EXHIBIT 10.1
EXECUTION COPY
MASTER RECEIVABLES PURCHASE AGREEMENT
between
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
and
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
dated as of
December 18, 2001
TABLE OF CONTENTS
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EXHIBITS
EXHIBIT A Form of Receivables Purchase Agreement Supplement
SCHEDULES
SCHEDULE A Schedule of Receivables
THIS
MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of December 18,
2001, executed between
Household Auto Receivables Corporation, a Nevada
corporation, as purchaser ("HARC") and Household Automotive Finance Corporation,
a Delaware corporation, as seller ("SELLER").
W I T N E S S E T H :
WHEREAS, HARC has agreed to purchase from time to time from Seller,
and Seller, pursuant to this Agreement, has agreed to transfer from time to time
to HARC the Receivables and the Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, HARC and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 GENERAL. Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the
Master Sale and Servicing Agreement.
SECTION 1.2 SPECIFIC TERMS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"AGREEMENT" means this
Master Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"CLOSING DATE" means December 18, 2001.
"CONVEYANCE" shall have the meaning specified in Section 2.1.
"CONVEYANCE PAPERS" shall have the meaning specified in Section 3.1.
"CUTOFF DATE" shall have the meaning assigned to such term in the
Master Sale and Servicing Agreement or applicable Receivables Purchase Agreement
Supplement.
"MASTER SALE AND SERVICING AGREEMENT" means the Master Sale and
Servicing Agreement dated as of December 18, 2001, by and among Household
Automotive Warehouse Trust, as Issuer, HARC, as Seller, Household Finance
Corporation, as Master Servicer, and Xxxxx Fargo Bank Minnesota, National
Association, as Indenture Trustee, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"OTHER CONVEYED PROPERTY" means all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture (including all property and interests granted
to the Indenture Trustee), including all proceeds thereof, other than the
Receivables.
"PURCHASE DATE" means, with respect to Receivables, any date, on
which Receivables are to be purchased by HARC pursuant to this Agreement and a
Receivables Purchase Agreement Supplement is executed and delivered by Seller
and HARC.
"RECEIVABLES" means the Receivables listed on the Schedules of
Receivables attached to this Agreement or to each Receivables Purchase Agreement
Supplement as Schedule A.
"RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT" means an agreement
between HARC and Seller, substantially in the form of Exhibit A hereto.
"REPURCHASE EVENT" means a determination pursuant to Section 3.2 or
Section 4.7 of the Master Sale and Servicing Agreement that HARC is required to
repurchase a Receivable.
"SCHEDULE OF RECEIVABLES" means the schedule of Receivables sold and
transferred pursuant to this Agreement and each related Receivables Purchase
Agreement Supplement from time to time, which schedule collectively includes the
schedules attached as Schedule A to this Agreement and Schedule A to each
related Receivables Purchase Agreement Supplement.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, other documents, or Conveyance Paper made
or delivered pursuant hereto unless otherwise defined herein.
(b) The words "HEREOF", "HEREIN" and "HEREUNDER" and words of
similar import when used in this Agreement or any Conveyance Paper shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections, Schedules and Exhibits
in or to this Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge balance of
Receivables, and of any collections thereof, shall be made in accordance with
the Master Sale and Servicing Agreement and the Series Supplement.
SECTION 1.4 CERTAIN REFERENCES. All references to the Principal
Balance of a Receivable as of any date of determination shall refer to the
close of business on such day, or as of the first day of a Collection Period
shall refer to the opening of business on such day. All references to the
last day of a Collection Period shall refer to the close of business on such
day.
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SECTION 1.5 NO RECOURSE. Without limiting the obligations of
Seller hereunder, no recourse may be taken, directly or indirectly, under
this Agreement or any certificate or other writing delivered in connection
herewith or therewith, against any stockholder, officer or director, as such,
of Seller, or of any predecessor or successor of Seller.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 PURCHASE.
