EXECUTION COPY
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PURCHASE AGREEMENT
between
GERMAN AMERICAN CAPITAL CORPORATION
as Transferor
and
ACE SECURITIES CORP.
as Purchaser
Dated as of June 1, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions...................................................1
SECTION 1.2. Other Interpretive Provisions.................................1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables..............................2
SECTION 2.2. Receivables Purchase Price....................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Purchaser...................3
SECTION 3.2. Representations and Warranties of Transferor..................4
SECTION 3.3. Representations and Warranties as to Each Receivable..........5
SECTION 3.4. Repurchase upon Breach........................................5
ARTICLE IV
COVENANTS OF TRANSFEROR
SECTION 4.1. Protection of Title to Transferor Assets......................6
SECTION 4.2. Liability of Transferor; Indemnities..........................7
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Transferor.....................................9
SECTION 5.2. Transferor's Assignment of Purchased Receivables..............9
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee...........9
SECTION 5.4. Amendment.....................................................9
SECTION 5.5. Waivers......................................................11
SECTION 5.6. Notices......................................................11
SECTION 5.7. Costs and Expenses...........................................11
SECTION 5.8. Representations to Transferor................................11
SECTION 5.9. Governing Law................................................11
SECTION 5.10. Counterparts.................................................11
SECTION 5.11. Third Party Beneficiaries....................................11
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (as from time to time amended, supplemented or
otherwise modified and in effect, this "AGREEMENT") is made as of this 1st day
of June, 2001 by and between GERMAN AMERICAN CAPITAL CORPORATION, a Maryland
corporation (the "TRANSFEROR"), and ACE SECURITIES CORP., a Delaware corporation
(the "PURCHASER").
WHEREAS, in the regular course of its business, Loans were originated by
one of the Originators either directly or through dealers.
WHEREAS, in the regular course of its business, Transferor purchased
directly or indirectly from the Originators Loans;
WHEREAS, Purchaser desires to purchase from Transferor a portfolio of
Loans; and
WHEREAS, Transferor is willing to sell such Loans to Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms are used in this Agreement as
defined in APPENDIX X to the Sale and Servicing Agreement among the ACE RV and
Marine Trust 2001-RV1, as issuer, the Purchaser, as seller, Xxxxx Fargo Bank,
N.A. ("Xxxxx Fargo") as servicer, Xxxxx Fargo Bank Northwest, N.A., Xxxxx Fargo
Bank New Mexico, N.A. and The Chase Manhattan Bank, as Indenture Trustee.
SECTION 1.2. OTHER INTERPRETIVE PROVISIONS. For purposes of this Agreement,
unless the context otherwise requires: (a) accounting terms not otherwise
defined in this Agreement, and accounting terms partly defined in this Agreement
to the extent not defined, shall have the respective meanings given to them
under GAAP; (b) terms defined in Article 9 of the UCC and not otherwise defined
in this Agreement are used as defined in that Article; (c) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Agreement as
a whole and not to any particular provision of this Agreement; (d) references to
any Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
except as otherwise expressly provided herein, references to any law or
regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (g) references to any Person include
that Person's successors and assigns; and (h) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. PURCHASE AND SALE OF RECEIVABLES.
Effective as of the Closing Date and immediately prior to the transactions
pursuant to the Indenture, the Sale and Servicing Agreement and the Trust
Agreement, Transferor does hereby sell, transfer, assign, set over and otherwise
convey to Purchaser, without recourse (subject to the obligations herein) (the
"TRANSFEROR ASSETS"):
(i) all right, title and interest of Transferor in and to the
Receivables, and all moneys received thereon on or after the Cutoff Date;
(ii) all right, title and interest of Transferor in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of Transferor in the Financed Vehicles
and any other property that shall secure the Receivables;
(iii) the interest of Transferor in any proceeds with respect to the
Receivables from claims on any Insurance Policies covering Financed
Vehicles or the Obligors or from claims under any lender's single interest
insurance policy naming Transferor as an insured;
(iv) the interest of Transferor in any proceeds from (A) any
Receivable repurchased by a Dealer pursuant to a Dealer Agreement as a
result of a breach of representation or warranty in the related Dealer
Agreement, (B) a default by an Obligor resulting in the repossession of the
Financed Vehicle under the applicable Loans or (C) any Dealer Recourse or
other rights relating to the Receivables under Dealer Agreements;
(v) all right, title and interest of Transferor in any instrument or
document relating to the Receivables; and
(vi) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made hereunder
shall not constitute and is not intended to result in an assumption by Purchaser
of any obligation of Transferor to the Obligors, the Dealers or any other Person
in connection with the Receivables and the other assets and properties conveyed
hereunder or any agreement, document or instrument related thereto.
