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LOAN SALE AGREEMENT
between
AUTOINFO FINANCE OF VIRGINIA, INC.
(Company)
and
AUTOINFO RECEIVABLES COMPANY
(Issuer)
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Dated as of October 1, 1996
This LOAN SALE AGREEMENT, dated as of October 1, 1996, is by and between
AutoInfo Finance of Virginia, Inc. (the "Company") and AutoInfo Receivables
Company (the "Issuer").
RECITALS
The Issuer has entered into an Indenture, dated as of October 1,
1996, (the "Indenture"), with Bankers Trust Company (the "Indenture Trustee")
and Crestar Bank (the "Custodian") pursuant to which the Issuer intends to issue
Class A Notes and Class B Notes (the "Notes").
In furtherance thereof, the Issuer and Company have entered into
this Loan Sale Agreement to provide for, among other things, the acquisition by
the Issuer of all of the right, title and interest in and to certain Loan
Assets, which the Issuer is and will be pledging to the Indenture Trustee and in
which the Issuer is and will be Granting to the Indenture Trustee a security
interest, as security for the Notes. As a precondition to the effectiveness of
this Loan Sale Agreement, the Issuer, the Indenture Trustee, AutoInfo Finance of
Virginia, Inc., as servicer (the "Servicer") and Bankers Trust Company, in its
capacity as Back-Up Servicer (the "Back-up Servicer") and the Custodian will
enter into the Servicing Agreement to provide for the servicing of the Loan
Assets.
In order to further secure the Notes, the Issuer is Granting to the
Indenture Trustee a security interest in, among other things, the Issuer's
rights derived under this Loan Sale Agreement and the Servicing Agreement, and
the Company agrees that all covenants and agreements made by it in this Loan
Sale Agreement with respect to the Loan Assets shall also be for the benefit and
security of the Indenture Trustee, MBIA and all Holders from time to time of the
Notes.
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
For purposes of this Loan Sale Agreement, the following terms shall
have the meanings specified herein. Capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
the Indenture.
"CFAW Purchase Agreement": shall mean the form of purchase agreement
set forth on Exhibit D hereto.
"Closing Date": October 11, 1996.
"Common Stock": shall mean all of the issued and outstanding shares
of common stock of the Issuer, which consists of 1,000 shares having a par value
of $.01 per share.
"Company Address": shall mean 863 Glenrock Road, Suite 201, Norfolk,
Virginia, 23502, or at any other address furnished in writing to the Indenture
Trustee, the Custodian, MBIA and the Issuer.
"Computer Tape": shall mean the diskette, or other computer readable
medium, prepared by the Servicer, containing descriptions and payment
information on each Loan Contract on the Loan Schedule.
"Cut-off Date": shall mean the close of business on August 31, 1996
"Dealer": shall mean any dealer of new or used automobiles, light
trucks or motorcycles, with is either a Third Party Dealer or the Falk Dealer.
"Dealer Agreement" shall mean an agreement between the Company and a
Dealer relating to the sale of Loan Contracts to the Company in substantially
the form of Exhibit C hereto.
"Dollars": shall mean the lawful currency of the United States.
"Eligible Loan Contract:" shall mean a Loan Contract that satisfies
the selection criteria set forth in Section 3.01(a) hereof.
"Falk Dealer": shall mean Charlie Falk Auto Wholesalers, Inc.
"Issuer Address": shall mean 863 Glenrock Road, Norfolk, Virginia,
23502, or at any other address furnished in writing to the Indenture Trustee and
MBIA.
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"Issuer State of Incorporation": shall mean the State of Delaware.
"Lien": shall mean any security interest, lien, charge, pledge,
equity or encumbrance of any kind other than liens for taxes due and payable
after the Cut-Off Date, mechanic's liens filed after the Cut-Off Date and any
liens that attach after the Cut-Off Date by operation of law.
"Loan Sale Agreement": shall mean this Loan Sale Agreement, as
amended from time to time in accordance with the terms hereof.
"Loan Assets": shall mean all right, title and interest in and to
(a) the Loan Contracts and all rights with respect thereto, including all
guaranties and other agreements or arrangements of whatever character from time
to time supporting or securing payment of any Loan Contract, and all rights with
respect to any agreement or arrangements with the vendors, dealers or
manufacturers of the Vehicles to the extent specifically related to any Loan
Contract, (b) all payments received on or with respect to the Loan Contracts due
on or after the Cut-Off Date, including without limitation, all periodic
payments due from the Obligors thereunder, all amounts paid by guarantors under
the Loan Contracts, all Insurance Proceeds received on or with respect to the
Loan Contracts, all payments received on Defaulted Loan Contracts and, with
respect to liquidation, all late payment charges paid by Obligors and any other
incidental charges or fees received from an Obligor, including but not limited
to, late fees, collection fees and bounced check charges, (c) the Loan Contract
Files, the original Loan Contracts, original Certificates of Title and
Applications for Certificates of Title relating to the Loan Contracts, (d) a
security interest in the Vehicles securing the Loan Contracts, and (e) all
income and proceeds of the foregoing or relating thereto.
"Loan Contracts": the sub-prime retail installment contracts, and
such other motor vehicle loan contracts (and all rights with respect thereto,
including all guaranties and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any Loan Contract
and all rights with respect to any agreements or arrangements with the vendors,
dealers or manufacturers of the Vehicles to the extent specifically related to
any Loan Contract) which are identified on the Loan Schedule; provided that,
from and after the date on which a Loan Contract is purchased by the Company at
the Purchase Price in accordance with the terms hereof, such repurchased Loan
Contract shall no longer constitute a Loan Contract for purposes of the
Transaction Documents.
"Loan Schedule": shall mean the list of Loan Contracts attached as
Schedule I hereto, which shall include in respect to each Loan Contract: (a) a
number identifying the Loan Contract, (b) the Loan Balance as of the Cut-off
Date, (c) the Obligor, (d) the Obligor's billing address, (e) the original and
remaining months to maturity of the Loan Contract, (f) the Scheduled Payment,
(g) the annual percentage rate, (h) the dates of the first and last Scheduled
Payment, (i) the original amount financed, and (j) the vehicle identification
numbers of the related Vehicles.
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"Purchase Price": An amount equal to the sum of (i) the Loan Balance
of the purchased Loan Contract and (ii) any interest accrued through the date of
such repurchase.
"Third Party Dealer": shall mean a franchised or other third party
retail auto, motorcycle and light truck dealer which originates and sells Loan
Contracts to the Company or through another finance company approved by MBIA.
"Transfer Taxes": As defined in Section 3.01(a)(xix) hereof.
"Vehicle": A new or used automobile, light truck or motorcycle and
all accessories thereto.
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ARTICLE II
ACQUISITION OF LOAN ASSETS
Section 2.01. Conveyance of Loan Assets.
(a) In consideration of the Issuer's delivery to or upon the order
of the Company of the net proceeds from the sale of the Notes, the Company does
hereby sell, transfer, contribute, assign, set over and otherwise convey to the
Issuer, without recourse (except as provided in Sections 2.06 and 3.03 hereof)
all of the Company's right, title and interest now existing or hereafter arising
in and to the Loan Assets related to the Loan Contracts listed on the Loan
Schedule. The Company agrees that all Loan Contracts sold, contributed,
transferred and conveyed to the Issuer hereunder shall be Eligible Loan
Contracts and that all Loan Assets acquired by the Issuer shall conform with all
of the requirements hereof. The Company hereby acknowledges that its transfer of
the Loan Assets to the Issuer is absolute and irrevocable, without reservation,
retention of any interest, or recourse to the Company, except as provided in
Sections 2.06 and 3.03 hereof.
(b) To the extent that the Company shall retain any files or
documentation pertaining to the Loan Assets it shall hold such documents as
Servicer and in trust for the benefit of the Indenture Trustee, the Noteholders,
MBIA and the Issuer as the owner thereof. The possession of any documents or
files pertaining to the Loan Assets by the Servicer is at the will of the Issuer
for the sole purpose of servicing such Loan Assets, and such retention and
possession by the Servicer is in a custodial capacity only. The documents and
files retained by the Servicer relating to the Loan Assets shall be segregated
from the books and records of the Company and shall be marked conspicuously to
reflect clearly the sale of the related Loan Assets to the Issuer and the
Indenture Trustee's security interest therein.
Section 2.02. Use of Proceeds.
On the Closing Date, the Company shall use the cash proceeds
received pursuant to Section 2.01 towards the purchase price for the Loan
Assets, to remove any liens encumbering the Loan Assets as of such date, and for
general corporate purposes.
Section 2.03. Delivery of Loan Contracts; Filing of Financing
Statements.
