RECEIVABLES PURCHASE AGREEMENT
Dated as of October 16, 1998
ARCADIA RECEIVABLES FINANCE CORP. V, a Delaware corporation, as buyer
(together with its successors and assigns in such capacity, the "BUYER"), and
ARCADIA FINANCIAL LTD., a Delaware corporation, as originator (together with its
successors and assigns in such capacity, the "ORIGINATOR"), agree as follows:
PRELIMINARY STATEMENTS
(1) Certain terms which are capitalized and used throughout this
Agreement (in addition to those defined above) are defined in Article I of this
Agreement.
(2) The Originator or a Subsidiary of the Originator in its ordinary
course of business finances the cost of Financed Vehicles purchased by Obligors
or the Originator purchases Contracts with respect to Financed Vehicles;
(3) The Buyer is a wholly-owned, special-purpose Subsidiary of the
Originator established to purchase or otherwise acquire Eligible Receivables and
Related Security;
(4) The Originator wishes from time to time to offer to sell to the
Buyer Eligible Receivables and Related Security; and
(5) The Buyer desires to purchase or otherwise procure such Eligible
Receivables and Related Security from the Originator;
NOW, THEREFORE, on the terms and conditions set forth herein, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"AGREEMENT" means this Receivables Purchase Agreement, dated as of
October 16, 1998, between the Buyer and the Originator, as the same may from
time to time be amended, supplemented or otherwise modified and in effect.
"DEMAND NOTE" shall mean a demand note, dated as of October 16, 1998,
executed by the Originator in favor of the Buyer, substantially in the form of
Exhibit B hereto.
"ELIGIBLE RECEIVABLE" has the meaning specified in the Receivables
Transfer Agreement.
"INDEMNIFIED AMOUNTS" has the meaning specified in Section 7.1(a).
"INDEMNIFIED PARTY" has the meaning specified in Section 7.1(a).
"INITIAL PURCHASE DATE" means the date the first Purchase is made
pursuant to this Agreement.
"OBLIGOR" means the obligor and any co-obligor(s) under a Receivable.
"ORIGINATOR" has the meaning set forth in the preamble to this
Agreement.
"PURCHASE" means a purchase of Purchased Receivables, Related Security
with respect to such Purchased Receivables and Collections with respect thereto
by the Buyer from the Originator pursuant to Sections 2.1 and 2.2.
"PURCHASE DATE" means the Initial Purchase Date and, thereafter, any
Business Day of a calendar month, on which a Purchase occurs; PROVIDED, that no
more than one Purchase may occur on any Purchase Date.
"PURCHASE NOTICE" means a notice, in substantially the form of Exhibit
A, furnished by the Originator to the Buyer pursuant to Section 2.2.
"PURCHASE PERCENTAGE" shall mean initially 100%; PROVIDED, HOWEVER,
that the Purchase Percentage may change from time to time to reflect historic
loss experience of the Originator's Receivable portfolio, as agreed upon by the
Originator and the Buyer. The Buyer shall notify the Funding Agent of any
change in the Purchase Percentage.
"PURCHASE PRICE" has the meaning specified in Section 2.2.(b).
"PURCHASE TERMINATION DATE" has the meaning specified in Section 8.8.
"PURCHASED ASSETS" means, at any time, all then outstanding Purchased
Receivables, Related Security with respect to such Purchased Receivables and
Collections with respect to, and other proceeds of, such Purchased Receivables.
"PURCHASED RECEIVABLE" means any Receivable which appears on any list
of Receivables at any time hereafter submitted to and accepted by the Buyer
pursuant to Section 2.2. Once a Receivable appears on any such list it shall
remain a Purchased Receivable; PROVIDED, HOWEVER, that with respect to any
Receivable that is repurchased by the Originator pursuant to Section 7.2,
following the Buyer's receipt of the repurchase price for such Receivable, or
any Receivable that is the subject of a Permitted Securitization Transaction or
a Permitted Originator Transaction, "PURCHASED RECEIVABLE" shall not include
such Receivable.
"PURCHASE TERMINATION EVENT" means an Event of Bankruptcy shall have
occurred with respect to the Originator.
"RECEIVABLES" means the indebtedness evidenced by the Contracts,
whether constituting accounts, general intangibles, contract rights, chattel
paper or instruments.
"RECEIVABLES TRANSFER AGREEMENT" means the Receivables Transfer
Agreement, dated as of October 16, 1998, between the Buyer, the Servicer, PARCO,
the Originator and the Funding Agent, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"RECORDS" means, with respect to each Purchased Receivable, all
factory invoices and work orders describing the related Financed Vehicle, the
xxxx of sale and guaranty of title, insurance policies, tax receipts, property
and casualty insurance policies or binders naming the Servicer as loss payee or
additional named insured, as is appropriate, insurance premium receipts, ledger
sheets, payment records, insurance claim files and correspondence, all
documentation in connection with any modification, release, accommodation,
cosigning or guaranty of the Purchased Receivable and all other documents and
instruments, including all books, records,
files, tapes, correspondence and other information or materials (including,
without limitation, computer programs, tapes, discs, punch cards, data
processing software and related property and rights) relating to the Purchased
Receivable, the Contract, the Title and the Financed Vehicle relating to the
Purchased Receivable and this Agreement.
"RELATED SECURITY" means, with respect to any Receivable, all of the
Originator's right, title, and interest in, to and under (i) the related
Contract File, (ii) the related Financed Vehicle, (iii) all related Records (iv)
all guarantees, insurance and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such Receivable,
whether pursuant to the related Contract or otherwise, (v) all security
interests, liens and other property purporting to secure payment of the related
Contract, together with all financing statements signed by an Obligor and
security agreements describing any collateral securing such Contract, and (vi)
all proceeds of the foregoing.
"TITLE" means, with respect to each Receivable, the original
certificate or other instrument or registration evidencing ownership of the
related Financed Vehicle, which certificate, other instrument or registration
shall have the Lien of the Originator noted thereon or a UCC financing statement
signed by the Obligor and filed in the appropriate jurisdiction evidencing the
perfection of the Lien granted by the Obligor to the Originator and assigned to
the Buyer or its designee as provided herein.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
SECTION 1.2. OTHER TERMS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in, or
incorporated by reference into, the Receivables Transfer Agreement. All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of New York, and not specifically defined
herein, are used herein as defined in such Article 9.
SECTION 1.3. COMPUTATION OF TIME PERIODS. Unless otherwise stated
in this Agreement, in the computation of a period of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding."
