[EXECUTION COPY]
SECOND TIER RECEIVABLES PURCHASE AGREEMENT
This SECOND TIER RECEIVABLES PURCHASE AGREEMENT dated as of June 15,
2001 (this "Agreement"), is among Mellon Bank, N.A., a national banking
association (the "Seller") and Mellon Premium Finance Loan Owner Trust, a
Delaware business trust (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller intends to sell Receivables to the Purchaser on
the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Purchaser desires to purchase the Receivables from the
Seller on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Seller has purchased the Receivables from AFCO Credit
Corporation, a New York corporation and AFCO Acceptance Corporation, a
California corporation (each, an "Originator" and, collectively, the
"Originators"), pursuant to the terms and conditions of the First Tier
Receivables Purchase Agreement, dated as of June 15, 2001 (the "First Tier
Purchase Agreement");
WHEREAS, the Purchaser intends to transfer the Receivables to Xxxxx
Fargo Bank Minnesota, National Association, as trustee (the "Trustee") pursuant
to an Amended and Restated Pooling and Servicing Agreement, dated as of June 15,
2001 (the "Pooling and Servicing Agreement"), among the Purchaser, the Trustee,
AFCO Credit Corporation and AFCO Acceptance Corporation, as servicers, and
Premium Financing Specialists, Inc. and Premium Financing Specialists of
California, Inc., as back-up servicers; and
WHEREAS, to obtain the necessary funds to purchase such Receivables,
the Purchaser has entered into the Pooling and Servicing Agreement;
NOW, THEREFORE, in consideration of premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADDITION DATE" means the date Additional Receivables are added to the
Receivables Schedule pursuant to subsection 2.1(h).
"ADDITIONAL PROPERTY" shall have the meaning set forth in subsection
2.1(b).
"CONVEYED PROPERTY" shall have the meaning set forth in subsection
2.1(a).
"PURCHASE PRICE" means with respect to any Receivable and as of any
date of determination the outstanding principal balance of such Receivable
conveyed to the Purchaser pursuant to Section 2.1(a) and 2.1(b).
All capitalized terms used herein and not otherwise defined have the
meanings assigned such terms in the Pooling and Servicing Agreement or, to the
extent not defined therein, in any Supplement thereto.
SECTION 1.2 ACCOUNTING AND UCC TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with United States
generally accepted accounting principles ("U.S. GAAP"); and all terms used in
Article 9 of the UCC that are used but not specifically defined herein are used
herein as defined therein
ARTICLE II
SECTION 2.1 THE PURCHASES. (a) The Seller hereby sells, transfers,
assigns and otherwise conveys to the Purchaser as of the Initial Closing Date
without recourse, all of its right, title and interest in and to (i) each
Premium Finance Agreement (including the power of attorney included therein)
originated prior to the Initial Closing Date and set forth in the Receivables
Schedule delivered on the Initial Closing Date that as of the Initial Closing
Date satisfies the eligibility criteria set forth in the definition of "ELIGIBLE
RECEIVABLE" in the Pooling and Servicing Agreement, for transfer to the Trust on
the Initial Closing Date (the "INITIAL RECEIVABLES"), (ii) the Seller's security
interest in the related Unearned Premiums, (iii) all monies due or to become due
with respect to each such Initial Receivable on or after the Initial Closing
Date, including all monies received from insurance companies and state insurance
guaranty funds representing returns of Unearned Premiums, the proceeds from any
guarantees issued by insurance agents in respect of the Receivables and other
charges, refunds and rebates due on such Receivables, (iv) all of the Seller's
right, title and interest in and to (but none of its obligations or duties
under) the First Tier Receivables Purchase Agreement, and (v) all proceeds of
all of the foregoing (the property described in clauses (i) - (v) above being,
the "CONVEYED PROPERTY").
