Exhibit 10.2
MASTER CONTRACT PURCHASE AGREEMENT
This Master Contract Purchase Agreement (this "Agreement") effective as
of _____________________, 1998, is entered into by and between Tamarack Funding
Corporation a Texas corporation ("TFC"), and Tamarack Lenders Corporation, a
Texas corporation ("Buyer").
BACKGROUND STATEMENT
This Agreement, under which from time to time TFC will purchase on
behalf of Buyer retail installment contracts and other installment obligations
issued for the purchase of used motor vehicles and liens on such vehicles
securing the obligations, shall govern the purchase and transfer of the
obligations for the benefit of Buyer and the servicing and other incidents
thereof, and each shall be subject to the warranties, representations and
agreements herein.
STATEMENT OF AGREEMENT
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and TFC agree as follows:
1. DEFINITIONS. The following terms shall for all purposes of this
Agreement have the meanings hereinafter specified:
(a) "Certificate of Title" shall mean a certificate of title under
the Certificate of Title Act, as amended (Article 6687-1, Vernon's Texas Civil
Statutes), or a certificate of title under a statute of another jurisdiction
under the law of which indication of a security interest on the certificate is
required as a condition of perfection.
(b) "Dealer" shall mean the TFC-approved dealer who sold a Financed
Vehicle and who originated, sold and assigned the related Receivable to the
Buyer.
(c) "Financed Vehicle" shall mean an automobile or light truck,
together with all accessories thereto, securing an Obligor's obligations under
the related Receivable.
(d) "Obligor" shall mean the purchaser or co-purchasers of the
Financed Vehicle or any other person who owes payments under the Receivable.
(e) "Purchased Receivable Pool" shall mean all Receivable pools which
Buyer determines to purchase from a Dealer in accordance with the terms and
conditions of this Agreement and the applicable Transfer Agreement.
(f) "Purchased Receivables" shall mean all Receivables purchased by
Buyer from Dealers in accordance with the terms and conditions of this Agreement
and the applicable Transfer Agreement.
(g) "Receivable Documents" shall mean all documents and proof of
delivery evidencing and relating to the Purchased Receivables as Buyer may
reasonably request.
(h) "Servicing Agreements" shall mean the Servicing Agreements
between the various Dealers and the Buyer.
(i) "Receivable" shall mean a valid and enforceable motor vehicle
retail installment contract or other evidence of an installment obligation of an
Obligor which is secured by a lien on a Financed Vehicle.
(j) "Transfer Agreement" shall mean the agreements between the Buyer
and various Dealers, pursuant to which the Buyer purchases Receivables from such
Dealers.
2. PROCEDURE FOR PURCHASE. (a) At any time and from time to time
until the termination of this Agreement, the Buyer may request TFC to solicit
from Dealers Receivables and Receivable pools. TFC shall be obligated to use
reasonable efforts to solicit from Dealers Receivables and Receivable pools as
soon as practicable following any such request by the Buyer. Buyer shall
purchase Receivables pursuant to a Transfer Agreement reasonably satisfactory to
the Buyer.
(b) Payment of the purchase price by Buyer shall be made at the time
of the purchase by TFC on Buyer's behalf of each Purchased Receivable. At all
times during the term of this Agreement, Buyer shall retain the right to audit
any or all Purchased Receivables and/or Purchased Receivable Pools for adherence
to the terms and conditions of this Agreement. TFC shall cooperate in all
material respects with the audit of such Purchased Receivables and/or Purchased
Receivable Pools.
3. COMPENSATION TERM. This Agreement is one part of a transaction
pursuant to which TFC expects to receive certain benefits; therefore, TFC shall
receive no additional compensation hereunder. This Agreement shall commence as
of the date first written above and shall continue until terminated upon 30 days
written notice from either party to the other.
4. OTHER DOCUMENTS. TFC or Buyer shall execute and deliver any and all
other documents, opinions, certificates, and evidence of the Purchased
Receivables as may be reasonably requested by Buyer in connection with the
transactions contemplated by this Agreement.
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5. REPRESENTATIONS AND WARRANTIES OF TFC. TFC represents and warrants to
Buyer as follows:
(a) ORGANIZATION AND GOOD STANDING. TFC is a corporation duly
organized, validly existing and in good standing under the laws of Texas, 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 contemplated, and to execute, deliver and perform its obligations
under this Agreement.
