EXECUTION COPY
AUTORICS II, INC.
Depositor
NAL ACCEPTANCE CORPORATION
Servicer
$36,524,000 6.65% Asset Backed Notes, Class A-1
$ 1,605,000 7.70% Asset Backed Notes, Class A-2
NOTE PURCHASE AGREEMENT
New York, New York
December 20, 1995
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
Autorics II, Inc., a Delaware corporation (the "Depositor") and a
wholly owned subsidiary of NAL Acceptance Corporation, a Florida corporation
("NAL"), proposes to cause NAL Auto Trust 1995-1 (the "Trust") to issue and sell
to you (you are referred to from time to time herein as the "Purchaser")
$36,524,000 principal amount of its 6.65% Asset Backed Notes, Class A-1 (the
"Class A-1 Notes") and $1,605,000 principal amount of its 7.70% Asset Backed
Notes Class A-2 (the "Class A-2 Notes" and, collectively with the Class A-1
Notes, the "Notes"). The assets of the Trust will include a pool of sub-prime
precomputed and simple interest motor vehicle retail installment sale contracts
(the "Receivables"), certain monies received thereon on and after December 1,
1995 (the "Cutoff Date"), Payaheads received thereon prior to the Cutoff Date
but due thereafter, all insurance proceeds and liquidation proceeds with respect
thereto, security interests in the used and new automobiles, light duty trucks
and vans financed thereby, the related Receivables files, the Trust Accounts and
proceeds of the foregoing. The Receivables will be serviced for the Trust by
NAL. The Notes will be issued pursuant to the Indenture to be dated as of
December 1, 1995 (as amended and supplemented from time to time, the
"Indenture") between the Trust and Bankers Trust Company, as indenture trustee
(the "Indenture Trustee"). The Notes will be secured by the assets of the Trust
pursuant to the Indenture. In addition, simultaneously with the issuance and
sale of the Notes, the Trust will also issue $2,006,897.86 principal amount of
its 14.25% Asset Backed Certificates (the "Certificates"). The Certificates will
be
issued pursuant to the Trust Agreement to be dated as of December 1, 1995 (as
amended and supplemented from time to time, the "Trust Agreement"), between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee").
The Certificates will represent fractional undivided interests in the Trust. The
Certificates will be sold pursuant to a purchase agreement dated the date hereof
(the "Certificate Purchase Agreement") between the Depositor and Greenwich
Capital Financial Products, Inc. ("GCFP"). The Notes and the Certificates are
hereinafter referred to collectively as the "Securities."
The sale of the Notes to the Purchaser will be made without
registration of the Notes under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. You have advised the Depositor that you will
offer and sell the Notes purchased by you hereunder in accordance with Section 2
hereof as soon as you deem advisable.
The Trust will acquire the Receivables from the Depositor pursuant to a
Sale and Servicing Agreement to be dated as of December 1, 1995 (as amended and
supplemented from time to time, the "Sale and Servicing Agreement"), among the
Trust, the Depositor and NAL, as servicer. NAL will also agree to perform
certain administrative functions on behalf of the Trust pursuant to the
Administration Agreement, dated as of December 1, 1995 (as amended and
supplemented from time to time, the "Administration Agreement") among NAL, as
administrator, the Trust and the Indenture Trustee. The Depositor will acquire
the Receivables from Autorics, Inc., a Delaware corporation and a wholly owned
subsidiary of NAL, ("Autorics") on the Closing Date (as defined herein) pursuant
to a Receivables Purchase Agreement to be dated as of December 1, 1995 (as
amended and supplemented from time to time, the "Receivables Purchase
Agreement") among the Depositor, as purchaser, Autorics, as seller and NAL for
the purpose of making certain representations and warranties as to the
Receivables and for certain other matters. Payments on the Receivables will be
made into a Lockbox Account which will be established and maintained pursuant to
a Lockbox Account Agreement, dated as of November 27, 1995 (as amended from time
to time (the "Lockbox Account Agreement") among NAL, General Electric Capital
Corporation ("GECC"), and SunTrust Bank, South Florida, National Association
("SunTrust").
