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EXHIBIT 10.114
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ASSIGNMENT AGREEMENT
BETWEEN
BANKERS TRUST COMPANY,
AS TRUSTEE OF THE NATIONAL FINANCIAL
AUTO RECEIVABLES MASTER TRUST
AND
NATIONAL FINANCIAL AUTO FUNDING TRUST II
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DATED AS OF SEPTEMBER 1, 1999
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ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of September 1, 1999 by and
between NATIONAL FINANCIAL AUTO FUNDING TRUST II, a Delaware business trust
("Funding Trust II"), and BANKERS TRUST COMPANY ("Bankers Trust" or the
"Trustee"), not in its individual capacity but solely as Trustee of the National
Financial Auto Receivables Master Trust (the "Master Trust"), under the Amended
and Restated Pooling and Administration Agreement, dated as of December 8, 1994
(as amended and restated, the "Pooling and Administration Agreement"), among
Funding Trust II, as Transferor, National Auto Finance Company, Inc. ("NAFI")
(as successor to National Auto Finance Company L.P.), as Administrator, and
Bankers Trust Company, as Trustee.
W I T N E S S E T H:
In consideration of the mutual covenants herein contained,
Funding Trust II and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
1.1 Incorporation of Definitions. Capitalized terms used but
not defined herein have the meanings ascribed to them in the Pooling and
Administration Agreement.
1.2. Other Definitions. When used in this Agreement, the
following words and phrases shall have the following meanings:
Cut-off Date: As defined in Section 2.1.
Closing Date: September 24, 1999.
Dealer: A dealer who sold a Financed Vehicle and who
originated and assigned the respective Receivable to NAFI or an Originator under
a Dealer Agreement.
Dealer Agreement: Any agreement between NAFI or an Originator,
as applicable, and a Dealer relating to the acquisition of Receivables from a
Dealer by NAFI or an Originator.
Originator: A consumer finance company, depository institution
or other financial institution engaged in the financing of motor vehicle retail
installment sale contracts from which NAFI acquired Receivables; provided,
however, that "Originator" shall not include any Dealer.
Originator Agreement: An agreement pursuant to which NAFI
acquired Receivables from an Originator.
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Outstanding Principal Balance: As of any date and with respect
to any Receivable, the outstanding principal balance of such Receivable as of
such date, which shall be computed by reducing the original principal balance of
such Receivable by the principal portion of each payment received and processed
by the Servicer on or before such date.
Purchase Price: As defined in Section 2.1.
Receivable Assets: The assets described in clauses (i) through
(ix), inclusive, of subsection 2.1 hereof.
Related Security: means, with respect to any Receivable, the
interest of the Trustee in (i) the security interest in the Financed Vehicles
granted by the Obligors of the Receivables and any accessions thereto and (ii)
physical damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors (including any blanket vendor's single
interest insurance policy).
Receivables Schedule: The schedule of Receivables attached as
Schedule A hereto, such schedule identifying each Receivable by name of the
Obligor and setting forth as to each Receivable its Outstanding Principal
Balance as of the Cut-off Date, loan number, interest rate, scheduled monthly
payment of principal and interest, final maturity date and original principal
amount.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase. Subject to and on the terms and conditions set
forth herein (including the receipt of the Purchase Price defined below), the
Trustee hereby sells, transfers, conveys and assigns, on behalf of the Master
Trust, without representation, warranty or recourse, except as specifically set
forth herein all of its right, title and interest in and to (i) the Receivables
identified on the Receivables Schedule attached hereto as Schedule A, (ii) all
monies paid or payable thereunder on or after August 31, 1999 (the "Cut-off
Date"), (iii) the Related Security with respect to each such Receivable, (iv)
all proceeds of the foregoing, including all Collections or Related Security
with respect to such Receivables, or other recoveries applied to repay or
discharge any such Receivable received on or after the Cut-off Date (including
net proceeds of sale or other disposition of repossessed Financed Vehicles that
were the subject of any such Receivable) or other collateral or property of any
Obligor or any other party directly or indirectly liable for payment of such
Receivables, (v) all of its right, title and interest in the Seller Transaction
Documents, (vi) all Records relating to any of the foregoing, (vii) all rights
of the Trustee assigned to the Trustee for the benefit of the Certificateholders
against Dealers pursuant to Dealer Agreements and Originators pursuant to
Originator Agreements, (viii) any other Trust Assets relating to the Receivable
Assets and (ix) the proceeds of the foregoing. Funding Trust II agrees to pay to
the Trustee on the Closing Date as the purchase price (the "Purchase Price") for
the Receivable Assets sold hereunder on such date an amount
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equal to $51,000,000 in immediately available funds to an account at a bank
designated by the Trustee to Funding Trust II.
