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EXHIBIT 10.132
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT is made as of March 30, 2000 (the
"Agreement"), by and between NUVELL CREDIT CORPORATION, a Delaware corporation
(the "Purchaser"), and NATIONAL FINANCIAL AUTO FUNDING TRUST II, a Delaware
business trust (the "Seller"), and NATIONAL AUTO FINANCE COMPANY, INC., a
Delaware corporation ("NAFI" or the "Guarantor").
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain motor vehicle retail installment sales contracts
satisfying the requirements of this Agreement, and which shall be delivered as
provided herein; and
WHEREAS, the Guarantor desires to enter into this Agreement for the
purpose of guaranteeing the obligations of the Seller and providing further
assurances to the Purchaser; and
WHEREAS, the Guarantor and the Purchaser have entered into that certain
Contract Sale Agreement dated as of February 4, 2000, which was amended by a
First Amendment to Contract Sale Agreement by and between the Guarantor and the
Purchaser dated as of February 29, 2000 (such Contract Sale Agreement, as
amended, is hereinafter referred to as the "Contract Sale Agreement"), pursuant
to which the Guarantor has agreed to sell, and the Purchaser has agreed to
purchase, "Eligible Program "Contracts," as defined in the Contract Sale
Agreement; and
WHEREAS, the Seller, the Guarantor and the Purchaser desire that the
transaction described in this Agreement be governed, to the extent so stated
herein, by the terms and provisions of the Contract Sale Agreement and that the
terms and provisions of the Contract Sale Agreement referred to herein be
incorporated in this Agreement as if fully set forth herein, except as otherwise
stated herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS
1.1 DEFINITIONS.
Each capitalized term in this Agreement shall have the meaning ascribed
to it set forth in the Contract Sale Agreement, unless otherwise stated in this
Agreement:
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AGREEMENT: This Sale and Purchase Agreement and all amendments and
supplements thereto.
ASSIGNMENT: An assignment by Seller to Purchaser, substantially in the
form of Exhibit A hereto, which shall have attached thereto as of the Closing
Date the Closing Date Contract Schedule setting forth the Contracts that
Purchaser shall purchase from Seller on the Closing Date.
CATEGORY I CONTRACTS: Contracts identified on the Master Contract
Schedule and any Closing Date Contract Schedule as "Category I Contracts," which
categorization shall determine the amount of the Purchase Price to be paid by
the Purchaser for the purchase of such Contracts pursuant to Section 2.1 of this
Agreement. Contracts identified on the Master Contract Schedule as Category I
Contracts that are thirty (30) or more days delinquent as of the applicable
Cutoff Date shall be classified as Category II Contracts on the applicable
Closing Date Contract Schedule.
CATEGORY II CONTRACTS: Contracts identified on the Master Contract
Schedule and any Closing Date Contract Schedule as "Category II Contracts,"
which categorization shall determine the amount of the Purchase Price to be paid
by the Purchaser for the purchase of such Contracts pursuant to Section 2.1 of
this Agreement. Contracts identified on the Master Contract Schedule as Category
II Contracts shall always be classified as Category II Contracts on any
applicable Closing Date Contract Schedule, notwithstanding that any such
Contract is less than thirty (30) days delinquent as of the applicable Cutoff
Date.
CATEGORY III CONTRACTS: Contracts identified on the Master Contract
Schedule and any Closing Date Contract Schedule as "Category III Contracts,"
which categorization shall determine the amount of the Purchase Price to be paid
by the Purchaser for the purchase of such Contracts pursuant to Section 2.1 of
this Agreement. All of such Contracts are pre-computed Contracts. Contracts
identified on the Master Contract Schedule as Category III Contracts shall
always be classified as Category III Contracts on any applicable Closing Date
Contract Schedule.
CLOSING DATE: The date specified in the Assignment on which Seller
shall sell to Purchaser, pursuant to this Agreement, Contracts specified in the
Closing Date Contract Schedule attached to such Assignment. The Seller and the
Purchaser understand and agree that there may be multiple Closing Dates under
this Agreement. Each Closing Date shall occur on such date as mutually agreed
upon by the Seller and the Purchaser; provided, however, if all conditions
precedent to the obligations of the Purchaser to purchase Contracts from the
Seller shall have been fulfilled, to the reasonable satisfaction of the
Purchaser, the first Closing Date shall occur no later than May 1, 2000, time
being of the essence.
CLOSING DATE CONTRACT SCHEDULE: The schedule identifying each Contract
sold to Purchaser on a Closing Date, which list shall be attached to the
Assignment as Schedule A.
CONTRACT: Any retail installment sale or conditional sale contract
executed by an Obligor in respect of a Financed Vehicle, and all proceeds
thereof and payments thereunder, that shall be
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identified on the Master Contract Schedule or which shall be sold and
transferred by the Seller to the Purchaser pursuant to Section 2.1 of this
Agreement. The Contracts identified on the Master Contract Schedule and any
Closing Date Contract Schedule shall be classified as either "Category I
Contracts," "Category II Contracts" or "Category III Contracts."
CUTOFF DATE: The date as of which the Net Principal Balance of each
Contract shall be determined for purposes of calculating the cash Purchase Price
to be paid by the Purchaser on a Closing Date. The Cutoff Date for each Closing
Date shall be a date mutually agreed upon by the Seller and the Purchaser.
DEFAULT: A Seller Default or a Purchaser Default.
MASTER CONTRACT SCHEDULE: As of the effective date of this Agreement,
the schedule identifying each Contract that may be sold to Purchaser on a
Closing Date, which is attached as Exhibit D to this Agreement, and which (a)
identifies each Contract by contract number and name of the Obligor and (b) sets
forth as to each Contract (I) the Amount Financed, (ii) the amount of each
monthly payment due from the Obligor, (iii) the APR (calculated in accordance
with the Contract), (iv) the Contract's Origination Date, (v) the date on which
in each month the scheduled payment is due, (vi) the Contract's original term in
months, (vii) the vehicle identification number of the related Financed Vehicle,
(viii) the outstanding principal/payoff balance of such Contract, (ix) the Net
Principal Balance of such Contract, determined in accordance with Section 2.1 of
this Agreement, (x) the next payment due date, (xi) the accrued and unpaid
interest of such Contract (xii) the number of days delinquent, if applicable,
(xiii) the number of times the Contract has been thirty (30) or more days
delinquent during the preceding twelve (12) months prior to the Closing Date,
and (xiv) the number of times the Contract has been sixty (60) or more days
delinquent during the preceding twelve (12) months prior to the Closing Date
(The parties agree that the foregoing information may be contained on a tape or
disk delivered by the Seller to the Purchaser, and accordingly, all such
information may not be included in the written Master Contract Schedule that is
attached as Exhibit D to this Agreement or in the Closing Date Contract Schedule
that is attached to the Assignment.).
