Exhibit 4.5
MASTER RECEIVABLES PURCHASE AGREEMENT
between
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION
Seller
and
HOUSEHOLD AUTO RECEIVABLES CORPORATION
Purchaser
dated as of
March 1, 1998
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ............................................... 1
SECTION 1.1 General.................................................... 1
SECTION 1.2 Specific Terms............................................. 1
SECTION 1.3 Other Definitional Provisions.............................. 2
SECTION 1.4 Certain References......................................... 2
SECTION 1.5 No Recourse................................................ 2
ARTICLE II CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY ................................................. 3
SECTION 2.1 Purchase................................................... 3
ARTICLE III REPRESENTATIONS AND WARRANTIES............................. 5
SECTION 3.1 Representations and Warranties of Seller................... 5
SECTION 3.2 Representations and Warranties of HARC..................... 6
ARTICLE IV COVENANTS OF SELLER........................................ 8
SECTION 4.1 Seller's Covenants......................................... 8
ARTICLE V REPURCHASES ............................................... 9
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.......... 9
SECTION 5.2 Reassignment of Repurchased Receivables.................... 9
SECTION 5.3 Waivers.................................................... 10
ARTICLE VI MISCELLANEOUS ............................................. 10
SECTION 6.1 Liability of Seller........................................ 10
SECTION 6.2 Amendment.................................................. 10
SECTION 6.3 GOVERNING LAW.............................................. 10
SECTION 6.4 Notices.................................................... 10
SECTION 6.5 Severability of Provisions................................. 11
SECTION 6.6 Assignment................................................. 11
SECTION 6.7 Acknowledgment and Agreement of each Seller................ 11
SECTION 6.8 Further Assurances......................................... 11
SECTION 6.9 No Waiver; Cumulative Remedies............................. 12
SECTION 6.10 Counterparts............................................... 12
SECTION 6.11 Binding Effect; Third-Party Beneficiaries.................. 12
SECTION 6.12 Merger and Integration..................................... 12
SECTION 6.13 Heading.................................................... 12
SECTION 6.14 Schedules and Exhibits..................................... 12
SECTION 6.15 Survival of Representations and Warranties................. 12
Page
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SECTION 6.16 Nonpetition Covenant....................................... 12
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EXHIBITS
EXHIBIT A Form of Purchase Agreement Supplement
SCHEDULE A Schedule of Receivables
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MASTER RECEIVABLES PURCHASE AGREEMENT
THIS MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of March 1, 1998,
executed between Household Auto Receivables Corporation, a Nevada corporation,
as purchaser ("HARC") and Household Automotive Finance Corporation, a Delaware
corporation, as seller ("Seller").
W I T N E S S E T H :
WHEREAS, HARC has agreed to purchase from time to time from Seller, and
Seller, pursuant to this Agreement, has agreed to transfer from time to time to
HARC the Receivables and the Other Conveyed Property.
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, HARC and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
General. Capitalized terms used herein without definition shall have the
respective meanings assigned to such terms in the Master Sale and Servicing
Agreement dated as of March 1, 1998, by and among Household Automobile Revolving
Trust I, as Issuer, HARC, as Seller, Household Finance Corporation, as Master
Servicer, and Norwest Bank Minnesota, National Association, as Trustee and Trust
Collateral Agent, if any.
Specific Terms. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
"Agreement" means this Master Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Closing Date" means March 31, 1998.
"Conveyance" shall have the meaning specified in Section 2.1.
"Conveyance Papers" shall have the meaning specified in Section 3.1.
"Cutoff Date" shall have the meaning assigned to such term in the
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applicable Purchase Agreement Supplement.
"Other Conveyed Property" means all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture (including all property and interests
granted to the Trust Collateral Agent or the Trustee, as the case may be),
including all proceeds thereof, other than the Receivables.
"Purchase Date" means, with respect to Receivables, any date, on which
Receivables are to be purchased by HARC pursuant to this Agreement and a
Purchase Agreement Supplement is executed and delivered by the Seller and
HARC.
"Receivables" means the Receivables listed on the Schedules of
Receivables attached to each Receivables Purchase Agreement Supplement as
Schedule A.
"Receivables Purchase Agreement Supplement" means the agreement
between HARC and the Seller, substantially in the form of Exhibit A hereto.
