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EXHIBIT 10.1
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
between
ACC LIQUIDITY LLC,
as purchaser,
OFL-A RECEIVABLES CORP.,
as seller,
ACC RECEIVABLES CORP.
and
ACC CONSUMER FINANCE CORPORATION
dated as of
March 27, 1997
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................1
SECTION 1.1 General....................................................1
SECTION 1.2 Specific Terms.............................................1
SECTION 1.3 Certain References.........................................3
SECTION 1.4 No Recourse................................................3
ARTICLE II CONVEYANCE OF THE RECEIVABLES...............................
AND THE OTHER CONVEYED PROPERTY............................3
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed
Property...................................................3
ARTICLE III CONDITIONS OF SALE.........................................5
SECTION 3.1 Conditions Precedent to the Initial Conveyance.............5
SECTION 3.2 Conditions Precedent to All Sales..........................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................7
SECTION 4.1 Representations and Warranties of OFL-A....................7
SECTION 4.2 Representations and Warranties of the Purchaser...........11
SECTION 4.3 Indemnification...........................................13
ARTICLE V COVENANTS OF OFL-A........................................15
SECTION 5.1 Protection of Title of the Purchaser......................15
SECTION 5.2 Other Liens or Interests..................................16
SECTION 5.3 Costs and Expenses........................................16
ARTICLE VI REPURCHASES...............................................17
SECTION 6.1 Repurchase of Transferred Receivables Upon Breach of
Warranty..................................................17
SECTION 6.2 Right to Repurchase Transferred Receivables...............17
SECTION 6.3 Reassignment of Purchased Receivables.....................18
SECTION 6.4 Waivers...................................................18
ARTICLE VII MISCELLANEOUS...................................................18
SECTION 7.1 Liability of OFL-A........................................18
SECTION 7.2 Merger or Consolidation of OFL-A or the Purchaser.........18
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SECTION 7.3 Limitation on Liability of OFL-A and Others.............19
SECTION 7.4 [Intentionally Omitted].................................19
SECTION 7.5 Amendment...............................................19
SECTION 7.6 Notices.................................................20
SECTION 7.7 Merger and Integration..................................20
SECTION 7.8 Severability of Provisions..............................20
SECTION 7.9 Intention of the Parties................................20
SECTION 7.10 Governing Law...........................................21
SECTION 7.11 Counterparts............................................21
SECTION 7.12 Nonpetition Covenant....................................21
EXHIBIT A -- Form of Assignment
SCHEDULE A -- Schedule of Receivables
SCHEDULE B -- Representations and Warranties of Seller
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of March 27, 1997,
executed between ACC Liquidity LLC, a Delaware limited liability company, as
purchaser (the "Purchaser"), OFL-A Receivables Corp., a Delaware corporation, as
seller ("OFL-A"), ACC Receivables Corp., a Delaware corporation ("ACC
Receivables"), and ACC Consumer Finance Corporation, a Delaware corporation
("ACC").
W I T N E S S E T H:
WHEREAS, the Purchaser, has agreed to purchase from OFL-A, and
OFL-A, pursuant to this Agreement, is selling to the Purchaser certain
Receivables and Other Conveyed Property (in each case, as hereinafter defined)
related thereto.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, the Purchaser, OFL-A, ACC Receivables and
ACC, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this Article
include the plural as well as the singular. Words herein importing a gender
include the other gender. References herein to "writing" include printing,
typing, lithography, and other means of reproducing words in visible form.
References to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Receivables
Financing Agreement (as hereinafter defined). References herein to Persons
include their permitted successors and assigns. The terms "include" or
"including" mean "include without limitation" or "including without limitation".
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section or
other subdivision, and Article, Section, Schedule and Exhibit references, unless
otherwise specified, refer to Articles and Sections of and Schedules and
Exhibits to this Agreement. Capitalized terms used herein without definition
shall have the respective meanings assigned to such terms in the Receivables
Financing Agreement.
SECTION 1.2 Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"ACC" has the meaning specified in the Preamble.
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"ACC Repurchase Event" means any event which requires ACC, as
Servicer, to repurchase a Receivable under Section 8.7 of the Receivables
Financing Agreement.
"Agreement" shall mean this Purchase and Sale Agreement and all
amendments hereof and supplements hereto.
"American Credit Corporation" means the predecessor of ACC.
"OFL-A" has the meaning specified in the Preamble.
"OFL-A Repurchase Event" means the occurrence of a breach of any of
OFL-A=s representations and warranties under Section 4.1(a).
"Other Conveyed Property" means, with respect to any Transferred
Receivable, all monies at any time paid or payable on such Receivable or in
respect thereof after the applicable Purchase Date (including amounts due on or
before the applicable Purchase Date but received by OFL-A or ACC after such
Purchase Date), an assignment of security interests in the Financed Vehicles,
the Insurance Policies and any proceeds from any Insurance Policies relating to
such Receivable, the Obligors or the Financed Vehicles, including rebates of
premiums, rights under any Collateral Insurance relating to such Receivable,
rights of OFL-A or ACC against Dealers with respect to such Receivable under the
Dealer Agreements and the Dealer Assignments, all items contained in the related
Receivable File, any and all other documents or electronic records that OFL-A or
ACC keeps on file in accordance with its customary procedures relating to
Receivables, the Obligors or the Financed Vehicles, property (including the
right to receive future Liquidation Proceeds) that secures such Receivable and
that has been acquired by or on behalf of OFL-A or ACC pursuant to liquidation
of such Receivable, and all proceeds of the foregoing.
"Purchase Date" has the meaning specified in Section 2.1(b).
"Purchase Price" means with respect to the Eligible Receivables to
be sold by OFL-A to the Purchaser on any Purchase Date, the fair market value of
such Eligible Receivables giving effect to historical data with respect to
defaults, delinquency and similar data.
"Purchaser" has the meaning specified in the Preamble.
"Receivables Financing Agreement" means the Receivables Financing
Agreement, dated as of March 27, 1997, by and among the Purchaser, ACC, as
Servicer, Alpine Securitization Corp., Credit Suisse, New York Branch, as Agent,
the financial institutions set forth on the signature pages thereto and Norwest
Bank Minnesota, National Association, as Backup Servicer and Custodian.
"Request Notice" means a notice in the form of a computer print-out,
tape or other form acceptable to the Purchaser, which, inter alia, (a) enables
the Purchaser to identify all
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Receivables to be sold on the succeeding Purchase Date by OFL-A to the
Purchaser, (b) sets forth the amount of payments received on each Receivable
since the prior Purchase Date and (c) sets forth the Purchase Price for the
following Purchase Date.
"Request Notice Date" has the meaning specified in Section 2.1(b).
"Schedule of Receivables" means the schedule of all retail
installment sales contracts and promissory notes sold pursuant to this Agreement
which is attached hereto as Schedule A.
"Schedule of Representations" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"Transferred Receivable" has the meaning specified in Section
2.1(b).
SECTION 1.3 Certain References. All references to the Principal
Balance of a Receivable as of a Purchase Date shall refer to the close of
business on such day.
SECTION 1.4 No Recourse. Without limiting the obligations of OFL-A
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of (x)
OFL-A, or (y) of any predecessor or successor of OFL-A.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed
Property. (a) Subject to the terms and conditions of this Agreement, on and
after the date of this Agreement, OFL-A hereby agrees to sell, transfer, assign,
and otherwise convey, from time to time, to the Purchaser, without recourse (but
without limitation of its obligations in this Agreement), and the Purchaser
hereby agrees to purchase, all right, title and interest of OFL-A in and to
certain Receivables and Other Conveyed Property originated by OFL-A. It is the
intention of OFL-A and the Purchaser that the transfers and assignments
contemplated by this Agreement shall constitute sales of such Receivables and
Other Conveyed Property from OFL-A to the Purchaser, conveying good title
thereto free and clear of any Liens, and such Receivables and Other Conveyed
Property shall not be part of OFL-A's estate in the event of the filing of a
bankruptcy petition by or against OFL-A under any bankruptcy or similar law.
