CERTIFICATE PURCHASE AGREEMENT
Dated as of December 8, 1994
among
NAFCO FUNDING TRUST,
NATIONAL AUTO FINANCE COMPANY L.P.,
as initial Administrator
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
TABLE OF CONTENTS
Page
SECTION 1 Definitions....................................................... 1
SECTION 2 Purchase and Sale of the Class B Certificate...................... 2
2.1 The Commitments.............................................. 2
2.2 Purchase Mechanics........................................... 2
2.3 Reduction of Stated Amounts.................................. 3
2.4 Class B Certificates......................................... 4
SECTION 3 Payments.......................................................... 5
SECTION 4 Time and Method of Payment........................................ 5
SECTION 5 Representations and Warranties.................................... 5
5.1 NAFCO........................................................ 5
5.2 National Auto................................................ 6
5.3 Purchaser.................................................... 6
SECTION 6 Conditions........................................................ 7
6.1 Conditions to Initial Purchase............................... 7
6.2 Conditions to Each Purchase.................................. 9
6.3 Condition to Additional Purchases............................ 9
SECTION 7 Covenants......................................................... 9
7.1 Affirmative Covenants........................................ 9
7.2 Negative Covenants........................................... 11
SECTION 8 Miscellaneous Provisions.......................................... 11
8.1 Amendments................................................... 11
8.2 No Waiver; Remedies.......................................... 12
8.3 Successors and Assigns; Assignments.......................... 12
8.4 Survival of Agreement........................................ 13
8.5 Entire Agreement............................................. 13
8.6 Notices...................................................... 13
8.7 Severability of Provisions................................... 14
8.8 Counterparts................................................. 14
8.9 APPLICABLE LAW............................................... 14
8.10 Confidentiality.............................................. 14
8.11 Tax Characterization......................................... 15
8.12 No Proceedings............................................... 15
8.13 Limitation of Liability...................................... 15
8.14 Acknowledgement of Attorney-in-Fact.......................... 16
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EXHIBITS
Exhibit A Form of Pooling and Administration Agreement
Exhibit B Form of Receivables Purchase Agreement
Appendix X Index of Additional Defined Terms
ii
THIS CERTIFICATE PURCHASE AGREEMENT dated as of December 8, 1994 (this
"Agreement") is entered into among NAFCO FUNDING TRUST, a Delaware business
trust ("NAFCO"), NATIONAL AUTO FINANCE COMPANY L.P., a Delaware limited
partnership ("National Auto"), and FIRST UNION NATIONAL BANK OF NORTH CAROLINA
("FUNB") (the "Purchaser").
BACKGROUND
1. NAFCO will enter into (a) a Pooling and Administration Agreement
substantially in the form of Exhibit A (the "Pooling and Administration
Agreement") with National Auto, as Administrator, and Bankers Trust Company, as
trustee (in that capacity, together with any successors in that capacity, the
"Trustee") and (b) a Receivables Purchase Agreement substantially in the form of
Exhibit B. Pursuant to the Pooling and Administration Agreement, NAFCO will
obtain a Series 1994-R Certificates, Class B (the "Class B Certificate"), which
will represent a fractional undivided beneficial interest in the assets of the
NAFCO Auto Receivables Master Trust (the "Trust"), a trust existing under the
Pooling and Administration Agreement.
2. NAFCO wishes to sell the Class B Certificate to the Purchaser and obtain
the commitment of the Purchaser to purchase fractional undivided beneficial
interests in the assets of the Trust ("Trust Interests") which will be evidenced
by the Class B Certificate. Subject to the terms and conditions of this
Agreement, the Purchaser is willing (i) to purchase the Class B Certificate with
an initial Stated Amount in the amount set forth below its name on the signature
pages to this Agreement and (ii) to agree to make purchases, from time to time
in accordance with the terms and conditions hereof, of Trust Interests. National
Auto has joined in this Agreement to confirm certain representations, warranties
and covenants for the benefit of the Purchaser.
AGREEMENT
The parties hereto agree as follows:
SECTION 1 Definitions.
Capitalized terms used and not otherwise defined herein have the meanings
given to them in Appendix A to the Pooling and Administration Agreement and the
Class B Supplement. In addition, this Agreement shall be interpreted in
accordance with the conventions set forth in Parts B, C and D of such
Appendix A.