(b) The Seller hereby sells, transfers, assigns, and otherwise conveys
to the Purchaser without recourse, as of the related Addition Date, all of its
right title and interest in and to (i) each Premium Finance Agreement (including
the power of attorney included therein) originated or acquired on or after the
Initial Closing Date which as of its date of its origination satisfies the
eligibility criteria set forth in the definition of "Eligible Receivable" in the
Pooling and Servicing Agreement ("ADDITIONAL RECEIVABLES" and together with the
Initial Receivables, the "RECEIVABLES"); provided however that the Seller shall
not be required to sell, transfer, assign or convey to the Purchaser any Premium
Finance Agreement which was originated or acquired after the Initial Closing
Date, but prior to the date on which the state in which the stated address of
the Obligor in the related Premium Finance Agreement is located became a
Permitted State, (ii) the Seller's security interest in the related Unearned
Premiums, (iii) all monies due or to become due with respect to such Additional
Receivables on or after the related Addition Date, including all monies received
from insurance companies and state insurance guaranty funds representing returns
of Unearned Premiums, the proceeds of any guarantees issued by insurance agents
in respect of the Additional Receivables and other charges, refunds or rebates
due on such Additional Receivables and (iv) all of the proceeds of the foregoing
(the property described in clauses (i) - (iv) above being, the "ADDITIONAL
PROPERTY").
(c) In connection with any sale, transfer, assignment and conveyance
pursuant Section 2.1(a) or Section 2.1(b), the Seller agrees to record and file,
at its own expense, a financing statement (including any continuation statements
with respect to such financing statement when applicable) with respect to the
Conveyed Property and the Additional Property meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the assignment of the Conveyed Property and the Additional Property
to the Purchaser, and to deliver a file-stamped copy of such financing statement
or continuation statement or other evidence of such filing to the Purchaser on
or prior to the Initial Closing Date (and in the case of any continuation
statements filed pursuant to this Section 2.1, as soon as practicable after
receipt thereof by the Seller).
(d) In connection with any sale, transfer, assignment and conveyance
pursuant to Section 2.1, the Seller agrees to cause each of the Originators,
pursuant to Section 2.1(d) of the First Tier Receivables Purchase Agreement, at
such Originator's expense, on or prior to the Initial Closing Date and each
Addition Date, as applicable, to indicate in its computer files that the Initial
Receivables and the related Additional Receivables, as applicable, have been
sold (i) by such Originator to the Seller pursuant to the First Tier Receivables
Purchase Agreement, (ii) by the Seller to the Purchaser pursuant to this
Agreement and (iii) by the Purchaser to the Trustee, on behalf of the Trust, for
the benefit of the Holders, pursuant to the Pooling and Servicing Agreement.
(e) [Reserved].
(f) The Seller hereby acknowledges that the Receivables will be
transferred to the Trustee (on behalf of the Trust) pursuant to the terms and
conditions set forth in the Pooling and Servicing Agreement, and hereby agrees
to cooperate fully with the Purchaser (and to cause the Originators to assist
the Purchaser) to take all required actions to effect the sale of the
Receivables to the Trustee (on behalf of the Trust).
(g) It is the intention of the Seller that the sale, transfer,
assignment and conveyance contemplated by this Agreement shall constitute a sale
of the Conveyed Property and Additional Property from the Seller to the
Purchaser and the beneficial interest in and title to the Receivables and such
other Conveyed Property and Additional Property shall not be property owned by
the Seller in the event of any insolvency, receivership or conservatorship of
the Seller. In the event that, notwithstanding the intent of the Seller, the
sale, transfer, assignment and conveyance contemplated hereby is held not to be
a sale, this Agreement shall constitute a grant to the Purchaser of a security
interest in the Conveyed Property and Additional Property of the Seller.
(h) The Seller shall, or shall cause the Originators to, prepare on
the Closing Date the Receivables Schedule in accordance with terms of the
Pooling and Servicing Agreement with respect to each of the Initial Receivables
and Additional Receivables to the Receivables Schedule on each Addition Date.
The Seller shall, or shall cause the Originators to, deliver the Receivables
Schedule to the Purchaser on the Initial Closing Date and on each Addition Date
after any required additions pursuant to this subsection 2.1(h) are made to the
Receivables Schedule on such date.
PAYMENTS AND COMPUTATIONS. (i) The Purchase Price for Receivables
shall be paid or provided for on the Initial Closing Date, with respect to the
Initial Receivables , or on the related Addition date, with respect to
Additional Receivables in either of the following ways, at the election of the
Purchaser: (i) by payment in cash in immediately available funds; or (ii) in the
event that the total Purchase Price is not paid in full in cash by the Purchaser
on the date of Purchase, the Seller shall be deemed to have made a capital
contribution to the Purchaser in an amount equal to the portion of such cash
shortfall owed to the Seller.
(j) The Purchaser shall pay all amounts to be paid in cash with
respect to the purchases to the Seller on the date of the purchase thereof.