In connection with the sale of the Notes by the Depositor, the
Depositor and NAL have prepared a preliminary private placement memorandum,
dated December 19, 1995 (including any and all exhibits thereto, the
"Preliminary Memorandum"), and a private placement memorandum, dated the date
hereof (including any and all exhibits thereto, the "Final Memorandum"). Each of
the Preliminary Memorandum and the Final Memorandum sets forth certain
information concerning the Depositor, NAL, Autorics and
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the Securities. The Depositor and NAL hereby confirm that they have authorized
the use of the Preliminary Memorandum and the Final Memorandum, and any
amendment or supplement thereto, in connection with the offer and sale of the
Notes by you. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned thereto in the Final Memorandum.
1. Representations and Warranties. NAL and the Depositor jointly and
severally (and with respect to each representation and warranty made as to
Autorics in this Section 1, Autorics, NAL and the Depositor jointly and
severally) represent and warrant to, and agree with, you, and each purchaser of
a Note directly from you, that:
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and the
Final Memorandum, at the date hereof, does not, and at the Closing Date
will not (and any amendment or supplement thereto, at the date thereof
and at the Closing Date, will not), contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Depositor and
NAL make no representation or warranty as to the information contained
in or omitted from the Preliminary Memorandum or the Final Memorandum,
or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Depositor or
NAL by the Purchaser specifically for inclusion therein. The Depositor
and NAL acknowledge that the statements set forth in the Preliminary
Memorandum and in the Final Memorandum in the second and third
sentences of the first paragraph under the heading "Plan of
Distribution" constitute the only information furnished by the
Purchaser for inclusion in the Preliminary Memorandum or the Final
Memorandum.
(b) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business as
now conducted by it and to enter into and perform its obligations under
this Agreement, the Trust Agreement, the Sale and Servicing Agreement
and the Receivables Purchase Agreement and to cause the Trust to
authorize, issue and sell the Notes and Certificates as contemplated by
this Agreement and the Certificate Purchase Agreement, respectively.
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(c) NAL has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Florida,
has full power and authority (corporate and other) necessary to own or
hold its properties and to conduct its business as now conducted by it
and to enter into and perform its obligations under this Agreement, the
Sale and Servicing Agreement, the Administration Agreement, the Lockbox
Account Agreement, that certain demand note dated December 20, 1995
from NAL to the Depositor (the "Demand Note") and the Receivables
Purchase Agreement.
(d) Autorics has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business as
now conducted by it and to enter into and perform its obligations under
this Agreement and the Receivables Purchase Agreement.
(e) This Agreement has been duly authorized, executed
and delivered by the Depositor, NAL and Autorics I.
(f) Each of the Trust Agreement, the Sale and Servicing
Agreement and the Receivables Purchase Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by the Depositor, and when so
executed and delivered, will constitute a legal, valid, binding and
enforceable agreement of the Depositor, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law.
(g) Each of the Sale and Servicing Agreement, the
Administration Agreement, the Lockbox Account Agreement, the Demand
Note and the Receivables Purchase Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by NAL, and when so executed and
delivered, will constitute a legal, valid, binding and enforceable
agreement of NAL, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity
or at law.
(h) The Receivables Purchase Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by Autorics,
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and when so executed and delivered, will constitute a legal, valid,
binding and enforceable agreement of Autorics, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law.
(i) The execution, delivery and performance of this Agreement,
the Certificate Purchase Agreement, the Trust Agreement, the Sale and
Servicing Agreement, the Administration Agreement, the Lockbox Account
Agreement, the Demand Note and the Receivables Purchase Agreement and
the issuance and sale of the Securities and compliance with the terms
and provisions hereof and of the Indenture and the Trust Agreement will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any agreement or instrument to which
the Depositor, NAL or Autorics, as the case may be, is a party or by
which the Depositor, NAL or Autorics is bound or to which any of the
properties of the Depositor, NAL or Autorics is subject or of any
statute, order or regulation applicable to the Depositor, NAL or
Autorics of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor, NAL or
Autorics or any of their respective properties, in each case which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein.