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES
SECTION 2.1. GENERAL TERMS. (a) On the terms and conditions
hereinafter set forth, from the date the conditions precedent to the initial
Purchase in Section 3.1 are satisfied to (but excluding) the Purchase
Termination Date, the Originator may offer to sell to the Buyer on each Purchase
Date all right, title and interest of the Originator in, to and under certain
Eligible Receivables, all Related Security with respect to such Eligible
Receivables and Collections and proceeds with respect thereto, and the Buyer, in
its sole discretion, may purchase all or any portion of such Eligible
Receivables, Related Security, Collections and proceeds with respect thereto
from the Originator. Nothing in this Agreement shall be deemed to be or
construed as a commitment by the Buyer to purchase any Purchased Assets at any
time.
(b) It is the intention of the parties hereto that each Purchase of
Eligible Receivables, Related Security, Collections and proceeds with respect
thereto made hereunder shall constitute a sale, as such term is used in Article
9 of the UCC, which sales are absolute, irrevocable and without recourse except
as specifically provided herein and provide the Buyer with the full benefits of
ownership of the Purchased Receivables and such related Purchased Assets.
Neither the Originator nor the Buyer intends the transactions contemplated
hereunder to be, or for any purpose to be characterized as, loans from the Buyer
to the Originator secured by such assets. If at any time a court characterizes
the Purchases hereunder as loans by the Buyer to the Originator, then the
Originator hereby pledges, grants a security interest in and assigns to the
Buyer, all of the Originator's right and title to and interest in (i) the
Purchased Receivables, (ii) the Related Security and Collections with respect
thereto, (iii) the Lock-Box Account, (iv) funds on deposit in the Lock-Box to
the extent attributable to Purchased Receivables and Related Security and
Collections with respect thereto, and (v) proceeds with respect thereto as
security for such loans and for the payment and performance of all obligations
of the Originator hereunder. In view of the intention of the parties hereto
that the Purchases of Eligible Receivables, Related Security, Collections and
proceeds with respect thereto made hereunder shall constitute sales of such
Purchased Receivables, Related Security, Collections and proceeds with respect
thereto rather than a loan secured by such Purchased Receivables, Related
Security, Collections and proceeds with respect thereto, the Originator agrees
to note on its financial statements that such Purchased Receivables, Related
Security, Collections and proceeds with respect thereto have been sold to the
Buyer.
SECTION 2.2. PURCHASES FROM THE ORIGINATOR. (a) Each Purchase shall
be made on a Purchase Date; PROVIDED that a Purchase Notice requesting such
Purchase is received by the Buyer by the close of business on such Purchase
Date. Each such Purchase Notice shall list all Eligible Receivables of the
Originator
requested to be purchased and shall specify the Purchase Price
therefor. The Buyer shall promptly thereafter notify the Originator whether the
Buyer has determined to purchase all or any portion of such Eligible
Receivables.
(b) The purchase price (the "PURCHASE PRICE") for the new Purchased
Receivables noted on a Purchase Notice (together with the related Purchased
Assets) payable with respect to any Purchase Date shall be an amount equal to
the product of the Outstanding Balance of such Purchased Receivables on the
Purchase Date and the Purchase Percentage. The Purchase Price shall be paid to
the Originator, by wire transfer of immediately available funds, (i) on the
related Purchase Date, in an amount equal to the product of (x) the Outstanding
Balance of such Purchased Receivables on such Purchase Date, and (y) the Advance
Percentage in effect on such Purchase Date, and (ii) upon the date of any
Permitted Securitization Transaction, in an amount equal to the remaining
balance of the Purchase Price for such Purchased Receivables.
SECTION 2.3. COLLECTIONS; LOCK-BOX ACCOUNT. In connection with the
Purchases of Purchased Receivables hereunder, the Originator hereby transfers
and assigns to the Buyer all the Originator's right, title and interest in and
to the Lock-Box and the Lock-Box Account with respect to the Purchased
Receivables. In connection with such transfer and assignment, the Originator
hereby agrees to instruct each Obligor of a Purchased Receivable to remit
payment on the Purchased Receivables to the Lock-Box. The Originator further
agrees that it will not make any change in its instructions to Obligors
regarding payments to be made to the Lock-Box except in accordance with the
Facility Documents. The Originator agrees that if it shall receive any
Collections, the Originator shall hold such Collections in trust for the benefit
of the Buyer and remit such Collections to the Buyer by depositing such
Collections into the Collection Account within two (2) Business Days following
the Originator's receipt thereof. The location of the Lock-Box, together with
the name and address of the Lock-Box Bank, are specified in Exhibit C.
SECTION 2.4. TRANSFER OF RECORDS TO THE BUYER. (a) In connection
with the Purchases of Purchased Receivables hereunder, the Originator hereby
sells, transfers, assigns and otherwise conveys to the Buyer all of the
Originator's right, title and interest in, to and under the Records relating to
all Purchased Receivables, without the need for any further documentation in
connection with any Purchase. In connection with such transfer, the Originator
hereby grants to the Buyer and the Servicer an irrevocable, non-exclusive
license to use, without royalty or payment of any kind, all software used by the
Originator to account for the Purchased Receivables, to the extent necessary to
administer the Purchased Receivables, whether such software is owned by the
Originator or is owned by others and used by the Originator under license
agreements with respect thereto. The license granted hereby shall be
irrevocable, and shall terminate when all Purchased Receivables have been
collected or charged off as uncollectible.
(b) The Originator shall take such action requested by the Servicer
and/or Buyer and its assignees, from time to time hereafter, that may be
necessary or appropriate to ensure that the Buyer and its assignees has (i) an
enforceable ownership interest in the Records relating to the Purchased
Receivables and (ii) an enforceable right (whether by license or sublicense or
otherwise) to use all of the computer software used to account for the Purchased
Receivables and/or to recreate such Records.