SECTION 2.2 REPURCHASE OF RECEIVABLES. If (i) any of the
representations or warranties of the Seller contained in Sections 3.2 or 3.3
hereof were not true with respect to the Seller or any Receivable, as
applicable, at the time such representation or warranty was made and as a result
thereof, the Purchaser is required to repurchase any Receivable from the Trustee
(on behalf of the Trust) pursuant to subsection 2.4(d) of the Pooling and
Servicing Agreement or (ii) any Receivable is repurchased from the Trust
pursuant to Section 2.6 of the Pooling and Servicing Agreement, then the Seller
shall (or shall cause the Originator of the repurchased Receivable to) pay to
the Purchaser immediately upon the Purchaser's demand therefor an amount equal
to the Aggregate Receivables Balances of the repurchased Receivables, as well
as, in the case of a breach of a representation or warranty of the Seller as set
forth in clause (i), the amount of all losses, damages and liabilities of the
Purchaser that result from such breach. Upon receipt by the Purchaser of such
amounts, the Purchaser shall (and shall cause the Trust to) automatically and
without further action be deemed to transfer, assign and otherwise convey to the
Seller (or at the Seller's direction to the related Originator), without
recourse, representation or warranty, all the right, title and interest of the
Purchaser (and the Trust) in and to such Receivable, all monies due or to become
due with respect to such Receivable and all proceeds of such Receivable, as well
as Recoveries relating to such Receivable. The Purchaser will (and will cause
the Trust to) execute any documents and instruments of transfer or assignment
and take other actions reasonably requested by the Seller (or an Originator) to
evidence the conveyance of such Receivable to the Seller (or such Originator).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to the Seller as follows:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser is a Delaware
business trust, duly organized and validly existing in good standing under the
laws of the State of Delaware and has full trust power, authority and legal
right 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.
(b) DUE QUALIFICATION. The Purchaser is duly qualified to do business
and is in good standing (or is exempt from such requirement) in any state
required in order to conduct its business, and has obtained all necessary
licenses and approvals with respect to the Purchaser required under Federal and
Delaware law (including any necessary licenses required under the Licensing Laws
of each Permitted State).
(c) [RESERVED.]
(d) (i) VALID TRANSFER AND ASSIGNMENT. The execution and delivery of
this Agreement by the Purchaser and the consummation of the transactions
provided for in this Agreement have been duly authorized by the Purchaser by all
necessary action on its part.
(ii) BINDING OBLIGATION. This Agreement constitutes legal, valid
and binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except (A) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banking associations, and (B)
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(iii) NO CONFLICT. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement 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 the Purchaser is a party or by which it or any of its properties are
bound.
(iv) NO VIOLATION. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to the Purchaser.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER.
(a) ORGANIZATION AND GOOD STANDING. The Seller is a national banking
association duly organized and validly existing in good standing under the laws
of the United States and has full corporate power, authority and legal right 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.
(b) DUE QUALIFICATION. The Seller is duly qualified to do business and
is in good standing (or is exempt from such requirement) in any state required
in order to conduct its business, and has obtained all necessary licenses and
approvals with respect to the Seller required under Federal and Pennsylvania law
(including any necessary licenses required under the Licensing Laws of each
Permitted State).
(c) SELLER'S DEPOSIT ACCOUNTS. As of the Initial Closing Date,
deposits in the Seller's deposit accounts were insured to the limits provided by
law by BIF.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES OF THE SELLER RELATING TO
THIS AGREEMENT AND THE RECEIVABLES.
(a) GENERAL. The Seller hereby represents and warrants to the
Purchaser that, as of the Initial Closing Date and as of any Addition Date:
(i) VALID TRANSFER AND ASSIGNMENT. The execution and delivery of
this Agreement by the Seller and the consummation of the transactions provided
for in this Agreement have been duly authorized by the Seller by all necessary
corporate action on its part, and this Agreement will remain from the time of
its execution, an official record of the Seller.
(ii) BINDING OBLIGATION. This Agreement constitutes legal, valid
and binding obligations of the Seller, enforceable against the Seller in
accordance with its terms, except (A) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banking associations, and (B)
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(iii) NO CONFLICT. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement 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 the Seller is a party or by which it or any of its properties are bound.
(iv) NO VIOLATION. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to the Seller.