(a) By execution of this Agreement and subject to the terms and
conditions of this Agreement, on each Purchase Date Seller shall sell, transfer,
assign, and otherwise convey to HARC (collectively, the "CONVEYANCE") without
recourse (but without limitation of its obligations in this Agreement), and HARC
shall purchase, all right, title and interest of Seller in AND TO:
(i) each and every Receivable listed from time to time on
Schedule A hereto or to each related Receivables Purchase Agreement
Supplement and all monies paid or payable thereon or in respect
thereof on or after the related Cutoff Date (including amounts due
on or before the related Cutoff Date but received by Seller on or
after such date);
(ii) the security interests in the related Financed Vehicles
granted by Obligors pursuant to such Receivables and any other
interest of Seller in such Financed Vehicles;
(iii) all rights of Seller against Dealers
pursuant to Dealer Agreements or Dealer Assignments related
to such Receivables;
(iv) any proceeds and the right to receive proceeds with
respect to such Receivables repurchased by a Dealer, pursuant to a
Dealer Agreement, as a result of a breach of representation or
warranty in the related Dealer Agreement;
(v) all rights of Seller under any Service
Contracts on the related Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with
respect to the related Receivables from claims on any physical
damage, loss, credit life or disability insurance policies, if any,
covering Financed Vehicles or Obligors, including rebates of
insurance premiums relating to the Receivables and any proceeds from
the liquidation of such Receivables;
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(vii) all items contained in the Receivables Files with
respect to such Receivables and any and all other documents that
Seller or Master Servicer keeps on file in accordance with its
customary procedures relating to the related Receivables, or the
related Financed Vehicles or Obligor;
(viii) all property (including the right to receive future Net
Liquidation Proceeds) that secures each related Receivable and that
has been acquired by or on behalf of HARC pursuant to the
liquidation of such Receivable; and
(ix) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or
part of or are included in the proceeds of any of the foregoing.
(b) Simultaneously with the conveyance of the Receivables and the
Other Conveyed Property to HARC by Seller, HARC has paid or caused to be paid to
or upon the order of Seller an amount equal to 100% of the Principal Balance of
the Receivables on the books and records of Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into account
any uncertainty as to future performance matching historical performance,
servicing fees, delinquencies, pay down rates, yield and such other factors as
may be mutually agreed upon between Seller and HARC, by wire transfer of
immediately available funds.
(c) In connection with such Conveyance, Seller further agrees that
it will, at its own expense, on or prior to the Purchase Date (i) indicate in
its computer files or microfiche lists that the Receivables have been conveyed
to HARC in accordance with this Agreement and have been conveyed by HARC to the
Indenture Trustee pursuant to the Master Sale and Servicing Agreement for the
benefit of the Secured Parties by including in such computer files and
microfiche lists the code identifying each such Receivable and (ii) deliver to
HARC (or to the Indenture Trustee if HARC so directs) a computer file or
microfiche list containing a true and complete list of all such Receivables
specifying for each such Receivable, as of the Cutoff Date (A) its account
number and (B) the outstanding balance of such Receivable. Such computer files
or microfiche lists shall be delivered to HARC (or to the Indenture Trustee if
so directed by HARC) and marked as proprietary and confidential. Seller further
agrees not to alter the code referenced in clause (i) of this paragraph with
respect to any Receivable during the term of this Agreement.