(b) OFL-A shall, on the Closing Date and on a date occurring no less
frequently than weekly thereafter (each a "Request Notice Date") deliver to the
Purchaser a
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Request Notice identifying (i) all outstanding Receivables and Other Conveyed
Property originated and owned by OFL-A through such date and (ii) all other
Receivables and Other Conveyed Property not previously purchased and sold, in
each case in accordance with the procedures described in this Section 2.1(b). No
later than the Business Day following the delivery of a Request Notice (each a
"Purchase Date"), the Purchaser and OFL-A shall identify Eligible Receivables
and Other Conveyed Property related thereto designated in such Request Notice
arising since the last Purchase Date which are to be purchased and sold
("Transferred Receivables") on such Purchase Date. Each such identification
shall be made as of the opening of business of OFL-A on each Purchase Date. Each
delivery of a Request Notice shall be accompanied by an updated Schedule of
Receivables, which schedule shall be attached hereto as Schedule A and made a
part hereof. Each schedule so delivered shall supersede any prior schedules so
delivered.
(c) The price paid for Transferred Receivables and Other Conveyed
Property related thereto shall be the Purchase Price, which shall be in the
minimum amount of $1,000,000 for any purchase and integral multiples of $50,000
in excess thereof. Such Purchase Price shall be paid by means of an immediate
cash payment to OFL-A by wire transfer on the applicable Purchase Date to an
account designated by OFL-A on or before such Purchase Date. On each Purchase
Date, the Transferred Receivables and Other Conveyed Property related thereto
shall be assigned, and on such Purchase Date the Purchaser shall pay the
Purchase Price for such Transferred Receivables and Other Conveyed Property
related thereto.
(d) On and after each Purchase Date hereunder, the Purchaser shall
own the Transferred Receivables and the Other Conveyed Property which have been
(assuming compliance with the terms hereof) identified as being transferred to
the Purchaser under this Section 2.1 and OFL-A shall not take any action
inconsistent with such ownership and shall not claim any ownership interest in
such Transferred Receivables and Other Conveyed Property.
(e) Until the occurrence of a Servicer Termination Event or a
resignation pursuant to the Receivables Financing Agreement, ACC, as Servicer,
shall conduct the servicing, administration and collection of the Receivables
transferred hereunder and shall take, or cause to be taken, all such actions as
may be necessary or advisable to service, administer and collect such
Transferred Receivables, from time to time, all in accordance with (i) the terms
of the Receivables Financing Agreement, (ii) customary and prudent servicing
procedures for sub-prime auto loans of a similar type and (iii) all applicable
laws, rules and regulations. Documents relating to Receivables transferred
hereunder shall be held in trust by the Custodian for the benefit of the
Purchaser and its assignees as the owners thereof, and possession of any
incident relating to the Transferred Receivables so retained is for the sole
purpose of facilitating the servicing of the Receivables. Such retention and
possession thereof is at the will of the Purchaser and its assignees and in a
custodial capacity for their benefit only.
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ARTICLE III
CONDITIONS OF SALE
SECTION 3.1 Conditions Precedent to the Initial Conveyance. The
initial conveyance hereunder is subject to the condition precedent that the
Purchaser shall have received on or before the date of the initial conveyance
under this Agreement, each dated such date (unless otherwise indicated), in form
and substance satisfactory to the Purchaser:
(i) an Assignment executed by OFL-A, substantially in the form of
Exhibit A attached hereto;
(ii) a copy of resolutions duly adopted by the Board of Directors of
OFL-A approving this Agreement, the Assignment and the other documents to
be delivered by it hereunder and the transactions and matters contemplated
hereby, certified by its Secretary or Assistant Secretary;
(iii) the charter, as amended, of OFL-A, certified by the Secretary
of State of Delaware, dated not earlier than 10 days prior to the date of
the initial conveyance;
(iv) a good standing certificate for OFL-A issued by the Secretary
of State of Delaware, dated not earlier than 10 days prior to the date of
the initial conveyance;
(v) a copy of OFL-A's by-laws, as amended, certified by its
Secretary or Assistant Secretary;
(vi) a certificate of the Secretary or Assistant Secretary of OFL-A
certifying the names and true signatures of the officers authorized on its
behalf to sign this Agreement, the Assignment, and the other documents to
be delivered by it hereunder (on which certificate the Purchaser may
conclusively rely until such time as the Purchaser shall receive from
OFL-A a revised certificate meeting the requirements of this subsection
(vi)) and certifying that (A) OFL-A is qualified as a foreign corporation
in all such jurisdictions and still in good standing in all jurisdictions,
(B) all representations and warranties made by OFL-A in this Agreement are
true and correct and (C) no financing statements or other similar
instruments and documents relating to the Transferred Receivables or the
Other Conveyed Property have been filed in any jurisdiction, other than
those financing statements, other similar instruments and documents shown
on the certified copies of the requests for information or copies (Form
UCC-11)(or a similar search report certified by a party acceptable to the
Purchaser) provided pursuant to clause (ix);
(vii) copies of proper financing statements (Form UCC-1), dated on
or prior to the date of the initial conveyance, naming OFL-A as the
assignor of the Transferred Receivables and the Other Conveyed Property
and the Purchaser as assignee, or other
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similar instruments or documents, in form and substance sufficient for
filing under the UCC or any comparable law of any and all jurisdictions as
may be necessary or, in the opinion of the Purchaser desirable to perfect
the Purchaser's ownership interest in all Transferred Receivables and
Other Conveyed Property, in each case in which an interest may be assigned
hereunder;
(viii) copies of properly executed termination statements or
statements of release (Form UCC-2) or other similar instruments or
documents, if any, in form and substance satisfactory for filing under the
UCC or any comparable law of any and all jurisdictions as may be necessary
or, in the opinion of the Purchaser, desirable to release all security
interests and similar rights of any Person in the Transferred Receivables
and Other Conveyed Property previously granted by OFL-A;
(ix) certified copies of requests for information or copies (Form
UCC-11) (or a similar search report certified by a party acceptable to
OFL-A), dated a date reasonably near and prior to the date of the initial
conveyance, listing all effective financing statements and other similar
instruments and documents including those referred to above in subsections
(vii) and (viii) which name ACC or OFL-A (under its present name and any
previous name) as debtor and which are filed in the jurisdictions in which
filings are to be made pursuant to such subsections (vii) and (viii)
above, together with copies of such financing statements, none of which,
except those filed pursuant to subsections (vii) and (viii), above, shall
cover any Transferred Receivables or Other Conveyed Property;
(x) any necessary third party consents to the closing of the
transactions contemplated hereby, in the form and substance satisfactory
to the Purchaser; and
(xi) a favorable opinion of Xxxxx Xxxxxxxxxx, counsel to OFL-A, with
respect to such matters as the Purchaser may reasonably request.