It is the express intention of Transferor and Purchaser that (a) the
assignment and transfer herein contemplated constitute a sale of the Receivables
and the other Transferor Assets described above, conveying good title thereto
free and clear of any liens, encumbrances, security interests or rights of other
Persons, from Transferor to Purchaser and (b) the Receivables and the other
Transferor Assets described above not be a part of Transferor's estate in the
event of a bankruptcy or insolvency of Transferor. If, notwithstanding the
intention of Transferor and Purchaser, such conveyance is deemed to be a pledge
in connection with a financing or is otherwise deemed not to be a sale,
Transferor hereby grants, and the parties intend that Transferor shall have
granted to the Purchaser, a first priority perfected security interest in all of
Transferor's right, title and interest in the items of the Transferor Assets and
all proceeds of the foregoing, and that this Agreement shall constitute a
security agreement under applicable law and the Purchaser shall have all of the
rights and remedies of a secured party and creditor under the UCC as in force in
the relevant jurisdictions.
SECTION 2.2. Receivables Purchase Price. In consideration for the
Transferor Assets, Purchaser shall, on the Closing Date, pay to Transferor the
Receivables Purchase Price. The "Receivables Purchase Price" shall be
$310,164,941.42 in cash and the Certificates.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby makes the following representations and warranties upon
which Transferor may rely. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the Receivables to Purchaser.
(a) ORGANIZATION AND GOOD STANDING. Purchaser has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware and has the power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof.
(b) POWER AND AUTHORITY. Purchaser has full power, authority and legal
right to execute, deliver and perform this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement.
(c) NO CONSENT REQUIRED. No approval, authorization, consent, license or
other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by Purchaser of this Agreement or the consummation of
the transactions contemplated hereby.
(d) BINDING OBLIGATION. This Agreement has been duly executed and delivered
by Purchaser and this Agreement constitutes a legal, valid and binding
obligation of Purchaser, enforceable against Seller in accordance with its
terms, subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting the enforcement of the rights of creditors generally and to
equitable limitations on the availability of specific remedies.
(e) NO VIOLATION. The execution, delivery and performance by Purchaser of
this Agreement and the consummation of the transactions contemplated hereby will
not conflict with, result in any breach of the terms and provisions of,
constitute (with or without notice or lapse of time) a material default under or
result in the creation or imposition of any Lien under any of its material
properties pursuant to the terms of, (i) the charter or bylaws of Purchaser,
(ii) any material indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which Purchaser is a party or by which Purchaser is
bound or to which any of its properties are subject, or (iii) any law, order,
rule or regulation applicable to Purchaser of any federal or state regulatory
body, any court, administrative agency, or other governmental instrumentality
having jurisdiction over Purchaser.
(f) NO PROCEEDINGS. There are no proceedings or investigations pending, or,
to the knowledge of Purchaser, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over Purchaser or its properties: (i) asserting the invalidity of
this Agreement or the transactions contemplated herein, (ii) seeking to prevent
the consummation of any of the transactions by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by Purchaser of its obligations under, or the validity or
enforceability of, this Agreement or the transactions contemplated herein, or
(iv) that may materially and adversely affect this Agreement or the transactions
contemplated hereby.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF TRANSFEROR.
Transferor hereby makes the following representations and warranties upon
which Purchaser may rely. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the Receivables to Purchaser.
(a) ORGANIZATION AND GOOD STANDING. Transferor has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Maryland and has the power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof.
(b) POWER AND AUTHORITY. Transferor has the power, authority and legal
right to execute and deliver this Agreement and to carry out its terms and to
sell and assign the Transferor Assets; and the execution, delivery and
performance of this Agreement has been duly authorized by Transferor by all
necessary corporate action.
(c) NO CONSENT REQUIRED. No approval, authorization, consent, license or
other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby, other than the filing of UCC
financing statements.
(d) VALID SALE; BINDING OBLIGATION. Transferor intends this Agreement to
effect a valid sale, transfer, and assignment of the Receivables and the other
properties and rights included in the Transferor Assets conveyed by Transferor
to Purchaser hereunder, enforceable against creditors of and purchasers from
Transferor; and this Agreement constitutes a legal, valid and binding obligation
of Transferor, enforceable against Transferor in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies.