SECTION 2.5. PERFECTION OF LIENS; FURTHER ASSURANCES. The
Originator shall, at its expense, promptly execute and deliver all further
instruments and documents, and take all further action (including, without
limitation, the execution and filing of such financing or continuation
statements, or amendments thereto or assignments thereof), that may be necessary
or desirable, or that the Buyer may request, in order to perfect and protect any
ownership or security interest granted or purported to be granted to the Buyer
hereunder or to enable the Buyer to exercise and enforce its rights and remedies
hereunder with respect to any Purchased Assets (including, without limitation,
the security interest of the Buyer in the Financed Vehicles securing the
Purchased Receivables). The Originator hereby authorizes the Buyer to file one
or more financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any part of the Purchased Assets now
existing or hereafter arising without the signature of the Originator where
permitted by law. A carbon, photographic or other reproduction of this
Agreement or any financing statement covering the Purchased Assets or any part
thereof shall be sufficient as a financing statement. The Originator will
furnish to the Buyer from time to time statements and schedules further
identifying and describing the Purchased Assets and such other reports in
connection with the Purchased Assets as the Buyer may reasonably request, all in
reasonable detail.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial
Purchase shall be subject to the condition precedent that the Buyer shall have
received the following, each in form and substance satisfactory to the Buyer:
(a) The Facility Documents executed by parties thereto and a copy of
the executed Lock-Box Agreement;
(b) Acknowledgment copies of proper UCC-1 Financing Statements
executed by the Originator, as may be necessary or, in the opinion of the Buyer,
desirable under the UCC of all appropriate jurisdictions or any comparable law
to perfect the Buyer's interests in all Purchased Receivables, Related Security,
Collections and proceeds with respect thereto, in which an interest may be
assigned to it hereunder;
(c) certified copies of Requests for Information or Copies (Form
UCC-11) (or a similar search report certified by a party acceptable to the
Buyer), dated a date reasonably near to the date hereof, listing all effective
financing statements which name the Originator (under its present name and any
previous names) as debtor and which are filed in the jurisdictions in which
filings were made pursuant to subsection (b) of this Section 3.1, together with
copies of such financing statements;
(d) A copy of the resolutions of the Board of Directors of the
Originator approving this Agreement and the other Facility Documents to be
delivered by it hereunder and under the Facility Documents and the transactions
contemplated hereby and thereby certified by its Secretary or Assistant
Secretary;
(e) The Certificate of Incorporation of the Originator certified by
the Secretary of State of Minnesota;
(f) A certificate of the Secretary or Assistant Secretary of the
Originator certifying (i) the names and true signatures of the officers
authorized on its behalf to sign this Agreement and the other Facility Documents
to be delivered by it hereunder (on which certificate the Buyer may conclusively
rely until such time as the Buyer shall receive from the Originator a revised
certificate meeting the requirements of this subsection (f)) and (ii) a copy of
the Originator's by-laws; and
(g) Opinions of Xxxxxx & Whitney LLP special counsel for the
Originator, in form and substance satisfactory to the Buyer, as to such matters
as the Buyer and the Funding Agent may reasonably request.
SECTION 3.2. CONDITIONS PRECEDENT TO ALL PURCHASES. Each Purchase
(including the initial Purchase) by the Buyer from the Originator shall be
subject to the further conditions precedent that (a) with respect to any such
Purchase, not later than the close of business on the date of such Purchase, the
Originator shall have delivered to the Buyer, in form and substance satisfactory
to each of them, a completed Purchase Notice dated the date of such Purchase and
containing such additional information as may be reasonably requested by the
Buyer, (b) on the date of such Purchase the representations and warranties
contained in Section 4.1 shall be correct on and as of such date as though made
on and as of such date, (c) on the date of such Purchase, no Purchase
Termination Event shall have occurred and be continuing, and (d) the Originator
shall have taken all actions (including, but not limited to, filing financing
statements covering the Purchased Assets) necessary or advisable to perfect and
protect the Buyer's security interest in the Purchased Assets, free and clear of
any Lien, (by accepting the Purchase Price for such Purchase the Originator
shall be deemed to have certified the foregoing clauses (a)-(d) to such effect).
SECTION 3.3. EFFECT OF PAYMENT OF PURCHASE PRICE. Upon the payment
of the Purchase Price for any Purchase, all of the Originator's right, title and
interest, whether then existing or thereafter acquired, in and to the Purchased
Receivables specified in the related Purchase Notice and the other Purchased
Assets related thereto shall be sold, transferred, assigned and otherwise
conveyed to the Buyer and title thereto shall vest in the Buyer, whether or not
the conditions precedent to such Purchase were in fact satisfied; PROVIDED,
HOWEVER, that the Buyer shall not be deemed to have waived any claim it may have
under this Agreement for the failure by the Originator in fact to satisfy any
such condition precedent. Immediately following each Purchase hereunder, the
Originator shall make available to the Buyer an updated schedule of all
Purchased Receivables, which schedule, as amended from time to time, shall be
incorporated into, and made a part of, this Agreement as Exhibit D hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR. The
Originator represents and warrants as follows:
(a) DUE INCORPORATION AND GOOD STANDING. The Originator is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction named with respect thereto in the preamble and is duly
qualified to do business, and is in good standing, in every jurisdiction in
which the nature of its business requires it to be so qualified.
(b) DUE AUTHORIZATION AND NO CONFLICT. The execution, delivery and
performance by the Originator of this Agreement, the other Facility Documents to
which the Originator is a party and all other agreements, instruments and
documents to be delivered hereunder, and the transactions contemplated hereby
and thereby, are within the Originator's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) the
Originator's Articles of Incorporation or by-laws, (ii) any law, rule or
regulation applicable to the Originator, (iii) any contractual restriction
contained in any material indenture, loan or credit agreement, lease, mortgage,
security agreement, bond, note, or other agreement or instrument binding on or
affecting the Originator or its property or (iv) any order, writ, judgment,
award, injunction or decree binding on or affecting the Originator or its
property, and do not result in or require the creation of any Lien upon or with
respect to any of its properties (other than in favor of the Buyer as
contemplated hereunder); and no transaction contemplated hereby requires
compliance with any bulk sales act or similar law. This Agreement and each
other Facility Document to which the Originator is a party has been duly
executed and delivered on behalf of the Originator.
(c) GOVERNMENTAL CONSENT. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Originator of this Agreement, any other Facility Document to which the
Originator is a party or any other agreement, document or instrument to be
delivered hereunder.
(d) ENFORCEABILITY OF FACILITY DOCUMENTS, RECEIVABLES AND CONTRACTS.
This Agreement and each other Facility Document to be delivered by the
Originator in connection herewith and therewith constitute the legal, valid and
binding obligation of the Originator enforceable against the Originator in
accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
(e) NO LITIGATION. There are no actions, suits or proceedings
pending, or to the knowledge of the Originator threatened, against or affecting
the Originator or any of its Subsidiaries, or the property of the Originator or
any of its Subsidiaries, in any court, or before any arbitrator of any kind, or
before or by any governmental body, which may materially adversely affect (i)
the financial condition of the Originator or the Originator and its consolidated
Subsidiaries taken as a whole or (ii) the ability of the Originator to perform
its obligations under this Agreement or the other Facility Documents or (iii)
the collectibility of the Purchased Receivables. Neither the Originator nor any
of its Subsidiaries is in default with respect to any order of any court,
arbitrator or governmental body, except for defaults with respect to orders of
governmental agencies which defaults are not material to the business or
operations of the Originator or the ability of the Originator to perform its
obligations under this Agreement or under any of the other Facility Documents to
which the Originator is a party.