"Repurchase Event" means a determination pursuant to Section 3.2 of
the Master Sale and Servicing Agreement that HARC is required to repurchase
a Receivable.
"Schedule of Receivables" means the schedule of Receivables sold and
transferred pursuant to this Agreement and the related Receivables Purchase
Agreement Supplement which is attached as Schedule A to the related
Receivables Purchase Agreement Supplement.
SECTION I.3 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate, other documents, or Conveyance Paper made or
delivered pursuant hereto unless otherwise defined herein.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement or any Conveyance Paper shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, Subsection, Schedule and Exhibit references contained in this Agreement
are references to Sections, Subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge balance of
Receivables, and of any collections thereof, shall be made in accordance with
the Master Sale and Servicing Agreement and all applicable Series Supplements.
Certain References. All references to the Principal Balance of a Receivable
as of any date of determination
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shall refer to the close of business on such day, or as of the first day of a
Collection Period shall refer to the opening of business on such day. All
references to the last day of a Collection Period shall refer to the close of
business on such day.
No Recourse. Without limiting the obligations of Seller 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 Seller, or of any
predecessor or successor of Seller.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
-------------------------------
SECTION II.1 Purchase.
(a) By execution of this Agreement and subject to the terms and conditions
of this Agreement and simultaneously with the execution and delivery of the
related Receivables Purchase Agreement Supplement, the Seller shall sell,
transfer, assign, and otherwise convey to HARC (collectively, the "Conveyance")
without recourse (but without limitation of its obligations in this Agreement),
and HARC shall purchase, all right, title and interest of Seller in and to:
(i) each and every Receivable listed on Schedule A to the related
Receivables Purchase Agreement Supplement and all monies paid or payable
thereon or in respect thereof on or after the related Cutoff Date
(including amounts due on or before the related Cutoff Date but received by
the Seller on or after such date);
(ii) the security interests in the related Financed Vehicles granted
by Obligors pursuant to such Receivables and any other interest of the
Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers pursuant to Dealer
Agreements, Dealer Assignments or Unaffiliated Originator Receivables
Purchase Agreements related to such Receivables;
(iv) any proceeds and the right to receive proceeds with respect to
such Receivables repurchased by either (i) a Dealer, pursuant to a Dealer
Agreement, or (ii) an Unaffiliated Originator, pursuant to an Unaffiliated
Originator Receivables Purchase Agreement as a result of a breach of
representation or warranty in the related Dealer Agreement or Unaffiliated
Originator Receivables Purchase Agreement, as applicable;
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(v) all rights of Seller under any Service Contracts on the related
Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with respect to
the related Receivables from claims on any physical damage, credit life or
disability insurance policies, if any, covering Financed Vehicles or
Obligors, including rebates of insurance premiums relating to the
Receivables and any proceeds from the liquidation of such Receivables;
(vii) all items contained in the Receivables Files with respect to
such Receivables and any and all other documents that Seller or Master
Servicer keeps on file in accordance with its customary procedures relating
to the related Receivables, or the related Financed Vehicles or Obligor;
(viii) property (including the right to receive future Net Liquidation
Proceeds) that secures each related Receivable and that has been acquired
by or on behalf of HARC pursuant to liquidation of such Receivable;
(ix) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any
time constitute all or part of or are included in the proceeds of any of
the foregoing.
(b) Simultaneously with the conveyance of the Receivables and the Other
Conveyed Property to HARC by Seller, HARC has paid or caused to be paid to or
upon the order of Seller an amount equal to 100% of the Principal Balance of the
Receivables on the books and records of Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into account
any uncertainty as to future performance matching historical performance,
servicing fees, delinquencies, pay down rates, yield and such other factors as
may be mutually agreed upon between Seller and HARC, by wire transfer of
immediately available funds.