2.2. Filings. (a) On or prior to the Closing Date, the Master
Trust shall have filed or shall have caused the filing, in the office of the
Secretary of State of New York, the office of the Secretary of State of Florida
and the office of the Secretary of State of Delaware, (i) a UCC financing
statement or statements, appropriate under the Uniform Commercial Code in effect
in New York, Florida or Delaware to reflect the transfer of the Receivable
Assets from the Trustee to Funding Trust II and to protect Funding Trust II's
interest in the Receivable Assets against all other Persons and (ii) amendments
to, and/or terminations of, UCC financing statements, appropriate under the
Uniform Commercial Code in effect in New York, Florida or Delaware to reflect
the release of any liens of the Master Trust in the Receivable Assets. During
the term of this Agreement, the Trustee shall not change its name, identity or
structure or relocate its chief executive office or principal place of business
without first giving 60 days prior written notice to Funding Trust II and
Financial Security Assurance Inc. ("Financial Security") (for so long as any
policy issued by Financial Security is in effect with respect to any securities
issued by Funding Trust II or any trust of which Funding Trust II or National
Financial Auto Funding Trust is depositor or transferor); provided, however,
that Funding Trust II has no right or power to prohibit a change in the
Trustee's name, identity or structure or, subject to the last sentence of this
paragraph, a relocation of, its chief executive office. If any change in the
Trustee's name, identity or structure or the relocation of its chief executive
office or principal place of business would make any financing or continuation
statement or notice of lien filed in connection with this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute, Funding Trust II, shall after the effective date of such change,
promptly file or cause to be filed such amendments as may be required to
preserve and protect Funding Trust II's interest in the Receivable Assets.
Funding Trust II hereby directs the Trustee to deliver cash equal to all such
payments described in Section 2.2(b) to be delivered to ▇▇▇▇▇▇ Trust and Savings
Bank ("▇▇▇▇▇▇ Trust") in its capacity as the Trust Collateral Agent under the
Sale and Servicing Agreement, dated as of September 1, 1999 (the "Sale and
Servicing Agreement"), among National Auto Finance 1999-1 Trust, National
Financial Auto Funding Trust ("Funding Trust I"), NAFI and ▇▇▇▇▇▇ Trust.
(b) On or prior to the Closing Date, the Trustee shall deliver
to Funding Trust II or such other Person as Funding Trust II shall direct cash
equal to all payments received on such Receivables on or after the Cut-off Date
and on or before two Business days prior to the Closing Date. Within two
Business Days after the Closing Date, the Trustee shall deliver to Funding Trust
II or such other Person as Funding Trust II shall direct all other payments
received on such Receivables on or after the Cut-off Date and on or before the
Closing Date.
2.3. No Recourse. The sale and purchase of Receivables and the
other Receivable Assets under this Agreement shall be without recourse to the
Trustee or the Master Trust.
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2.4. True Sales. The Master Trust and Funding Trust II intend
that the transactions contemplated hereby be true sales of the Receivables and
other Receivable Assets by the Trustee to Funding Trust II providing Funding
Trust II with the full benefits of ownership of the Receivables and other
Receivable Assets free and clear of any liens, and neither the Master Trust nor
Funding Trust II intends the transactions contemplated hereby to be, or for any
purpose to be characterized as, a loan from Funding Trust II to the Master
Trust. The Trustee shall reflect sales of the Receivable Assets hereunder on the
books and records maintained by the Trustee with respect to the Master Trust as
sales of assets, and shall treat such sales as sales for all purposes.
