Exhibit 10(f)
RECEIVABLES PURCHASE AGREEMENT
dated as of December 31, 1996
among
AFC FUNDING CORPORATION,
as Seller,
AUTOMOTIVE FINANCE CORPORATION,
as Servicer,
POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION,
as Purchaser,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES INC.,
as Agent.
TABLE OF CONTENTS
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Page
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility.............................................. 1
Section 1.2. Making Purchases............................................... 2
Section 1.3. Participation Computation...................................... 3
Section 1.4. Settlement Procedures.......................................... 3
Section 1.5. Fees........................................................... 8
Section 1.6. Payments and Computations, Etc................................. 8
Section 1.7. Dividing or Combining Portions of the
Investment of the Participation................... 9
Section 1.8. Increased Costs................................................ 9
Section 1.9. Additional Discount on Portions of
Participation Bearing a Eurodollar Rate........... 10
Section 1.10. Requirements of Law........................................... 10
Section 1.11. Inability to Determine Eurodollar Rate........................ 11
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1. Representations and Warranties; Covenants...................... 12
Section 2.2. Termination Events............................................. 12
ARTICLE III.
INDEMNIFICATION
Section 3.1. Indemnities by the Seller...................................... 13
Section 3.2. Indemnities by AFC............................................. 15
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of Servicer........................................ 16
Section 4.2. Duties of Servicer............................................. 17
Section 4.3. Deposit Accounts; Establishment and
Use of Certain Accounts........................... 18
Section 4.4. Enforcement Rights............................................. 19
Section 4.5. Responsibilities of the Seller................................. 20
Section 4.6. Servicing Fee.................................................. 20
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TABLE OF CONTENTS
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(continued)
Page
ARTICLE V.
MISCELLANEOUS
Section 5.1. Amendments, Etc................................................ 20
Section 5.2. Notices, Etc................................................... 21
Section 5.3. Assignability.................................................. 21
Section 5.4. Costs, Expenses and Taxes...................................... 22
Section 5.5. No Proceedings; Limitation on Payments......................... 23
Section 5.6. Confidentiality................................................ 23
Section 5.7. GOVERNING LAW AND JURISDICTION................................. 23
Section 5.8. Execution in Counterparts...................................... 24
Section 5.9. Survival of Termination........................................ 24
Section 5.10. WAIVER OF JURY TRIAL.......................................... 24
Section 5.11. Entire Agreement.............................................. 24
Section 5.12. Headings...................................................... 24
Section 5.13. Purchaser's Liabilities....................................... 24
EXHIBIT I DEFINITIONS...................................................I-1
EXHIBIT II CONDITIONS OF PURCHASES......................................II-1
EXHIBIT III REPRESENTATIONS AND WARRANTIES..............................III-1
EXHIBIT IV COVENANTS....................................................IV-1
EXHIBIT V TERMINATION EVENTS............................................V-1
EXHIBIT VI PORTFOLIO CERTIFICATE........................................VI-1
SCHEDULE I CREDIT AND COLLECTION POLICY..................................I-1
SCHEDULE II DEPOSIT BANKS AND DEPOSIT ACCOUNTS...........................II-1
SCHEDULE III TRADE NAMES.................................................III-1
SCHEDULE IV ELIGIBLE CONTRACTS...........................................IV-1
SCHEDULE V TAX MATTERS...................................................V-1
ANNEX A FORM OF NOTICE OF PURCHASE
ANNEX B FORM OF COLLECTION ACCOUNT AGREEMENT
ANNEX C FORM OF LIQUIDATION ACCOUNT AGREEMENT
ANNEX D FORM OF SERVICER REPORT
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT, dated as of December 31, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Agreement")
among AFC FUNDING CORPORATION, an Indiana corporation, as seller (the "Seller"),
AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation ("AFC"), as initial
servicer (in such capacity, together with its successors and permitted assigns
in such capacity, the "Servicer"), POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION, a Delaware Corporation ("PAR"), as purchaser (together with its
successors and permitted assigns, the "Purchaser"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES
INC., a Delaware corporation ("▇▇▇▇▇▇▇ ▇▇▇▇▇") as agent for the Purchaser (in
such capacity, together with its successors and assigns in such capacity, the
"Agent").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I to this Agreement. References
in the Exhibits hereto to "the Agreement" refer to this Agreement, as amended,
modified or supplemented from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Purchaser desires to
acquire such undivided variable percentage interest, as such percentage interest
shall be adjusted from time to time based upon, in part, reinvestment payments
which are made by the Purchaser and additional incremental payments made to the
Seller.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility. (a) On the terms and conditions
hereinafter set forth, the Purchaser hereby agrees to purchase and make
reinvestments of undivided percentage ownership interests with regard to the
Participation from the Seller from time to time during the period from the date
hereof to the Termination Date. Under no circumstances shall the Purchaser make
any such purchase or reinvestment if, after giving effect to such purchase or
reinvestment, the aggregate outstanding Investment of the Participation would
exceed the Purchase Limit.
(b) The Seller may, upon at least 30 days' notice to the Agent,
terminate the purchase facility provided in this Section 1 in whole or, from
time to time, irrevocably reduce in part the unused portion of the Purchase
Limit; provided that each partial reduction shall be in the amount of at least
$1,000,000, or an integral multiple of $500,000 in excess thereof and shall not
reduce the Purchase Limit below $25,000,000.
Section 1.2. Making Purchases. (a) Each purchase (but not
reinvestments) of undivided ownership interests with regard to the Participation
hereunder shall be made upon the Seller's irrevocable written notice in the form
of Annex A delivered to the Agent in accordance with Section 5.2 (which notice
must be received by the Agent prior to 11:00 a.m., Chicago time) on the second
Business Day next preceding the date of such proposed purchase. Each such notice
of any such proposed purchase shall specify the desired amount and date of such
purchase and the desired duration of the initial Yield Period for the resulting
Participation; provided each proposed purchase shall be in the amount of at
least $1,000,000 or an integral multiple of $100,000 in excess thereof. The
Agent shall select the duration of such initial Yield Period, and each
subsequent Yield Period in its discretion; provided that it shall use reasonable
efforts, taking into account market conditions, to accommodate Seller's
preferences. At no time shall there be more than five Yield Periods.