(c) In connection with such Conveyance, Seller further agrees that it will,
at its own expense, on or prior to the Purchase Date (i) indicate in its
computer files or microfiche lists that the Receivables have been conveyed to
HARC in accordance with this Agreement and have been conveyed by HARC to the
Trustee or the Trust Collateral Agent, as the case may be, pursuant to the
Master Sale and Servicing Agreement for the benefit of the related Series
Secured Parties by including in such computer files and microfiche lists the
code identifying each such Receivable and (ii) deliver to HARC (or to the
Trustee or the Trust Collateral Agent, as the case may be, if
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HARC so directs) a computer file or microfiche list containing a true and
complete list of all such Receivables specifying for each such Receivable, as of
the Cut-Off Date (A) its account number and (B) the outstanding balance of such
Receivable. Such computer files or microfiche lists shall be delivered to HARC
(or to the Trustee or to the Trust Collateral Agent, if any, if so directed by
HARC) and marked as proprietary and confidential. Seller further agrees not to
alter the code referenced in clause (i) of this paragraph with respect to any
Receivable during the term of this Agreement.
(d) The parties hereto intend that the conveyance of the Seller's right,
title and interest in and to the Receivables and Other Conveyed Property shall
constitute a sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from Seller to HARC and that the Receivables
and Other Conveyed Property shall not be part of Seller's estate in the event of
the insolvency of Seller or a conservatorship, receivership or similar event
with respect to Seller. It is the intention of the parties hereto that the
arrangements with respect to the Receivables and Other Conveyed Property shall
constitute a purchase and sale of such Receivables and not a loan. In the event,
however, that a court of competent jurisdiction were to hold that the
transactions evidenced hereby constitute a loan and not a purchase and sale, it
is the intention of the parties hereto that this Agreement shall constitute a
security agreement under applicable law, and that Seller shall be deemed to have
granted to HARC a first priority perfected security interest in all of such
Seller's right, title and interest in and to the Receivables and Other Conveyed
Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
Representations and Warranties of Seller. Seller makes the following
representations and warranties as of the date hereof on which HARC relies in
purchasing the Receivables and the Other Conveyed Property and in transferring
the Receivables and the Other Conveyed Property to the Issuer under the Master
Sale and Servicing Agreement. Such representations are made as of the execution
and delivery of this Agreement and as to Receivables and Other Conveyed Property
conveyed thereunder, as of the execution and delivery of each Receivables
Purchase Agreement Supplement, but shall survive the sale, transfer and
assignment of the Receivables and the Other Conveyed Property hereunder, and the
sale, transfer and assignment thereof by HARC to the Issuer under the Master
Sale and Servicing Agreement. Seller and HARC agree that HARC will assign to
Issuer all HARC's rights under this Agreement and each Receivables Purchase
Agreement Supplement and that the Trustee will thereafter be entitled to enforce
this Agreement and each Receivables Purchase Agreement Supplement against Seller
in the Trustee's own name on behalf of the Securityholders.
(a) Eligibility Criteria. Each of the Receivables which is to
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be pledged as collateral for a Series of Notes satisfies the applicable
Eligibility Criteria set forth in, or to be set forth in, Schedule 1 to the
Series Supplement establishing such Series.
(b) Organization and Good Standing. The Seller is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware and has, in all material respects, full power and authority to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(c) Due Obligation. The Seller is duly qualified to do business and is in
good standing as a foreign corporation (or is exempt from such requirements) and
has obtained all necessary licenses and approvals, in each jurisdiction in which
failure to so qualify or to obtain such licenses and approvals would (i) render
any Receivable unenforceable by the Seller, HARC or the Trust and (ii) have a
material adverse effect on the related Series Secured Parties.
(d) Due Authorization. The execution, delivery and performance of this
Agreement and any other document or instrument delivered pursuant hereto (such
other documents and instruments, including, but not limited to, the Receivables
Purchase Agreement Supplement collectively, the "Conveyance Papers") and the
consummation of the transactions provided for in this Agreement or any other
Conveyance Papers have been duly authorized by all necessary corporate action on
the part of the Seller.
(e) No Conflict. The execution and delivery of this Agreement and the
Conveyance Papers, the performance of the transactions contemplated by this
Agreement and the Conveyance Papers, and the fulfillment of the terms of this
Agreement and the Conveyance Papers applicable to the Seller will not conflict
with, violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or by which it or any
of its properties are bound.
(f) No Violation. The execution, delivery and performance of this Agreement
and the Conveyance Papers and the fulfillment of the terms contemplated herein
and therein applicable to the Seller will not conflict with or violate any
requirements of law applicable to the Seller.
