buyer and the
servicing and other incidents thereof, and each shall be subject to the
warranties, representations and agreements herein.
STATEMENT OF AGREEMENT
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Acquisition Agent agree as follows:
1. DEFINITIONS. Unless the context requires otherwise, the following terms
shall for all purposes of this Agreement have the meanings hereinafter
specified:
a. "CERTIFICATE OF TITLE" shall mean a certificate of title
under the Certificate of Title Act, as amended (Transportation Code, Chapter
501, Vernon's Texas Codes Annotated) or a certificate of title under a statute
of another jurisdiction under the law of which indication of a security interest
on the certificate is required as a condition of perfection.
b. "CLOSING DATE" shall mean a business day mutually agreed
upon by Acquisition Agent and Buyer upon which the Contracts will be acquired by
Buyer.
c. "CONTRACT" shall mean a valid and enforceable motor vehicle
lease contract that is secured by a lien on a Leased Vehicle and that meets the
purchasing criteria set forth on EXHIBIT A attached hereto.
d. "CONTRACT DOCUMENTS" shall mean all documents and proof of
delivery evidencing and relating to the Contracts as Buyer may reasonably
request.
e. "DEALER" shall mean the motor vehicle dealer who sold a
Leased Vehicle to the Acquisition Agent or to the Buyer.
f. "LEASED VEHICLE" shall mean a new or late model automobile
that is not more than four model years old at the time of lease (including
passenger cars, minivans,
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sport/utility vehicles and light trucks), together with all accessories thereto,
securing an Obligor's obligations under the respective Contract.
g. "MASTER COLLECTIONS ACCOUNT" shall be a lockbox account in
the name of and owned by Acquisition Agent, which shall serve to collect all
Contract payments from Obligors and all other receipts relating to Contracts, as
further described and governed in the Servicing Agreement.
h. "MONTHLY REPORT CERTIFICATE" shall mean a certificate, in
such form as may be agreed from time to time by Acquisition Agent and Buyer,
signed by an officer of the Acquisition Agent, which shall confirm the adherence
of Acquisition Agent to all terms and conditions of this Agreement since the
date of the most recent previously issued Monthly Report Certificate, and the
conformance of the Contracts acquired by the Buyer in the immediately preceding
calendar month to the purchasing criteria set forth in EXHIBIT A, and shall
include such information regarding such Contracts as may be agreed from time to
time by Buyer and Acquisition Agent, which information may include all or some
of the following: a listing of Contracts setting forth, for each such Contract,
the Contract number, the aggregate unpaid lease payments as of the date acquired
by the Buyer and as of the date of origination, the name of the Obligor, the
maturity date, the name of the Dealer, the vehicle identification number for the
Leased Vehicle, the date on which the Contract was originated, the Purchase
Price, the Dealer's sale price, original cost and sale preparation expenses for
the Leased Vehicle, the amounts of deferred down payments and installments, the
maturity date, the aggregate unpaid lease payments as of the date of acquisition
by the Buyer and a calculation of the various ratios required by the purchasing
criteria set forth on EXHIBIT A.
i. "OBLIGOR" shall mean the person who has leased a Leased
Vehicle subject to a Contract and who is indebted under that Contract.
j. "SERVICING AGREEMENT" shall mean the Servicing Agreement
duly executed by Acquisition Agent and Buyer and dated of even date herewith.
2. PROCEDURE FOR PURCHASE. At any time and from time to time until the
termination of this Agreement, the Buyer may request the Acquisition Agent (i)
to solicit from Dealers offers to sell to Buyer vehicles eligible to become
Leased Vehicles, (ii) to solicit persons to become Obligors under Contracts, and
(iii) to do the work needed to negotiate and originate Contracts for and on
behalf of Buyer. Acquisition Agent shall be obligated to use reasonable efforts
to perform those functions on behalf of Buyer as soon as practicable following
any such request by the Buyer. Buyer shall be obligated to purchase vehicles
eligible to become Leased Vehicles from Dealers through the Acquisition Agent,
in accordance with the terms of this Agreement, up to a maximum aggregate
Purchase Price of any dollar amount that may be specified by the Buyer in its
request.
