MASTER CONTRACT PURCHASE AGREEMENT
This Master Contract Purchase Agreement (this "Agreement") effective as
of _____________________, 1997, is entered into by and between Tamarack Funding
Corporation a Texas corporation ("Seller"), and Tamarack Lenders Corporation, a
Texas corporation ("Buyer").
BACKGROUND STATEMENT
This Agreement, under which from time to xxxx Xxxxxx will purchase
for resale on behalf of Buyer, and Buyer will agree to buy, retail
installment contracts and other installment obligations issued for the
purchase of used motor vehicles and liens on such vehicles securing the
obligations, shall govern the purchase and transfer of the obligations for
the benefit of Buyer and the servicing and other incidents thereof, and each
shall be subject to the warranties, representations and agreements herein.
STATEMENT OF AGREEMENT
In consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller agree as follows:
1. DEFINITIONS. Unless the contract requires otherwise, the following
terms shall for all purposes of this Agreement have the meanings hereinafter
specified:
(a) "Certificate of Title" shall mean a certificate of title under
the Certificate of Title Act, as amended (Article 6687-1, Vernon's Texas
Civil Statutes), or a certificate of title under a statute of another
jurisdiction under the law of which indication of a security interest on the
certificate is required as a condition of perfection.
(b) "Dealer" shall mean the Seller-approved dealer who sold a
Financed Vehicle and who originated, sold and assigned the related Contract
to the Seller.
(c) "Financed Vehicle" shall mean an automobile or light truck,
together with all accessories thereto, securing an Obligor's obligations
under the related Contract.
(d) "Contract" shall mean a valid and enforceable motor vehicle
retail installment contract or other evidence of an installment obligation of
an Obligor which is secured by a lien on a Financed Vehicle.
(e) "Obligor" shall mean the purchaser or co-purchasers of the
Financed Vehicle or any other person who owes payments under the Contract.
(f) "Pooling and Servicing Agreement" shall mean the agreements
between Seller and various Dealers, pursuant to which Seller purchases
Contracts from such Dealers.
(g) "Purchased Contracts" shall mean all Contracts purchased by
Buyer from the Seller in accordance with the terms and conditions of this
Agreement, including those within a Purchased Contract Pool and shall include
all rights of Seller pursuant to the applicable Pooling and Servicing
Agreement.
(h) "Purchased Contract Pool" shall mean all contract pools which
Buyer determines to purchase from Seller in accordance with the terms and
conditions of this Agreement and shall include all rights of Seller pursuant
to the applicable Pooling and Servicing Agreement.
(i) "Contract Documents" shall mean all documents and proof of
delivery evidencing and relating to the Purchased Contracts as Buyer may
reasonably request.
(j) "Servicing Agreement" shall mean the Servicing Agreement duly
executed by Seller and Buyer and dated of even date herewith.
(k) "Credit Enhancements" shall mean any arrangements that are
intended generally to improve the collection rates on the Purchased Contracts
including, without limitation, any vehicle value insurance or warranty repair
service contracts that may be purchased.
2. PROCEDURE FOR PURCHASE. (a) At any time and from time to time
until the termination of this Agreement, the Buyer may request the Seller (i)
to solicit from Dealers Contracts and Contract pools, or (ii) to offer to
sell to Buyer Contracts and Contract pools, from the portfolio of Contracts
owned by Sellers and to assign to buyer all of Seller's rights under the
applicable Pooling and Servicing Agreements. Seller shall be obligated to
use reasonable efforts to solicit from Dealers Contracts and Contract pools
as soon as practicable following any such request by the Buyer. In addition,
in deciding whether to offer to sell Contracts to the Buyer or any other
purchaser who is affiliated or not affiliated with the Seller is also
purchasing Contracts, the Seller shall select such Contracts from the
Contracts that are or become available for purchase, such selection to be
based upon the respective periods of time the purchasing entities have been
in existence, the cost of the available Contracts, the amount of their
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unexpended funds and the need to diversify their holdings. Seller shall
purchase Contracts pursuant to a Pooling and Servicing Agreement reasonably
satisfactory to the Buyer, which agreement shall provide that purchases of
Contract thereunder shall be with full recourse to the Dealer.