SECTION 3.2 Conditions Precedent to All Sales. The obligation of
the Purchaser to pay for each Transferred Receivable and the Other Conveyed
Property on each Purchase Date (including the initial Purchase Date) shall be
subject to the further conditions precedent (any one of which can be waived by
the Purchaser) that on such Purchase Date:
(a) The following statements shall be true:
(i) the representations and warranties of OFL-A contained in Section
4.1 shall be correct on and as of such Purchase Date in all material
respects, before and after giving effect to such conveyance and to the
application of proceeds therefrom, as though made on and as of such date;
and
(ii) OFL-A is in compliance with each of its covenants and other
agreements set forth herein; and
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(iii) each Transferred Receivable designated as an Eligible
Receivable is an Eligible Receivable
(b) the Purchaser shall have received an Assignment, substantially
in the form of Exhibit A attached hereto, dated the related Purchase Date,
executed by OFL-A; and
(c) OFL-A shall have taken such other action, including delivery of
approvals, consents, opinions, documents and instruments to the Purchaser, as
the Purchaser may reasonably request; and
(d) There shall have been no material adverse change in the
condition (financial or otherwise), business, operations, results of operations
or properties of OFL-A since the preceding conveyance.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of OFL-A. OFL-A makes
the following representations and warranties, on which the Purchaser relies in
purchasing the Transferred Receivables and the Other Conveyed Property related
thereto and in granting a security interest in the Receivables and the Other
Conveyed Property related thereto to the Investors under the Transferred
Receivables Financing Agreement and on which the Insurer will rely in issuing
the Policy. Such representations are made as of the execution and delivery of
this Agreement or other time specified in the Schedule of Representations, but
shall survive the sale, transfer and assignment of the Transferred Receivables
and the Other Conveyed Property related thereto hereunder, and the grant of a
security interest to the Custodian on behalf of the Secured Parties under the
Receivables Financing Agreement.
(a) Schedule of Representations. The representations and warranties
made by OFL-A, as seller hereunder and set forth on the Schedule of
Representations are true and correct.
(b) Organization and Good Standing. OFL-A has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and
such business is currently conducted, and had at all relevant times and
now has, power, authority and legal right to acquire and own the
Transferred Receivables and the Other Conveyed Property, and to transfer
the Transferred Receivables and the Other Conveyed Property to the
Purchaser and to enter into and perform its obligations under this
Agreement.
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(c) Due Qualification. OFL-A is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) Power and Authority. OFL-A has the power and authority to
execute and deliver this Agreement, the Receivables Financing Agreement
and the Transaction Documents to such which it is a party and to carry out
its terms and their terms, respectively; OFL-A has full power and
authority to sell and assign the Transferred Receivables and Other
Conveyed Property to be sold and assigned to the Purchaser hereunder and
has duly authorized such sale and assignment to the Purchaser by all
necessary corporate action and the execution, delivery and performance of
this Agreement, the Receivables Financing Agreement and the Transaction
Documents to which it is a party have been duly authorized by OFL-A by all
necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement, the Receivables
Financing Agreement, each Assignment and the Transaction Documents to
which OFL-A is party have been and will be duly executed and delivered and
shall effect a valid sale, transfer and assignment of the Transferred
Receivables and the Other Conveyed Property, enforceable against OFL-A and
creditors of and purchasers (other than bona fide purchasers taking
without notice) from OFL-A, and this Agreement, the Receivables Financing
Agreement and such Transaction Documents shall constitute legal, valid and
binding obligations of OFL-A enforceable in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated
by this Agreement, the Receivables Financing Agreement and the Transaction
Documents, and the fulfillment of the terms of this Agreement, the
Receivables Financing Agreement and the Transaction Documents to which it
is a party, shall not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of OFL-A,
or any indenture, agreement, mortgage, deed of trust or other instrument
to which OFL-A is a party or by which it is bound or any of its properties
are subject, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement or
the Receivables Financing Agreement, or violate any law, order, rule or
regulation applicable to OFL-A of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over OFL-A or any of its properties,
or in any way affect OFL-A's ability to perform its obligations under this
Agreement.
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(g) No Proceedings. There are no proceedings or investigations
pending or, to OFL-A's knowledge, threatened against OFL-A, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over OFL-A or its
properties (A) asserting the invalidity of this Agreement or any of the
Transaction Documents, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or any of the Transaction
Documents, (C) seeking any determination or ruling that might materially
and adversely affect the performance by OFL-A of its obligations under, or
the validity or enforceability of, this Agreement or any of the
Transaction Documents (D) involving OFL-A or (E) that could have a
material adverse effect on the Transferred Receivables.
(h) No Consents. OFL-A is not required to obtain the consent of any
other party or any consent, license, approval or authorization, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement.
(i) Collateral Insurance. As of the Closing Date, ACC maintained
Collateral Insurance. OFL-A or ACC is named as named insured under all
policies of Collateral Insurance. As of the Closing Date, each Financed
Vehicle was covered by Collateral Insurance providing coverage upon
repossession of such Financed Vehicle.
(j) Approvals. All approvals, authorizations, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official, required in connection with the
execution and delivery by OFL-A of this Agreement and the consummation of
the transactions contemplated hereby (including the sale, transfer and
assignment of Transferred Receivables to the Purchaser) have been or will
be taken or obtained on or prior to the Closing Date.
(k) Chief Executive Office. The chief executive office of OFL-A is
located at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000.
(l) Solvency. OFL-A is solvent and will not become insolvent after
giving effect to the transactions contemplated by this Agreement and the
Transaction Documents. OFL-A has no Indebtedness to any Person other than
pursuant to this Agreement and the Transaction Documents. OFL-A, after
giving effect to the transactions contemplated by this Agreement and the
Transaction Documents, will have an adequate amount of capital to conduct
its business in the foreseeable future.
(m) Tax Treatment. For federal income tax, reporting and accounting
purposes, OFL-A will treat the purchase or absolute assignment of each
Transferred Receivable pursuant to this Agreement as a purchase or
absolute assignment of OFL's full right, title and ownership interest in
such Transferred Receivable to the Purchaser and OFL-A has not in any
other manner accounted for or treated the transactions in Receivables.
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(n) Compliance With Laws. OFL-A has complied and will comply in all
respects with all applicable laws, rules, regulations, judgments,
agreements, decrees and orders with respect to its business and properties
and all Collateral.
(o) Taxes. OFL-A has filed on a timely basis all tax returns
(including, without limitation, foreign, federal, state, local and
otherwise) required to be filed, is not liable for taxes payable by any
other Person and has paid or made adequate provisions for the payment of
all taxes, assessments and other governmental charges due from OFL-A. No
tax lien or similar adverse claim has been filed, and no claim is being
asserted, with respect to any such tax, assessment or other governmental
charge. Any taxes, fees and other governmental charges payable by OFL-A in
connection with the execution and delivery of this Agreement and the
Transaction Documents and the transactions contemplated hereby or thereby
have been paid or shall have been paid if and when due at or prior to the
related Purchase Date.
(p) Request Notice. Each Request Notice is accurate in all material
respects.
(q) No Liens, Etc. The Collateral and each part thereof is owned by
OFL-A free and clear of any adverse claim or restrictions on
transferability and OFL-A has the full right, corporate power and lawful
authority to assign, transfer and pledge the same and interests therein,
and upon transfer hereunder the Purchaser will have acquired good and
marketable title to and a valid and the sole record and beneficial
ownership interest in such Collateral, free and clear of any adverse claim
or restrictions on transferability. No effective financing statement or
other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have
been filed in favor of the Custodian as "Secured Party" pursuant to
Article XI of the Receivables Financing Agreement or, with respect to the
Receivables, in favor of the Purchaser pursuant to this Agreement.