(g) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Seller, threatened against the Seller, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking
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any determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Agreement or the Conveyance Papers, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or the Conveyance Papers or (v) seeking to
affect adversely the income tax attributes of the Trust under United States
Federal, Nevada or California income tax systems.
(h) All Consents. All authorizations, consents, orders, approvals,
registrations or declarations with, or of, any Governmental Authority required
to be obtained, effected or given by the Seller in connection with the execution
and delivery by the Seller of this Agreement or the Conveyance Papers and the
performance of the transactions contemplated by this Agreement or the Conveyance
Papers by the Seller have been duly obtained, effected or given and are in full
force and effect.
Representations and Warranties of HARC. HARC makes the following
representations and warranties, on which Seller relies in selling, assigning,
transferring and conveying the Receivables and the Other Conveyed Property to
HARC hereunder. Such representations are made as of the execution and delivery
of this Agreement and as to Receivables and Other Conveyed Property conveyed
thereunder, as of the execution and delivery of each Receivables Purchase
Agreement Supplement, but shall survive the sale, transfer and assignment of the
Receivables and the Other Conveyed Property hereunder and the sale, transfer and
assignment thereof by HARC to the Issuer under the Master Sale and Servicing
Agreement.
(a) Organization and Good Standing. HARC is a corporation duly organized
and validly existing under the laws of the State of Nevada and has, in all
material respects, full power and authority to own its properties and conduct
its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement and the Conveyance Papers.
(b) Due Authorization. The execution and delivery of this Agreement and the
Conveyance Papers and the consummation of the transactions provided for in this
Agreement and the Conveyance Papers have been duly authorized by HARC by all
necessary corporate action on the part of HARC.
(c) No Conflict. The execution and delivery of this Agreement and the
Conveyance Papers, the performance of the transactions contemplated by this
Agreement and the Conveyance Papers, and the fulfillment of the terms hereof and
thereof, will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which HARC is a party or by which it or its
properties is bound.
(d) No Violation. The execution, delivery and performance
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of this Agreement and the Conveyance Papers by HARC and the fulfillment of the
terms contemplated herein and therein applicable to HARC will not conflict with
or violate any requirements of law applicable to HARC.
(e) No Proceeding. There are no proceedings or investigations pending or,
to the best knowledge of HARC, threatened against HARC, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of HARC, would
materially and adversely affect the performance by HARC of its obligations under
this Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected or given by HARC in connection with the execution and
delivery by HARC of this Agreement and the Conveyance Papers and the performance
of the transactions contemplated by this Agreement and the Conveyance Papers or
the fulfillment of the terms of this Agreement and the Conveyance Papers by HARC
have been duly obtained.
In the event of any breach of a representation and warranty made by HARC
hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes,
Certificates, pass-through certificates or other similar securities issued by
the Trust or similar vehicle formed by HARC, have been paid in full. Seller and
HARC agree that damages will not be an adequate remedy for such breach and that
this covenant may be specifically enforced by HARC, Issuer or by the Trustee on
behalf of the Noteholders and Owner Trustee on behalf of the Certificateholders.
Seller agrees that with respect to its obligations in connection with a
Repurchase Event it will exercise no rights of offset with respect to any claims
it may have against HARC.
ARTICLE IV
COVENANTS OF SELLER
-------------------
Seller's Covenants. Seller hereby covenants and agrees with HARC as
follows:
(a) Receivables Not To Be Evidenced by Promissory Notes. Seller will
take no action to cause any Receivable to be evidenced by any
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instrument (as defined in the UCC).
(b) Security Interests. Except for the conveyances hereunder or as
otherwise provide herein, Seller will not sell, pledge, assign or transfer
to any other Person, or take any other action inconsistent with HARC's
ownership of the Receivables or grant, create, incur, assume or suffer to
exist any Lien on any Receivable, whether now existing or hereafter
created, or any interest therein, and Seller shall not claim any ownership
interest in the Receivables and shall defend the right, title and interest
of HARC in and to the Receivables, whether now existing or hereafter
created, against all claims of third parties claiming through or under
Seller.
(c) Security's Interest. Except for the conveyances hereunder and in
connection with any transaction permitted pursuant to Section 6.6, Seller
hereby agrees not to transfer, assign, exchange or otherwise convey or
pledge, hypothecate or otherwise grant a security interest in the
Receivables and any such attempted transfer, assignment, exchange,
conveyance, pledge, hypothecation or grant shall be void.