(b) On the date of each purchase (but not reinvestment) of undivided
ownership interests with regard to the Participation hereunder, the Purchaser
shall, upon satisfaction of the applicable conditions set forth in Exhibit II
hereto, make available to the Agent at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the amount of such purchase in same day funds, and
after the Agent's receipt of such funds, the Agent shall make such funds
immediately available to the Seller at such office.
(c) Effective on the date of each purchase pursuant to this Section 1.2
and each reinvestment pursuant to Section 1.4, the Seller hereby sells and
assigns to the Purchaser an undivided percentage ownership interest equal to the
Participation in (i) each Pool Receivable then existing, (ii) all Related
Security with respect to such Pool Receivables, and (iii) Collections with
respect to, and other proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise)
under this Agreement and the other Transaction Documents to which it is a party,
whether now or hereafter existing or arising, due or to become due, direct or
indirect, absolute or contingent, including to secure the obligation of the
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Servicer that Collections be applied to the Participation as provided in this
Agreement, the Seller hereby grants to the Purchaser a security interest in all
of the Seller's right, title and interest (including without limitation any
undivided interest of the Seller) in, to and under all of the following, whether
now or hereafter owned, existing or arising: (A) all Pool Receivables, (B) all
Related Security with respect to each such Pool Receivable, (C) all Collections
with respect to each such Pool Receivable, (D) the Collection Account and
Liquidation Account and all amounts on deposit therein and all certificates and
instruments, if any, from time to time evidencing the Collection Account and the
Liquidation Account, all amounts on deposit therein, all investments (including
any investment property) made with such funds, all claims thereunder or in
connection therewith, and all interest, dividends, moneys, instruments,
securities and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
foregoing, (E) all rights of the Seller under the Purchase and Sale Agreement,
and (F) all proceeds of, and all amounts received or receivable under any or all
of, the foregoing. The Purchaser shall have, with respect to the property
described in this Section 1.2(d), and in addition to all the other rights and
remedies available to the Purchaser, all the rights and remedies of a secured
party under any applicable UCC.
Section 1.3. Participation Computation. The Participation shall be
initially computed on the date of the initial purchase hereunder. Thereafter
until the Termination Date, the Participation shall be automatically recomputed
(or deemed to be recomputed) on each Business Day other than a Termination Day.
The Participation, as computed (or deemed recomputed) as of the day immediately
preceding the Termination Date, shall thereafter remain constant. The
Participation shall become zero when the Investment thereof and Discount thereon
shall have been paid in full, all the amounts owed by the Seller hereunder to
the Purchaser, the Agent, and any other Indemnified Party or Affected Person are
paid in full and the Servicer shall have received the accrued Servicing Fee
thereon.
Section 1.4. Settlement Procedures. (a) Collection of the Pool
Receivables shall be administered by the Servicer in accordance with the terms
of this Agreement. The Seller shall provide to the Servicer (if other than the
Seller) on a timely basis all information needed for such administration,
including notice of the occurrence of any Termination Day and current
computations of the Participation.
(b) The Servicer shall segregate and hold all Collections in trust for
the benefit of the Seller and the Purchaser and, within one Business Day of the
receipt (or deemed receipt) of
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Collections of Pool Receivables by the Seller or Servicer, deposit such
Collections into a Deposit Account. Servicer shall on the day any funds
deposited in a Deposit Account become available transfer such funds to the
Collection Account. With respect to such Collections on the day deposited into
the Collection Account, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation
Account, set aside for the benefit of the Purchaser, out of the
percentage of such Collections represented by the Participation, first
an amount equal to the Discount accrued through such day for each
Portion of Investment and not previously set aside and second, to the
extent funds are available therefor, an amount equal to the Servicing
Fee (if the Originator or any Affiliate thereof is not the Servicer),
and third the Program Fee accrued through such day for the
Participation and not previously set aside; and
(ii) subject to Section 1.4(f), if such day is not a
Termination Day, remit to the Seller, on behalf of the Purchaser, the
remainder of the percentage of such Collections, represented by the
Participation; such Collections shall be automatically reinvested in
Pool Receivables, and in the Related Security and Collections and other
proceeds with respect thereto, and the Participation shall be
automatically recomputed pursuant to Section 1.3; it being understood,
that prior to remitting to the Seller the remainder of such Collections
by way of reinvestment in Pool Receivables, the Servicer shall have
calculated the Participation on such day, and if such Participation
shall exceed 100% of the sum of the Net Receivables Pool Balance on
such day plus the amount on deposit in the Liquidation Account (other
than amounts transferred thereto from the Collection Account to pay
Discount, the Servicing Fee and the Program Fee pursuant to the
preceding paragraph (i)), such Collections shall not be remitted to the
Seller but shall be transferred to the Liquidation Account for the
benefit of the Purchaser in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, (A) transfer to the
Liquidation Account for the Purchaser the entire remainder of the
percentage of the Collections represented by the Participation;
provided that so long as the Termination Date has not occurred if any
amounts are so transferred to the Liquidation Account on any
Termination Day and, thereafter, the conditions set forth in Section 2
of Exhibit II are satisfied or are waived by the Agent, such previously
transferred amounts shall, to the extent still on deposit in the
Liquidation Account, be reinvested in
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accordance with the preceding paragraph (ii) on the day of such
subsequent satisfaction or waiver of conditions, and (B) transfer to
the Liquidation Account for the Purchaser the entire remainder of the
Collections in the Collection Account represented by the Seller's share
of the Collections, if any; provided that so long as the Termination
Date has not occurred if any amounts are so transferred to the
Liquidation Account on any Termination Day and thereafter the
conditions set forth in Section 2 of Exhibit II are satisfied or are
waived by the Agent, such previously transferred amounts to the extent
still on deposit in the Liquidation Account, shall be distributed to
the Seller on the day of such subsequent satisfaction or waiver of
conditions; and
(iv) during such times as amounts are required to be
reinvested in accordance with the foregoing paragraph (ii) or the
proviso to paragraph (iii), release to the Seller (subject to Section
1.4(f)) for its own account any Collections in excess of (x) such
reinvested amounts, (y) the amounts that are required to be transferred
to the Liquidation Account pursuant to paragraph (i) above and (z) in
the event the Seller is not the Servicer, all reasonable and
appropriate out-of-pocket costs and expenses of such Servicer of
servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such
other account designated by the Agent), on the last day of each Settlement
Period relating to a Portion of Investment:
(i) Collections held on deposit in the Liquidation Account for
the benefit of the Purchaser pursuant to Section 1.4(b)(i) in respect
of accrued Discount and the Program Fees with respect to such Portion
of Investment;
(ii) Collections held on deposit in the Liquidation Account
for the benefit of the Purchaser pursuant to Section 1.4(f) with
respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on
deposit in the Liquidation Account for the benefit of the Purchaser
pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment.
