RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT dated as of ____________ __, 1996
(this "Agreement"), is among AFCO Credit Corporation, a New York corporation,
AFCO Acceptance Corporation, a California Corporation (each, an "Originator"
and, collectively, the "Originators") and Mellon Bank, N.A., a national banking
association ("Purchaser").
W I T N E S S E T H:
WHEREAS, each of the Originators 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 Receivables from the
Originators on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, to obtain the necessary funds to purchase such Receivables,
the Purchaser has entered into the Pooling and Serving 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):
"Conveyed Property" shall have the meaning set forth in subsection
2.1(a).
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement dated as of _______ __, 1996, among the Purchaser, the Servicer, the
Back-up Servicer and the Trustee, as such agreement may be amended,
supplemented, waived, or otherwise modified from time to time.
"Purchase Date" has the meaning specified in subsection 2.1(b).
"Purchase Price" means as of any Purchase Date the product of (i) the
outstanding principal balance of such Receivable or Additional Receivable
conveyed to the Purchaser pursuant to Section 2.1(a) and 2.1(b) and (ii) a
percentage equal to 100% minus the Discount Percentage.
All capitalized terms used herein and not otherwise defined have the
meanings assigned such terms in the Pooling and Servicing Agreement.
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. The Purchases. () Each Originator hereby
transfers, assigns, and otherwise conveys to the Purchaser without recourse, all
of its right, title and interest in and to (i) the Receivables identified on the
Receivable Schedule delivered to the Purchaser on the Initial Closing Date, (ii)
all monies due or to become due with respect to such Receivables, including all
monies received from insurance companies and state insurance guaranty funds
representing returns of Unearned Premiums and other charges due on such
Receivables, and, (iii) all proceeds of all of the foregoing (the property
described in clauses (i) - (iii) above being, the "Conveyed Property").
(b) After the Cut Off Date, any Additional Receivables that satisfy
the eligibility criteria specified in the definition of "Eligible Receivables"
shall be transferred from the Originators to the Purchaser on the first date
such Additional Receivables satisfy such eligibility criteria (each such day
(including the Initial Closing Date) being, a "Purchase Date").
(c) In connection with such transfer, assignment, and conveyance of
the Conveyed Property and the Additional Receivables, each Originator 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 Additional Receivables
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 Additional Receivables to the Purchaser, and to deliver a
file-stamped copy of such financing statement or continuation statement or other
evidence of such filing (which may, for purposes of this Section 2.1, consist of
telephone confirmation of such filing) to the Purchaser on or prior to the date
of issuance of the Certificates (and in the case of any continuation statements
filed pursuant to this Section 2.1, as soon as practicable after receipt thereof
by Transferor).
(d) In connection with such transfer, each Originator agrees, at its
own expense, on or prior to the Initial Closing Date (i) to indicate in its
computer files that the Receivables have been transferred to the Purchaser
pursuant to this Agreement and then to Trustee, on behalf of the Trust for the
benefit of the Holders, pursuant to Pooling and Servicing Agreement [by
identifying such Receivables as those that may be accessed on the applicable
Originator's computer files through use of one or more of the Database Codes set
forth on Schedule I] and (ii) to deliver to the Trustee a Receivable Schedule
relating to the initial Receivables, which is hereby incorporated into and made
a part of this Agreement. Each Originator further agrees at its own expense,
with respect to Additional Receivables to indicate in its computer files on or
prior to the day on which any Additional Receivables are conveyed to the Trust
that Additional Receivables have been transferred to the Purchaser pursuant to
this Agreement and then to the Trustee, on behalf of the Trust, for the benefit
of the Holders pursuant to the Pooling and Servicing Agreement by identifying
such Receivables as those that may be accessed on Transferor's computer files
through use of one or more of the Database Codes set forth on Schedule I. The
Originators shall not alter the file designations referenced in this subsection
2.1(d) with respect to any Receivables during the term of this Agreement unless
and until such Receivable becomes a Removed Receivable. The Originators further
agree to deliver to the Purchaser at the end of each quarter of the calendar
year and as promptly as possible after the Purchaser may at any time request, a
revised Receivable Schedule containing all Additional Receivables, which
Receivable Schedule shall thereby be incorporated and made a part of this
Agreement. The Originators shall hold the information to be provided with
respect to the Receivables (including Additional Receivables), prior to delivery
to the Purchaser, in trust for the benefit of the Purchaser.
(e) The parties intend that if, and to the extent that, such transfer
is not deemed to be a sale, the Originators shall be deemed hereunder to have
granted to the Purchaser, a first priority perfected security interest in all of
the Originators' right, title and interest in, to and under the Conveyed
Property and that this Agreement shall constitute a security agreement under
applicable law.