(v) TITLE. (i) It is the intention of the Seller that the
transfer and assignment contemplated by this Agreement constitute a sale of the
Conveyed Property and Additional Property from the Seller to the Purchaser and
that the beneficial interest in and title to such Conveyed Property and
Additional Property not be deemed to be property owned by the Seller in the
event of the insolvency, receivership or conservatorship of the Seller. No
Conveyed Property and Additional Property has been sold, transferred, assigned
or pledged by the Seller to any Person other than the Purchaser pursuant to this
Agreement. Immediately prior to the sale, transfer, assignment and conveyance
contemplated by this Agreement, the Seller had good and marketable title to the
Conveyed Property and Additional Property conveyed by it to the Purchaser on
such date, free and clear of all Liens and, immediately upon the transfer
thereof, the Purchaser shall have good and marketable title to such Conveyed
Property and Additional Property free and clear of all Liens.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the Seller
before any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Agreement or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement,
(vii) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof, have been obtained.
(viii) RECEIVABLE SCHEDULE. The related Receivable Schedule is an
accurate and complete listing in all material respects of (A) on the Initial
Closing Date, all the Receivables as of the Initial Closing Date and (B) on the
day any Additional Receivables are conveyed to the Purchaser, the related
Additional Receivables. In either case, the information contained therein with
respect to the identity of such Receivables is true and correct in all material
respects as of the Initial Closing Date or on the day any Additional Receivable
is conveyed to the Purchaser, for any related Additional Receivable.
(b) THE RECEIVABLES. The Seller hereby represents and warrants to the
Purchaser that as of the Initial Closing Date, with respect to the Initial
Receivables, and as of the related Addition Date, with respect to Additional
Receivables, such that:
(i) ELIGIBLE RECEIVABLES. Each Receivable conveyed to the
Purchaser on such date is an Eligible Receivable.
(ii) NO LIENS; COMPLIANCE WITH LAW. Each Receivable conveyed to
the Purchaser on such date has been conveyed to the Purchaser free and clear of
any Lien of any Person claiming through the Seller or any of its Affiliates
(other than Liens permitted under subsection 2.5(b) of the Pooling and Servicing
Agreement) and in compliance, in all material respects, with all Requirements of
Law applicable to the Seller.
(c) NOTICE OF BREACH. The representations and warranties set forth in
this Section 3.3 shall survive the transfer and assignment of the respective
Receivables to the Purchaser. Upon discovery by or notice to the Purchaser or
the Seller of a breach of any of the representations and warranties set forth in
this Section 3.3, the party discovering or receiving notice of such breach shall
give prompt written notice to the other parties mentioned above. The Seller
agree to cooperate with the Purchaser in attempting to cure any such breach.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1 COVENANTS OF THE SELLER. The Seller covenants that:
(a) RECEIVABLES TO BE GENERAL INTANGIBLES. The Seller will take no
action to cause any Receivable to be anything other than a general intangible as
defined under the UCC of the State of New York and the Commonwealth of
Pennsylvania.
(b) SECURITY INTERESTS. Except for the conveyances hereunder (and as
contemplated under the First Tier Purchase Agreement and the Pooling and
Servicing Agreement), the Seller shall not sell, pledge, assign or transfer to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on
any Receivable, whether now existing or hereafter created, or any interest
therein; the Seller shall immediately notify the Purchaser of the existence of
any Lien on any Receivable; and the Seller shall defend the right, title and
interest of the Purchaser in, to and under the Receivables, whether now existing
or hereafter created, against all claims of third parties claiming through or
under the Seller; provided that nothing in this subsection 4.1(b) shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of the
Receivables any Liens for municipal or other local taxes if such taxes shall not
at the time be due and payable or if the Seller (or an Originator acting on
behalf of the Seller) shall currently be contesting the validity thereof in good
faith by appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(c) RECEIVABLE ALLOCATIONS. If the Seller is unable for any reason to
transfer Receivables to the Purchaser in accordance with the provisions of this
Agreement (including by reason of the application of an order by any Federal
governmental agency having regulatory authority over the Seller or the ruling of
any court of competent jurisdiction that the Seller may not transfer any
additional Principal Receivables to the Purchaser) then, in any such event the
Seller agrees to allocate and pay to the Purchaser, after the date of such
inability, all Collections with respect to Principal Receivables, and all
amounts which would have constituted Collections with respect to Principal
Receivables but for the Seller's inability to transfer such Receivables (up to
an aggregate amount equal to the amount of Principal Receivables in the Trust on
such date).