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(d) Upon receipt of funds deposited into the Purchaser's Account
pursuant to Section 1.4(c) with respect to any Portion of Investment, the Agent
shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a
Termination Day, first to the Purchaser in payment in full of all
accrued Discount with respect to such Portion of Investment, second, to
the Purchaser in payment of accrued and unpaid Program Fees, and third,
if the Servicer has set aside amounts in respect of the Servicing Fee
pursuant to Section 1.4(b)(i), to the Servicer (payable in arrears on
the last day of each calendar month) in payment in full of accrued
Servicing Fees so set aside with respect to such Portion of Investment;
and
(ii) if such distribution occurs on a Termination Day, first
to the Purchaser in payment in full of all accrued Discount with
respect to such Portion of Investment, second to the Purchaser in
payment of accrued and unpaid Program Fees, third, to the Purchaser in
payment in full of such Portion of Investment, fourth, if AFC or any of
its Affiliates is not the Servicer, to the Servicer in payment in full
of all accrued Servicing Fees with respect to such Portion of
Investment, and fifth, if the Investment and accrued Discount with
respect to each Portion of Investment have been reduced to zero, and
all accrued Servicing Fees payable to the Servicer (if other than AFC
or any of its Affiliates) have been paid in full, to the Purchaser, the
Agent and any other Indemnified Party or Affected Person in payment in
full of any other amounts owed thereto by the Seller hereunder and then
to the Servicer (if the Servicer is AFC or any of its Affiliates) in
payment in full of all accrued Servicing Fees.
After the Investment, Program Fees, Discount and Servicing Fees with respect to
the Participation, and any other amounts payable by the Seller to the Purchaser,
the Agent or any other Indemnified Party or Affected Person hereunder, have been
paid in full, all additional Collections with respect to the Participation shall
be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool
Receivable is reduced or adjusted as a result of any discount, rebate
or other adjustment made by the Originator, Seller or Servicer, or any
setoff or dispute between the Seller, Originator or the Servicer and an
Obligor, the Seller shall be deemed to have received on such day a
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Collection of such Pool Receivable in the amount of such reduction or
adjustment;
(ii) if on any day any of the representations or warranties in
paragraphs A.(h) or A.(o) of Exhibit III is not true with respect to
any Pool Receivable, the Seller shall be deemed to have received on
such day a Collection of such Pool Receivable in full;
(iii) except as provided in paragraph (i) or (ii) of this
Section 1.4(e), or as otherwise required by applicable law or the
relevant Contract, all Collections received from an Obligor of any
Receivable shall be applied in accordance with the Contract with such
Obligor and the Credit and Collection Policy; and
(iv) if and to the extent the Agent or the Purchaser shall be
required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding)
any amount received by it hereunder, such amount shall be deemed not to
have been so received but rather to have been retained by the Seller
and, accordingly, the Agent or the Purchaser, as the case may be, shall
have a claim against the Seller for such amount, payable when and to
the extent that any distribution from or on behalf of such Obligor is
made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of a
Portion of Investment (but not to commence the liquidation, or reduction to
zero, of the entire Investment of the Participation), the Seller may do so as
follows:
(i) the Seller shall give the Agent at least two Business
Days' prior written notice thereof (including the amount of such
proposed reduction and the proposed date on which such reduction will
commence),
(ii) on the proposed date of commencement of such reduction
and on each day thereafter, the Servicer shall cause Collections with
respect to such Portion of Investment not to be reinvested until the
amount thereof not so reinvested shall equal the desired amount of
reduction, and
(iii) the Servicer shall hold such Collections in the
Liquidation Account for the benefit of the Purchaser, for payment to
the Agent on the last day of the current Settlement Period relating to
such Portion of Investment, and the applicable Portion of Investment
shall be deemed reduced in the amount to be paid to the Agent only when
in fact finally so paid;
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provided that,
A. unless otherwise agreed by the Agent the amount of any such
reduction shall be not less than $1,000,000 and shall be an integral
multiple of $100,000, and the entire Investment (if any) of the
Participation after giving effect to such reduction shall be not less
than $2,000,000,
B. the Seller shall use reasonable efforts to choose a
reduction amount, and the date of commencement thereof, so that to the
extent practicable such reduction shall commence and conclude in the
same Yield Period, and
C. if two or more Portions of Investment shall be outstanding
at the time of any proposed reduction, such proposed reduction shall be
applied, unless the Seller shall otherwise specify in the notice given
pursuant to Section 1.4(f)(i), to the Portion of Investment with the
shortest remaining Yield Period.
Section 1.5. Fees. The Seller shall pay to the Agent certain fees in
the amounts and on the dates set forth in a letter dated December 31, 1996
between the Seller and the Agent (as the same may be amended, amended and
restated, supplemented or modified, the "Fee Letter") delivered pursuant to
Section 1 of Exhibit II, as such letter agreement may be amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof.
Section 1.6. Payments and Computations, Etc. (a) All amounts to be paid
or deposited by the Seller or the Servicer hereunder shall be paid or deposited
no later than noon (Chicago time) on the day when due in same day funds to the
Purchaser's Account. All amounts received after noon (Chicago time) will be
deemed to have been received on the immediately succeeding Business Day.
(b) The Seller shall, to the extent permitted by law, pay interest on
any amount not paid or deposited by the Seller or Servicer to the Purchaser's
Account when due hereunder, at an interest rate equal to 2.0% per annum above
the Base Rate, payable on demand.