(j) As of the Closing Date, the Securities and the Indenture,
the Trust Agreement, the Sale and Servicing Agreement, the
Administration Agreement and the Receivables Purchase Agreement will
conform in all material respects to the respective descriptions thereof
contained in the Final Memorandum. As of the Closing Date, the
Securities will be duly and validly authorized and, when duly and
validly executed, authenticated and delivered in accordance with the
Indenture and Trust Agreement, as the case may be, and delivered to you
or GCFP, as the case may be, against payment therefor as provided
herein or in the Certificate Purchase Agreement, as applicable, will be
duly and validly issued and outstanding and entitled to the benefits of
the Indenture and the Trust Agreement, as the case may be.
(k) The Depositor's representations and warranties in the
Trust Agreement and in the Sale and Servicing Agreement, NAL's
representations and warranties in the Receivables Purchase Agreement,
the Administration Agreement and the Sale and Servicing Agreement and
Autorics I's representations and warranties in the Receivables Purchase
Agreement will be true and correct in all material respects as of the
Closing Date and each such representation and
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warranty will be true and correct in all material respects on each date
thereafter if and to the extent that on such date such representation
and warranty is made again by the Depositor, NAL or Autorics, as the
case may be, pursuant to the terms of the related agreement.
(l) None of the Depositor, NAL and Autorics is in violation of
its certificate of incorporation or by-laws or in default under any
agreement, indenture or instrument the effect of which violation or
default would be material to the Depositor, NAL or Autorics I. None of
the Depositor, NAL and Autorics is a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject
to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it that materially and adversely affects, or may in
the future materially and adversely affect, (i) the ability of the
Depositor, NAL or Autorics to perform its obligations under this
Agreement, and, to the extent that it is a party thereto, the Trust
Agreement, the Sale and Servicing Agreement, the Lockbox Account
Agreement, the Demand Note, the Administration Agreement or the
Receivables Purchase Agreement or (ii) the business, operations,
financial condition, properties, assets or prospects of the Depositor,
NAL or Autorics I.
(m) There are no actions or proceedings against, or
investigations of, the Depositor, NAL or Autorics pending, or, to the
knowledge of the Depositor, NAL or Autorics, threatened, before any
court, arbitrator, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Indenture, the Trust
Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Lockbox Account Agreement, the Demand Note or the
Receivables Purchase Agreement or the Securities, (ii) seeking to
prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement, the Indenture, the
Trust Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Lockbox Account Agreement, the Demand Note or the
Receivables Purchase Agreement, (iii) that, if adversely determined,
could adversely affect the business, operations, financial condition,
properties, assets or prospects of the Depositor, NAL or Autorics or
the validity or enforceability of, or (to the extent each is a party
thereto) the performance by the Depositor, NAL or Autorics of their
respective obligations under, this Agreement, the Indenture, the Trust
Agreement, the Sale Servicing Agreement, the Administration Agreement,
the Lockbox Account Agreement, the
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Demand Note or the Receivables Purchase Agreement or the Securities or
(iv) seeking to affect adversely the federal or Florida income tax
attributes of the Notes as described in the Final Memorandum.
(n) Immediately prior to the assignment of the Receivables to
the Trust as contemplated by the Sale and Servicing Agreement, the
Depositor (i) had good title to, and was the sole owner of, each
Receivable and the other property purported to be transferred by it to
the Trust pursuant to the Sale and Servicing Agreement free and clear
of any pledge, mortgage, lien, security interest or other encumbrance
(collectively, "Liens"), (ii) had not assigned to any person any of its
right, title or interest in such Receivables or property or in the
Receivables Purchase Agreement and (iii) will have the power and
authority to sell such Receivables and property to the Trust, and upon
the execution and delivery of the Sale and Servicing Agreement by the
Owner Trustee on behalf of the Trust, the Trust will have acquired all
of the Depositor's right, title and interest in and to such Receivables
and property free and clear of any Lien (except for the Lien of the
Indenture).
(o) The Trust's assignment of the Receivables and other
Collateral (as defined in the Indenture) to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior Lien.