(d) Delivery of Collections or Recoveries. In the event that Seller
receives collections or recoveries with respect to the Receivables, Seller
agrees to pay to HARC (or to the Master Servicer if HARC so directs) all
such collections and recoveries to the extent such amounts are payable to
HARC as soon as practicable after receipt thereof.
(e) Notice of Liens. The Seller shall notify HARC promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder.
(f) Documentation of Transfer. The Seller shall undertake to file the
documents which would be necessary to perfect and maintain the transfer of
the security interest in and to the Receivables and Other Conveyed Assets.
(g) Approval of Office Records. Seller shall cause this Agreement to
be duly approved by Seller's Board of Directors, and Seller shall maintain
the Agreement as a part of the official records of Seller for the term of
the Agreement.
ARTICLE V
REPURCHASES
-----------
Repurchase of Receivables Upon Breach of Warranty. Upon the occurrence of a
Repurchase Event, Seller shall, unless the breach which is the subject of such
Repurchase Event shall have been cured in all material respects, repurchase the
Receivable relating thereto from the Issuer by the last day of the first full
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calendar month following the discovery of such breach by the Seller or receipt
by the Seller of notice of such breach from any of the Master Servicer, HARC, a
Trust Officer of the Trustee or the Trust Collateral Agent, if any, or the Owner
Trustee and, simultaneously with the repurchase of the Receivable, Seller shall
deposit the Repurchase Amount in full, without deduction or offset, in the
Master Collection Account, pursuant to Section 3.2 of the Master Sale and
Servicing Agreement. It is understood and agreed that, except as set forth in
Section 6.1 hereof, the obligation of Seller to repurchase any Receivable, as to
which a breach occurred and is continuing, shall, if such obligation is
fulfilled, constitute the sole remedy against Seller for such breach available
to HARC, the Issuer, the Series Secured Parties, the Noteholders, the
Certificateholders, the Trust Collateral Agent, if any, on behalf of the
Noteholders or the Owner Trustee on behalf of Certificateholders. The provisions
of this Section 5.1 are intended to grant the Trustee or the Issuer and the
Trust Collateral Agent, if any, a direct right against Seller to demand
performance hereunder, and in connection therewith, Seller waives any
requirement of prior demand against HARC with respect to such repurchase
obligation. Any such repurchase shall take place in the manner specified in
Section 3.2 of the Master Sale and Servicing Agreement. Notwithstanding any
other provision of this Agreement or the Master Sale and Servicing Agreement to
the contrary, the obligation of Seller under this Section shall not terminate
upon a termination of Household Finance Corporation as Master Servicer under the
Master Sale and Servicing Agreement and shall be performed in accordance with
the terms hereof notwithstanding the failure of the Master Servicer or HARC to
perform any of their respective obligations with respect to such Receivable
under the Master Sale and Servicing Agreement.
Reassignment of Repurchased Receivables. Upon deposit in the Master
Collection Account of the Repurchase Amount of any Receivable repurchased by
Seller under Section 5.1 hereof, HARC and the Issuer shall take such steps as
may be reasonably requested by Seller in order to assign to Seller all of HARC's
and the Issuer's right, title and interest in and to such Receivable and all
security and documents and all Other Conveyed Property conveyed to HARC and the
Issuer 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 HARC or the Issuer. Such assignment shall be a sale
and assignment outright, and not for security. If, following the reassignment of
a Repurchased Receivable, in any enforcement suit or legal proceeding, it is
held that Seller may not enforce any such Receivable on the ground that it shall
not be a real party in interest or a holder entitled to enforce the Receivable,
HARC and the Issuer shall, at the expense of Seller, take such steps as Seller
deems reasonably necessary to enforce the Receivable, including bringing suit in
HARC's or in the Issuer's name.
Waivers. No failure or delay on the part of HARC, or the Issuer as assignee
of HARC, in exercising any power, right or remedy under this Agreement shall
operate as a waiver
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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.
ARTICLE VI
MISCELLANEOUS
-------------
Liability of Seller. Seller shall be liable in accordance herewith only to
the extent of the obligations in this Agreement specifically undertaken by
Seller and the representations and warranties of Seller.