(f) No Receivable shall be conveyed to the Purchaser pursuant to
Section 2.1(a) unless with respect to such Receivable:
(i) The applicable Originator delivers to the Purchaser or the
Trustee on the Closing Date a completed Notice of Financed
Premium, which may be delivered on computer disk or through
electronic downloading of such notice onto Trustee's
computer system; and
(ii) The applicable Originator delivers to the Purchaser on the
Closing Date an executed Assignment of Power of Attorney.
SECTION 2.2. Payments and Computations. Payments and Computations. ()
The Purchase Price for Receivables shall be paid or provided for on the Purchase
Date of such Receivables in either of the following ways, at the election of
each Originator: (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, each such Originator shall receive a
subordinated unsecured promissory note (each such note, a "Subordinated Purchase
Note") from the Purchaser in an original principal amount equal to the portion
of such cash shortfall owed to such Originator. The characteristics of each
Subordinated Purchase Note shall be as follows:
(i) interest shall accrue on the outstanding principal amount of
each Subordinated Purchase Note at a per annum rate of
interest (calculated on the basis of a 360-day year of
twelve 30-day months) equal to ______;
(ii) the outstanding principal of and accrued interest on each
Subordinated Purchase Note shall be payable as, if and when
the Purchaser receives any amounts in respect of the
Transferor Interest;
(iii) all amounts paid with respect to an outstanding
Subordinated Purchase Note shall be allocated first to
accrued interest until all such interest is paid, and then
to outstanding principal;
(iv) the obligation of the Purchaser to repay Subordinated
Purchase Notes issued to the applicable Originator from the
amounts paid to such Purchaser in respect of the Transferor
Interest in the manner prescribed herein, shall be the sole
and exclusive remedy available against the Purchaser and any
such Subordinated Purchase Note shall be fully subordinated
to any rights of Certificateholders under the Pooling and
Servicing Agreement, shall not evidence any rights in the
Receivables or the Transferor Interest, shall be an
obligation and need not be evidenced by any separate
instrument of the Purchaser;
(v) the Purchaser may offset any amount due and owing by the
applicable Originator against any amount due and owing by
the Purchaser to such Originator under the terms of the
Subordinated Purchased Note.
The Purchaser, at its option, may repay all or any portion of the accrued
interest on and principal of any Subordinated Purchase Note at any time.
(b) The Purchaser shall pay all amounts to be paid in cash with respect
to the Purchases to the Originator (or to the Company on behalf of the
Originator of such Receivables) on the date of the Purchase thereof and shall
pay all amounts in respect of principal of and interest on any Subordinated
Purchase Note in accordance with the terms thereof.
SECTION 2.3 Repurchase of Receivables. Repurchase of Receivables. ()
If (i) any of the representations or warranties of any Originator contained in
Sections 3.2, 3.3 or subsection 4.1(f) hereof was not true with respect to such
Originator or any Receivable, as applicable, at the time such representation or
warranty was made, (ii) or if the Originators breach any of the covenants
contained in subsections 4.1(d), (e), (f) or (g) or (iii) there is a breach of
subsection 2.1(f), and as a result thereof, the Purchaser is required to
repurchase any Receivable from the Trust pursuant to subsection 2.4(d) of the
Pooling and Servicing Agreement, then the Originator of the repurchased
Receivable shall be obligated to pay to the Purchaser immediately upon the
Purchaser's demand therefor an amount equal to the amount of all losses, damages
and liabilities of the Purchaser that result from such breach, including but not
limited to the cost of the Purchaser's repurchase obligations pursuant to
subsection 2.4(d) of the Pooling and Servicing Agreement.
(b) Upon any exercise by the Purchaser of its right to designate
Removed Receivables pursuant to Section 2.7 of the Pooling and Servicing
Agreement, the Originator of the removed Receivables will immediately repurchase
such Receivables from the Purchaser by tendering to the Purchaser an amount in
immediately available funds equal to the amount the Purchaser remitted to the
Trust (calculated as set forth in Section 2.7 of the Pooling and Servicing
Agreement) in consideration of the transfer of the removed Receivables from the
Trust to the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Purchaser.
Representations and Warranties of the Purchaser. The Purchaser represents and
warrants to the Originators as follows:
(a) Organization and Good Standing. The Purchaser 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 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
Pennsylvania law (including any necessary licenses required under the Licensing
Laws of each Permitted State).
(c) Purchaser's Deposit Accounts. As of the Initial Closing Date,
deposits in the Purchaser's deposit accounts were insured to the limits provided
by law by BIF.
(d) Binding Obligation; Valid Transfer and Assignment.
