Exhibit 10.1
PURCHASE AGREEMENT
between
THE FINANCE COMPANY, Originator
and
TFC RECEIVABLES CORPORATION V, Purchaser
dated as of March 19, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS ................................................................... 1
SECTION 1.1 General ............................................................. 1
SECTION 1.2 Specific Terms. ..................................................... 2
SECTION 1.3 Usage of Terms ...................................................... 3
SECTION 1.4 Certain References .................................................. 3
SECTION 1.5 No Recourse ......................................................... 3
SECTION 1.6 Action by or Consent of Noteholders and Certificateholders .......... 3
SECTION 1.7 Material Adverse Effect ............................................. 4
ARTICLE II CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY ................. 4
SECTION 2.1 Conveyance of the Receivables and the Other
Conveyed Property. ............................................................ 4
ARTICLE III REPRESENTATIONS AND WARRANTIES ................................................ 6
SECTION 3.1 Representations and Warranties of Originator. ....................... 6
SECTION 3.2 Representations and Warranties of Purchaser ......................... 9
ARTICLE IV COVENANTS OF ORIGINATOR ....................................................... 12
SECTION 4.1 Protection of Title of Purchaser. ................................... 12
SECTION 4.2 Other Liens or Interests ............................................ 13
SECTION 4.3 Costs and Expenses .................................................. 13
SECTION 4.4 Indemnification ..................................................... 14
ARTICLE V REPURCHASES ................................................................... 16
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty ................... 16
SECTION 5.2 Reassignment of Purchased Receivables ............................... 16
SECTION 5.3 Waivers ............................................................. 17
ARTICLE VI MISCELLANEOUS ................................................................. 17
SECTION 6.1 Liability of Originator ............................................. 17
SECTION 6.2 Merger or Consolidation of Originator or Purchaser .................. 17
SECTION 6.3 Limitation on Liability of Originator and Others .................... 18
SECTION 6.4 Originator May Own Notes or Certificates ............................ 18
SECTION 6.5 Amendment ........................................................... 19
i
SECTION 6.6 Notices ......................................................................... 20
SECTION 6.7 Merger and Integration .......................................................... 20
SECTION 6.8 Severability of Provisions ...................................................... 20
SECTION 6.9 Intention of the Parties ........................................................ 20
SECTION 6.10 Governing Law ................................................................... 21
SECTION 6.11 Counterparts .................................................................... 21
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed Property to the Issuer ..... 21
SECTION 6.13 Nonpetition Covenant ............................................................ 21
SECTION 6.14 Third Party Beneficiary ......................................................... 21
SECTION 6.15 Limitation of Liability ......................................................... 22
SCHEDULES
SCHEDULE A Schedule of Receivables
SCHEDULE B Representations and Warranties of Originator
SCHEDULE C The Finance Company Charge-Off Policy
SCHEDULE D Assignment
ii
PURCHASE AGREEMENT
------------------
THIS PURCHASE AGREEMENT, dated as of March 19, 2002, executed between TFC
Receivables Corporation V, a Delaware corporation, as purchaser ("Purchaser"),
and The Finance Company, a Virginia corporation, as Originator ("Originator").
W I T N E S S E T H:
-------------------
WHEREAS, Originator and Purchaser are entering into this Agreement to provide
for, among other things, the acquisition by Purchaser of all of the right, title
and interests of Originator in and to the Receivables and the Other Conveyed
Property on the Closing Date;
WHEREAS, as a precondition to the effectiveness of this Agreement, Originator
(as Servicer), the Purchaser (as Seller), the Trustee, the Trust Collateral
Agent, the Backup Servicer, the Successor Servicer, the Insurer and the Issuer
will enter into the Sale and Servicing Agreement to provide for the servicing of
the Receivables;
WHEREAS, Purchaser is and will be conveying to the Issuer, among other things,
all of Purchaser's rights derived under this Agreement and the Sale and
Servicing Agreement, and Originator and Purchaser each agree that all covenants,
representations, warranties and agreements made by it in this Agreement with
respect to itself or the Receivables shall also be for the benefit of the
Trustee, on behalf of the Noteholders, and the Insurer;
WHEREAS, in connection with the issuance of the Notes, Originator will transfer
the Receivables or other consideration to Purchaser in exchange for such Notes;
WHEREAS, the transfer will be effected by this Agreement and an Assignment
between Originator and Purchaser;
WHEREAS, Purchaser has agreed to purchase from Originator, and Originator,
pursuant to this Agreement, is transferring to Purchaser the Receivables and
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, Purchaser and Originator, 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 Sale and
Servicing Agreement dated as of March 19, 2002, by and among The Finance
Company, in its
capacity as Servicer, TFC Automobile Receivables Trust 2002-1, as Issuer, TFC
Receivables Corporation V, as Seller, Radian Asset Assurance Inc., as Insurer,
Xxxxx Fargo Bank Minnesota, National Association, as Backup Servicer and Trust
Collateral Agent and Xxxxx Fargo Financial America, Inc., as Successor Servicer.
SECTION 1.2 Specific Terms. Whenever used in this Agreement, the
--------------
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" means this Purchase Agreement and all amendments hereof and
supplements hereto.
"Assignment" has the meaning specified in Section 2.1 hereof.
-----------
"Closing Date" means March 19, 2002.
"Collateral" shall have the meaning specified in the Indenture.
"Contracts Purchase Price" shall mean $79,891,334.
"Indemnified Parties" shall have the meaning set forth in Section
-------
4.4(a) hereof.
------
"Indenture Trustee" means Xxxxx Fargo Bank Minnesota, National
Association, and any successor Indenture Trustee appointed and acting pursuant
to the Indenture.
"Issuer" means TFC Automobile Receivables Trust 2002-1.
"Other Conveyed Property" means all money, instruments, rights and
other property that are described in Section 2.1(a), other than the Receivables.
--------------
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee appointed and acting pursuant to the Trust
Agreement.
"Receivables" means the receivables sold and transferred pursuant to
this Agreement and which are listed on the Schedule of Receivables attached
hereto as Schedule A.
"Related Documents" means the Notes, the Certificates, the Custodian
Agreement (if any), the Sale and Servicing Agreement, the Indenture, the Trust
Agreement, the Note Policy, the Servicer Termination Side Letter, the Insurance
Agreement, the Indemnification Agreement, the Note Purchase Agreement, the
Standby Processing Agreement, and the Premium Letter. The Related Documents to
be executed by any party are referred to herein as "such party's Related
Documents" or "its Related Documents" or by a similar expression.
2
"Repurchase Event" means the occurrence of a breach of any of
Originator's representations and warranties set forth in Section 3.1(i) or any
--------------
other event which requires the repurchase of a Receivable by Originator or
Purchaser under Section 3.2 of the Sale and Servicing Agreement.
-----------
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
referred to in Section 1.1 hereof.
"Schedule of Receivables" means the schedule attached hereto as
Schedule A.
"Schedule of Representations" means the Schedule of Representations and
Warranties attached hereto as Schedule B.
"Security Majority" means a majority by Note Principal Balance of the
Noteholders so long as the Notes are outstanding and a majority by principal
amount of the Certificateholders thereafter.
"Trust Collateral Agent" means Xxxxx Fargo Bank Minnesota, National
Association, as trust collateral agent and any successor trust collateral agent
appointed and acting pursuant to the Sale and Servicing Agreement.
SECTION 1.3 Usage of Terms. With respect to all terms used in this
--------------
Agreement, the singular includes the plural and the plural includes the
singular; words imparting any gender include the other gender; references to
"writing" include printing, typing, lithography, and other means of reproducing
words in a visible form; references to agreements and other contractual
instruments include all subsequent amendments thereto or changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement or the Sale and Servicing Agreement; references to Persons include
their permitted successors and assigns; any form of the word "include" shall be
deemed to be followed by the words "without limitation"; "the words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or other
subdivision; and Article, Section, Schedule and Exhibit references, unless
otherwise specified, refer to Articles and Sections of and Schedules and
Exhibits to this Agreement.