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(d) The parties hereto intend that the conveyance of Seller's right,
title and interest in and to the Receivables and Other Conveyed Property shall
constitute a sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from Seller to HARC and that the Receivables
and Other Conveyed Property shall not be part of Seller's estate in the event of
the insolvency of Seller or a conservatorship, receivership or similar event
with respect to Seller. It is the intention of the parties hereto that the
arrangements with respect to the Receivables and Other Conveyed Property shall
constitute a purchase and sale of such Receivables and not a loan. In the event,
however, that a court of competent jurisdiction were to hold that the
transactions evidenced hereby constitute a loan and not a purchase and sale, it
is the intention of the parties hereto that this Agreement shall constitute a
security agreement under applicable law, and that Seller shall be deemed to have
granted to HARC a first priority perfected security interest in all of such
Seller's right, title and interest in and to the Receivables and Other Conveyed
Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
makes the following representations and warranties as of the date hereof on
which HARC relies in purchasing the Receivables and the Other Conveyed
Property and in transferring the Receivables and the Other Conveyed Property
to the Issuer under the Master Sale and Servicing Agreement. Such
representations are made as of the execution and delivery of this Agreement
and as to Receivables and Other Conveyed Property conveyed thereunder, as of
the execution and delivery of each Receivables Purchase Agreement Supplement,
but shall survive the sale, transfer and assignment of the Receivables and
the Other Conveyed Property hereunder, and the sale, transfer and assignment
thereof by HARC to the Issuer under the Master Sale and Servicing Agreement.
Seller and HARC agree that HARC will assign to Issuer all HARC's rights under
this Agreement and each Receivables Purchase Agreement Supplement and that
the Indenture Trustee will thereafter be entitled to enforce this Agreement
and each Receivables Purchase Agreement Supplement against Seller in the
Indenture Trustee's own name on behalf of the Securityholders.
(a) ELIGIBILITY CRITERIA. Each of the Receivables which
is to be pledged as collateral for the Notes will satisfy the
Eligibility Criteria set forth in Schedule I to the Series Supplement.
(b) ORGANIZATION AND GOOD STANDING. Seller is a corporation
duly organized and validly existing in good standing under the laws of the
State of Delaware and has, in all material respects, full power and authority
to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
(c) DUE OBLIGATION. Seller is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements) and has obtained
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all necessary licenses and approvals, in each jurisdiction in which failure
to so qualify or to obtain such licenses and approvals would (i) render any
Receivable unenforceable by Seller, HARC or the Trust and (ii) have a
material adverse effect on the Secured Parties.
(d) DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement and any other document or instrument delivered pursuant hereto
(such other documents and instruments, including, but not limited to, the
Receivables Purchase Agreement Supplement collectively, the "CONVEYANCE PAPERS")
and the consummation of the transactions provided for in this Agreement or any
other Conveyance Papers have been duly authorized by all necessary corporate
action on the part of Seller and constitute or will constitute the legal, valid
and binding obligation of Seller, enforceable in accordance with their terms.
(e) NO CONFLICT. The execution and delivery of this Agreement and
the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms of
this Agreement and the Conveyance Papers applicable to Seller will not
conflict with, violate or result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which Seller is a party or by which it
or any of its properties are bound.
(f) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers and the fulfillment of the terms
contemplated herein and therein applicable to Seller will not conflict with
or violate any requirements of law applicable to Seller.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of Seller, threatened against Seller,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement
or the Conveyance Papers, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Conveyance Papers,
(iii) seeking any determination or ruling that, in the reasonable judgment of
Seller, would materially and adversely affect the performance by Seller of
its obligations under this Agreement or the Conveyance Papers, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or the Conveyance Papers or (v)
seeking to affect adversely the income tax attributes of the Trust under
United States Federal, Nevada or California income tax systems.
(h) ALL CONSENTS. All authorizations, consents, orders,
approvals, registrations or declarations with, or of, any Governmental
Authority required to be obtained, effected or given by Seller in connection
with the execution and delivery by Seller of this Agreement or the Conveyance
Papers and the performance of the transactions contemplated by this Agreement
or the Conveyance Papers by Seller have been duly obtained, effected or given
and are in full force and effect.
