Exhibit 4.6
EXECUTION
COPY
TRANSFEROR CERTIFICATE PURCHASE AGREEMENT
between
A.I. RECEIVABLES CORP.,
as Seller
and
A.I. RECEIVABLES TRANSFER CORP.,
as Purchaser
Dated as of NOVEMBER 8, 1999
NY2:\814438\14\HGF@14!.DOC\11278.0005
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TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS.....................................................................................1
Section 1.1 Definitions................................................................................1
Section 1.2 Other Definitional Provisions..............................................................3
ARTICLE II PURCHASE AND CONVEYANCE OF COLLATERAL...........................................................4
Section 2.1 Purchase...................................................................................4
ARTICLE III CONSIDERATION AND PAYMENT.......................................................................5
Section 3.1 Purchase Price.............................................................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................5
Section 4.1 Representations and Warranties of the Seller Relating to the Seller's Power and Authority..5
Section 4.2 Representations and Warranties of the Seller Relating to the Agreement and the Transferor
Certificate................................................................................7
Section 4.3 Representations and Warranties of the Purchaser...........................................10
ARTICLE V COVENANTS......................................................................................11
Section 5.1 Seller Covenants..........................................................................11
ARTICLE VI REPURCHASE OBLIGATION..........................................................................13
Section 6.1 Repurchase of the Transferor Certificate..................................................13
Section 6.2 Payments Due on Ineligible Underlying Receivables.........................................13
ARTICLE VII TERM AND PURCHASE TERMINATION..................................................................14
Section 7.1 Term......................................................................................14
ARTICLE VIII MISCELLANEOUS PROVISIONS.......................................................................14
Section 8.1 Amendment.................................................................................14
Section 8.2 GOVERNING LAW.............................................................................14
Section 8.3 Notices...................................................................................15
Section 8.4 Severability of Provisions................................................................15
Section 8.5 Agreement of Seller.......................................................................15
Section 8.6 Further Assurances........................................................................15
Section 8.7 No Waiver; Cumulative Remedies............................................................15
Section 8.8 Counterparts..............................................................................16
Section 8.9 Binding; Third-Party Beneficiary..........................................................16
Section 8.10 Merger and Integration....................................................................16
Section 8.11 Headings..................................................................................16
Section 8.12 Schedules and Exhibits....................................................................16
Section 8.13 Survival of Representations and Warranties................................................16
Section 8.14 Waiver of Trial by Jury...................................................................16
Section 8.15 No Petition...............................................................................16
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TRANSFEROR CERTIFICATE PURCHASE AGREEMENT, dated as of
NOVEMBER 8, 1999, by and among A.I. Receivables Corp., a Delaware corporation
("AIR"), as seller (the "Seller") and A.I. Receivables Transfer Corp., a
Delaware corporation (together with its successors, "ART"), as a purchaser (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser desires to purchase, from the
Seller, the Transferor Certificate (as defined herein);
WHEREAS, the Seller desires to sell the Transferor
Certificate to the Purchaser upon the terms and conditions hereinafter set
forth;
WHEREAS, it is contemplated that the Transferor Certificate
purchased hereunder will be transferred by the Purchaser to AIG Credit Premium
Finance Master Trust (the "Trust"); and
WHEREAS, the Seller agrees that all covenants and
agreements made by the Seller herein with respect to the Transferor Certificate
shall also be for the benefit of Bank One, National Association, a national
banking association, as indenture trustee (the "Trustee"), and all Noteholders.
NOW, THEREFORE, it is hereby agreed by and among the Seller
and the Purchaser as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Each capitalized term used herein
or in any Conveyance Paper, and not defined herein or therein, shall have the
meaning specified in the Base Indenture and the Sale and Servicing Agreement. In
addition, the following words and phrases shall have the following meanings:
"Agreement" means this Transferor Certificate Purchase
Agreement and all amendments hereof and supplements hereto.
"AIR" has the meaning specified in the Preamble
"AIR Trust" means AIC Premium Finance Loan Master Trust
created pursuant to the Pooling and Servicing Agreement.
"Air Trust Provisions" has the meaning specified in the
Sale and Servicing Agreement.
"ART" has the meaning specified in the Preamble.
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"Base Indenture" means the Base Indenture, dated as of the
date hereof, between the Trust and the Trustee.
"Closing Date" means November 8, 1999.
"Conveyance" has the meaning specified in Section 2.1(a).