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 Monthly Period shall refer
to the opening of business on such day. All references to the last day of a
Monthly Period shall refer to the close of business on such day.
SECTION 1.5 No Recourse. Without limiting the obligations of
-----------
Originator 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
Originator, or of any predecessor or successor of Originator.
3
SECTION 1.6 Action by or Consent of Noteholders and
---------------------------------------
Certificateholders. Whenever any provision of this Agreement refers to action to
------------------
be taken, or consented to, by Noteholders or Certificateholders, such provision
shall be deemed to refer to the Certificateholder or Noteholder, as the case may
be, of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or Certificateholders.
Solely for the purposes of any action to be taken, or consented to, by
Noteholders or Certificateholders, any Note or Certificate registered in the
name of Originator or any Affiliate thereof shall be deemed not to be
outstanding; provided, however, that, solely for the purpose of determining
whether the Indenture Trustee or the Trust Collateral Agent is entitled to rely
upon any such action or consent, only Notes or Certificates which the Owner
Trustee, the Indenture Trustee or the Trust Collateral Agent, respectively,
knows to be so owned shall be so disregarded.
SECTION 1.7 Material Adverse Effect. Whenever used in the Basic
-----------------------
Documents, "Material Adverse Effect" or "material adverse effect" means (i) when
used with respect to any action, event, fact or other matter or thing, means
that such action, event, fact or other matter or thing will, individually or in
the aggregate, have a material adverse effect on (a) the Trust, the Trust
Property or Collateral, (b) the existence, perfection or priority of the
security interests of the Trust Collateral Agent in the Collateral, (c) the
ability of the Trust Collateral Agent on behalf of the Noteholders and the
Insurer to collect on, liquidate, or foreclose against, the Collateral in
accordance with the Indenture, (d) the validity, enforceability, or the
performance of any Person's obligations under, or with respect to, the Basic
Documents, or the validity, enforceability, or performance of any Person's
obligations under, or with respect to, or the payment of, the Notes, (e) the
transactions contemplated by the Basic Documents, (f) the business, operations,
condition (financial or otherwise) or prospects of TFC, Purchaser or the Issuer,
(g) or the interests, rights and/or remedies hereunder, or otherwise with
respect to the Collateral, or the Trust Collateral Agent, the Trustee, the
Insurer or any of the Noteholders (which determination shall be made, in each
case, without giving effect to the existence of the Note Policy) and (ii) when
used in relation to or in connection with any Person also means that such
action, event, fact or other matter or thing shall not, individually or in the
aggregate, have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of such Person.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed
----------------------------------------------------
Property.
--------
(a) Subject to the terms and conditions of this Agreement, Originator
hereby sells, transfers, assigns, and otherwise conveys to Purchaser without
recourse (but without limitation of its obligations in this Agreement), and
Purchaser hereby purchases, all right, title and interest of Originator in and
to:
4
(i) the Receivables and all monies paid or payable thereon after the
Cutoff Date (including amounts due on or before the Cutoff Date but
received by Originator after the Cutoff Date);
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of Originator
in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect to
the Receivables from claims on any Insurance Policies covering Financed
Vehicles or Obligors, including rebates of insurance premiums relating to
the Receivables, and any proceeds from the liquidation of the Receivables;
(iv) all rights of Originator against Dealers pursuant to Dealer
Agreements or Dealer Assignments;
(v) all rights under any Service Contracts on the related Financed
Vehicles;
(vi) the related Receivables Files and any and all other documents
that Originator keeps on file in accordance with its customary procedures
relating to the Receivables, the Obligors or the Financed Vehicles;
(vii) property (including the right to receive future Net Liquidation
Proceeds) that secures a Receivable and that has been acquired by or on
behalf of Purchaser pursuant to liquidation of such Receivable;
(viii) the rights under the Standby Processing Agreement; 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.
It is the intention of Originator and Purchaser that the transfer and assignment
contemplated by this Agreement shall constitute a valid and enforceable sale of
the Receivables and the Other Conveyed Property from Originator to Purchaser,
conveying good title thereto, free and clear of any encumbrances or liens, and
the beneficial interest in and title to the Receivables and the Other Conveyed
Property shall not be part of Originator's estate in the event of the filing of
a bankruptcy petition by or against Originator under any bankruptcy or similar
law. On the Closing Date, Originator shall deliver to Purchaser an assignment in
the form attached hereto as Schedule D with respect to the Receivables and Other
Conveyed Property to be sold (the "Assignment").
5
However, in the event that, notwithstanding the intent of the parties hereto,
the Receivables are held to be property of Originator's estate, or if for any
reason this Agreement is held or deemed not to be a sale, then (a) this
agreement and the Assignment shall also be deemed to be a security agreement
within the meaning of Article 1, Article 8 and Article 9 of the Uniform
Commercial Code as in effect in the State of New York and (b) the transfers of
the Receivables and Other Conveyed Property provided for in this Agreement and
the Assignment shall be deemed to be a grant by Originator to Purchaser of, and
Originator hereby grants to Purchaser, a security interest in all of
Originator's rights, title and interest in and to the Receivables and Other
Conveyed Property. Originator hereby acknowledges that its transfer and
assignment of the Receivables to Purchaser is absolute and irrevocable, without
reservation or retention of any interests whatsoever by Originator.
To the extent that Originator shall retain any files or documentation
(including, without limitation, any Receivables Files), whether in written or
electronic form (collectively, "documents") pertaining to the Receivables, it
shall hold such documents in trust for the benefit of the Indenture Trustee as
the owner thereof. The possession of any such documents pertaining to the
Receivables by Originator (or any Affiliate thereof other than Purchaser) is at
the will of Purchaser and for the sole purpose of servicing such Receivables,
and such retention and possession by Originator (or any Affiliate thereof other
than Purchaser) is in a custodial capacity in its role as Servicer under the
Sale and Servicing Agreement and the Related Documents. The documents retained
by Originator relating to the Receivables shall be segregated from the books and
records of Originator and shall be marked appropriately to reflect clearly the
transfer by Originator of the Receivables to Purchaser.
(b) Simultaneously with the conveyance of the Receivables and the
Other Conveyed Property to Purchaser, Purchaser shall pay or cause to be paid to
or upon the order of Originator the Contracts Purchase Price. An amount equal to
approximately 80.8% of the Contracts Purchase Price shall be paid to Originator
in cash. The remaining approximately 19.2% of the Contracts Purchase Price shall
be deemed to have been paid and returned to Purchaser as a contribution to
capital. The portion of the Contracts Purchase Price to be paid in cash shall be
by wire transfer of immediately available funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Originator.
--------------------------------------------
Originator makes the following representations and warranties as of the date
hereof on which Purchaser 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 Sale and Servicing Agreement. Such
representations are made as of the execution and delivery of this Agreement 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
Purchaser to the Issuer under the Sale and Servicing Agreement. Originator
acknowledges that Purchaser will assign to Issuer all Purchaser's rights under
6
this Agreement and agrees that the Trust Collateral Agent will
thereafter be entitled to enforce this Agreement against Originator in the Trust
Collateral Agent's own name on behalf of the Noteholders.
(i) Schedule of Representations. The representations and warranties
---------------------------
set forth on the Schedule of Representations with respect to the
Receivables are true and correct as of the date hereof.
(ii) Organization and Good Standing. Originator has been duly
------------------------------
organized and is validly existing as a corporation in good standing under
the laws of the Commonwealth of Virginia, and is not organized under the
laws of any other jurisdiction. It has the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, or is proposed to be
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire, own and sell the Receivables and the Other Conveyed
Property to be transferred to Purchaser. The Originator is not organized
under the laws of any other State.