(c) All computations of interest under subsection (b) above and all
computations of Discount, fees, and other amounts hereunder shall be made on the
basis of a year of 360 days for the actual number of days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made no later than the next
succeeding Business Day and such extension of time shall be included in the
computation of such payment or deposit.
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Section 1.7. Dividing or Combining Portions of the Investment of the
Participation. The Seller may, on the last day of any Yield Period, either (i)
divide the Investment of the Participation into two or more portions (each, a
"Portion of Investment") equal, in aggregate, to the Investment of the
Participation, provided that after giving effect to such division the amount of
each such Portion of Investment shall be not less than $1,000,000, or (ii)
combine any two or more Portions of Investment outstanding on such last day and
having Yield Periods ending on such last day into a single Portion of Investment
equal to the aggregate of the Investment of such Portions of Investment;
provided, further there shall at no time be more than five Yield Periods.
Section 1.8. Increased Costs. (a) If the Agent, the Purchaser, any
Liquidity Bank, any other Program Support Provider or any of their respective
Affiliates (each an "Affected Person") determines that the existence of or
compliance with (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof or (ii) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement affects or would
affect the amount of capital required or expected to be maintained by such
Affected Person and such Affected Person determines that the amount of such
capital is increased by or based upon the existence of any commitment to make
purchases of or otherwise to maintain the investment in Pool Receivables related
to this Agreement or any related liquidity facility or credit enhancement
facility and other commitments of the same type, then, upon demand by such
Affected Person (with a copy to the Agent), the Seller shall immediately pay to
the Agent, for the account of such Affected Person, from time to time as
specified by such Affected Person, additional amounts sufficient to compensate
such Affected Person in the light of such circumstances, to the extent that such
Affected Person reasonably determines such increase in capital to be allocable
to the existence of any of such commitments; provided that within 30 days of an
Affected Party's knowledge of any such circumstance such Affected Party shall
notify the Seller of the same and whether such Affected Party will request that
the Seller indemnify it for such circumstance. A certificate as to such amounts
submitted to the Seller and the Agent by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements referred to
in Section 1.9) in or in the interpretation of any law or regulation or (ii)
compliance with any guideline or request from any central bank or other
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Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Affected Person of agreeing to purchase or
purchasing, or maintaining the ownership of the Participation in respect of
which Discount is computed by reference to the Eurodollar Rate, then, upon
demand by such Affected Person, the Seller shall immediately pay to such
Affected Person, from time to time as specified, additional amounts sufficient
to compensate such Affected Person for such increased costs; provided that
within 30 days of an Affected Party's knowledge of any such circumstance such
Affected Party shall notify the Seller of the same and whether such Affected
Party will request that the Seller indemnify it for such circumstance. A
certificate as to such amounts submitted to the Seller by such Affected Person
shall be conclusive and binding for all purposes, absent manifest error.
Section 1.9. Additional Discount on Portions of Participation Bearing a
Eurodollar Rate. The Seller shall pay to any Affected Person, so long as such
Affected Person shall be required under regulations of the Board of Governors of
the Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including "Eurocurrency Liabilities", additional
Discount on the unpaid Investment of the applicable Portion of Investment during
each Yield Period in respect of which Discount is computed by reference to the
Eurodollar Rate, for such Yield Period, at a rate per annum equal at all times
during such Yield Period to the remainder obtained by subtracting (i) the
Eurodollar Rate for such Yield Period from (ii) the rate obtained by dividing
such Eurodollar Rate referred to in clause (i) above by that percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Yield Period, payable
on each date on which Discount is payable on the applicable Portion of
Investment; provided that within 30 days of an Affected Party's knowledge of any
such circumstance such Affected Party shall notify the Seller of the same and
whether such Affected Party will request that the Seller indemnify it for such
circumstance. Such additional Discount shall be determined by the Affected
Person and notified to the Seller through the Agent. A certificate as to such
additional Discount submitted to the Seller by the Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
Section 1.10. Requirements of Law. In the event that any Affected
Person determines that the existence of or compliance with (i) any law or
regulation or any change therein or in the interpretation or application
thereof, in each case adopted, issued or occurring after the date hereof or (ii)
any request,
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guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement:
(i) does or shall subject such Affected Person to any tax of
any kind whatsoever with respect to this Agreement, any increase in the
Participation or in the amount of Investment relating thereto, or does
or shall change the basis of taxation of payments to such Affected
Person on account of Collections, Discount or any other amounts payable
hereunder (excluding taxes imposed on the overall net income of such
Affected Person, and franchise taxes imposed on such Affected Person,
by the jurisdiction under the laws of which such Affected Person is
organized or a political subdivision thereof);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, purchases, advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Affected
Person which are not otherwise included in the determination of the
Eurodollar Rate or the Base Rate hereunder; or
(iii) does or shall impose on such Affected Person any other
condition;
and the result of any of the foregoing is (x) to increase the cost to such
Affected Person of acting as Agent, or of agreeing to purchase or purchasing or
maintaining the ownership of undivided ownership interests with regard to the
Participation (or interests therein) or any Portion of Investment in respect of
which Discount is computed by reference to the Eurodollar Rate or the Base Rate
or (y) to reduce any amount receivable hereunder (whether directly or
indirectly) funded or maintained by reference to the Eurodollar Rate or the Base
Rate, then, in any such case, upon demand by such Affected Person the Seller
shall pay such Affected Person any additional amounts necessary to compensate
such Affected Person for such additional cost or reduced amount receivable. All
such amounts shall be payable as incurred. A certificate from such Affected
Person to the Seller certifying, in reasonably specific detail, the basis for,
calculation of, and amount of such additional costs or reduced amount receivable
shall be conclusive in the absence of manifest error; provided, however, that no
Affected Person shall be required to disclose any confidential or tax planning
information in any such certificate.
