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Title: |
Purchase and Sale Agreement |
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Date: |
2001 |
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Preview shows 18KB of 111KB total |
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$60 |
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#418824 |
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PURCHASE AND SALE AGREEMENT
Dated as of December 22, 2000
between
AFC AIM CORPORATION
and
AUTOMOTIVE FINANCE CORPORATION
{PAGE}
TABLE OF CONTENTS
PAGE
ARTICLE I
AGREEMENT TO PURCHASE AND CONTRIBUTE
1.1. Agreement to Purchase and Sell...........................................2
1.2. Timing of Purchases......................................................3
1.3. Consideration for Purchases..............................................3
1.4. Purchase and Sale Termination Date.......................................3
1.5. Intention of the Parties.................................................3
1.6. Certain Definitions......................................................4
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price............................................5
ARTICLE III
CONTRIBUTION OF RECEIVABLES;
PAYMENT OF PURCHASE PRICE
3.1. Contribution of Receivables..............................................7
3.2. Initial Purchase Price Payment...........................................7
3.3. Subsequent Purchase Price Payments.......................................7
3.4. Settlement as to Specific Receivables....................................8
3.5. Reconveyance of Receivables..............................................9
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to Initial Purchase.................................9
4.2. Certification as to Representations and Warranties......................11
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
5.1. Organization and Good Standing..........................................11
-i-
{PAGE}
TABLE OF CONTENTS
(continued)
PAGE
5.2. Due Qualification.......................................................11
5.3. Power and Authority; Due Authorization..................................12
5.4. Valid Sale or Contribution; Binding Obligations.........................12
5.5. No Violation............................................................12
5.6. Proceedings.............................................................12
5.7. Bulk Sales Act..........................................................13
5.8. Government Approvals....................................................13
5.9. Financial Condition.....................................................13
5.10. Margin Regulations.....................................................13
5.11. Quality of Title.......................................................13
5.12. Accuracy of Information................................................14
5.13. Offices................................................................14
5.14. Trade Names............................................................14
5.15. Taxes..................................................................15
5.16. Licenses and Labor Controversies.......................................15
5.17. Compliance with Applicable Laws........................................15
5.18. Reliance on Separate Legal Identity....................................15
5.19. Purchase Price.........................................................15
5.20. Eligibility of Receivables.............................................15
ARTICLE VI
COVENANTS OF THE ORIGINATOR
6.1. Affirmative Covenants...................................................16
6.2. Reporting Requirements..................................................18
6.3. Negative Covenants......................................................19
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
7.1. Rights of the Company...................................................20
7.2. Responsibilities of the Originator......................................20
7.3. Further Action Evidencing Purchases.....................................21
7.4. Application of Collections..............................................22
ARTICLE VIII
-ii-
{PAGE}
TABLE OF CONTENTS
(continued)
PAGE
PURCHASE AND SALE TERMINATION EVENTS
8.1. Purchase and Sale Termination Events....................................22
8.2. Remedies................................................................23
ARTICLE IX
INDEMNIFICATION
9.1. Indemnities by the Originator...........................................24
ARTICLE X
MISCELLANEOUS
10.1. Amendments, etc........................................................27
10.2. Notices, etc...........................................................27
10.3. No Waiver; Cumulative Remedies.........................................27
10.4. Binding Effect; Assignability..........................................27
10.5. Governing Law..........................................................28
10.6. Costs, Expenses and Taxes..............................................28
10.7. Submission to Jurisdiction.............................................29
10.8. Waiver of Jury Trial...................................................29
10.9. Captions and Cross References; Incorporation by Reference..............29
10.10. Execution in Counterparts.............................................29
10.11. Acknowledgment and Agreement..........................................30
SCHEDULES
SCHEDULE 5.13 Office Locations
SCHEDULE 5.14 Trade Names
SCHEDULE 5.15 Tax Matters
EXHIBITS
-iii-
{PAGE}
TABLE OF CONTENTS
(continued)
PAGE
EXHIBIT A Form of Company Note
-iv-
{PAGE}
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (as amended, supplemented or modified
from time to time, this "AGREEMENT"), dated as of December 22, 2000, is between
AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation, as originator and seller
(the "ORIGINATOR"), and AFC AIM CORPORATION, an Indiana corporation (the
"COMPANY"), as purchaser.
DEFINITIONS
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in EXHIBIT I to the Loan and Servicing
Agreement of even date herewith (as amended, supplemented or otherwise modified
from time to time, the "LOAN AND SERVICING AGREEMENT"), among the Company, the
Originator, as initial Servicer, and BANK OF MONTREAL, CHICAGO BRANCH, as lender
(together with its successors and assigns, the "LENDER").
BACKGROUND
1. The Company is a special purpose corporation, all of the capital
stock of which is wholly-owned by the Originator.
2. On the Closing Date, the Originator is transferring a portion of
the Receivables and Related Rights in existence on the Closing Date to the
Company as a capital contribution to the Company.
3. In order to finance its business, the Originator wishes to sell
certain Receivables and Related Rights from time to time to the Company, and the
Company is willing, on the terms and subject to the conditions set forth herein,
to purchase such Receivables and Related Rights from the Originator.