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SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF HARC. HARC makes
the following representations and warranties, on which Seller relies in
selling, assigning, transferring and conveying the Receivables and the Other
Conveyed Property to HARC hereunder. Such representations are made as of the
execution and delivery of this Agreement and as to Receivables and Other
Conveyed Property conveyed thereunder, as of the execution and delivery of
each Receivables Purchase Agreement Supplement, but shall survive the sale,
transfer and assignment of the Receivables and the Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by HARC to the Issuer
under the Master Sale and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. HARC is a corporation duly
organized and validly existing under the laws of the State of Nevada and has,
in all material respects, full power and authority to own its properties and
conduct its business as such properties are presently owned and such business
is presently conducted and to execute, deliver and perform its obligations
under this Agreement and the Conveyance Papers.
(b) DUE AUTHORIZATION. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by HARC by all necessary corporate action on the part of HARC.
(c) NO CONFLICT. The execution and delivery of this Agreement and
the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms
hereof and thereof, will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which HARC is a
party or by which it or its properties is bound.
(d) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers by HARC and the fulfillment of the terms
contemplated herein and therein applicable to HARC will not conflict with or
violate any requirements of law applicable to HARC.
(e) NO PROCEEDING. There are no proceedings or investigations
pending or, to the best knowledge of HARC, threatened against HARC, before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of HARC, would
materially and adversely affect the performance by HARC of its obligations under
this Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers.
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(f) ALL CONSENTS. All authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental Authority required to
be obtained, effected or given by HARC in connection with the execution and
delivery by HARC of this Agreement and the Conveyance Papers and the performance
of the transactions contemplated by this Agreement and the Conveyance Papers or
the fulfillment of the terms of this Agreement and the Conveyance Papers by HARC
have been duly obtained.
In the event of any breach of a representation and warranty made by
HARC hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes and
Certificates issued by the Trust have been paid in full. Seller and HARC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by HARC, Issuer or by the Indenture
Trustee on behalf of the Noteholders and the Owner Trustee on behalf of the
Certificateholders. Seller agrees that with respect to its obligations in
connection with a Repurchase Event it will exercise no rights of offset with
respect to any claims it may have against HARC.
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 SELLER'S COVENANTS. Seller hereby covenants and
agrees with HARC as follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES.
Seller will take no action to cause any Receivable to be evidenced by
any instrument (as defined in the UCC).
(b) SECURITY INTERESTS. Except for the conveyances hereunder or as
otherwise provide herein, Seller will not sell, pledge, assign or transfer to
any other Person, or take any other action inconsistent with HARC's ownership of
the Receivables or grant, create, incur, assume or suffer to exist any Lien on
any Receivable, whether now existing or hereafter created, or any interest
therein, and Seller shall not claim any ownership interest in the Receivables
and shall defend the right, title and interest of HARC in and to the
Receivables, whether now existing or hereafter created, against all claims of
third parties claiming through or under Seller.
(c) SECURITY'S INTEREST. Except for the conveyances hereunder and in
connection with any transaction permitted pursuant to Section 6.6, Seller hereby
agrees not to transfer, assign, exchange or otherwise convey or pledge,
hypothecate or otherwise grant a security interest in the Receivables and any
such attempted transfer, assignment, exchange, conveyance, pledge, hypothecation
or grant shall be void.
(d) DELIVERY OF COLLECTIONS OR RECOVERIES. In the event that Seller
receives collections or recoveries with respect to the Receivables, Seller
agrees to pay to HARC
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(or to the Master Servicer if HARC so directs) all such collections and
recoveries to the extent such amounts are payable to HARC as soon as
practicable after receipt thereof.
(e) NOTICE OF LIENS. Seller shall notify HARC promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder.
(f) DOCUMENTATION OF TRANSFER. Seller shall undertake to file the
documents which would be necessary to perfect and maintain the transfer of the
security interest in and to the Receivables and Other Conveyed Assets.
(g) APPROVAL OF OFFICE RECORDS. Seller shall cause this Agreement to
be duly approved by Seller's Board of Directors, and Seller shall maintain the
Agreement as a part of the official records of Seller for the term of the
Agreement.