(f) USE OF PROCEEDS. No proceeds of any Purchase will be used by the
Originator to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(g) ELIGIBILITY OF PURCHASED RECEIVABLES; PERFECTION OF INTEREST
IN PURCHASED RECEIVABLES. (i) As of the date of Purchase hereunder of each
Purchased Receivable, such Purchased Receivable will satisfy the conditions
of the definition of "Eligible Receivable."
(ii) Prior to the Buyer's Purchase of each Purchased Asset
hereunder, the Originator is or will be the lawful owner of, and have good
title to, such Purchased Asset free and clear of any Lien and upon each
Purchase by the Buyer of Purchased Assets hereunder, the Buyer shall
acquire a valid and perfected first priority ownership interest in each
Purchased Receivable then existing or thereafter arising and in the Related
Security, Collections and proceeds with respect thereto, in each case free
and clear of any Lien. All such Purchases of Purchased Receivables and
related Purchased Assets constitute true and valid sales, and all such
Purchases of Purchased Receivables and related Purchased Assets constitute
true and valid transfers and assignments of all of the Originator's right,
title and interest in, to and under such Purchased Assets (and not merely a
pledge of such Purchased Receivables and related Purchased Assets for
security purposes) enforceable against creditors of the Originator. No
such
Purchased Assets shall constitute property of the Originator; and no
effective financing statement or other instrument similar in effect
covering any Purchased Receivable, the Related Security, Collections and
proceeds with respect thereto or any other Purchased Assets shall at any
time be on file in any recording office except such as may be filed in
favor of the Buyer (or its assignees) in accordance with this Agreement.
(h) ACCURACY OF INFORMATION. No Purchase Notice, information,
exhibit, financial statement, document, book, record or report furnished or to
be furnished by the Originator to the Buyer in connection with this Agreement is
or shall be inaccurate in any material respect as of the date it is or shall be
dated or (except as otherwise disclosed to the Buyer, as the case may be, at
such time) as of the date so furnished, or contains or shall contain any
material misstatement of fact or omits or shall omit to state a material fact or
any fact necessary to make the statements contained therein not materially
misleading.
(i) LOCATION OF CHIEF EXECUTIVE OFFICE AND RECORDS. The chief place
of business and chief executive office of the Originator are located at the
address of the Originator referred to in Section 8.2 hereof and the locations of
the offices where the Originator keeps all the Records are listed on Exhibit E
(or at such other locations, notified to the Buyer in accordance with Section
5.1(e), in jurisdictions where all action required by Section 6.3 has been taken
and completed). The Originator has, since its incorporation, operated only
under the names listed on Exhibit F hereto and, since its incorporation, has not
changed its name or merged with or into or consolidated with any other entity or
been the subject of any proceeding under the Bankruptcy Code, except as
disclosed on Exhibit F hereto.
(j) SEPARATE CORPORATE EXISTENCE. The Originator is entering into
the transactions contemplated by this Agreement in reliance on the Buyer's
identity as a separate legal entity from the Originator and each of its
Affiliates, and acknowledges that the Buyer and the other parties to the
Facility Documents are similarly entering into the transactions contemplated by
the other Facility Documents in reliance on the Buyer's identity as a separate
legal entity from the Originator and each such other Affiliate.
(k) TAXES. The Originator has filed or caused to be filed all
federal, state and local tax returns which are required to be filed by it, and
has paid or caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by it, other than any taxes or
assessments, the validity of which are being contested in good faith by
appropriate proceedings and with respect to which the Originator has set aside
adequate reserves on its books in accordance with generally accepted accounting
principles and which have not given rise to any Liens.
(l) SOLVENCY. The Originator: (i) is not "insolvent" (as such term
is defined in Section 101(32)(A) of the Bankruptcy Code), (ii) is able to pay
its debts as they mature; and (iii) does not have unreasonably small capital for
the business in which it is engaged or for any business or transaction in which
it is about to engage.
(m) NO FRAUDULENT CONVEYANCE. The transactions contemplated by this
Agreement and by each of the Facility Documents are being consummated by the
Originator in furtherance of the Originator's ordinary business, with no
contemplation of insolvency and with no intent to hinder, delay or defraud any
of its present or future creditors. By its receipt of the Purchase Prices
hereunder and its ownership of the capital stock of the Buyer, the Originator
shall have received reasonably equivalent value for the Purchased Receivables
sold or otherwise conveyed to the Buyer under this Agreement.
(n) NOT AN INVESTMENT COMPANY. The Originator is not, and is not
controlled by, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(o) ERISA. Each of the Originator and its ERISA Affiliates is in
compliance in all material respects with ERISA, and no lien in favor of the
Pension Benefit Guaranty Corporation exists on any of the Purchased Receivables,
Related Security, Collections or proceeds with respect thereto.
(p) LOCK-BOX BANK INFORMATION. The name and address of the Lock-Box
Bank, together with the location of the Lock-Box, is specified in Exhibit C (as
amended from time to time) hereto (or at such other Lock-Box Bank and/or with
such other Lock-Box as have been notified to the Buyer in accordance with
Section 5.2(h) and with respect to which (and with respect to all Collections to
be deposited therein) all action required by Section 5.2(h) has been taken and
completed). All Obligors have been instructed to make payment to the Lock-Box.
SECTION 4.2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES BY THE
ORIGINATOR; NOTICE OF BREACH. On the date hereof and on each Business Day on
which Purchased Receivables are sold hereunder, the Originator, by accepting the
proceeds of such sale, shall be deemed to have certified that all
representations and warranties described in Section 4.1 are true and correct on
and as of such day as though made on and as of such day. The representations
and warranties set forth in Section 4.1 shall survive (i) the conveyance of the
Purchased Receivables to the Buyer, (ii) the termination of the rights and
obligations of the Buyer and the Originator under this Agreement and (iii) the
termination of the Receivables Transfer Agreement. Upon discovery by the
Originator or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other within three (3) Business Days of such
discovery.
ARTICLE V
GENERAL COVENANTS OF THE ORIGINATOR
SECTION 5.1. AFFIRMATIVE COVENANTS OF THE ORIGINATOR. The
Originator will at all times:
(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects with
all applicable laws, rules, regulations and orders with respect to it, its
business and properties and all Receivables and related Contracts.
(b) PRESERVATION OF EXISTENCE. Observe all procedures required by
its Articles of Incorporation and by-laws and preserve and maintain its
existence, rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualifications would materially adversely affect the
interests hereunder of the Buyer, (2) the collectibility of any Purchased
Receivable or (3) its ability to perform its obligations hereunder.