(r) Securities Act of 1933; Investment Company Act of 1940. Each
purchase of Receivables hereunder will constitute (i) a "current
transaction" within the meaning of Section 3(a)(3) of the Securities Act
of 1933, as amended, and (ii) a purchase or other acquisition of notes,
drafts, acceptances, open accounts receivable or other obligations
representing part or all of the sales price of merchandise, insurance or
services within the meaning of Section 3(c)(5) of the Investment Company
Act of 1940, as amended.
(s) Information True and Correct. All information heretofore or
hereafter furnished by or on behalf of OFL-A to the Purchaser in
connection with this Agreement or any transaction contemplated hereby is
and will be true and complete in all material respects and does not and
will not omit to state a material fact necessary to make the statements
contained therein not misleading.
(t) ERISA Compliance. OFL-A is in compliance with ERISA and has not
incurred and does not expect to incur any liabilities (except for premium
payments arising
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in the ordinary course of business) to the Pension Benefit Guaranty
Corporation (or any successor thereto) under ERISA.
(u) No Material Adverse Effect; No Default. (a) OFL-A is not a party
to any indenture, loan or credit agreement or any lease or other agreement
or instrument or subject to any charter or corporation restriction that
could have, and no provision of applicable law or governmental regulation
is reasonably likely to have, a material adverse effect on the condition
(financial or otherwise), business, operations, results of operations or
properties of OFL-A, or could have such an effect on the ability of OFL-A
to carry out its obligations under this Agreement and the other
Transaction Documents to which OFL-A is a party and (b) OFL-A is not in
default under or with respect to any contract, agreement, lease or other
instrument to which OFL-A is a party and which is material to OFL-A's
condition (financial or otherwise), business, operations or properties,
and OFL-A has not delivered or received any notice of default thereunder.
(v) Financial or Other Condition. There has been no material adverse
change in the condition (financial or otherwise), business, operations,
results of operations, or properties of OFL-A.
(w) Investment Company Status. OFL-A is not an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to
which OFL-A is a party will not violate any provision of such Act or any
rule, regulation or order issued by the Securities and Exchange Commission
thereunder.
(x) No Shared Obligations. There is not now, nor will there be at
any time in the future, any agreement or understanding between OFL-A and
the Purchaser (other than as expressly set forth herein) providing for the
allocation or sharing of obligations to make payments or otherwise in
respect of any taxes, fees, assessments or other governmental charges.
(y) Representation and Warranties True and Correct. Each of the
representations and warranties of OFL-A contained in this Agreement and
the Transaction Documents to which it is a party is true and correct in
all material respects and OFL-A hereby makes each such representation and
warranty to, and for the benefit of the Purchaser as if the same were set
forth in full herein.
SECTION 4.2 Representations and Warranties of the Purchaser. The
Purchaser makes the following representations and warranties, on which OFL-A
relies in selling, assigning, transferring and conveying Transferred Receivables
and the Other Conveyed Property to the Purchaser hereunder. Such representations
are made as of the execution and delivery of this Agreement, but shall survive
the sale, transfer and assignment of Transferred Receivables
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and the Other Conveyed Property hereunder and the grant of a security interest
in Transferred Receivables by the Purchaser under the Receivables Financing
Agreement.
(a) Organization and Good Standing. The Purchaser has been duly
organized and is validly existing and in good standing as a limited
liability company under the laws of the State of Delaware, with the power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently conducted,
and had at all relevant times, and has, full power, authority and legal
right to acquire and own the Transferred Receivables and the Other
Conveyed Property, and to grant a security interest in the Transferred
Receivables and the Other Conveyed Property to the Custodian on behalf of
the Secured Parties pursuant to the Receivables Financing Agreement.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property pr the conduct of its business requires
such qualification.
(c) Power and Authority. The Purchaser has the power, authority and
legal right to execute and deliver this Agreement and to carry out the
terms hereof and to acquire the Transferred Receivables and the Other
Conveyed Property hereunder; and the execution, delivery and performance
of this Agreement and all of the documents required pursuant hereto have
been duly authorized by the Purchaser by all necessary action.
(d) No Consent Required. The Purchaser is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement, the Receivables Financing Agreement and the
Transaction Documents to which it is a party, except for such as have been
obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by the
Purchaser of this Agreement, the consummation of the transactions
contemplated by this Agreement, the Receivables Financing Agreement and
the Transaction Documents and the fulfillment of the terms of this
Agreement, the Receivables Financing Agreement and the Transaction
Documents to which it is a party do not and will not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or bylaws of the
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Purchaser, or conflict with or breach any of the terms or provisions of,
or constitute (with or without notice or lapse of time) a default under,
any indenture, agreement, mortgage, deed of trust or other instrument to
which the Purchaser is a party or by which the Purchaser is bound or to
which any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust or other instrument
(other than the Receivables Financing Agreement), or violate any law,
order, rule or regulation, applicable to the Purchaser or its properties,
of any federal or state regulatory body, any court, administrative agency,
or other governmental instrumentality having jurisdiction over the
Purchaser or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of the Purchaser, threatened against the
Purchaser, before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality having jurisdiction over
the Purchaser or its properties: (i) asserting the invalidity of this
Agreement, the Receivables Financing Agreement or any of the Transaction
Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, the Receivables Financing
Agreement or any of the Transaction Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement, the Receivables Financing Agreement or
any of the Transaction Documents or (iv) that may adversely affect the
federal or state income tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Transferred Receivables and the Other Conveyed Property
hereunder or the grant by the Purchaser of a security interest in the
Transferred Receivables and the Other Conveyed Property to the Custodian
on behalf of the Secured Parties pursuant to the Receivables Financing
Agreement.
In the event of any breach of a representation and warranty made by the
Purchaser hereunder, OFL-A covenants and agrees that OFL-A will not take any
action to pursue any remedy that either may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since all obligations of the
Purchaser under the Receivables Financing Agreement and any other Transaction
Document (as defined under the Receivables Financing Agreement) have been paid
in full. OFL-A and the Purchaser agree that damages will not be an adequate
remedy for such breach and that this covenant may be specifically enforced by
the Purchaser.
SECTION 4.3 Indemnification.
(a) OFL-A shall defend, indemnify and hold harmless the Purchaser,
the Insurer, the Backup Servicer, each Investor and the Agent from and
against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from any breach of any of OFL-A's
representations and warranties and covenants contained herein.
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(b) OFL-A shall defend, indemnify and hold harmless the Purchaser,
the Insurer, the Backup Servicer, each Investor and the Agent from and
against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting, from the use, ownership or
operation by OFL-A or any Affiliate thereof of a Financed Vehicle.
(c) OFL-A will defend and indemnify the Purchaser, the Insurer, the
Backup Servicer, each Investor and the Agent against any and all costs,
expenses, losses, damages, claims and liabilities arising out of or
resulting from any action taken, or failed to be taken, by it in respect
of any portion of the Transferred Receivables or the Other Conveyed
Property other than in accordance with this Agreement or the Transferred
Receivables Financing Agreement.
(d) OFL-A agrees to pay, and shall defend, indemnify and hold
harmless the Purchaser, the Insurer, the Backup Servicer, each Investor
and the Agent from and against any taxes that may at any time be asserted
against the Purchaser, the Insurer, the Backup Servicer, any Investor or
the Agent with respect to the transactions contemplated in this Agreement,
including, without limitation, any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or
license taxes (but, not including any taxes asserted with respect to, and
as of the date of, the sale, transfer and assignment of the Transferred
Receivables and the Other Conveyed Property related thereto to the
Purchaser or asserted with respect to ownership of the Transferred
Receivables and Other Conveyed Property which shall be indemnified by
OFL-A pursuant to clause (e) below) and costs and expenses in defending
against the same, arising by reason of the acts to be performed by OFL-A
under this Agreement or imposed against such Persons.