(a) In connection with the Issuer's acquisition of the Loan Assets,
the Company, on behalf of the Issuer, shall deliver to the Custodian the
Custodial Files, shall deliver to the Servicer all documents necessary to assist
the Servicer in its servicing obligations and shall deliver to the Indenture
Trustee a power of attorney to permit the Indenture Trustee to submit for
retitling any Certificate of Title in accordance with the terms of the
Transaction Documents. If the original Certificate of Title is not available on
the Closing Date, the Company shall deliver the Application for Certificate of
Title to the Custodian on the Closing Date; provided, however, that the Company
shall deliver to the Custodian the original Certificate of Title relating to
each
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Vehicle within 120 days of the Closing Date. In addition, the Company agrees to
record and file prior to the Closing Date or within the time period set forth in
the Indenture, at its own expense, financing statements (and thereafter timely
continuation statements with respect to such financing statements) with respect
to the Loan Assets, meeting the requirements of the Transaction Documents.
(b) In connection with such acquisition, the Company shall promptly,
at its own expense, cause its books and records, including any electronic ledger
maintained by it or the Servicer, to be marked to show the sale of the related
Loan Assets to the Issuer and the Indenture Trustee's security interest therein.
Section 2.04. Servicing of Loan Contracts and Vehicles.
The Company acknowledges and agrees that its obligations hereunder
are independent of any obligations it may have as Servicer under the Transaction
Documents and that its obligations under this Loan Sale Agreement will continue
in full force and effect, whether or not it is acting as Servicer.
Section 2.05. Review of Loan Contracts.
If the Company discovers or is notified by the Custodian, Indenture
Trustee, MBIA or the Noteholders that any Loan Contracts, Certificates of Title
or Applications for Certificate of Title, as applicable, are missing or
defective (that is, mutilated, damaged, defaced, incomplete, improperly dated,
clearly forged or otherwise physically altered) in any material respect, the
Company shall correct or cure such omission, defect or other irregularity within
60 days from the date the Company discovered, or is notified by the Custodian,
Indenture Trustee, MBIA or the Noteholders of, such omission or defect.
Otherwise, the Company shall repurchase such Loan Contract from the Issuer in
accordance with Section 3.03 hereof. In addition, the Company shall repurchase
Loan Contracts with respect to which the original Certificates of Title relating
to the relevant Vehicle are not delivered within 120 days of the Closing Date.
Section 2.06. Nature of Transfer.
(a) It is the intention of the Company and the Issuer that the
transfer and assignment of the Company's right, title and interest in and to the
Loan Contracts and the Loan Assets shall constitute an absolute sale by the
Company to the Issuer. In the event that the transfer of the Loan Assets from
the Company to the Issuer is deemed to be a secured financing, the Company shall
be deemed hereunder to have Granted to the Issuer, and the Company does hereby
Grant to the Issuer, a first priority security interest in all of the Company's
right, title and interest in, to and under the Loan Assets, whether now owned or
hereafter acquired. For purposes of such Grant, this Loan Sale Agreement shall
constitute a security agreement under applicable law.
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(b) In the event that the transfer contemplated by this Loan Sale
Agreement is deemed for any reason to be less than a transfer of complete legal
title of all of the Company's right, title and interest in, to and under the
Loan Assets, the parties hereto intend that this Loan Sale Agreement operate to
transfer all of the Company's equitable interests in, to and under the Loan
Assets to the Issuer.
Section 2.07. Re-Liening Triggers.
At the direction of MBIA upon the occurrence of a Re-Liening
Trigger, the Company, at its own cost and expense shall promptly cause the
Certificate of Title to be retitled to show the Indenture Trustee as the secured
party thereon. If the Company fails to pay such expense within thirty days of
the occurrence of such Re-Liening Trigger, such amount shall be paid in
accordance with Section 12.02(d) of the Indenture.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Company.
(a) The Company hereby makes the following representations and
warranties as to each Loan Contract to the Issuer and for the benefit of MBIA,
the Indenture Trustee and the Noteholders, on which the Issuer relies in
acquiring the Loan Assets and MBIA relies in issuing the Class A Note Insurance
Policy. Such representations and warranties speak as of the Closing Date for the
Loan Contracts and the related Vehicles but shall survive any subsequent
transfer, assignment, contribution or conveyance of the Loan Contracts and
related Vehicles:
(i) The information set forth in the Loan Schedule is true and
correct as of the related Cut-Off Date.
(ii) The Loan Contract was originated in the United States of
America by a Dealer approved by the Company under the Company's approved
form of Loan Contract attached hereto as Exhibit B for the retail sale of
a financed Vehicle in the ordinary course of such Dealer's business, and
was purchased by the Company in the ordinary course of the Company's
business. Each Loan Contract is fully and properly executed by the parties
thereto, is a fully amortizing "Rule of 78's" Loan Contract motor vehicle
loan and provides for level Scheduled Payments over the term of such Loan
Contract. The rights with respect to each Loan Contract are assignable by
the lender thereunder and its assignees without the consent of or notice
to any Person.
(iii) The Company has heretofore provided to the Custodian on
behalf of the Indenture Trustee the sole original counterpart of each of
the Loan Contracts as amended, and the related Certificate of Title or the
Application for Certificate of Title, previously in the possession of the
Company, and the Loan Contracts have not been amended, waived or modified.
A Loan Contract File exists for each Loan Contract and such Loan Contract
File contains, without limitation, (a) a fully executed original of each
Loan Contract, endorsed, "Pay to the order of Bankers Trust Company as
Indenture Trustee," (b) a certificate of insurance, application form for
insurance signed by the Obligor, or signed representation letter from the
Obligor named in the Loan Contract pursuant to which the Obligor has
agreed to obtain physical damage insurance for the related Vehicle, (c)
evidence that the Obligor took possession of the Vehicle and that the
Vehicle was in good working order and acceptable to the Obligor at the
time of receipt by the Obligor, (d) the original credit application
executed by the Obligor and (e) the Certificate of Title or Application
for Certificate of Title or relevant lien certificate. Each of such
documents which is required to be signed by the Obligor has been signed by
the Obligor in the appropriate spaces. All blanks on any form have been
properly filled in and each form has otherwise been correctly prepared.
Each Loan Contract fulfills the documentation
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requirements contained in the Credit and Collection Policy as in effect on
the Closing Date.
(iv) There is only one original executed counterpart of the Loan
Contract that constitutes "chattel paper" for purposes of section
9-105(1)(b) and 9-308 of the UCC which has been delivered to the Custodian
and the Company's or the Servicer's electronic ledgers have been marked as
provided in Section 2.03 hereof.
(v) The Loan Contract was not originated in, nor is it subject
to the laws of, any jurisdiction, the laws of which would make unlawful
the sale, transfer or assignment of such document under any of the
Transaction Documents, including any repurchase in accordance with the
Transaction Documents. The Company has not entered into any agreement with
any Obligor that prohibits, restricts, or conditions the assignment of the
Loan Contracts.
(vi) The Loan Contract is, and on the Closing Date will be, in
full force and effect in accordance with its respective terms and neither
the Company nor any Obligor has or will have suspended or reduced any
payments or obligations due or to become due thereunder by reason of a
default by the other party to such Loan Contract; as of the Cut-Off Date,
none of the Obligors on the Loan Contracts are more than 30 days
delinquent in making a Scheduled Payment (except that Obligors on Loan
Contracts representing no more than 5% of the Initial Aggregate Loan
Balance may be up to 60 days delinquent in making a Scheduled Payment);
none of the Obligors are more than 30 days delinquent on any other
obligations to the Company and there are no proceedings pending, or to the
best of the Company's knowledge, threatened, asserting insolvency of an
Obligor; there has been no previous default on the Loan Contract that
resulted in repossession of the related Vehicle; and there are no
proceedings pending, or to the best of the Company's knowledge,
threatened, wherein the Obligor or any governmental agency has alleged
that any such Loan Contract is illegal or unenforceable. No funds have
been advanced by the Servicer, the Company, any Dealer, Falk or anyone
acting on behalf of any of them in order to cause any Loan Contract to
qualify under this clause.
(vii) The Loan Contract is the valid, binding and legally
enforceable obligation of the parties thereto, enforceable in accordance
with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and other similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
court of law or equity and all parties to each Loan Contract had full
legal capacity to deliver such Loan Contract and all other documents
related thereto and to grant the security interest purported to be granted
thereby.