Section 1.11. Inability to Determine Eurodollar Rate. In the event that
the Agent shall have determined prior to the first
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day of any Yield Period (which determination shall be conclusive and binding
upon the parties hereto) by reason of circumstances affecting the interbank
Eurodollar market, either (a) dollar deposits in the relevant amounts and for
the relevant Yield Period are not available, (b) adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for such Yield Period or (c)
the Eurodollar Rate determined pursuant hereto does not accurately reflect the
cost to the Purchaser (as conclusively determined by the Agent) of maintaining
any Portion of Investment during such Yield Period, the Agent shall promptly
give telephonic notice of such determination, confirmed in writing, to the
Seller prior to the first day of such Yield Period. Upon delivery of such notice
(a) no Portion of Investment shall be funded thereafter at the Bank Rate
determined by reference to the Eurodollar Rate, unless and until the Agent shall
have given notice to the Seller that the circumstances giving rise to such
determination no longer exist, and (b) with respect to any outstanding Portions
of Investment then funded at the Bank Rate determined by reference to the
Eurodollar Rate, such Bank Rate shall automatically be converted to the Bank
Rate determined by reference to the Base Rate at the respective last days of the
then-current Yield Periods relating to such Portions of Investment.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1. Representations and Warranties; Covenants. Each of the
Seller, AFC and the Servicer hereby makes the representations and warranties,
and hereby agrees to perform and observe the covenants of such Person, set forth
in Exhibits III and IV, respectively hereto.
Section 2.2. Termination Events. If any of the Termination Events set
forth in Exhibit V hereto shall occur, the Agent may, by notice to the Seller,
declare the Termination Date to have occurred (in which case the Termination
Date shall be deemed to have occurred); provided that, automatically upon the
occurrence of any event (without any requirement for the passage of time or the
giving of notice) described in subsection (g) or (m) of Exhibit V, the
Termination Date shall occur. Upon any such declaration, the occurrence or the
deemed occurrence of the Termination Date, the Purchaser and the Agent shall
have, in addition to the rights and remedies which they may have under this
Agreement, all other rights and remedies provided after default under the UCC
and under other applicable law, which rights and remedies shall be cumulative.
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ARTICLE III.
INDEMNIFICATION
Section 3.1. Indemnities by the Seller. Without limiting any other
rights that the Agent or the Purchaser or any of their respective Affiliates,
employees, agents, successors, transferees or assigns (each, an "Indemnified
Party") may have hereunder or under applicable law, the Seller hereby agrees to
indemnify each Indemnified Party from and against any and all claims, damages,
expenses, losses and liabilities (including Attorney Costs) (all of the
foregoing being collectively referred to as "Indemnified Amounts") arising out
of or resulting from this Agreement or other Transaction Documents (whether
directly or indirectly) or the use of proceeds of purchases or reinvestments or
the ownership of the Participation, or any interest therein, or in respect of
any Receivable or any Contract regardless of whether any such Indemnified
Amounts result from an Indemnified Party's negligence or strict liability or
other acts or omissions of an Indemnified Party, excluding, however, (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party, (b) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Receivables
to be written off consistent with the Credit and Collection Policy, or (c) any
overall net income taxes or franchise taxes imposed on such Indemnified Party by
the jurisdiction under the laws of which such Indemnified Party is organized or
any political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand to each Indemnified Party any and all amounts
necessary to indemnify such Indemnified Party from and against any and all
Indemnified Amounts relating to or resulting from any of the following:
(i) the failure of any Receivable included in the calculation
of the Net Receivables Pool Balance as an Eligible Receivable to be an
Eligible Receivable, the failure of any information contained in a
Servicer Report or a Portfolio Certificate to be true and correct, or
the failure of any other information provided to the Purchaser or the
Agent with respect to Receivables or this Agreement to be true and
correct;
(ii) the failure of any representation or warranty or
statement made or deemed made by the Seller (or any of its officers)
under or in connection with this Agreement to have been true and
correct in all respects when made;
(iii) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Pool
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Receivable or the related Contract; or the failure of any Pool
Receivable or the related Contract to conform to any such applicable
law, rule or regulation;
(iv) the failure to vest in the Purchaser a valid and
enforceable (A) perfected undivided percentage ownership interest, to
the extent of the Participation, in the Receivables in, or purporting
to be in, the Receivables Pool and the Related Security and Collections
with respect thereto and (B) first priority perfected security interest
in the items described in Section 1.2(d), in each case, free and clear
of any Adverse Claim;
(v) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables in, or purporting to be in, the Receivables
Pool and the Related Security and Collections in respect thereof,
whether at the time of any purchase or reinvestment or at any
subsequent time;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable in, or purporting to be in, the Receivables Pool
(including, without limitation, a defense based on such Receivable or
the related Contract not being a legal, valid and binding obligation of
such Obligor enforceable against it in accordance with its terms), or
any other claim resulting from or relating to the transaction giving
rise to such Receivable or relating to collection activities with
respect to such Receivable (if such collection activities were
performed by the Seller or any of its Affiliates acting as Servicer or
by any agent or independent contractor retained by the Seller or any of
its Affiliates);
(vii) any failure of the Seller to perform its duties or
obligations in accordance with the provisions hereof or to perform its
duties or obligations under the Contracts;
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with goods,
insurance or services that are the subject of or secure any Contract;
(ix) the commingling of Collections of Pool Receivables at any
time with other funds;
(x) any investigation, litigation or proceeding related to
this Agreement or the use of proceeds of
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purchases or reinvestments or the ownership of the Participation or in
respect of any Receivable, Related Security or Contract;
(xi) any reduction in Investment as a result of the
distribution of Collections pursuant to Section 1.4(d), in the event
that all or a portion of such distributions shall thereafter be
rescinded or otherwise must be returned for any reason; or
(xii) any tax or governmental fee or charge (other than any
tax upon or measured by net income or gross receipts), all interest and
penalties thereon or with respect thereto, and all reasonable
out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the purchase or ownership of the Participation, or other
interests in the Receivables Pool or in any Related Security or
Contract.
If for any reason the indemnification provided above in this Section
3.1 is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless, then the Seller shall contribute to such Indemnified
Party the amount otherwise payable by such Indemnified Party as a result of such
loss, claim, damage or liability to the maximum extent permitted under
applicable law.