"Conveyance Papers" has the meaning specified in Section
4.1(c).
"Ineligible Receivable" has the meaning specified in the
Sale and Servicing Agreement.
"Pooling and Servicing Agreement" has the meaning specified
in the Base Indenture.
"Purchase Price" has the meaning specified in Section 3.1.
"Purchaser" has the meaning specified in the Preamble.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of the Closing Date, by and among AIG Credit Premium Finance
Master Trust, a Delaware business trust, as issuer (the "Issuer" or "Trust"),
Chase Manhattan Bank Delaware, a Delaware banking corporation, as owner trustee
of the Issuer (the "Owner Trustee"), A.I. Receivables Transfer Corp., a Delaware
corporation, as seller (the "Seller"), The First National Bank of Chicago, as
trustee (the "Trustee") and AIC, AICCO, Imperial Premium Finance, Inc., a
Delaware corporation ("IP Finance I"), Imperial Premium Finance, Inc., a
California corporation ("IP Finance II") and Imperial Premium Funding, Inc., a
Delaware corporation ("IP Funding", and together with each of AIC, AICCO, IP
Finance I and IP Finance II, each separately and collectively, the "Servicer"
and the "Originators") and all amendments and supplements thereto.
"Seller" has the meaning specified in the Preamble.
"Seller Required Time" means, with respect to any breach of
representation or warranty, the earlier of:
(i) the 60th day (or such later day, not to
exceed the 120th day, as may be agreed by the Trustee in
its sole discretion) from the earlier to occur of (A) the
discovery of such breach and the related Requisite Effect
by the Seller or (B)receipt by the Seller of written notice
of such breach and effect given by the Trustee, and
(ii) if such breach of a representation or
warranty relates to Section 4.2(a), 4.2(b)(ii) or
4.2(b)(vi), the date on which a Pay Out Event shall occur
for any Series as result of such breach.
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"Seller Requisite Effect" means any of the following:
(i) with respect to any breach of representation
or warranty, an effected Receivable becomes a
Defaulted Receivable as a result of such breach,
(ii) with respect to any breach of representation
or warranty set forth in Section 4.2(a), 4.2(b)(ii) or
4.2(b)(vi), the interest of the Trustee in any Purchased
Assets shall not be a first priority perfected security
interest, or
(iii) with respect to any breach of a
representation or warranty set forth in 4.1(e), 4.1(g),
4.1(h), 4.2(b)(i) or 4.2(b)(v), such breach has a material
adverse effect on the interests of Noteholders.
"Seller Specified Representation" means a representation or
warranty set forth in any of the following subsections: 4.1(e), 4.1(g), 4.1(h),
4.2(a) or 4.2(b).
"Transferor Certificate" means the certificate representing
an undivided ownership interest in AIC Premium Loan Master Trust, not
represented by any outstanding series of certificates issued by the AIR Trust.
"Trust" means AIG Credit Premium Finance Master Trust, the
trust created by the Master Trust Agreement, dated as of the date hereof between
the Purchaser and Chase Manhattan Bank Delaware, a Delaware banking corporation,
as Owner Trustee.
"Trustee" means Bank One, National Association, a national
banking association, as, and acting in the capacity of, Trustee under the Base
Indenture, or its successor-in-interest, or any successor trustee appointed in
accordance with the Base Indenture.
"Underlying Receivable" has the meaning specified in the
Sale and Servicing Agreement.
Section 1.2 Other Definitional Provisions. Each capitalized
term defined in this Agreement shall have the defined meaning when used in any
certificate, other document, or Conveyance Paper made or delivered pursuant
hereto unless otherwise defined therein.
(a) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement or any Conveyance Paper shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections, Schedules and Exhibits
in or to this Agreement unless otherwise specified.
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(b) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(c) Any reference to each Rating Agency shall apply to any
specific rating agency only if such rating agency is then rating any outstanding
Series.
(d) Unless otherwise specified, references to any amount as
on deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
ARTICLE II
PURCHASE AND CONVEYANCE OF COLLATERAL
Section 2.1 Purchase. By execution of this Agreement, the
Seller hereby transfers, assigns, and otherwise conveys to the Purchaser (the
"Conveyance"), without recourse, all of its respective right, title and interest
in and to the Transferor Certificate (the "Transferor Certificate") and the
Seller's right to receive distributions under the Pooling and Servicing
Agreement as the holder of the Transferor Certificate, including the Seller's
rights under or in connection with the Pooling and Servicing Agreement and
claims in connection therewith against other Persons and all the proceeds of the
foregoing (the "Purchased Assets").