Payment of the purchase price by Buyer shall be made at the time of the
purchase by Acquisition Agent on Buyer's behalf of each Leased Vehicle. At all
times during the term of this Agreement, Buyer shall retain the right to audit
any or all Contracts for adherence to the terms and conditions of this
Agreement. Acquisition Agent shall cooperate in all material respects with
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the audit of such Contracts. Within ninety (90) days following the end of each
calendar year, Acquisition Agent shall supply a compliance letter from its
independent certified public accounting firm stating that purchasing activities
and transactions covered under this Agreement were performed in all material
respects in accordance with its terms and conditions. Buyer shall be reimbursed
by Acquisition Agent, and receive a repurchase price equal to the Buyer's
original purchase price less any lease payments made on such Contract after the
Buyer's acquisition of the Contract, for any and all Contracts that are sold to
Buyer that do not meet the terms and conditions set forth in this Agreement.
3. PURCHASE PRICE; COMPENSATION. The Purchase Price (herein so called)
payable by the Buyer for each Leased Vehicle or Contract shall be an amount set
forth in the Monthly Report Certificate. The Purchase Price for a Leased Vehicle
shall never exceed that amount that a Dealer shall receive from bank draft upon
the delivery of the Leased Vehicle.
Buyer shall pay to Acquisition Agent, on or before the fifteenth day of
each month, a purchase administration fee of $100 (the "Purchase Administration
Fee"), a documentary fee of $50 (the "Documentary Fee"), and a marketing fee
equal to 57.5% of the Obligor's down payment with respect to any given Contract,
as to each Contract acquired by Buyer from or through Acquisition Agent under
this Agreement during the prior calendar month.
4. TERM. This Agreement shall commence as of the date first written
above and shall continue until _______________, 2004, unless mutually extended
or terminated; provided, however, that in the event of a termination of the
Servicing Agreement, Buyer shall be permitted to terminate this Agreement on ten
days' prior written notice to the Acquisition Agent.
5. OTHER DOCUMENTS. Acquisition Agent or Buyer shall execute and
deliver any and all other documents, opinions, certificates, and evidence of the
Contracts as may be reasonably requested by Buyer in connection with the
transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF ACQUISITION AGENT. In order to
induce Buyer to enter into this Agreement and to purchase Contracts, Acquisition
Agent represents, warrants and covenants to Buyer as follows:
a. Acquisition Agent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas. Acquisition
Agent is duly qualified to transact business, and is in good standing, in each
jurisdiction where the nature of its business or properties requires such
qualification and where the failure to so qualify could have a material adverse
effect on the business operations or financial condition of Acquisition Agent.
Acquisition Agent has all requisite power, authority, licenses and permits
material to the ownership and operations of its properties and to the carrying
on of its business.
b. Acquisition Agent has all requisite corporate power and
authority to execute and deliver, and to perform under, this Agreement.
c. The execution and delivery of, and performance by
Acquisition Agent
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under, this Agreement and any and all related documents have been duly
authorized by all requisite corporate action of Acquisition Agent and are not in
contravention of any applicable law.
d. This Agreement constitutes the valid, legal and binding
obligation of Acquisition Agent, enforceable against Acquisition Agent in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors' rights generally.
e. No consent, approval or authorization of, registration with
or declaration to any tribunal, person or entity, including, without limitation,
the Obligors on the Contracts, or approval by the stockholders of Acquisition
Agent, is required in connection with the execution and delivery of this
Agreement or any Assignment or in connection with the performance by Acquisition
Agent of any covenant or agreement contained herein or in any Monthly Report
Certificates.
f. The execution, delivery, performance of or compliance with
the terms of this Agreement or any and all Monthly Report Certificates will not
cause Acquisition Agent to be in default or in violation (nor has any event or
condition occurred that, with notice or lapse of time or both, would constitute
a default or violation) under (a) any credit or loan agreement, indenture,
mortgage or deed of trust, or other material agreement, undertaking or
arrangement (written or oral) to which it is a party or by which it may be bound
or (b) its Articles of Incorporation or Bylaws.
g. Acquisition Agent is not, and the execution, delivery,
performance of or compliance with the terms of this Agreement and any and all
activities governed herein will not cause Acquisition Agent to be, in violation
of any laws in any respect that could have any material adverse effect
whatsoever upon the validity, performance or enforceability of any of the terms
of this Agreement.
h. There is no litigation or action at law or in equity
pending, or, to its knowledge, threatened against it and no proceeding of any
kind is pending or, to its knowledge, threatened, by any federal, state or local
governmental or administrative body, which will or might materially affect
Acquisition Agent or its ability to consummate the transactions contemplated
hereby.
i. Each Contract will conform with, and in acting with respect
to such Contract, Acquisition Agent will have complied in all material respects
with, all applicable federal, state and local laws, regulations and official
rulings.