Section 3.2. Indemnities by AFC. Without limiting any other rights
which any such person may have hereunder under applicable law, AFC hereby agrees
to indemnify each Indemnified Party, forthwith on demand, from and against any
and all Indemnified Amounts, regardless of whether any such Indemnified Amounts
result from an Indemnified Party's negligence or strict liability or other acts
or omissions of an Indemnified Party, awarded against or incurred by any of them
arising out of or relating to:
(i) the failure of any Receivable included in the calculation
of the Net Receivables Pool Balance as an Eligible Receivable to be an
Eligible Receivable, the failure of any information contained in a
Servicer Report or a Portfolio Certificate to be true and correct, or
the failure of any other information provided to the Purchaser or the
Agent with respect to Receivables or this Agreement to be true and
correct;
(ii) any representation or warranty made by AFC under or in
connection with any Transaction Document in its capacity as Servicer or
any information or report delivered by or on behalf of AFC in its
capacity as Servicer pursuant
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hereto, which shall have been false, incorrect or misleading in any
material respect when made or deemed made;
(iii) the failure by AFC, in its capacity as Servicer, to
comply with any applicable law, rule or regulation (including truth in
lending, fair credit billing, usury, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) with
respect to any Pool Receivable or other related contract; or
(iv) any failure of AFC to perform its duties, covenants and
obligations in accordance with the applicable provisions of this
Agreement.
If for any reason the indemnification provided above in this Section
3.2 is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless, then AFC shall contribute to such Indemnified Party
the amount otherwise payable by such Indemnified Party as a result of such loss,
claim, damage or liability to the maximum extent permitted under applicable law.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of Servicer. (a) The servicing, administering
and collection of the Pool Receivables shall be conducted by the Person so
designated from time to time as Servicer in accordance with this Section 4.1.
Until the Agent gives notice to the Seller and the Servicer (in accordance with
this Section 4.1) of the designation of a new Servicer, AFC is hereby designated
as, and hereby agrees to perform the duties and obligations of, the Servicer
pursuant to the terms hereof. Upon the occurrence of a Termination Event, the
Agent may designate as Servicer any Person (including itself) to succeed the
Servicer or any successor Servicer, on the condition in each case that any such
Person so designated shall agree to perform the duties and obligations of the
Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in
Section 4.1(a) hereof, the Servicer agrees that it will terminate its activities
as Servicer hereunder in a manner which the Agent determines will facilitate the
transition of the performance of such activities to the new Servicer, and the
Servicer shall cooperate with and assist such new Servicer. Such cooperation
shall include (without limitation) access to and transfer of records and use by
the new Servicer of all licenses, hardware or software necessary or desirable to
collect the Pool Receivables and the Related Security.
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(c) The Servicer acknowledges that, in making their decision to execute
and deliver this Agreement, the Agent and the Purchaser have relied on the
Servicer's agreement to act as Servicer hereunder. Accordingly, the Servicer
agrees that it will not voluntarily resign as Servicer.
(d) The Servicer may delegate its duties and obligations hereunder to
any subservicer (each, a "Sub-Servicer"); provided that, in each such
delegation, (i) such Sub-Servicer shall agree in writing to perform the duties
and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer
shall remain primarily liable to the Purchaser and the Agent for the performance
of the duties and obligations so delegated, (iii) the Seller, the Agent and the
Purchaser shall have the right to look solely to the Servicer for such
performance and (iv) the terms of any agreement with any Sub-Servicer shall
provide that the Agent may terminate such agreement upon the termination of the
Servicer in accordance with Section 4.1(a) above hereunder by giving notice of
its desire to terminate such agreement to the Servicer (and the Servicer shall
provide appropriate notice to such Sub-Servicer).
Section 4.2. Duties of Servicer. (a) The Servicer shall take or cause
to be taken all such action as may be necessary or advisable to collect each
Pool Receivable from time to time, all in accordance with this Agreement and all
applicable laws, rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy. The Servicer shall set
aside for the accounts of the Seller and the Purchaser the amount of the
Collections to which each is entitled in accordance with Article II hereto. The
Seller shall deliver to the Servicer and the Servicer shall hold for the benefit
of the Seller and the Agent (for the benefit of the Purchaser and individually)
in accordance with their respective interests, all records and documents
(including without limitation computer tapes or disks) with respect to each Pool
Receivable. Notwithstanding anything to the contrary contained herein, the Agent
may direct the Servicer to commence or settle any legal action to enforce
collection of any Pool Receivable or to foreclose upon or repossess any Related
Security; provided, however, that no such direction may be given unless a
Termination Event has occurred.
(b) The Servicer's obligations hereunder shall terminate on the Final
Payout Date.
After such termination, the Servicer shall promptly deliver to the
Seller all books, records and related materials that the Seller previously
provided to the Servicer in connection with this Agreement.
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Section 4.3. Deposit Accounts; Establishment and Use of Certain
Accounts.
(a) Deposit Accounts. Servicer agrees to transfer ownership and control
of the Deposit Accounts to the Seller no later than January 31, 1997. Seller
agrees that if the Agent so requests it shall grant a valid perfected security
interest in each Deposit Account to the Purchaser pursuant to documentation
satisfactory to the Agent.
(b) Collection Account. The Servicer agrees to establish the Collection
Account on or before the date of the first purchase hereunder. The Collection
Account shall be used to accept the transfer of Collections from the Deposit
Accounts pursuant to Section 1.4(b) and for such other purposes described in the
Transaction Documents.
(c) Liquidation Account. The Servicer agrees to establish the
Liquidation Account on or before the date of the first purchase hereunder. The
Liquidation Account shall be used to receive transfers of certain amounts of the
Purchaser's share of Collections of Pool Receivables prior to the Settlement
Dates and for such other purposes described in the Transaction Documents. No
funds other than those transferred in accordance with Section 1.4 shall be
intentionally transferred into the Liquidation Account.
(d) Permitted Investments. Any amounts in the Liquidation Account or
the Collection Account, as the case may be, may be invested by the Liquidation
Account Bank or the Collection Account Bank, respectively, at Servicer's
direction, in Permitted Investments, so long as Purchaser's interest in such
Permitted Investments is perfected in a manner satisfactory to Purchaser and
such Permitted Investments are subject to no Adverse Claims other than those of
the Purchaser provided hereunder.