(d) INDEMNIFICATION OF PURCHASER. The Seller agrees to indemnify,
defend and hold the Purchaser harmless from and against any and all loss,
liability, damage, judgment, claim, deficiency or expense including interest,
penalties, reasonable attorneys' fees and disbursements and amounts paid in
settlement to which the Purchaser may become subject insofar as such loss,
liability, damage, judgment, claim, deficiency or expense arises out of, or is
based upon or relates to, a breach by the Seller of any warranty,
representation, covenant or agreement contained in this Agreement.
(e) MAINTENANCE OF INTEREST RATES. The Seller hereby covenants and
agrees not to decrease the interest rates payable under Premium Finance
Agreements it acquires on or after the Initial Closing Date that are eligible
for sale hereunder (other than as a result of a decrease in LIBOR) so as to
materially increase the likelihood that a Pay Out Event will occur or the Class
A Available Funds or Class B Available Funds will be less than the Class A
Optimal Interest or the Class B Optimal Interest, respectively on any
Distribution Date.
(f) ALLOCATION OF COLLECTIONS. In the event that Premium Finance
Agreements of the same Obligor are owned by the Seller and/or any Originator and
by the Purchaser or the Trustee (on behalf of the Trust), to the extent any
payment is received from such Obligor that cannot be allocated to a specific
Premium Finance Agreement, the Seller agrees (and shall cause the Originators to
agree) that it shall allocate a pro rata portion of such amount to such Premium
Finance Agreements owned by the Purchaser or the Trustee (on behalf of the
Trust) (based on the Aggregate Receivables Balances of such Premium Finance
Agreements as a percentage of the Aggregate Receivables Balances of all Premium
Finance Agreements of such Obligor), until the Aggregate Receivables Balances
thereof have been reduced to zero.
(g) PROTECTION OF RIGHT, TITLE AND INTEREST TO THE CONVEYED PROPERTY
AND THE ADDITIONAL PROPERTY. Within 30 days after the Seller makes any change in
its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with subsection (a)
seriously misleading within the meaning of Section 9-402(7) of the UCC as in
effect in the State of New York and/or the Commonwealth of Pennsylvania, the
Seller shall give the Purchaser notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's security interest in the Conveyed Property and the
Additional Property. In addition, if the UCC as in effect in the State of New
York and/or the Commonwealth of Pennsylvania shall have been revised, within 30
days of such revision, the Seller shall (i) give the Purchaser notice thereof
and (ii) file such financing statements or amendments as may be necessary to
continue the perfection of the Purchaser's security interest in the Conveyed
Property and the Additional Property.
(h) OBLIGATIONS OF PURCHASER UNDER THE POOLING AND SERVICING
AGREEMENT. The Seller agrees to perform all obligations of the Purchaser under
the Pooling and Servicing Agreement (i) pursuant to Section 2.4(e) thereof (to
the extent that such obligation results from breach of the representation and
warranty of the Purchaser contained in Section 2.4(a)(v)) or Sections 4.3(a),
7.4, 9.2(c), 11.5 or 11.17(f) thereof or (ii) relating to any obligation of the
Servicer which the Purchaser has agreed to assume in the event that one or both
of the Originators is no longer the Servicer thereunder, in each case as if such
obligation were the obligation of the Seller and without requiring any party
first to seek recourse against the Purchaser pursuant to the Pooling and
Servicing Agreement. The Seller acknowledges and agrees that any such party is
an intended third party beneficiary of this Section 4.1(h).
ARTICLE V
PURCHASE TERMINATION EVENTS
SECTION 5.1 PURCHASE TERMINATION. If the Purchaser or the Seller shall
consent to the appointment of a conservator or receiver or liquidator for the
winding-up or liquidation of its affairs, or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator for the winding-up or
liquidation of its affairs shall have been entered against the Purchaser or the
Seller (an "INSOLVENCY EVENT"), the Seller, in the case of an insolvency of the
Seller or the Purchaser, shall on the day of such Insolvency Event (the
"PURCHASE TERMINATION DATE") immediately cease to transfer Receivables to the
Purchaser and shall promptly give notice to the Purchaser of such Insolvency
Event with respect to the Seller.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 AMENDMENT.
(a) This Agreement may be amended in writing from time to time by the
Seller and the Purchaser, without the consent of any of Holders; provided that
such action shall not, as evidenced by an Opinion of Counsel for the Transferor
addressed and delivered to the Trustee, adversely affect in any material respect
the interests of any Investor Holder or Credit Enhancement Provider; PROVIDED
further that the Rating Agency Condition shall have been satisfied with respect
to such action.