(i) 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
corporate action on its part, and this Agreement will remain from the
time of its execution, an official record of the Purchaser.
(ii) 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 Each of the Originators
(a) Organization and Good Standing. Each Originator is a
corporation duly organized and validly existing in good standing under the laws
of the jurisdiction of its incorporation 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. Each Originator 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 business, and has obtained all necessary
licenses and approvals with respect to such Originator required under federal
and applicable state law.
SECTION 3.3 Representations and Warranties of Each Originator Relating
to this Agreement and the Receivables. Representations and Warranties of Each
Originator Relating to this Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment. Each Originator
jointly and severally hereby represents and warrants to the Purchaser that, as
of the Initial Closing Date:
(i) The execution and delivery of this Agreement by each
Originator and the consummation of the transactions provided
for in this Agreement have been duly authorized by each
Originator by all necessary corporate action on its part,
and this Agreement will remain, from the time of its
execution, an official record of each Originator.
(ii) This Agreement constitutes legal, valid and binding
obligations of each Originator, enforceable against each
Originator 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 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 Transferor 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 each Originator.
(v) This Agreement constitutes either (A) a valid transfer,
assignment and conveyance to the Purchaser of all right,
title and interest of each Originator in and to the Conveyed
Property all of which will be held by the Purchaser, free
and clear of any Lien of any Person claiming through or
under the Originators or any of their Affiliates, except for
(i) Liens permitted under subsection 2.5(b) of the Pooling
and Servicing Agreement, or (B) a grant of an enforceable
security interest (as defined in the UCC as in effect in the
States of New York and California) in the Conveyed Property.
If this Agreement constitutes the grant of a security
interest to the Purchaser in the Conveyed Property, upon the
filing of the financing statement described in Section 2.1,
the Purchaser shall have a first priority perfected security
interest in such property, except for Liens permitted under
subsection 2.5(b) of the Pooling and Servicing Agreement.
(vi) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of each Originator,
threatened against an Originator 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 Originators, would materially and
adversely affect the performance by the Originators of their
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.
(b) Eligibility of Receivables. Each Originator hereby jointly and
severally represents and warrants to the Purchaser as of the Initial Closing
Date with respect to the initial Receivables, as of each day that Additional
Receivables are conveyed to the Trust with respect to Additional Receivables and
with respect to clause (iv) below as of the date of the delivery of the related
Receivables Schedule, as applicable, that:
(i) Each Receivable is an Eligible Receivable.
(ii) Each Additional Receivable conveyed to the Purchaser is an
Eligible Receivable, and the representations and warranties
set forth in subsection 3.2 and 3.3) are true and correct on
the day such Additional Receivable is conveyed to the Trust.
[(iii) Each Receivable then existing has been conveyed to the
Purchaser free and clear of any Lien of any Person claiming
through or under Transferor 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
Originators.
(iv) The related Receivable Schedule is an accurate and complete
listing in all material respects of (A) on the Closing Date,
all the Receivables as of the Cut Off 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 Cut Off Date or on the day any
Additional Receivable is conveyed to the Purchaser, for any
related Additional Receivable. As of the Cut Off Date, the
aggregate amount of Receivables was $_____________, of which
$_____________ were Principal Receivables.]
(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 the Purchaser or any Originator
of a breach of any of the representations and warranties set forth in this
Section 3.3, the party discovering such breach shall give prompt written notice
to the other parties mentioned above. The Originators agree to cooperate with
the Purchaser in attempting to cure any such breach.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1 Covenants of Each Originator. Covenants of Each
Originator. Each Originator jointly and severally covenants that:
(a) Receivables to be General Intangibles. The Originators will take
no action to cause any Receivable to be anything other than a general intangible
as defined under the UCC of the States of New York and California.
