RECEIVABLES PURCHASE AGREEMENT dated as of June 1, 1997, among NAL
ACCEPTANCE CORPORATION, a Florida corporation ("NAL"), AUTORICS, INC., a
Delaware Corporation (the "Seller"), and AUTORICS II, INC., a Delaware
corporation (the "Purchaser").
WHEREAS in the regular course of its business, the Seller has purchased
certain motor vehicle retail installment sale contracts secured by new and used
automobiles, light-duty trucks and vans from NAL which, in turn purchased such
contracts from motor vehicle dealers and others; and
WHEREAS the Purchaser wishes to purchase the Receivables (as hereinafter
defined) and to transfer the Receivables to NAL Auto Trust 1997-2 (the "Trust"),
which will issue the 7.75% Asset Backed Notes (the "Notes"), payment of which
will be secured by the Receivables, and the 9.10% Asset Backed Certificates
representing fractional undivided interests in the property of the Trust
including the Receivables, subject to the rights of the Indenture Trustee on
behalf of the Noteholders;
WHEREAS the Seller and Purchaser are wholly owned subsidiaries of NAL and
NAL wishes to facilitate the transfer of the Receivables and, to that end, has
agreed to make certain representations and warranties relating to the
Receivables and to pay certain expenses and amounts with respect hereto; and
WHEREAS NAL, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Seller will sell the Receivables to the Purchaser;
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
Certain Definitions
Terms not defined in this Agreement shall have the meaning set forth in the
Sale and Servicing Agreement or the Indenture, as applicable. As used in this
Agreement, the following terms shall, unless the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Purchase Agreement, as the same may
be amended and supplemented from time to time.
"Assignment" shall mean the document of assignment substantially in the
form of Exhibit A.
"Certificates" shall mean the Trust Certificates (as defined in the Trust
Agreement).
"Certificateholders" shall mean the holders of Certificates.
"Closing Date" shall mean June 27, 1997.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Cutoff Date" means June 1, 1997.
"Indenture" shall mean the Indenture dated as of June 1, 1997 between the
Trust and Bankers Trust Company, as trustee (the "Indenture Trustee"), as the
same may be amended and supplemented from time to time.
"NAL" shall mean NAL Acceptance Corporation, a Florida corporation, its
successors and assigns.
"Noteholders" shall mean the holders of the Notes.
"Private Placement Memorandum" shall mean the Private Placement Memorandum
dated June 27, 1997 relating to the Notes and the Certificates.
"Purchaser" shall mean AUTORICS II, Inc., a Delaware corporation, its
successors and assigns.
"Receivable" shall mean any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche).
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
dated as of June 1, 1997, among the Trust, the Purchaser, NAL, as Servicer and
LSI Financial Group, as Backup Servicer, as the same may be amended and
supplemented from time to time.
"Schedule of Receivables" shall mean the list of Receivables annexed hereto
as Schedule I.
"Seller" shall mean Autorics, Inc., a Delaware corporation, its successors
and assigns.
"Trust Agreement" shall mean the Trust Agreement dated as of June 1, 1997,
between the Purchaser and Wilmington Trust Company, as the owner trustee (the
"Owner Trustee"), as the same may be amended and supplemented from time to time.
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables. In consideration of the
Purchaser's delivery to or upon the order of the Seller of $134,253,875 the
Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (subject to the obligations of the Seller and NAL
herein), all right, title and interest of the Seller in and to (but none of the
obligations of the Seller with respect to):
(a) the Receivables, and all moneys received thereon on and after the
Cutoff Date plus all Payaheads as of the Cutoff Date;
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(b) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables, any other right to realize upon property securing a
Receivable and any other interest of the Seller in such Financed Vehicles
including the Seller's right, title and interest in the lien on the Financed
Vehicles in the name of Autorics, Inc. or the Seller's agents, NAL or SFI;
(c) any proceeds with respect to the Receivables from claims on any
Insurance Policies relating to the Financed Vehicles or Obligors;
(d) proceeds of any recourse (but none of the obligations) to Dealers on
Receivables;
(e) any Financed Vehicle that shall have secured a Receivable and shall
have been acquired by or on behalf of the Seller, the Purchaser, or, upon the
assignment contemplated by the Sale and Servicing Agreement, the Servicer or the
Trust;
(f) the Receivables Files;
(g) the obligations, duties and responsibilities of NAL to the Seller made
hereunder, including without limitation, the representations and warranties made
by NAL pursuant to Section 3.02(b) of this Agreement and the representations and
warranties on the Receivables made by NAL pursuant to Section 3.02(c) of this
Agreement and the right of the Seller to cause NAL to purchase the Receivables
under certain circumstances; and
(h) the proceeds of any and all of the foregoing.