(c) AUDITS. At any time and from time to time upon prior written
notice to the Originator and during regular business hours, permit the Buyer, or
its agents or representatives, (i) to examine and make copies of and abstracts
from all Records, and (ii) to visit the offices and properties of the Originator
for the purpose of examining such Records, and to discuss matters relating to
the Purchased Receivables or the Originator's performance hereunder with any of
the officers or employees of the Originator having knowledge of such matters.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing the Purchased Receivables in the event of
the destruction of the originals thereof) and keep and maintain all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Purchased Receivables (including, without limitation, records
adequate to permit the daily identification of all Collections of and
adjustments to each Purchased Receivable). The Originator hereby agrees to give
the Buyer prompt written notice of any change in its administrative and
operating procedures which would be reasonably likely to have a material adverse
effect on the collectibility of the Receivables. The Originator hereby covenants
that the original counterpart of each Contract subject to a Purchase hereunder
shall be delivered to the Servicer and all other Records relating thereto shall
be marked electronically to segregate such Records from any similar documents.
(e) LOCATION OF RECORDS. Keep its chief place of business and
chief executive office, and the offices where it keeps the Records, at the
address(es) of the
Originator referred to in Section 4.1(i), or, in any such case, upon 30 days'
prior written notice to the Buyer, at such other locations within the United
States where all action required by Section 6.3 shall have been taken and
completed.
(f) CREDIT AND COLLECTION POLICY. Comply in all material respects
with its Credit and Collection Policy and/or the Additional Credit Guidelines in
regard to each Purchased Receivable and the related Contract, including, without
limitation, the taking of such steps as are necessary to maintain perfection,
free and clear of all equal or prior Liens, of the security interest created by
each such Contract in the related Financed Vehicle on behalf of the Buyer.
(g) NATURE OF BUSINESS. Engage principally in, directly or
indirectly through the ownership of its Subsidiaries, the business of financing
the cost of Financed Vehicles purchased by Obligors.
(h) MAINTENANCE OF INSURANCE. Maintain and keep in force insurance in
amounts and with companies as is customary for companies engaged in the same
business as that of the Originator.
(i) SEPARATE IDENTITY. Take all actions required to maintain the
Buyer's status as a separate legal entity, including, without limitation, (i)
not holding the Buyer out to third parties as other than an entity with assets
and liabilities distinct from the Originator and the originator's other
Subsidiaries; (ii) not holding itself out to be responsible for the debts of the
Buyer or, other than by reason of owning capital stock of the Buyer, for any
decisions or actions relating to the business and affairs of the Buyer; (iii)
causing any internal financial statements consolidated with those of the Buyer
to report the Buyer as a separate corporate entity; (iv) taking such other
actions as are necessary on its part to ensure that all corporate procedures
required by its and the Buyer's respective certificates of incorporation and
by-laws are duly and validly taken; (v) keeping correct and complete records and
books of account and corporate minutes; and (vi) not acting in any other manner
that could foreseeably mislead others with respect to the Buyer's separate
identity.
(j) COLLECTIONS. The Originator shall instruct all Obligors to cause
all Collections to be mailed directly to the Lock-Box. The Originator shall
hold in trust, and deposit within two (2) Business Days after receipt thereof to
the Collection Account, all Collections received from time to time by the
Originator.
(k) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. The
Originator at its expense will timely and fully perform and comply with all
material provisions, covenants and other promises required to be observed by it
under the Contracts related to the Purchased Receivables.
(l) ERISA. The Originator will promptly give the Buyer written
notice upon becoming aware that the Originator is not in compliance in all
material respects with ERISA or that any ERISA lien on any of the Receivables,
Related Security, Collections or proceeds with respect thereto exists.
SECTION 5.2. NEGATIVE COVENANTS OF THE ORIGINATOR. The Originator
will not at any time:
(a) SALES, LIENS, ETC. AGAINST RECEIVABLES AND RELATED ASSETS.
Except pursuant to the Facility Documents and a Permitted Securitization
Transaction or Permitted Originator Transaction and as otherwise provided
herein, sell, assign (by operation of law or otherwise) or otherwise dispose of,
or create or suffer to exist, any Lien upon or with respect to, any Purchased
Receivable, Related Security, Collections or proceeds with respect thereto, or
upon or with respect to the Lock-Box or the Lock-Box Account, or assign any
right to receive income in respect thereof.
(b) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise
expressly contemplated by the Credit and Collection Policy and/or the Additional
Credit Guidelines, compromise, extend, release or adjust payments on any
Contracts or Receivables, accept a conveyance of a Financed Vehicle in full or
partial satisfaction of any Contract or Receivable, or release the Lien noted on
any Title to any Financed Vehicle securing any Receivable.
(c) CHANGE IN BUSINESS. Make any material change in the character of
its business without prior notice to the Buyer.
(d) CHANGE IN CORPORATE NAME. Make any change to its corporate name
or use any trade names, fictitious names, assumed names or "doing business as"
names unless, prior to the effective date of any such name change or use, the
Originator has taken all actions required with respect thereto under Section 6.3
and has delivered to the Buyer such other financing statements (Form UCC-1 and
UCC-3) executed by the Originator which the Buyer may reasonably request to
reflect such name change or use, together with such other documents and
instruments that the Buyer may request in connection therewith.
(e) ACCOUNTING TREATMENT. Prepare any financial statements or other
statements which shall account for the transactions contemplated by this
Agreement in any manner other than as the sale of the Purchased Assets by the
Originator to the Buyer.
(f) NONPETITION COVENANT. Notwithstanding any prior termination of
this Agreement, the Originator shall not, prior to the date which is one year
and one
day after the termination of this Agreement, with respect to the Buyer,
acquiesce, petition or otherwise invoke or cause the Buyer to invoke the process
of any governmental authority for the purpose of commencing or sustaining a case
against the Buyer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Buyer or any substantial part of
its property or ordering the winding-up or liquidation of the affairs of the
Buyer.
(g) MERGER. Any Person (i) into which the Originator may be merged
or consolidated, (ii) resulting from any merger or consolidation to which the
Originator shall be a party, (iii) which acquires by conveyance, transfer or
lease substantially all of the assets of the Originator, or (iv) succeeding to
the business of the Originator, shall execute an agreement of assumption to
perform every obligation of the Originator under this Agreement and, whether or
not such assumption agreement is executed, shall be the successor to the
Originator under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties to this Agreement, anything in
this Agreement to the contrary notwithstanding; PROVIDED, HOWEVER, that nothing
contained herein shall be deemed to release the Originator from any obligation
hereunder.