(b) Security Interests. Except for the conveyances hereunder, the
Originators 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
Originators shall immediately notify the Purchaser of the existence of any Lien
on any Receivable; and the Originators 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 Transferor; provided that nothing in this subsection 4.1(b) shall prevent
or be deemed to prohibit the Originators 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 an Originator 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 any Originator 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 such Originator or
any court of competent jurisdiction that Originator not transfer any additional
Principal Receivables to the Purchaser) then, in any such event the Originators
agree 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
such Originator'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) Delivery of Assignment and Receivable Schedule. On or prior to the
Determination Date following a Monthly Period during which Additional
Receivables are conveyed to the Purchaser, the Originators shall deliver to the
Purchaser a written assignment in substantially the form of Exhibit A (the
"Assignment") and the applicable Originator shall have indicated in its computer
files on or prior to the applicable day that the Additional Receivables have
been transferred to the Purchaser and, [within five Business Days thereafter,]
the Originators shall have delivered to the Purchaser a Receivable Schedule
which relates to the Additional Receivables, which such Receivable Schedule
shall be deemed automatically, as of the date of such Assignment, incorporated
into and made a part of such Assignment and this Agreement;
(e) On or prior to the Determination Date following a Monthly Period
during which Additional Receivables are conveyed to the Purchaser, the
Originators shall deliver (x) the applicable completed Notice of Finance Premium
for each such Additional Receivable which may be delivered on computer disk or
through electronic down loading of such notice onto the Trustee's computer
system and (y) the applicable Assignment of Power of Attorney for each such
Additional Receivable;
(f) The Originators shall represent and warrant that, as of the day
any Additional Receivable is conveyed to the Purchaser, the Assignment
constitutes either (x) a valid transfer and assignment to the Purchaser of all
right, title and interest of the Purchaser in and to the Additional Receivables,
and all monies due or to become due with respect to such Receivables including
all monies received from insurance companies and state insurance guaranty funds
representing returns of Unearned Premiums and other charges due on such
Receivables and all proceeds thereto, all of which will be held by the
Purchaser, free and clear of any Lien of any Person claiming through or under
the Originators, except for Liens permitted under subsection 2.5(b) of the
Pooling and Servicing Agreement or (y) a grant of a security interest (as
defined in the UCC as in effect in the States of New York or California, as
applicable), in such property to the Purchaser, which is enforceable with
respect to the Additional Receivables, including monies received from insurance
companies and state insurance guaranty funds representing returns of Unearned
Premiums and other charges due on the related Receivables and all proceeds
thereto upon the conveyance of such Additional Receivables to the Trust. If the
Assignment constitutes the grant of a security interest to the Purchaser in such
property, upon the filing of a financing statement as described in Section 2.1
with respect to such Additional Receivables and the proceeds (as defined in the
UCC as in effect in the States of New York or California, as applicable),
thereof, the Trust shall have a first priority perfected security interest in
such property, except for Liens permitted under subsection 2.5(b) of the Pooling
and Servicing Agreement;
(g) The Originators shall not transfer any Receivable to the Purchaser
which if transferred to the Trust by the Purchaser would cause the aggregate
Receivables in the Trust as of the date of transfer to (i) have a weighted
average annual percentage rate that is less than __% or (ii) have a weighted
average original term to maturity of greater than _____, or in each case,
calculated after giving effect to the transfer of such Receivable.
(h) The Originators agree to jointly and severally 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 Company 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 an Originator of any warranty, representation, covenant
or agreement contained in this Agreement.
ARTICLE V
PURCHASE TERMINATION EVENTS
SECTION 5.1 Purchase Termination. Purchase Termination. If Transferor
or [an Originator] 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 [an Originator] (an "Insolvency Event"), the Originators, in the
case of an insolvency of the Purchaser, or the insolvent Originator in the case
of an insolvency of an Originator shall on the day of such Insolvency Event (the
"Appointment Day") immediately cease to transfer Receivables to the Purchaser
and shall promptly give notice to the Purchaser of such Insolvency Event.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Amendment. Amendment.
(a) This Agreement may be amended in writing from time to time by the
Originators and the Purchaser, without the consent of any of Holders; provided
that such action shall not, as evidenced by [an Opinion of Counsel] for
Transferor addressed and delivered to Trustee, adversely affect in any material
respect the interests of any Investor Holder; provided further that the Rating
Agency Condition shall have been satisfied with respect to such action.
(b) This Agreement or any Supplement may also be amended in writing
from time to time by Purchaser and the Originators with the consent of 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
any Supplement 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)), 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 Trustee may prescribe.
SECTION 6.2 Notices, Etc.. 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 Originators, at their
address at _______________; Attention: _________; and if to the Purchaser, at
its address at _________________ Attention: _____________ 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 each Originator and the Purchaser and their respective
successors and assigns, except that no Originator shall 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 each Originator until such
time, after the Purchase Termination Date applicable to such Originator, as the
Purchaser shall not have any net ownership interest in any Receivables;
provided, however, that the indemnification provisions of Article VIII 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 Acknowledgment of Assignments. Each of the Originators
hereby acknowledges and consents to the assignment by the Purchaser of
Receivables and the rights of the Purchaser under this Agreement pursuant to the
Pooling and Servicing 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 ORIGINATORS:
AFCO CREDIT CORPORATION
By:______________________________
Title: __________________________
AFCO ACCEPTANCE CORPORATION
By:______________________________
Title: __________________________
THE PURCHASER:
MELLON BANK, N.A.
By:______________________________
Title: __________________________
