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EXHIBIT 10.110
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SALE AGREEMENT
BETWEEN
NATIONAL FINANCIAL AUTO FUNDING TRUST II
AND
NATIONAL FINANCIAL AUTO FUNDING TRUST
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DATED AS OF SEPTEMBER 1, 1999
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SALE AGREEMENT
SALE AGREEMENT, dated as of September 1, 1999, by and between NATIONAL
FINANCIAL AUTO FUNDING TRUST, a Delaware business trust ("Funding Trust I"), and
NATIONAL FINANCIAL AUTO FUNDING TRUST II, a Delaware business trust ("Funding
Trust II").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, Funding
Trust I and Funding Trust II agree as follows:
ARTICLE I
DEFINITIONS
1.1. Incorporation of Definitions. Capitalized terms used but not
defined herein have the meanings ascribed to them in the First Amended and
Restated Pooling and Administration Agreement dated as of September 1, 1999 (as
amended and restated, the "Pooling and Administration Agreement"), among Funding
Trust II, as transferor, National Auto Finance Company, Inc. ("NAFI") (as
successor to National Auto Finance Company L.P.), as Administrator, and Bankers
Trust Company, as Trustee (the "Trustee"), or the Assignment Agreement, dated as
of September 1, 1999, between Funding Trust II and the Trustee.
1.2. Other Definitions. When used in this Agreement, the following
words and phrases shall have the following meanings:
Cut-off Date: As defined in Section 2.1.
Closing Date: means September 24, 1999.
Originator Agreement: An agreement pursuant to which NAFI acquired
Receivables from an Originator.
Outstanding Principal Balance: As of any date and with respect to any
Receivable, the outstanding principal balance of such Receivable as of such
date, which shall be computed by reducing the original principal balance of such
Receivable by the portion of each payment received and processed by the Servicer
on or before such date that would represent principal if such payments were
allocated to the principal of and interest on such Receivable based on the
actuarial method provided in such Receivable.
Purchase Price: As defined in Section 2.1.
Receivable Assets: The assets described in clauses (i) through (ix),
inclusive, of subsection 2.1 hereof.
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Related Security: With respect to any Receivable, all of the interest
of Funding Trust II in, to and under (i) the security interest in the Financed
Vehicles granted by the Obligors or the Receivables and any accessions thereto
and (ii) physical damage, credit life, credit disability and any and all other
insurance policies covering Financed Vehicles or Obligors (including any blanket
vendor's single interest insurance policy).
Receivables Schedule: The schedule of Receivables attached as Schedule
A hereto, such schedule identifying each Receivable by name of the Obligor and
setting forth as to each Receivable its Outstanding Principal Balance as of the
Cut-off Date, loan number, interest rate, scheduled monthly payment of principal
and interest, final maturity date and original principal amount.
ARTICLE II
PURCHASE AND SALE
2.1. Purchase. Subject to and on the terms and conditions set forth
herein, Funding Trust II hereby sells, transfers, conveys and assigns, without
representation, warranty or recourse, to Funding Trust I except as specifically
set forth herein, all of its right, title and interest in and to (i) the
Receivables identified on the Receivables Schedule attached hereto as Schedule
A, (ii) all monies paid or payable thereunder on or after August 31, 1999 (the
"Cut-off Date"), (iii) the Related Security with respect to each such
Receivable, (iv) all proceeds of the foregoing, including all Collections or
Related Security with respect to such Receivables, or other recoveries applied
to repay or discharge any such Receivable received on or after the Cut-off Date
(including net proceeds of sale or other disposition of repossessed Financed
Vehicles that were the subject of any such Receivable) or other collateral or
property of any Obligor or any other party directly or indirectly liable for
payment of such Receivables, (v) the Seller Transaction Documents and the
Assignment Agreement, dated as of September 1, 1999 between Funding Trust II and
Bankers Trust Company, as Trustee of the National Financial Auto Receivables
Master Trust (the "Assignment Agreement"), (vi) all records relating to any of
the foregoing, (vii) all rights of Funding Trust II assigned to Funding Trust II
against Dealers under the Dealer Agreements and against Originators under the
Originator Agreements, (viii) any other Trust Assets relating to the Receivables
Assets, and (ix) the proceeds of the foregoing. Funding Trust I agrees to pay to
Funding II on the Closing Date as the purchase price (the "Purchase Price") for
the Receivable Assets sold hereunder on such date an amount equal to
$51,000,000.00 in immediately available funds to an account at a bank designated
by Funding Trust II to Funding Trust I.
