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EXECUTION COPY
ASTA AUTO RECEIVABLES COMPANY
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES,
SERIES 1996-1
CERTIFICATE PURCHASE AGREEMENT
September 30, 1996
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Dear Sir or Madam:
Asta Auto Receivables Company, a Delaware corporation (the "Company") and
a wholly-owned subsidiary of Asta Funding, Inc., a Delaware corporation ("Asta
Funding") (each of the Company and Asta Funding are sometimes hereinafter
referred to as an "Asta Entity"), proposes to sell to you its Asta Auto Trust
1996-1 Automobile Receivable Pass-Through Certificates in the classes, in the
respective original principal amounts and with the designations set forth in
Schedule I hereto (the "Designated Certificates"). Only the Designated
Certificates are being purchased by you hereunder. The Designated
Certificates (collectively, the "Certificates"), will be issued by the Company
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of September 1, 1996, among the Company, as seller,
Xxxxxx Trust and Savings Bank, as back-up servicer (the "Back-up Servicer"),
and Xxxxxx Trust and Savings Bank, as trustee (the "Trustee") and Xxxxxx Trust
and Savings Bank, as custodian (the "Custodian"). Each Certificate will
evidence the holder's fractional undivided interest in a trust (the "Trust"),
created pursuant to the Pooling and Servicing Agreement, and consisting
primarily of a pool (the "Pool") of retail installment sale contracts for new
or used automobiles, vans and light-duty trucks between dealers and retail
purchasers (the "Contracts" or the "Receivables") and certain monies received
thereunder on and after the Cut-off Date. Upon your request, the Company will
furnish to you, on or before such date as you shall specify, a private
placement memorandum, dated October 4, 1996, which will more fully describe
the Designated Certificates and the Class C Certificates. Such private
placement memorandum, in the form so furnished, including the documents
incorporated by reference thereto or attached as exhibits thereto, is herein
referred to as the "Memorandum".
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1. Representations and Warranties of the Asta Entities. Each Asta
Entity represents and warrants to, and agrees with, you and each person who
purchases a Designated Certificate directly from you that:
(a) Such Asta Entity has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has full power and authority (corporate and other) necessary to
own or hold its properties and to conduct its business as now conducted
by it and to enter into and perform its obligations under this Agreement,
the Pooling and Servicing Agreement and the Purchase Agreement dated as
of September 1, 1996 (the "Purchase Agreement"), between the Company and
Asta Funding.
(b) This Agreement has been duly authorized, executed and delivered
by the Company and Asta Funding.
(c) The Pooling and Servicing Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by the Company, and when so executed
and delivered, will constitute a legal, valid, binding and enforceable
agreement of the Company, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or
at law.
(d) The Purchase Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed
and delivered by the Company and Asta Funding, and when so executed and
delivered, will constitute a legal, valid, binding and enforceable
agreement of each of the Company and Asta Funding, except insofar as any
indemnification provisions therein may be limited by applicable law.
(e) The Memorandum and any amendment or supplement thereto, as of
the date thereof, and as of the date hereof, will not contain an untrue
statement of any material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) As of the Closing Date, the Designated Certificates and the
Pooling and Servicing Agreement will conform in all material respects to
the respective descriptions thereof contained in the Memorandum. As of
the Closing Date, the Designated Certificates will be duly and validly
authorized and, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and
delivered to you against payment therefor as provided herein, will be
duly and validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
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(g) On the Closing Date, the representations and warranties of the
Company and Asta Funding with respect to the Contracts contained in the
Pooling and Servicing Agreement and the Purchase Agreement, respectively,
will be true and correct.
(h) Neither Asta Entity is in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument which violation or default would have a material adverse
affect on such Asta Entity. Neither the issuance and sale of the
Designated Certificates, nor the execution and delivery by either Asta
Entity of this Agreement, the Pooling and Servicing Agreement or the
Purchase Agreement, nor the consummation by either Asta Entity of any of
the transactions herein or therein contemplated, nor compliance by either
Asta Entity with the provisions hereof or thereof, does or will conflict
with or result in a breach of any term or provision of the certificate of
incorporation or by-laws of such Asta Entity or conflict with, result in
a breach, violation or acceleration of, or constitute a default under,
the terms of any indenture or other agreement or instrument to which such
Asta Entity is a party or by which it is bound, or any statute
(including, without limitation, any local registration or licensing
requirements), order or regulation applicable to such Asta Entity of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over such Asta Entity. Neither Asta Entity is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it that materially and
adversely affects, or may in the future materially and adversely affect,
(i) the ability of such Asta Entity to perform its obligations under this
Agreement, the Pooling and Servicing Agreement or the Purchase Agreement
or (ii) the business, operations, financial conditions, properties or
assets of such Asta Entity.