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SECTION 2 Purchase and Sale of the Class B Certificate.
2.1 The Commitments. Subject to the terms and conditions of this Agreement
and the Pooling and Administration Agreement, the Purchaser hereby purchases the
Class B Certificate and the Trust Interest evidenced thereby for a purchase
price of $1,000,000 (one million dollars) (the "Initial Purchase") and the
Purchaser hereby agrees, upon NAFCO's request, to make additional purchases (the
Initial Purchase and each such additional purchase herein referred to
individually as a "Purchase") of Trust Interests from time to time during the
period from (and including) the date hereof to (but excluding) the Amortization
Commencement Date with respect to the Class B Certificate, provided that the
Purchaser will not be required or permitted to make a Purchase on any date if
the funded principal amount of its Class B Certificate, after giving effect to
such Purchase, would exceed the Stated Amount of the Purchaser's Class B
Certificate, provided further that proceeds of Initial Purchase shall be
deposited into the Excess Funding Account and shall not be available to be
withdrawn from such account until the earlier of (i) April 15, 1995 (the
"Initial Purchase Return Date") or (ii) the date on which the condition
precedent set forth in Section 6.3 hereof is first satisfied. If, on the Initial
Purchase Return Date, the full Initial Purchase remains on deposit, then NAFCO
will cause the Trustee to return to the Purchaser an amount equal to the Initial
Purchase plus all accrued and unpaid interest thereon. Subject to the terms of
this Agreement, the aggregate principal amount of the Purchaser's investment
represented by its Class B Certificate may be increased or decreased from time
to time.
2.2 Purchase Mechanics. (a) Whenever NAFCO wishes the Purchaser to make
Purchases, NAFCO shall cause the Administrator to notify the Purchaser not later
than (i) if the Trust Interests to be purchased will initially form a part of
the Prime Tranche, not later than 3:00 p.m., New York City time, one Business
Day prior to the date of the proposed Purchase and (ii) if the Trust Interests
to be Purchased will initially form all or a part of a Eurodollar Tranche, not
later than 9:00 a.m., New York City time, two Business Days prior to the date of
the proposed Purchase. Each such notice shall be irrevocable and shall in each
case refer to this Agreement and specify (1) the aggregate principal amount for
the requested Purchases (which shall be in a minimum amount of $20,000 or
integral multiple of $20,000 in excess thereof (or in the total unutilized
amount of the Purchaser's Stated Amount), (2) whether the Trust Interests to be
Purchased will form a part of the Prime Tranche or a Eurodollar Tranche, (3) if
the Trust Interest to be Purchased
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will form a part of a Eurodollar Tranche, the Yield Period for such Eurodollar
Tranche, and (4) the date of such Purchase (which shall be a Business Day and,
in the case of any Eurodollar Tranche, shall be a Distribution Date). In
addition to such notice, the Administrator shall deliver a certificate of an
Authorized Officer certifying that no Overcollateralization Deficit exists
(other than in connection with the Initial Purchase). Upon payment of the
purchase price in respect of each Purchase, the outstanding principal amount of
the related Class B Certificate shall be automatically increased by the amount
of that purchase price. The outstanding principal amount of the Class B
Certificate shall be decreased only upon application of Collections to repay
that principal amount (and receipt by the Purchaser of such amounts) in
accordance with the terms of Section 3 hereof and as provided in the Pooling and
Administration Agreement. As used in this Section 2.2, purchase price shall mean
the lesser of (x) the amount specified by NAFCO in its notice of a Purchase
given to the Purchaser in accordance with the first sentence of this Section
2.2(a) and (y) the Stated Amount minus the outstanding principal amount of the
Class B Certificate.
(b) After receiving any notice given pursuant to clause (a), the Purchaser
shall (unless any condition precedent to such Purchase has not been satisfied on
or prior to such date), not later than 4:00 p.m. New York City time on the same
day, make a Purchase in the amount specified by NAFCO pursuant to Section 2.2(a)
by making available to NAFCO by wire transfer of Dollars in immediately
available funds to be deposited into the Excess Funding Account an amount equal
to the purchase price for the requested Purchases.