(e) OFL-A agrees to pay, and to indemnify, defend and hold harmless
the Purchaser, the Insurer, the Backup Servicer, each Investor and the
Agent from, any taxes which may at any time be asserted against such
Persons with respect to, and as of the date of, the conveyance or
ownership of the Transferred Receivables or the Other Conveyed Property
related thereto hereunder, including, without limitation, any sales, gross
receipts, personal property, tangible or intangible personal property,
privilege or license taxes and costs and expenses in defending against the
same, arising by reason of the acts to be performed by OFL-A under this
Agreement or imposed against such Persons.
(f) OFL-A shall defend, indemnify, and hold harmless the Purchaser,
the Insurer, the Backup Servicer, each Investor and the Agent from and
against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon the Purchaser, the Insurer,
the Backup Servicer, each Investor and the Agent through, the negligence,
willful misfeasance, or bad faith of OFL-A in the performance of its
duties under this Agreement or by reason of reckless disregard of OFL-A's
obligations and duties under this Agreement.
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(g) OFL-A shall indemnify, defend and hold harmless the Purchaser,
the Insurer, the Backup Servicer, each Investor and the Agent from and
against any loss, liability or expense imposed upon, or incurred by, the
Purchaser, the Insurer, any Investor or the Agent as result of the failure
of any Transferred Receivable, or the sale of the related Financed
Vehicle, to comply with all requirements of applicable law.
(h) ACC shall defend, indemnify, and hold harmless the Purchaser
from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance
or performance of ACC=s trusts and duties as Servicer under the
Receivables Financing Agreement, except to the extent that such cost,
expense, loss, claim, damage, or liability shall be due to the willful
misfeasance, bad faith, or negligence (except for errors in judgment) of
the Purchaser.
Indemnification under this Section 4.3 shall include reasonable fees
and expenses of counsel and expenses of litigation. The indemnity obligations
hereunder shall be in addition to any obligation that OFL-A or ACC may otherwise
have.
ARTICLE V
COVENANTS OF OFL-A
SECTION 5.1 Protection of Title of the Purchaser.
(a) At or prior to the Closing Date, OFL-A shall have filed or
caused to be filed UCC-1 financing statements, executed by OFL-A as seller
or debtor, naming the Purchaser as purchaser or secured party and
describing the Transferred Receivables and the Other Conveyed Property
being sold by it to the Purchaser as collateral, with the office of the
Secretary of State of the State of California and in such other locations
as the Purchaser shall have required. From time to time thereafter, OFL-A
shall execute and file such financing statements and cause to be executed
and filed such continuation statements, all in such manner and in such
places as may be required by law to fully preserve, maintain and protect
the interest of the Purchaser under this Agreement and of the Custodian on
behalf of the Secured Parties under the Receivables Financing Agreement in
the Transferred Receivables and the Other Conveyed Property, as the case
may be, and in the proceeds thereof. OFL-A shall deliver (or cause to be
delivered) to the Purchaser, the Insurer, each Investor and the Agent
file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. In the event
that OFL-A fails to perform its obligations under this subsection, the
Purchaser may do so, at the expense of OFL-A.
(b) OFL-A shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by OFL-A (or by the Purchaser on
behalf of OFL-A) in accordance with
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paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC, unless OFL-A shall have given the Purchaser, each
Investor, the Agent and the Insurer at least 60 days prior written notice
thereof, and shall promptly file appropriate amendments to all previously
filed financing statements and continuation statements.
(c) OFL-A shall give the Purchaser, the Insurer (so long as an
Insurer Default shall not have occurred and be continuing), each Investor
and the Agent at least 60 days prior written notice of any relocation of
its principal executive office 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. OFL-A shall at all times maintain each office from
which it services Receivables and its principal executive office within
the United States of America.
(d) OFL-A and ACC shall maintain its computer systems so that, from
and after the time of sale under this Agreement of Transferred Receivables
to the Purchaser and the grant of a security interest in such Transferred
Receivables by the Purchaser to the Custodian on behalf of the Secured
Parties, ACC's and OFL-A's master computer records (including archives)
that shall refer to a Transferred Receivable indicate clearly that such
Transferred Receivable has been sold to the Purchaser and a security
interest therein has been granted by the Purchaser to the Custodian on
behalf of the Secured Parties. Indication of the Custodian=s security
interest in a Transferred Receivable shall be deleted from or modified on
ACC's and OFL-A's computer systems when, and only when, such Transferred
Receivable shall be transferred in connection with any Take-Out
Securitization or purchased by ACC in accordance with Section 6.2 hereof.
(e) If at any time OFL-A shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle
receivables to any prospective purchaser, lender or other transferee,
OFL-A shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored
from archives) that, if they shall refer in any manner whatsoever to any
Transferred Receivable shall indicate clearly that such Transferred
Receivable has been so sold to the Purchaser and is subject to a security
interest in favor of the Custodian on behalf of the Secured Parties.
SECTION 5.2 Other Liens or Interests. Except for the conveyances
hereunder, OFL-A will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on the Transferred
Receivables, the Other Conveyed Property or any interest therein, and OFL-A
shall defend the right, title, and interest of the Purchaser and the Custodian
on behalf of the Secured Parties in and to the Transferred Receivables and the
Other Conveyed Property related thereto against all claims of third parties
claiming through or under OFL-A.
SECTION 5.3 Costs and Expenses. OFL-A and ACC shall pay all
reasonable costs and disbursements in connection with the performance of their
respective obligations
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hereunder and under the Receivables Financing Agreement and Transaction
Documents to which it is a party.
ARTICLE VI
REPURCHASES
SECTION 6.1 Repurchase of Transferred Receivables Upon Breach of
Warranty. (a) Upon the occurrence of (x) an ACC Repurchase Event or (y) an OFL-A
Repurchase Event that materially and adversely affects the related Transferred
Receivable, ACC or OFL-A, as the case may be, shall, unless such breach shall
have been cured in all material respects, repurchase the related Transferred
Receivable from the Purchaser by the last day of the first full calendar month
following discovery or notice to ACC or OFL-A, as the case may be, of such
breach, and, on or before the related Distribution Date, ACC shall pay the
Purchase Amount to the Purchaser pursuant to the Receivables Financing
Agreement. Any such repurchase resulting from an ACC Repurchase Event shall take
place in the manner specified in Section 8.7 of the Receivables Financing
Agreement. Notwithstanding any other provision of this Agreement or the
Receivables Financing Agreement to the contrary, the obligation of ACC under
this Section shall not terminate upon a termination of ACC as Servicer under the
Receivables Financing Agreement and shall be performed in accordance with the
terms hereof notwithstanding the failure of the Servicer or the Purchaser to
perform any of their respective obligations with respect to such Transferred
Receivable under the Receivables Financing Agreement.
(b) ACC acknowledges that (i) it acts as agent for OFL-A in
connection with the origination of Receivables, including but not limited to,
Transferred Receivables and (ii) the occurrence of an OFL-A Repurchase Event may
materially and adversely affect the Transferred Receivables. Therefore, upon the
occurrence of an OFL-A Repurchase Event that materially and adversely affects
the related Transferred Receivable, ACC shall, unless such breach shall be cured
in all material respects, purchase the related Transferred Receivable from the
Purchaser by the last day of the first full calendar month following discovery
or notice to ACC or OFL-A of such breach, and, on or before the related
Distribution Date, ACC shall pay the Purchase Amount to the Purchaser pursuant
to the Receivables Financing Agreement.