SECTION 2.02. The Closing. The sale and purchase of the Receivables shall
take place at a closing (the "Closing") at the offices of Xxxxx & Xxxx LLP, Xxx
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date, simultaneously
with the closings under (a) the Sale and Servicing Agreement and (b) the
Indenture.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the Closing Date:
(a) Organization and Good Standing. The Purchaser has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power,
authority and legal right to acquire and own the Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property or the conduct of its business shall require such qualifications.
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(c) Power and Authority. The Purchaser has the power and authority to
execute and deliver this Agreement and to carry out its terms, and the
execution, delivery and performance of this Agreement has been duly authorized
by the Purchaser by all necessary corporate action.
(d) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the certificate of
incorporation or bylaws of the Purchaser, or any indenture, agreement or other
instrument to which the Purchaser is a party or by which it is bound; or result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than the
Sale and Servicing Agreement, the Indenture and the Trust Agreement); or violate
any law or, to the best of the Purchaser's knowledge, any order, rule or
regulation applicable to the Purchaser of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser or its properties.
(e) No Proceedings. There are no proceedings or investigations pending or,
to the Purchaser's best knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties: (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or enforceability of, this
Agreement.
SECTION 3.02. Representations and Warranties of the Seller and NAL. (a) The
Seller hereby represents and warrants to the Purchaser as of the Closing Date:
(i) Organization and Good Standing. The Seller has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has,
the power, authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property sold and
assigned to the Purchaser hereby and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly
authorized by the Seller by all necessary corporate action.
(iv) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time)
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a default under, the articles of incorporation or bylaws of the Seller, or
any indenture, agreement or other instrument to which the Seller is a party
or by which it is bound; or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); or
violate any law or, to the best of the Seller's knowledge, any order, rule
or regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no proceedings or investigations pending
or, to the Seller's best knowledge, threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under or the validity or
enforceability of, this Agreement.
(vi) Principal Place of Business. The principal place of business and
chief executive office of the Seller are located at the place set forth in
Section 6.08(a) and such location has not changed since the date the Seller
was incorporated.
(vii) Use of Names. The legal name of the Seller is the name used by
it in this Agreement and the Seller has not changed its name since the date
of its incorporation and does not have trade names, fictitious names,
assumed names or "doing business" names.
(viii) Solvency. The Seller is solvent and will not become insolvent
after giving effect to the transactions contemplated in this Agreement; the
Seller is paying its debts, if any, as they become due; the Seller, after
giving effect to the transactions contemplated in this Agreement, will have
adequate capital to conduct its business.
(b) NAL hereby represents and warrants to the Seller as of the Closing
Date:
(i) Organization and Good Standing. NAL has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Florida, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has,
the power, authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. NAL is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. NAL has the power and authority to execute
and deliver this Agreement and to carry out its terms; NAL has full power
and authority to perform its obligations under this Agreement; and the
execution, delivery and performance of this Agreement has been duly
authorized by NAL by all necessary corporate action.
(iv) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach
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of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of incorporation or
bylaws of NAL, or any indenture, agreement or other instrument to which NAL
is a party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); or
violate any law or, to the best of NAL's knowledge, any order, rule or
regulation applicable to NAL of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NAL or its properties.
(v) No Proceedings. There are no proceedings or investigations pending
or, to NAL's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over NAL or its properties: (A) asserting the invalidity of
this Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by NAL of its obligations under or the validity or
enforceability of, this Agreement.