(p) There are no contracts, agreements or understandings
between the Depositor or NAL and any person granting such person the
right to require the Depositor or NAL to file a registration statement
under the Securities Act with respect to any Securities owned or to be
owned by such person.
(q) The sale of the Notes pursuant to this Agreement and of
the Certificates pursuant to the Certificate Purchase Agreement is
exempt from the registration and prospectus delivery requirements of
the Securities Act. In the case of each offer or sale of the Notes, no
form of general solicitation or general advertising was used by the
Depositor, any affiliates of the Depositor or any person acting on its
or their behalf, including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any
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general solicitation or general advertising. Neither the Depositor, any
affiliates of the Depositor nor any person acting on its or their
behalf has offered or sold, nor will the Depositor or any person acting
on its behalf offer or sell directly or indirectly, any Security or any
other security in any manner that, assuming the accuracy of the
representations and warranties and the performance of the covenants
given by you, would render the issuance and sale of any of the Notes as
contemplated hereby a violation of Section 5 of the Securities Act or
the registration or qualification requirements of any state securities
laws, nor has any such person authorized, nor will it authorize, any
person to act in such manner.
(r) Neither the Depositor nor the Trust is, and neither the
issuance and sale of the Securities nor the activities of the Trust
pursuant to the Indenture or the Trust Agreement will cause the
Depositor or the Trust to be, an "investment company" or under the
"control" of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(s) It is not necessary to qualify the Indenture or
the Trust Agreement under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(t) Neither the Depositor nor any affiliate thereof has paid
or agreed to pay to any person any compensation for soliciting another
to purchase any Notes (except as contemplated by this Agreement).
(u) The information provided by the Depositor and NAL pursuant
to Section 5(l) hereof will not, at the date thereof, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2. Representations, Warranties and Covenants of the Purchaser.
You represent and warrant to, and agree with, the Depositor that:
(a) You have not offered or sold, and will not offer or sell,
any Notes except (i) to those you reasonably believe to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act)
and that, in connection with each such sale, you have taken or will
take reasonable steps to ensure that the purchaser of such Notes is
aware that such sale is being made in reliance on Rule 144A, or
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(ii) to other institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act
(hereinafter "Regulation D")) who provide to you and to the Depositor a
letter in the form of Exhibit A to the Final Memorandum or (iii) in a
transaction complying with or exempt from the registration requirements
of the Securities Act and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction.
(b) You are an "accredited investor" as defined in Rule
501(a)(1), (2) or (3) of Regulation D and a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act.
(c) Neither you nor any person acting on your behalf has made
or will make offers or sales of the Notes by means of any form of
general solicitation or general advertising (within the meaning of
Regulation D).
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Depositor
agrees to sell the Class A-1 Notes and the Class A-2 Notes to you in each case
in the original principal balance with respect thereto set forth on Schedule I,
and you agree to purchase such Class A-1 Notes and Class A-2 Notes from the
Depositor, for the purchase price (expressed as a percentage of such original
principal balance) for each of the Class A-1 Notes and Class A-2 Notes set forth
with respect thereto on Schedule I (plus, in each case, accrued interest thereon
at the applicable rate with respect thereto from and including the Cutoff Date
to, but not including, the Closing Date).
If, on or prior to January 21, 1996, you resell any Class X- 0 Notes at
reoffer spreads less than 140 basis points over two-year Treasury Notes or any
Class A-2 Notes at reoffer spreads less than 300 basis points over two-year
Treasury Notes, you shall remit to the Depositor, in immediately available funds
no later than two Business Days after the date of settlement of such resale, as
an adjustment to the purchase price for such Notes paid by you hereunder, the
dollar price equivalent of such lower reoffer spreads (but no more than the
dollar price equivalent of reoffering spreads 10 basis points lower in the case
of the Class A-1 Notes, and 50 basis points lower in the case of the Class A-2
Notes, than the reoffering spreads referred to above). Nothing herein shall be
deemed to create any obligation on your part, express or implied, to sell or to
make any attempt to sell Certificates at any time.