(h) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Amend the Lock-Box
Agreement (except to add additional Program Parties (as defined therein)) or
terminate Xxxxxx Trust and Savings Bank (or any successor or assign) as the
Lock-Box Bank or make any change in its instructions to Obligors regarding
payments to be made to the Seller or payments to be made to the Lock-Box Bank,
unless the Buyer shall have received (1) ten (10) Business Days' prior notice of
such amendment, termination or change and (2) prior to the effective date of
such amendment, termination or change, an executed copy of the Lock-Box
Agreement executed by the Lock-Box Bank, the Funding Agent, AFL and the Seller.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.1. DESIGNATION OF SERVICER. Upon the execution and
delivery of the Receivables Transfer Agreement, the Originator will be appointed
as Servicer thereunder and will accept such appointment thereunder. As part of
the consideration for the Purchases hereunder, the Originator hereby
acknowledges and consents to such appointments as Servicer and agrees to perform
each of the duties and obligations of the Servicer pursuant to the terms of the
Receivables Transfer Agreement, as applicable. In the event the Originator or
any successor Servicer is replaced as Servicer under any other Facility
Document, the Originator or such successor Servicer shall automatically be
replaced as Servicer hereunder by the applicable successor Servicer.
SECTION 6.2. RIGHTS OF THE BUYER.
(a) After a Servicer Termination Event, the Buyer may notify the
Obligors of Purchased Receivables, or any of them, of the Buyer's ownership
interest in Purchased Assets and direct such Obligors, or any of them, that
payment of all amounts payable under any Purchased Receivable be made directly
to the Buyer or its designee.
(b) After a Servicer Termination Event, the Originator shall, at the
Servicer's or Buyer's request and at the Originator's expense, give notice of
the Buyer's interest in Purchased Receivables to each Obligor and direct that
payments be made directly to the Buyer or its designee.
(c) After a Servicer Termination Event, the Originator shall, at the
Buyer's request, assemble all Records which the Buyer reasonably believes are
necessary or appropriate for the administration and enforcement of the Purchased
Receivables, and shall make the same available to the Buyer at a place selected
by the Buyer or its designee.
(d) At any time, the Originator hereby authorizes the Buyer and the
Servicer to take any and all steps in the Originator's name and on behalf of the
Originator necessary or desirable, in the determination of the Buyer and/or the
Servicer, to collect all amounts due under any and all Purchased Receivables,
including, without limitation, endorsing the Originator's name on checks and
other instruments representing Collections and enforcing such Purchased
Receivables and the Related Security.
SECTION 6.3. FURTHER ACTION EVIDENCING TRANSFERS. The Originator
agrees that from time to time, at its expense, it will promptly execute and
deliver all
further instruments and documents and take all further action necessary or
advisable, or that the Buyer may reasonably request, in order to perfect,
protect or more fully evidence the Buyer's interest in the Purchased Assets
(including, without limitation, the security interest of the Buyer in the
Financed Vehicles securing the Purchased Receivables), or to enable the Buyer to
exercise or enforce any of its rights hereunder. Without limiting the
generality of the foregoing, the Originator will xxxx its master data processing
records evidencing such Purchased Receivables and Related Security with a
legend, acceptable to the Buyer, evidencing that the Buyer has acquired an
ownership interest therein as provided in this Agreement and, upon the request
of the Buyer, will execute and file such financing or continuation statements,
or amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate or as the Buyer may reasonably
request. The Originator hereby authorizes the Buyer to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Purchased Receivables and the Purchased
Assets now existing or hereafter arising without the signature of the Originator
where permitted by law. A carbon, photographic or other reproduction of this
Agreement or any financing statement covering the Purchased Receivables and the
other Purchased Assets, or any part thereof, shall be sufficient as a financing
statement. If the Originator fails to perform any of its agreements or
obligations under this Agreement, the Buyer may (but shall not be required to)
itself perform, or cause performance of, such agreement or obligation, and the
expenses of the Buyer incurred in connection therewith shall be payable by the
Originator upon the Buyer's demand therefor; PROVIDED that, prior to taking any
such action, the Buyer shall give notice of such intention to the Originator and
shall provide the originator with a reasonable opportunity to take such action
itself.
SECTION 6.4. TRANSFERS BY BUYER. The Originator acknowledges and
agrees with the Buyer that (a) the Buyer will, pursuant to the Receivables
Transfer Agreement, sell the Purchased Assets and assign its rights under this
Agreement to the PARCO, the APA Banks and the Funding Agent, as applicable, and
their respective assignees (and the Originator hereby consents to such
assignments) and (b) the Funding Agent, PARCO, and each of the APA Banks are
intended to be, and hereby are, third-party beneficiaries of this Agreement.
ARTICLE VII
INDEMNIFICATION; REPURCHASES
SECTION 7.1. INDEMNITIES BY THE ORIGINATOR. Without limiting any
other rights which the Buyer may have hereunder or under applicable law, the
Originator hereby agrees to indemnify the Buyer and its officers, directors,
agents and assigns (collectively, the "INDEMNIFIED PARTIES"), from and against
any and all damages, losses, claims, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of the foregoing
being collectively referred to as "INDEMNIFIED AMOUNTS") awarded against or
incurred by an Indemnified Party relating to or resulting from any of the
following (excluding, however, (i) Indemnified Amounts to the extent resulting
from gross negligence or willful misconduct on the part of such Indemnified
Party or (ii) recourse (except as otherwise provided for in this Agreement) for
uncollectible Purchased Receivables):
(i) reliance on any representation or warranty made or deemed
made by the Originator (or any of its officers) under or in connection with
this Agreement, any Purchase Notice or any other information or report
delivered by the Originator pursuant hereto, which shall have been false or
incorrect in any material respect when made or deemed made or delivered;
(ii) the failure by the Originator to comply with any term,
provision or covenant contained in this Agreement, or any agreement
executed in connection with this Agreement or with any applicable law, rule
or regulation with respect to any Purchased Receivable, the Related
Security or the other Purchased Assets, or the nonconformity of any
Purchased Receivable, the Related Security or the other Purchased Assets
with any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in the Buyer or to
transfer to the Buyer an interest in the Receivables which are, or are
purported to be, Purchased Receivables, together with all Collections,
Related Security and the other Purchased Assets, free and clear of any Lien
(except in favor of the Buyer or its assignees) whether existing at the
time of the Purchase of such Receivable or at any time thereafter;
(iv) the failure to file, or any delay in filing (other than
solely as a result of the action or inaction of an Indemnified Party),
financing statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws against the
Originator with respect to any Receivables or Related Security
which are, or are purported to be, Purchased Assets, whether at the time of
any Purchase or at any subsequent time;
(v) any failure of the Originator, as Servicer or otherwise, to
perform its duties or obligations in accordance with the provisions of
Article VI; and
(vi) any products liability claim or personal injury or property
damage suit or other similar or related claim or action of whatever sort
arising out of or in connection with the Financed Vehicle that is the
subject of any Contract.
Any amounts subject to the indemnification provisions of this Section 7.1 shall
be paid by the Originator to the applicable Indemnified Party within two (2)
Business Days following such Indemnified Party's demand therefor.