(viii) All filings, notices (including Uniform Commercial Code
filings and Department of Motor Vehicles filings and notices), transfers
and recordings as required under the Indenture or applicable law to
perfect the first priority security interests of the
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Issuer and the Indenture Trustee in the Loan Assets being acquired
hereunder, have been accomplished and are in full force and effect or will
be accomplished within the time period specified in the Transaction
Documents. Each Loan Contract is secured by a Vehicle, creates a valid,
subsisting and enforceable first priority security interest in the Vehicle
securing such Loan Contract in favor of the Company and such Loan Contract
together with the related security interest has been duly assigned by the
Company to the Issuer. All documents necessary to permit the Indenture
Trustee to submit the Certificates of Title for each Vehicle to the
applicable Department of Motor Vehicles for retitling in the name of the
Indenture Trustee as secured party have been delivered to the Indenture
Trustee.
(ix) Each Loan Contract being acquired by the Issuer is
substantially in one of the forms attached hereto as Exhibit B, which each
of the Issuer and MBIA has had the opportunity to review prior to the
Closing Date, except for immaterial modifications or deviations from the
form loan contracts; any such modifications or deviations from the form
loan contracts will not have a material adverse effect on the Issuer, the
Noteholders or MBIA and will not reduce the Scheduled Payments or other
payments due under the Loan Contracts.
(x) Each Loan Contract was purchased by the Company from a
Dealer pursuant to a form of dealer agreement attached hereto as Exhibit C
or from the Falk Dealer pursuant to the CFAW Purchase Agreement. Each such
dealer agreement (other than the CFAW Purchase Agreement) was "without
recourse" to the related Dealers.
(xi) The Loan Contract was originated by a Dealer and
underwritten by the Company and the Dealer pursuant to, and each Loan
Asset satisfies in all material respects, the underwriting guidelines and
documentation standards of the Company. Such underwriting and origination
criteria meet the Company's underwriting and origination criteria as set
forth in the Credit and Collection Policy. The Credit and Collection
Policy used by the Servicer with respect to each Loan Contract have been
in all respects legal, proper, prudent and customary in the motor vehicle
financing and servicing business.
(xii) Each Loan Contract (A) has an original stated term of at
least 9 months and no more than 60 months (except that one Loan Contract
may have an original stated term of 64 months), (B) an interest rate of at
least 9.81%, and the weighted average interest rate of the Loan Contracts
as of the Closing Date is at least 25.16%, (C) is within its original term
and has not had more than two one-month extensions as of the Cut-Off Date,
(D) has a current Loan Balance of less than $25,000 (except that one Loan
Contract may have a Current Loan Balance of $30,337.41) and (E) has had at
least one Scheduled Payment made by the Obligor (except that Obligors on
Loan Contracts representing no more than 20% of the Initial Aggregate Loan
Balance may have made no Scheduled Payment).
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(xiii) None of the Obligors is the United States of America or any
state, or agency, department or instrumentality or political subdivision
of the United States of America or any state. Each Loan Contract is
payable in Dollars and the Obligor thereon is an individual who is a
United States resident.
(xiv) All requirements of applicable Federal, state and local
laws, and regulations thereunder in respect of the Loan Assets have been
complied with in all material respects, 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 Magnusson-Moss Warranty Act,
the Federal Reserve Board's Regulations B & Z, the applicable state
Consumer Credit Code and state adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code, and any other applicable consumer
credit, equal opportunity and disclosure laws if any, and each Loan
Contract and the sale of any physical damage credit life and credit
accident and health insurance and any extended service contracts complied
in all material respects at the time it was originated or made and now
complies in all material respects with all legal requirements of the
jurisdiction in which it was originated.
(xv) The Loan Contract is not as of the Closing Date subject to
any right of rescission, set-off, counterclaim, claim or defense,
including the defense of usury, whether arising out of transactions
concerning the Loan Contract or otherwise, and the operation of any of the
terms of the Loan Contract or the exercise by the Company or the Obligor
of any right under the Loan Contract will not render the Loan Contract
unenforceable, in whole or in part, nor subject to any right of
rescission, set-off, counterclaim, claim or defense, including without
limitation, the defense of usury, and no such right of rescission,
set-off, counterclaim, claim or defense has been asserted with respect
thereto, except that certain rights or defenses may exist under applicable
law which, individually or in the aggregate, do not make the remedies
available to the Company and its assignees with respect to such Loan
Contract inadequate for the practical realization of the benefits provided
thereby.
(xvi) The Company has duly fulfilled all obligations to be
fulfilled on the lender's part under or in connection with the
origination, acquisition and assignment of the Loan Assets, including,
without limitation, giving any notices or consents necessary to effect the
acquisition of the Loan Assets by the Issuer, and none of the Servicer,
the Dealer nor the Company has done anything to impair the rights of the
Trust Estate, the Indenture Trustee, MBIA or the Noteholders in the Loan
Contract or payments with respect thereto. The Company has obtained all
necessary licenses, permits and charters required to be obtained by the
Company, which failure to obtain would render any portion of the
Transaction Documents unenforceable and would have a material adverse
effect on the Issuer, MBIA or the Noteholders.
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(xvii) The Loan Assets have not been sold, transferred, assigned or
pledged by the Company to any Person other than the Issuer, and upon
execution and delivery of this Loan Sale Agreement by the Company, the
Issuer will have all of the right, title and interest in and to the Loan
Assets, free and clear of all liens and encumbrances and any interest of
the Company or its successors, except for the interests of the Obligor
pursuant to the Loan Contract and the lien of the Indenture Trustee under
the Indenture. None of the Servicer, the Dealer nor the Company has taken
any action to convey any right to any Person that would result in such
Person having a right to payments received under the related Insurance
Policies, the related Dealer Agreements or dealer assignments or to
payments due under such Loan Contracts.
(xviii) Each Loan Contract requires that the Obligor obtain and
maintain, and each Obligor has in effect, an Insurance Policy covering
physical loss on and damage to the related Vehicle naming the Servicer as
loss payee and each Loan Contract permits the holder thereof to obtain
physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. Insurance coverage required to be maintained by
the Obligor under each Loan Contract is of a type, and insures the Vehicle
for an amount, that is (A) customary to industry practice for the type and
age of such Vehicle covered thereby and (B) consistent with the Company's
historical requirements for such coverage. Each Insurance Policy is
monitored in accordance with industry practice. At the time of origination
of each Loan Contract, the related Vehicle was covered by a comprehensive
and collision insurance policy (i) in an amount at least equal to the
lesser of (a) the maximum insurable value of the Vehicle or (b) the
principal amount due from the Obligor under the related Loan Contract,
(ii) naming the Company as a loss payee and (iii) insuring against loss
and damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage.
(xix) The sale to the Issuer of the Loan Assets does not violate
the terms or provisions of any loan or any other agreement to which the
Company is a party or by which it is bound.
(xx) The sale, transfer, assignment and conveyance of the Loan
Assets by the Company pursuant to this Loan Sale Agreement is not subject
to and will not result in any tax, fee or governmental charge payable by
the Company to any Federal, state or local government ("Transfer Taxes")
other than Transfer Taxes which have or will be paid by the Company as
due.
(xxi) Each Dealer that originated a Loan Contract for sale to the
Company has been selected by the Company based on the Company's
underwriting criteria, such Dealer's financial and operating history and
record of compliance with requirements of applicable Federal and state
law. Each Dealer from whom the Company purchases Loan Contracts directly,
has entered into an agreement with the Company providing for the sale of
motor vehicle loans from time to time by such Dealer to the Company and is
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authorized to originate Loan Contracts for sale to the Company. No Dealer
has engaged in any conduct constituting fraud or misrepresentation with
respect to the Loan Assets.
(xxii) As of the Closing Date, unless otherwise indicated, (a) no
application has been filed with the Department of Motor Vehicles of the
State of Virginia requesting assignment of a lien to or the issuance of a
new certificate of title noting the lien of any party other than the
Company or Falk and (b) except with respect to 35 Loan Contracts, the
Company has not received prepayment in full on any Loan Contract from an
Obligor.
(xxiii) Each Loan Contract has a final scheduled payment date on or
before six months prior to the Stated Maturity Date for the Class A Notes.
(xxiv) The Company or Falk is named as secured party on the
Certificate of Title or Application for Certificate of Title for each
Vehicle.
(xxv) No more than 2% of the Loan Contracts, based upon the Loan
Balance as of the Closing Date, are loans to finance an Obligor's purchase
of a motorcycle.
(xxvi) At the time of origination of each Loan Contract, the
proceeds of such Loan Contract were fully disbursed. There is no
requirement for future advances thereunder, and all fees and expenses in
connection with the origination of such Loan Contract have been paid.
(xxvii) No Loan Contract is due from an Obligor who has defaulted or
was more than 30 days delinquent under a previous or another contract with
the Company.