(iii) Due Qualification. Originator is duly qualified to do business
-----------------
as a foreign corporation and is in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property or the conduct of its business,
including without limitation, the acquisition and sale of the Receivables,
requires such qualification.
(iv) Power and Authority. Originator has the power and authority to
-------------------
execute and deliver this Agreement and its Related Documents and to perform
its obligations under this Agreement and its Related Documents; Originator
has full power and authority to sell and assign the Receivables and the
Other Conveyed Property to be sold and assigned to and deposited with
Purchaser hereunder and has duly authorized such sale and assignment to
Purchaser by all necessary corporate action; and the execution, delivery
and performance of this Agreement and Originator's Related Documents have
been duly authorized by Originator by all necessary corporate action.
(v) Valid Sale; Binding Obligations. This Agreement and Originator's
-------------------------------
Related Documents have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Receivables and the Other
Conveyed Property to Purchaser, enforceable against Originator and
creditors of and purchasers from Originator and as a result of such sale,
transfer and assignment, Purchaser shall have a valid, first priority
perfected ownership interest in such Receivables and the Other Conveyed
Property. This Agreement and Originator's Related Documents constitute
legal, valid and binding obligations of Originator enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
7
(vi) No Violation. The consummation of the transactions contemplated
------------
by this Agreement and the Related Documents and the fulfillment of the
terms of this Agreement and the Related Documents shall not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, the
articles of incorporation or bylaws of Originator, or any indenture,
agreement, mortgage, deed of trust or other instrument to which Originator
is a party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement, the Sale and Servicing Agreement and the Indenture and
any instruments, certificates and other documents executed pursuant to the
provisions thereof), or violate any law, order, rule or regulation
applicable to Originator of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over Originator or any of its properties.
(vii) No Proceedings. There are no proceedings or investigations
--------------
pending or, to Originator's knowledge, after due inquiry, threatened
against Originator, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over Originator or its properties (i) asserting the invalidity
of this Agreement or any of the Related Documents, (ii) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the business, the operations, the condition (financial or otherwise)
or the prospects of Originator or affect the performance by Originator of
its obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents, (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Sale and Servicing Agreement or (v) that have a
material adverse effect on the Receivables.
(viii) Chief Executive Office. The chief executive office of
----------------------
Originator is located at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000X, Xxxxxxx,
Xxxxxxxx 00000.
(ix) No Consents. Originator is not required to obtain the consent
-----------
of any other party or any consent, license, approval or authorization, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
(x) Approvals. All approvals, authorizations, consents, orders or
---------
other actions of any person, corporation or other organization, or of any
court, governmental agency or body or official, required in connection with
the execution and delivery by Originator of this Agreement and the
consummation of the transactions contemplated hereby or will be taken or
obtained on or prior to the Closing Date.
8
(xi) Name. The legal name of Originator is as set forth in this
----
Agreement, Originator has not changed its name during the six years prior
to the Closing Date and does not have any trade names, fictitious names,
assumed names or "doing business" names.
(xii) Solvency. Originator is solvent and will not become insolvent
--------
after giving effect to the transactions contemplated by the Basic
Documents. Originator is paying its debts as they become due and, after
giving effect to the transactions contemplated by the Basic Documents, will
have adequate capital to conduct its business.
(xiii) Pension Plan. All pension or profit sharing plans of Originator
------------
have been fully funded in accordance with applicable obligations.
(xiv) Substantive Consolidation. Originator, in its individual
-------------------------
capacity and as Servicer confirms that the statement contained under
"assumptions of fact" in the opinion of Weil, Gotshal & Xxxxxx LLP
regarding substantive consolidation matters delivered to Originator on the
Closing Date are true and correct with respect to itself, and that
Originator will comply with any covenants or obligations assumed to be
complied with by it therein as if such covenants and obligations were set
forth herein.
(xv) Sole Stockholder. Originator is the sole stockholder of
----------------
Purchaser, and all of the shares of stock have been fully paid for and are
owned of record, free and clear of all mortgages, assignments, pledges and
security interests, other than the pledge under the Stock Pledge Agreement.
(xvi) Composition of Receivables. Approximately 10% of the
--------------------------
Receivables are Auto Centers Product, approximately 6.05% of the
Receivables are Bulk Product, and approximately 83.95% of the Receivables
are Point-of-Sale Product.
SECTION 3.2 Representations and Warranties of Purchaser.
-------------------------------------------
Purchaser makes the following representations and warranties, on which
Originator relies in selling, assigning, transferring and conveying the
Receivables and the Other Conveyed Property to Purchaser hereunder. Such
representations are made as of the execution and delivery of this
Agreement, 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 Purchaser to the Issuer under the Sale
and Servicing Agreement. The Purchaser is not organized under the laws of
any other State.
(i) Organization and Good Standing. Purchaser has been duly
------------------------------
organized and is validly existing and in good standing as a corporation
under the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and has, full power, authority
9
and legal right to acquire and own the Receivables and the Other Conveyed
Property, and to transfer the Receivables and the Other Conveyed Property
to the Issuer pursuant to the Sale and Servicing Agreement.
(ii) Due Qualification. Purchaser is duly qualified to do business as a
-----------------
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect Purchaser's ability to acquire the
Receivables or the Other Conveyed Property, and to transfer the Receivables
and the Other Conveyed Property to the Issuer pursuant to the Sale and
Servicing Agreement, or the validity or enforceability of the Receivables
and the Other Conveyed Property or to perform Purchaser's obligations
hereunder and under Purchaser's Related Documents.
(iii) Power and Authority. Purchaser has the power, authority and legal
-------------------
right to execute and deliver this Agreement and to carry out the terms
hereof and to acquire the Receivables and the Other Conveyed Property
hereunder; and the execution, delivery and performance of this Agreement
and all of the documents required pursuant hereto have been duly authorized
by Purchaser by all necessary action.
(iv) No Consent Required. Purchaser is not required to obtain the
-------------------
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement and the Related Documents, except for such as
have been obtained, effected or made.
(v) Binding Obligation. This Agreement constitutes a legal, valid and
------------------
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(vi) No Violation. The execution, delivery and performance by Purchaser
------------
of this Agreement, the consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms
of this Agreement and the Related Documents do not and will not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or bylaws of Purchaser, or conflict with or
breach any of the terms or provisions of, or constitute (with or without
notice or lapse of time) a default under, any indenture, agreement,
mortgage, deed of trust or other instrument to which Purchaser is a party
or by which Purchaser is bound or to which any of its properties are
subject, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than the Sale and
Servicing Agreement, and the Indenture and any instruments, certificates
and other documents executed pursuant to the
10
provisions thereof), or violate any law, order, rule or regulation,
applicable to Purchaser or its properties, of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over Purchaser or any of its
properties.
(vii) No Proceedings. There are no proceedings or investigations
--------------
pending, or, to the knowledge of Purchaser, threatened against Purchaser,
before any court, regulatory body, administrative agency, or other tribunal
or governmental instrumentality having jurisdiction over Purchaser or its
properties: (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the business, the operations, the condition (financial
or otherwise) or the prospects of Purchaser or the performance by Purchaser
of its obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents or (iv) that may adversely affect
the federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property hereunder or
the transfer of the Receivables and the Other Conveyed Property to the
Issuer pursuant to the Sale and Servicing Agreement.
(viii) Approvals. All approvals, authorizations, consents, licenses,
---------
orders or other actions of any person, corporation or other organization,
or of any court, governmental agency or body or official, required in
connection with the execution and delivery by Purchaser of this Agreement
and the consummation of the transactions contemplated hereby, including,
without limitation, the purchase of the Receivables, has been taken, or
will be taken or obtained on or prior to the Closing Date.