(a) In connection with such Conveyance, the Seller agrees
(i) to record and file, at its own expense, one or more financing statements
(and continuation statements with respect to such financing statements when
applicable) and to take such other action with respect to the Purchased Assets
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect a first priority ownership or security
interest in, and maintain such ownership and perfection of, the Conveyance of
the Purchased Assets from the Seller to the Purchaser on the Closing Date (and
the Purchaser to the Trust, as assignee and to the Trustee, for the benefit of
the Noteholders, as assignee of the Trust if the Purchaser so directs), (ii)
that such financing statements shall name AIR as seller, and ART, as the
purchaser of the Purchased Assets, and the Trustee as assignee, and (iii) to
deliver a file-stamped copy of such financing statements or other evidence of
such filings (excluding continuation statements, which shall be delivered as
filed) to the Purchaser (and to the Trustee) as soon as is practicable after
filing.
(b) It is the intention of the parties hereto that the
conveyance of the Purchased Assets hereunder by the Seller to the Purchaser as
provided in this Section 2.1 be, and be construed as, an absolute sale, without
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recourse, of the Purchased Assets by the Seller to the Purchaser. Furthermore,
it is not intended that such conveyance be deemed a pledge of the Purchased
Assets by the Seller to the Purchaser to secure a debt or other obligation of
the Seller. If, however, notwithstanding the intention of the parties, the
conveyance provided for in this Section 2.1 is determined to be a transfer for
security, then this Agreement shall also be deemed to be a security agreement
within the meaning of Article 9 of the UCC and the Seller hereby grants to the
Purchaser a "security interest" within the meaning of Article 9 of the UCC in
all of the Seller's right, title and interest in and to the Purchased Assets and
all amounts payable with respect thereto after the Closing Date in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, to secure the payment of all amounts due and to become due in respect
of the Purchased Assets and any other amounts owed to the Purchaser hereunder.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price. The purchase price for the
Transferor Certificate and other Purchased Assets to be conveyed by the
Purchaser under this Agreement (the "Purchase Price") shall be payable on the
date of conveyance in an amount equal to 100% of the outstanding principal
amount of Underlying Receivables represented thereby. The Purchase Price to be
paid by the Purchaser with respect to the Transferor Certificate shall be paid
in cash in U.S. dollars in same day available funds on the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Seller
Relating to the Seller's Power and Authority. The Seller hereby represents and
warrants to, and agrees with, the Purchaser as of the date of this Agreement and
each Reaffirmation Date that:
(a) Organization and Good Standing. It is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Delaware and has full power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. It is duly qualified to do business
and is in good standing (or is exempt from such requirement) in any state
required in order to conduct business except where failure to so qualify or be
in good standing would not have a material adverse effect on its business, and
has obtained all necessary licenses and approvals with respect to it and the
conduct of its business required under federal, state and local laws except
where failure to obtain such licenses and approvals would not have a material
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adverse effect on its business or the Purchased Assets or the interests of the
Purchaser or its assigns therein.
(c) Due Authorization. The execution and delivery and
performance of this Agreement and any other certificate, document or instrument
delivered pursuant hereto (such other certificates, documents and instruments,
collectively, the "Conveyance Papers") by it and the consummation of the
transactions provided for in this Agreement have been duly authorized by it by
all necessary corporate action on its part.
(d) No Conflict. The execution and delivery of this
Agreement and the Conveyance Papers, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the fulfillment of
the terms hereof and thereof by it will not conflict with, result in any breach
of, or constitute (with or without notice or lapse of time or both) a default
under, its articles of incorporation or by-laws, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which it is a party
or by which it or any of its properties are bound.
(e) No Violation. The execution and delivery of this
Agreement and the Conveyance Papers, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the fulfillment of
the terms hereof and thereof by it will not conflict with or violate its
articles of incorporation or by-laws or any Requirements of Law applicable to it
or any of its properties.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best of its knowledge, threatened against it
before any Governmental Authority (i) asserting the invalidity of this Agreement
or any of the Conveyance Papers, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the Conveyance
Papers, (iii) seeking any determination or ruling that, in its reasonable
judgment, would materially and adversely affect its performance of its
obligations under this Agreement, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of this
Agreement or any of the Conveyance Papers, (v) seeking to affect adversely the
income tax attributes of the Trust, (vi) that could reasonably be expected to
materially and adversely affect the value of the Purchased Assets or the
interest of the Purchaser therein or (vii) that could reasonably be expected to
otherwise adversely affect the Purchaser or its assigns.