NAL agrees that such representations and warranties shall be conveyed
hereunder by the Seller to the Purchaser, by the Purchaser to the Issuer under
the Sale and Servicing Agreement, and pledged by the Issuer to the Indenture
Trustee. NAL further agrees that any such Person to whom such rights are
conveyed may enforce any and all remedies for the breach thereof directly
against NAL. NAL agrees that the Purchaser shall rely on such representations
and warranties in accepting the Receivables.
(c) NAL makes the following representations and warranties to the Seller in
respect of the Receivables. NAL agrees that such representations and warranties
shall be conveyed hereunder by the Seller to the Purchaser, by the Purchaser to
the Issuer under the Sale and Servicing Agreement, and pledged by the Issuer to
the Indenture Trustee. NAL further agrees that any such Person to whom such
rights are conveyed may enforce any and all remedies for the breach thereof
directly against NAL. NAL agrees that the Purchaser shall rely on such
representations and warranties in accepting the Receivables. Such
representations and warranties speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of the
Receivables to the Purchaser and the subsequent sale, assignment and transfer of
the Receivables pursuant to the Sale and Servicing Agreement and the Grant
thereof pursuant to the Indenture:
(i) Characteristics of Receivables. Each Receivable (A) was originated
in the United States of America by a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's business, was
fully and properly executed by the parties thereto, was purchased by NAL
from such Dealer under an existing dealer agreement, and was validly
assigned by such Dealer to NAL in accordance with the terms of such dealer
agreement and from NAL to the Seller pursuant to the Contract Purchase
Agreement dated September 5, 1995 between NAL and the Seller, (B) has
created a valid, subsisting and enforceable first priority security
interest in favor of the Seller in the Financed Vehicle, which security
interest is assignable by the Seller to the Purchaser, by the Purchaser to
the Trust and by the Trust to the Indenture Trustee, (C) contains customary
and enforceable provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of the benefits
of the security, (D) provides for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable may be
different from the level payments) that fully amortize the Amount Financed
by maturity and yield interest at the
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Annual Percentage Rate, and (E) provides, in the event that such Contract
is prepaid, for a prepayment that fully pays the Principal Balance of the
Receivable and includes a full month's interest in the month of prepayment
at the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in Schedule I
to this Agreement is true and correct in all material respects as of the
opening of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Noteholders or the Certificateholders were
utilized in selecting the Receivables. The computer tape regarding the
Receivables made available to the Purchaser and its assigns is true and
correct in all respects.
(iii) Compliance with Law. Each Receivable and the sale of the related
Financed Vehicle complied at the time it was originated or made, and at the
execution of this Agreement complies, in all material respects with all
requirements of applicable federal, state and local laws and regulations
thereunder, including usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations B and S
and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit laws and equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the Receivables is due from the
United States of America or any state or from any agency, department or
instrumentality of the United States of America or any state.
(vi) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment and transfer thereof, each Receivable shall be secured by
a validly perfected first security interest in the Financed Vehicle in
favor of the Seller as secured party or all necessary and appropriate
actions have been commenced that would result in the perfection of a first
security interest in the Financed Vehicle in favor of the Seller as secured
party.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from
the lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been waived except
by a writing constituting an amendment to the applicable Contract.
(ix) No Amendments. No Receivable has been amended such that the
amount of the Obligor's scheduled payments has been increased.
(x) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable.
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(xi) No Liens. To the best of the Seller's knowledge, no liens or
claims have been filed for work, labor or materials relating to a Financed
Vehicle that are liens prior to, or equal or coordinate with, the security
interest in the Financed Vehicle created by any Receivable.
(xii) No Default. No Receivable has a payment that is more than 30
days overdue as of the Cutoff Date; provided however that no more than
$7,345,341.43 aggregate principal balance of the Receivables may have
payments that are more than 30 days but less than 60 days overdue as of the
Cutoff Date; no default, breach, violation or event permitting acceleration
under the terms of any Receivable has occurred; no continuing condition
that with notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable has arisen; and the Seller has not waived any of its rights
regarding the occurrence of any of the foregoing.