(xxviii) Each Loan Contract contains provisions requiring the
Obligor to assume all risk of loss or malfunction of the related Vehicle
and to maintain liability insurance with respect thereto, requiring the
Obligor to pay all sales, use, property, excise and other similar taxes
imposed on or with respect to the related Vehicle and making the Obligor
liable for all payments required to be made thereunder, without any
setoff, counterclaim or defense for any reason whatsoever, subject only to
the Obligor's right of quiet enjoyment.
(xxix) No Loan Contract provides for the substitution, exchange or
addition of any Vehicle subject to such Loan Contract.
(xxx) The Dealer that sold each Loan Contract had all necessary
licenses and permits to originate the Loan Contracts in the state where
such Dealer was located. The Loan Contract was purchased by the Company
from such Dealer under an existing dealer agreement with the Company and
was validly assigned by such Dealer to the Company. Each such dealer
agreement is in full force and effect and is the legal, valid and binding
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obligation of such Dealer and there have been no material defaults by such
Dealer or by the Company under such dealer agreement.
(xxxi) Each Vehicle was properly delivered to the related Obligor
in good repair, without defects and in satisfactory order, and, to the
best of the Company's knowledge, each Vehicle is in good operating
condition and repair as of the Closing Date. Each Vehicle was accepted by
the Obligor after reasonable opportunity to inspect and test same and no
Obligor has informed the Company of any defect therein.
(xxxii) To the best of the Company's knowledge, no Obligor is a
Person involved in the business of leasing or selling equipment of a type
similar to the Vehicles.
(xxxiii) No Loan Contract constitutes a "consumer lease" under
either (a) the UCC as in effect in the jurisdiction whose law governs the
Loan Contract or (b) the Consumer Leasing Act, 15 USC 1667.
(xxxiv) Each Loan Contract had at least one Loan Contract payment
remaining as of the Cut-Off Date.
(xxxv) No Loan Contract is assumable by another Person in a manner
which would release the Obligor thereof from such Obligor's obligations
with respect to such Loan Contract.
(xxxvi) Each Obligor has paid the entire down payment called for by
the Loan Contract.
(xxxvii) Scheduled Payments under each Loan Contract are due monthly
(or, in the case of the first Scheduled Payment, no later than the 45 days
after the date of such Loan Contract) in substantially equal amounts to
maturity, with the portion of the aggregate amount of such Scheduled
Payments to be refunded or credited to the Obligor as unearned add-on
interest upon prepayment in full or upon demand for payment upon
acceleration being determined on the basis of the terms of such Loan
Contract, and will be sufficient to fully amortize such Loan Contract at
maturity. Such Scheduled Payments are applicable only to payment of
principal and interest on the related Loan Contract and not to the payment
of any insurance premiums (although the proceeds of the extension of
credit on such Loan Contract may have been used to pay insurance
premiums).
(xxxviii) Each Loan Contract does not permit early termination or
prepayment unless the amount to be paid by or on behalf of the Obligor in
respect of such prepayment or termination is at all times equal to or in
excess of a specified prepayment amount.
(xxxix) No Loan Contract was purchased by the Company after August
31, 1996.
(xl) Each Loan Contract was originated after September 1, 1992.
14
(xli) The Dealer that sold each Loan Contract to the Company has
entered into a Dealer Agreement and such Dealer Agreement constitutes the
entire agreement between the Company and the related Dealer with respect
to the sale of such Loan Contract to the Company. Each such Dealer
Agreement is in full force and effect and is the legal, valid and binding
obligation of such Dealer; there have been no material defaults by such
Dealer or by the Company under such Dealer Agreement; the Company has
fully performed all of its obligations under such Dealer Agreement; the
Company has not made any statements or representations to such Dealer
(whether written or oral) inconsistent with any term of such Dealer
Agreement; the purchase price (as specified in the applicable Dealer
Agreement) for such Loan Contract has been paid in full by the Company;
there is no other payment due to such Dealer from the Company for the
purchase of such Loan Contract; such Dealer has no right, title or
interest in or to any Loan Contract; there is no prior course of dealing
between such Dealer and the Company which will affect the terms of such
Dealer Agreement; any payment owed to such Dealer by the Company is a
corporate obligation of the Company in the nature of a bonus for amounts
collected by the Company in excess of the purchase price for a Loan
Contract.
(xlii) No more than 85% of the aggregate principal balance of the
Loan Contracts as of the Closing Date is attributable to Loan Contracts with
Obligors having a billing address in any single State.
(xliii) Prior the sale to the Issuer, the Company had all right,
title and interest in and to the Loan Assets, free and clear of all liens and
encumbrances.
(xliv) As of the Closing Date, the parties to each Loan Contract are
the Company and Obligor.
(xlv) As of the time of the assignment, transfer and contribution of
the Loan Contracts pursuant to the terms of this Loan Sale Agreement, no Obligor
will have been released, in whole or in part, from any of its obligations in
respect of any Loan Contract; no Loan Contract will have been satisfied or
subordinated, in whole or in part, or rescinded, and no Vehicle covered by such
Loan Contract will have been released from such Loan Contract, in whole or in
part, nor will any instrument have been executed that would effect any such
satisfaction, release, cancellation, subordination, or rescission; except that
after the Cut-Off Date and prior to the Closing Date, the Company has received
prepayment on less than 1% (by Aggregate Loan Balance) of the Loan Contracts and
such Loan Contracts have been satisfied and the related Vehicles released from
such Loan Contracts.
(b) The Company hereby makes, as of the Closing Date, the following
representations and warranties to the Issuer, and for the benefit of MBIA, the
Indenture Trustee and the Noteholders, on which the Issuer relies in acquiring
the Loan Assets and selling the Notes and on which MBIA relies in issuing the
Class A Note Insurance Policy. Such representations and warranties shall survive
any subsequent transfer, assignment, contribution or conveyance of the Loan
Contracts and related Vehicles.
15
(i) The Company used no selection procedures that identified the
Loan Contracts being acquired on the Closing Date as being less desirable
or valuable than other comparable motor vehicle loans originated or
acquired by the Company.
(ii) The Computer Tape from which the selection of the Loan
Contracts being acquired on the Closing Date was made, as made available
to the Issuer's accountants that are providing a comfort letter to MBIA,
the Noteholders, or the Placement Agent in connection with any information
contained in any Private Placement Memorandum applicable to such Notes was
complete and accurate as of the Cut-Off Date and includes a description of
the same Loan Contracts that are described in the related Loan Schedule
and the payments due thereunder as of the Cut-Off Date.
(iii) The Company has foreclosed on Vehicles and retitled
Certificates of Titles using the power of attorney executed by the Falk
Dealer and has the legal right to foreclose on all Vehicles and to retitle
all related Certificates of Title or Applications for Certificates of
Title.
(c) The Company hereby makes the following representations and
warranties to the Issuer and for the benefit of MBIA, the Indenture Trustee and
the Noteholders, on which the Issuer relies in acquiring the Loan Assets and
selling the Notes and on which MBIA relies in issuing the Class A Note Insurance
Policy. Such representations and warranties speak as of the Closing Date but
shall survive any subsequent transfer, assignment, contribution or conveyance of
the Loan Contracts and related Vehicles:
(i) The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of its jurisdiction
of incorporation with corporate power and authority to own its properties
and to transact the business in which it is now engaged, and the Company
is duly qualified to do business in and is in good standing under the laws
of each State in which the nature of its business requires such
qualification, except where failure to so qualify would not have a
material adverse effect on the ability of the Company to perform its
obligations under the Transaction Documents or any of the Loan Contracts.
(ii) The performance of the obligations of the Company under this
Loan Sale Agreement and the other Transaction Documents, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in any breach of any of the terms or provisions
of, or constitute with or without notice, lapse of time or both, a default
under the certificate of incorporation or by-laws of the Company, or any
material indenture, agreement, mortgage, deed of trust or other instrument
to which the Company is a party or by which it is bound, or result in the
creation or imposition of any lien, charge or encumbrance (except the lien
created by the Indenture) upon any of the property or assets of the
Company pursuant to the terms of such indenture, mortgage, deed of trust,
or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the Company's property or
assets is
16
subject, nor will such action result in any violation of the provisions of
the Company's certificate of incorporation or by-laws or any statute or
any order, rule or regulation of any court or any regulatory authority or
other governmental agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with or other action of any court, or
any such regulatory authority or other governmental agency or body is
required for consummation of the transactions contemplated by this Loan
Sale Agreement and the other Transaction Documents, except such consents,
approvals and authorizations that have been obtained or such registrations
or qualifications that have been made.
(iii) This Loan Sale Agreement has been duly authorized, executed
and delivered by the Company by all necessary corporate action and such
agreements are the valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject as to enforcement to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to
or affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a court of law or
equity.