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4. Delivery and Payment. Delivery of and payment for the Notes shall be
made at the office of Xxxxx & Xxxx, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 a.m., New York time, on the date specified in Schedule I hereto
(or such later date not later than seven business days after such specified date
as you shall designate), which date and time may be changed by agreement between
you and the Depositor (such date and time of delivery and payment for the Notes
being herein called the "Closing Date"). Delivery of the Notes shall be made to
you against payment by you of the purchase price therefor in immediately
available funds.
The Depositor agrees to have the Notes available for inspection,
checking and packaging by you in New York, New York, not later than 10:00 a.m.
on the business day prior to the Closing Date.
5. Covenants of the Depositor and NAL. The Depositor and NAL jointly
and severally covenant and agree with you that:
(a) During the period referred to in Section 5(c), the
Depositor or NAL will furnish to you, without charge, copies of the
Final Memorandum (including all documents incorporated by reference
therein and all amendments or supplements to such documents) in such
reasonable quantities as you request.
(b) At any closing occurring during the period referred to in
Section 5(c) as to which any of the Notes are resold by you to any
subsequent purchaser, the Depositor and NAL will furnish or cause to be
furnished to such subsequent purchaser, if you so request, a letter
from each person furnishing a certificate or opinion on the Closing
Date as described in Sections 6(a), (b) and (c) hereof, in which such
person shall state that such subsequent purchaser may rely upon such
original certificate or opinion as though delivered and addressed to
such subsequent purchaser and made on and as of the closing of the
resale to such subsequent purchaser, except for such exceptions set
forth in such letter as are attributable to events occurring after the
Closing Date.
(c) If, at any time prior to 90 days after the date hereof or
such earlier date as you shall have resold all of the Notes, any event
occurs as a result of which the Final Memorandum (as then amended or
supplemented) would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it should be necessary to amend or
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supplement the Final Memorandum to comply with applicable law, the
Depositor and NAL will promptly prepare and furnish to you an amendment
or supplement to the Final Memorandum satisfactory to you that will
correct such statement or omission.
(d) Neither the Depositor nor NAL will amend or supplement the
Final Memorandum without your prior written consent.
(e) During the period referred to in Section 5(c), the
Depositor or NAL will, at your request, furnish through you to any
prospective purchaser of Notes from you such information as is
reasonably requested and is reasonably available concerning matters
reasonably relevant to such prospective purchaser's decision to
purchase the Notes and the Depositor and NAL jointly and severally
represent and warrant that such information will be accurate and not
misleading.
(f) The Depositor and NAL authorize you to deliver to
investors copies of the Final Memorandum, as then amended or
supplemented, as contemplated by Section 5(c) hereof and any
information provided under Section 5(e) hereof in connection with any
reoffer or resale of the Notes by you in accordance herewith.
(g) The Depositor and NAL will arrange for the qualification
of the Notes for sale by you under the laws of such jurisdictions as
you may designate and will maintain such qualifications in effect as
long as required for the sale of the Notes. The Depositor or NAL will
promptly advise you of the receipt by suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(h) The Depositor and NAL jointly and severally agree to pay
all costs and expenses in connection with the transactions herein
contemplated, including, but not limited to, (i) the printing and
delivery to you of the Preliminary Memorandum, the Final Memorandum,
and each amendment thereto, (ii) the fees of the Owner Trustee, and its
counsel, (iii) the fee of the Indenture Trustee and its counsel, (iv)
the preparation, issuance and delivery of the Securities to you, (v)
the fees and disbursements of the Depositor's accountants, Price
Waterhouse LLP (including but not limited to the letters furnished by
it pursuant to Section 6(m) hereof), (vi) the fees and disbursements of
your counsel, (vii) the qualification of the Notes under securities
laws in accordance with the provisions of Section
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5(g), including filing fees and the fees and disbursements
of Xxxxx & Xxxx in connection therewith and in connection
with the preparation of any blue sky or legal investment
survey and (vii) any fees charged by Duff & Xxxxxx Credit
Rating Co. ("Duff & Xxxxxx") or Xxxxx Investors Service,
Inc. ("Fitch") for the rating of the Notes.