(xiii) Insurance. The Seller, in accordance with its customary
procedures, has determined that each Obligor has obtained physical damage
insurance covering the Financed Vehicle and under the terms of the
Receivable the Obligor is required to maintain such insurance.
(xiv) Title. It is the intention of the parties hereto that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Purchaser, and that the beneficial
interest in and title to the Receivables not be part of the debtor's estate
in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good and marketable title to
each Receivable free and clear of all Liens and, immediately upon the
transfer thereof, the Purchaser shall have good and marketable title to
each Receivable, free and clear of all Liens; and the transfer has been
perfected under the UCC.
(xv) Lawful Assignment. No Receivable was originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable or any Receivable under this Agreement, the
Sale and Servicing Agreement or the Indenture is unlawful, void or
voidable.
(xvi) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give the Purchaser a first perfected ownership
interest in the Receivables have been made.
(xvii) One Original. There is only one executed original of each
Receivable.
(xviii) Maturity of Receivables. Each Receivable has an original
maturity of not more than 60 months; the weighted average remaining term of
the Receivables is 50.99 months as of the Cutoff Date.
(xix) Scheduled Payments. (A) Each Receivable has a first Scheduled
Payment due, in the case of Precomputed Receivables, or a scheduled due
date, in the case of Simple Interest Receivables, on or prior to July 29,
1997 and (B) no Receivable has a final scheduled payment date later than
the Final Scheduled Maturity Date.
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(xx) Location of Receivable Files. The Receivable Files are kept at
one or more of the locations listed in Schedule II hereto.
(xxi) Outstanding Principal Balance. The Amount Financed pursuant to
each Receivable is at least $1,000.
(xxii) Financing. Approximately 85.38% of the aggregate principal
balance of the Receivables, constituting 88.64% of the number of
Receivables as of the Cutoff Date, represent financing of used vehicles;
the remainder of the Receivables represent financing of new vehicles;
approximately 92.39% of the aggregate principal balance of the Receivables
as of the Cut-off Date represent Precomputed Receivables; and the remainder
of the Receivables represent Simple Interest Receivables. The aggregate
Principal Balance of the Receivables as of the Cutoff Date is $135,007,436.
(xxiii) No Bankruptcies. As of the Cutoff Date, no Obligor on any
Receivable was noted in the related Receivable File as having filed for
bankruptcy.
(xxiv) No Repossessions. No Financed Vehicle securing any Receivable
is in repossession status.
(xxv) Chattel Paper. Each Receivable constitutes "chattel paper" as
defined in the UCC.
(xxvi) Underwriting Guidelines. Each Receivable was originated by the
Dealer and purchased by NAL in accordance with the underwriting guidelines
described in the Private Placement Memorandum.
(xxvii) Servicing. As of the Cutoff Date each Receivable was being
serviced by the Servicer and no other person had a right to service such
Receivable.
(xxviii) Full Amount Advanced. The full principal amount of each
Receivable has been advanced to each Obligor, and there is no requirement
for future advances thereunder. The Obligor with respect to the Receivable
does not have any option under the Receivables to borrow from any person
additional funds secured by the Financed Vehicle.
(xxix) Obligation to Dealers or Others. The Purchaser and its
assignees will assume no obligations to Dealers or other originators of
prior holders of the Receivables (including, but not limited to obligations
under dealer reserves) as a result of its purchase of the Receivables.
(xxx) Collection Practices. The Collection practices utilized by any
person servicing a Receivable in seeking payment under the documentation
evidencing such Receivable have been in all respects legal, proper and
customary in the automobile loan servicing business.
(xxxi) First Payment. The first payment on each Receivable with
respect to which the first payment was not yet due as of the Cutoff Date
will be made in full no later than the 45th day after its due date.
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(xxxii) Private Placement Memorandum. The Private Placement Memorandum
does not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading.