(iv) The chief executive office, chief place of business and the
office where the Company keeps its records concerning the Loan Contracts
and the Vehicles is 863 Glenrock Road, Suite 201, Norfolk, Virginia 23502.
(v) the Company does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and every
covenant contained in this Loan Sale Agreement.
(vi) The transactions contemplated by the Transaction Documents
are being consummated by the Company in furtherance of its ordinary
business purposes, with no contemplation of insolvency and with no intent
to hinder, delay or defraud any of its present or future creditors.
(vii) The consideration received by the Company as set forth
herein is fair consideration having value reasonably equivalent to or in
excess of the value of the Loan Assets and the performance of the
Company's obligations hereunder.
(viii) Neither on the date of the transactions contemplated by the
Transaction Documents or immediately before or after such transactions,
nor as a result of the transactions, will the Company:
(A) be insolvent such that the sum of its debts is greater
than all of its respective property, at a fair valuation;
(B) be engaged in or about to engage in, business or a
transaction for which any property remaining with the Company will
be an unreasonably small
17
capital or the remaining assets of the Company will be unreasonably
small in relation to its respective business or the transaction; and
(C) have intended to incur or believed it would incur, debts
that would be beyond its ability to pay as such debts mature or
become due. The Company's assets and cash flow enable it to meet its
present obligations in the ordinary course of business as they
become due.
(ix) Both immediately before and after the transactions
contemplated by the Transaction Documents (a) the present fair salable
value of the Company's assets was or will be in excess of the amount that
will be required to pay its probable liabilities as they then exist and as
they become absolute and matured; and (b) the sum of the Company's assets
was or will be greater than the sum of its debts, valuing its assets at a
fair salable value.
(x) The acquisition of the Loan Assets by the Issuer pursuant to
this Loan Sale Agreement is not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(xi) There are no proceedings or investigations pending, or to
the knowledge of the Company, threatened, against or affecting the Company
in or before any court, governmental authority or agency or arbitration
board or tribunal (including, but not limited to any such proceeding or
investigation with respect to any environmental or other liability
resulting from an interest in any of the Vehicles) which, individually or
in the aggregate, if determined adversely to the Company, would materially
and adversely affect the properties, business, prospects, profits or
conditions (financial or otherwise) of the Company, or the ability of the
Company to perform its obligations under, or the validity or
enforceability of, this Loan Sale Agreement. The Company is not in default
with respect to any order of any court, governmental authority or agency
or arbitration board or tribunal.
(xii) All tax returns or extensions required to be filed by the
Company in any jurisdiction have in fact been filed, and all taxes,
assessments, fees and other governmental charges upon the Company, or upon
any of the respective properties, income or franchises of the Company,
shown to be due and payable on such returns have been, or will be, paid
when due. To the best of the Company's knowledge, all such tax returns are
true and correct and the Company has no knowledge of any proposed
additional tax assessment against it in any material amount nor of any
basis therefor. The provisions for taxes on the books of the Company are
in accordance with generally accepted accounting principles.
(xiii) The Company (i) is not in violation of any laws, ordinances,
governmental rules or regulations to which it is subject, (ii) has not
failed to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the
18
ownership of its property or to the conduct of its business, and (iii) is
not in violation in any material respect of any term of any agreement,
charter instrument, bylaw or instrument to which it is a party or by which
it may be bound which violation or failure to obtain would materially and
adversely affect the ability of the Company to perform its obligations
under, or the validity or enforceability of, this Loan Sale Agreement.
(xiv) It is the intention of the Company that the Loan Assets be
acquired by the Issuer and that the beneficial interest in and title to
the Loan Assets not be part of the Company's property for any purpose
under state or Federal law.
(xv) Immediately prior to the acquisition of the Loan Contracts
by the Issuer pursuant to this Loan Sale Agreement, the Company was the
sole owner of the Loan Contracts and had a valid first perfected security
interest in the related Vehicles and had good and marketable title
thereto, free and clear of all liens, claims and encumbrances and the
acquisition of the Loan Assets by the Issuer does not violate the terms or
provisions of any Loan Contract.
(xvi) The Company is treating the transfer of the Loan Contracts
and the related Vehicles on the Closing Date as a sale to the Issuer for
Federal, state and local income tax, reporting and accounting purposes.
(xvii) The Private Placement Memorandum (except with respect to the
section entitled "MBIA and the Class A Note Insurance Policy" and
Appendices C, D and E thereto) does not contain any untrue statement of
fact or omit to state any fact necessary to make the facts stated therein
not materially misleading.
(xviii) The Company and the Issuer are members of an affiliated
group within the meaning of section 1504 of the Internal Revenue Code,
which will file a consolidated Federal income tax return at all times
until termination of the Transaction Documents.
Notwithstanding that any representation or warranty set forth in
this Section 3.01 is made to the best of the Company's knowledge (or to the best
of the Issuer's knowledge as such representation or warranty is applied to the
Issuer under the terms of the Indenture), in the event any such representation
or warranty is found to be untrue or incorrect, the repurchase and substitution
provisions of Sections 3.03 and 3.04 hereof shall apply as if such
representation or warranty was not conditioned on the Company's (or the
Issuer's) knowledge.
Section 3.02. Representations and Warranties of the Issuer.
The Issuer hereby makes the following representations and warranties
to and agrees with the Company for the benefit of MBIA, the Indenture Trustee
and the Noteholders, on which representations and warranties the Company relies
in entering into this Loan Sale Agreement with the Issuer and MBIA relies in
issuing the Class A Note Insurance Policy. The Company agrees that any breach by
the Issuer of any such representations and warranties shall
19
not limit or excuse the full performance of the Company's obligations hereunder.
Such representations and warranties speak as of the Closing Date, but shall
survive any subsequent transfer, assignment, contribution or conveyance of the
Loan Contracts and the security interest in the related Vehicles:
(a) The Issuer has been duly organized and is validly existing in
good standing as a corporation under the laws of the Issuer State of
Incorporation, with corporate power and authority to own its properties, perform
its obligations under the Transaction Documents and to transact the business in
which it is now engaged or in which it proposes to engage; the Issuer is duly
qualified to do business and is in good standing in each State in which the
nature of its business requires it to be so qualified, except where failure to
so qualify would not have a material adverse effect on the ability of the Issuer
to perform its obligations under the Transaction Documents.
(b) The Transaction Documents have been duly authorized, executed
and delivered by the Issuer by all necessary corporate action and constitute
valid and legally binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms, subject as to enforcement to bankruptcy,
insolvency, reorganization and other similar laws of general applicability
relating to or affecting creditors' rights generally and to general principles
of equity regardless of whether enforcement is sought in a court of equity or
law.
(c) There are no proceedings or investigations to which the Issuer,
or any of the Issuer's Affiliates, is a party pending or, to the knowledge of
the Issuer, threatened, before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality (a) asserting the invalidity
of this Loan Sale Agreement, (b) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Loan Sale
Agreement, or (c) seeking any determination or ruling that would materially and
adversely affect the performance by the Issuer of its obligations under, or the
validity or enforceability of, this Loan Sale Agreement.
(d) All approvals, authorizations, consents, orders or other actions
of any Person or of any court, governmental agency or body or official, required
in connection with the execution and delivery of this Loan Sale Agreement, have
been or will be taken or obtained on or prior to the Closing Date.
(e) The principal place of business and chief executive office of
the Issuer is 863 Glenrock Road, Norfolk, Virginia 23502.
(f) The Issuer will treat the Notes as debt of the Issuer for all
Federal, state and local income tax purposes.
20
Section 3.03. Purchase of Loan Contracts.
(a) If (i) the Company, the Issuer, the Indenture Trustee, the
Servicer or MBIA discovers the breach of any representations or warranties set
forth in Sections 3.01 or 3.02 hereof which materially and adversely affects the
value of a Loan Contract or an interest in the related Vehicles, or the
interests of the Noteholders or MBIA, or the breach of any of the
representations and warranties set forth in Sections 3.01(a)(ii), 3.01(a)(v),
3.01(a)(vii) or 3.01(a)(xvi) hereof, or (ii) the Company or the Issuer discovers
or is notified of the occurrence of any missing or defective document as
specified in Section 2.05 hereof, or (iii) the Custodian shall fail to receive
with respect to each Loan Contract an original Certificate of Title within the
time required pursuant to Section 4.02(a) of the Indenture and 2.03(a) hereof,
then the party discovering such breach or condition shall give prompt written
notice to the other parties and MBIA and in the case of clause (i) above, the
Company shall, within 30 days from the date the Company was notified of, or
otherwise discovers, such breach, cure such breach, and in the case of clause
(ii), the Company shall, within 60 days from the date the Company was notified
of or otherwise discovers such breach, cure such breach. If the Company fails to
cure such breach in the applicable time period or is unable to cure such
circumstance or condition, the Company shall purchase such Loan Contract and the
security interest in the related Vehicle from the Issuer at the Purchase Price.