(i) Each of the Depositor and NAL will not, and will not
permit any of the affiliates (as such term is defined in Rule 501(b) of
Regulation D) of the Depositor (such affiliates (including NAL) being
herein after referred to as the "Affiliates") to, resell any Notes that
have been acquired by it or by any of them.
(j) Neither the Depositor, nor any of its Affiliates, nor any
person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the Notes
under the Securities Act.
(k) Neither the Depositor, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities.
(l) So long as any of the Notes are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the
Depositor and NAL will, unless the Depositor becomes subject to and
complies with Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), provide to each holder of such
restricted securities and to each prospective purchaser (as designated
by such holder) of such restricted securities, upon the request of such
holder or prospective purchaser, any information required to be
provided by Rule 144A(d)(4) under the Securities Act. This covenant is
intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such
restricted securities.
(m) For a period from the date of this Agreement until the
retirement of the Notes, the Depositor and NAL will deliver to you the
monthly servicing report, the annual statements of compliance and the
annual independent certified public accounts' reports furnished to the
Indenture Trustee or the Owner Trustee pursuant to the Indenture, the
Trust Agreement or the Administration
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Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee or the Owner Trustee.
(n) To the extent, if any, that the rating provided with
respect to the Notes by Duff & Xxxxxx or Xxxxx is conditional upon the
furnishing of documents or the taking of any actions by the Depositor
or NAL, the Depositor or NAL, as the case may be, shall furnish such
documents and take any such other actions.
(o) Until 30 days following the Closing Date, neither the
Depositor or NAL nor any trust or other entity originated, directly or
indirectly, by the Depositor or NAL will, without the your prior
written consent, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any securities
(other than the Securities).
(p) The Depositor will enter into the Trust Agreement, NAL
will enter into the Administration Agreement, the Depositor and NAL
will enter into the Sale and Servicing Agreement and NAL, the Depositor
and Autorics will enter into the Receivables Purchase Agreement on or
prior to the Closing Date.
6. Conditions to the Purchase of the Notes. Your obligation hereunder
to purchase the Notes shall be subject to the accuracy of the representations
and warranties on the part of the Depositor, NAL and Autorics contained herein
as of the date hereof and as of the Closing Date, to the accuracy of the
statements of the Depositor, NAL and Autorics made in any certificates delivered
pursuant to the provisions hereof, to the performance by each of the Depositor,
NAL and Autorics of its obligations hereunder and to the following additional
conditions:
(a) Each of the Depositor, NAL and Autorics shall have
delivered to you an officers' certificate, signed by its President or
vice president and dated the Closing Date, to the effect that the
signer of such certificate has carefully examined this Agreement and,
in the case of NAL and the Depositor, the Final Memorandum and that:
(i) the representations and warranties of the Depositor, NAL or
Autorics, as the case may be, in this Agreement are true and correct in
all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date and (ii) it has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
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(b) You shall have received an opinion, addressed to you, of
English, XxXxxxxxx & X'Xxxxx, P.A., counsel for the Depositor, NAL and
Autorics, dated the Closing Date, in form and substance satisfactory to
you and your counsel, substantially in the form attached hereto as
Exhibit A.
(c) With respect to each state in which Financed Vehicles are
registered, you shall have received an opinion, addressed to you, of
special counsel to the Depositor admitted to practice in such state and
otherwise acceptable to you, dated the Closing Date, in form and
substance satisfactory to you and your counsel, substantially in the
form attached as Exhibit B hereto.
(d) You shall have received an opinion addressed to you of
Xxxxx & Wood, in its capacity as federal tax counsel for the Trust,
dated the Closing Date, to the effect that the statements in the Final
Memorandum under the heading "Certain Federal Income Tax Consequences"
and under the heading "Summary of Terms -- Tax Status" (to the extent
relating to federal income tax consequences) accurately describe the
material federal income tax consequences to holders of the Notes.
(e) You shall have received an opinion addressed to you of
Xxxxx & Xxxx, in its capacity as special counsel to the Purchaser,
dated the Closing Date, with respect to the validity of the Notes and
such other related matters as you shall require, and the Depositor
shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters. Xxxxx & Wood, in its capacity as
special ERISA counsel to the Trust, shall have delivered an opinion,
addressed to you and dated the Closing Date, to the effect that the
statements in the Final Memorandum under the heading "ERISA
Considerations," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately describe the
material consequences to holders of the Notes under ERISA.