(e) Control of Accounts. The Agent may following any Termination Event
(or an Unmatured Termination Event of the type described in paragraph (g) of
Exhibit V) at any time give notice to the Collection Account Bank and the
Liquidation Account Bank that the Agent is exercising its rights under the
Collection Account Agreement and the Liquidation Account Agreement to do any or
all of the following: (i) to have the exclusive ownership and control of the
Collection Account and the Liquidation Account transferred to the Agent and to
exercise exclusive dominion and control over the funds deposited therein and
(ii) to take any or all other actions permitted under the Collection Account
Agreement and the Liquidation Account Agreement. The Seller hereby agrees that
if the Agent at any time takes any action set forth in the preceding sentence,
the Agent shall have exclusive control of the proceeds (including Collections)
of all Pool
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Receivables and the Seller hereby further agrees to take any other action that
the Agent may reasonably request to transfer such control. Any proceeds of Pool
Receivables received by the Seller, as Servicer or otherwise, thereafter shall
be sent immediately to the Agent. The parties hereto hereby acknowledge that if
at any time the Agent takes control of the Collection Account, the Liquidation
Account or any Deposit Account, the Agent shall not have any rights to the funds
therein in excess of the unpaid amounts due to the Agent, the Purchaser or any
other Person hereunder.
Section 4.4. Enforcement Rights. (a) At any time following the
occurrence of a Termination Event:
(i) the Agent may direct the Obligors that payment of all
amounts payable under any Pool Receivable be made directly to the Agent
or its designee;
(ii) the Agent may instruct the Seller or the Servicer to give
notice of the Purchaser's interest in Pool Receivables to each Obligor,
which notice shall direct that payments be made directly to the Agent
or its designee, and upon such instruction from the Agent the Seller or
the Servicer, as applicable, shall give such notice at the expense of
the Seller; provided, that if the Seller or the Servicer fails to so
notify each Obligor, the Agent may so notify the Obligors; and
(iii) the Agent may request the Seller or the Servicer to, and
upon such request the Seller or the Servicer, as applicable, shall, (A)
assemble all of the records necessary or desirable to collect the Pool
Receivables and the Related Security, and transfer or license to any
new Servicer the use of all software necessary or desirable to collect
the Pool Receivables and the Related Security, and make the same
available to the Agent or its designee at a place selected by the
Agent, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections with respect
to the Pool Receivables in a manner acceptable to the Agent and,
promptly upon receipt, remit all such cash, checks and instruments,
duly endorsed or with duly executed instruments of transfer, to the
Agent or its designee.
(b) The Seller hereby authorizes the Agent, and irrevocably appoints
the Agent as its attorney-in-fact with full power of substitution and with full
authority in the place and stead of the Seller, which appointment is coupled
with an interest, to take any and all steps in the name of the Seller and on
behalf of the Seller necessary or desirable, in the determination of the Agent,
to collect any and all amounts or portions thereof due
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under any and all Pool Receivables or Related Security, including, without
limitation, endorsing the name of the Seller on checks and other instruments
representing Collections and enforcing such Pool Receivables, Related Security
and the related Contracts. The Agent shall only exercise the powers construed by
this subsection (b) after the occurrence of a Termination Event. Notwithstanding
anything to the contrary contained in this subsection (b), none of the powers
conferred upon such attorney-in-fact pursuant to the immediately preceding
sentence shall subject such attorney-in-fact to any liability if any action
taken by it shall prove to be inadequate or invalid, nor shall they confer any
obligations upon such attorney-in-fact in any manner whatsoever.
Section 4.5. Responsibilities of the Seller. Anything herein to the
contrary notwithstanding, the Seller shall (i) perform all of its obligations,
if any, under the Contracts related to the Pool Receivables to the same extent
as if interests in such Pool Receivables had not been transferred hereunder, and
the exercise by the Agent or the Purchaser of its rights hereunder shall not
relieve the Seller from such obligations and (ii) pay when due any taxes,
including, without limitation, any sales taxes payable in connection with the
Pool Receivables and their creation and satisfaction. The Agent and the
Purchaser shall not have any obligation or liability with respect to any Pool
Receivable, any Related Security or any related Contract, nor shall any of them
be obligated to perform any of the obligations of the Seller or AFC under any of
the foregoing.
Section 4.6. Servicing Fee. The Servicer shall be paid a fee, through
distributions contemplated by Section 1.4(d), equal to (a) at any time AFC or an
Affiliate of AFC is the Servicer, 2% per annum of the average aggregate
Outstanding Balance of all Receivables, and (b) at any time a Person other than
AFC or an Affiliate of AFC is the Servicer, 110% of the Servicer's cost of
acting as Servicer.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or consent to any departure by the Seller or Servicer
therefrom shall be effective unless in a writing signed by the Agent, and, in
the case of any amendment, by the Seller and the Servicer and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of the
Purchaser or Agent to exercise, and no delay in exercising,
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any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
Section 5.2. Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and sent or delivered, to each party hereto, at
its address set forth under its name on the signature pages hereof or at such
other address as shall be designated by such party in a written notice to the
other parties hereto. Notices and communications by facsimile shall be effective
when sent (and shall be followed by hard copy sent by first class mail), and
notices and communications sent by other means shall be effective when received.
Section 5.3. Assignability. (a) This Agreement and the Purchaser's
rights and obligations herein (including ownership of the Participation) shall
be assignable, in whole or in part, by the Purchaser and its successors and
assigns with the prior written consent of the Seller; provided, however, that
such consent shall not be unreasonably withheld; and provided, further, that no
such consent shall be required if the assignment is made to (i) any Affiliate of
the Purchaser, (ii) any Liquidity Bank (or any Person who upon such assignment
would be a Liquidity Bank), (iii) other Program Support Provider (or any Person
who upon such assignment would be a Program Support Provider) or (iv) any Person
that is in the business of issuing Notes and is associated with or administered
by the Agent or any Affiliate of the Purchaser (each such Person, a "Note
Issuer"). Each assignor may, in connection with the assignment, disclose to the
applicable assignee any information relating to the Seller or the Pool
Receivables furnished to such assignor by or on behalf of the Seller, the
Purchaser or the Agent.