(g) Accuracy of Information. All information heretofore
furnished by it in writing to the Purchaser or the Trustee for purposes of or in
connection with this Agreement or any transactions contemplated hereby is, and
all such information hereafter furnished by it in writing to the Purchaser or
the Trustee will be, true and accurate in every material respect and did not
omit to disclose a material fact with the intent to mislead.
(h) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement and any of the Conveyance Papers, the performance of the transactions
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contemplated by this Agreement or any of the Conveyance Papers, and the
fulfillment of the terms hereof and thereof, have been duly obtained,
effectuated or given and are in full force and effect.
(i) Insolvency. It is not insolvent and no Insolvency Event
with respect to it has occurred, and the transfer of Transferor Certificate by
it to the Purchaser contemplated hereby has not been made in contemplation of
such insolvency or Insolvency Event.
The representations and warranties set forth in this
Section 4.1 shall survive the transfer and assignment of the Transferor
Certificate to the Purchaser. Upon discovery by the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties.
The Seller agrees to cooperate with the Purchaser and the Trustee in attempting
to cure any such breach.
Section 4.2 Representations and Warranties of the Seller
Relating to the Agreement and the Transferor Certificate.
(a) Binding Obligation; Valid Transfer and Assignment. The
Seller hereby represents and warrants to the Purchaser as of the date of this
Agreement and each Reaffirmation Date that:
(i) This Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its
terms, except (A) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general, and (B) as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(ii) Subject to the AIR Trust Provisions, immediately prior to the
transfer hereunder, the Seller was the owner of all right,
title and interest in and to the Purchased Assets and this
Agreement constitutes a valid transfer, assignment and
conveyance to the Purchaser of all of its right, title and
interest in and to the Purchased Assets and such transfer,
assignment and conveyance is perfected and is of first
priority, and will be held by the Purchaser (subject to the
AIR Trust Provisions) free and clear of any Lien, of any
Person (other than those of the Purchaser and its assigns) and
except for Liens (not to exceed $5,000,000 in the aggregate)
for municipal or other local taxes if such taxes shall not at
the time be due and payable or if it shall currently be
contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate
reserves with respect thereto; provided that once any such
Lien is either no longer contested or the appropriate
Governmental Authority has entered a final non-appealable
decision or order in connection therewith, such Lien will no
longer be permitted.
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(iii) All consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by it and the
Purchaser and its assigns in connection with the conveyance of
the Purchased Assets to the Purchaser have been duly obtained,
effected or given and are in full force and effect.
(iv) As of the date of transfer of the Transferor Certificate to
the Purchaser (x) it is not insolvent and (y) it has received
a confirmation from the Rating Agencies that an existing
rating of any outstanding certificates issued by the AIR Trust
will not be reduced or withdrawn as a result of the conveyance
of the Purchased Assets.
(b) Eligibility of Underlying Receivables. The Seller
hereby represents and warrants to the Purchaser, with respect to the Underlying
Receivables as of any Closing Date and as of each date on which Underlying
Receivables are transferred to the AIR Trust that:
(i) Each such Underlying Receivable is an Eligible Receivable as
of the Closing Date or (with respect to Receivables
transferred subsequently) subsequent transfer date.
(ii) Subject to the AIR Trust Provisions, each such Underlying
Receivable has been conveyed to the AIR Trust (x) free and
clear of any Lien of any Person (other than those of the
Purchaser and its assigns and other than Liens for municipal
or other local taxes not in excess of $5,000,000 if such taxes
shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good
faith by appropriate proceedings and shall have set aside on
its books adequate reserves with respect thereto; provided
that once any such Lien is either no longer contested or the
appropriate Governmental Authority has entered a final
non-appealable decision or order in connection therewith, such
Lien will no longer be permitted and (y) in compliance with
all applicable Requirements of Law.
(iii) With respect to each such Underlying Receivable conveyed to
the AIR Trust, all material consents, licenses, approvals or
authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or
given by the Seller, AIC, AICCO, any Third Party Originator or
the Purchaser or its assigns in connection with the
origination and servicing of the related Loans and the
conveyance of the Underlying Receivables to the AIR Trust have
been duly obtained, effected or given and are in full force
and effect.