(f) You will have received an opinion addressed to you, the
Depositor and NAL of Xxxxxx & Xxxxxx, counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to you
and your counsel, substantially in the form attached as Exhibit C
hereto.
(g) You shall have received an opinion addressed to you, the
Depositor and NAL of Xxxxxxx, Xxxxxx & Finger, counsel to the Owner
Trustee, dated the Closing Date and
14
satisfactory in form and substance to you and your counsel,
substantially in the form attached as Exhibit D hereto.
(h) Counsel to the Depositor, NAL and Autorics shall have
furnished and addressed to you any opinions addressed to Duff & Xxxxxx
or Fitch and not otherwise furnished pursuant to this Section 6.
(i) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC-1 financing statements have been or
are being filed in the office of the Secretary of State of the States
of Florida and Delaware reflecting the transfer of the interest of
Autorics, NAL and the Depositor in the Receivables and the proceeds
thereof to NAL, the Depositor and the Trust, respectively, and the
grant of the security interest by the Trust in the Receivables and the
proceeds thereof to the Indenture Trustee.
(j) On the date of the Preliminary Memorandum, on the date
hereof and on the Closing Date, Price Waterhouse LLP shall have
furnished to you a letter or letters, dated respectively as of the date
of the Preliminary Memorandum, the date hereof and as of the Closing
Date, substantially in the forms of the drafts to which you have
previously agreed and otherwise in form and substance satisfactory to
you and to your counsel.
(k) You shall have received from Duff & Xxxxxx a rating letter
assigning a rating not lower than "A" to the Class A-1 Notes and a
rating not lower than "BBB" to the Class A-2 Notes, which ratings shall
not have been modified, lowered or withdrawn.
(l) You shall have received from Fitch a rating letter
assigning a rating not lower than "A" to the Class A-1 Notes and a
rating not lower than "BBB" to the Class A-2 Notes, which ratings shall
not have been modified, lowered or withdrawn.
(m) You shall have received such further information,
certificates, documents and opinions as you may reasonably
have requested.
(n) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be satisfactory in form and substance to you and your counsel, and you
and your counsel shall have received such information, certificates and
documents as you or they may have reasonably requested.
15
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if either of the Depositor, NAL or Autorics is in breach of any covenants or
agreements contained herein or if any of the opinions and certificates referred
to above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you and your counsel, this
Agreement and all your obligations hereunder may be canceled by you at, or at
any time on or prior to, the Closing Date. Notice of such cancellation shall be
given to the Depositor in writing, or by telephone or facsimile transmission
confirmed in writing.
7. Indemnification and Contribution. (a) The Depositor and NAL, jointly
and severally, agree to indemnify and hold harmless you, your directors,
officers, employees and agents and each person who controls you within the
meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which you or any of
them may become subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum, the Final
Memorandum or any information provided by the Depositor or NAL to any holder or
prospective purchaser of Notes pursuant to Section 5(l), or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Depositor and
NAL will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Depositor by you specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Depositor or NAL may
otherwise have.