(xxxiii) Subsequent Transfer. The representations and warranties of
the Depositor in Section 3.01 of the Sale and Servicing Agreement are true
and correct.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Obligation of the Purchaser. The obligation of
the Purchaser to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and warranties
of the Seller and NAL hereunder shall be true and correct on the Closing Date
with the same effect as if then made, and each of the Seller and NAL shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Closing Date indicate in its computer files that the Receivables
have been sold to the Purchaser pursuant to this Agreement, and deliver to the
Purchaser the Schedule of Receivables certified by the Chairman, the President,
a Vice President or the Treasurer to be true, correct and complete.
(c) Documents To Be Delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller will execute and
deliver an Assignment substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the Closing Date, the
Seller shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by the Seller, as seller or debtor, and naming the Purchaser as
purchaser or secured party, describing the Receivables and the other
property included in the Owner Trust Estate, meeting the requirements of
the laws of each such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of such Receivables
to the Purchaser. The Seller shall deliver a file-stamped copy or other
evidence satisfactory to the Purchaser of such filing to the Purchaser on
or prior to the Closing Date.
(iii) Other Documents. Such other documents as the Purchaser may
reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated on
the Closing Date shall be consummated on such date.
SECTION 4.02. Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the satisfaction
of the following conditions:
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(a) Representations and Warranties True. The representations and warranties
of the Purchaser hereunder shall be true and correct on the Closing Date with
the same effect as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser shall
have delivered to the Seller the purchase price specified in Section 2.01.
ARTICLE V
Covenants of the Seller and NAL
The Seller and NAL agree with the Purchaser as follows:
SECTION 5.01. Protection of Right, Title and Interest. (a) Filings. NAL and
the Seller shall cause all financing statements and continuation statements and
any other necessary documents covering the right, title and interest of the
Seller and the Purchaser, respectively, in and to the Receivables and the other
property included in the Owner Trust Estate to be promptly filed and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Purchaser hereunder in and to the Receivables and the other
property included in the Owner Trust Estate. NAL and the Seller shall deliver to
the Purchaser file stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available following
such recordation, registration or filing. The Purchaser shall cooperate fully
with NAL and the Seller (and the Seller will cooperate with NAL) in connection
with the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this paragraph.
(b) Name Change. Within 15 days after the Seller makes any change in its
name, identity or corporate structure that would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the applicable provisions of the UCC or any title statute, the
Seller shall give the Purchaser notice of any such change and, no later than 5
days after the effective date thereof, shall file such financing statements or
amendments as may be necessary to continue the perfection of the Purchaser's
interest in the property included in the Owner Trust Estate.
(c) Resolution. The Seller shall have an obligation to give the Purchaser
at least 60 days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment or new financing statement. The Servicer shall
at all times maintain each office from which it shall service Receivables, and
its principal executive office, within the United States of America.
(d) Notice. If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the Seller
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or printouts (including any restored from backup archives) that,
if they shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has
11
been sold and is owned by the Purchaser. Should any third party inquire of the
Seller as to the Receivables, the Seller will promptly indicate to such party
that the Receivables have been sold to the Purchaser pursuant to this Agreement.
SECTION 5.02. Other Liens or Interests. Except for the conveyances
hereunder and under the Sale and Servicing Agreement, the Indenture, the Trust
Agreement and the other Basic Documents, the Seller will not sell, pledge,
assign or transfer to any Person, or grant, create, incur, assume or suffer to
exist any Lien on, or any interest in, to or under the Receivables, and the
Seller shall defend the right, title and interest of the Purchaser in, to and
under the Receivables against all claims of third parties claiming through or
under the Seller; provided, however, that the Seller's obligations under this
Section shall terminate upon the termination of the Trust pursuant to the Trust
Agreement.
SECTION 5.03. Costs and Expenses. NAL agrees to pay all reasonable costs
and disbursements in connection with the perfection, as against all third
parties, of the Seller's or any of its assignees right, title and interest in
and to the Receivables.
SECTION 5.04. Indemnification. NAL shall indemnify the Purchaser for any
liability resulting from the failure of a Receivable to be originated in
compliance with all requirements of law and for any breach of any of its or the
Seller's representations and warranties contained herein and for any failure by
the Seller to comply with its obligations under Sections 5.01 and 5.02 hereof.