The Purchase Price for a repurchased Loan Contract and the security interest in
the related Vehicle shall be paid by the Company in accordance with Section 3.04
hereof. It is understood and agreed that the obligation of the Company to cure
or purchase any Loan Contract as to which such a breach has occurred shall
constitute the sole remedy respecting such breach available to the Issuer, the
Noteholders or the Indenture Trustee on behalf of such Noteholders (except for
any indemnities provided under Section 4.01(j) hereof or under the Indenture)
for any losses, claims, damages and liabilities arising from the Issuer's
ownership of such Loan Contract or the inclusion of such Loan Contract in the
Trust Estate.
Section 3.04. Requirements for Purchase of Loan Contracts.
(a) If the Company purchases any Loan Contracts under Section 3.03
hereof, or if the Issuer purchases any Loan Contract under Sections 4.03 or
11.03 of the Indenture or if the Servicer purchases any Loan Contract under
Section 3.04 of the Servicing Agreement, such Loan Contract shall be purchased
by the Company, the Servicer or the Issuer, as applicable, at the Purchase
Price. All purchases and removals shall be accomplished at the times specified
in subsection (b) below.
(b) Any purchase of a Loan Contract by the Company, the Servicer or
the Issuer in accordance with the terms of the Transaction Documents shall be
made by remittance of the Purchase Price to the Servicer for deposit into the
Collection Account in accordance with Section 3.03 of the Servicing Agreement on
or prior to the Determination Date next following the expiration of the cure
period set forth in Section 3.03 hereof. In addition, upon deposit into the
Collection Account of the Purchase Price the Indenture Trustee shall release the
related Loan Contract, the Certificate of Title and/or Application for
Certificate of Title in accordance with
21
Section 4.04 of the Indenture, and the Custodian shall no longer hold the
related Loan Contract File.
22
ARTICLE IV
COVENANTS OF THE COMPANY
Section 4.01. Company Covenants.
The Company hereby covenants and agrees with the Issuer as follows:
(a) Except as hereinafter provided, the Company will keep in full
effect its existence, rights and franchises as a corporation, and will obtain
and preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Loan Sale Agreement or any of the Loan
Contracts and to perform its duties hereunder. Any person into which the Company
may be merged or consolidated, or to whom the Company has sold substantially all
of its assets, or any corporation resulting from any merger, conversion or
consolidation to which the Company shall be a party, or any Person succeeding to
the business of the Company shall be the successor of the Company hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that (i) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Section 3.01(c) hereof shall have
been breached and no Reserve Account Increase Event, Event of Default or
Servicer Event of Default would occur as a result thereof, (ii) such successor
executes an agreement or assumption, in form reasonably satisfactory to the
Indenture Trustee and MBIA, to perform every obligation under this Loan Sale
Agreement, (iii) such successor has a net worth that is sufficient to perform in
accordance with the Transaction Documents and at least approximately equivalent
to the net worth of the Company immediately prior to such sale, merger or
consolidation, (iv) the Company shall have delivered prior written notice
thereof to MBIA and to the Issuer and MBIA a certificate of an officer of the
Company and an Opinion of Counsel each stating that such consolidation, merger,
or succession and such agreement of assumption complies with this Section 4.01
and that all conditions precedent, if any, provided for in this Loan Sale
Agreement relating to such transaction have been complied with, and (v) the
Company shall have delivered to the Issuer, MBIA, and the Indenture Trustee an
Opinion of Counsel stating either (1) in the opinion of such Counsel, all
financing statements, continuation statements and amendments thereto have been
executed and filed that are necessary fully to preserve and protect the interest
of the Issuer and the Indenture Trustee in the Loan Contracts and reciting the
details of such filings, or (2) in the opinion of such Counsel, no such action
shall be necessary to preserve and protect such interest.
(b) Neither the Company nor any of the directors, officers,
employees or agents of the Company shall be under any liability to the Issuer,
the Indenture Trustee or the Noteholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Loan Sale
Agreement, or for errors in judgment not involving recklessness or negligence;
provided, however, that this provision shall not protect the Company against any
breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with this Loan Sale Agreement, or any liability
which would otherwise be imposed
23
by reason of any breach of the terms and conditions of this Loan Sale
Agreement. The Company, and any director, officer, employee or agent of the
Company, may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Company shall not be under any obligation to appear in, prosecute, or defend
any legal action that is not incidental to its obligations as the contributor of
the Loan Assets under this Loan Sale Agreement and that in its opinion may
involve it in any expense or liability.
(c) The Company, from time to time, at its own expense, shall
execute and file such additional financing statements (including continuation
statements) as may be necessary to preserve the security interests and liens
described in Section 3.01(a)(viii) hereof as may be reasonably requested by the
Issuer, MBIA or the Indenture Trustee and are reasonably satisfactory in form
and substance to the Indenture Trustee and MBIA.
(d) The Company will not change its name, identity or corporate
structure in any manner that would, could, or might make any financing statement
or continuation statement misleading within the meaning of section 9-402(7) of
the UCC, unless it shall have given the Issuer, MBIA and the Indenture Trustee
at least 30 days' prior written notice thereof and shall have provided evidence
of appropriate UCC filings.
(e) The Company will give the Issuer, MBIA and the Indenture Trustee
at least 30 days' prior written notice of any relocation of its principal
executive office, and if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement, the Company shall provide evidence of appropriate UCC filings.
(f) The Company will duly fulfill all obligations on its part to be
fulfilled under or in connection with each Loan Contract, will not change or
modify the terms of the Loan Contracts except as expressly permitted by the
terms of the Transaction Documents and will do nothing to impair the rights of
the Issuer, MBIA or the Indenture Trustee in the Loan Contract or the Vehicles.
In the event that the rights of the Company under any Loan Contract, any
guaranty of the related Obligor's obligations under any Loan Contract, or any
Insurance Policy are not assignable or have in fact, not been assigned to the
Issuer or to the Indenture Trustee, the Company will enforce such rights on
behalf of the Issuer and the Indenture Trustee.
(g) The Company will comply, in all material respects, with all
acts, rules, regulations, orders, decrees and directions of any governmental
authority applicable to the Loan Assets or any part thereof; provided, however,
that the Company may contest any act, regulation, order, decree or direction in
any reasonable manner which shall not materially and adversely affect the rights
of the Issuer, MBIA or the Indenture Trustee in the Loan Assets.
(h) The Company will advise the Issuer, MBIA and the Indenture
Trustee promptly, in reasonable detail, of the occurrence of any breach by the
Company following
24
discovery by the Company of such breach of any of its representations,
warranties or covenants contained herein.
(i) The Company will execute or endorse, acknowledge, and deliver to
the Issuer, MBIA and the Indenture Trustee from time to time such schedules,
confirmatory assignments, conveyances, powers of attorney, and other
reassurances or instruments and take such further similar actions relating to
the Loan Contracts, the related Vehicles, and the rights covered by the
Transaction Documents, as the Issuer, MBIA or the Indenture Trustee may
reasonably request to preserve and maintain the Issuer's right and title to the
Loan Assets and the rights of the Indenture Trustee, MBIA and the Noteholders
therein against the claims of all persons and parties.
(j) The Company agrees to indemnify, defend and hold the Issuer, the
Indenture Trustee and MBIA harmless from and against any and all loss,
liability, damage, judgment, claim, deficiency or expense (including interest,
penalties, reasonable attorney's fees and amounts paid in settlement) that is
caused by (i) a breach at any time by the Company of its representations,
warranties and covenants contained in Section 3.01 hereof or this Section 4.01
or (ii) any material information furnished by the Company which is set forth in
any schedule delivered hereunder, being untrue in any respect when any such
representation was made or schedule delivered, provided that the Company shall
not have any liability with respect to a representation or warranty as to any
specific Loan Contract or Vehicle other than to purchase such Loan Contract in
accordance with Section 3.03 hereof unless such breach of representation or
warranty is the result of the Company's fraud, negligence, bad faith or willful
misconduct. The Company shall also indemnify the Issuer, the Indenture Trustee,
the Servicer and MBIA for any cost or expenses incurred by them in the
enforcement of this Loan Sale Agreement or as a result of the Company's failure
to perform its obligations hereunder. The obligations of the Company under this
Section 4.01(j) shall be considered to have been relied upon by the Issuer, the
Indenture Trustee and MBIA and shall survive the execution, delivery and
performance of this Loan Sale Agreement, regardless of any investigation made by
or on behalf of the Issuer, until termination of the Indenture. If the Company
has made any indemnity payments pursuant to this Section 4.01(j) and thereafter
any Person recovers the amount of the related loss or any portion thereof from
others, such Person will promptly repay the amount recovered to the Company,
without interest.