(b) Payment of the purchase price by Buyer shall be made at the
time of the sale to Buyer from Seller or the purchase by Seller on Buyer's
behalf of each Purchased Contract. At all times during the term of this
Agreement, Buyer shall retain the right to audit any or all Purchased
Contracts and/or Purchased Contract Pools for adherence to the terms and
conditions of this Agreement. Seller shall cooperate in all material respects
with the audit of such Purchased Contracts and/or Purchased Contract Pools.
Buyer shall reimburse Seller for all third-party audit costs related hereto.
Buyer shall at all times have the right to sell to Seller, and receive a
repurchase price equal to the product of remaining unpaid installments on the
Contract, times the ratio of the Buyer's original Purchase Price to the
aggregate unpaid installments on the date of Buyer's original purchase, any
and all Purchased Contracts that are sold to Buyer that do not meet the terms
and conditions set forth in this Agreement or that go into default.
3. PURCHASE PRICE; COMPENSATION. (a) The Purchase Price (herein so
called) payable by the Buyer for each Purchased Contract and Purchased
Contract Pool shall never exceed that amount which a Dealer shall receive
from bank draft upon the delivery of all Contract Documents. With respect to
any Purchased Contract offered by Seller from Seller's portfolio of
Contracts, the Purchase Price for each Purchased Contract payable by Buyer to
Seller shall be determined to provide Buyer a rate of return on its
investment in the Purchased Contract from the remaining unpaid installments
equal to the Seller's original rate of return on its investment in the
Purchased Contract, as of its purchase by Seller from the originating Dealer,
assuming in both cases that the Purchased Contract was paid in full in
accordance with its scheduled installments. In addition, no Purchased
Contract from the Seller's portfolio may be in default at the time of
purchase by Buyer or have violated the purchasing criteria set forth by Buyer
from time to time (with all references to Buyer deemed to refer to the
Servicer) at the time of its purchase by Seller (or affiliate, as the case
may be).
(b) Buyer shall reimburse Seller for its out-of-pocket costs paid
to effect any Credit Enhancements with respect to the Purchased Contracts,
although Seller shall not, by virtue of this Agreement, be required to
provide or effect Credit Enhancements.
4. TERM. This Agreement shall commence as of the date first written
above and shall continue until terminated upon 30 days written notice from
either party to the other.
5. OTHER DOCUMENTS. Seller or Buyer shall execute and deliver any and
all other documents, opinions, certificates, and evidence of the Purchased
Contracts as may be reasonably requested by Buyer in connection with the
transactions contemplated by this Agreement.
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6. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to Buyer as follows:
(a) ORGANIZATION AND GOOD STANDING. Seller is a corporation
duly organized, validly existing and in good standing under the laws of
Texas, and has full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned
and such business is presently contemplated, and to execute, deliver and
perform its obligations under this Agreement.
(b) DUE QUALIFICATION. The Seller is duly qualified and has
registered as a foreign corporation in each state where such qualification is
required in order to perform its obligations pursuant to this Agreement and
has obtained all necessary licenses, approvals or consents as are required
under applicable law to perform its duties hereunder.
(c) DUE AUTHORIZATION. The execution, delivery and performance
of this Agreement has been duly authorized by the Seller by all necessary
corporate action on the part of the Seller.
(d) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of the Seller, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect which affect the enforcement of creditors' rights in
general, and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(e) NO VIOLATION. The execution and delivery of this Agreement
by the Seller, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Seller,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any requirement of law applicable to the
Seller or any indenture, contract, agreement, mortgage, deed of trust or
other installment to which the Seller is a party or by which it is bound.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER REGARDING
CONTRACTS. The Seller further represents and warrants to, and covenants with
Buyer as follows:
(a) Each Purchased Contract will conform with, and in acting with
respect to the Contract, Seller will have complied in all material respects
with, all applicable federal, state and local laws, regulations and official
rulings.