(iv) As of the closing date for a series of certificates issued by
the AIR Trust, and as of the end of each monthly period during
which Underlying Receivables have been transferred to the AIR
Trust, the related computer file or microfiche list referred
to in the Pooling and Servicing Agreement is an accurate and
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complete listing in all material respects of all Underlying
Receivables as of the applicable cut-off date, or with respect
to additional receivables, as of the end of such monthly
period, and the information contained therein with respect to
the identity of such Underlying Receivables transferred to the
AIR Trust is true and correct in all material respects as of
the end of such monthly period.
(v) With respect to each Underlying Receivable transferred to the
AIR Trust, (x) no selection procedures believed by the Seller
to be materially adverse to the interests of the Trust were
utilized in selecting the Underlying Receivables being
conveyed to the AIR Trust, (y) as of the date of transfer to
the AIR Trust, the Seller was not and will not be insolvent
and (z) as of the date of transfer to the AIR Trust, neither
the Seller nor its Affiliates had received or will receive
notice from any Rating Agency that an existing rating of any
certificates issued by the AIR Trust will be reduced or
withdrawn as a result of the conveyance of the related
Underlying Receivables to the AIR Trust.
(vi) Subject to the AIR Trust Provisions, with respect to each
Underlying Receivable transferred to the AIR Trust, the
Pooling and Servicing Agreement and the related assignment
constituted and will constitute a valid perfected transfer,
assignment and conveyance to the AIR Trust as of the date of
transfer to the AIR Trust, of all right, title and interest in
and such Underlying Receivable and such Underlying Receivable
is held by the AIR Trust free and clear of any Lien of any
Person (other than those of the Purchaser and its assigns)
except for (x) Liens for municipal or other local taxes (not
to exceed $5,000,000 in the aggregate) if such taxes shall not
at the time be due and payable or if it shall currently be
contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate
reserves with respect thereto; provided that once any such
Lien is either no longer being contested or the appropriate
Governmental Authority has entered a final non-appealable
decision or order in connection therewith, such Lien will no
longer be permitted (y) liens permitted under the Pooling and
Servicing Agreement and (z) the Seller's right, if any, to
interest accruing on, and investment earnings, if any, in
respect of the any account, as provided in the Pooling and
Servicing Agreement or a related supplement thereto.
(vii) Each Underlying Receivable shall have created or shall create
a valid, subsisting and enforceable beneficial ownership
interest in the related Premium Finance Obligation in favor of
the related Originator, which has been and will be assigned
pursuant to an agreement by the related Originator to the
Seller, and which in turn has been and shall be assigned by
the Seller to the AIR Trust under the Pooling and Servicing
Agreement. Each Premium Finance Obligation consisting of (i) a
Loan is secured by a first priority security interest in the
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right to receive Unearned Premiums payable by the related
insurer and (ii) a Deferred Payment Obligation creates a first
priority ownership or security interest in the right to
receive the premium payments purported to be conveyed
thereunder.
(viii) Each Underlying Receivable is in full force and effect and
constitutes the legal, valid and binding obligation of the
related Obligor (in the case of a Loan) or insurer (in the
case of a Deferred Payment obligation), enforceable against
such party in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and to general
principles of equity.
(c) Notice of Breach. The representations and warranties
set forth in this Section 4.2 shall survive the transfer and assignment of the
Transferor Certificate to the Purchaser. Upon discovery by the Seller or by the
Purchaser of a breach of any of the representations and warranties set forth in
this Section 4.2, the party discovering such breach shall give prompt written
notice to the other party and the Trust. The Seller hereby acknowledges that the
Purchaser intends to rely on the representations and warranties made hereunder
in connection with representations and warranties made by the Purchaser to
secured parties, assignees or subsequent transferees including but not limited
to transfers made by the Purchaser to the Trust pursuant to the Sale and
Servicing Agreement. The Seller agrees to cooperate with the Purchaser and the
Trustee in attempting to cure any such breach.
Section 4.3 Representations and Warranties of the
Purchaser. As of the Closing Date, the Purchaser hereby represents and warrants
to, and agrees with, the Seller that:
(a) Organization and Good Standing. The Purchaser is a
corporation validly existing in good standing under the laws of the jurisdiction
of its incorporation and has full power and authority to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement and the Conveyance Papers.