(h) MAINTENANCE OF SECURITY INTERESTS IN VEHICLES. In the event that
the assignment of a Receivable to HARC or any assignee thereof is insufficient,
without a notation on the related Financed Vehicle's certificate of title, or
without fulfilling any additional administrative requirements under the laws of
the state in which the Financed Vehicle is located, to perfect a security
interest in the related Financed Vehicle in favor of the HARC or any assignee
thereof, Seller hereby agrees that the designation of Seller or any Affiliate of
Seller as the secured party on the certificate of title is in its capacity as
agent of HARC or the agent of any assignee of HARC for such limited purpose.
ARTICLE V
REPURCHASES
SECTION 5.1 REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY.
Upon the occurrence of a Repurchase Event, Seller shall, unless the breach
which is the subject of such Repurchase Event shall have been cured in all
material respects, repurchase the Receivable relating thereto from the Issuer
by the last day of the first full calendar month following the discovery of
such breach by Seller or receipt by Seller of notice of such breach from any
of the Master Servicer, HARC, a Trust Officer of the Indenture Trustee or the
Owner Trustee and, simultaneously with the repurchase of the Receivable,
Seller shall deposit the Repurchase Amount in full, without deduction or
offset, in the Collection Account, pursuant to Section 3.2 of the Master Sale
and Servicing Agreement. It is understood and agreed that, except as set
forth in Section 6.1 hereof, the obligation of Seller to repurchase any
Receivable, as to which a breach occurred and is continuing, shall, if such
obligation is fulfilled, constitute the sole remedy against Seller for such
breach available to HARC, the Issuer, the Secured Parties, the Noteholders,
the Certificateholders, the Indenture Trustee on behalf of the Noteholders or
the Owner Trustee on behalf of the Certificateholders. The provisions of this
Section 5.1 are intended to grant the Indenture Trustee or the Issuer a
direct right against Seller to demand performance hereunder, and in
connection therewith, Seller waives any requirement of prior demand against
HARC with respect to such repurchase obligation. Any such repurchase shall
take place in the manner specified in Section 3.2 of the Master Sale and
Servicing Agreement. Notwithstanding any other provision of this Agreement
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or the Master Sale and Servicing Agreement to the contrary, the obligation of
Seller under this Section shall not terminate upon a termination of Household
Finance Corporation as Master Servicer under the Master Sale and Servicing
Agreement and shall be performed in accordance with the terms hereof
notwithstanding the failure of the Master Servicer or HARC to perform any of
their respective obligations with respect to such Receivable under the Master
Sale and Servicing Agreement.
SECTION 5.2 REASSIGNMENT OF REPURCHASED RECEIVABLES. Upon deposit
in the Collection Account of the Repurchase Amount of any Receivable
repurchased by Seller under Section 5.1 hereof, HARC and the Issuer shall
take such steps as may be reasonably requested by Seller in order to assign
to Seller all of HARC's and the Issuer's right, title and interest in and to
such Receivable and all security and documents and all Other Conveyed
Property conveyed to HARC and the Issuer directly relating thereto, without
recourse, representation or warranty, except as to the absence of liens,
charges or encumbrances created by or arising as a result of actions of HARC
or the Issuer. Such assignment shall be a sale and assignment outright, and
not for security. If, following the reassignment of a Repurchased Receivable,
in any enforcement suit or legal proceeding, it is held that Seller may not
enforce any such Receivable on the ground that it shall not be a real party
in interest or a holder entitled to enforce the Receivable, HARC and the
Issuer shall, at the expense of Seller, take such steps as Seller deems
reasonably necessary to enforce the Receivable, including bringing suit in
HARC's or in the Issuer's name.