(e) NO VIOLATION. The execution, delivery and performance by Transferor of
this Agreement and the consummation of the transactions contemplated hereby will
not conflict with, result in any material breach of any of the terms and
provisions of, constitute (with or without notice or lapse of time) a material
default under or result in the creation or imposition of any Lien upon any of
its material properties pursuant to the terms of, (i) the charter or bylaws of
Transferor, (ii) any material indenture, contract, lease, mortgage, deed of
trust or other instrument or agreement to which Transferor is a party or by
which Transferor is bound, or (iii) any law, order, rule or regulation
applicable to Transferor of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having jurisdiction
over Transferor.
(f) NO PROCEEDINGS. There are no proceedings or investigations pending, or,
to the knowledge of Transferor, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over Transferor or its properties: (i) asserting the invalidity of
this Agreement or the transactions contemplated herein, (ii) seeking to prevent
the consummation of any of the transactions by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by Transferor of its obligations under, or the validity or
enforceability of, this Agreement or the transactions contemplated herein, or
(iv) that may materially and adversely affect this Agreement or the transactions
contemplated hereby.
(g) CHIEF EXECUTIVE OFFICE. The chief executive office of Transferor is set
forth in EXHIBIT A attached hereto.
(h) OFFICIAL RECORD. This Agreement and all other documents related hereto
to which Transferor is a party have been approved by Transferor's board of
directors, which approval is reflected in the minutes of such board, and shall
continuously from time to time of each such document's execution, be maintained
as an official record of Transferor.
SECTION 3.3. REPRESENTATIONS AND WARRANTIES AS TO EACH RECEIVABLE.
Transferor hereby makes the representations and warranties that the
Purchaser is making pursuant to Section 3.1 of the Sale and Servicing Agreement
as to each Receivable conveyed by it to Purchaser hereunder on which Purchaser
shall rely in acquiring the Receivables. Such representations and warranties
shall survive the sale, transfer and assignment of the Receivables to Purchaser
hereunder, the subsequent sale, transfer and assignment of the Receivables to
Issuer under the Sale and Servicing Agreement, and the pledge thereof to
Indenture Trustee pursuant to the Indenture.
SECTION 3.4. REPURCHASE UPON BREACH. Transferor shall be obligated to
repurchase each Receivable that the Purchaser is required to repurchase under
Section 3.2 of the Sale and Servicing Agreement in the manner and at the price
specified in such Section.
ARTICLE IV
COVENANTS OF TRANSFEROR
Transferor covenants and agrees with Purchaser as follows:
SECTION 4.1. PROTECTION OF TITLE TO TRANSFEROR ASSETS.
(a) Transferor shall execute and file such UCC financing statements and
cause to be executed and filed such UCC continuation statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of Purchaser, Owner Trustee and Indenture Trustee in
the Receivables and the proceeds thereof. Transferor shall deliver (or cause to
be delivered) to Purchaser file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Transferor shall not change its name, identity or corporate structure
or jurisdiction of organization in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of the UCC, unless
it shall have given Purchaser, Owner Trustee and Indenture Trustee at least
thirty days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Transferor shall give Purchaser, Owner Trustee and Indenture Trustee at
least 60 days' prior written notice of any relocation of its principal executive
office or change in its jurisdiction or organization, if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and shall promptly file any such amendment or new
financing statement.
(d) Transferor shall maintain its computer systems relating to installment
loan recordkeeping so that, from and after the time of sale under this Agreement
of its Receivables, Transferor's master computer records (including any backup
archives) that refer to a Receivable shall indicate clearly the interest of
Purchaser, Issuer and Indenture Trustee in such Receivable and that such
Receivable has been sold to Purchaser and by Purchaser to Issuer and is owned by
Issuer and has been pledged to Indenture Trustee pursuant to the Indenture.
Indication of Purchaser's, Issuer's and Indenture Trustee's interest in a
Receivable shall be deleted from or modified on Seller's computer systems when,
and only when, the related Receivable shall have been paid in full or
repurchased by Transferor or an Originator or purchased by Servicer.
(e) If at any time Transferor shall propose to sell, grant a security
interest in or otherwise transfer any interest in receivables to any prospective
purchaser, lender or other transferee, Transferor shall give to such prospective
purchaser, lender or other transferee computer tapes, records or printouts
(including any restored from backup archives) that, if they shall refer in any
manner whatsoever to any Receivable, shall indicate clearly that such Receivable
has been sold to Purchaser and then sold by Purchaser to Issuer and pledged to
Indenture Trustee.
(f) Transferor shall, upon receipt of reasonable prior notice, permit
Purchaser, Owner Trustee and Indenture Trustee and their respective agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from Transferor's records regarding any Receivable.