(b) DUE QUALIFICATION. TFC is duly qualified and has registered as a
foreign corporation in each state where such qualification is required in order
to perform its obligations pursuant to this Agreement and has obtained all
necessary licenses, approvals or consents as are required under applicable law
to perform its duties hereunder.
(c) DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement has been duly authorized by TFC by all necessary corporate action
on the part of TFC.
(d) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of TFC, enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
which affect the enforcement of creditors' rights in general, and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(e) NO VIOLATION. The execution and delivery of this Agreement by
TFC, and the performance of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof applicable to TFC, will not conflict with,
violate, 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 default under,
any requirement of law applicable to TFC or any indenture, contract, agreement,
mortgage, deed of trust or other installment to which TFC is a party or by which
it is bound.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TFC REGARDING
RECEIVABLES. TFC further represents and warrants to, and covenants with Buyer
as follows:
(a) Each Purchased Receivable will conform with, and in acting with
respect to the Receivable, TFC will have complied in all material respects with,
all applicable federal, state and local laws, regulations and official rulings.
(b) Each Purchased Receivable (i) shall have been originated in the
United States of America by a Dealer for the retail sale of a Financed Vehicle
in the ordinary course
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of such Dealer's business, shall have been fully and properly executed by the
parties thereto and shall have been validly assigned by such Dealer to Buyer
in accordance with its terms, (ii) shall have created or shall create a
valid, subsisting, and enforceable first priority security interest in the
Financed Vehicle in favor of the owner of the Purchased Receivable, (iii)
shall contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization against the
collateral and of the benefits of the security, (iv) shall provide for, in
the event that such Purchased Receivable is prepaid, a prepayment that fully
pays the principal balance, and (v) shall meet at the time of its purchase
from the originating Dealer in all material respects all purchasing criteria
set forth by Buyer from time to time.
(c) TFC shall require each Dealer from which a Purchased Receivable
is purchased (i) to represent and warrant that such Purchased Receivable and the
sale of the related Financed Vehicle complied, at the time the Receivable was
originated or made, in all material respects with all requirements of applicable
federal, state and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-In-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Federal Reserve Board's
Regulations B and Z, state adaptations of the National Consumer Act and of the
Uniform Consumer Credit code, and other consumer laws and equal credit
opportunity and disclosure laws, and (ii) to agree that any Purchased Receivable
has been purchased from the Dealer with recourse.
(d) Each Purchased Receivable shall represent the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable by
the holder thereof in accordance with its terms subject to the effect of
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally.
(e) (i) The Certificate of Title for such Financed Vehicle shows (or
if a new or replacement Certificate of Title is applied for with respect to such
Financed Vehicle, the official receipt from the responsible state or local
governmental authority shall indicate that an application has been made and that
the Certificate of Title, when issued, will show within 120 days) the Buyer as
the holder of a first priority security interest in such Financed Vehicle, (ii)
within 120 days after the Purchase Date for the Receivable relating to the
Financed Vehicle, the Certificate of Title for such Financed Vehicle will show
the Buyer as the holder of a first priority security interest in such Financed
Vehicle, and (iii) the Buyer, upon delivery of the transfer to it, will have a
valid and enforceable security interest in the Financed Vehicle to the same
extent as the security interest of the person or entity named as the original
secured party under the related Receivable.
(f) At the time of its purchase for the Buyer, no provision of a
Purchased Receivable shall have been waived, without the express written consent
of the Buyer.
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(g) At the time of its purchase by the Buyer, no right of rescission,
setoff, counterclaim, or defense shall have been asserted or threatened with
respect to any Receivable.
(h) It is the intention of TFC that the transfer and assignment
herein contemplated constitute a sale of the Purchased Receivable or Purchased
Receivable Pool to Buyer and that the beneficial interest in and title to the
Purchased Receivables and Purchased Receivable Pools not be part of TFC's estate
in the event of the filing of a bankruptcy petition by or against TFC under
applicable bankruptcy law. Immediately prior to the transfer and assignment to
Buyer herein contemplated, Dealer had good and marketable title to each
Purchased Receivable free and clear of all liens, encumbrances, security
interests, and rights of others and, immediately upon the transfer thereof,
Buyer shall have good and marketable title to each Purchased Receivable, free
and clear of all liens, encumbrances, security interests, and rights of others.
7. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to TFC as follows:
(a) ORGANIZATION AND GOOD STANDING. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of Texas,
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 contemplated, and to execute, deliver and perform its
obligations under this Agreement.
(b) DUE QUALIFICATION. The Buyer is duly qualified and has
registered as a foreign corporation in each state where such qualification is
required in order to perform its obligations pursuant to this Agreement and has
obtained all necessary licenses, approvals or consents as are required under
applicable law to perform its duties hereunder.
(c) DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement has been duly authorized by the Buyer by all necessary corporate
action on the part of the Buyer.
(d) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of the Buyer, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
which affect the enforcement of creditors' rights in general, and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(e) NO VIOLATION. The execution and delivery of this Agreement by
the Buyer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Buyer, will
not conflict with, violate, result in
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any breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, any
requirement of law applicable to the Buyer or any indenture, contract,
agreement, mortgage, deed of trust or other installment to which the Buyer is
a party or by which it is bound.
8. SERVICING AGREEMENTS; COLLECTION OF PURCHASED RECEIVABLES. From time
to time during the term of this Agreement, various Dealers and the Buyer shall
enter into Servicing Agreements whereby each such Dealer, as an independent
contractor, will collect, in accordance with the terms and conditions set forth
therein, for the account of the Buyer, payments under all Purchased Receivables
and Purchased Receivable Pools.
9. NO ASSUMPTION. TFC does not, and shall not be deemed to, assume any
obligations of the Buyer relating to the transactions contemplated herein.
Buyer does not, and shall not be deemed to assume any obligations of TFC
relating to the Purchased Receivables or the transactions giving rise to the
Purchased Receivables. TFC hereby indemnifies and holds harmless Buyer, its
successors and assigns, and their respective officers, directors, agents and
attorneys against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Buyer, its successors and assigns, or their respective
officers, directors, agents and attorneys due to (i) any breach by TFC of its
representations, warranties or covenants provided for in this Agreement, or (ii)
any action or inaction of TFC in any way relating to, or arising out of this
Agreement or any of the transactions contemplated herein. The indemnities
contained in this Section shall survive any termination of this Agreement.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. TFC may contract with others for the performance of any or all of its
obligations hereunder. Any such contract, however, shall not relieve TFC from
liability for its obligations hereunder.
11. MODIFICATIONS AND WAIVERS. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof, or the exercise of any other right, power
or privilege hereunder. All rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies which the parties hereto may
otherwise have at law or in equity. No waiver shall be valid in the absence of
the written and signed consent of the party against which enforcement of such is
sought.
12. NOTICE. Except as otherwise specifically provided herein, any notice
hereunder shall be in writing (including telecopy communication) and, if mailed,
shall be deemed to be
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given when sent by registered or certified mail, postage prepaid, or if
telecopied when transmitted, or otherwise when delivered in person to the
addressee and a receipt given therefor, in all such instances addressed to
the respective parties as follows:
To TFC: Tamarack Funding Corporation
000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx. 00000
Attn: Xx. Xxxxx X. Xxxxxx, President
To Buyer: Tamarack Lenders Corporation
000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx. 00000
Attn: Xx. Xxxxx X. Xxxxxx, President
or at such other address as the addressee may, by written notice received by the
other party hereto, designate as the appropriate address for purposes of notice
hereunder.
13. AMENDMENT. This Agreement may be amended, supplemented or modified
only with the written consent of each of the parties hereto.
14. CHOICE OR LAW. THIS AGREEMENT AND THE VALIDITY AND ENFORCEMENT HEREOF
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE STATE OF TEXAS.
15. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
16. ENTIRE AGREEMENT. This instrument embodies the entire agreement
between the patties relating to the subject matter hereof and supersedes all
prior agreements and understandings, if any, relating to the subject matter
hereof.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which for all purposes is to be deemed an original.
18. SURVIVAL. All covenants, agreements, undertakings, indemnities,
representations and warranties made herein shall survive both the execution and
the termination hereof and shall not be affected by any investigation made by
any party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first hereinabove written.
TFC:
TAMARACK FUNDING CORPORATION
By:
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Xxxxx X. Xxxxxx, President
BUYER:
TAMARACK LENDERS CORPORATION
By:
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Xxxxx X. Xxxxxx, President
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