SECTION 5.3 WAIVERS. No failure or delay on the part of HARC, or
the Issuer as assignee of HARC, in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
future exercise thereof or the exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 LIABILITY OF SELLER. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
SECTION 6.2 AMENDMENT. This Agreement and any Conveyance Papers
and the rights and obligations of the parties hereunder may not be changed
orally, but only by an instrument in writing signed by HARC and Seller in
accordance with this Section 6.2. This Agreement and any Conveyance Papers
may be amended from time to time, with the prior written consent of the
Administrative Agent, where one exists, or otherwise, the Managing Agents, by
HARC and Seller, provided that HARC provides to Seller (a) an Officer's
Certificate to the effect that HARC reasonably believes that such amendment
will not have an adverse effect upon the interest of any Secured Party, the
Noteholders or the Certificateholders and (b) an Opinion of Counsel addressed
and
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delivered to Seller, dated the date of such amendment, to the effect that
the conditions precedent to any such amendment have been satisfied.
SECTION 6.3 GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.4 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt
requested, to (a) in the case of Seller, 0000 Xxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Chief Operating Officer, with a copy to 0000
Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 Attention: Director--Asset
Securitization, (b) in the case of HARC, 0000 Xxxx Xxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxx 00000 Attention: Compliance Officer, with a copy to 0000 Xxxxxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer; or, as to each party,
at such other address as shall be designated by such party in a written
notice to each other party.
SECTION 6.5 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement or Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any
Conveyance Paper and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of any Conveyance Paper.
SECTION 6.6 ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, other than HARC's assignment of its rights, title, and
interests in, to, and under this Agreement to the Issuer and by the Issuer to
the Indenture Trustee for the benefit of the Secured Parties, as contemplated
by the Master Sale and Servicing Agreement and Section 6.7 hereof, the
Receivables, the Other Conveyed Property, this Agreement and all other
Conveyance Papers may not be assigned by the parties hereto; PROVIDED,
HOWEVER, that Seller shall have the right to assign its rights, title and
interests, in to and under this Agreement to (i) any successor by merger or
consolidation, or any Person which acquires by conveyance, transfer or sale
the properties and assets of Seller or (ii) any Affiliate owned directly or
indirectly by Household International, Inc. The right granted in the
foregoing proviso is subject to the further condition that any such successor
or other Person shall expressly assume by written agreement, in form and
substance satisfactory to HARC, the obligations of Seller hereunder and under
the Conveyance Papers.
SECTION 6.7 ACKNOWLEDGMENT AND AGREEMENT OF SELLER. By execution
below, Seller expressly acknowledges and agrees that all of HARC's right,
title, and interest in, to, and under this Agreement, including, without
limitation, all of HARC's right title, and interest in and to the Receivables
purchased pursuant to this Agreement, shall be assigned by HARC to the Issuer
and by the Issuer to the Indenture Trustee for the
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benefit of the Secured Parties, and Seller consents to such assignment.
Additionally, Seller agrees for the benefit of the Indenture Trustee that any
amounts payable by Seller to HARC hereunder which are to be paid by HARC to
the Indenture Trustee for the benefit of the Secured Parties shall be paid by
Seller, on behalf of HARC, directly to the Indenture Trustee. Any payment
required to be made on or before a specified date in same-day funds may be
made on the prior business day in next-day funds.
SECTION 6.8 FURTHER ASSURANCES . HARC and Seller agree to do and
perform, from time to time, any and all acts to authenticate any and further
records, to execute any and further instruments, in each case required or
reasonably requested by the other party more fully to effect the purposes of
this Agreement and the Conveyance Papers, including, without limitation, the
execution of any financing statements or continuation statements or
equivalent documents relating to the Receivables for filing under the
provisions of the UCC or other law of any applicable jurisdiction.
SECTION 6.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of HARC or Seller, any
right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 6.10 COUNTERPARTS. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.11 BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This
Agreement and the Conveyance Papers will inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Each of the Indenture Trustee and the Owner Trustee shall be
considered a third-party beneficiary of this Agreement.
SECTION 6.12 MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers set forth
the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement and the Conveyance Papers. This Agreement and the Conveyance Papers
may not be modified, amended, waived or supplemented except as provided
herein.