2.3 Reduction of Stated Amounts. Upon at least 30 Business Days' prior
irrevocable notice to the Purchaser, NAFCO may reduce the Stated Amount of the
Purchaser's Class B Certificate; provided that (i) each partial reduction of the
Stated Amount shall be in an integral multiple of $500,000 and in a minimum
principal amount of $500,000 and (ii) no such partial reduction shall be made
which would reduce the Stated Amount to an amount less than the outstanding
principal amount of the Class B Certificate at the time of such reduction. Each
reference in this Agreement to the "Stated Amount" of a Class B Certificate
means the Stated Amount of such Class B Certificate after giving effect to any
reductions made pursuant to this Section 2.3. Promptly after the Stated Amount
of the Purchaser's Class B Certificate has been reduced to zero (and all
obligations owed to the Purchaser have been repaid in full), the Purchaser will
▇▇▇▇ its Class B Certificate "cancelled" and return it to NAFCO.
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2.4 Class B Certificates. The outstanding amounts of (including principal,
interest and any other amounts in respect of) the Purchases made by the
Purchaser shall be evidenced by a Class B Certificate, to be issued on the
Closing Date substantially in the form of Exhibit A to the Pooling and
Administration Agreement. The Purchaser shall and is hereby authorized to record
on the grid attached to its Class B Certificate (or at the Purchaser's option,
in its internal books and records) the date and principal amount of each
Purchase made by it, the portions of its outstanding Purchases that are made
from time to time, the amount of each repayment of the principal amount
represented by its Class B Certificate and any reductions to the Stated Amount
of its Class B Certificate made pursuant to Section 2.3; provided that failure
to make any such recordation on such grid or records or any error in such grid
or records shall not adversely affect the Purchaser's rights with respect to its
interest in the assets of the Trust and its right to receive interest in respect
of the outstanding principal amount of all Purchases made by the Purchaser. The
Class B Certificate shall bear interest at the Class B Certificate Rate and the
Purchaser shall be entitled to all of the rights of a Certificateholder as set
forth under the Pooling and Administration Agreement.
2.5 Conversion of Tranches. (a) NAFCO shall have the option prior to the
Amortization Commencement Date, on the last day of any Yield Period with respect
to any Tranche to (i) convert all or any part of any such Eurodollar Tranche to
form a part of the Prime Tranche and/or to continue all or any part of such
Eurodollar Tranche as a new Eurodollar Tranche the Yield Period for which shall
commence on the last day of such prior Yield Period, or (ii) convert all or any
part of the Prime Tranche to form all or a part of a Eurodollar Tranche. If
NAFCO wishes to convert and/or continue a Tranche under this Section 2.5, NAFCO
shall notify the Purchaser (i) in the case of a conversion to or continuation of
a Eurodollar Tranche, not later than 9:00 a.m., New York City time, two Business
Days prior to the date of the proposed conversion or continuation Date and (ii)
otherwise, not later than 3:00 p.m., New York City time, one Business Day prior
to the date of the proposed conversion or continuation. Each such notice shall
be irrevocable and shall refer to this Agreement and specify (1) the identity
and amount of the Tranche that NAFCO wishes to convert or continue, (2) whether
such Tranche is to be converted to or continued as a Eurodollar Tranche or all
or part of the Prime Tranche and (3) the date of the proposed conversion or
continuation (which shall be a Business Day). If NAFCO shall not have delivered
a timely notice in accordance with this Section 2.5 with respect to any Tranche,
such Tranche shall, at the end of the Yield Period
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applicable thereto (unless repaid pursuant to the terms hereof), automatically
be converted into or continued as a Eurodollar Tranche with a Yield Period
concluding on the next succeeding Distribution Date.
(b) Commencing with the first Distribution Date occurring on or after the
Amortization Commencement Date, each outstanding Tranche, upon conclusion of the
Yield Period for such Tranche that was in effect as of the Amortization
Commencement Date, shall automatically continue as or convert to a Eurodollar
Tranche with a Yield Period that commences on the Distribution Date on which
such Yield Period concludes and on each succeeding Distribution Date and
concludes on the Distribution Date next succeeding the Distribution Date on
which the applicable Yield Period commenced.