(b) You agree to indemnify and hold harmless the Depositor and NAL,
their directors, their officers, and each person who controls the Depositor or
NAL within the meaning of either the
16
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Depositor and NAL to you, but only with reference to written
information relating to you furnished to the Depositor by you specifically for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto). This indemnity agreement will be in addition
to any liability which you may otherwise have. The Depositor and NAL acknowledge
that the statements set forth in the second and third sentences of the first
paragraph under the heading "Plan of Distribution" in the Preliminary Memorandum
and in the Final Memorandum constitute the only information furnished in writing
by or on behalf of you for inclusion in the Preliminary Memorandum or the Final
Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to elect separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to so assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved, in the case
of paragraph (a)
17
of this Section 7, by you and representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii). An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to an indemnified party under this Section 7, then the
Depositor, NAL and you shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Depositor, NAL and you may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Depositor and NAL
on the one hand and by you on the other from the offering of the Notes;
provided, however, that in no case shall you be responsible for any amount in
excess of the net purchase discount or commission applicable to the Notes
purchased by you hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Depositor, NAL and you
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Depositor and NAL on the
one hand and of you on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Depositor and NAL shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses),
and benefits received by you shall be deemed to be equal to the total purchase
discounts and commissions received by you from the Depositor in connection with
the purchase of the Notes hereunder. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Depositor and NAL on the one hand or you on the
other. The Depositor, NAL and you agree that it would not be
18
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls you
within the meaning of either the Securities Act or the Exchange Act and each of
your directors, officers, employees and agents shall have the same rights to
contribution as you, and each person who controls the Depositor or NAL within
the meaning of either the Securities Act or the Exchange Act and each officer
and director of the Depositor or NAL shall have the same rights to contribution
as the Depositor or NAL, subject in each case to the applicable terms and
conditions of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
8. Termination. (a) This Agreement shall be subject to termination in
your absolute discretion by notice given to the Depositor prior to delivery of
and payment for the Notes, if prior to such time, (i) there shall have occurred
any change, or any development involving a prospective change, in or affecting
particularly the business, assets or properties of the Depositor, NAL or NAL
Financial Group, Inc.; (ii) trading of securities generally on the New York
Stock Exchange, the American Stock Exchange or over the NASDAQ National Market
shall have been suspended or materially limited; (iii) trading of any securities
of NAL Financial Group, Inc. or any of its subsidiaries shall have been
suspended or materially limited; (iv) a general moratorium on commercial banking
activities in New York, Florida or Delaware shall have been declared by either
federal or New York, Florida or Delaware authorities; or (v) there shall have
occurred any material outbreak or declaration of hostilities or other calamity
or crisis involving the United States, in each case the effect of which is such
as to make it, in your reasonable judgment, inadvisable or impracticable to
market the Notes on the terms specified herein.
(b) If the sale of the Notes shall not be consummated because any
condition to your obligations set forth in Section 6
19
hereof is not satisfied or because of any refusal, inability or failure on the
part of the Depositor, NAL or Autorics to perform any agreement herein or comply
with any provision hereof other than by reason of your default, the Depositor
and NAL jointly and severally agree to reimburse you for the reasonable fees and
expenses of your counsel and for such other out-of-pocket expenses as shall have
been incurred by you in connection with this Agreement and the proposed purchase
of the Notes, and upon demand the Depositor or NAL shall pay the full amount
thereof to you.
(c) This Agreement will survive delivery of and payment for the Notes.
The provisions of Section 7 and this Section 8(c) shall survive the termination
or cancellation of this Agreement.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
transmitted by facsimile and confirmed to you at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx and Xxxxx Xxxx; or, if sent to the
Depositor, NAL or Autorics, will be mailed, delivered or transmitted by
facsimile and confirmed to it at NAL Acceptance Corporation, 000 Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx XxXxxxx.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 and their
successors and assigns, and no other person will have any right or obligation
hereunder.
11. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Depositor, NAL and Autorics I.
Very truly yours,
NAL ACCEPTANCE CORPORATION
By:_________________________
Name:
Title:
AUTORICS II, INC.
By:_________________________
Name:
Title:
AUTORICS, INC.
By:_________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
GREENWICH CAPITAL MARKETS, INC.
By:____________________________
Name:
Title:
21
SCHEDULE I
Purchase Agreement dated December 20, 1995.
Closing Date: December 12, 1995
Cut-off Date: December 1, 1995.
Original
Principal Purchase
Designation Balance Price
----------- --------- --------
Class A-1 Notes $36,524,000 .98859375%
Class A-2 Notes $1,605,000 .96718750%
22
Exhibit 21
Subsidiaries of the Registrant
Subsidiary State of Incorporation
---------- ----------------------
NAL Acceptance Corporation Florida
NAL Insurance Services, Inc. Florida
Performance Cars of South Florida, Inc. Florida
NAL Mortgage Corporation Florida
Autorics, Inc. Delaware
Autorics II, Inc. Delaware