(b) Due Authorization. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by the Purchaser by all necessary corporate action on the part of the
Purchaser.
(c) No Conflict. The execution and delivery of this
Agreement and the Conveyance Papers, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the fulfillment of
the terms hereof and thereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which the
Purchaser is a party or by which it or any of its properties are bound.
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(d) No Violation. The execution, delivery and performance
of this Agreement and the Conveyance Papers by the Purchaser and the fulfillment
of the terms contemplated herein and therein applicable to the Purchaser will
not conflict with or violate the Purchaser's charter or by-laws or any
Requirements of Law applicable to the Purchaser.
(e) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Purchaser, threatened
against the Purchaser, before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement or any of the Conveyance Papers, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any of
the Conveyance Papers, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Purchaser, would materially and adversely affect the
performance by the Purchaser of its obligations under this Agreement or any of
the Conveyance Papers or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
or any of the Conveyance Papers.
(f) All Consents Required. All authorizations, consents,
orders or approvals or other action of or registrations or declarations with any
Person or any Governmental Authority required to be obtained, effected or given
by the Purchaser in connection with the execution and delivery by the Purchaser
of this Agreement and the Conveyance Papers and the performance of the
transactions contemplated by this Agreement and the Conveyance Papers by the
Purchaser have been duly obtained, effected or given and are in full force and
effect.
The representations and warranties set forth in this
Section 4.3 shall survive the Conveyance of the Transferor Certificate to the
Purchaser and the termination of the rights and obligations of the Seller and
the Purchaser under this Agreement. Upon discovery by the Seller or the
Purchaser of a breach of any of the representations and warranties set forth in
this Section 4.3, the party discovering such breach shall give prompt written
notice to the other parties and the Trustee.
ARTICLE V
COVENANTS
Section 5.1 Seller Covenants. The Seller hereby covenants
and agrees with the Purchaser as follows:
(a) Transferor Certificate to Be General Intangible. It
will not take any action, nor will it suffer to be taken any action, to cause
the Transferor Certificate, or any Premium Finance Obligation or any Underlying
Receivable to be evidenced by any instrument (as defined in the UCC as in effect
in the States of Delaware, New York and California) unless, the Trustee shall
have possession of the Transferor Certificate. It will not take any action, nor
will it suffer to be taken any action, to cause the Transferor Certificate or
any Underlying Receivable to be anything other than a "general intangible" (as
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defined in the UCC as in effect in the States of Delaware, New York and
California) unless, the Trustee shall have possession of the Transferor
Certificate.
(b) Conveyances and Security Interests. Except for the AIR
Trust Provisions and the conveyances hereunder, it will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien, on the Purchased Assets or any Underlying Receivable, or any
interest therein or on the legal title to the Purchased Assets or any Underlying
Receivable; it will immediately notify the Purchaser of the existence of any
Lien on any of the Purchased Assets or any Underlying Receivable or on the legal
title to the Purchased Assets or any Underlying Receivable; and it shall defend
the right, title and interest of the Trust in, to and under the Purchased Assets
and any Underlying Receivable, whether now existing or hereafter created,
against all claims of third parties claiming through or under it; provided,
however, that nothing in this subsection 5.1(b) shall prevent or be deemed to
prohibit it from suffering to exist upon the Purchased Assets or any Underlying
Receivable (other than those of the Purchaser and its assigns) any Liens for
municipal or other local taxes not in excess of $5,000,000 if such taxes shall
not at the time be due and payable or if it shall currently be contesting the
validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto; provided that once
any such Lien is either no longer contested or the appropriate Governmental
Authority has entered a final non-appealable decision or order in connection
therewith, such Lien will no longer be permitted; provided, further, that it
shall not be prohibited hereby from conveying, assigning, selling, exchanging or
otherwise transferring the Purchased Assets in connection with a transaction
complying with the provisions of Section 7.02 of the Sale and Servicing
Agreement.
(c) Delivery of Collections. If it receives payments, with
respect to the Transferor Certificate or any Underlying Receivable, it agrees to
pay to the Purchaser (or a designee if the Purchaser so directs) all such
payments as soon as practicable after receipt thereof but in no event later than
two Business Days after receipt thereof.