SECTION 3 Payments
Interest and principal shall be distributed to the holders of the Class B
Certificates at the times described in, and in the amounts calculated pursuant
to, Article IV of the Pooling and Administration Agreement and the Class B
Supplement.
SECTION 4 Time and Method of Payment.
All amounts payable to the Purchaser hereunder or with respect to its Class
B Certificate shall be made to the Purchaser by wire transfer of immediately
available funds into the Excess Funding Account on the date due. Any funds
received after that date will be deemed to have been received on the next
Business Day.
SECTION 5 Representations and Warranties.
5.1 NAFCO. NAFCO represents and warrants to the Purchaser that, as of the
date hereof and the date of each Purchase, each of NAFCO's representations and
warranties in the Pooling and Administration Agreement and Purchase Agreement
are true and correct and further represents and warrants that:
(a) no Amortization Event or Unmatured Amortization Event has occurred
and is continuing;
(b) no Administrator Default or unmatured Administrator Default has
occurred and is continuing;
(c) the offer and sale of the Class B Certificate in the manner
contemplated by this Agreement is a
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transaction exempt from the registration requirements of the Securities
Act; and the Pooling and Administration Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended; and
(d) the Class B Certificate has been duly and validly authorized and,
when executed by NAFCO and authenticated by the Trustee and paid for
hereunder, shall be validly issued and outstanding and entitled to the
benefits of the Pooling and Administration Agreement.
5.2 National Auto. National Auto represents and warrants to the Purchaser
that, as of the date hereof and the date of each Purchase, each of National
Auto's representations and warranties in the Pooling and Administration
Agreement (in its capacity as Administrator) and the Purchase Agreement (in its
capacity as Seller) is true and correct (taking into account materiality
standards included in each such representation and warranty).
5.3 Purchaser. The Purchaser represents and warrants to NAFCO, as of the
date hereof, that:
(a) it has had an opportunity to discuss NAFCO's and the
Administrator's business, management and financial affairs, and the terms
and conditions of the proposed purchase, with NAFCO and the Administrator
and their respective representatives;
(b) it is an "accredited investor" within the meaning of Rule
501(a)(1) of Regulation D under the Securities Act and has sufficient
knowledge and experience in financial and business matters to be capable of
evaluating the merits and risks of investing in, and is able and prepared
to bear the economic risk of investing in, the Class B Certificate;
(c) it is purchasing the Class B Certificate for its own account, or
for the account of one or more "accredited investors" within the meaning of
Rule 501(a)(1) of Regulation D under the Securities Act which meet the
criteria described in clause (b) above and for which it is acting with
complete investment discretion, for investment purposes only and not with a
view to distribution, subject, nevertheless, to the understanding that the
disposition of its property shall at all times be and remain within its
control;
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(d) it understands that the Class B Certificate has not been and will
not be registered or qualified under the Securities Act or any applicable
state securities laws or the securities laws of any other jurisdiction and
are being offered only in a transaction not involving any public offering
within the meaning of the Securities Act, and that the Certificates
initially will bear the legend set out in the form of Class B Certificate
attached as Exhibit A to the Pooling and Administration Agreement and be
subject to the restrictions on transfer described in Section 6.03 of the
Pooling and Administration Agreement; and
(e) it is not (i) an "Employee Benefit Plan" (as defined in Section
3(3) of (ERISA) that is subject to the provisions of Title I of ERISA, (ii)
a "Plan" described in Section 4975(E)(1) of the Internal Revenue Code or
(iii) an entity whose underlying assets include plan assets by reason of an
"Employee Benefit Plan's" or "Plan's" investment in the entity.
SECTION 6 Conditions.