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j. Each Contract (a) shall have been originated in the United
States of America and covers a Leased Vehicle purchased from a Dealer in the
retail sale of the Leased Vehicle in the ordinary course of such Dealer's
business, shall have been fully and properly executed by the parties thereto and
the full and complete title to such Leased Vehicle shall have been validly
assigned by such Dealer to Acquisition Agent as Buyer's Agent, or directly to
Buyer in accordance with its terms, (b) shall reflect Buyer as the owner of the
Leased Vehicle and shall have created or shall create a valid, subsisting, and
enforceable first priority security interest in favor of Buyer in the Leased
Vehicle and a valid, subsisting and enforceable second priority security
interest in favor of the Trustee in the Leased Vehicle, (c) shall contain
customary and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for realization against the collateral of the
benefits of the security, (d) shall provide for, in the event that such Contract
is prepaid, a prepayment that fully pays the principal balance, (e) met at the
time of the Leased Vehicle's purchase from the originating Dealer in all
material respects all purchasing criteria set forth on EXHIBIT A attached
hereto, and (f) shall have been validly assigned to Buyer.
k. Each Contract and the sale of the Leased Vehicle shall have
complied at the time it was originated or made and at the execution of this
Agreement shall comply in all material respects with all requirements of
applicable federal, state, and local laws and regulations hereunder, including,
without limitation, usury laws, the Federal Truth-In-Lending Act, the Consumer
Leasing Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the Federal Reserve Board's Regulations B, M and Z, and
state adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code, and other consumer laws and equal credit opportunity and disclosure
laws.
l. Each Contract shall represent the genuine, legal, valid and
binding payment obligation in writing of the Obligor, enforceable by the holder
thereof in accordance with its terms subject to the effects of bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors' rights generally.
m. (i) The Certificate of Title for such Leased Vehicle shows
(or if a new or replacement Certificate of Title is applied for with respect to
such Leased Vehicle, the official receipt from the responsible state or local
government authority indicating that an application has been made and that the
Certificate of Title, when issued, will show (within 30 days) the Buyer as the
owner and the holder of a first priority security interest in such Leased
Vehicle, (ii) within 30 days after the Purchase Date of the Contract or the
Leased Vehicle, the Certificate of Title for such Leased Vehicle will show the
Buyer as the owner and the holder of a first priority security interest in such
Leased Vehicle, and the Trustee as the holder of a second priority security
interest in such Leased Vehicle, and (iii) the Buyer, upon delivery or the
transfer to it, will have a valid and enforceable first priority security
interest in the Leased Vehicle to the same extent as the security interest of
the Person named as the original secured party under the related Contract and
the Trustee will have a valid and enforceable second priority security interest.
n. No provision of a Contract shall have been waived, without
the express written consent of the Company.
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o. No right of rescission, setoff, counterclaim, or defense
shall have been asserted or threatened with respect to any Contract.
p. It is the intention of the Acquisition Agent that the
transfer and assignment herein contemplated constitute a sale of the Leased
Vehicles and Contracts to Buyer and that the beneficial interest in and title to
the Contracts not be part of Acquisition Agent's estate in the event of the
filing of a bankruptcy petition by or against Acquisition Agent under bankruptcy
law. Immediately prior to the transfer and assignment to Buyer herein
contemplated, Dealer had good and marketable title to each Leased Vehicle free
and clear of all liens, encumbrances, security interests, and rights of others
and, immediately upon the transfer thereof, Buyer shall have good and marketable
title to each Leased Vehicle and each Contract, free and clear of all liens,
encumbrances, security interests, and rights of others.
q. No Contract shall have been originated in, or shall be
subject to the laws of, any jurisdiction under which the sale, transfer, and
assignment of such Contract under this Agreement or pursuant to transfers of the
Contract, shall be unlawful, void, or voidable.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. In order to induce
Acquisition Agent to enter into this Agreement and to purchase Leased Vehicles
and Contracts, Buyer represents, warrants and covenants to Acquisition Agent as
follows:
a. Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas. Buyer is duly qualified
to transact business, and is in good standing, in each jurisdiction where the
nature of its business or properties requires such qualification and where the
failure to so qualify could have a material adverse effect on the business
operations or financial condition of Buyer. Buyer has all requisite power,
authority, licenses and permits material to the ownership and operation of its
properties and to the carrying on of its business.