(ix) Separateness. Since the formation of Purchaser (a) Purchaser
------------
has incurred no debt other than trade payables and expense accruals in
connection with its operations in the normal course of business; (b)
Purchaser has maintained its books and records separate from the books and
records of any other entity, has maintained separate bank accounts and no
funds of Purchaser have been commingled with funds of any other entity; (c)
Purchaser has kept in full effect its existence, rights and franchises as a
corporation under the laws of the State of Delaware, and has obtained and
preserved its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Receivables; (d) Purchaser
does not own any subsidiary and has not loaned or advanced any moneys to,
or made an investment in, any Person; (e) Purchaser has not made any
capital expenditures; (f) Purchaser has not guaranteed (directly or
indirectly), except with respect to its obligation to repurchase
Receivables pursuant to the terms of the Sale and Servicing Agreement,
endorsed or otherwise become contingently liable (directly or indirectly)
for the obligations of, or owned or purchased any stock, obligations or
securities of or any other interest in, or made
11
any capital contribution to, any Person; and (g) Purchaser has not engaged
in any other action that bears on whether the separate legal identity of
Purchaser will be respected and, without limitation of the foregoing,
Purchaser has not (1) held itself out as being liable for the debts of any
other party, (2) acted other than in its corporate name and through its
duly authorized officers or agents, and (3) created, incurred, assumed, or
in any manner become liable in respect of any indebtedness except trade
payables and expense accruals incurred in the ordinary course of business
and which are incidental to its business purpose.
In the event of any breach of a representation and warranty made by Purchaser
hereunder, Originator 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,
Certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust or similar vehicle formed by Purchaser, have been paid in
full. Originator and Purchaser agree that damages will not be an adequate remedy
for such breach and that this covenant may be specifically enforced by
Purchaser, Issuer or by the Indenture Trustee on behalf of the Noteholders and
Owner Trustee on behalf of the Certificateholders.
ARTICLE IV
COVENANTS OF ORIGINATOR
-----------------------
SECTION 4.1 Protection of Title of Purchaser.
--------------------------------
(a) At or prior to the Closing Date, Originator shall have filed
or caused to be filed a UCC-1 financing statement, naming Originator as seller
or debtor, naming Purchaser as purchaser or secured party and describing the
Receivables and the Other Conveyed Property being sold by it to Purchaser as
collateral, with the office of the Secretary of State of the Commonwealth of
Virginia and in such other locations as Purchaser shall have required and as
shall be necessary to perfect the security interest of Purchaser in the
collateral. From time to time thereafter, Originator shall file such additional
financing statements and cause to be filed such continuation statements, all in
such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of Purchaser under this Agreement, of the
Issuer under the Sale and Servicing Agreement and of the Trust Collateral Agent
under the Indenture in the Receivables and the Other Conveyed Property and in
the proceeds thereof. Originator shall deliver (or cause to be delivered) to
Purchaser, the Trust Collateral Agent and the Insurer file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as available
following such filing. In the event that Originator fails to perform its
obligations under this subsection, Purchaser, Issuer or the Trust Collateral
Agent may do so, at the expense of Originator.
(b) Originator shall not change its name, identity, jurisdiction
of organization or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed by Originator (or
by Purchaser, Issuer or the Trust Collateral Agent on behalf of Originator) in
accordance with paragraph (a)
12
above misleading within the meaning of ss. 9-506 of the UCC, unless it shall
have given Purchaser, Issuer and the Trust Collateral Agent at least 60 days'
prior written notice thereof, and shall have provided evidence of appropriate
amendments to all previously filed financing statements and continuation
statements acceptable to the Controlling Party. Originator shall not become or
seek to become organized under the laws of more than one jurisdiction.
(c) Originator shall give Purchaser, the Issuer, the Insurer (so long
as an Insurer Default shall not have occurred and be continuing) and the Trust
Collateral Agent at least 60 days' prior written notice of any relocation of its
jurisdiction of organization, of its principal place of business or chief
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and
Originator shall provide evidence of appropriate filings required by the UCC
acceptable to the Controlling Party. Originator shall at all times maintain its
jurisdiction of incorporation and each office from which it services Receivables
and its principal place of business and chief executive office within the United
States of America.
(d) Prior to the Closing Date, Originator has maintained accounts and
records as to each Receivable accurately and in sufficient detail to permit (i)
the reader thereof to know at any time as of or prior to the Closing Date the
status of such Receivable, including payments and recoveries made and payments
owing (and the nature of each) and (ii) reconciliation between payments or
recoveries on (or with respect to) each Receivable and the Principal Balance as
of the Closing Date. Originator shall maintain its computer systems so that,
from and after the time of sale under this Agreement of the Receivables to
Purchaser, and the conveyance of the Receivables by Purchaser to the Issuer,
Originator's master computer records (including archives) that shall refer to a
Receivable indicate clearly that such Receivable has been sold to Purchaser and
has been conveyed by Purchaser to the Issuer. Indication of the Issuer's
ownership of a Receivable shall be deleted from or modified on Originator's
computer systems when, and only when, the Receivable shall become a Purchased
Receivable or shall have been paid in full.
(e) If at any time Originator shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any motor vehicle receivables
to any prospective purchaser, lender or other transferee, Originator shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that, if they
shall refer in any manner whatsoever to any Receivable (other than a Purchased
Receivable), shall indicate clearly that such Receivable has been sold to
Purchaser, sold by Purchaser to Issuer, and is owned by the Issuer.
SECTION 4.2 Other Liens or Interests. (a) Except for the conveyances
------------------------
hereunder, Originator will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on the
Receivables or the Other Conveyed Property or any interest therein, and
Originator shall defend the right, title, and interest of Purchaser and the
Issuer in and to the Receivables and the Other Conveyed Property against all
claims of third parties claiming through or under Originator.
13
Originator shall notify Purchaser, the Trustee and the Insurer promptly after
becoming aware of any Lien on any Receivable.
(b) Originator will perform the transactions contemplated by this
Agreement in a manner that is consistent with Purchaser's ownership interest in
the Receivables and Originator will respond to all third party inquiries
confirming the transfer of the Receivables and the Other Conveyed Property to
Purchaser.
(c) Originator will not make any material amendments to its
Charge-Off Policy without obtaining the prior written consent of the Controlling
Party and giving prior written notice of such amendment to the Rating Agency.
SECTION 4.3 Costs and Expenses. Originator shall pay all reasonable
------------------
costs and disbursements in connection with the performance of its obligations
hereunder and under its Related Documents.
SECTION 4.4 Indemnification.
---------------
(a) Originator shall defend, indemnify and hold harmless Purchaser,
the Issuer, the Trust Collateral Agent, the Indenture Trustee, the Insurer, the
Owner Trustee, the Noteholders and the Certificateholders (collectively, the
"Indemnified Parties") from and against any and all costs, expenses, losses,
damages, claims, and liabilities, arising out of or resulting from any breach of
any of Originator's representations and warranties contained herein.
(b) Originator shall defend, indemnify and hold harmless each
Indemnified Party from and against any and all costs, expenses, losses, damages,
claims, and liabilities, arising out of or resulting from the use, ownership or
operation by Originator or any affiliate thereof of a Financed Vehicle.
(c) Originator shall defend, indemnify and hold harmless each
Indemnified Party from and against any and all costs, expenses, losses, damages,
claims and liabilities arising out of or resulting from any action taken, or
failed to be taken, by it in respect of any portion of the Receivables other
than in accordance with this Agreement or the Sale and Servicing Agreement.