6.1 Conditions to Initial Purchase. The obligations of the Purchaser to
make its Initial Purchase shall be subject to the satisfaction of the condition
precedent that it shall have received (x) payment of $150,000 by wire transfer
of immediately available funds to the account designated by the Purchaser, (y) a
duly executed and authenticated Class B Certificate registered in the name of
the Purchaser and in a Stated Amount equal to the amount set out opposite the
Purchaser's name on the signature page of this Agreement, and (z) an original
(except as indicated below) of the following (each of which, if not in a form
attached to this Agreement, shall be in form and substance satisfactory to the
Purchaser):
(a) a certificate of an Authorized Officer of NAFCO and a certificate
of an officer of National Auto, each to the effect that (i) each of the
Pooling and Administration Agreement and the Purchase Agreement and the
Servicing Agreement, is in full force and effect, and all actions required
to be taken and conditions required to be satisfied under those documents
in connection with the issuance of the Class B Certificate have been taken
or satisfied, as the case may be (and not waived, without the consent of
the Purchaser) and (ii) all representations and warranties set forth
therein are true and correct;
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(b) a certificate of an Authorized Officer of NAFCO and a certificate
of the Secretary, or an Assistant Secretary, of the Administrator with
respect to:
(i) the incumbency and signatures of those of its officers,
authorized to act with respect to the Transaction Documents;
(ii) attached copies of the Limited Partnership Agreement and the
NAFCO Trust Agreement; and
(iii) attached good standing (or equivalent) certificates;
(c) a certificate of an Authorized Officer of each of NAFCO and the
Administrator as to the satisfaction of the conditions precedent set forth
in Section 6.2 below;
(d) opinions addressed to the Purchaser, of (i) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special counsel to NAFCO and the Administrator as to (A) corporate matters
(including NAFCO's and Master Trust's security interest in the Receivable),
(B) "true sale" issues and (C) "non-substantive consolidation", (ii) ▇▇▇▇▇
▇▇▇▇▇▇, General Counsel of National Auto as to certain corporate matters,
(iii) an opinion of Weil, Gotshal & ▇▇▇▇▇▇, in the form of Exhibit C hereto
as to the characterization of the Trust for purposes of federal income tax
laws, (iv) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Master Trustee
and (v) an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the NAFCO
Trustee;
(e) confirmation by the Trustee of (i) delivery by NAFCO and receipt
by the Trust of cash and/or Receivables in an amount such that the sum of
such cash, if any, and the outstanding principal balance of such
Receivables, if any, is not less than $100,000 and (ii) deposit in the
Excess Funding Account of any cash, receipt which is confirmed pursuant to
the preceding clause (i);
(f) confirmation by the Trustee of the establishment of Trust
Accounts;
(g) evidence that UCC-1 financing statements are being filed in the
office of the Secretary of States of Delaware and Florida reflecting the
transfer of the interest of the Seller in the Receivables and the proceeds
thereof to NAFCO and the transfer of such interest by NAFCO to the Trust;
and
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(h) the fully executed Limited Partnership Agreement.
6.2 Conditions to Each Purchase. The obligation of the Purchaser to make
any Purchase on any day (including those comprising the Initial Purchase) shall
be subject to the condition precedent that on the date of such Purchase, before
and after giving effect thereto and to the application of any proceeds
therefrom, the following statements shall be true:
(a) the representations and warranties of NAFCO and the Administrator
set out or incorporated by reference in this Agreement are true and
accurate (taking into account materiality standards included in each such
representation and warranty) as of such date with the same effect as though
made on such date (unless specifically stated to relate to an earlier
date);
(b) the Amortization Commencement Date shall not have occurred, and no
Unmatured Amortization Event has occurred and is continuing;
(c) no Administrator Default or unmatured Administrator Default has
occurred and is continuing; and
(d) no Overcollateralization Deficit exists.
The giving of any notice pursuant to Section 2.2 shall constitute a
representation and warranty by NAFCO and the Administrator that the foregoing
statements (limited, in the case of clause (a) to the representations and
warranties of the Person deemed to make the representation and warranty referred
to in this sentence) are true.
6.3 Condition to Additional Purchases. The obligation of the Purchaser to
make any Purchase following the Initial Purchase shall be subject to the
condition precedent that there shall have been transferred to the Trust cash
and/or Receivables with an aggregate value of $5,000,000 (inclusive of
Receivables transferred to the Trust evidenced by the written confirmation
delivered pursuant to Section 6.1 hereof).
SECTION 7 Covenants.