NET PRINCIPAL BALANCE: The amount set forth as such on the Master
Contract Schedule determined in accordance with Section 2.1 of this Agreement.
ORIGINATION DATE: With respect to any Contract, the date on which such
Contract was executed by the related Obligor and the Dealer.
PURCHASE PRICE: The cash amount to be paid by the Purchaser to the
Seller on a Closing Date for the purchase of Contracts, determined in accordance
with Section 2.1 of this Agreement.
PURCHASER: Has the meaning set forth in the preamble herein.
PURCHASER DEFAULT: See Section 4.2.
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SELLER: Has the meaning set forth in the preamble herein.
SELLER DEFAULT: See Section 4.1.
SOLD PROGRAM CONTRACT: Means a Program Contract sold by the Guarantor
to the Purchaser pursuant to Section 2.1 of the Contract Sale Agreement and a
Contract sold by the Seller to the Purchaser pursuant to Section 2.1 of this
Agreement.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
1.2 USAGE OF TERMS.
With respect to all terms in this Agreement, the singular includes the
plural and the plural the singular; words importing any gender include the other
genders; references to "writing" include printing, typing, lithography and other
means of reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the term "including," means "including without
limitation." All section and article references shall be to sections and
articles in this Agreement.
2. SALE OF CONTRACTS
2.1 SALE OF CONTRACTS.
(a) Subject to the terms and conditions of this Agreement, Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, on a
Closing Date the Contracts specified in the Master Contract Schedule for which
all conditions precedent to the Purchaser's obligation to purchase such
Contracts, as set forth in Section 2.6 of this Agreement, have been satisfied
for a Purchase Price equal to (a)(I) 99.50% of the Net Principal Balance of each
such Contract identified as a Category I Contract as of the Cutoff Date, (ii)
66.00% of the Net Principal Balance each such Contract identified as a Category
II Contract as of the Cutoff Date, and (iii) 91.00% of the Net Principal Balance
of each such Contract identified as a Category III Contract as of the Cutoff
Date, plus (b) accrued and unpaid interest on each such simple interest Contract
as of the Cutoff Date, up to a maximum of forty-five (45) days of accrued and
unpaid interest, plus (c) interest on the aggregate sum of the foregoing at the
rate of 4.5% per annum from the Cutoff Date through the day preceding the
Closing Date. For purposes of determining the Purchase Price, the Net Principal
Balance of each Contract shall not include administrative charges, late payment
fees, NSF fees, accrued interest or other charges that are not considered part
of the original principal balance. The Net Principal Balance of pre-computed
Contracts shall equal the payoff balance of such Contracts less unearned finance
charges as of the Cutoff Date. The Seller and the Purchaser agree that the sale
and purchase of the Category I Contracts and the
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Category II Contracts shall occur on the same Closing Date, which may be a date
preceding the Closing Date for the sale and purchase of the Category III
Contracts. The Seller and the Purchaser agree that the Closing Date for the sale
and purchase of the Category III Contracts shall occur as soon as practicable
after the Purchaser has completed a data conversion program that allows the
Purchaser to transfer and convert to its servicing system all of the relevant
electronic information relating to the Category III Contracts maintained by the
Guarantor on its servicing system. The Conveyance of Contracts on a Closing Date
shall be made by the Seller to the Purchaser by an Assignment in the form of
Exhibit A attached to this Agreement and in accordance with the remaining
sections of this Section 2. During the period from the effective date of this
Agreement through the termination of this Agreement, neither the Seller nor the
Guarantor shall engage in any conduct, act or transaction that will interfere
with the Purchaser's right to purchase the Contracts pursuant to this Agreement
or otherwise prevent or prohibit the Purchaser from exercising its rights with
respect to the Contracts pursuant to this Agreement.
(b) The sale by the Seller of each Contract shall be without recourse
by the Purchaser and its successors and assigns against Seller or the Guarantor,
except to the extent specifically provided for in this Agreement.
2.2 PURCHASER'S ACCESS TO AND REVIEW OF CONTRACT FILES.
(a) Prior to the Closing Date, Purchaser shall have the continuing
right to review the Contract Files for each Contract proposed to be sold by
Seller. Purchaser may reject any Contract that in Purchaser's judgment does not
materially conform to any representation or warranty contained in Article 3.
Each such unacceptable Contract shall be deleted from the Master Contract
Schedule before the applicable Closing Date, and if not so deleted, shall be
deemed approved by the Purchaser for purchase pursuant to this Agreement.
(b) For purposes of Purchaser's review of the Contract Files, Seller
shall afford Purchaser, its counsel, accountants, and other representatives full
access to Contract Files, Electronic Contract Information and books and records
of Seller relating to the Contracts, and to the extent necessary to evaluate the
purchase of the Contracts, the Seller shall cause its officers and employees to
provide such assistance and to furnish such reasonable available information in
respect to the Contracts as Purchaser may from time to time request.
(c) It is understood and agreed that the representations and warranties
of Seller and the Guarantor set forth in Article 3 shall survive any
investigation or review of the Contracts made by Purchaser before or after the
Closing Date.
2.3 CONVEYANCE OF CONTRACTS BY SELLER.
(a) The terms and provisions of Sections 2.3(a), (b) and (c) of the
Contract Sale Agreement are incorporated herein as if fully set forth herein;
provided, however, all references
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in such Sections 2.3(a), (b) and (c) to the term "Seller" shall be deemed to
mean the Seller under this Agreement.
(b) In connection with the sale and conveyance made hereunder, Seller
agrees to record and file, at its own expense, if so requested in writing by the
Purchaser prior to the Closing Date, a financing statement with respect to the
Contracts listed on the Closing Date Contract Schedule, prepared by Seller, and
relating to the Assignment, for the sale of chattel paper (as defined in Section
9-105 of the UCC as in effect in the State of Florida) meeting the requirements
of applicable state law in such manner as is necessary to perfect the
Purchaser's ownership interest in the Contracts, and the proceeds thereof (and
to file any continuation statements as are required by applicable state law) and
to deliver to Purchaser a file-stamped copy of such financing statement or other
evidence of such filing, as soon as practicable after receipt thereof by Seller.
2.4 PAYMENT OF PURCHASE PRICE.
On each Closing Date, Purchaser shall pay to Seller, by wire transfer
of immediately available funds to an account specified by Seller, an amount
equal to the aggregate Purchase Price for the Contracts purchased by the
Purchaser on such Closing Date.
2.5 INTENDED CHARACTERIZATION OF THE TRANSACTION; GRANT OF SECURITY
INTEREST IN FAVOR OF PURCHASER.