4. The Company intends to finance its purchase of the Receivables
and Related Rights through secured loans to be made to the Company by the Lender
pursuant to the Loan and Servicing Agreement.
{PAGE}
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND CONTRIBUTE
1.1. AGREEMENT TO PURCHASE AND SELL. On the terms and subject to the
conditions set forth in this Agreement (including ARTICLE IV), and in
consideration of the Purchase Price, the Originator agrees to sell to the
Company, and does hereby sell to the Company, and the Company agrees to purchase
from the Originator, and does hereby purchase from the Originator, without
recourse and without regard to collectibility, all of the Originator's right,
title and interest in and to:
(a) each Receivable of the Originator that existed and was owing
to the Originator as of the opening of the Originator's business on December 22,
2000 (the "CLOSING DATE") (other than the portion of the Receivables and Related
Rights contributed by the Originator to the Company pursuant to SECTION 3.1 (the
"CONTRIBUTED PORTION"));
(b) each Receivable created or originated by the Originator from
the opening of the Originator's business on the Closing Date to and including
the Purchase and Sale Termination Date;
(c) all of the Originator's right, title and interest under the
Isuzu Loan Documents;
(d) all of the Originator's right, title and interest in all
payments of principal, interest, administrative fees or other amounts due in
respect of any Advance or other disbursement under the Promissory Note and
Security Agreement.
(e) all rights to, but not the obligations under, all Related
Security (other than with respect to the Contributed Portion);
(f) all monies due or to become due with respect to any of the
foregoing;
(g) all books and records related to any of the foregoing; and
(h) all proceeds thereof (as defined in the UCC) including,
without limitation, all funds which either are received by the Originator, the
Company or the Servicer from or on behalf of the Obligor in payment of any
amounts owed (including, without limitation, finance charges, interest and all
other charges) in respect of any Receivable (other than the Contributed
Portion), or that are (or are to be) applied to amounts owed in respect of any
such Receivable (including, without limitation, insurance payments and net
proceeds of the sale or other disposition of vehicles or other collateral or
property of the Obligor or any other Person directly or indirectly liable for
the payment of any such Receivable that are (or are to be) applied thereto).
-2-
{PAGE}
All purchases and contributions hereunder shall be made without recourse, but
shall be made pursuant to and in reliance upon the representations, warranties
and covenants of the Originator, in its capacity as Originator and contributor,
set forth in each Transaction Document. The Company's foregoing commitment to
purchase such Receivables and the proceeds and rights described in SUBSECTIONS
(c) through (h) of this SECTION 1.1 (collectively, including such item relating
to Contributed Portion, the "RELATED RIGHTS") is herein called the "PURCHASE
FACILITY."
1.2. TIMING OF PURCHASES.
(a) CLOSING DATE PURCHASES. The Originator's entire right, title
and interest in (i) each Receivable that existed and was owing to the Originator
as of the opening of the Originator's business on the Closing Date, (other than
Contributed Portion) and (ii) all Related Rights with respect thereto shall be
sold to the Company on the Closing Date.
(b) REGULAR PURCHASES. After the Closing Date, each Receivable
created or originated by the Originator and all Related Rights shall be
purchased and owned by the Company (without any further action) upon the
creation or origination of such Receivable.
1.3. CONSIDERATION FOR PURCHASES. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to make all Purchase
Price payments to the Originator.
1.4. PURCHASE AND SALE TERMINATION DATE. The "PURCHASE AND SALE
TERMINATION DATE" shall be the earlier to occur of (a) the date of the
termination of this Agreement pursuant to SECTION 8.2 and (b) the Business Day
immediately following the day on which the Originator shall have given notice to
the Company that the Originator desires to terminate this Agreement.
1.5. INTENTION OF THE PARTIES. It is the express intent of the parties
hereto that the transfers of the Receivables (other than Contributed Portion)
and Related Rights (other than those relating to the Contributed Portion) by the
Originator to the Company, as contemplated by this Agreement be, and be treated
as, sales and not as secured loans secured by the Receivables and Related
Rights. If, however, notwithstanding the intent of the parties, such
transactions are deemed to be loans, the Originator hereby grants to the Company
a first priority security interest in all of the Originator's right, title and
interest in and to each of the items described in clauses (a) through (h) of
SECTION 1.1 above to secure all of the Originator's obligations hereunder.
1.6. CERTAIN DEFINITIONS. As used in this Agreement, the terms
"Material Adverse Effect" and "Solvent" are defined as follows:
"MATERIAL ADVERSE EFFECT" means, with respect to any event or
circumstance, a material adverse effect on:
(i) the business, operations, property or financial
condition of the Originator;
(ii) the ability of the Originator or the Servicer (if it is
the Originator) to perform its
-3-
{PAGE}
obligations under the Loan and Servicing Agreement or any other Transaction
Document to which it is a party or the performance of any such obligations;
(iii) the validity or enforceability of the Loan and
Servicing Agreement or any other Transaction Document;
(iv) with respect to the Purchase and Sale Agreement, the
status, existence, perfection, priority or enforceability of Company's interest
in the Receivables or Related Rights; or
(v) the collectibility of the Receivables.
"SOLVENT" means, with respect to any Person at any time, a
condition under which:
(i) the fair value and present fair saleable value of such
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