(d) Notice of Liens. It shall notify the Purchaser promptly
after becoming aware of any Lien on the Transferor Certificate or any Underlying
Receivable other than the conveyances hereunder or any Lien for municipal or
other local taxes not in excess of $5,000,000 if such taxes shall not at the
time be due and payable or if it shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto; provided that once any such lien
is either no longer contested or the appropriate Governmental Authority has
entered a final non-appealable decision or order in connection therewith, it
shall notify the Purchaser of such Lien.
(e) Documentation of Transfer. It shall cause to be
executed and delivered to the Purchaser any documents (including financing
statements and/or continuation statements under the UCC) that would be necessary
to fully preserve and protect the Purchaser's (or their designee's) right, title
and interest in and to the Transferor Certificate.
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(f) Sale. It agrees to treat the Conveyance, for financial
accounting purposes, as a sale on all financial statements.
(g) Continuous Perfection. It shall not change its name,
identity or structure in any manner that might cause any financing or
continuation statement filed pursuant to this Agreement to be misleading within
the meaning of Section 9-402(7) of the UCC (or any other then applicable
provision of the UCC) unless it shall have delivered to the Purchaser or its
designees at least 30 days prior written notice thereof and, no later than 30
days after making such change, shall have taken all action necessary or
advisable to amend such financing statement or continuation statement so that it
is not misleading. It shall not change its chief executive office or change the
location of its principal records concerning the Transferor Certificate or
payments with respect thereto unless it has delivered to the Purchaser or its
designees at least 30 days prior written notice of its intention to do so and
has taken such action as is necessary or advisable to cause the interest of the
Purchaser or its designees in the Transferor Certificate to continue to be
perfected with the priority required by this Agreement.
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Repurchase of the Transferor Certificate. In
the event of a breach of any of the representations and warranties set forth in
subsection 4.2(a)(i) having a material adverse effect on the Trust, the
Purchaser, by notice then given in writing to the Seller (and to the Purchaser
and the Servicer, if given by the Noteholders), may direct the Seller to accept
reassignment of the Transferor Certificate within 60 days of such notice (or
within such longer period as may be specified in such notice but in no event
longer than 120 days), and the Seller shall be obligated to accept reassignment
of the Transferor Certificate on a Payment Date specified by the Seller
occurring within such applicable period on the terms and conditions set forth in
the Sale and Servicing Agreement; provided, however, that no such reassignment
shall be required to be made if, at any time during such applicable period, with
respect to a breach of the representation and warranty contained in subsection
4.2 (a)(i), such representation shall then be true and correct in all respects;
provided further, that if as a result of such breach a Series Pay Out Event
shall occur (as specified in a Series Supplement), the Seller shall be obligated
to accept reassignment of all affected Purchased Assets upon the occurrence of
such event.
Section 6.2 Payments Due on Ineligible Underlying
Receivables. In the event that a Seller Specified Representation is breached,
and a Seller Requisite Effect results, then the Seller shall pay to the
Purchaser with respect to such affected Underlying Receivable the amount equal
to the sum of the portion of the Finance Charge Receivables due but not
collected with respect to such Ineligible Receivable represented by the
Transferor Certificate (to the extent not paid to the Trustee) and the principal
balance of such Ineligible Receivable represented by the Transferor Certificate
(to the extent not paid to the Trustee) within the Seller Required Time;
provided, however, that no such payment shall be required to be made, if on any
day within such applicable period, such representations and warranties with
respect to such affected Underlying Receivable shall then be true and correct in
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all respects as if such affected Underlying Receivable had been created on such
day. The obligation of the Seller set forth in this Section shall constitute the
sole remedy respecting any breach of the representations and warranties set
forth in the above-referenced subsection available to the Purchaser.
ARTICLE VII
TERM AND PURCHASE TERMINATION
Section 7.1 Term. This Agreement shall commence as of the
date of execution and delivery hereof and shall continue until the termination
of the Trust as provided in the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement and any Conveyance
Papers and the rights and obligations of the parties hereunder may not be
changed orally, but only by an instrument in writing signed by the Seller and
the Purchaser in accordance with this Section 9.1. This Agreement and any
Conveyance Papers may be amended from time to time by the Seller and the
Purchaser (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein or
in any such other Conveyance Papers, (iii) to add any other provisions with
respect to matters or questions arising under this Agreement or any Conveyance
Papers that shall not be inconsistent with the provisions of this Agreement or
any Conveyance Papers, (iv) to change or modify the Purchase Price, and (v) to
change, modify, delete or add any other obligation of the Seller or the
Purchaser; provided, however, that such action shall not adversely affect in any
material respect the interests of the Trustee or any Noteholder, without the
written consent of the Trustee. Any reconveyance executed in accordance with the
provisions hereof shall not be considered to be an amendment to this Agreement.