The terms and provisions of Section 2.4 of the Contract Sale Agreement
are incorporated herein as if fully set forth herein; provided, however, all
references in such Section 2.4 to the term "Seller" shall be deemed to mean the
Seller under this Agreement.
2.6 CONDITIONS TO OBLIGATION OF PURCHASER TO PURCHASE THE CONTRACTS.
The obligation of Purchaser to purchase the Contracts from Seller is
subject to the accuracy of the representations and warranties of Seller
contained herein, to the performance by Seller of its obligations hereunder and
to the satisfactory completion of the following acts and events:
(a) The Seller shall have delivered to the Purchaser on the applicable
Closing Date an executed Assignment, in substantially the form of Exhibit A to
this Agreement, with the Closing Date Contract Schedule setting forth the
Contracts conveyed and sold by the Seller to the Purchaser on such date
attached;
(b) With respect to the Category I Contracts and the Category II
Contracts, the Contract Files for each and every Contract shall have been
delivered to the Servicer pursuant to the Servicing Agreement, and the Servicer
shall have delivered to the Purchaser a written acknowledgment, in such form as
may be reasonably acceptable to the Purchaser, stating that upon Purchaser's
payment in full of the Purchase Price, Servicer is holding the Contract File for
each
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Contract identified on the Closing Date Contract Schedule as agent for the
Purchaser, and with respect to the Category III Contracts, the Contract Files
for each and every such Contract shall have been delivered to the Purchaser;
(c) The Seller shall have delivered to the Purchaser on or before the
applicable Closing Date (i) the executed original of each Contract identified on
the Closing Date Contract Schedule, (ii) the original of the certificate of
title, evidence of the filing of an application for a certificate of title with
the appropriate state agency or other evidence of title acceptable to the
Purchaser relating to each Financed Vehicle identified on the Closing Date
Contract Schedule, and (iii) a copy of Seller's internally prepared checklist
for each Contract identified on the Closing Date Contract Schedule indicating
that all required documentation and procedures with respect to the Seller's
purchase of each such Contract form a Dealer have been completed in accordance
with the Seller's credit and purchasing policies and procedures;
(d) The Seller and the Guarantor shall deliver to the Purchaser on or
before the applicable Closing Date a UCC-1 financing statement pursuant to
Section 2.3(b) above covering the Contracts identified on the Closing Date
Contract Schedule, if such has been requested in writing by the Purchaser prior
to the Closing Date;
(e) The Seller and the Guarantor shall deliver to the Purchaser on the
first Closing Date a certificate of each such entity's corporate secretary
confirming or certifying, as of such Closing Date, (I) the due organization and
good standing of the Seller and the due incorporation and good standing of
Guarantor under the laws of the State of Delaware (including a certificate of
good standing, dated as of a recent date, from the applicable governmental
authority in the State of Delaware that governs the corporate existence of the
Seller and the Guarantor), (ii) that the Seller's and the Guarantor's execution,
delivery and performance of this Agreement have been duly authorized by all
requisite action of the Seller and the Guarantor, and (iii) a copy of the
resolutions of the trustees of the Seller and the resolutions of the Board of
Directors of the Guarantor approving this Agreement and the transactions
contemplated hereby;
(f) The Seller and the Guarantor shall deliver to the Purchaser on the
Closing Date an Officer's Certificate in substantially the form of the Officer's
Certificate delivered by the Guarantor to the Purchaser pursuant to Section
3.1(a)(vi) of the Contract Sale Agreement, except all references therein to the
Contract Sale Agreement should be changed to this Agreement;
(g) The Seller and the Guarantor shall deliver to the Purchaser on the
Closing Date a favorable opinion of Seller's and Guarantor's counsel in
substantially the form of the opinion of counsel delivered by the Guarantor to
the Purchaser pursuant to Section 3.1(a)(viii) of the Contract Sale Agreement,
except all references therein to the Contract Sale Agreement should be changed
to this Agreement and such opinion should cover matters relevant to both the
Seller and the Guarantor;
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(h) The Seller shall deliver to the Purchaser on or before the Closing
Date a power of attorney from each named lienholder on any Financed Vehicle,
which power shall entitle the Seller, with full right of substitution, certain
irrevocable rights to effect the transfer of the Financed Vehicle or any lien on
the Financed Vehicle;
(i) The Seller shall deliver to the Purchaser on or before the Closing
Date a power of attorney from the Seller, which power shall entitle the
Purchaser and Nuvell Financial Services Corp. certain irrevocable rights to
effect the transfer of the Contracts, the Financed Vehicles, any lien on a
Financed Vehicle, the right to recover proceeds under any Insurance Policy and
other property rights transferred by the Seller to the Purchaser with respect to
each Sold Program Contract pursuant to this Agreement, substantially in the form
of Exhibit B hereto;
(j) If there shall exist any lien on the Contracts in favor of a lender
or other third party at any time prior to the Closing Date, a written release of
lien executed by such lienholder in such form as may be reasonably acceptable to
the Purchaser and copies of the UCC Termination Statements filed by such
lienholder in the appropriate jurisdictions or duplicate originals thereof for
each jurisdiction in which UCC Termination Statements must be filed, if such is
to be filed following the consummation of the acquisition of the Contracts by
the Purchaser;
(k) A list and detailed description of material pending and threatened
litigation to which the Seller, the Guarantor or any of their Affiliates or
assets may be subject (If there has been no change to the information provided
by the Guarantor to the Purchaser pursuant to Section 3.1(a)(xi) of the Contract
Sale Agreement, the Seller and the Guarantor may deliver to the Purchaser a
letter stating such, in lieu of the list required by this Section; and
(l) The Seller and the Guarantor shall have taken such other actions,
including delivery to the Purchaser of such approvals, consents, opinions,
additional information with respect to the Seller and the Guarantor, documents
and instruments as the Purchaser may reasonably request in writing prior to the
Closing Date.