(k) The Company will do nothing to disturb or impair the acquisition
hereunder by the Issuer of the Loan Contracts and the related Vehicles.
(l) The Company (i) will (A) maintain its books and records separate
from the books and records of the Issuer and (B) maintain bank accounts separate
from those of the Issuer and (C) maintain two independent directors on the
Issuer's board of directors, so long as the Company is a shareholder of the
Issuer and (ii) will not (X) take any action that would cause the dissolution or
liquidation of the Issuer, (Y) guarantee (directly or indirectly), endorse or
otherwise become contingently liable (directly or indirectly) for the
obligations of the Issuer, or (Z) institute against the Issuer, or join any
other person in instituting against the Issuer, any case, proceeding
25
or other action under any existing or future bankruptcy, insolvency or similar
laws. This subsection (l) shall survive termination of this Loan Sale Agreement.
(m) The Company shall notify the Issuer, the Indenture Trustee and
MBIA promptly after becoming aware of any Lien on any Loan Asset.
(n) The annual financial statements of the Company will disclose the
effects of the transactions contemplated by the Transaction Documents as a sale
by the Company in accordance with generally accepted accounting principles. The
financial statements of the Company and the Issuer will also disclose that the
assets of the Issuer are not available to pay creditors of the Company. The
resolutions, agreements and other instruments underlying the Transaction
Documents will be continuously maintained by the Company as official records.
(o) The Company, as Servicer, will, at its own cost and expense, (i)
retain or cause to be retained the electronic ledger as a master record of the
Loan Contracts and related Vehicles and the Loan Contract File as custodian for
the Issuer, the Indenture Trustee, MBIA and other Persons, if any, with
interests in the Loan Contracts and related Vehicles and (ii) mark the
Electronic Ledger to the effect that the Loan Contracts and security interest in
the Vehicles have been acquired by the Issuer and that they have been
transferred and assigned to the Indenture Trustee pursuant to the Indenture.
(p) The affiliated group of which the Company and the Issuer are
members within the meaning of section 1504 of the Code shall treat the Loan
Contracts as owned by the Issuer for Federal, state and local income tax
purposes, shall include in the computation of the Issuer's gross income the
income from the Loan Contracts, shall treat the Notes as debt of the Issuer, and
shall cause the Issuer to deduct the interest paid or accrued with respect to
the Notes in accordance with such group's applicable method of accounting.
(q) In the event that the Issuer receives actual notice of any
Transfer Taxes arising out of the transfer, assignment and conveyance of the
Loan Assets, on written demand by the Issuer or the Indenture Trustee, or upon
the Company otherwise being given notice thereof by the Issuer or the Indenture
Trustee, the Company shall pay, and otherwise indemnify and hold the Issuer, the
Indenture Trustee, MBIA and the Noteholders harmless, on an after-tax basis,
from and against any and all such Transfer Taxes (it being understood that the
Issuer, the Indenture Trustee, MBIA and the Noteholders shall have no obligation
to pay such Transfer Taxes).
(r) The Company shall deliver or cause to be delivered within 30
days of the Closing Date, by first class mail, postage prepaid, written notice
to each Obligor substantially in the form of Exhibit E hereto indicating that
the Obligor's related Loan Contract has been sold to the Issuer and that all
payments with respect to such Loan Contract are required to be paid, on and
after the date of receipt of such notice, to AutoInfo Finance of Virginia, Inc.,
as Servicer. The Company shall, on or before the thirty-fifth day following the
Closing Date, deliver a written certificate to the Issuer and the Indenture
Trustee certifying that the written notice described in the immediately
preceding sentence was timely mailed to each Obligor.
26
Section 4.02. Issuer Covenants.
The Issuer hereby covenants and agrees with the Company as follows:
(a) If in any enforcement suit or legal proceeding it is held that
the Company may not enforce a Loan Contract on the ground that it is not a real
party in interest or holder entitled to enforce the Loan Contract, the Issuer
shall, at the Issuer's expense, take such steps as the Issuer deems necessary to
enforce the Loan Contract, including bringing suit in the Issuer's name.
(b) The Issuer warrants that it will own and possess a first
priority security interest in the Vehicles upon its acquisition thereof and that
it will warrant and defend its interest in the Vehicles against all Persons,
claims and demands whatsoever. The Issuer shall not assign, sell, pledge, or
exchange, or in any encumber or otherwise dispose of its interest in the
Vehicles, except as permitted under the Indenture.
(c) The Issuer shall treat the Loan Contracts as owned by it for
Federal, state and local income tax purposes, shall include in the computation
of its gross income the income from the Loan Contracts, shall treat the Notes as
its debt and shall deduct the interest paid or accrued with respect to the Notes
in accordance with its applicable method of accounting for such purposes.
Section 4.03. Assignment of Loan Assets.
The Company understands that the Issuer will assign to and grant to
the Indenture Trustee a security interest in all of its right, title and
interest to this Loan Sale Agreement and the Loan Assets. The Company consents
to such assignment and grants and further agrees that all representations,
warranties, covenants and agreements the Company makes herein shall also be for
the benefit of and inure to the Indenture Trustee, MBIA and all Noteholders from
time to time of the Notes. The Company agrees to execute in favor of the
Indenture Trustee a power of attorney and any other assignments and applications
in form and substance sufficient to allow the Indenture Trustee to assert or
protect its security interest in the Vehicles, including, as may be necessary to
submit for retitling in the Indenture Trustee's name any Certificate of Title to
the applicable Department of Motor Vehicles.
Section 4.04. Limitation on Recourse to Dealers.
(a) With respect to each Loan Contract acquired from a Falk Dealer
by the Company, sold by the Company to the Issuer pursuant to the terms hereof
and Granted to the Indenture Trustee by the Issuer pursuant to the terms of the
Indenture, the Company and the Issuer shall not have the right to, and shall
not, exercise or accept the benefits of any right of recourse the Company or the
Issuer may have against such Falk Dealer that otherwise would permit the Company
or the Issuer to cause such Falk Dealer to pay any amount with respect to such
Loan Contract in the event it becomes a Defaulted Loan Contract, except that
such recourse
27
may be exercised to the extent that all Recoveries in the aggregate paid by the
Falk Dealer after the Cut-Off Date with respect to the related Loan Contracts as
a result of the exercise of such recourse by the Company or the Issuer does not
exceed an amount equal to 10% of the aggregate Loan Balance as of the Cut-Off
Date of all Loan Contracts acquired from such Falk Dealer.
(b) The form of UCC-1 financing statements filed pursuant to Section
2.03(a) hereof shall contain a statement to the effect that recourse to the Falk
Dealer is limited as provided in Section 4.04(a) hereof.
(c) The limitation on recourse provided in Section 4.04(a) hereof
shall be for the benefit of, and shall be enforceable through specific
performance or other remedies available at law or in equity by, the Falk Dealer,
the Indenture Trustee or the Noteholders.
Section 4.05. Termination of Obligations.
The obligations hereunder shall continue in full force and effect
until the later of (i) the termination of the Indenture or (ii) the final
payment with respect to the last Loan Asset.
28
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01. Conditions to the Issuer's Obligations.
The obligations of the Issuer to provide the Company with the
consideration provided for herein shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Company and all
information provided in any Loan Schedule shall be true and correct on the
Closing Date;
(b) On or prior to the Closing Date, the Company shall have
delivered to the Custodian the original Loan Contracts, the Certificates of
Title or the Applications for Certificates of Title and a power of attorney and
such other documents that would be sufficient to permit the Indenture Trustee to
submit for retitling in the Indenture Trustee's name any Certificate of Title,
and there shall have been made all filings, recordings and/or registrations, and
there shall have been given, or taken, any notice or any other similar action,
as may be necessary in the opinion of the Issuer and MBIA, in order to establish
and preserve the right, title and interest of the Issuer in the Loan Assets;
(c) On or prior to the Closing, the Custodian shall have received
the Custodial Files for each Loan Contract;
(d) On or before the Closing Date, the Issuer, the Servicer, the
Back-Up Servicer, the Custodian and the Indenture Trustee shall have entered
into the Indenture and the Servicing Agreement, as applicable;
(e) The Notes shall be issued and sold on the Closing Date and the
Issuer shall receive the full consideration due it upon the issuance of such
Notes;
(f) The Company shall have delivered all other information
theretofore required or reasonably requested by the Issuer to be delivered by
the Company hereunder, duly certified by an officer of the Company, and the
Company shall have substantially performed all other obligations required to be
performed by the provisions of this Loan Sale Agreement; and
(g) No Default, Event of Default, Reserve Account Increase Event,
Re-Liening Trigger or Servicer Event of Default shall have occurred with respect
to any of the Notes.