Section 8.2 GOVERNING LAW. THIS AGREEMENT AND THE
CONVEYANCE PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS. EACH OF THE PARTIES TO THIS AGREEMENT AND THE
CONVEYANCE PAPERS HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT
HAVING JURISDICTION TO REVIEW THE JUDGMENT THEREOF. EACH OF THE PARTIES HEREBY
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF
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ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY
SUCH COURT.
Section 8.3 Notices. All demands, notices, instructions,
directions and communications (collectively, "Notices") under this Agreement
shall be in writing and shall be deemed to have been duly given if personally
delivered at, mailed by registered mail, return receipt requested, or sent by
facsimile transmission to (i) in the case of AIR, to 160 Water Street, New York,
New York 10038-4922, Attention: President (facsimile no. (212) 428-5515), (ii)
in the case of ART, to 160 Water Street, New York, New York 10038-4922,
Attention: President (facsimile no. (212) 428-5515), (iii) in the case of the
Trustee, to 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Services Division (facsimile no. (312) 407-4656), and
(iv) in the case of any Rating Agency, at the address or telecopy number
provided in the related Supplement.
Section 8.4 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement or any
Conveyance Paper shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, and terms of this Agreement or any
Conveyance Paper and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of any Conveyance Paper.
Section 8.5 Agreement of Seller. The Seller agrees for the
benefit of the Trustee that any amounts payable by the Seller to the Purchaser
hereunder which are to be paid by the Purchaser to the Trustee for the benefit
of the Noteholders shall be paid by the Seller, on behalf of the Purchaser,
directly to the Trustee. Any payment required to be made on or before a
specified date in same-day funds may be made on the prior Business Day in
next-day funds.
Section 8.6 Further Assurances. The Seller and the
Purchaser agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by any
other party more fully to effect the purposes of this Agreement and the
Conveyance Papers, including, without limitation, the execution of any UCC
financing statements or continuation statements or equivalent documents relating
to the Transferor Certificate for filing under the provisions of the UCC or
other law of any applicable jurisdiction.
Section 8.7 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Seller or the Purchaser,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
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Section 8.8 Counterparts. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 8.9 Binding; Third-Party Beneficiary. This
Agreement and the Conveyance Papers will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
The parties hereto intend that the Trustee shall be a third-party beneficiary of
this Agreement.
Section 8.10 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Conveyance Papers. This Agreement and the Conveyance Papers may not be
modified, amended, waived or supplemented except as provided herein.
Section 8.11 Headings. The headings set forth herein are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 8.12 Schedules and Exhibits. The schedules and
exhibits attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
Section 8.13 Survival of Representations and Warranties.
All representations, warranties and agreements contained in this Agreement or
contained in any Conveyance Paper, shall remain operative and in full force and
effect and shall survive conveyance of the Transferor Certificate by the
Purchaser to the Trust pursuant to the Sale and Servicing Agreement and
conveyance by the Trust to the Trustee pursuant to the Base Indenture.
Section 8.14 Waiver of Trial by Jury. To the extent
permitted by applicable law, each of the parties hereto irrevocably waives all
right of trial by jury in any action, proceeding or counterclaim arising out of
or in connection with this assignment or the Related Documents or any matter
arising hereunder or thereunder.
Section 8.15 No Petition. The Seller by entering into this
Receivables Purchase Agreement hereby covenants and agrees that it will not at
any time institute against the Purchaser, or join in any institution against the
Purchaser of, any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating to
this Receivables Purchase Agreement.
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IN WITNESS WHEREOF, the Seller and the Purchaser have
caused this Transferor Certificate Purchase Agreement to be duly executed by
their respective officers as of the day and year first above written.
A.I. RECEIVABLES CORP.,
as Seller
By: /s/ Michael D. Vogen
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Name: Michael D. Vogen
Title: Vice President
A.I. RECEIVABLES TRANSFER CORP.,
as Purchaser
By: /s/ Michael D. Vogen
------------------------------------
Name: Michael D. Vogen
Title: Vice President
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