These indemnity obligations shall be in addition to any obligation that NAL or
the Seller may otherwise have.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Obligations of Seller and NAL. The obligations of the Seller
and NAL under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 6.02. Repurchase Events. NAL hereby covenants and agrees with the
Seller for the benefit of the Seller and its assignees or their respective
assignees the occurrence of a breach of any of NAL's representations and
warranties contained in Section 3.02(c), unless any such breach shall have been
cured by the last day of the Collection Period following the discovery thereof
by NAL, or receipt by NAL of written notice from the Owner Trustee, the
Indenture Trustee, the Depositor, the Servicer, or the Back-up Servicer, shall
constitute an event obligating NAL to purchase as of such last day any
Receivable hereunder with respect to which such breach occurred if such breach
has had a material and adverse effect on the interests of the Purchaser or the
Trust in and to such Receivable (each, a "Repurchase Event"), at the Purchase
Amount from the Purchaser or, upon the assignment contemplated by the Sale and
Servicing Agreement, from the Trust. The repurchase obligation of NAL shall
constitute the sole remedy (other than that provided by Section 5.04) of the
Purchaser, the Trust, the Indenture Trustee, the Noteholders, the Owner Trustee
or the Certificateholders against NAL with respect to any Repurchase Event.
SECTION 6.03. Purchaser Assignment of Repurchased Receivables. With respect
to all Receivables purchased by NAL pursuant to this Agreement, the Purchaser
shall assign, without
12
recourse, representation or warranty, to NAL all the Purchaser's right, title
and interest in and to such Receivables and all security and documents relating
thereto.
SECTION 6.04. The Trust. The Seller and NAL acknowledge and agree that (a)
the Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, Grant the Receivables and
its rights under this Agreement and the Sale and Servicing Agreement to the
Indenture Trustee on behalf of the Noteholders and (c) the representations and
warranties contained in this Agreement and the rights of the Purchaser under
this Agreement, including under Section 6.02 are intended to benefit the Trust,
the Certificateholders and the Noteholders. The Seller and NAL hereby consent to
all such sales and assignments and agree that the Owner Trustee or, if pursuant
to the Indenture, the Indenture Trustee may exercise the rights of the Purchaser
and enforce the obligations of the Seller and NAL hereunder directly and without
the consent of the Purchaser.
SECTION 6.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agency, by a written amendment duly
executed and delivered by NAL, the Seller and the Purchaser, to cure any
ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to add any other provision with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement or the Sale and Servicing
Agreement, the Trust Agreement or the Indenture; provided that such amendment
shall not, in the Opinion of Counsel satisfactory to the Owner Trustee and the
Indenture Trustee, materially and adversely affect the interest of any
Noteholder or Certificateholder in the Trust or the Receivables. This Agreement
may also be amended by NAL, the Seller and the Purchaser, with prior written
notice to the Rating Agency, with the consent of the holders of Notes evidencing
at least a majority of the Outstanding Amount of the Notes and the holders of
Certificates evidencing at least a majority of the Certificate Balance for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders in the Trust or Receivables; provided,
however, that no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that are required to be made for the benefit of
Noteholders or Certificateholders or (ii) reduce the aforesaid percentage of the
Notes and Certificates that is required to consent to any such amendment,
without the consent of the holders of all the outstanding Notes and
Certificates.
SECTION 6.06. Accountants' Letters. (a) Price Waterhouse LLP will review
the characteristics of the Receivables and will compare those characteristics to
the information with respect to the Receivables contained in the Private
Placement Memorandum; (b) the Seller will cooperate with the Purchaser and Price
Waterhouse LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the review set forth
in clause (a) above and to deliver the letters required of them under the
Private Placement Memorandum; (c) Price Waterhouse LLP will deliver to the
Purchaser a letter, dated the date of the Private Placement Memorandum, in the
form previously agreed to by the Seller and the Purchaser, with respect to the
financial and statistical information contained in the Private Placement
Memorandum and with respect to such other information as may be agreed in the
form of letter.