(b) Each Purchased Contract (i) shall have been originated in the
United States of America by a Dealer for the retail sale of a Financed
Vehicle in the ordinary course of such
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Dealer's business, shall have been fully and properly executed by the parties
thereto and shall have been validly assigned by such Dealer to Seller, or to
Buyer in accordance with its terms, (ii) shall have created or shall create a
valid, subsisting, and enforceable first priority security interest in the
Financed Vehicle in favor of the owner of the Purchased Contract, (iii) shall
contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization against the
collateral and of the benefits of the security, (iv) shall provide for, in
the event that such Purchased Contract is prepaid, a prepayment that fully
pays the principal balance, (v) shall meet at the time of its purchase from
the originating Dealer in all material respects all purchasing criteria set
forth by Buyer from time to time and (vi) shall have been validly assigned by
Seller to Buyer.
(c) Seller shall require each Dealer from which a Purchased
Contract is purchased (i) to represent and warrant that such Purchased
Contract and the sale of the related Financed Vehicle complied, at the time
the Contract was originated or made, in all material respects with all
requirements of applicable federal, state and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal
Truth-In-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Federal Reserve Board's Regulations B and Z, state
adaptations of the National Consumer Act and of the Uniform Consumer Credit
code, and other consumer laws and equal credit opportunity and disclosure
laws, and (ii) to agree that any Purchased Contract has been purchased from
the Dealer with recourse.
(d) Each Purchased Contract shall represent the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable
by the holder thereof in accordance with its terms subject to the effect of
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally.
(e) (i) The Certificate of Title for such Financed Vehicle shows
(or if a new or replacement Certificate of Title is applied for with respect
to such Financed Vehicle, the official receipt from the responsible state or
local governmental authority shall indicate that an application has been made
and that the Certificate of Title, when issued, will show within 120 days)
the Seller or the Buyer as the holder of a first priority security interest
in such Financed Vehicle, (ii) within 120 days after the Purchase Date for
the Contract relating to the Financed Vehicle, the Certificate of Title for
such Financed Vehicle will show the Buyer as the holder of a first priority
security interest in such Financed Vehicle, and (iii) the Buyer, upon
delivery of the transfer to it, will have a valid and enforceable security
interest in the Financed Vehicle to the same extent as the security interest
of the person or entity named as the original secured party under the related
Contract.
(f) At the time of its purchase for the Buyer, no provision of a
Purchased Contract shall have been waived, without the express written
consent of the Buyer.
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(g) At the time of its purchase by the Buyer, no right of
rescission, setoff, counterclaim, or defense shall have been asserted or
threatened with respect to any Contract.
(h) It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Purchased Contract or
Purchased Contract Pool to Buyer and that the beneficial interest in and
title to the Purchased Contracts and Purchased Contract Pools not be part of
Seller's estate in the event of the filing of a bankruptcy petition by or
against Seller under applicable bankruptcy law. Immediately prior to the
transfer and assignment to Buyer herein contemplated, Dealer or Seller had
good and marketable title to each Purchased Contract free and clear of all
liens, encumbrances, security interests, and rights of others and,
immediately upon the transfer thereof, Buyer shall have good and marketable
title to each Purchased Contract, free and clear of all liens, encumbrances,
security interests, and rights of others.
8. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents
and warrants to Seller as follows:
(a) ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Texas, and
has full corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such business
is presently contemplated, and to execute, deliver and perform its
obligations under this Agreement.
(b) DUE QUALIFICATION. The Buyer is duly qualified and has
registered as a foreign corporation in each state where such qualification is
required in order to perform its obligations pursuant to this Agreement and
has obtained all necessary licenses, approvals or consents as are required
under applicable law to perform its duties hereunder.
(c) DUE AUTHORIZATION. The execution, delivery and performance
of this Agreement has been duly authorized by the Buyer by all necessary
corporate action on the part of the Buyer.
(d) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Buyer, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect which affect the enforcement of creditors' rights in
general, and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(e) NO VIOLATION. The execution and delivery of this Agreement
by the Buyer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Buyer,
will not conflict with, violate, result in
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any breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, any
requirement of law applicable to the Buyer or any indenture, contract,
agreement, mortgage, deed of trust or other installment to which the Buyer is
a party or by which it is bound.