Amendment. This Agreement and any Conveyance Papers and the rights and
obligations of the parties hereunder may not be changed orally, but only by an
instrument in writing signed by HARC and the Seller in accordance with this
Section 6.2. This Agreement and any Conveyance Papers may be amended from time
to time by HARC and the Seller, provided that HARC provides to the Seller (a) an
Officer's Certificate to the effect that HARC reasonably believes that such
amendment will not have an adverse effect upon the interest of the Noteholders,
Certificateholders or any Series Secured Party and (b) an Opinion of Counsel
addressed and delivered to the Seller, dated the date of such amendment, to the
effect that the conditions precedent to any such amendment have been satisfied.
GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE PAPERS SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Notices. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, return receipt requested, to (a) in the case
of the Seller, 00000 Xxxxxxxx Xxxx, Xxx Xxxxx, XX. 00000, Attention: Chief
Operating Officer, with a copy to 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 Attention: Director--Asset Securitization, (b) in the case of
HARC, 0000 Xxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000 Attention: Compliance
Officer, with a copy to 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000,
Attention: Treasurer; or, as to each party, at such other address as shall be
designated by
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such party in a written notice to each other party.
Severability of Provisions. If any one or more of the covenants,
agreements, provisions, or terms of this Agreement or Conveyance Paper shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, and terms of this Agreement or any Conveyance Paper and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of any Conveyance Paper.
Assignment. Notwithstanding anything to the contrary contained herein,
other than HARC's assignment of its rights, title, and interests in, to, and
under this Agreement to the Trustee or the Trust Collateral Agent, if any, for
the benefit of the related Series Secured Parties, as contemplated by the Master
Sale and Servicing Agreement and Section 6.6 hereof, the Receivables, the Other
Conveyed Property, this Agreement and all other Conveyance Papers may not be
assigned by the parties hereto, provided, however, that Seller shall have the
right to assign its rights, title and interests, in to and under this Agreement
to (i) any successor by merger or consolidation, or any Person which acquires by
conveyance, transfer or sale the properties and assets of Seller (ii) any
Affiliate owned directly or indirectly by Household International, Inc. or (iii)
to any entity provided that the Rating Agency has advised HARC and Seller that
the Rating Agency Condition has been satisfied. The right granted in the
foregoing proviso is subject to the further condition that any such successor or
other Person shall expressly assume by written agreement, in form and substance
satisfactory to HARC, the obligations of Seller hereunder and under the
Conveyance Papers.
Acknowledgment and Agreement of each Seller. By execution below, the Seller
expressly acknowledges and agrees that all of HARC's right, title, and interest
in, to, and under this Agreement, including, without limitation, all of HARC's
right title, and interest in and to the Receivables purchased pursuant to this
Agreement, shall be assigned by HARC to the Trustee or the Trust Collateral
Agent, if any, for the benefit of the related Series Secured Parties, and Seller
consents to such assignment. Additionally, Seller agrees for the benefit of the
Trustee and the Trust Collateral Agent, if any, that any amounts payable by
Seller to HARC hereunder which are to be paid by HARC to the Trustee or the
Trust Collateral Agent, if any, for the benefit of the related Series Secured
Parties shall be paid by Seller, on behalf of HARC, directly to the Trustee or
to the Trust Collateral Agent, as the case may be. Any payment required to be
made on or before a specified date in same-day funds may be made on the prior
business day in next-day funds.
Further Assurances. HARC and Seller agree to do and perform, from time to
time, any and all acts and to
16
execute any and further instruments required or reasonably requested by the
other party more fully to effect the purposes of this Agreement and the
Conveyance Papers, including, without limitation, the execution of any financing
statements or continuation statements or equivalent documents relating to the
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of HARC or Seller, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Counterparts. This Agreement and all Conveyance Papers may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Binding Effect; Third-Party Beneficiaries. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Each of the
Trustee, the Trust Collateral Agent, if any, and the Owner Trustee shall be
considered a third-party beneficiary of this Agreement.
Merger and Integration. Except as specifically stated otherwise herein,
this Agreement and the Conveyance Papers 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 and the Conveyance Papers.
This Agreement and the Conveyance Papers may not be modified, amended, waived or
supplemented except as provided herein.