2.5. Receipt of Payments after Closing Date. Funding Trust II
shall be entitled to all payments received or receivable with respect to any
Receivable sold and conveyed by the Trustee to Funding Trust II hereunder that
are received on and after the Cut-off Date. If the Trustee receives any payment
on a Receivable belonging to Funding Trust II, the Trustee promptly shall, upon
written request, turn such payment over to ▇▇▇▇▇▇ Trust, as Trust Collateral
Agent under the Sale and Servicing Agreement.
ARTICLE III
MISCELLANEOUS
3.1 Notices. All notices, demands and requests that may be
given or that are required to be given hereunder shall be sent by United States
certified mail, posting prepaid, return receipt requested, to the parties at
their respective addresses as follows:
If to the Trustee:
Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust and Agency Group -
Structured Finance
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
If to Funding Trust II:
National Financial Auto Funding Trust II
c/o Chase Manhattan Bank Delaware, as Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Financial Security Assurance Inc.:
Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Oversight Department
Re: National Auto Finance 1999-1 Trust 7.26%
Automobile Receivables-Backed Notes, Class A
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇,
(▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ Trust and Savings Bank:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Indenture Trust Division
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
3.2. Choice of Law. This Agreement shall be construed in
accordance with the laws of the Sate of New York and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
3.3. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
3.4. Assignment. This Agreement may not be assigned by the
Trustee or Funding Trust II except as contemplated by this Section; provided,
however, that simultaneously with the execution and delivery of this Agreement,
(i) Funding Trust II shall assign all of its right, title and interest hereunder
to Funding Trust I pursuant to that certain Sale Agreement, dated as of
September 1, 1999 between Funding Trust II and Funding Trust I, and (ii) Funding
Trust I shall assign all of such right, title and interest to the National Auto
Finance 1999-1 Trust pursuant to the Sale and Servicing Agreement, as provided
in Section 2.1 of the Sale and Servicing Agreement, to which the Trustee hereby
expressly consents.
3.5. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto and shall also be for the
benefit of Funding Trust I, ▇▇▇▇▇▇ Trust, for the benefit of the Noteholders,
and the Insurer, each of which shall be considered to the third-party
beneficiaries of this Agreement and shall be entitled to rely upon and directly
enforce the provisions of this Agreement. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation hereunder. The
Insurer may disclaim any of its rights and powers under this Agreement upon
delivery of a written notice to the Trustee and Funding Trust II.
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3.6. No Petition. The Trustee hereby agrees not to cause the
filing of a petition in bankruptcy against Funding Trust II until one year and
one day after the maturity of any securities evidencing a beneficial interest in
or secured by Receivable Assets sold, transferred or otherwise conveyed by the
Trustee to Funding Trust II.
3.7. Further Assurances. It is the Trustee's intention to
convey its entire rights, title and interest in the Receivable Assets or other
assets related thereto acquired from Funding Trust II pursuant to the Pooling
and Administration Agreement.
3.8. Limitation of Liability of Funding Trust II Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement has
been executed and delivered by Chase Manhattan Bank Delaware not in its
individual capacity but solely as trustee and in no event shall Chase Manhattan
Bank Delaware, have any liability for the representations, warranties,
covenants, agreements or other obligations of Funding Trust II hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of Funding Trust II.
3.9. Limitation of Liability of Master Trust Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement has
been executed and delivered by Bankers Trust not in its individual capacity but
solely as trustee and in no event shall Bankers Trust, have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Master Trust hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of Master Trust.
3.10. Amendment. This Agreement may be amended in writing by
the parties hereto with the prior written consent of the Control Party, to cure
any ambiguity or to correct any provisions in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement as of the day and year first written above.
NATIONAL FINANCIAL AUTO FUNDING TRUST II
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity,
but solely as trustee of National
Financial Auto Funding Trust II,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NATIONAL FINANCIAL AUTO RECEIVABLES
MASTER TRUST
By: BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Trustee of National Financial Auto
Receivables Master Trust
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Vice President