7.1 Affirmative Covenants. NAFCO and the Administrator each severally
covenants and agrees that, until the Certificates have been paid in full and the
obligation of the Purchaser to make Purchases has terminated it will:
9
(a) duly and timely perform all of its covenants and obligations under
each Transaction Document to which it is a party;
(b) promptly deliver to the Purchaser (in addition to the materials
required to be delivered pursuant to the Pooling and Administration
Agreement) such information, documents, records or reports respecting the
Trust or the condition or operations, financial or otherwise, of NAFCO and
the Administrator, as the Purchaser may from time to time reasonably
request (including all information required to be provided to a holder or
prospective holder of a Class B Certificate pursuant to Rule 144A(d)(4) of
the Securities Act);
(c) at the same time any report, document or notice (including any
annual auditors' report) is provided to the Trustee, or caused to be
provided, by NAFCO or the Administrator under the Pooling and
Administration Agreement, provide the Purchaser with a copy of such report,
document or notice;
(d) permit representatives of the Purchaser, at any time during the
Calculation Period immediately following the Calculation Period in which
the number of Receivables purchased pursuant to the Purchase Agreement
first exceeds (i) 100, (ii) 500 and (c) each increment of 1000 in excess of
500, during normal business hours and upon at least three Business Days'
prior written notice, to examine and make copies of and abstracts from its
records relating to the Receivables;
(e) deliver or cause to be delivered to the Purchaser, (x) within 120
days after the end of each fiscal year of National Auto, the consolidated
balance sheet of National Auto and its Consolidated Subsidiaries as at the
end of such fiscal year and the related statements of earnings,
stockholders' equity and cash flow of National Auto and its Consolidated
Subsidiaries for such fiscal year, prepared in accordance with GAAP
consistently applied throughout the periods reflected therein, certified by
[KPMG Peat Marwick] (or such other independent certified public accountants
of nationally recognized standing as shall be selected by National Auto;
and (y) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of National Auto, copies of the unaudited
consolidated balance sheets of National Auto and its Consolidated
Subsidiaries as at the end of such fiscal
10
quarter and the related unaudited statements of earnings, stockholders'
equity and cash flow, in each case for such fiscal quarter and for the
period from the beginning of such fiscal year through the end of such
fiscal quarter, prepared in accordance with GAAP consistently applied
throughout the periods reflected therein and certified (subject to year end
adjustments) by the chief financial officer or chief accounting officer of
National Auto.
7.2 Negative Covenants. NAFCO and the Administrator each severally
covenants and agrees that the Pool Balance shall not exceed the amounts set
forth below as of the end of the corresponding Calculation Period:
April 1995 $ 15,000,000
October 1995 43,000,000
April 1996 70,000,000
October 1996 98,000,000
April 1997 130,000,000
October 1997 165,000,000
SECTION 8 Miscellaneous Provisions.
8.1 Amendments. No amendment to or waiver of any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by NAFCO and holders of more than 50% of the outstanding principal
amount of the Class B Certificate; provided, however, that (i) this Agreement
may not be amended unless NAFCO shall have delivered the proposed amendment to
the Applicable Rating Agency at least ten Business Days (or such shorter period
as shall be acceptable to it) prior to the execution and delivery thereof and
the Rating Agency Condition has been satisfied with respect to such amendment
and (ii) no amendment shall (w) reduce the amount of or delay the timing of any
distributions to be made to the Class B Certificateholders or deposits of
amounts to be so distributed without the consent of each Class B
Certificateholder, (x) change the definition of or the manner of calculating the
interest of any Class B Certificateholder without the consent of each affected
Class B Certificateholder and (y) reduce the aforesaid percentage required to
consent to any such amendment without the consent of each Class B
Certificateholder amendments require 100% approval of the Class B
Certificateholders. Each holder of a Certificate shall be bound by any
modification waiver or consent authorized by this Section 8.1, whether or not
such Certificate shall have been marked to indicate such modification, waiver or
consent.
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8.2 No Waiver; Remedies. Any waiver, consent or approval given by the
Purchaser shall be effective only in the specific instance and for the specific
purpose for which given, and no waiver by the Purchaser of any breach or default
of or by NAFCO under this Agreement shall be deemed a waiver of any other breach
or default. No failure on the part of the Purchaser to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder, or any abandonment or
discontinuation of steps to enforce such right, power or privilege, preclude any
other or further exercise thereof or the exercise of any other right. No notice
to or demand on NAFCO in any case shall entitle NAFCO to any other or further
notice or demand in the same, similar or other circumstances. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law
(and subject to Section 8.13).