Heading. The headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
Schedules and Exhibits. The schedules and exhibits attached hereto and
referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
Survival of Representations and Warranties. All representations, warranties
and agreements contained in this Agreement or contained in any Conveyance Paper,
shall remain operative and in full force and effect
17
and shall survive conveyance of the Receivables by HARC to the Trustee or the
Trust Collateral Agent, if any, pursuant to the Master Sale and Servicing
Agreement.
Nonpetition Covenant. Until the date which is one year and one day after
payment in full of all the Notes of all Series, neither HARC nor Seller shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against HARC, Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of HARC, Seller or the Issuer or any substantial part of
their respective properties, or ordering the winding up or liquidation of the
affairs of HARC, Seller or the Issuer. This provision shall survive the
termination of this Agreement.
[Signature Page Follows]
18
IN WITNESS WHEREOF, the parties have caused this Master Purchase Agreement
to be duly executed by their respective officers as of the day and year first
above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By
---------------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By
---------------------------------------
Name:
Title:
[Signature Page for Master Purchase Agreement]
19
EXHIBIT A
FORM OF RECEIVABLES PURCHASE AGREEMENT SUPPLEMENT
Transfer No. of Receivables, dated as of ___________________,
pursuant to a Master Receivables Purchase Agreement (the "Purchase
Agreement") dated as of March 1, 1998, between Household Automotive Finance
Corporation, a Delaware corporation (the "Seller") and Household Auto
Receivables Corporation, a Nevada corporation ("HARC").
W I T N E S S E T H :
WHEREAS pursuant to the Purchase Agreement, the Seller wishes to convey
Receivables and Other Conveyed Property to HARC; and
WHEREAS, HARC is willing to accept such conveyance subject to the terms and
conditions hereof.
NOW, THEREFORE, the Seller and HARC hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the meanings
ascribed to them in the Purchase Agreement unless otherwise defined herein.
"Cutoff Date" shall mean with respect to the Receivables conveyed hereby,
--------------------------.
"Purchase Date" shall mean with respect to the Receivables conveyed hereby,
------------------------.
"Purchase Price" shall mean 100% of the Principal Balance of the
Receivables on the books and records of the Seller, plus the present value of
anticipated excess spread on such Receivables, discounted to take into account
any uncertainty as to future performance, matching historical performance,
servicing fees, delinquencies, paydown rates, yield and such other factors as
may be mutually agreed upon by Seller and HARC.
2. Schedule of Receivables. Annexed as Schedule A hereto is a computer tape
which reflects the Receivables that constitute the Receivables to be conveyed
pursuant to this Agreement on the Purchase Date.
3. Conveyance of Receivables. In consideration of HARC's delivery to or
upon the order of the Seller of the Purchase Price, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to HARC, without recourse
A-1
(except as expressly provided in the Purchase Agreement), all right, title and
interest of the Seller in and to:
(i) each and every Receivable listed on Schedule A to the related
Receivables Purchase Agreement Supplement and all monies paid or payable
thereon or in respect thereof on or after the related Cutoff Date
(including amounts due on or before the related Cutoff Date but received by
the Seller on or after such date);
(ii) the security interests in the related Financed Vehicles granted
by Obligors pursuant to such Receivables and any other interest of the
Seller in such Financed Vehicles;
(iii) all rights of the Seller against Dealers pursuant to Dealer
Agreements, Dealer Assignments or Unaffiliated Originator Receivables
Purchase Agreements related to such Receivables;
(iv) any proceeds and the right to receive proceeds with respect to
such Receivables repurchased by either (i) a Dealer, pursuant to a Dealer
Agreement, or (ii) an Unaffiliated Originator, pursuant to an Unaffiliated
Originator Receivables Purchase Agreement as a result of a breach of
representation or warranty in the related Dealer Agreement or Unaffiliated
Originator Receivables Purchase Agreement, as applicable;
(v) all rights of Seller under any Service Contracts on the related
Financed Vehicles;
(vi) any proceeds and the right to receive proceeds with respect to
the related Receivables from claims on any physical damage, credit life or
disability insurance policies, if any, covering Financed Vehicles or
Obligors, including rebates of insurance premiums relating to the
Receivables and any proceeds from the liquidation of such Receivables;
(vii) all items contained in the Receivables Files with respect to
such Receivables and any and all other documents that Seller or Master
Servicer keeps on file in accordance with its customary procedures relating
to the related Receivables, or the related Financed Vehicles or Obligor;
(viii) property (including the right to receive future Net Liquidation
Proceeds) that secures each related Receivable and that has been acquired
by or on behalf of HARC pursuant to liquidation of such Receivable;
(ix) all present and future claims, demands, causes and chooses in
action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion,
voluntary or
A-2
involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute
all or part of or are included in the proceeds of any of the foregoing.