2.7 TITLE TO CONTRACTS AND CONTRACT DOCUMENTS.
Upon payment of the Purchase Price on the Closing Date, the Purchaser
shall be deemed to own the Contracts identified on the Closing Date Contract
Schedule and all related documents, and all rights, benefits, collateral,
payments, recoveries, proceeds and obligations arising therefrom or in
connection therewith after the Cutoff Date. All rights arising out of the
Contracts, including, but not limited to, all funds received on or in connection
with the Contracts after the Cutoff Date and all records or documents with
respect to the Contracts prepared by or which come into the possession of Seller
or the Guarantor on or after the Cutoff Date, shall be received and held by
Seller and/or Guarantor in trust for the benefit of Purchaser, and such shall
promptly be paid and/or delivered by Seller and/or Guarantor, whichever may be
applicable, to Purchaser. In addition, any payments on or in respect of the
Contracts received prior to the related Cutoff
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Date which have not been applied to the amount due on the Contracts as of the
Cutoff Date shall be the property of Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF SELLER, GUARANTOR AND PURCHASER; REPURCHASE
OF CONTRACTS; INDEMNIFICATION; MISCELLANEOUS OTHER OBLIGATIONS OF SELLER
3.1 GENERAL REPRESENTATIONS AND WARRANTIES OF SELLER AND GUARANTOR.
Seller and Guarantor make the representations and warranties set forth
in Section 4.1 of the Contract Sale Agreement, as of the date of this Agreement
and as of each Closing Date, on which Purchaser relies in consummating the
transactions contemplated by this Agreement, except all references therein to
the Contract Sale Agreement shall also include this Agreement and all references
in Section 4.1 to Seller shall be deemed to mean both the Seller and the
Guarantor under this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF SELLER AS TO THE CONTRACTS.
As to each Contract (and, to the extent applicable, the related
Financed Vehicle) that is conveyed by the Seller to Purchaser pursuant to this
Agreement, Seller makes all of the representations and warranties with respect
thereto set forth in Section 4.2 of the Contract Sale Agreement, except (a)
references therein to Program Contracts, Eligible Program Contracts and Sold
Program Contracts shall also include Contracts conveyed by the Seller to the
Purchaser pursuant to this Agreement, (b) the Contracts conveyed by the Seller
to the Purchaser pursuant to this Agreement shall not be required to comply with
the Purchaser's Contract Requirements set forth in Exhibit C to the Contract
Sale Agreement, and (c) all references therein to the Seller's Contract Finance
Program Guidelines shall be deemed to mean the Seller's and/or the Guarantor's,
whichever is applicable, credit and purchasing policies and procedures existing
at the time the Contract was purchased by the Seller, and the following
representations and warranties, all of which shall be deemed made as of the
Closing Date, unless otherwise noted:
(a) Contract Schedule. The information set forth in the Master Contract
Schedule and the Closing Date Contract Schedule as to each Contract is true and
correct in all material respects; and the Net Principal Balance of each Contract
has been accurately and correctly determined. The last payment received on the
Contract was accurately recorded and is not subject to reversal because of a
failure to collect good and collected funds with respect to such payment.
(b) Timely Payments; Classification. With respect to Category I
Contracts and Category III Contracts, as of the applicable Cutoff Date, no
scheduled payment, or part thereof, is thirty (30) or more days past its
scheduled due date. With respect to Category I Contracts and Category III
Contracts, as of the applicable Cutoff Date, the Contract has not been sixty
(60) or
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more days delinquent at any time during the twelve (12) months preceding the
Cutoff Date. With respect to Category II Contracts, as of the applicable Cutoff
Date, no scheduled payment, or party thereof, is sixty (60) or more days past
its scheduled due date. No Contract involves a Financed Vehicle that has been
repossessed or sold or which is out for repossession or involves an Obligor or
Financed Vehicle the whereabouts are not known by the Seller or the Guarantor.
No Contract has had a check returned for insufficient funds since the last
scheduled payment was received on such Contract.
(c) No Government or Bankrupt or Employee Obligors. The Obligor is not
an employee of Seller or any affiliate thereof. The Obligor is not an agency of
the United States or any state thereof. The Obligor has not filed or had filed
against it since the Origination Date any petition for relief under any state or
federal bankruptcy, insolvency, receivership or similar law.
(d) Insurance. The related Financed Vehicle was, as of the Contract's
Origination Date, covered by a comprehensive and collision insurance policy on
the Financed Vehicle, providing for coverage against loss or damage by reason of
fire, theft, confiscation, transportation, collision and such other risks as are
generally included in comprehensive insurance policies for motor vehicles and
naming Seller or Guarantor, as the case may be, and its successors and assigns
as loss payees, and the Contract requires maintaining such a policy. Neither the
Seller nor Guarantor has information or knowledge that the Financed Vehicle for
any Contract has suffered any damage or loss that should be covered by any such
insurance, except as specifically disclosed in writing by the Seller and the
Guarantor to the Purchaser. If and to the extent that any Financed Vehicle has
ever been covered by insurance forced placed by the Seller or the Guarantor, as
the case may be, or any predecessor in interest (I) all such insurance has been
placed, implemented and administered in compliance with all applicable laws and
the terms and provisions of the Contract, (ii) all premiums due and payable to
the insurer have been paid by the Seller or the Guarantor, as the case may be,
or its predecessor in interest in accordance with the terms of the applicable
policy, (iii) the insurer has no rights or claims to or against the related
Contract, the Obligor or the Financed Vehicle as a result of such coverage, (iv)
there has been no misrepresentation of any material fact to the Obligor with
respect to such coverage, by either the insurer, the Seller, the Guarantor or
any predecessor in interest, and (v) all such coverages have been terminated
prior to the Closing Date by the Seller or the Guarantor, as the case may be,
and the insurer in compliance with all applicable laws and the terms and
provisions of the Contract. If an Obligor shall file or threaten to file a claim
or right of rescission, set-off, counterclaim or defense against the Seller or
the Guarantor or the Purchaser as a result of the force placing of insurance by
the Seller, the Guarantor or any predecessor in interest, then the Seller and
the Guarantor must, if so requested in writing by the Purchaser, repurchase the
applicable Contract pursuant to Section 3.5 of this Agreement.
(e) Guarantied Auto Protection Insurance, Loan Deficiency Waiver
Agreement or Debt Cancellation. If and to the extent that an Obligor has
purchased any loan deficiency waiver agreement, guarantied auto protection
insurance or debt cancellation agreement, such has been placed, sold,
implemented and administered in compliance with all applicable laws and the
terms
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and provisions of the Contract and the applicable instruments governing such
product, all premiums due and payable to the insurer or provider of such product
have been paid, and there has been no misrepresentation or omission of any
material fact to the Obligor with respect to such product.
(f) Good Title. Immediately prior to the sale herein contemplated,
Seller had good and marketable title or other evidence of title to the Contract,
and the Contract shall be transferred by Seller to Purchaser free and clear of
all liens, encumbrances, security interests, and rights of others.
(g) Lawful Assignment. The Contract was not originated in, nor is
subject to the laws of, any jurisdiction under which the sale, transfer, or
assignment of such Contract under this Agreement is unlawful, void, or voidable.
Neither Seller nor Dealer has entered into any agreement with any Obligor that
prohibits, restricts or conditions the assignment of any portion of the
Contract.