(i) There are no actions or proceedings against, or investigations
of, either Asta Entity pending, or, to the knowledge of such Asta Entity,
threatened, before any court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, the Purchase Agreement or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, the Pooling
and Servicing Agreement or the Purchase Agreement, (iii) that are
reasonably likely to be adversely determined and that might materially
and adversely affect the performance by such Asta Entity of its
obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement, the Purchase Agreement or the
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates as described in the Memorandum.
(j) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement, the Pooling and
Servicing Agreement and
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the Purchase Agreement or the execution, delivery and sale of the
Certificates have been or will be paid on or prior to the Closing Date.
(k) Immediately prior to the assignment of the Contracts to the
Trustee as contemplated by the Pooling and Servicing Agreement, the
Company (i) had good title to, and was the sole owner of, each Contract
free and clear of any pledge, mortgage, lien, security interest or other
encumbrance (collectively, "Liens"), (ii) had not assigned to any person
any of its right, title or interest in such Contracts or in the Pooling
and Servicing Agreement and (iii) will have the power and authority to
sell such Contracts to the Trustee, and upon the execution and delivery
of the Pooling and Servicing Agreement by the Trustee, the Trustee will
have acquired all of the Company's right, title and interest in and to
the Contracts.
(l) There are no contracts, agreements or understandings between
either Asta Entity and any person granting such person the right to
require the Company to file a registration statement under the Securities
Act of 1933, as amended (the "1933 Act"), with respect to any Designated
Certificates owned or to be owned by such person.
(m) The sale of the Designated Certificates pursuant to this
Agreement is exempt from the registration and prospectus delivery
requirements of the 1933 Act. In the case of each offer or sale of the
Designated Certificates, no form of general solicitation or general
advertising was used by the Company or its representatives, including,
but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Neither the Company nor any person acting on its behalf has
offered or sold, nor will the Company or any person acting on its behalf
offer or sell directly or indirectly, any Designated Certificate or any
other security in any manner that, assuming the accuracy of the
representations and warranties and the performance of the covenants given
by you, would render the issuance and sale of any of the Designated
Certificates as contemplated hereby a violation of Section 5 of the 1933
Act or the registration or qualification requirements of any state
securities laws, nor has the Company authorized, nor will it authorize,
any person to act in such manner.
(n) Neither the Company nor the Trust is, and neither the issuance
and sale of the Certificates nor the activities of the Trust pursuant to
the Pooling and Servicing Agreement will cause the Company or the Trust
to be, an "investment company" or under the control of an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act").
(o) Each Asta Entity is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in
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all jurisdictions in which the ownership or lease of its properties or the
conduct of its business shall require such qualifications.
2. Representations, Warranties and Covenants of the Purchaser. You
represent and warrant to, and agree with, the Company that:
(a) You are purchasing the Designated Certificates, in the Original
Class Certificate Principal Balances for each Class set forth on Schedule
I, solely for your own account as principal and not as nominee or agent
for any other person, and not with a view to, or for offer or sale in
connection with, any distribution (within the meaning of the 0000 Xxx) or
fractionalization thereof, subject, nevertheless, to the understanding
that the disposition of your property shall at all times be and remain
within your control. It is understood that you intend to reoffer or
resell the Designated Certificates from time to time in one or more
privately negotiated transactions.
(b) You are an "accredited investor" as defined in Rule 501(a)(1),
(2) or (3) of Regulation D under the 1933 Act or a "qualified
institutional buyer" as defined in Rule 144A under the 1933 Act.
(c) You will not offer the Designated Certificates or any part
thereof or any similar security for issue or sale to, or solicit any
offer to acquire any of the same from, anyone so as to bring the offer
and sale of the Designated Certificates to you and by you within the
provisions of Section 5 of the 1933 Act.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell the Designated Certificates to you, and you agree to purchase
the Designated Certificates from the Company, for the purchase price of
$ (including accrued interest from and including the Cut-off Date
to, but not including, the Closing Date).
4. Delivery and Payment. Delivery of and payment for the Designated
Certificates shall be made at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on the date specified in
Schedule I hereto, which date and time may be changed by mutual agreement
between you and the Company (such date and time of delivery and payment for
the Designated Certificates being herein called the "Closing Date"). Delivery
of the Designated Certificates shall be made to you against payment by you of
the purchase price therefor in immediately available funds wired to such bank
as may be designated by the Company, or such other manner of payment as may be
agreed upon by the Company and you. The Designated Certificates to be so
delivered shall be in definitive, fully registered form, in such denominations
and registered in such names as you may have requested in writing not less
than two full business days in advance of the Closing Date.
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The Company agrees to have the Designated Certificates available for
inspection, checking and packaging by you in New York, New York on the
business day prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees with you
that:
(a) On the date hereof or such other date as you may specify (the
"Memorandum Delivery Date"), the Company will prepare and furnish to you
the Memorandum, appropriately completed, with such changes therein as are
satisfactory to you and your counsel.