(d) Originator agrees to pay, and shall defend, indemnify and hold
harmless each Indemnified Party from and against any taxes that may at any time
be asserted against such persons with respect to the transactions contemplated
in this Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege, or
license taxes (but not including any taxes asserted with respect to, and as of
the date of, the sale, transfer and assignment of the Receivables and the Other
Conveyed Property to Purchaser and by Purchaser to the Issuer or the issuance
and original sale of the Notes or the Certificates, or asserted with respect to
ownership of the Receivables and Other Conveyed Property which shall be
indemnified by Originator pursuant to clause (e) below, or federal, state or
other income taxes, arising out of distributions on the Notes or the
Certificates or transfer taxes arising in connection with the transfer of the
Notes or the Certificates) and costs and expenses in
14
defending against the same, arising by reason of the acts to be performed by
Originator under this Agreement or imposed against such Persons.
(e) Originator agrees to pay, and to indemnify, defend and hold
harmless each Indemnified Party from, any taxes which may at any time be
asserted against such Persons with respect to, and as of the date of, the
conveyance or ownership of the Receivables or the Other Conveyed Property
hereunder and the conveyance or ownership of the Receivables and the Other
Conveyed Property under the Sale and Servicing Agreement or the issuance and
original sale of the Notes or the Certificates, including, without limitation,
any sales, gross receipts, personal property, tangible or intangible personal
property, privilege or license taxes (but not including any federal or other
income taxes, including franchise taxes, arising out of the issuance and
ownership of the Notes or the transactions contemplated hereby or transfer taxes
arising in connection with the transfer of the Notes or the Certificates) and
costs and expenses in defending against the same, arising by reason of the acts
to be performed by Originator under this Agreement or imposed against such
Persons.
(f) Originator shall defend, indemnify, and hold harmless each
Indemnified Party from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon any of such Persons
through the negligence, willful misfeasance, or bad faith of Originator in the
performance of its duties under this Agreement or by reason of reckless
disregard of Originator's obligations and duties under this Agreement.
(g) Originator shall indemnify, defend and hold harmless each
Indemnified Party from and against any and all costs, claims, damages and any
loss, liability or expense incurred by reason of the violation by Originator of
federal or state securities laws in connection with the registration or the sale
of the Notes or the Certificates.
(h) Originator shall indemnify, defend and hold harmless each
Indemnified Party from and against any loss, liability or expense imposed upon,
or incurred by, any of such Persons as result of the failure of any Receivable,
or the sale of the related Financed Vehicle, to comply with all requirements of
applicable law.
(i) Originator shall defend, indemnify, and hold harmless Purchaser
from and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or performance of
Originator's trusts and duties as Servicer under the Sale and Servicing
Agreement, except to the extent that such cost, expense, loss, claim, damage, or
liability shall be due to the willful misfeasance, bad faith, or negligence
(except for errors in judgment) of Purchaser.
Indemnification under this Section 4.4 shall include reasonable fees and
expenses of counsel and expenses of litigation incurred by the Noteholders, the
Trust Collateral Agent, Insurer or the Trustee in connection with enforcement of
this Agreement and shall
15
survive termination of the Notes and the Certificates. The indemnity obligations
hereunder shall be in addition to any obligation that Originator may otherwise
have.
16
ARTICLE V
REPURCHASES
-----------
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty. Upon
-------------------------------------------------
the occurrence of a Repurchase Event, Originator 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 as promptly
as possible but in no event later than by the last day of the first full
calendar month following the discovery by Originator or receipt by Originator of
notice of such breach and, simultaneously with the repurchase of the Receivable,
Originator shall deposit the Purchase Amount in full, without deduction or
offset, to the Collection Account, pursuant to Section 3.2 of the Sale and
Servicing Agreement. It is understood and agreed that, except as set forth in
Section 6.1 hereof, the obligation of Originator to repurchase any Receivable,
as to which a breach occurred and is continuing, shall, if such obligation is
fulfilled, constitute the sole remedy against Originator for such breach
available pursuant to this Agreement (subject to the next paragraph of this
Section 5.1) to Purchaser, the Issuer, the Insurer, the Noteholders, the
Certificateholders, the Trust Collateral Agent on behalf of the Noteholders or
the Owner Trustee on behalf of Certificateholders. The provisions of this
Section 5.1 are intended to grant the Issuer and the Trust Collateral Agent a
direct right against Originator to demand performance hereunder, and in
connection therewith, Originator waives any requirement of prior demand against
Purchaser with respect to such repurchase obligation. Any such repurchase shall
take place in the manner specified in Section 3.2 of the Sale and Servicing
Agreement. Notwithstanding any other provision of this Agreement or the Sale and
Servicing Agreement to the contrary, the obligation of Originator under this
Section shall not terminate upon a termination of Originator as Servicer under
the Sale and Servicing Agreement and shall be performed in accordance with the
terms hereof notwithstanding the failure of the Servicer or Purchaser to perform
any of their respective obligations with respect to such Receivable under the
Sale and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by Originator, Originator shall indemnify
the Issuer, the Trust Collateral Agent, the Indenture Trustee, the Owner
Trustee, the Insurer, the Noteholders and the Certificateholders against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them as a result of third party claims arising out of the events or facts
giving rise to such Repurchase Events.
SECTION 5.2 Reassignment of Purchased Receivables. Upon deposit in the
-------------------------------------
Collection Account of the Purchase Amount of any Receivable repurchased by
Originator under Section 5.1 hereof, Purchaser shall take such steps as may be
reasonably requested by Originator in order to sell, assign, convey and
otherwise transfer to Originator all right, title and interest of each of
Purchaser and the Issuer in and to such Receivable and all security and
documents and all Other Conveyed Property conveyed to
17
Purchaser or 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 Purchaser or the
Issuer. Such assignment shall be a sale and assignment outright, and not for
security. If, following the reassignment of a Purchased Receivable, in any
enforcement suit or legal proceeding it is held that Originator 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, Purchaser shall, at the expense
of Originator, take such steps as Originator deems reasonably necessary to
enforce the Receivable, including bringing suit in Purchaser's or in the
Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of Purchaser, or
-------
the Issuer as assignee of Purchaser, 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 Originator. Originator shall be liable in
-----------------------
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Originator and the representations and warranties of
Originator.
SECTION 6.2 Merger or Consolidation of Originator or Purchaser. Any
--------------------------------------------------
corporation or other entity (i) into which Originator or Purchaser may be merged
or consolidated, (ii) resulting from any merger or consolidation to which
Originator or Purchaser is a party or (iii) succeeding to the business of
Originator or Purchaser, in the case of Purchaser, which corporation has a
certificate of incorporation containing provisions relating to limitations on
business and other matters substantively identical to those contained in
Purchaser's certificate of incorporation, provided that in any of the foregoing
cases such corporation shall execute an agreement of assumption to perform every
obligation of Originator or Purchaser, as the case may be, under this Agreement
and, whether or not such assumption agreement is executed, shall be the
successor to Originator or Purchaser, as the case may be, hereunder (without
relieving Originator or Purchaser of its responsibilities hereunder, if it
survives such merger or consolidation) without the execution or filing of any
document or any further action by any of the parties to this Agreement.
Notwithstanding the foregoing, Purchaser shall not merge or consolidate with any
other Person or permit any other Person to become the successor to Purchaser's
business without the prior written consent of the Controlling Party. Originator
or Purchaser shall promptly inform the other party, the Issuer, the Trust
Collateral Agent, the Owner Trustee and the Controlling Party of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (w) the Rating Agency Condition shall have been satisfied,
(x) immediately after giving effect to such transaction, no representation or
warranty made pursuant to Sections 3.1 and 3.2 of this Agreement shall have been
breached (for purposes hereof, such
18
representations and warranties shall speak as of the date of the
consummation of such transaction) and no event that, after notice or lapse of
time, or both, would become an event of default under the Insurance Agreement,
shall have occurred and be continuing, (y) Originator or Purchaser, as
applicable, shall have delivered written notice of such consolidation, merger or
purchase and assumption to the Rating Agency prior to the consummation of such
transaction and shall have delivered to the Issuer, the Controlling Party and
the Trust Collateral Agent an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 6.2 and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have been
complied with, and (z) Originator or Purchaser, as applicable, shall have
delivered to the Issuer, the Insurer and the Trust Collateral Agent an Opinion
of Counsel, stating, in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto have been filed
that are necessary to preserve and protect the interest of the Issuer and the
Trust Collateral Agent in the Receivables and reciting the details of the
filings or (B) no such action shall be necessary to preserve and protect such
interest.