b. Buyer has all requisite corporate powers and authority to
execute and deliver, and to perform under, this Agreement.
c. The execution and delivery of, and performance by Buyer
under, this Agreement and any and all related documents have been duly
authorized by all requisite corporate actions of Buyer and are not in
contravention of any applicable law.
d. This Agreement constitutes the valid, legal and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect,
affecting the enforcement of creditors' rights generally.
e. No consent, approval or authorization of, registration with
or declaration to any tribunal, person or entity, including, without limitation,
the Obligors on the Contracts, or approval by the stockholders of Buyer, is
required in connection with the execution and delivery of this Agreement or in
connection with the performance by Buyer of any covenant or agreement contained
herein.
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f. The execution, delivery, performance of or compliance with
the terms of this Agreement will not cause Buyer to be in default or in
violation (nor has any event or condition occurred that, with notice or lapse of
time or both, would constitute a default or violation) under (a) any credit or
loan agreement, indenture, mortgage or deed of trust, or other material
agreement, undertaking or arrangement (written or oral) to which it is a party
or by which it may be bound or (b) its Articles of Incorporation or bylaws.
g. Buyer is not, and the execution, delivery, performance of
or compliance with the terms of this Agreement and any and all activities
governed herein will not cause Buyer to be, in violation of any laws in any
respect that could have a material adverse effect whatsoever upon the validity,
performance or enforceability of any of the terms of this Agreement.
h. There is no litigation or action at law or in equity
pending, or, to its knowledge, threatened against it and no proceeding of any
kind is pending or, to its knowledge, threatened, by any federal, state or local
governmental or administrative body, which will or might materially affect Buyer
or its ability to consummate the transactions contemplated hereby.
8. SERVICING AGREEMENT; COLLECTION OF PURCHASED RECEIVABLES.
Concurrently with the execution of this Agreement, Acquisition Agent and Buyer
shall enter into the Servicing Agreement, whereby Acquisition Agent, as an
independent contractor, will collect, in accordance with the terms and
conditions set forth therein, for the account of Buyer all payments due to Buyer
under all Contracts.
9. NO ASSUMPTION. The Acquisition Agent does not, and shall not
be deemed to, assume any obligations of the Buyer relating to the transactions
contemplated herein. Buyer does not, and shall not be deemed to assume any
obligations of Acquisition Agent relating to the Contracts or the transactions
giving rise to the Contracts. To the extent that Acquisition Agent has not
completed performance of any contract pursuant to which a Contract was
generated, Acquisition Agent hereby covenants and agrees to complete such
contract in order that the Obligor will continue not to have any rights to
set-off, counterclaim or dispute. Accordingly, Acquisition Agent hereby
indemnifies and holds harmless Buyer, its successors and assigns, and their
respective officers, directors, agents and attorneys against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against Buyer, its successors and
assigns, or their respective officers, directors, agents and attorneys due to
(i) any breach by Acquisition Agent of its representations, warranties or
covenants provided for in this Agreement or in the Servicing Agreement, or (ii)
any action or inaction of Acquisition Agent, or through Acquisition Agent, in
any way relating to, or arising out of, this Agreement, any and all Monthly
Report Certificates, or any of the transactions contemplated herein or therein
or the creation or collection or enforcement of any of the Contracts.
Acquisition Agent, however, does not assume the risk of uncollectibility and
does not indemnify Buyer, its successors and assigns, and their respective
officers, directors, agents and attorneys, against, the uncollectibility of all
or any part of the Contracts as against the Obligor thereof, except for
uncollectibility resulting from a violation of state, federal or local laws or
regulations and except as a result of a breach by Acquisition Agent of any
warranty, representation or covenant
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contained herein. The indemnities contained in this Section shall survive any
termination of this Agreement.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. Acquisition Agent may contract with industry-qualified parties for
the performance of any or all of its obligations to acquire and service
Contracts as contemplated and governed herein. Any such contract, however, shall
not relieve Acquisition Agent from liability for its obligations hereunder.
11. MODIFICATIONS AND WAIVERS. No delay on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof, or the exercise of any other right, power
or privilege hereunder. All rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that the parties hereto may
otherwise have at law or in equity. No waiver shall be valid in the absence of
the written and signed consent of the party against which enforcement of such is
sought.