SECTION 6.13 HEADING. The headings are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 6.14 SCHEDULES AND EXHIBITS. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
SECTION 6.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and agreements contained in this Agreement or
contained in any Conveyance Paper, shall remain operative and in full force
and effect and shall
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survive conveyance of the Receivables by HARC to the Issuer pursuant to the
Master Sale and Servicing Agreement.
SECTION 6.16 NONPETITION COVENANT. Until the date which is one
year and one day after payment in full of all the Notes, neither HARC nor
Seller shall petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against HARC, Seller or the Issuer under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of HARC, Seller or
the Issuer or any substantial part of their respective properties, or
ordering the winding up or liquidation of the affairs of HARC, Seller or the
Issuer. This provision shall survive the termination of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this
Master Receivables
Purchase Agreement to be duly executed by their respective officers as of the
day and year first above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By: /s/ X. X. Xxxxxx
------------------------------------------
Name: X. X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Assistant
Treasurer
EXHIBIT A
FORM OF RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT
Transfer No. __ of Receivables, dated as of ___________________,
pursuant to a
Master Receivables Purchase Agreement (the "PURCHASE
AGREEMENT") dated as of December 18, 2001, between Household Automotive
Finance Corporation, a Delaware corporation (the "SELLER") and
Household Auto
Receivables Corporation, a Nevada corporation ("HARC").
W I T N E S S E T H :
WHEREAS pursuant to the Purchase Agreement, Seller wishes to convey
Receivables and Other Conveyed Property to HARC; and
WHEREAS, HARC is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, Seller and HARC hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall
have the meanings ascribed to them in the Purchase Agreement unless
otherwise defined herein.
"CUTOFF DATE" shall mean with respect to the Receivables conveyed
hereby, the close of business on __________________________, 20__.
"PURCHASE DATE" shall mean with respect to the Receivables conveyed
hereby, ________________________, 20__.
"PURCHASE PRICE" shall mean 100% of the Principal Balance of the
Receivables on the books and records of Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into account
any uncertainty as to future performance matching historical performance,
servicing fees, delinquencies, paydown rates, yield and such other factors as
may be mutually agreed upon by Seller and HARC.
"TRANSFER DATE" means, with respect to Receivables, any date on
which Receivables are to be transferred to the Trust pursuant to the Master Sale
and Servicing Agreement and this Agreement.
2. SCHEDULE OF RECEIVABLES. Annexed as Schedule A
hereto is a computer file which reflects the Receivables that
constitute the receivables to be conveyed pursuant to this Agreement on
the Purchase Date.
3. CONVEYANCE OF RECEIVABLES. In consideration of HARC'S delivery to
or upon the order of Seller of the Purchase Price, Seller does hereby sell,
transfer,
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assign, set over and otherwise convey to HARC, without recourse (except as
expressly provided in the Purchase Agreement), all right, title and interest
of the Seller in and to:
(i) each and every Receivable listed on Schedule A hereto and
all monies paid or payable thereon or in respect thereof on or after
the Cutoff Date (including amounts due on or before the Cutoff Date
but received by the Seller on or after such date);
(ii) the security interests in the related Financed Vehicles
granted by Obligors pursuant to such Receivables and any other
interest of the Seller in such Financed Vehicles;
(iii) all rights of Seller against Dealers pursuant to Dealer
Agreements or Dealer Assignments related to such Receivables;
(iv) any proceeds and the right to receive proceeds with
respect to such Receivables repurchased by a Dealer, pursuant to a
Dealer Agreement, as a result of a breach of representation or
warranty in the related Dealer Agreement;
(v) all rights of Seller under any Service Contracts on the
related Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with
respect to the related Receivables from claims on any physical
damage, loss, credit life or disability insurance policies, if any,
covering Financed Vehicles or Obligors, including rebates of
insurance premiums relating to the Receivables and any proceeds from
the liquidation of such Receivables;
(vii) all items contained in the Receivables Files with
respect to such Receivables and any and all other documents that the
Seller or the Master Servicer keeps on file in accordance with its
customary procedures relating to the related Receivables, or the
related Financed Vehicles or Obligor;
(viii) property (including the right to receive future Net
Liquidation Proceeds) that secures each related Receivable and that
has been acquired by or on behalf of HARC pursuant to liquidation of
such Receivable;
(ix) all present and future claims, demands, causes and
chooses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any
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time constitute all or part of or are included in the proceeds of
any of the foregoing.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. As of the Purchase
Date, the Seller hereby makes the representations and warranties to HARC that
are set forth in Section 3.1 of the Purchase Agreement with respect to the
Conveyance effected hereby to the same extent as if set forth in full herein.