SECTION 6.3 Limitation on Liability of Originator and Others.
------------------------------------------------
Originator and any director, officer, employee or agent may rely in good faith
on the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement. Originator shall not be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its obligations under this
Agreement or its Related Documents and that in its opinion may involve it in any
expense or liability.
SECTION 6.4 Originator May Own Notes or Certificates. Subject to the
----------------------------------------
provisions of the Sale and Servicing Agreement, the Trust Agreement, the
Indenture and the Insurance Agreement, Originator and any Affiliate of
Originator may in its individual or any other capacity become the owner or
pledgee of Notes or Certificates with the same rights as it would have if it
were not Originator or an Affiliate thereof.
SECTION 6.5 Amendment.
---------
(a) This Agreement may be amended by Originator and Purchaser with
the prior written consent of the Insurer (so long as an Insurer Default shall
not have occurred and be continuing and (a) there are Notes outstanding, (b) any
amounts due to the Insurer remain unpaid or (c) the Note Policy has not expired
in accordance with its terms) and with prior written notice to the Rating Agency
but without the consent of the Trust Collateral Agent, the Owner Trustee or any
of the Certificateholders or Noteholders (i) to cure any ambiguity or (ii) to
correct any provisions in this Agreement; provided, however, that such action
shall not adversely affect in any material respect the interests of any
Certificateholder or Noteholder.
(b) This Agreement may also be amended from time to time by
Originator and Purchaser, with the prior written consent of the Insurer (so long
as the Insurer is the Controlling Party), with prior written notice to the
Rating Agency and with the consent of the Trust Collateral Agent and, if
required, a Security Majority in
19
accordance with the Sale and Servicing Agreement, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, or of modifying in any manner the rights of the
Certificateholders or Noteholders; provided, however, Originator provides the
Trust Collateral Agent with an Opinion of Counsel, (which may be provided by
Originator's internal counsel) that no such amendment shall increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that shall be required to be made on
any Note or Certificate.
(c) It shall not be necessary for the consent of Certificateholders
or Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders or
Noteholders shall be subject to such reasonable requirements as the Trust
Collateral Agent may prescribe, including the establishment of record dates. The
consent of a Holder of a Certificate or a Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Certificate or Note and
of any Certificate or Note issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made upon
the Certificate or Note.
Prior to the execution of any amendment to this Agreement, the
Indenture Trustee or the Trust Collateral Agent, if requested, shall be entitled
to receive and rely upon an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement and that all
conditions precedent to the execution and delivery of such amendment have been
satisfied.
SECTION 6.6 Notices. All demands, notices and communications to
-------
Originator, Purchaser, the Insurer or the Noteholders hereunder shall be in
writing, personally delivered, or sent by telecopier (subsequently confirmed in
writing), reputable overnight courier or mailed by certified mail, return
receipt requested, and shall be deemed to have been given upon receipt (a) in
the case of Originator, to The Finance Company, Attention: President, 0000 Xxxxx
Xxxx Xxxx, Xxxxx 000X, Xxxxxxx, Xxxxxxxx 00000, (b) in the case of Purchaser, to
TFC Receivables Corporation V, Attention: President, 0000 Xxxxx Xxxx Xxxx, Xxxxx
000X, Xxxxxxx, Xxxxxxxx 00000, (c) in the case of the Insurer, to Radian Asset
Assurance Inc., 000 Xxxxxxx Xxxxxx. Xxx Xxxx, XX 00000-0000, Attention: Chief
Risk Officer, or (d) in the case of the Initial Purchaser, to Westdeutsche
Landesbank Girozentrale, London Branch, Woolgate Exchange, 00 Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx, Attention: Xxxx Xxxx, with a copy to WestLB
Panmure Securities Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxx or such other address as shall be designated by a
party in a written notice delivered to the other party or to the Issuer, Owner
Trustee or the Trust Collateral Agent, as applicable.
SECTION 6.7 Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement and Related Documents set forth the entire
20
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.8 Severability of Provisions. If any one or more of the
--------------------------
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9 Intention of the Parties. The execution and delivery of
------------------------
this Agreement shall constitute an acknowledgment by Originator and Purchaser
that they intend that the assignment and transfer herein contemplated constitute
a sale and assignment outright, and not for security, of the Receivables and the
Other Conveyed Property, conveying good title thereto free and clear of any
Liens, from Originator to Purchaser, and that the Receivables and the Other
Conveyed Property shall not be a part of Originator's estate in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of or with respect to Originator. In the
event that such conveyance is determined to be made as security for a loan made
by Purchaser, the Issuer, the Noteholders or the Certificateholders to
Originator, the parties intend that Originator shall have granted to Purchaser a
first priority, perfected security interest in all of Originator's right, title
and interest in and to the Receivables and the Other Conveyed Property conveyed
pursuant to Section 2.1 hereof, and that this Agreement shall constitute a
security agreement under applicable law and shall have granted such security
interest.
SECTION 6.10 Governing Law. This Agreement shall be construed in
-------------
accordance with the laws of the State of New York, including Section 5-1401 of
the General Obligations Laws but otherwise without regard to the principles of
conflicts of laws thereof and the obligations, rights and remedies of the
parties under this Agreement shall be determined in accordance with such laws.
SECTION 6.11 Counterparts. For the purpose of facilitating the
------------
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed
----------------------------------------------------
Property to the Issuer. Originator acknowledges that Purchaser intends, pursuant
----------------------
to the 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 date hereof. Originator acknowledges and consents to such conveyance and
pledge and waives any further notice thereof and covenants and agrees that the
representations and warranties of Originator contained in this Agreement and the
rights of Purchaser hereunder are
21
intended to benefit the Insurer, the Issuer, the Owner Trustee, the
Trust Collateral Agent, the Noteholders and the Certificateholders. In
furtherance of the foregoing, Originator covenants and agrees to perform its
duties and obligations hereunder, in accordance with the terms hereof for the
benefit of the Insurer, the Issuer, the Owner Trustee, the Trust Collateral
Agent, the Noteholders and the Certificateholders and that, notwithstanding
anything to the contrary in this Agreement, Originator shall be directly liable
to the Issuer, the Insurer, the Owner Trustee, the Trust Collateral Agent, the
Noteholders and the Certificateholders (notwithstanding any failure by the
Servicer, or Purchaser to perform their respective duties and obligations
hereunder or under Related Documents) and that the Trust Collateral Agent may
enforce the duties and obligations of Originator under this Agreement against
Originator for the benefit of the Insurer, the Owner Trustee, the Trust
Collateral Agent, the Noteholders and the Certificateholders.
SECTION 6.13 Nonpetition Covenant. Neither Purchaser nor Originator
--------------------
shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against Purchaser
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 Purchaser or the Issuer or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of Purchaser or the Issuer.
SECTION 6.14 Third Party Beneficiary. The Insurer, the Noteholders and
-----------------------
the Trustee, and each of their respective successors and assigns, shall be a
third party beneficiary to the provisions of this Agreement, and the Insurer
shall be entitled to rely upon and directly enforce such provisions of this
Agreement so long as no Insurer Default shall have occurred and be continuing
and (a) there are Notes outstanding, (b) any amounts due to the Insurer remain
unpaid or (c) the Note Policy has not expired in accordance with its terms.