(h) One Original of Contract; Delivery of Contract File. There is only
one original executed Contract. The Contract File for each Contract contains all
of the documents identified as being contained therein by the definition of
"Contract File" set forth in Section 1.1 of this Agreement, and the Contract
File has been, or will be on or prior to the Closing Date, delivered to either
the Servicer or the Purchaser, as required by Section 2.6(b) of this Agreement.
3.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser makes the representations and warranties set forth in Section
6.1 of the Contract Sale Agreement, as of the date of this Agreement and as of
the Closing Date, on which Seller and Guarantor rely in consummating the
transactions contemplated by this Agreement, except all references therein to
the Contract Sale Agreement shall also include this Agreement.
3.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
It is understood and agreed that the representations and warranties set
forth in this Article 3, measured of the dates made, shall survive the sale of
the Contracts to the Purchaser and any assignment of a Contract to any
subsequent assignee and shall continue so long as any Contract shall remain
outstanding with regard to payment thereunder and shall remain subject to any
outstanding terms and conditions. The Seller and the Guarantor acknowledge that
the Purchaser may assign all of its right, title and interest in and to the
Contracts sold to the Purchaser pursuant to this Agreement and its right to
exercise the remedies created by this Article 3 to a subsequent assignee. The
Seller and the Guarantor agree that upon such assignment, any subsequent
assignee may enforce directly, with joinder of the Purchaser, the repurchase
obligations of the Seller set forth in Section 3.5 with respect to breaches of
the representations and warranties set forth in this Article 3.
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3.5 REPURCHASE OBLIGATION.
(a) Upon discovery by Seller or Purchaser of (I) a breach of any
representation or warranty of Seller or Guarantor set forth in Section 3.1 or
3.2 hereof that materially adversely affects the value of any Contract, the
collectibility of payments or proceeds under or with respect to any Contract,
the interest of Purchaser in any Contract or the properties or rights with
respect to any Contract conveyed by the Seller to the Purchaser pursuant to this
Agreement, (ii) a material breach of any covenant or obligation of Seller with
respect to any Contract set forth in Article 2, or (iii) a material data error
with respect to a Contract caused by or resulting from the boarding or servicing
of the Contract prior to the applicable Closing Date, the party discovering such
breach shall give prompt written notice to the other (the Purchaser agrees to
use reasonable efforts to provide the Seller any such written notice within
forty-five (45) days after the Purchaser shall have learned of any such breach
or circumstance), and Seller shall be obligated to cure such breach in all
material respects within thirty (30) days after its receipt of such notice. If
such breach is not cured by Seller within such period, then, in such event,
within five (5) days after Purchaser's delivery to Seller of written demand,
Seller and/or Guarantor shall repurchase the related Contract by delivering to
or upon the order of Purchaser an amount equal to the Repurchase Price. In
addition, within five (5) days after Purchaser's delivery to Seller of written
demand, the Seller and/or the Guarantor shall repurchase, by delivering to or
upon the order of Purchaser an amount equal to the Repurchase Price for the
applicable Contract, any Contract involving an Obligor who has failed to pay
since the Contract's Origination Date at least three (3) scheduled monthly
payments prior to the time such Contract becomes forty-five (45) or more days
delinquent. Seller and Purchaser will use their best efforts to identify and
note on the applicable Closing Date Contract Schedule each Contract that may
become subject to repurchase by the Seller and/or the Guarantor pursuant to the
preceding sentence.
(b) Upon such repurchase and the payment of the Repurchase Price, the
Purchaser or any subsequent assignee shall execute and deliver an assignment and
the Purchaser or any subsequent assignee shall assign to Seller, all of the
Purchaser's or any subsequent assignee's right, title and interest in such
repurchased Contract, without recourse, representation or warranty, except as to
the absence of liens, charges or encumbrances created by or arising as a result
of actions of the Purchaser or any subsequent assignee, other than liens,
charges or encumbrances created or arising out of this Sale Agreement. The
Purchaser and any subsequent assignee agree that it will promptly execute and
deliver and take all further action that may be necessary or appropriate, or
that the Seller may reasonably request, in order to perfect, protect or more
fully evidence the transfer of ownership of such Sold Program Contract to Seller
pursuant to Section 3.5(a). In the event Seller and Guarantor do not repurchase
a Contract as required by subsection (a) above, any action taken by Purchaser to
sell or liquidate the Contract or the related Financed Vehicle in good faith and
in a commercially reasonable manner shall be final and conclusively binding upon
Seller in determining the amount payable by Seller to Purchaser under Section
3.5(a) hereof. If the Purchaser shall proceed, in good faith, with the
liquidation of a Contract or the repossession and/or liquidation of the related
Financed Vehicle prior to the Seller's repurchase of the Contract as required by
subsection (a) above, then Seller shall reimburse the Purchaser for reasonable
out-of-pocket expenses incurred by the Purchaser in connection with such
process,
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which, if not included in the calculation of the Repurchase Price pursuant to
its definition as set forth in Section 1.1 hereof, shall be in addition to the
Repurchase Price payable by Seller.
3.6 INDEMNIFICATION BY SELLER AND GUARANTOR.
The indemnification obligations of the Seller and the Guarantor with
respect to Contracts sold by the Seller to the Purchaser pursuant to this
Agreement and with respect to the other matters addressed by this Agreement
shall be identical to the indemnification obligations of the Guarantor pursuant
to Section 8.1 of the Contract Sale Agreement. Accordingly, Section 8.1 of the
Contract Sale Agreement is hereby incorporated herein, except that references
therein to "Sold Program Contracts" shall be deemed to mean Contracts sold by
the Seller to the Purchaser pursuant to this Agreement, references therein to
"Seller" shall be deemed to mean both the Seller and the Guarantor under this
Agreement, and references therein to representations, warranties and covenants
of the "Seller" shall be deemed to mean representations, warranties and
covenants of the Seller and the Guarantor under this Agreement.
3.7 INDEMNIFICATION BY PURCHASER.
Purchaser shall indemnify and hold harmless Seller and Guarantor and
each such entity"s parent, Subsidiaries, Affiliates and their directors,
officers, employees and authorized agents against any claim, action, demand,
proceeding and suit brought by any Person other than the Seller or the
Guarantor, whether or not groundless, and against every liability, damage and
cost (including reasonable legal fees and related costs), arising out of,
directly or indirectly, from any such claim, action, demand, proceeding or suit,
resulting from, arising out of or relating to: (I) any material breach by
Purchaser of its representations and warranties, covenants or obligations
contained in this Agreement, or (ii) any act or omission by Purchaser or its
agents, officers or employees or controlled Affiliates (not including acts and
omissions of the Guarantor while it is acting as servicer of the Contracts
pursuant to the Servicing Agreement) with respect to the collection, application
or administration of payments under any Contract sold by the Seller to the
Purchaser pursuant to this Agreement, the repossession of any Financed Vehicle
that secures a such Contract, or the exercise of any rights or pursuit of claims
against any Obligor under any such Contract, which results in a material loss by
or claim against the Seller or the Guarantor.