2.2. Filings. (a) On or prior to the Closing Date, Funding Trust II
shall have filed in the office of the Secretary of State of Delaware and the
Office of the Secretary of State of Florida UCC financing statements,
appropriate under the Uniform Commercial Code in effect in Delaware and Florida
to reflect the transfer of the Receivables Assets from Funding Trust II to
Funding Trust I and to protect Funding Trust I's interest in the Receivables
Assets against all other Persons, naming Funding Trust II as debtor, Funding
Trust I as secured party and National Auto Finance 1999-1 Trust ("1999-1 Trust")
as assignee. During the term of this Agreement, Funding Trust II shall not
change its name, identity or structure or relocate its chief executive office or
principal place of business without first giving 60 days prior written notice to
Funding Trust I and
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Financial Security Assurance Inc. ("Financial Security") (for so long as any
policy issued by Financial Security is in effect with respect to any securities
issued by Funding Trust I or any trust of which Funding Trust I is depositor or
transferor); provided, however, that Funding Trust I has no right or power to
prohibit a change in Funding Trust II's name, identity or structure or, subject
to the last sentence of this paragraph, a relocation of, its chief executive
office. If any change in Funding Trust II's name, identity or structure or the
relocation of its chief executive office or principal place of business would
make any financing or continuation statement or notice of lien filed in
connection with this Agreement seriously misleading within the meaning of
applicable provisions of the UCC or any title statute, Funding Trust II, shall
after the effective date of such change, promptly file or cause to be filed such
amendments as may be required to preserve and protect Funding Trust I's interest
in the Receivables Assets.
(b) On or prior to the Closing Date, Funding Trust II shall deliver to
Funding Trust I or such other Person as Funding Trust I shall direct cash equal
to all payments received on such Receivables on or after the Cut-off Date and on
or before two Business days prior to the Closing Date. Within two Business Days
after the Closing Date, Funding Trust II shall deliver to Funding Trust I or
such other Person as Funding Trust I shall direct all other payments received on
such Receivables on or after the Cut-off Date and on or before the Closing Date.
Funding Trust hereby directs Funding Trust II to deliver cash equal to all such
payments described in this Section 2.2(b) to be delivered to Xxxxxx Trust in its
capacity as Trust Collateral Agent under the Sale and Servicing Agreement, dated
as of September 1, 1999 (the "Sale and Servicing Agreement"), among 1999-1
Trust, Funding Trust I, NAFI and Xxxxxx Trust.
2.3. No Recourse. The sale and purchase of Receivables and the other
Receivables Assets under this Agreement shall be without recourse to Funding
Trust II.
2.4. True Sales. Funding Trust II and Funding Trust I intend that the
transactions contemplated hereby be true sales of the Receivables and other
Receivables Assets by Funding Trust II to Funding Trust I providing Funding
Trust I with the full benefits of ownership of the Receivables and other
Receivables Assets free and clear of any liens, and neither Funding Trust II nor
Funding Trust I intends the transactions contemplated hereby to be, or for any
purpose to be characterized as, a loan from Funding Trust I to Funding Trust II.
Funding Trust II shall reflect sales of the Receivables Assets hereunder on the
books and records maintained by Funding Trust II as sales of assets, and shall
treat such sales as sales for all purposes.
2.5. Receipt of Payments after Closing Date. Funding Trust I shall be
entitled to all payments received or receivable with respect to any Receivable
sold and conveyed by Funding Trust II to Funding Trust I hereunder that are
received on and after the Cut-off Date. If Funding Trust II has knowledge of, or
receives notice of, or receives any payment on a Receivable belonging to Funding
Trust I, Funding Trust II shall promptly notify the Trust Collateral Agent, and
shall hold such receivable in trust and as bailee for Funding Trust I, and shall
promptly turn such payment over to Xxxxxx Trust, as Trust Collateral Agent under
the Sale and Servicing Agreement.