(b) This Agreement may also be amended in writing from time to time by
the Purchaser and the Seller with the consent of each Credit Enhancement
Provider and the Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 66-2/3% of the Investor Interest of each outstanding
Series adversely affected by such amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of Investor Holders of any
Series then issued and outstanding; provided that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, distributions which
are required to be made on any Investor Certificates of such Series without the
consent of each Investor Holder of such Series, or (ii) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of
each Investor Holder of all Series adversely affected.
(c) Promptly after the execution of any such amendment (other than an
amendment pursuant to subsection (a)), the Purchaser shall furnish notification
of the substance of such amendment to each Investor Holder of each Series
adversely affected and to each Rating Agency providing a rating for such Series.
(d) It shall not be necessary for the consent of Investor Holders
under this Section 6.1 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Investor Holders shall be subject to such reasonable
requirements as the Trustee may prescribe.
SECTION 6.2 NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex,
facsimile or cable communication) and mailed, telegraphed, telexed, transmitted,
cabled or delivered, if to the Seller, to Mellon Bank, N.A., One Mellon Center,
Suite 1910, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Chief
Financial Officer and General Counsel, and if to the Purchaser, to Mellon
Premium Finance Loan Owner Trust, c/o Chase Manhattan Bank USA, National
Association, as owner trustee, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administrator; or as to each party, at such
other address as shall be designated by such party in a written notice to the
other parties.
SECTION 6.3 NO WAIVER; REMEDIES. No failure on the part of the
Purchaser to exercise, and no delay in exercising, any right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 6.4 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Seller and the Purchaser and their respective
successors and assigns, except that the Seller shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Purchaser. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect as between the Purchaser and the Seller
until such time, after the Purchase Termination Date, as the Purchaser shall not
have any net ownership interest in any Receivables; PROVIDED, HOWEVER, that the
indemnification provisions of Section 4.1(d) shall be continuing and shall
survive any termination of this Agreement.
SECTION 6.5 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.
SECTION 6.6 INTENDED THIRD PARTY BENEFICIARY; ACKNOWLEDGMENT OF
ASSIGNMENT. The Seller and the Purchaser hereby acknowledge, consent and agree
that the Trust is an intended third party beneficiary of this Agreement. The
Seller hereby acknowledges, consents and agrees that the rights and remedies of
the Purchaser under this Agreement will be assigned to the Trustee (on behalf of
the Trust) pursuant to the Pooling and Servicing Agreement. The Seller hereby
acknowledges, consents and agrees that, subsequent to such assignments, the
rights and remedies of the Purchaser (as provided herein) and of the Seller (as
provided in the First Tier Purchase Agreement) may be exercised directly by the
Trustee (on behalf of the Trust) against the Seller (in accordance with the
terms hereof) and against each Originator (pursuant to the terms of the First
Tier Purchase Agreement), as applicable.
SECTION 6.7 CUSTODY OF PREMIUM FINANCE AGREEMENTS. For administrative
convenience and in contemplation of the subsequent transfer by the Purchaser to
the Trustee (on behalf of the Trust) of the Receivables sold to the Purchaser
hereunder, the parties hereto acknowledge, consent and agree that the
Originators shall have the obligation to maintain custody of the Premium Finance
Agreements sold to the Purchaser hereunder and the Originators will maintain
custody of the Premium Finance Agreements in accordance with the Pooling and
Servicing Agreement and, prior to its sale to the Trustee (on behalf of the
Trust), the Purchaser shall have access to such Premium Finance Agreements at
all times during normal business hours.
SECTION 6.8 NO PETITION. Each of the Seller and each third party
beneficiary hereof covenants and agrees that it will not, until one year and one
day following the Trust Termination Date, institute against the Purchaser, or
join in any institution against the Purchaser of, any bankruptcy proceedings
under any United States Federal or state bankruptcy or similar law in connection
with any obligations relating to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE SELLER:
MELLON BANK, N.A.
By: Xxxxxx X. Xxxxxxx
By: /s/ Xxx X. Au
--------------------------
Name: Xxx X. Au
Title: Attorney-in-Fact
THE PURCHASER:
MELLON PREMIUM FINANCE LOAN
OWNER TRUST
By: Mellon Bank, N.A, as
Administrator
By: Xxxxxx X. Xxxxxxx
By: /s/ Xxx X. Au
--------------------------
Name: Xxx X. Au
Title: Attorney-in-Fact