(c) In addition to the foregoing and notwithstanding whether the
related Transferred Receivable shall have been purchased by ACC or OFL-A, as the
case may be, ACC or OFL-A, as the case may be, shall indemnify the Backup
Servicer, the Insurer, each Investor and the Agent against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by any of them as a result
of third party claims arising out of the events or facts giving rise to ACC
Repurchase Events or OFL-A Repurchase Events, as the case may be.
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SECTION 6.2 Right to Repurchase Transferred Receivables. (a) ACC
may, at its option, on the last day of any Collection Period, repurchase from
the Purchaser any Transferred Receivables that are Defaulted Receivables as of
such day at a purchase price determined from time to time by ACC and the
Purchaser; provided, however, that, after giving effect to any such repurchase,
no Event of Default, Unmatured Event of Default or Facility Termination Date
shall have occurred.
(b) The Purchaser shall, at the request of ACC Receivables (which
request shall be delivered in connection with any Take-Out Securitization), at
any time transfer, by way of dividend or repurchase, to ACC Receivables
Transferred Receivables at a purchase price, in respect of any Transferred
Receivables that are repurchased, equal to the then outstanding principal
balance of such Transferred Receivable together with accrued but unpaid interest
thereon; provided, however, that, after giving effect to any such transfer, no
Event of Default, Unmatured Event of Default or Facility Termination Date shall
have occurred.
SECTION 6.3 Reassignment of Purchased Receivables. Upon deposit in
the Collection Account of the Purchase Amount of any Transferred Receivable
repurchased by ACC or OFL-A under Section 6.1 or Section 6.2, the Purchaser and
each Investor shall take such steps as may be reasonably requested by ACC or
OFL-A, as the case may be, in order to assign to ACC or OFL-A, as the case may
be, all of the Purchaser's and each Investor's right, title and interest in and
to such Transferred Receivable and all security and documents and all Other
Conveyed Property conveyed to the Purchaser and each Investor directly relating
thereto, without recourse, representation or warranty, except as to the absence
of liens, charges or encumbrances created by or arising as a result of actions
of the Purchaser or any Investor. Such assignment shall be a sale and assignment
outright, and not for security. If, following the reassignment of a Transferred
Receivable, in any enforcement suit or legal proceeding, it is held that ACC or
OFL-A, as the case may be, enforce any such Transferred Receivable on the ground
that it shall not be a real party in interest or a holder entitled to enforce
the Transferred Receivable, the Purchaser and each Investor shall, at the
expense of ACC or OFL-A, as the case may be, take such steps as ACC or OFL-A, as
the case may be, deems reasonably necessary to enforce the Transferred
Receivable, including bringing suit in the Purchaser's or each Investor's name.
SECTION 6.4 Waivers. No failure or delay on the part of the
Purchaser or any Investor as assignee of the 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 future exercise thereof or the exercise of any other power, right
or remedy.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Liability of OFL-A. OFL-A shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by OFL-A and its representations and warranties.
SECTION 7.2 Merger or Consolidation of OFL-A or the Purchaser. Any
corporation or other entity (i) into which OFL-A or the Purchaser may be merged
or consolidated, (ii) resulting from any merger or consolidation to which OFL-A
or the Purchaser is a party or (iii) succeeding to the business of OFL-A or the
Purchaser, in the case of the Purchaser, which corporation has a certificate of
incorporation containing provisions relating to limitations on business and
other matters substantively identical to those contained in the Purchaser's
certificate of incorporation, provided that in any of the foregoing cases such
corporation shall execute an agreement of assumption to perform every obligation
of OFL-A or the Purchaser, as the case may be, under this Agreement and, whether
or not such assumption agreement is executed, shall be the successor to OFL-A or
the Purchaser, as the case may be, hereunder (without relieving OFL-A or the
Purchaser of its responsibilities hereunder, if it survives such merger or
consolidation) without the execution or filing of any document or any further
act by any of the parties to this Agreement. Notwithstanding the foregoing, so
long as an Insurer Default shall not have occurred and be continuing the
Purchaser shall not merge or consolidate with any other Person or permit any
other Person to become the successor to the Purchaser's business without the
prior written consent of the Insurer. OFL-A or the Purchaser shall promptly
inform the other party, each Investor, the Agent and, so long as an Insurer
Default shall not have occurred and be continuing, the Insurer of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Sections 4.1 and 4.2 or covenant
made pursuant to Section 4.3, shall have been breached (for purposes hereof,
such representations and warranties shall speak as of the date of the
consummation of such transaction) and no event that, after notice or lapse of
time, or both, would become an event of default under the Insurance Agreement,
shall have occurred and be continuing, (y) OFL-A or the Purchaser, as
applicable, shall have delivered to Alpine and the Agent an Officer=s
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
7.2 and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, and (z) OFL-A or the
Purchaser, as applicable, shall have delivered to each Investor and the Agent an
Opinion of Counsel, stating, in the opinion of such counsel, either (A) all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the interest
of the Custodian on behalf of the Secured Parties in the Transferred Receivables
and the Other Conveyed Property and reciting the details of the filings or (B)
no such action shall be necessary to preserve and protect such interest.
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SECTION 7.3 Limitation on Liability of OFL-A and Others. OFL-A and
any director, officer, employee or agent of either may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
OFL-A shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement, the
Receivables Financing Agreement or its Transaction Documents and that in its
opinion may involve it in any expense or liability.
SECTION 7.4 [Intentionally Omitted]
SECTION 7.5 Amendment.
(a) This Agreement may be amended by ACC, OFL-A and the Purchaser,
with the prior written consent of the Insurer (so long as an Insurer Default
shall not have occurred and be continuing) (i) to cure any ambiguity or (ii) to
correct any provisions in this Agreement.
(b) This Agreement may also be amended from time to time by ACC,
OFL-A and the Purchaser, with the prior written consent of the Insurer (so long
as an Insurer Default shall not have occurred and be continuing), and with the
consent of each Investor and the Agent, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement; provided, however, that no such amendment shall increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments on Transferred Receivables.
(c) Prior to the execution of any such amendment or consent, OFL-A
shall have furnished written notification of the substance of such amendment or
consent to each Rating Agency.
SECTION 7.6 Notices. All demands, notices and communications to
ACC, OFL-A or the Purchaser hereunder shall be in writing, personally delivered,
or sent by telecopier (subsequently confirmed in writing), reputable overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt (a) in the case of ACC, to ACC Consumer
Finance Corporation, 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, Attention: Chief Financial Officer, or such other address as shall be
designated by ACC in a written notice delivered to the other party or to the
Trustee, as applicable, or (b) in the case of the Purchaser, to [ ], Plaza del
Mar, 12526 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention:
President, or (c) in the case of the Insurer, to Financial Security Assurance
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Surveillance Department
Re: ________________________________________, or (d) in the case of OFL-A, to
OFL-A Receivables Corp., 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX
00000-0000, Attention Xx. Xxxx Xxxxxxx.