Except as expressly stated otherwise herein, any right of the Insurer to direct,
appoint, consent to, approve of, or take any action under this Agreement, shall
be a right exercised by the Insurer in its reasonable discretion. The Insurer
may disclaim any of its rights and powers under this Agreement (but not its
duties and obligations under the Note Policy) upon delivery of a written notice
to the Trust Collateral Agent. Nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust Property or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 6.15 Limitation of Liability. It is expressly understood and
-----------------------
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as Owner
Trustee of the Issuer under the Trust Agreement, in the exercise of the powers
and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Issuer, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company individually or personally, to perform any
covenant either expressed or implied contained herein, all
22
such liability, if any, being expressly waived by the parties to
this Agreement and by any person claiming by, through or under them and (d)
under no circumstances shall Wilmington Trust Company be personally liable for
the payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaking by the Issuer under this Agreement or any related documents.
[Signature Page Follows]
23
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to be duly
executed by their respective officers as of the day and year first above
written.
THE FINANCE COMPANY, as Originator
By_________________________________________________
Name: Xxxxxx X. Tray
Title: President
TFC RECEIVABLES CORPORATION V, as Purchaser
By_________________________________________________
Name: Xxxxxx X. Tray
Title: President
Acknowledged and Accepted:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee and Trust Collateral Agent
By_________________________________________________
Name:
Title:
[Signature Page for Purchase Agreement]
SCHEDULE A
----------
SCHEDULE OF RECEIVABLES
[Distributed at Closing]
SCHEDULE B
----------
REPRESENTATIONS AND WARRANTIES OF ORIGINATOR
1. Characteristics of Receivables. Each Receivable (A) was originated by a
------------------------------
Dealer for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business in accordance with either (i) TFC's credit policies
or (ii) credit policies which were reviewed by TFC prior to a purchase of a
Receivable by TFC and such Dealer had all necessary licenses and permits to
originate Receivables in the state where such Dealer was located, was fully
and properly executed by the parties thereto was purchased by TFC from such
Dealer under an existing Dealer Agreement or pursuant to a Dealer
Assignment, was validly assigned by such Dealer to TFC pursuant to the
Dealer Agreement or the Dealer Assignment, was validly assigned by TFC to
the Purchaser, (B) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for
realization against the collateral security, (C) is a Receivable which
provides for level Scheduled Receivable Payments (provided that the payment
in the first Monthly Period and the payment in the final Monthly Period of
the Receivable may be minimally different from the normal period and level
payment) which, if made when due, shall fully amortize the Amount Financed
over the original term, (D) provides for, in the event that the related
Contract is prepaid, a prepayment that fully pays the principal balance of
such related Contract and includes accrued but unpaid interest through the
date of prepayment at a rate at least equal to the annual percentage rate,
(E) has not been amended or rewritten, or collections with respect to which
deferred or waived, other than as evidenced in the Receivable File relating
thereto, (F) that is a military Receivable, has an original term of eleven
(11) to forty-eight (48) months or that is a civilian Receivable, has an
original term of eleven (11) to sixty (60) months, (G) has been acquired by
TFC and, if a monthly pay contract, is not more than thirty (30) days
delinquent and the related Obligor does not have other Receivables owing to
TFC that are more than thirty (30) days delinquent or defaulted, (H) has
been acquired by TFC and, if a non-monthly-pay contract, is not more than
thirty (30) days delinquent nor is it defaulted based on TFC's methodology
in effect for converting non-monthly pay Receivables to a daily delinquency
equivalent as such methodology is described in Schedule 1 of the Insurance
Agreement nor does the Obligor have other Receivables owing to TFC that are
more than thirty (30) days delinquent or defaulted, (I) has a final
Scheduled Receivable Payment due no less than eight (8) months before the
Final Scheduled Payment Date, (J) has an annual percentage rate of not less
than 9.99%, (K) has a remaining Principal Balance of not more than $20,064,
(L) has not been extended beyond its original term, except in keeping with
TFC's stated policies and procedures for deferments contained in the August
1, 1992 memo attached as part of Exhibit E to the Sale and Servicing
Agreement, which allows for up to two, one-month deferments in any twelve
month period not to exceed up to four, one-month deferments over the life
of a monthly-pay contract, (M) satisfies, the requirements under TFC's
Credit Guidelines as in effect on August 31, 1999, in all material respects
(except with respect to (a) changes associated with certain memorandums
previously delivered to the Insurer relating to allowing total loss
protection instead of comprehensive vehicle insurance and (b) a new lending
program called, Special E4
26
Program) including but not limited to, down-payment provisions, (N) was
purchased through an approved Dealer of TFC, (O) is due from a U.S. citizen
in the case of military Receivables and a U.S. resident in the case of
civilian Receivables and is denominated in U.S. dollars, (P) meets, in all
material respects, all applicable requirements of federal, state, and local
laws and regulations, and (Q) is not subject to any right of setoff by the
Obligor.
2. No Fraud or Misrepresentation. Each Receivable (A) was originated by a
-----------------------------
Dealer, (B) was sold by the Dealer to TFC and (C) was sold by TFC to the
Purchaser without any fraud or misrepresentation in any case.
3. Compliance with Law. All requirements of applicable federal, state and
-------------------
local laws, and regulations thereunder (including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxx-Xxxxxxxx Warranty
Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and
- -
Sailors' Civil Relief Act of 1940, as amended, each applicable - - state
Motor Vehicle Retail Installment Sales Act, and state adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit laws and equal credit opportunity and disclosure laws) in
respect of the Receivables, the Financed Vehicles and the sale of any
physical damage, credit life and credit accident and health insurance and
any extended service contracts, have been complied with in all material
respects by TFC and each Receivable, the sale of the Financed Vehicle
evidenced by each Receivable and the sale of any physical damage, credit
life and credit accident and health insurance and any extended service
contracts complied at the time it was originated or made in all material
respects and now complies in all material respects with all applicable
legal and regulatory requirements.
4. Origination. Each Point-of-Sale Receivable was originated in the United
-----------
States and materially conforms to all requirements of the "Dealer
------
Underwriting Guide" applicable to such Receivable at the time assigned to
------------------
TFC, at the time of such assignment.
5. Binding Obligation. Each Receivable represents the genuine, legal, valid
------------------
and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether
such enforceability is considered in a proceeding in equity or at law and
(B) as such Receivable may be modified by the application after the Cut-Off
Date of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended;
and all parties to each Receivable had full legal capacity to execute and
deliver such Receivable and all other documents related thereto and to
grant the security interest purported to be granted thereby.
6. No Government Obligor. No Obligor is the United States of America or any
---------------------
State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the Cut-Off Date, no Obligor had been the subject of
------------------
a current bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the Schedule of
-----------------------
Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the Cut-Off
Date as delivered on the Closing Date.
9. Marking Records. By the Closing Date, Originator will have caused the
---------------
portions of the Electronic Ledger relating to the Receivables to be clearly
and unambiguously identified to show that the Receivables have been sold to
the Purchaser by the Originator hereunder and transferred by the Purchaser
to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by the Originator to the
-------------
Trust Collateral Agent on the Closing Date was complete and accurate as of
the Cut-Off Date and includes a description of the same Receivables that
are described in the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the Noteholders or
-----------------
the Insurer were utilized in selecting the Receivables from those
receivables owned by TFC which met the selection criteria contained in the
Sale and Servicing Agreement.
12. Chattel Paper. The Receivables constitute tangible chattel paper within the
-------------
meaning of the UCC as in effect in the State of New York, Delaware,
Virginia and Minnesota.