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ARTICLE III
MISCELLANEOUS
3.1. Notices. All notices, demands and requests that may be given or
that are required to be given hereunder shall be sent by United States certified
mail, postage prepaid, return receipt requested, to the parties at their
respective addresses as follows:
If to Funding Trust II:
National Financial Auto Funding Trust II
c/o Chase Manhattan Bank Delaware, as Trustee
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Administration Trust Department
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
If to Funding Trust I:
National Financial Auto Funding Trust I
c/o Chase Manhattan Bank Delaware, as Trustee
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Administration Trust Department
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
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If to Financial Security Assurance Inc.:
Financial Security Assurance Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Oversight Department
Re: National Auto Finance 1999-1 Trust
7.26% Automobile Receivables-Backed Class A Notes
Telecopier No: (000) 000-0000,
(000) 000-0000
Confirmation: (000) 000-0000
If to Xxxxxx Trust:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Division
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
3.2. Choice of Law. This Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
3.3. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
3.4. Assignment. This Agreement may not be assigned by Funding Trust II
or Funding Trust I except as contemplated by this Section; provided, however,
that simultaneously with the execution and delivery of this Agreement, Funding
Trust I shall assign all of its right, title and interest hereunder to 1999-1
Trust pursuant to the Sale and Servicing Agreement, as provided in Section 2.1
of the Sale and Servicing Agreement.
3.5. Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto and shall also be for the
benefit of Xxxxxx Trust (for the benefit of the Noteholders) and Financial
Security, each of which shall be considered to be third-party beneficiaries of
this Agreement and shall be entitled to rely upon and directly enforce the
provisions of this Agreement. Except as otherwise provided in this Agreement, no
other Person will have any right or obligation hereunder. Financial Security may
disclaim any of its rights and powers under this Agreement upon delivery of a
written notice to Funding Trust II and Funding Trust I.
3.6. No Petition. Funding Trust II and Funding Trust I each hereby
agrees not to cause the filing of a petition in bankruptcy against the other
until one year and one day after the
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maturity of any securities evidencing a beneficial interest in or secured by
Receivable Assets sold, transferred or otherwise conveyed by the Trustee to
Funding Trust II was conveyed to Funding Trust I.
3.7. Further Assurances. It is Funding Trust II's intention to convey
its entire rights, title and interest in the Receivables Assets or other assets
related thereto acquired from National Financial Auto Receivables Master Trust
pursuant to the Assignment Agreement.
3.8. Limitation of Liability of Funding Trust I Trustee:
Notwithstanding anything contained herein to the contrary, this Agreement has
been executed and delivered by Chase Manhattan Bank Delaware not in its
individual capacity but solely as Trustee and in no event shall Chase Manhattan
Bank Delaware, have any liability for the representations, warranties,
covenants, agreements or other obligations of Funding Trust I hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of Funding Trust I.
3.9. Limitation of Liability of Funding Trust II Trustee:
Notwithstanding anything contained herein to the contrary, this Agreement has
been executed and delivered by Chase Manhattan Bank Delaware not in its
individual capacity but solely as Trustee and in no event shall Chase Manhattan
Bank Delaware, have any liability for the representations, warranties,
covenants, agreements or other obligations of Funding Trust II hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of Funding Trust II.
3.10. Amendment. This Agreement may be amended in writing by the
parties hereto with the prior written consent of the Control Party, to cure any
ambiguity or to correct any provisions in this Agreement.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Sale
Agreement as of the day and year first written above.
NATIONAL FINANCIAL AUTO FUNDING TRUST II
By: Chase Manhattan Bank Delaware,
not in its individual capacity,
but solely as Trustee of National
Financial Auto Funding Trust II
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
NATIONAL FINANCIAL AUTO FUNDING TRUST
By: Chase Manhattan Bank Delaware,
not in its individual capacity,
but solely as Trustee of National
Financial Auto Funding Trust
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