5. REPRESENTATIONS AND WARRANTIES OF HARC. As of the Purchase Date,
HARC hereby makes the representations and warranties to the Seller that are set
forth in Section 3.2 of the Purchase Agreement with respect to the Conveyance
effected hereby to the same extent as if set forth in full herein.
In the event of any breach of a representation and warranty made by
HARC hereunder, the Seller covenants and agrees that it will not take any action
to pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes and
Certificates issued by the Trust have been paid in full. Seller and HARC agree
that damages will not be an adequate remedy for such breach and that this
covenant may be specifically enforced by HARC, the Issuer or by the Indenture
Trustee on behalf of the Noteholders and the Owner Trustee on behalf of the
Certificateholders.
6. CONDITIONS PRECEDENT. The obligation of HARC to acquire
the Receivables hereunder is subject to the satisfaction, on or prior to the
Purchase Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Seller in Section 4 of this Agreement and in Section 3.1
of the
Master Receivables Purchase Agreement shall be true and correct as of the
date of this Agreement and as of the Purchase Date.
(b) ADDITIONAL INFORMATION. The Seller shall have delivered to HARC
such information as was reasonably requested by HARC to satisfy itself as to (i)
the accuracy of the representations and warranties set forth in Section 4 of
this Agreement and in Section 3.1 of the
Master Receivables Purchase Agreement
and (ii) the satisfaction of the conditions set forth in this Section.
7. RATIFICATION OF AGREEMENT. As supplemented by this Agreement, the
Purchase Agreement is in all respects ratified and confirmed and the Purchase
Agreement as so supplemented by this Agreement shall be read, taken and
construed as one and the same instrument.
8. COUNTERPARTS. This Agreement may be executed in two or more
Counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
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9. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY TO
THE ISSUER. The Seller acknowledges that HARC intends, pursuant to the Master
Sale and Servicing Agreement, to convey the Receivables and the Other Conveyed
Property, together with its rights under this Agreement, to the Issuer on the
Transfer Date. The Seller acknowledges and consents to such conveyance and
pledge and waives any further notice thereof and covenants and agrees that the
representations and warranties of Seller contained in this Agreement and the
rights of HARC hereunder are intended to benefit the Issuer, The Indenture
Trustee, The Owner Trustee, the Secured Parties and the Certificateholders. In
furtherance of the foregoing, the Seller covenants and agrees to perform its
duties and obligations hereunder, in accordance with the terms hereof for the
benefit of the Secured Parties, the Issuer, the Indenture Trustee and the Owner
Trustee and that, notwithstanding anything to the contrary in this Agreement,
the Seller shall be directly liable to the Issuer, the Owner Trustee, the
Indenture Trustee and the Secured Parties (notwithstanding any failure by the
Master Servicer or HARC to perform their respective duties and obligations
hereunder or under any Basic Document) and that the Indenture Trustee may
enforce the duties and obligations of the Seller under this Agreement against
the Seller for the benefit of the Secured Parties and the Owner Trustee.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Seller and HARC have caused this Purchase
Agreement to be duly executed and delivered by their respective duly authorized
officers as of day and the year first above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By:_______________________________________
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By:_______________________________________
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
(COMPUTER FILE HELD AT THE OFFICES OF XXXXX XXXXXXXXXX LLP)
SCH A-1