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SECTION 7.7 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement, the Receivables Financing Agreement and the
Transaction Documents set forth the entire understanding of the parties relating
to the subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement, the Receivables Financing Agreement and the
Transaction Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 7.8 Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 7.9 Intention of the Parties. The execution and delivery
of this Agreement shall constitute an acknowledgment by OFL-A and the Purchaser
that they intend that the assignment and transfer herein contemplated constitute
a sale and assignment outright, and not for security, of the Transferred
Receivables and the Other Conveyed Property conveying good title thereto free
and clear of any Liens, from OFL-A to the Purchaser, and that the Transferred
Receivables and the Other Conveyed Property shall not be a part of OFL-A=s
estate in the event of the bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, or the occurrence of another similar event, of, or
with respect to, OFL-A. In the event that such conveyance is determined to be
made as security for a loan made by the Purchaser to OFL-A, the parties intend
that OFL-A shall have granted to the Purchaser a security interest in all right,
title and interest in and to the Transferred Receivables and the Other Conveyed
Property conveyed pursuant to Section 2.1, and that this Agreement shall
constitute a security agreement under applicable law.
SECTION 7.10 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 7.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 7.12 Nonpetition Covenant. Until one year and one day
after the latest maturing commercial paper issued by Alpine shall be paid in
full, neither ACC, OFL-A nor the Purchaser shall petition or otherwise invoke
the process of any court or government authority for the purpose of commencing
or sustaining a case against Alpine (or, in the case of ACC or OFL-A, against
the Purchaser) under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar
21
25
official of Alpine (or the Purchaser) or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of Alpine (or the
Purchaser).
[Remainder of Page Intentionally Left Blank]
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26
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
ACC LIQUIDITY LLC,
as Purchaser
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
OFL-A RECEIVABLES CORP.,
as Seller
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
ACC CONSUMER FINANCE
CORPORATION
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
ACC RECEIVABLES CORP.
By:
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
[Signature Page to Purchase and Sale Agreement]
27
EXHIBIT A
FORM OF ASSIGNMENT
ASSIGNMENT, dated as of ___________ between OFL-A Receivables Corp.
(the "Seller") and ACC Liquidity LLC ("Purchaser").
1. We refer to the Purchase and Sale Agreement (the
"Purchase Agreement") dated as of March 27, 1997 between
the Seller, the Purchaser, ACC Receivables Corp. and ACC
Consumer Finance Corporation. All provisions of the
Purchase Agreement are incorporated herein by reference.
All capitalized terms shall have the meanings set forth
in the Purchase Agreement.
2. The Seller does hereby sell, transfer, assign, and
otherwise convey, from time to time, to Purchaser,
without recourse (but without limitation of its
obligations in the Purchase Agreement), and the
Purchaser hereby agrees to purchase, all right, title
and interest of Seller in and to certain Transferred
Receivables and the Other Conveyed Property pursuant to
the Purchase Agreement.
3. The Seller does hereby remake the representations and
warranties set forth in Section 4.1 of the Purchase
Agreement with full force and effect as if the same were
fully set forth herein.
IN WITNESS WHEREOF, the parties have caused this Assignment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
OFL-A RECEIVABLES CORP. ACC LIQUIDITY LLC
BY: ACC FUNDING CORP.,
ITS MANAGING MEMBER
By: By:
------------------------------ -------------------------------
Name: Name:
Title: Title:
1
28
SCHEDULE A
SCHEDULE OF RECEIVABLES
SEE SCHEDULE A TO RECEIVABLES FINANCING AGREEMENT
Sch. A-1
29
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF OFL-A
1. Characteristics of Transferred Receivables. Each Transferred
Receivable (A) was originated by a Dealer for the retail sale of a Financed
Vehicle in the ordinary course of such Dealer's business and, such Dealer had
all necessary licenses and permits to originate Receivables in the state where
such Dealer was located, was fully and properly executed by the parties thereto,
was purchased by OFL-A, American Credit Corporation or ACC from such Dealer
under an existing Dealer Agreement with OFL-A or ACC (including in its capacity
as successor to American Credit Corporation) and was validly assigned by such
Dealer to OFL-A, American Credit Corporation (in its capacity as the predecessor
of ACC) or ACC (in its individual capacity and in its capacity as successor
American Credit Corporation), (B) contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
realization against the collateral security, and (C) is a fully amortizing
Simple Interest Receivable or Rule of 78s Receivable which provides for level
monthly payments (provided that the payment in the first Collection Period and
the final Collection Period of the life of the Receivable may be minimally
different from the level payment) which, if made when due, shall fully amortize
the Amount Financed over the original term.
2. No Fraud or Misrepresentation. Each Transferred Receivable was
originated by a Dealer and was sold by the Dealer to ACC, American Credit
Corporation (in its capacity as the predecessor of ACC) or OFL-A without any
fraud or material misrepresentation on the part of such Dealer in either case or
on the part of the Obligor.
3. Compliance with Law. 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 Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers'
and Sailors' Civil Relief Act of 1940, the Minnesota Motor Vehicle Retail
Installment Sales Act, and state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code and other consumer credit laws and equal credit
opportunity and disclosure laws) in respect of all of the Transferred
Receivables, each and every sale of Financed Vehicles and the sale of any
physical damage, credit life and credit accident and health insurance and any
extended service contracts, have been complied with in all material respects,
and each Transferred Receivable and the sale of the Financed Vehicle evidenced
by each Transferred Receivable and the sale of any physical damage, credit life
and credit accident and health insurance and any extended service contracts
complied at the time it was originated or made and now complies in all material
respects with all applicable legal requirements.
Sch. B-1
30
4. Origination. Each Transferred Receivable was originated in the
United States of America and, at the time of origination materially conformed to
all requirements of the Dealer Underwriting Guide applicable to such Transferred
Receivable.
5. Binding Obligation. Each Transferred Receivable represents the
genuine, legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law
and (B) as such Transferred Receivable may be modified by the application after
the relevant Purchase Date of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended; and all parties to each Transferred Receivable had full legal
capacity to execute and deliver such Transferred Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. None of the Transferred Receivables shall
be due from the United States of America or any State or from any agency,
department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. As of the applicable Purchase Date, no
Obligor had been identified on the records of ACC or OFL-A as being the subject
of a current bankruptcy proceeding.
8. Schedule of Receivables. The information pertaining to each
Transferred Receivable set forth in each Schedule of Receivables was true and
correct in all material respects as of the close of business on the relevant
Purchase Date.
9. Marked Records. By the closing Date and on each relevant date
thereafter, ACC will have caused the portions of ACC's servicing records
relating to the Transferred Receivables to be clearly and unambiguously marked
to show that the Transferred Receivables have been transferred to the Purchaser
and are owned by the Purchaser and subject to a security interest in accordance
with the terms of this Agreement and the Receivables Financing Agreement.
10. Computer Tape or Listing. The Computer Tape or Listing made
available by OFL-A to the Purchaser from time to time was complete and accurate
as of the related Purchase Date and includes a description of the same
Receivables that are described in the related Schedule of Receivables.
11. Chattel paper. The Transferred Receivables constitute chattel
paper within the meaning of the UCC.
12. One Original. There is only one original executed copy of each
Transferred Receivable.
Sch. B-2
31
13. Receivable Files Complete. There exists a Receivable File
pertaining to each Transferred Receivable and such Receivable File contains,
without limitation, (a) a fully executed original of such Transferred
Receivable, endorsed, "Pay to the order of Norwest Bank Minnesota, National
Association as custodian" and signed in the name of OFL-A by an authorized
officer, (b) a certificate of insurance, application form for insurance signed
by the Obligor, or a signed representation letter from the Obligor named in the
Transferred Receivable pursuant to which the Obligor has agreed to obtain
physical damage insurance for the related Financed Vehicle, (c) the original
Lien Certificate or application therefor together with an assignment of the
Lien Certificate executed by OFL-A to the Purchaser and (d) an original credit
application signed by the Obligor. Each of such documents which is required to
be signed by the Obligor has been signed by the Obligor in the appropriate
spaces. All blanks on any form required by OFL-A to be completed have been
properly filled in and each form has otherwise been correctly prepared.