8.3 Successors and Assigns; Assignments. (a) This Agreement shall be
binding upon, and inure to the benefit of, NAFCO, the Administrator, the
Purchaser and their respective successors and assigns; provided, however, that
neither NAFCO nor the Administrator may assign its rights or obligations
hereunder or in connection herewith or any interest herein (voluntarily, by
operation of law or otherwise) without the prior written consent of the holders
of at least 66-2/3% of the outstanding Class B Certificates; and, provided,
further, that the Purchaser may not transfer, pledge, assign, sell
participations in or otherwise encumber its rights or obligations hereunder or
in connection herewith or any interest herein except as permitted under this
Section 8.3.
(b) The Purchaser may at any time sell to one or more banks or other
entities ("Participants") participating interests in all or any portion of its
Certificate and its obligations hereunder. In the event of any such sale by the
Purchaser of participating interests to a Participant, the Purchaser shall
notify NAFCO of the identity of such Participant upon a request by NAFCO, the
Purchaser's obligations under this Agreement shall remain unchanged, the
Purchaser shall remain solely responsible for the performance thereof, and the
Purchaser shall remain the holder of its rights under its Class B Certificate
and this Agreement for all purposes under this Agreement. The Purchaser agrees
that any agreement between the Purchaser and any Participant in respect of such
participating interest shall not restrict the Purchaser's right to agree to any
amendment, supplement or modification of the Transaction Documents except to
extend the final maturity of any Obligation, reduce the rate or extend the time
of payment of interest thereon or any fees owed
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to the Purchaser under this Agreement or any of the other Transaction Documents
or reduce the principal amount of any Obligation.
(c) Subject to Section 8.11, NAFCO and National Auto each authorize the
Purchaser to disclose to any Participant (each, a "Transferee") and any
prospective Transferee and any prospective Transferee any and all information in
the Purchaser's possession concerning NAFCO, National Auto and any Subsidiary of
National Auto which has been delivered to the Purchaser by NAFCO, National Auto
or the Trustee in connection with the Purchaser's credit evaluation of the Trust
prior to entering into this Agreement.
(d) Notwithstanding any other provisions set forth in this Agreement, the
Purchaser may at any time create a security interest in all or any portion of
its rights under this Agreement and its Class B Certificate in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
8.4 Survival of Agreement. All covenants, agreements, representations and
warranties made herein and in the certificates delivered pursuant hereto shall
survive the making and the repayment of the Purchases and the execution and
delivery of this Agreement and any Class B Certificates and shall continue in
full force and effect until the Class B Certificates have been paid in full and
all Commitments terminated.
8.5 Entire Agreement. This Agreement, together with the other Transaction
Documents, including the exhibits and schedules thereto, contains a final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, superseding all
previous oral statements and other writings with respect thereto.
8.6 Notices. All communications hereunder shall be in writing (except that
notices pursuant to Section 2 may be given by telephone promptly confirmed in
writing or by telecopy) and shall be deemed to have been duly given if
personally delivered, sent by overnight courier or mailed by registered mail,
postage prepaid and return receipt requested, or transmitted by telex, telegraph
or telecopier and confirmed by a similar mailed writing to any party at the
address for such party set forth on the signature pages to this Agreement or in
each case to such other address as such party may designate in writing.
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8.7 Severability of Provisions. Any covenant, provision, agreement or term
of this Agreement that is prohibited or is held to be void 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.
8.8 Counterparts. This Agreement may be executed in counterparts, which may
include facsimile counterparts, each of which shall constitute an original, but
all of which shall together constitute one instrument.