12. NOTICE. Except as otherwise specifically provided herein, any
notice hereunder shall be in writing (including telegraphic or telecopy
communication) and, if mailed, shall be deemed to be given when sent by
registered or certified mail, postage prepaid, or if telegraphed when delivered
to the telegraph company, or if telecopied when transmitted, or otherwise when
delivered in person to the addressee and a receipt given for, in all such
instances addressed to the respective party as follows:
To Acquisition Agent: Transition Leasing Management, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxx, President
To Buyer: Transition Auto Finance IV, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxx, President
or at such other address as the addressees may, by written notice received by
the other party hereto, designate as the appropriate address for purposes of
notice hereunder.
13. AMENDMENT. This Agreement may be amended, supplemented or
modified only with the written consent of the parties hereto.
14. CHOICE OF LAW. THIS AGREEMENT, AND THE VALIDITY AND
ENFORCEABILITY HEREOF, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS.
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15. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
16. ENTIRE AGREEMENT. This instrument embodies the entire
agreement between the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which for all purposes is to be deemed an original.
18. SURVIVAL. All covenants, agreements, undertakings,
indemnities, representations and warranties made herein shall survive both the
execution and the termination hereof, and shall not be affected by any
investigation made by any party.
19. FURTHER ASSURANCES. Acquisition Agent shall furnish to Buyer
at the request of the Buyer such additional information concerning the Contracts
as Buyer may from time to time reasonably request in order to establish
compliance with the terms and conditions of this Agreement, and shall execute,
acknowledge and deliver, or cause to be executed, acknowledged or delivered,
such supplements hereto and such further instruments as may reasonably be
required or appropriate and permitted by law to further express the intention,
or to facilitate the performance of, this Agreement.
TRANSITION LEASING MANAGEMENT, INC.
By:
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Xxx Xxxx, President
TRANSITION AUTO FINANCE IV, INC.
By:
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Xxx Xxxx, President
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MASTER PURCHASING AGREEMENT
EXHIBIT A
QUALIFIED CONTRACT CRITERIA
The following purchasing criteria shall govern all purchases of Leased
Vehicles by Buyer and no Leased Vehicle or Contract shall be acquired that does
not meet the following criteria without specific written permission of
Acquisition Agent and Buyer.
I. VEHICLE CRITERIA.
a. No vehicle that is to become a Leased Vehicle may be purchased by
the Buyer if the vehicle is more than four model years old. No Contract may be
acquired by the Buyer if the Contract is secured by a Leased Vehicle that, at
the time of lease, was more than four model years old.
b. The purchase price payable by the Buyer for each vehicle that is to
become a Leased Vehicle (and thus to become subject to a Contract) shall never
exceed that amount that a Dealer shall receive from bank draft upon the delivery
of the Leased Vehicle.
II. DOWN PAYMENT RATIO. Obligors on all Contracts must have made a payment
on the Contract in cash and/or net trade-in allowance equal to not less than 15%
or, in the case of Leased Vehicles which are four model years old 20%, of the
actual purchase price paid to the dealer who sold the related Leased Vehicle to
the Buyer.
a. Each Contract must have an original term of 48 months or less.
b. Each Contract shall be in the form of industry-standard consumer
automobile lease contracts.
IV. CREDIT CRITERIA.
a. With respect to each Obligor on each Contract, the Acquisition Agent
shall perform all credit checks and reviews that are standard for the motor
vehicle lease industry and shall supply the verification information to the
Buyer at the time of acquisition of each Contract.
b. In addition to the credit checks and reviews set forth in IV.a.
above, each Obligor must satisfy the following criteria:
1. Verifiable home telephone number in Obligor's residence;
2. Residence:
(A) Evidence of purchase, lease or rental agreement in
Obligor's name;
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(B) Stability- Review time lived at last two addresses,
as well as time in area;
3. Employment: At least one year with last two employers;
4. Obligor has verifiable income (check stub, W-2, 1099, tax
return, or bank statements);
5. Ratio of Obligor's net spendable income to gross generally
exceed 60%;
6. References:
(A) Five relatives;
(B) Five personal;
7. Current Texas driver's license;
8. If a previous bankruptcy, must have been discharged at
least one year, or if open, need letter of permission from bankruptcy trustee;
9. Exceptions for first-time buyers.
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