4. Representations and Warranties of the Seller. As of the Purchase Date,
the Seller hereby makes the representations and warranties to HARC that are set
forth in Section 3.1 of the Purchase Agreement with respect to the Conveyance
effected hereby to the same extent as if set forth in full herein.
5. Representations and Warranties of HARC. As of the Purchase Date, HARC
hereby makes the representations and warranties to the Seller that are set forth
in Section 3.2 of the Purchase Agreement with respect to the Conveyance effected
hereby to the same extent as if set forth in full herein.
In the event of any breach of a representation and warranty made by HARC
hereunder, Seller covenants and agrees that it will not take any action to
pursue any remedy that it may have hereunder, in law, in equity or otherwise,
until a year and a day have passed since the date on which all Notes,
Certificates, pass-through certificates or other similar securities issued by
the Trust or similar vehicle formed by HARC have been paid in full. Seller and
HARC agree that damages will not be an adequate remedy for such breach and that
this covenant may be specifically enforced by HARC, Issuer or by the Trustee on
behalf of the Noteholders and Owner Trustee on behalf of the Certificateholders.
6. Conditions Precedent. The obligation of HARC to acquire the Receivables
hereunder is subject to the satisfaction, on or prior to the Purchase Transfer
Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Seller in Section 4 of this Agreement and in Section
3.1 of the Master Receivables Purchase Agreement shall be true and correct
as of the date of this Agreement and as of the Purchase Date.
(b) Additional Information. The Seller shall have delivered to HARC
such information as was reasonably requested by HARC to satisfy itself as
to (i) the accuracy of the representations and warranties set forth in
Section 4 of this Agreement and in Section 3.1 of the Master Receivables
Purchase Agreement and (ii) the satisfaction of the conditions set forth in
this Section.
7. Ratification of Agreement. As supplemented by this Agreement, the Master
Receivables Purchase Agreement is in all respects ratified and confirmed and the
Master Receivables Purchase Agreement as so supplemented by this
A-3
Agreement shall be read, taken and construed as one and the same instrument.
8. Counterparts. This Agreement may be executed in two or more counterparts
(and by different parties in separate counterparts), each of which shall be an
original but all of which together shall constitute one and the same instrument.
9. Conveyance of the Receivables and the Other Conveyed Property to the
Issuer. Seller acknowledges that HARC intends, pursuant to the Master Sale and
Servicing Agreement, to convey the Receivables and the Other Conveyed Property,
together with its rights under this Agreement, to the Issuer on the Transfer
Date. Seller acknowledges and consents to such conveyance and pledge and waives
any further notice thereof and covenants and agrees that the representations and
warranties of Seller contained in this Agreement and the rights of HARC
hereunder are intended to benefit the related Series Support Provider, if any,
the Issuer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and
the Certificateholders. In furtherance of the foregoing, Seller covenants and
agrees to perform its duties and obligations hereunder, in accordance with the
terms hereof for the benefit of the related Series Secured Parties, the Issuer,
the Owner Trustee, the Trustee, the Trust Collateral Agent, if any, and the
Series Secured Parties and that, notwithstanding anything to the contrary in
this Agreement, Seller shall be directly liable to the Issuer, the Owner
Trustee, the Trustee, the Trust Collateral Agent and the Series Secured Parties
(notwithstanding any failure by the Master Servicer or HARC to perform their
respective duties and obligations hereunder or under Basic Documents) and that
the Trustee may enforce the duties and obligations of Seller under this
Agreement against Seller for the benefit of any Series Secured Parties, the
Owner Trustee and the Trust Collateral Agent.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Seller and HARC have caused this Purchase Agreement
to be duly executed and delivered by their respective duly authorized officers
as of day and the year first above written.
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION,
as Seller
By
---------------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
as Purchaser
By
---------------------------------------
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
(COMPUTER TAPE)
SCH-A-1