3.8 INDEMNIFICATION GENERALLY
(a) A claim for indemnification pursuant to this Article shall be made,
if at all, within five (5) years after the Closing Date, notwithstanding any
statute of limitations that may specify a shorter period, the provisions of
which are hereby waived. The Purchaser, the Seller or the Guarantor, as the case
may be, may make a demand for indemnification pursuant to this Article only if
the amount of all claims for indemnification exceeds, or is reasonably expected
to exceed, $25,000 in the aggregate.
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14
(b) As a condition of any claim for indemnification under this Article,
the indemnifying party shall be given timely notice of any claim or demand as to
which indemnification may be claimed and shall have the right, together with the
indemnified party, to participate in the defense, compromise or closing thereof
through the indemnifying party"s own attorney and at the indemnifying party's
expense.
(c) If a party has received indemnity payments hereunder with respect
to a Contract and thereafter receives payments from third parties so as to fully
recoup its losses with respect to such Contract, the indemnified party shall
remit any excess payments to the indemnifying party to the extent of the
indemnification payments previously made by the indemnifying party and subject
to the rights of the Obligor.
3.9 NON-SOLICITATION OF OBLIGORS.
From and after the Closing Date as to any Contract and for so long as a
Contract is outstanding, neither Seller nor Guarantor nor any officer or
employee of Seller or Guarantor shall knowingly solicit, and the Seller and
Guarantor and their officers and employees shall not encourage or recommend any
agent or representative of Seller or Guarantor to solicit, any Obligor in
respect of a Contract, either singly or as part of a group, on behalf of Seller
or Guarantor or any other entity in any manner that would encourage prepayment
of such Contract, except that Seller and Guarantor may continue to make general
solicitations to the public and the Seller's and the Guarantor's customers and
may advertise, sell and provide all financial services offered by Seller and/or
Guarantor.
3.10 OBLIGATIONS OF GUARANTOR.
The Guarantor hereby unconditionally, absolutely and irrevocably
guarantees to Purchaser and its successors and assigns full, prompt and
unconditional performance of every obligation to be performed by the Seller
under this Agreement, as if it were to be performed by the Guarantor. This
guaranty is a continuing one and shall apply to all amendments and modifications
of this Agreement until the termination of Seller's obligations. A release of
Seller by Purchaser shall not be construed or deemed a release by Guarantor
unless such release specifically names the Guarantor as a released party.
3.11 DUTIES OF SELLER WHILE ACTING AS SERVICER; SELLER SHALL PROVIDE
ASSISTANCE WITH RESPECT TO CONVERSION OF DATA.
Purchaser and Seller agree that the Category I Contracts and Category
II Contracts sold by the Seller and purchased by the Purchaser pursuant to this
Agreement shall be serviced by the Seller pursuant to the terms and provisions
of the Servicing Agreement. Purchaser and Seller agree that the Category III
Contracts shall be sold by the Seller to the Purchaser servicing released to the
Seller, or its designated servicer, as of the applicable Closing Date.
Accordingly, the terms and provisions of Section 5.4, including the repurchase
obligation of the "Seller" thereunder
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15
(which applies to the Seller and the Guarantor under this Agreement), of the
Contract Sale Agreement are incorporated herein and made a part hereof.
4. EVENTS OF DEFAULT
4.1 SELLER DEFAULTS.
For purposes of this Agreement, each of the following shall constitute
an event of default by Seller (each, a "Seller Default") hereunder:
(a) Any failure by Seller to deliver to or upon the order of Purchaser
any proceeds or payment required to be so delivered under the terms of this
Agreement, which failure continues for a period of five (5) Business Days after
discovery by Seller or written notice of such failure given to Seller by
Purchaser;
(b) Failure on the part of Seller duly to observe or perform in any
material respect any other covenant or agreement of Seller set forth in this
Agreement, which failure continues for a period of ten (10) Business Days after
discovery by Seller or written notice of such failure given to Seller by
Purchaser;
(c) The entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee
in bankruptcy, conservator, receiver, or liquidator for Seller in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceeding or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days;
(d) The consent by Seller to the appointment of a trustee in
bankruptcy, conservator, or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceeding of or relating to Seller or relating to all or substantially
all of its property; or Seller shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) Any representation, warranty, covenant or statement of Seller made
in this Agreement or any certificate, report or other writing delivered pursuant
hereto shall prove to be incorrect in any material respect as of the time when
the same shall have been made, and within ten (10) Business Days after written
notice thereof shall have been given to Seller by Purchaser, the circumstance or
condition in respect of which such representation, warranty, covenant or
statement was incorrect shall not have been eliminated or otherwise cured to the
satisfaction of Purchaser.
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16
4.2 PURCHASER DEFAULTS.
Any of the following acts or occurrences shall constitute an event of
default by Purchaser (each, a "Purchaser Default"):
(a) So long as no Seller Default has occurred or no notice of the
termination of this Agreement shall have been given pursuant to Section 4.3, any
failure by Purchaser to purchase the Contracts on the Closing Date or to pay any
amounts due pursuant to this Agreement, which failure continues for a period of
five (5) Business Days after discovery by Purchaser or written notice of such
failure given to Purchaser by Seller;
(b) Failure on the part of Purchaser duly to observe or perform in any
material respect any other covenant or agreement of Purchaser set forth in this
Agreement, which failure continues for a period of ten (10) Business Days after
discovery by Purchaser or written notice of such failure given to Purchaser by
Seller;
(c) The entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee
in bankruptcy, conservator, receiver, or liquidator for Purchaser in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceeding or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days;
(d) The consent by Purchaser to the appointment of a trustee in
bankruptcy, conservator, or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceeding of or relating to Purchaser or relating to all or
substantially all of its property; or Purchaser shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations; or
(e) Any representation, warranty, covenant or statement of Purchaser
made in this Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of the
time when the same shall have been made, and within ten (10) Business Days after
written notice thereof shall have been given to Purchaser by Purchaser, the
circumstance or condition in respect of which such representation, warranty,
covenant or statement was incorrect shall not have been eliminated or otherwise
cured to the satisfaction of Seller.