8.9 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
8.10 Confidentiality. The Purchaser agrees to use reasonable efforts to
keep confidential all non-public information pertaining to NAFCO, National Auto
and any subsidiary of National Auto that is provided to it by any such parties
and that an officer of NAFCO has requested in writing be kept confidential, and
shall not intentionally disclose such information to any Person except (i) to
the extent such information is public when received by the Purchaser or becomes
public thereafter due to the act or omission of any party other than the
Purchaser, (ii) to the extent such information is independently obtained from a
source other than one of NAFCO, National Auto and any subsidiary of National
Auto and such information from such source is not, to the Purchaser's knowledge,
subject to an obligation of confidentiality or, if such information is subject
to an obligation of confidentiality, that disclosure of such information is
permitted, (iii) to counsel, auditors or accountants or other advisors and
agents retained by the Purchaser or any other Person, (iv) in connection with
any litigation to which the Purchaser or any other Person is a party or the
enforcement of the rights of the Purchaser under this Agreement or any other
Transaction Document or otherwise, (v) to the extent required by any applicable
statute, rule or regulation or court order (including, by way of subpoena) or
pursuant to the request of any regulatory or governmental authority having
jurisdiction over the Purchaser, or (vi) to the extent disclosure to other
entities is appropriate or advisable in connection with any proposed or actual
assignment or grant of a participation by the Purchaser of any interest in this
Agreement and/or its Class B Certificate to such other financial institutions
(who will in turn be required to maintain confidentiality as if they were
Purchasers parties to this Agreement).
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8.11 Tax Characterization. Each party to this Agreement (a) acknowledges
and agrees that it is the intent of the parties to this Agreement that, for
federal, state and local income and franchise tax purposes, the Class B
Certificates will be treated as evidence of indebtedness secured by the Trust
Assets and the Trust not be characterized as an association taxable as a
corporation, (b) agrees to treat the Class B Certificates for federal, state and
local income and franchise tax purposes as indebtedness and (c) agrees that the
provisions of this Agreement and all related Transaction Documents shall be
construed to further these intentions of the parties.
8.12 No Proceedings. Each of National Auto and the Purchaser hereby agrees
that it will not institute against NAFCO or the Trust, or join any other Person
in instituting against NAFCO or the Trust any insolvency proceeding (namely, any
proceeding of the type referred to in the definition of "Event of Bankruptcy")
so long as any Class B Certificates issued by the Trust shall be outstanding or
there shall not have elapsed one year plus one day since the last day on which
any such Certificates shall have been outstanding. The foregoing shall not limit
the right of National Auto to file any claim in or otherwise take any action
with respect to any insolvency proceeding that was instituted against NAFCO or
the Trust by any Person other than National Auto. In addition, each of the
foregoing parties agrees that all amounts owed to them by the Trust or NAFCO
shall be payable solely from amounts that become available for such payment
pursuant to the Pooling and Administration Agreement, and no such amounts shall
constitute a claim against the Trust or NAFCO to the extent that they are in
excess of the amounts available for their payment.
8.13 Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by The Chase
Manhattan Bank (USA), not individually or personally but solely as trustee of
NAFCO, in the exercise of the powers and authority conferred and vested in it,
(b) each of the representations, undertakings and agreements herein made on the
part of NAFCO is made and intended not as personal representations, undertakings
and agreements by The Chase Manhattan Bank (USA) but is made and intended for
the purpose for binding only NAFCO and (c) under no circumstances shall The
Chase Manhattan Bank (USA) be personally liable for the payment of any
indebtedness or expenses of NAFCO or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by NAFCO
under this Agreement or the other Transaction Documents.
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8.14 Acknowledgement of Attorney-in-Fact. The parties hereto acknowledge
that National Auto, as Administrator pursuant to the terms of the Pooling and
Administration Agreement, has been granted the power to act as attorney-in-fact
of NAFCO with respect to certain of NAFCO's duties and obligations under the
Transaction Documents, but not including those duties or obligations
specifically required by the terms of this Agreement or any of the Transaction
Documents to be performed by NAFCO.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers and delivered as of the day and
year first above written.
NAFCO FUNDING TRUST
a Delaware business trust
By: THE CHASE MANHATTAN BANK (USA)
not in its individual capacity,
but solely as Owner Trustee under
the First Amended and Restated
Trust Agreement dated as of
December __, 1994
By: _______________________________
Name:
Title:
Notice Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopy:
NATIONAL AUTO FINANCE COMPANY L.P.
By: NATIONAL AUTO FINANCE CORPORATION,
as General Partner
By: __________________________________
Name:
Title:
Notice Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopy:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: ___________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Notice Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Stated Amount: $25,000,000
Percentage: 100%