13. One Original. There is only one original executed copy of each Receivable.
------------
14. Receivables Files Complete. There exists a Receivable File pertaining to
--------------------------
each Receivable and such Receivable File contains, without limitation,
subject to any exceptions which may appear on any exception report
delivered by the Trust Collateral Agent, (a) a fully executed original of
the Receivable and (b) the original Lien Certificate or application
therefor together with an assignment of the Lien Certificate from the
Originator to Purchaser and from the Purchaser to the Trustee. Each of such
documents which is required to be signed by the Obligor has been signed by
the Obligor in the appropriate spaces. All blanks on any form described in
clauses (a) and (b) above have been properly filled in and each form has
otherwise been correctly prepared. Notwithstanding the above, a copy of the
complete Receivable File for each Receivable, which fulfills the
documentation requirements of the Dealer Underwriting Guide as in effect at
the time of purchase is in the possession of the Servicer or its bailee.
15. Receivables in Force. No Receivable has been satisfied, subordinated or
--------------------
rescinded, and the Financed Vehicle securing each such Receivable has not
been released from the lien of the related Receivable in whole or in part.
No terms of any Receivable
have been waived, altered or modified in any respect since its origination,
except by instruments or documents identified in the Receivable File. No
Receivable has been modified as a result of application of the Soldiers'
and Sailors' Civil Relief Act of 1940, as amended.
16. Lawful Assignment. No Receivable was originated in, or is subject to the
-----------------
laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities. The Originator has
not entered into any agreement with any account debtor that prohibits,
restricts or conditions the assignment of any portion of the Receivables.
17. Good Title. No Receivable has been sold, transferred, assigned or pledged
----------
by the Originator to any Person other than the Purchaser; immediately prior
to the conveyance of the Receivables to the Purchaser pursuant to this
Agreement, the Originator was the sole owner thereof and had good and
marketable title thereto, free of any Lien, claim or encumbrance of any
Person, except Liens with respect to GE Capital and Westside Funding, which
liens of GE Capital and Westside Funding have been released (as of the
Closing Date), and, upon execution and delivery of this Agreement by the
Originator, Purchaser shall have good and indefeasible title to and will be
the sole owner of such Receivables, free of any Lien (except as described
above). No Dealer has a participation in, or other right to receive,
proceeds of any Receivable. The Originator has not taken any action to
convey any right to any Person that would result in such Person having a
right to payments received under the related Insurance Policies or the
related Dealer Agreements or Dealer Assignments or to payments due under
such Receivables.
18. No Other Interest. Other than the sale of the Receivables to the Purchaser
-----------------
under this Agreement, the Originator has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Receivables. The Originator has not authorized the filing of, or is aware
of any financing statements against the Originator that include a
description of collateral covering the Receivables other than any financing
statement relating to the sale to the Purchaser hereunder or that has been
released or terminated.
19. Security Interest in Financed Vehicle. Each Receivable created or will
-------------------------------------
create a valid, binding and enforceable first priority security interest in
favor of the Originator or the Purchaser in the Financed Vehicle. The Lien
Certificate and original certificate of title for each Financed Vehicle
show, or if a new or replacement Lien Certificate is being applied for with
respect to such Financed Vehicle the Lien Certificate will be received not
later than July 31, 2002, and will show Originator or the Purchaser named
as the original secured party under each Receivable as the holder of a
first priority security interest in such Financed Vehicle, with right of
repossession, subject to the terms thereof and applicable law. With respect
to each Receivable for which the Lien Certificate has not yet been returned
from the Registrar of Titles, the Originator has received written evidence
from the related Dealer that such Lien Certificate showing Originator or
the Purchaser as first lienholder has been applied
for and the Originator's security interest has been validly assigned to
Purchaser pursuant to this Agreement. Immediately after the sale, transfer
and assignment thereof by Originator to the Purchaser, each Receivable will
be secured by an enforceable and perfected first priority security interest
in the Financed Vehicle in favor of the Purchaser as secured party, which
security interest is prior to all other Liens upon and security interests
in such Financed Vehicle which now exist or may hereafter arise or be
created (except, as to priority, for any lien for taxes, labor or materials
affecting a Financed Vehicle arising subsequent to the Cut-Off Date). As of
the Cut-Off Date there were no Liens or claims for taxes, work, labor or
materials affecting a Financed Vehicle which are or may be Liens prior or
equal to the Liens of the related Receivable.
20. All Filings Made. The Originator has caused, or will have caused not later
----------------
than three Business Days after the Closing Date, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the sale
of the Receivables from the Originator to the Purchaser under this
Agreement.
21. No Impairment. The Originator has not done anything to convey any right to
-------------
any Person that would result in such Person having a right to payments due
under the Receivable or otherwise to impair the rights of the Trust, the
Insurer, the Trustee, the Trust Collateral Agent and the Noteholders in any
Receivable or the proceeds thereof.
22. Receivable Not Assumable. No Receivable is assumable by another Person in a
------------------------
manner which would release the Obligor thereof from such Obligor's
obligations to the Originator with respect to such Receivable.
23. No Default. As of the Cut-Off Date, no Receivable was in default and no
----------
condition existed or event occurred that constituted a default, breach,
violation or event permitting acceleration under the terms of any
Receivable, and there has been no waiver of any of the foregoing. As of the
Cut-Off Date no Financed Vehicle had been repossessed.
24. Insurance. At the time of origination of each Receivable that is
---------
Point-of-Sale Product, the related Financed Vehicle was covered by an
Insurance Policy which was (i) in an amount at least equal to the lesser
of, excluding any deductible, (a) its maximum insurable value or (b) the
principal amount due from the Obligor under the related Receivable, (ii)
naming TFC and its successors and assigns as loss payee and (iii) insuring
against loss and damage due to fire, theft, transportation, collision and
other risks generally covered by either a physical loss and damage
Insurance Policy or the combination of TFC's Total Loss Protection and GAP.
No Financed Vehicle is insured under a policy of Force-Placed Insurance on
the Cut-Off Date.
25. Certain Characteristics of Receivables. (i) No Receivable was more than 30
--------------------------------------
days past due as of the Cut-Off Date; (ii) no funds have been advanced by
the Originator, the Servicer, any Dealer, or anyone acting on behalf of any
of them in order to cause any Receivable to qualify under subclause (i) of
this clause 25; (iii) the Principal Balance
of each Receivable set forth in the Schedule of Receivables is true and
accurate as of the Cut-Off Date.
26. [Reserved]
27. Military Assistance Corporation. As of the Closing Date, Fort Xxxx National
-------------------------------
Bank ("FKNB") has been directed by TFC, and evidence of FKNB's
----
acknowledgment has been received to directly transfer to the Collection
Account all amounts received by it pursuant to the Military Assistance
Corporation ("MAC") program.
---
28. Annual Percentage. As of the Cut-Off Date, no more than 1.63% of the
-----------------
Receivables (by Principal Balance) have annual percentage rates of less
than 13.0% and the weighted average annual percentage rate for the entire
pool is no less than 18.22%.
29. Creation of Security Interest. This Agreement creates a valid and
-----------------------------
continuing security interest (as defined in UCC Section 1-201) in the
Receivables in favor of the Purchaser, which security interest is prior to
all other Liens, and is enforceable as such as against creditors of and
purchasers from the Originator.
30. No Notations. None of the tangible chattel paper that constitute or
------------
evidence the Receivables has any marks or notations indicating that they
have been pledged, assigned or otherwise conveyed to any Person other than
the Purchaser, the Issuer and the Trustee (for the benefit of the Issuer
Secured Parties).
31. No Waiver. The Originator shall provide the Ratings Agency and the Insurer
---------
with prompt written notice of any breach of any representation or warranty
contained in paragraphs 12, 17-20 and 29-30 above, and the Trustee shall
not, without obtaining a confirmation of the then-current rating of the
Notes (as determined after any adjustment or withdrawal of the ratings
following notice of such breach) or the consent of each Noteholder, consent
to a waiver of any material breach of any such representations or
warranties.
SCHEDULE C
----------
THE FINANCE COMPANY CHARGE-OFF POLICY
[TFC to Provide]
SCHEDULE D
----------
ASSIGNMENT