4.3 RIGHTS UPON DEFAULT OR BREACH.
(a) If a Seller Default or Purchaser Default shall occur and be
continuing prior to the transactions contemplated by this Agreement having been
consummated, so long as such Default has not been cured or waived, after the
expiration of any applicable cure period, the party not in default (the
"Non-Defaulting Party") can, by notice given in writing to the other party,
- 16 -
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immediately terminate this Agreement. Such right to terminate this Agreement,
together with all other rights and remedies from time to time conferred upon or
reserved by Seller or Purchaser, are cumulative, and none is intended to be
exclusive of another or any right or remedy which Seller or Purchaser may have
at law or in equity; provided, however, with respect to any Contract purchased
by the Purchaser pursuant to this Agreement, if there shall be a breach of any
representation or warranty with respect to such Contract set forth in Section
3.2 of this Agreement, or if the Seller shall be in default of any covenant or
obligation with respect to such Contract set forth in Article 2 of this
Agreement, then the sole remedy of the Purchaser with respect to such default or
breach shall be to require the Seller to repurchase such Contract pursuant to
Section 3.5 of this Agreement; provided, however, the preceding provision is not
intended to prohibit the Purchaser from seeking recourse against the Seller for
indemnification pursuant to Section 3.6 of this Agreement. No delay or omission
in insisting upon the strict observance or performance of any provision hereof
or in exercising any right or remedy shall be construed as a waiver or
relinquishment of such provision, nor shall it impair such right or remedy.
Every right and remedy may be exercised from time to time and as often as deemed
expedient.
(b) If either party shall bring a claim, action, demand, suit or
proceeding against the other party because of a breach or default of any term or
provision of this Agreement, not including a claim for indemnification pursuant
to Section 3.6 or 3.7 of this Agreement, the nondefaulting party's measure of
damages shall be limited as follows:
(i) With respect to a claim by the Purchaser that there has
occurred a breach of a representation or warranty set forth in Section
3.1 or 3.2 of this Agreement with respect to a Contract sold by the
Seller to the Purchaser pursuant to this Agreement or a default by the
Seller of a covenant or obligation set forth in Article 2 of this
Agreement with respect to a Contract sold by the Seller to the
Purchaser pursuant to this Agreement, the Purchaser shall be allowed to
recover from the Seller with respect to the Contract the amounts set
forth in Section 3.5 of this Agreement, plus reasonable attorneys' fees
and disbursements and related litigation expenses incurred by the
Purchaser to enforce its rights and remedies under this Agreement;
(ii) With respect to any other claim by the Purchaser against
the Seller, the Purchaser shall be allowed to recover from the Seller
its actual monetary loss directly incurred as a result of such default
or breach by the Seller, not to exceed recissionary damages calculated
in accordance with Section 3.5 of this Agreement, plus reasonable
attorneys' fees and disbursements and related litigation expenses
incurred by the Purchaser to enforce its rights and remedies under this
Agreement;
(iii) With respect to a claim by the Seller against the
Purchaser that there has occurred a breach or default by the Purchaser
of any covenant, obligation, representation or warranty set forth in
this Agreement, the Seller shall be allowed to recover from the
Purchaser the additional costs, expenses and financing costs (equal to
the difference between the Seller's actual cost of financing the
ownership of Eligible Program Contracts
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and Seven and 50/100 Percent (7.50%) per annum) actually incurred by
the Seller as the result of such breach or default, plus reasonable
attorneys' fees and disbursements and related litigation expenses
incurred by the Seller to enforce its rights and remedies under this
Agreement. Additional costs, expenses and financing costs actually
incurred by the Seller shall be based upon the Contracts identified on
the Master Contract Schedule which are not purchased by the Purchaser
pursuant to this Agreement, not including Contracts that are not
purchased for good cause; and
(iv) Neither the Purchaser nor the Seller shall be liable to
each other for any lost profits or loss of business or any special,
speculative, punitive, indirect, exemplary, punitive, consequential or
incidental damages, however caused or however based upon any theory of
liability.
4.4 WAIVER OF DEFAULTS.
Following the occurrence of a Seller Default or Purchaser Default, the
Non-Defaulting Party may, by written notice to the defaulting party, waive such
Default. Upon any such waiver, such Default shall cease to exist, and any Seller
Default or Purchaser Default, as the case may be, arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
5. MISCELLANEOUS PROVISIONS
5.1 INCORPORATION OF CERTAIN PROVISIONS OF CONTRACT SALE AGREEMENT; ENTIRE
AGREEMENT.
This Agreement incorporates certain terms and provisions of the
Contract Sale Agreement by reference herein. If and to the extend that the terms
and provisions of the Contract Sale Agreement incorporated in this Agreement
conflict with the terms and provisions of this Agreement, the terms and
provisions of this Agreement in conflict therewith shall govern. This Agreement
constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral (not including the Contract Sale Agreement
and the Servicing Agreement), between Purchaser and Seller and Guarantor with
respect to the subject matter hereof.
5.2 HEADINGS.
The headings and subheading of Articles and Sections contained in this
Agreement, except the terms identified for definition in Article 1 and elsewhere
in this Agreement, are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or any provision thereof.
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19
5.3 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida without regard to principles of conflicts of
law.
5.4 SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon Seller
and Purchaser and their respective successors and assigns.
5.5 MODIFICATION.
No amendment or other modification of this Agreement shall be effective
except pursuant to a written agreement executed by the duly authorized
representatives of Purchaser and Seller.
5.6 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed by first class mail,
postage prepaid, to:
Seller or Guarantor: National Auto Finance Company, Inc.
00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxx, President
Or such other address as may hereafter be furnished to Purchaser in writing by
Seller or Guarantor,
Purchaser: Nuvell Credit Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx,
Executive Vice President
Or such other address as may hereafter be furnished to Seller and Guarantor in
writing by Purchaser.
All such notices and other communications shall be deemed given on the
date received by the addressee.
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20
5.7 SEVERABILITY OF PROVISIONS.
If any provision of this Agreement is invalid or unenforceable, then,
to the extent such invalidity or unenforceability shall not deprive either party
of any material benefit intended to be provided by this Agreement, all of the
remaining provisions of this Agreement shall remain in full force and effect and
shall be binding upon the parties hereto.
5.8 COSTS, FEES AND EXPENSES.
If any legal proceeding is instituted by either party against the other
under this Agreement or in respect to any Contract, the non-prevailing party
shall also be required to pay the prevailing party's costs and expenses of such
litigation, including reasonable attorney fees. Each party agrees to pay all
costs, fees and expenses which it has incurred in connection with or incidental
to the matters contained in this Agreement, including, without limitation, any
fees and disbursements to its accountants and counsel.
5.9 JURISDICTIONS
Each of the Seller, the Guarantor and the Purchaser hereby irrevocably
and unconditionally submits, for itself and its property, to the non-exclusive
jurisdiction of any Arkansas state court, Florida xxxxx xxxxx, xxxxxxx xxxxx xx
xxx Xxxxxx Xxxxxx of America for the Eastern District of Arkansas, or federal
court of the United States of America for the Northern District of Florida, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement, or for recognition or enforcement of any
judgment, and the parties agree that all claims in respect of any such action or
proceeding may be heard and determined in such Arkansas or Florida state or, to
the extent permitted by law, federal court.