Notwithstanding the above, a copy of the complete Receivable File for each
Transferred Receivable, which fulfills the documentation requirements of the
Dealer Underwriting Guide as in effect at the time of purchase is in the
possession of the Custodian.
14. Transferred Receivables in Force. No Transferred Receivable has
been satisfied, subordinated or rescinded, and the Financed Vehicle securing
each such Transferred Receivable has not been released from the lien of the
related Transferred Receivable in whole or in part. No provisions of any
Transferred Receivable have been waived, altered or modified in any respect
since its origination, except by instruments or documents identified in the
Receivable File held by the Custodian. No Transferred Receivable has been
modified as a result of application of the Soldiers' and Sailors' Civil Relief
Act of 1940, as amended.
15. Lawful Assignment. No Transferred Receivable was originated in,
or is subject to the laws of, any jurisdiction the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Transferred Receivable under this Agreement. OFL-A has not entered into any
agreement with any account debtor that prohibits, restricts or conditions the
assignment of any portion of the Transferred Receivables.
16. Good Title. No Transferred Receivable has been sold,
transferred, assigned or pledged by OFL-A to any Person other than the
Purchaser; immediately prior to the conveyance of Transferred Receivables to
the Purchaser pursuant to this Agreement, OFL-A was the sole owner thereof and
had good and indefeasible title thereto, free of any Lien and, upon execution
and delivery of this Agreement by OFL-A, the Purchaser shall have good and
indefeasible title to and will be the sole owner of such Transferred
Receivables, free of any Lien. No Dealer has a participation in, or other right
to receive, proceeds of any Transferred Receivable. OFL-A has not taken any
action to convey any right to any Person that would result in such Person
having a right to payments received under the related Insurance Policies or the
related Dealer Agreements or Dealer Assignments or to payments due under such
Transferred Receivables.
17. Security Interest in Financed Vehicle. Each Transferred
Receivable created or shall create a valid, binding and enforceable first
priority security interest in favor of
Sch.B-3
32
OFL-A of ACC in the Financed Vehicle. The Lien Certificate for each Financed
Vehicle shows, or if a new or replacement Lien Certificate is being applied for
with respect to such Financed Vehicle the Lien Certificate will be received
within 180 days of the Closing Date and will show OFL-A, American Credit
Corporation (in its capacity as the predecessor of ACC) or ACC (both in its
individual capacity and in its capacity as the successor of American Credit
Corporation) named as the original secured party under each Transferred
Receivable and, accordingly, ACC, ACC d/b/a accent Financial Services or OFL-A,
as the case may be, will be the holder of a first priority security interest in
such Financed Vehicle. With respect to each Transferred Receivable for which
the Lien Certificate has not yet been returned from the Registrar of Title,
OFL-A, ACC d/b/a Accent Financial Services or ACC has received written
evidence from the related Dealer that such Lien Certificate showing OFL-A,
American Credit Corporation (in its capacity as the predecessor of ACC) or ACC,
ACC d/b/a Accent Financial Services (both in its individual capacity and in its
capacity as the successor of American Credit Corporation) as first lienholder
has been applied for. If the Transferred Receivable was originated in a state
in which a filing or recording is required of the secured party to perfect a
security interest in motor vehicles, such filings or recordings have been duly
made to show OFL-A, American Credit Corporation (in its capacity as the
predecessor of ACC) or ACC, ACC d/b/a Accent financial Services (both in its
individual capacity and in its capacity as the successor of American Credit
Corporation) named as the original secured party under the related Transferred
Receivable. Such security interest in the Financed Vehicle has been validly
assigned by OFL-A or ACC (including an assignment by ACC as successor by merger
to ACC Consumer (previously named American Credit Corporation)), as the case
may be, to the Purchaser pursuant to the Agreement.
Immediately after the sale, transfer and assignment thereof to the
Purchaser, each Transferred Receivable will be secured by an enforceable and
perfected first priority security interest in the Financed Vehicle in favor of
OFL-A as secured party, which security interest is prior to all other liens upon
and security interests in such Financed Vehicle which now exist or may
hereafter arise or be created (except, as to priority, for any lien for taxes,
labor or materials affecting a Financed Vehicle). As of the relevant Purchase
Date there were no Liens or claims for taxes, work, labor or materials affecting
a Financed Vehicle which are or may be Liens prior or equal to the lien of the
related Transferred Receivable.
18. All Filings Made. All filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be taken
or performed by any Person in any jurisdiction to give the Custodian for the
benefit of the Secured Parties a first priority perfected lien on, or ownership
interest in, the Transferred Receivables and the proceeds thereof and the Other
Conveyed Property related thereto have been made, taken or performed.
19. No Impairment. OFL-A has not done anything to convey any
right to any Person that would result in such Person having a right to payments
due under the Transferred Receivable or otherwise to impair the rights of the
Purchaser and the Investors in any Transferred Receivable or the proceeds
thereof.
Sch.B-4
33
20. Receivable Not Assumable. No Transferred Receivable is
assumable by another Person in a manner which would release the Obligor thereof
from such Obligor's obligations to OFL-A with respect to such Transferred
Receivable.
21. No Defenses. No Transferred Receivable is subject to any right
of rescission, setoff, counterclaim or defense and no such right has been
asserted or threatened with respect to any Transferred Receivable.
22. No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Transferred Receivable
(other than payment delinquencies of not more than 30 days) and no condition
exists or event has occurred and is continuing that with notice, the lapse of
time or both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Transferred Receivable, and there has been
no waiver or any of the foregoing. As of the relevant Purchase Date, no
Financed Vehicle had been repossessed.
23. Insurance. At the time of the origination of each Transferred
Receivable, the related Financed Vehicle was covered by a comprehensive and
collision insurance policy (i) in an amount at least equal to the lesser of (a)
its maximum insurable value and (b) the principal amount due from the Obligor
under the related Transferred Receivable, (ii) naming OFL-A and it successor
and assigns as loss payee and (iii) insuring against loss and damage due to
fire, theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage. Each Transferred Receivable requires the
Obligor to maintain physical loss and damage insurance, naming OFL-A, and its
successors and assigns as additional insured parties, and each Transferred
Receivable permits the holder thereof to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to do so.
24. Receivables. As of the relevant Purchase Date, each
Transferred Receivables: (i) had an original maturity of at least 18 months but
not more than 72 months; (ii) an original Amount Financed of at least $3,000
and not more than $27,000; (iii) had an Annual Percentage Rate of at least
14.50% and not more than 27%; (iv) was not more than 30 days past due; (v) no
funds had been advanced by ACC, the Servicer, OFL-A, any Dealer, or anyone
acting on behalf of any of them in order to cause any Receivable to qualify
under subclause (iv) of this clause (24); and (vi) no provision thereof waived,
altered or modified in any respect since its origination.
25. Origination. Each Transferred Receivable was originated in the
United States of America and, at the time of origination, materially conformed
to all requirements of the OFL-A underwriting policies and guidelines then in
effect and applicable to such Transferred Receivable.
26. Selection Procedures. No selection procedures adverse to the
Purchaser have been or will be utilized in selecting any Receivable to be sold
to the Purchaser from all other similar Receivables originated by OFL-A.
Sch.B-5
34
27. No Defaulted or Delinquent Receivables. None of the
Transferred Receivables is a Defaulted or Delinquent Receivable.
Sch.B-6