SECTION 6.07. Waivers. No failure or delay on the part of the Purchaser, or
any assignee of the Purchaser, in exercising any power, right or remedy under
this Agreement shall
13
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
SECTION 6.08. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, or recognized overnight courier or by facsimile
confirmed by delivery or mail as described above, and shall be deemed to have
been duly given upon receipt (a) in the case of the Seller, to AUTORICS, Inc.,
000 Xxxxxxx Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Telephone: 000-000-0000: Fax: 000-000-0000, Attention: Xxxxxx X. Xxxxxxx; (b) in
the case of the Purchaser, to AUTORICS II, Inc., 000 Xxxxxxx Xxxxx Xxxx Xxxx,
Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Telephone: 000-000-0000; Fax:
000-000-0000, Attention: Xxxxxx X. Xxxxxxx; (c) in the case of NAL, to NAL
ACCEPTANCE CORPORATION, 000 Xxxxxxx Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, Telephone: 000-000-0000; Fax: 000-000-0000, Attention: Xxxxxx X.
Xxxxxxx; and (d) in the case of the Rating Agency, to Fitch Investors Service,
L.P., Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, X.X. 00000 Tel: (212)
000-0000; Fax: (000) 000-0000; Attn: Xxxxxxx X. Xxxxxx; or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
SECTION 6.09. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and NAL
agrees to pay all reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder.
SECTION 6.10. Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by NAL,
the Seller and the Purchaser set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the sales and assignments
referred to in Section 6.04.
SECTION 6.11. Confidential Information. The Purchaser agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Receivables, under the Sale and Servicing Agreement, the Indenture,
the Trust Agreement or any other Basic Document or as required by any of the
foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
SECTION 6.13. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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SECTION 6.14. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
AUTORICS, INC.,
by
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
NAL ACCEPTANCE CORPORATION,
by
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
AUTORICS II, INC.,
by
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
16
ASSIGNMENT
For value received, in accordance with the Receivables Purchase Agreement
dated as of June 1, 1997, among AUTORICS, INC. (the "Seller"), NAL ACCEPTANCE
CORPORATION and AUTORICS II, INC. (the "Purchaser"), the Seller does hereby
sell, assign, transfer and otherwise convey unto the Purchaser, without recourse
(subject to the obligations of the Seller and NAL in the Receivables Purchase
Agreement), all right, title and interest of the Seller in and to (but none of
the obligations of the Seller with respect to) (i) the Receivables, and all
moneys received thereon on and after the Cutoff Date plus all Payaheads as of
the Cutoff Date; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables, any other right to realize upon property
securing a Receivable and any other interest of the Seller in such Financed
Vehicles including the Seller's right, title and interest in the lien on the
Financed Vehicles in the name of Autorics, Inc. or the Seller's agents, NAL or
SFI; (iii) any proceeds with respect to the Receivables from claims on any
Insurance Policies relating to the Financed Vehicles or Obligors; (iv) proceeds
of any recourse (but none of the obligations) to Dealers on Receivables; (v) any
Financed Vehicle that shall have secured a Receivable and shall have been
acquired by or on behalf of the Purchaser, or, upon the assignment contemplated
by the Sale and Servicing Agreement, the Servicer or the Trust; (vi) the
Receivables Files; (vii) the obligations, duties and responsibilities of NAL to
the Seller made under the Receivables Purchase Agreement, including without
limitation, the representations and warranties on the Receivables made by NAL
pursuant to Section 3.02(b) of the Receivables Purchase Agreement and the
representations and warranties on the Receivables made by NAL pursuant to
Section 3.02(c) of the Receivables Purchase Agreement and the right of the
Seller to cause NAL to purchase the Receivables under certain circumstances; and
(viii) the proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by the Purchaser of
any obligation of the undersigned to the Obligors, insurers, Dealers or any
other person in connection with the Receivables, Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Receivables Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of June 1, 1997.
AUTORICS, INC.
by
-------------------------------
Name:
Title:
SCHEDULE I
Schedule of Receivables
[To Be Delivered at Closing]
I-1
SCHEDULE II
Location of Receivable Files
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
II-1