Section 5.02. Conditions to the Company's Obligations.
The obligations of the Company to enter into this Loan Sale
Agreement on the Closing Date shall be subject to the satisfaction of the
following conditions:
29
(a) The consideration set forth herein shall have been paid or
delivered to the Company simultaneously with the execution of this Loan Sale
Agreement.
30
ARTICLE VI
RESERVED
31
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments.
This Loan Sale Agreement and the rights and obligations of the
parties hereunder may not be changed orally but only by an instrument in writing
signed by the party against which enforcement is sought together with the prior
written consent of the Indenture Trustee and MBIA. Promptly after the execution
of any amendment, the Issuer shall send to the Indenture Trustee, MBIA, the
Custodian, each Noteholder, and each Rating Agency, a conformed copy of each
such amendment.
Section 7.02. Governing Law.
This Loan Sale Agreement shall be construed in accordance with the
internal laws of the State of New York, without regard to choice of law
principles.
Section 7.03. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be delivered or mailed by registered or certified United
States mail, postage prepaid, and addressed, in the case of the Company, to the
Company Address, and in the case of the Issuer, to the Issuer Address. All
notices and demands shall be deemed to have been given either at the time of the
delivery thereof to any officer of the Person entitled to receive such notices
and demands at the address of such Person for notices hereunder, or on the third
day after the mailing thereof to such address, as the case may be. Any Person
may change the address for notices hereunder by giving notice of such change to
the other Person.
Section 7.04. Separability Clause.
Any provisions of this Loan Sale Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 7.05. Assignment.
Except as provided in Section 4.01(a) hereof, this Loan Sale
Agreement may not be assigned or delegated by the Company without the prior
written consent of the Issuer, MBIA and the Indenture Trustee, and may not be
assigned or delegated by the Issuer without the prior written consent of the
Company, MBIA and the Indenture Trustee.
32
Section 7.06. Further Assurances.
Each of the Company and the Issuer agrees to do such further acts
and things and to execute and deliver to the Indenture Trustee and MBIA such
additional assignments, agreements, powers and instruments as are required by
the Indenture Trustee or MBIA to carry into effect the purposes of this Loan
Sale Agreement or to better assure and confirm unto the Indenture Trustee, MBIA
or the Noteholders their rights, powers or remedies hereunder. If any Obligor
shall be in default under any Loan Contract, upon reasonable request from the
Servicer, the Company will take all reasonable steps to assist in enforcing such
Loan Contract and preserving and maintaining title to the Loan Assets and the
rights of the Indenture Trustee, MBIA and the Noteholders therein against the
claims of all persons and parties to the extent the Company is capable of
performing such requested steps and the Servicer determines that the assistance
of the Company is necessary to effect the intent and purposes hereof.
Section 7.07. No Waivers; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
the Issuer or the Company, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise of any
right, remedy, or privilege hereunder preclude any other or further exercise
hereof 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 privilege provided by law.
Section 7.08. Binding Effect; Third Party Beneficiaries.
This Loan Sale Agreement will inure to the benefit of and be binding
upon the parties hereto, and shall inure to the benefit of the Indenture
Trustee, MBIA, the Noteholders, and their respective successors and permitted
assigns as express third party beneficiaries.
Section 7.09. Set-Off.
(a) The Company hereby irrevocably and unconditionally waives all
right of set-off that it may have under contract (including this Loan Sale
Agreement), applicable law or otherwise with respect to any funds or monies of
the Issuer at any time held by or in the possession of the Company.
(b) The Issuer shall have the right to set-off against the Company
any amounts to which the Company may be entitled and to apply such amounts to
any claims the Issuer may have against the Company from time to time under this
Loan Sale Agreement. Upon any such set-off the Issuer shall give notice of the
amount thereof and the reasons therefor.
33
Section 7.10. MBIA Default.
If (i) an MBIA Default occurs and continues unremedied or (ii) if
the Class A Note Balance has been reduced to zero, the Insurance Agreement is
terminated and all amounts due to MBIA have been paid in full, MBIA's right to
consent hereunder and to direct the Indenture Trustee shall be suspended until
remedied and, in such event, in all provisions of this Loan Sale Agreement
wherein MBIA's consent or direction is required or permitted, the consent or
direction of the Controlling Holders shall be required or permitted during such
period of suspension.
Section 7.11. No Petition.
So long as the Indenture remains in effect, for 366 days after the
Final Payment Date, the Company agrees that it shall not file an involuntary
petition or otherwise institute any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceeding under any Federal or
state bankruptcy similar law against the Issuer.
34
IN WITNESS WHEREOF, the Company and the Issuer have caused this Loan
Sale Agreement to be duly executed by their respective officers thereunto duly
authorized as of the date and year first above written.
AUTOINFO FINANCE OF VIRGINIA, INC.
By:__________________________________
Name:
Title:
AUTOINFO RECEIVABLES COMPANY
By:__________________________________
Name:
Title:
EXHIBIT A
Credit and Collection Policy
EXHIBIT B
Form of Loan Contract
EXHIBIT C
Form of Dealer Agreement
EXHIBIT D
Form of CFAW Purchase Agreement
EXHIBIT E
Form of Notice to Obligors
Re: Loan Number _____________:
Dear ____________:
You are hereby notified that AutoInfo Finance of Virginia ("Seller")
has sold, transferred and assigned its interest in the above-referenced loan
(the "Loan") to AutoInfo Receivables Company (the "Purchaser"). AutoInfo Finance
of Virginia, Inc., as servicer (the "Servicer") will continue to service this
Loan on behalf of the Purchaser. Unless you are otherwise notified by the
Purchaser or the Servicer, you should direct all payments to:
[address]
and you should continue to direct all inquiries to:
[address]
Date: ______________ AUTOINFO FINANCE OF VIRGINIA, INC.
By:_________________________________
Name:
Title:
SCHEDULE I
Loan Schedule
See Tab 9
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS............................. 2
Section 1.01. Defined Terms....................................... 2
ARTICLE II
ACQUISITION OF LOAN ASSETS...................... 5
Section 2.01. Conveyance of Loan Assets........................... 5
Section 2.02. Use of Proceeds..................................... 5
Section 2.03. Delivery of Loan Contracts; Filing of Financing
Statements ....................................... 5
Section 2.04. Servicing of Loan Contracts and Vehicles............ 6
Section 2.05. Review of Loan Contracts............................ 6
Section 2.06. Nature of Transfer.................................. 6
Section 2.07. Re-Liening Triggers................................. 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES.................... 8
Section 3.01. Representations and Warranties of the Company....... 8
Section 3.02. Representations and Warranties of the Issuer........ 19
Section 3.03. Purchase of Loan Contracts.......................... 21
Section 3.04. Requirements for Purchase of Loan Contracts......... 21
ARTICLE IV
COVENANTS OF THE COMPANY....................... 23
Section 4.01. Company Covenants................................... 23
Section 4.02. Issuer Covenants.................................... 27
Section 4.03. Assignment of Loan Assets........................... 27
Section 4.04. Limitation on Recourse to Dealers................... 27
Section 4.05. Termination of Obligations.......................... 28
ARTICLE V
CONDITIONS PRECEDENT............................ 29
Section 5.01. Conditions to the Issuer's Obligations.............. 29
Section 5.02. Conditions to the Company's Obligations............. 29
i
Page
----
ARTICLE VI
RESERVED............................... 31
ARTICLE VII
MISCELLANEOUS............................ 32
Section 7.01. Amendments.......................................... 32
Section 7.02. Governing Law....................................... 32
Section 7.03. Notices............................................. 32
Section 7.04. Separability Clause................................. 32
Section 7.05. Assignment.......................................... 32
Section 7.06. Further Assurances.................................. 33
Section 7.07. No Waivers; Cumulative Remedies..................... 33
Section 7.08. Binding Effect; Third Party Beneficiaries........... 33
Section 7.09. Set-Off............................................. 33
Section 7.10. MBIA Default........................................ 34
Section 7.11. No Petition......................................... 34
Exhibit A Credit and Collection Policy
Exhibit B Form of Loan Contract
Exhibit C Form of Dealer Agreement
Exhibit D Form of CFAW Purchase Agreement
Exhibit E Form of Notice to Obligors
Schedule I Loan Schedule
ii