(g) Upon request at any time Purchaser, Owner Trustee or Indenture Trustee
shall have reasonable grounds to believe that such request is necessary in
connection with the performance of its duties under this Agreement, Transferor
shall furnish to Purchaser, Owner Trustee and Indenture Trustee, within thirty
(30) Business Days, a list of all Receivables (by contract number and name of
Obligor) conveyed to Purchaser hereunder and then owned by Issuer, and pledged
to Indenture Trustee, together with a reconciliation of such list to the
Schedule of Receivables and to each of Servicer's Reports furnished before such
request indicating removal of Receivables from Issuer.
(h) Transferor shall deliver or cause to be delivered to Purchaser, Owner
Trustee and Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement and of
each amendment thereto, an Opinion of Counsel either (A) stating that, in
the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of Purchaser in the Receivables, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than four months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 120-day period, either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of Purchaser in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 4.2. LIABILITY OF TRANSFEROR; INDEMNITIES. Transferor shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by Transferor under this Agreement.
(a) Transferor shall indemnify, defend and hold harmless Purchaser, Issuer,
Owner Trustee (individually and in its capacity as such) and Indenture Trustee
(individually and in its capacity as such) and their respective officers,
directors, employees and agents from and against any taxes that may at any time
be asserted against any such Person with respect to, and on the date of, the
sale of the Receivables to Purchaser, including any sales, gross receipts,
general corporation, tangible personal property, privilege or license taxes
(but, not including any taxes asserted with respect to Federal or other income
taxes arising out of this Agreement and the other Basic Documents) and costs and
expenses in defending against the same.
(b) Transferor shall indemnify, defend and hold harmless Purchaser, Issuer,
Owner Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such), the Certificateholders, the
Noteholders and the officers, directors, employees and agents of Purchaser,
Issuer, Owner Trustee and Indenture Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities to the extent arising out of,
or imposed upon such Person through or as a result of (i) Transferor's willful
misfeasance, bad faith or gross negligence in the performance of its duties
under this Agreement, (ii) the failure of any Receivable conveyed by it to
Purchaser hereunder, or the sale of the related Financed Vehicle, to comply with
all requirements of applicable law, (iii) any breach of any of Transferor's
representations, warranties or covenants contained herein or in any other Basic
Document, provided, however, with respect to a breach of Transferor's
representations and warranties as set forth in SECTION 3.3, any indemnification
amounts owed pursuant to this SECTION 4.2 with respect to a Receivable shall
give effect to and not be duplicative of the Purchase Amounts paid by Transferor
pursuant to SECTION 3.4 hereof, and (iv) the use, ownership or operation by
Transferor or any of its Affiliates of a Financed Vehicle prior to the Cutoff
Date.
Indemnification under this Section shall survive the termination of this
Agreement or any other Basic Documents and the resignation or removal of the
Owner Trustee or Indenture Trustee and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "INDEMNIFIED
PERSON") shall promptly notify Transferor in writing, and Transferor, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others
Transferor designates in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding. Transferor shall not be
liable for any settlement of any claim or proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, Transferor agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Transferor shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any proceeding or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Persons from all liability on claims that are the subject matter of such
proceeding. If Transferor shall have made any indemnity payments pursuant to
this Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to Seller, without interest.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. OBLIGATIONS OF TRANSFEROR. The obligations of Transferor under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 5.2. TRANSFEROR'S ASSIGNMENT OF PURCHASED RECEIVABLES. With respect
to all Receivables repurchased by Transferor pursuant to this Agreement,
Purchaser shall assign, without recourse, representation or warranty, to
Transferor all Purchaser's right, title and interest in and to such Receivables,
and all security and documents relating thereto.
SECTION 5.3. SUBSEQUENT TRANSFER TO ISSUER AND INDENTURE TRUSTEE.
Transferor acknowledges that:
(a) Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to Issuer and assign its rights under this Agreement to the Owner
Trustee for the benefit of the Noteholders and the Certificateholders, and that
the representations and warranties contained in this Agreement and the rights of
Purchaser under SECTION 3.4 hereof are intended to benefit Issuer, the Owner
Trustee, the Noteholders and the Certificateholders. Transferor hereby consents
to such sale and assignment.
(b) Issuer will, pursuant to the Indenture, pledge the Receivables and its
rights under this Agreement to the Indenture Trustee for the benefit of the
Noteholders, and that the representations and warranties contained in this
Agreement and the rights of Purchaser under this Agreement, including under
SECTION 3.4 are intended to benefit the Indenture Trustee and the Noteholders.