Upon the assignment by the Purchaser in accordance with this Section
5.3, the assignee receiving such assignment shall have all of the rights of the
Purchaser with respect to the Transaction Documents and the Investment (or such
portion thereof as has been assigned).
(b) The Purchaser may at any time grant to one or more banks or other
institutions (each a "Liquidity Bank") party to the Liquidity Agreement or to
any other Program Support Provider participating interests or security interests
in the Participation. In the event of any such grant by the Purchaser of a
participating interest to a Liquidity Bank or other Program Support Provider,
the Purchaser shall remain responsible for the performance of its obligations
hereunder. The Seller agrees that
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each Liquidity Bank or other Program Support Provider shall be entitled to the
benefits of Sections 1.8, 1.9 and 1.10.
(c) This Agreement and the rights and obligations of the Agent
hereunder shall be assignable, in whole or in part, by the Agent and its
successors and assigns; provided, however, that if such assignment is to any
Person who is not an Affiliate of the Agent, the Agent must receive the prior
written consent of the Seller (which consent shall not be unreasonably
withheld).
(d) Except as provided in Section 4.1(d), neither the Seller nor the
Servicer may assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of the Agent.
(e) Without limiting any other rights that may be available under
applicable law, the rights of the Purchaser may be enforced through it or by its
agents.
Section 5.4. Costs, Expenses and Taxes. (a) In addition to the rights
of indemnification granted under Section 3.1 hereof, the Seller agrees to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic auditing of Pool
Receivables) of this Agreement, the Liquidity Agreement, the Purchase and Sale
Agreement and the other documents and agreements to be delivered hereunder or in
connection herewith, including all reasonable costs and expenses relating to the
amending, amending and restating, modifying or supplementing of this Agreement,
the Liquidity Agreement, the Purchase and Sale Agreement and the other documents
and agreements to be delivered hereunder or in connection herewith and the
waiving of any provisions thereof, and including in all cases, without
limitation, Attorney Costs for the Agent, the Purchaser and their respective
Affiliates and agents with respect thereto and with respect to advising the
Agent, the Purchaser and their respective Affiliates and agents as to their
rights and remedies under this Agreement and the other Transaction Documents
(provided the costs and expenses payable in connection with the administration
of the Transaction Documents (excluding any costs and expenses in connection
with any amendment, amendment and restatement, modification, supplement or
waiver) in any year shall not exceed $15,000), and all reasonable costs and
expenses, if any (including Attorney Costs), of the Agent, the Purchaser and
their respective Affiliates and agents, in connection with the enforcement of
this Agreement and the other Transaction Documents.
(b) In addition, the Seller shall pay on demand any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or
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the other documents or agreements to be delivered hereunder, and agrees to save
each Indemnified Party harmless from and against any liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes and fees.
Section 5.5. No Proceedings; Limitation on Payments. Each of the
Seller, the Servicer, the Agent, each assignee of the Participation or any
interest therein, and each Person which enters into a commitment to purchase or
does purchase the Participation or interests therein, hereby covenants and
agrees that it will not institute against, or join any other Person in
instituting against, any Note Issuer, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and one day after the
latest maturing Note issued by any such Note Issuer is paid in full.
Section 5.6 Confidentiality. Unless otherwise required by applicable
law or already known by the general public or the third party to which it is
disclosed, the Seller agrees to maintain the confidentiality of this Agreement
and the other Transaction Documents (and all drafts thereof) in communications
with third parties and otherwise; provided that this Agreement may be disclosed
to (a) third parties to the extent such disclosure is made pursuant to a written
agreement of confidentiality in form and substance reasonably satisfactory to
the Agent, and (b) the Seller's legal counsel and auditors if they agree to hold
it confidential.
Section 5.7. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
INDIANA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF),
EXCEPT TO THE EXTENT THAT THE PERFECTION (OR THE EFFECT OF PERFECTION OR
NON-PERFECTION) OF THE INTERESTS OF THE PURCHASER IN THE POOL RECEIVABLES AND
THE OTHER ITEMS DESCRIBED IN SECTION 1.2(d) IS GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF INDIANA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE PURCHASER, THE SELLER, THE SERVICER AND THE AGENT
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE PURCHASER, THE SELLER, THE SERVICER
AND THE AGENT IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
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AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE PURCHASER, THE SELLER, THE
SERVICER AND THE AGENT EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
Section 5.8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
Section 5.9. Survival of Termination. The provisions of Sections 1.8,
1.9, 1.10, 3.1, 5.4, 5.5, 5.6, 5.7 and 5.10 shall survive any termination of
this Agreement.
Section 5.10. WAIVER OF JURY TRIAL. THE PURCHASER, THE SELLER, THE
SERVICER AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. THE PURCHASER, THE SELLER, THE SERVICER AND THE AGENT EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES
THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 5.11. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Purchaser, the Seller, the Servicer and
the Agent, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof, except for any prior arrangements made with respect
to the payment by the Purchaser of (or any indemnification for) any fees, costs
or expenses payable to or incurred (or to be incurred) by or on behalf of the
Seller, the Servicer and the Agent.
Section 5.12. Headings. The captions and headings of this Agreement and
in any Exhibit hereto are for convenience of reference only and shall not affect
the interpretation hereof or thereof.
Section 5.13. Purchaser's Liabilities. The obligations of the Purchaser
under this Agreement are solely the corporate
-24-
obligations of the Purchaser. No recourse shall be had for any obligation or
claim arising out of or based upon this Agreement against any stockholder,
employee, officer, director or incorporator of the Purchaser; and provided,
however, that this Section 5.13 shall not relieve any such Person of any
liability it might otherwise have for its own gross negligence or willful
misconduct. The agreements provided in this Section 5.13 shall survive
termination of this Agreement.
-25-
AFC FUNDING CORPORATION, as Seller
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
-----------------------
Telephone:
-----------------------
Facsimile:
-----------------------
AUTOMOTIVE FINANCE CORPORATION, as
Servicer
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
-----------------------
Telephone:
-----------------------
Facsimile:
-----------------------
POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION, as Purchaser
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
c/▇ ▇▇▇▇▇▇▇▇▇▇▇ Contract
Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Facsimile: 212/346-9012
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES INC., as
Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Executive Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------