SECTION 7.2. REPURCHASE OF RECEIVABLES. If, with respect to any
Purchased Receivable, such Receivable did not constitute an Eligible Receivable
on the date such Receivable became a Purchased Receivable (or if the Buyer
notifies the Originator that any Receivable which became a Purchased Receivable
on the date of such Purchase is not an Eligible Receivable) or the Originator
shall have breached any representation or warranty made hereunder with respect
to such Receivable, then the Originator shall, on the next succeeding Purchase
Date, repurchase such Purchased Receivable for the repurchase price specified in
the following sentence. The Originator shall, on the Purchase Date coinciding
with such repurchase, pay to the Buyer an amount equal to the Outstanding
Balance of such Purchased Receivable plus accrued interest thereon as of such
Purchase Date. The proceeds of any such repurchase shall be paid to the Buyer
by depositing such proceeds into the Collection Account. Any such repurchase
shall be made without recourse or warranty, express or implied, by the Buyer.
Immediately following each repurchase, the Originator shall make available to
the Buyer an updated schedule of all Purchased Receivables, which schedule, as
amended from time to time, shall be incorporated into, and made a part of, this
Agreement as Exhibit D hereto.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Agreement nor consent to any departure by the Originator or
the Buyer, shall in any event be effective unless the same shall be in writing
and signed by (i) the Originator and the Buyer (with respect to an amendment) or
(ii) the Buyer (with respect to a waiver or consent by it) or the Originator
(with respect to a waiver or consent by it), as the case may be, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED that no such amendment or waiver or
consent shall be effective without the prior written consent of the Funding
Agent. This Agreement contains a final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter hereof and
shall constitute the entire agreement (together with the exhibits hereto) among
the parties hereto with respect to the subject matter hereof, superseding all
prior oral or written understandings.
SECTION 8.2. NOTICES, ETC. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telex communication and communication by facsimile copy) and mailed,
telexed, transmitted or delivered, as to each party hereto, at its address set
forth below or at such other address as shall be designated by such party in a
written notice to the other parties hereto. All such notices and communications
shall be effective, upon receipt, or in the case of delivery by mail, five days
after being deposited in the mails, or, in the case of notice by telex, when
telexed against receipt of answer back, or in the case of notice by facsimile
copy, when verbal communication of receipt is obtained, in each case addressed
as aforesaid, except that notices and communications pursuant to Article II
shall not be effective until received.
IF TO THE BUYER:
ARCADIA RECEIVABLES FINANCE CORP. V
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
IF TO THE ORIGINATOR:
ARCADIA FINANCIAL LTD.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 8.3. NO WAIVER; REMEDIES. No failure on the part of the
Buyer to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 8.4. BINDING EFFECT; ASSIGNABILITY. This Agreement shall be
binding upon and inure to the benefit of the Originator, the Buyer and their
respective successors and permitted assigns (which successors of the Originator
shall include a trustee in bankruptcy). The Originator may not assign any of
its rights and obligations hereunder or any interest herein without the prior
written consent of the Buyer and the Funding Agent. The Buyer may assign at any
time its rights and obligations hereunder and interests herein to any other
Person without the consent of the Originator. The Originator agrees that any
assignee of the Buyer (including the Funding Agent, PARCO and the APA Banks
under the Receivables Transfer Agreement) shall, to the extent of its interest
so assigned, have the right to enforce this Agreement and to exercise directly
all of the Buyer's rights and remedies under this Agreement, and the Originator
agrees to cooperate fully with any such assignee in the exercise of such rights
and remedies. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until such time, after the Purchase Termination Date,
as the Purchased Receivables shall have been collected or charged off as
uncollectible; PROVIDED, HOWEVER, that the rights and remedies with respect to
any breach of any representation and warranty made by the Originator pursuant to
Article IV and the indemnification and payment provisions of Article VII and
this Article VIII shall be continuing and shall survive any termination of this
Agreement.
SECTION 8.5. GOVERNING LAW; WAIVER OF JURY TRIAL. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York. The Originator hereby agrees to the jurisdiction of any state or
federal court located within the State of New York, and waives personal service
of any and all process upon it and consents that all such service of process be
made by registered mail directed to the originator at the address set forth on
the signature page hereof and service so made shall be deemed to be completed
five (5) days after the same shall have been deposited in the U.S. mails,
postage prepaid. The Originator
hereby waives any right to have a jury participate in resolving any dispute,
whether sounding in contract, tort, or otherwise between the originator and the
buyer arising out of, connected with, related to, or incidental to the
relationship between them in connection with this agreement. Instead, any
dispute resolved in court will be resolved in a bench trial without a jury.
With respect to the foregoing consent to jurisdiction, the Originator hereby
waives any objection based on FORUM NON CONVENIENS, and any objection to venue
of any action instituted hereunder and consents to the granting of such legal or
equitable relief as is deemed appropriate by the court. Nothing in this section
8.5 shall affect the right of the buyer to serve legal process in any other
manner permitted by law or affect the right of the Buyer to bring any action or
proceeding against the originator or its property in the courts of any other
jurisdiction.
SECTION 8.6. COSTS, EXPENSES AND TAXES. (a) In addition to the
rights of indemnification under Article VII hereof, the Originator agrees to pay
on demand all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic auditing and any
requested amendments, waivers or consents) of this Agreement and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Buyer (and the
Funding Agent) with respect thereto and with respect to advising the Buyer (and
the Funding Agent) as to its rights and remedies under this Agreement, and the
other agreements executed pursuant hereto and all costs and expenses, if any
(including reasonable counsel fees and expenses), in connection with the
enforcement of this Agreement and the other agreements and documents to be
delivered hereunder.
(b) In addition, the Originator shall pay any and all stamp, sales,
excise and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Agreement
or the other agreements and documents to be delivered hereunder, and agrees to
indemnify the Buyer and its assignees against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
SECTION 8.7. EXECUTION IN COUNTERPARTS; SEVERABILITY. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 8.8. TERM; EFFECT OF TERMINATION. (a) This Agreement shall
commence as of the first day on which all of the conditions precedent have been
satisfied and shall continue in full force and effect until the earlier of (i)
the date designated by the Buyer or the Originator as the Purchase Termination
Date at any time following ten (10) days' written notice to the other (with a
copy thereof to the Funding Agent), (ii) the occurrence of a Purchase
Termination Event, (iii) the occurrence of the Termination Date pursuant to the
Receivables Transfer Agreement, (iv) the occurrence of an Event of Bankruptcy
with respect to either the Buyer or the Originator or (v) the date on which
either the Buyer or the Originator becomes unable for any reason to purchase or
repurchase the interest of the Originator or the Buyer, as the case may be, in
any Receivable in accordance with the provisions of this Agreement or defaults
on its obligations hereunder, which default continues unremedied for more than
ten (10) days after written notice (any such date specified in clauses (i)
through (v) above being a "PURCHASE TERMINATION DATE"); PROVIDED, HOWEVER, that
the termination of this Agreement pursuant to this Section 8.8 shall not
discharge any Person from any obligations incurred prior to such termination,
including, without limitation, any obligations to make any payments with respect
to the interest of the Buyer in any Receivable sold prior to such termination.