5.10 WAIVER OF TRAIL BY JURY.
PURCHASER AND SELLER AND GUARANTOR EACH HEREBY EXPRESSLY WAIVES (TO THE
EXTENT THAT IT MAY LAWFULLY DO SO) ANY RIGHT TO A TRIAL BY JURY TO WHICH IT MAY
BE ENTITLED IN ANY PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
5.11 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
5.12 REMEDIES.
Subject to the provisions of Section 4.3 of this Agreement, the parties
agree that immediate and irreparable damage would occur in the event any of the
provisions of this Agreement were
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21
not performed in accordance with the terms hereof and the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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22
IN WITNESS WHEREOF, Seller, Guarantor and Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
NUVELL CREDIT CORPORATION,
as Purchaser
By: /s/ XXXXXX X. XXXXX
------------------------------------------
Xxxxxx X. Xxxxx
Title: Executive Vice President
NATIONAL FINANCIAL AUTO FUNDING TRUST II
as Seller
By: /s/ AUTHORIZED SIGNATURE
------------------------------------------
Title:
---------------------------------------
NATIONAL AUTO FINANCE COMPANY, INC.,
as Guarantor
By: /s/ AUTHORIZED SIGNATURE
------------------------------------------
Title:
---------------------------------------
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23
EXHIBITS
EXHIBIT A - ASSIGNMENT
EXHIBIT B - POWER OF ATTORNEY
EXHIBIT C - MASTER CONTRACT SCHEDULE
- 23 -
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EXHIBIT A
ASSIGNMENT
ASSIGNMENT dated _______________, 2000, from NATIONAL FINANCIAL AUTO
FUNDING TRUST II ("Seller") to NUVELL CREDIT CORPORATION ("Purchaser").
FOR VALUE RECEIVED, pursuant to the Sale and Purchase Agreement dated
as of _______________, 2000, by and between Seller, National Auto Finance
Company, Inc., as "Guarantor," and Purchaser (the "Agreement"), Seller does
hereby sell, transfer, assign and convey unto Purchaser, its successors and
assigns, all of its right, title and interest in, to and under each and every
Motor Vehicle Receivable (the "Contracts") identified on the Contract Schedule
appended hereto (identified as Exhibit A to this Assignment), together with all
of its right, title and interest in, to and under all collateral, documents,
payments, recoveries, proceeds and obligations arising therefrom or in
connection therewith.
And Seller hereby represents, warrants and confirms to Purchaser,
subject to the terms and provisions of the Agreement, that all of Seller's
representations and warranties regarding the Seller and the Contracts made in or
pursuant to the Agreement are true and correct in all material respects as of
the date hereof and no event has occurred which, with notice or the passage of
time, would constitute a breach by Seller of its representations, warranties or
obligations under the Agreement.
And Seller hereby grants to Purchaser a power of attorney, with full
power of substitution, to execute in Seller's name and on Seller's behalf such
notices, endorsements (including, without limitation, endorsement of the
Contracts and any related promissory notes or other instruments), consents, and
other instruments and documents which may be reasonably necessary in Purchaser's
judgment to evidence the sale and assignment of the Contracts to Purchaser or to
record or otherwise perfect Purchaser's interest therein or in the collateral
securing the Contracts, or which may be otherwise consistent with the sale and
assignment of the Contracts effected by this Assignment and pursuant to the
Agreement. This power of attorney is coupled with an interest and is
irrevocable.
All terms used herein and not otherwise defined shall have the meaning
set forth in the Agreement. This Assignment is made WITHOUT RECOURSE AGAINST THE
SELLER OR THE GUARANTOR OR WARRANTY TO THE PURCHASER, except to the extent
specifically provided for in the Agreement.
IN WITNESS WHEREOF, Seller has caused this Assignment and Power of
Attorney to be executed by its duly authorized officer effective as of the date
first set forth above.
Seller: NATIONAL FINANCIAL AUTO FUNDING
TRUST II
By:
-----------------------------------
Name:
Title:
--------------------------------
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25
ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this __________ day of ___________________, 2000, before me
_____________________________ personally appeared
________________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
------------------------------------
Notary Public
My Commission expires: ______________
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26
EXHIBIT B
IRREVOCABLE POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, NATIONAL
FINANCIAL AUTO FUNDING TRUST II (the "Company") does hereby make, constitute and
appoint NUVELL CREDIT CORPORATION and NUVELL FINANCIAL SERVICES CORP., which are
hereby authorized to act together or separately, as its true and lawful
attorney-in-fact, with full power of substitution with respect to those certain
contracts described in an Assignment dated _______________, 2000, executed and
delivered by the undersigned for the benefit of Nuvell Credit Corporation, and
as such may be amended from time to time, the collateral securing such
contracts, and all security documents related thereto (collectively, the
"Property"), to (i) sign, acknowledge and file, in the name, place and stead of
the Company, all such certificates, documents and instruments, including, but
not limited to, any instrument of assignment, certificate of title, notice of
lien, assignment of lien, application for a certificate of title or duplicate of
such certificate, application to register or transfer title, document to effect
the notation of a lien upon a certificate of title or the assignment of such a
lien, notice of any such assignment, application to register or transfer the
rights as secured party under any policy of insurance, affidavits of
repossession, bills of sale, notices of sale, lien releases and odometer
statements, (ii) authorize the sale and disposition of Property and transact as
necessary to sell or re-market such Property, and (iii) sell the Property and
receive proceeds thereon through any authorized party or auction; and further as
said attorney-in-fact may deem fit and proper to perfect the right, title and
interest of Nuvell Credit Corporation and/or its successors and assigns in the
Property.
The undersigned further hereby gives and grants unto said
attorney-in-fact full power and authority to do and perform every act necessary
and proper to be done in the exercise of any of the foregoing powers with
respect to the Property as fully as the undersigned might or could do if
personally present.
This Power of Attorney is coupled with an interest and is irrevocable
by the undersigned. Anyone to whom this Power of Attorney is presented may rely
upon it without further inquiry of the undersigned. A photocopy of this Power of
Attorney shall have the same effect as an original, manually signed and
acknowledged counterpart of this Power of Attorney.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
___ day of _______________, 2000.
NATIONAL FINANCIAL AUTO FUNDING TRUST II
By:
-----------------------------------------
Title:
--------------------------------------
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27
ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this __________ day of ___________________, 2000, before me
_____________________________ personally appeared
________________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My Commission expires:
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28
EXHIBIT C
MASTER CONTRACT SCHEDULE