Transferor hereby consents to such pledge.
SECTION 5.4. AMENDMENT.
(a) This Agreement may be amended by Transferor and the Purchaser, with the
consent of the Servicer, Owner Trustee and Indenture Trustee (which consent may
not be unreasonably withheld), but without the consent of any of the Noteholders
or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement; provided that such action shall not, as evidenced by an Opinion
of Counsel delivered to Purchaser, Owner Trustee and Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of Issuer to
qualify as, and to permit an election to be made to cause all or a portion
of Issuer to be treated as, a "financial asset securitization investment
trust" under the Code and (B) in connection with any such election, to
modify or eliminate existing provisions set forth in this Agreement
relating to the intended federal income tax treatment of the Notes or
Certificates and Issuer in the absence of the election; it being a
condition to any such amendment that the Rating Agency Condition shall have
been met; and
(iii) to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable (a) the transfer to Issuer of all or any
portion of the Receivables to be recognized as a sale under GAAP by
Purchaser to Issuer, (b) Issuer to avoid becoming a member of Purchaser's
or Transferor's consolidated group under GAAP or (c) Transferor or
Purchaser, or any of their Affiliates to otherwise comply with or obtain
more favorable treatment under any law or regulation or any accounting rule
or principle; it being a condition to any such amendment that the Rating
Agency Condition shall have been met.
(b) This Agreement may also be amended from time to time by Transferor and
Purchaser, with the consent of the Servicer, Owner Trustee and Indenture
Trustee, the consent of the Holders of Notes evidencing not less than a majority
of the Outstanding Amount of the Notes and the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate Percentage
Interests for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement; provided that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (ii) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Percentage Interests,
the Holders of which are required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes and the Holders of all the
outstanding Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Purchaser
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency, Owner Trustee and Indenture Trustee. Promptly after the
execution of any such amendment or consent, Purchaser shall furnish written
notification the substance of such amendment or consent to each Noteholder,
Certificateholder, Owner Trustee and Indenture Trustee.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, Purchaser,
Owner Trustee and Indenture Trustee shall be entitled to receive and rely
conclusively upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent to the execution and delivery of such amendment have been satisfied
and the Opinion of Counsel referred to in SECTION 4.1(H)(1) has been delivered.
Purchaser, Owner Trustee and Indenture Trustee may, but shall not be obligated
to, enter into any such amendment which affects Purchaser's, Owner Trustee's or
Indenture Trustee's, as applicable, own rights, duties or immunities under this
Agreement or otherwise.
SECTION 5.5. WAIVERS. No failure or delay on the part of Purchaser in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 5.6. NOTICES. All demands, notices and communications pursuant to
this Agreement to either party shall be in writing, personally delivered, or
sent by telecopier, overnight mail or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt at the
address set forth in EXHIBIT A attached hereto or at such other address as may
be designated by it by notice to the other party.
SECTION 5.7. COSTS AND EXPENSES. Transferor will pay all expenses incident
to the performance of its obligations under this Agreement and all expenses in
connection with the perfection as against third parties of Purchaser's right,
title and interest in and to the Receivables and Purchaser agrees to pay
expenses incident to the performance of its obligations under this Agreement.
SECTION 5.8. REPRESENTATIONS TO TRANSFEROR. The respective agreements,
representations, warranties and other statements by Transferor and Purchaser set
forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the Closing Date and any sale, transfer or assignment of
the Receivables by Purchaser.
SECTION 5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW, BUT OTHERWISE 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 5.10. COUNTERPARTS. This Agreement 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 5.11. THIRD PARTY BENEFICIARIES. Each of the Issuer, Owner Trustee
(individually and in its capacity as such), Indenture Trustee (individually and
in its capacity as such) and other Persons referred to in SECTION 4.2 is an
intended third party beneficiary of the indemnities of Transferor set forth in
SECTION 4.2 and the other provisions of this Agreement in favor of such Persons.
It is acknowledged and agreed that such indemnities and other provisions
may be enforced by or on behalf of such Persons against Transferor to the same
extent as if it were a party hereto.
IN WITNESS WHEREOF, the parties hereby have caused this Purchase Agreement
to be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
By: /s/ XXX XXXXX
--------------------------------
Name: Xxx Xxxxx
Title: Vice President
ACE SECURITIES CORP.
By: /s/ XXXXXX XXXXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
EXHIBIT A
LOCATION OF TRANSFEROR AND PURCHASER
GERMAN AMERICAN CAPITAL CORPORATION
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ACE SECURITIES CORP.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