(b) Following the termination of this Agreement pursuant to this
Section 8.8, the Originator shall not sell, and the Buyer shall not purchase,
any interests in any Receivables. No termination, rejection or failure to
assume the executory obligations of this Agreement in any Event of Bankruptcy
with respect to the Originator or the Buyer shall be deemed to impair or affect
the obligations pertaining to any executed sale or executed obligations,
including, without limitation, pre-termination breaches of representations and
warranties by the Originator. Without limiting the foregoing, prior to
termination, the failure of the Originator to deliver computer records of
Receivables or any reports regarding the Receivables shall not render such
transfer or obligation executory, nor shall the continued duties of the parties
pursuant to this Agreement render an executed sale executory.
IN WITNESS WHEREOF, the parties have caused this Receivables Purchase
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ARCADIA RECEIVABLES FINANCE CORP. V, as Buyer
By:
--------------------------------------------
Name:
Title:
ARCADIA FINANCIAL LTD.,
as Originator
By:
-------------------------------------------
Name:
Title:
Acknowledged as of the date
first above written:
THE CHASE MANHATTAN BANK,
as Funding Agent for the benefit
of PARCO and APA Banks
By:
--------------------------------
Name:
Title:
EXHIBIT A
FORM OF PURCHASE NOTICE
ARCADIA RECEIVABLES FINANCE CORP. V
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Treasurer
[Initial Purchase Date]
[Purchase Date]
Ladies and Gentlemen:
In accordance with Section 2.2 of the Receivables Purchase Agreement
dated as of October 16, 1998 (as amended, supplemented or otherwise modified and
in effect from time to time, the "Receivables Purchase Agreement") between
Arcadia Financial Ltd. (the "Originator") and Arcadia Receivables Finance Corp.
V (the "Buyer"), the Originator hereby offers to sell to the Buyer on the date
hereof pursuant to the terms and conditions of the Receivables Purchase
Agreement the Eligible Receivables listed on Schedule I hereto at an aggregate
Purchase Price of $_____.
Capitalized terms used herein shall have the respective meanings
assigned to them in, or incorporated by reference into, the Receivables Purchase
Agreement.
ARCADIA FINANCIAL LTD.,
as Originator
By:
------------------------------------------
Name:
Title:
SCHEDULE I
ELIGIBLE RECEIVABLES
OUTSTANDING BALANCE CONTRACT NUMBER
EXHIBIT B
FORM OF DEMAND NOTE
[Attached]
EXHIBIT C
LIST OF THE LOCK-BOX BANK AND THE LOCK-BOX
LOCATION OF LOCKBOX (AS DEFINED IN THE LOCK-BOX AGREEMENT
The Chicago Post Office
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
LOCATION OF AGENT ACCOUNT (AS DEFINED IN THE LOCK-BOX AGREEMENT)
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Account Number: 0000000
EXHIBIT D
SCHEDULE OF PURCHASED RECEIVABLES
[Intentionally Omitted]
EXHIBIT E
LIST OF OFFICES OF ORIGINATOR
WHERE RECORDS ARE KEPT
[Attached]
EXHIBIT F
LIST OF TRADENAMES AND ASSUMED NAMES
[Attached]
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RECEIVABLES PURCHASE AGREEMENT
between
ARCADIA RECEIVABLES FINANCE CORP. V
as the Buyer
and
ARCADIA FINANCIAL LTD.
as the Originator
Dated as of October 16, 1998
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TABLE OF CONTENTS
SECTION Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms. . . . . . . . . . . . . . . . . . . . .2
SECTION 1.2. Other Terms. . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 1.3. Computation of Time Periods. . . . . . . . . . . . . . . . . .5
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASERS
SECTION 2.1. General Terms. . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 2.2. Purchases from the Originator. . . . . . . . . . . . . . . . .7
SECTION 2.3. Collections; Lock-Box Account. . . . . . . . . . . . . . . . .7
SECTION 2.4. Transfer of Records to the Buyer . . . . . . . . . . . . . . .7
SECTION 2.5. Perfection of Liens; Further Assurances. . . . . . . . . . . .8
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.1. Conditions Precedent to Initial Purchase . . . . . . . . . . .9
SECTION 3.2. Conditions Precedent to All Purchases. . . . . . . . . . . . 10
SECTION 3.3. Effect of Payment of Purchase Price. . . . . . . . . . . . . 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Originator . . . . . . 11
SECTION 4.2. Reaffirmation of Representations and Warranties by
the Originator; Notice of Breach. . . . . . . . . . . . . . 15
ARTICLE V
GENERAL COVENANTS OF THE ORIGINATOR
SECTION 5.1. Affirmative Covenants of the Originator. . . . . . . . . . . 16
SECTION 5.2. Negative Covenants of the Originator . . . . . . . . . . . . 18
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.1. Designation of Servicer. . . . . . . . . . . . . . . . . . . 20
SECTION 6.2. Rights of the Buyer. . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.3. Further Action Evidencing Transfers. . . . . . . . . . . . . 21
SECTION 6.4. Transfers by Buyer . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII
INDEMNIFICATION; REPURCHASES
SECTION 7.1. Indemnities by the Originator. . . . . . . . . . . . . . . . 22
SECTION 7.2. Repurchase of Receivables. . . . . . . . . . . . . . . . . . 23
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.2. Notices, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.3. No Waiver; Remedies. . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.4. Binding Effect; Assignability. . . . . . . . . . . . . . . . 25
SECTION 8.5. Governing Law; Waiver of Jury Trial. . . . . . . . . . . . . 25
SECTION 8.6. Costs, Expenses and Taxes. . . . . . . . . . . . . . . . . . 26
SECTION 8.7. Execution in Counterparts; Severability. . . . . . . . . . . 26
SECTION 8.8. Term; Effect of Termination. . . . . . . . . . . . . . . . . 27
EXHIBITS
EXHIBIT A Form of Purchase Notice
EXHIBIT B Form of Demand Note
EXHIBIT C List of the Lock-Box Bank and the Lock-Box
EXHIBIT D Schedule of Purchased Receivables
EXHIBIT E List of Offices of Originator where Records Are Kept
EXHIBIT F List of Tradenames and Assumed Names