9. SERVICING AGREEMENT; COLLECTION OF PURCHASED RECEIVABLES.
Concurrently with the execution of this Agreement, Seller and Buyer shall
enter into the Servicing Agreement whereby Seller, as an independent
contractor, will collect, in accordance with the terms and conditions set
forth therein, for the account of Buyer, payments under all Purchased
Contract and Purchased Contract Pools.
10. NO ASSUMPTION. The Seller does not, and shall not be deemed to,
assume any obligations of the Buyer relating to the transactions contemplated
herein. Buyer does not, and shall not be deemed to assume any obligations of
Seller relating to the Purchased Contracts or the transactions giving rise to
the Purchased Contracts. To the extent that Seller has not completed
performance of any Contract pursuant to which a Purchased Contract was
generated, Seller hereby covenants and agrees to complete such Contract in
order that the Obligor will continue not to have any rights to setoff,
counterclaim or dispute. Accordingly, Seller hereby indemnifies and holds
harmless Buyer, its successors and assigns, and their respective officers,
directors, agents and attorneys against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against Buyer, its successors and
assigns, or their respective officers, directors, agents and attorneys due to
(i) any breach by Seller of its representations, warranties or covenants
provided for in this Agreement or in the Servicing Agreement, or (ii) any
action or inaction of Seller in any way relating to, or arising out of this
Agreement or any of the transactions contemplated herein or the creation or
collection or enforcement of any of the Purchased Contracts. Seller,
further, assume the risk of uncollectibility and indemnifies Buyer, its
successors and assigns, or their respective officers, directors, agents and
attorneys, against, the uncollectibility of all or any part of the Purchased
Contracts as against the Obligor thereof, except for uncollectibility
resulting from a breach by Seller of any warranty, representation, or
covenant contained herein, which indemnity is limited to Seller's obligation
to repurchase any such Purchased Contract for a purchase price equal to the
then outstanding balance thereon. The indemnities contained in this Section
shall survive any termination of this Agreement.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns. Seller may contract with others for the performance of any or
all of its obligations hereunder. Any such contract, however, shall not
relieve Seller from liability for its obligations hereunder.
12. MODIFICATIONS AND WAIVERS. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver of
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any right, power or privilege hereunder operate as a waiver of any other
right, power or privilege hereunder, nor shall any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege
hereunder. All rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies which the parties hereto may
otherwise have at law or in equity. No waiver shall be valid in the absence
of the written and signed consent of the party against which enforcement of
such is sought.
13. NOTICE. Except as otherwise specifically provided herein, any
notice hereunder shall be in writing (including telecopy communication) and,
if mailed, shall be deemed to be given when sent by registered or certified
mail, postage prepaid, or if telecopied when transmitted, or otherwise when
delivered in person to the addressee and a receipt given therefor, in all
such instances addressed to the respective parties as follows:
To Seller: Tamarack Funding Corporation
000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx. 00000
Attn: Xx. Xxxxx X. Xxxxxx, President
To Buyer: Tamarack Lenders Corporation
000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx. 00000
Attn: Xx. Xxxxx X. Xxxxxx, President
or at such other address as the addressee may, by written notice received by
the other party hereto, designate as the appropriate address for purposes of
notice hereunder.
14. AMENDMENT. This Agreement may be amended, supplemented or modified
only with the written consent of each of the parties hereto.
15. CHOICE OR LAW. THIS AGREEMENT AND THE VALIDITY AND ENFORCEMENT
HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS OF THE STATE OF TEXAS.
16. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, the legality, validity and enforceability
of the remaining provisions of this Agreement shall not be affected thereby,
and in lieu of each such illegal, invalid or unenforceable provision there
shall be added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
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17. ENTIRE AGREEMENT. This instrument embodies the entire agreement
between the patties relating to the subject matter hereof and supersedes all
prior agreements and understandings, if any, relating to the subject matter
hereof.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which for all purposes is to be deemed an original.
19. SURVIVAL. All covenants, agreements, undertakings, indemnities,
representations and warranties made herein shall survive both the execution
and the termination hereof and shall not be affected by any investigation
made by any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first hereinabove written.
SELLER:
TAMARACK FUNDING CORPORATION
By:
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Xxxxx X. Xxxxxx, President
BUYER:
TAMARACK LENDERS CORPORATION
By:
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Xxxxx X. Xxxxxx, President
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