(b) If, at any time prior to 90 days after the Memorandum Delivery
Date or such later date as you shall have resold all of the Designated
Certificates, any event occurs as a result of which the Memorandum (as
then amended or supplemented) would include an untrue statement of a
material fact, or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, the Company will promptly prepare and furnish to
you an amendment or supplement to the Memorandum reasonably satisfactory
to you and your counsel that will correct such statement or omission.
(c) During the period referred to in Section 5(b), the Company will
furnish to you, without charge, copies of the Memorandum (including all
documents incorporated by reference therein and all amendments or
supplements to such documents) in each case as soon as available and in
such reasonable quantities as you request.
(d) During the period referred to in Section 5(b), the Company
will, at your request, furnish through you to any prospective purchaser
of Designated Certificates from you such information as is reasonably
requested and is reasonably available concerning matters reasonably
relevant to such prospective purchaser's decision to purchase the
Designated Certificates and the Company represents and warrants that such
information will be accurate and not misleading.
(e) The Company authorizes you to deliver to investors copies of
the Memorandum, as then amended or supplemented as contemplated by
Section 5(b) hereof, and any information provided under Section 5(d)
hereof in connection with any reoffer or resale of the Designated
Certificates by you in accordance herewith.
(f) The Company agrees to use its best efforts to furnish (or cause
to be furnished) such information and to execute such documents or
instruments as you may reasonably request to satisfy any condition to the
availability of an exemption under the state securities or "blue sky"
laws of any state for any sale of Designated
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Certificates by you (provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Certificates, in any jurisdiction where it is not now so subject).
(g) The Company will pay all reasonable costs and expenses in
connection with the transactions herein contemplated, including, but not
limited to, the reasonable fees and disbursements of its counsel and your
counsel; the costs and expenses of printing (or otherwise reproducing)
and delivering the Memorandum, the Pooling and Servicing Agreement and
the Certificates; the fees, costs and expenses of the Trustee (to the
extent permitted under the Pooling and Servicing Agreement, and except to
the extent that another party is obligated to pay such amounts
thereunder) and the fees and disbursements of accountants for the Company
(including those fees and disbursements arising in connection with any
comfort letter issued by such accountants that addresses the information
contained in the Memorandum).
(h) The Company will enter into the Pooling and Servicing Agreement
and Purchase Agreement on or prior to the Closing Date.
(i) The Company agrees to take such action as you shall reasonably
request following the Closing Date in connection with any subsequent
transfer of the Designated Certificates by you.
6. Conditions to the Purchase of the Designated Certificates. Your
obligation hereunder to purchase the Designated Certificates shall be subject
to the accuracy of the representations and warranties on the part of the Asta
Entities contained herein as of the date hereof and as of the Closing Date, to
the accuracy of the statements of the Asta Entities made in any certificates
delivered pursuant to the provisions hereof, to the performance by each Asta
Entity of its obligations hereunder and to the following additional
conditions:
(a) Each Asta Entity shall have delivered to you a certificate of
such Asta Entity, signed by the President or a vice president of such
Asta Entity and dated the Closing Date, to the effect that the signer of
such certificate has carefully examined this Agreement and that to the
best of such signer's knowledge: (i) the representations and warranties
of such Asta Entity in this Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as
if made on the Closing Date and (ii) such Asta Entity has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(b) You shall have received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, special counsel for the Purchaser, such opinions as you may
reasonably require, and
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the Company shall have furnished to such counsel such documents as you may
reasonably request for the purposes of enabling them to render such
opinions.
(c) You shall have received from Xxxxxxx Xxxx & Xxxxxxxxx, special
counsel for the Asta Entities, a favorable opinion, dated the Closing
Date, substantially to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company and Asta Funding, and when so executed and
delivered, constitutes a legal, valid, binding and enforceable
agreement of each Asta Entity, enforceable according to its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Company, and when so
executed and delivered, constitutes a legal, valid, binding and
enforceable agreement of the Company, enforceable according to its
terms, subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law;
(iii) The Purchase Agreement has been duly authorized,
executed and delivered by the Company and Asta Funding constitutes a
legal, valid, binding and enforceable agreement of each of the
Company and Asta Funding, except insofar as the indemnification
provisions therein may be limited by applicable law;
(iv) The issuance of the Certificates has been duly and validly
authorized by all required corporate action by the Company and when
executed and countersigned in the manner contemplated in the Pooling
and Servicing Agreement will be validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement;
(v) The offer and sale of the Designated Certificates to you
in the manner contemplated in this Agreement and the Pooling and
Servicing Agreement is not, assuming the accuracy of your
representations and warranties and the performance of your covenants
contained herein, a transaction requiring the registration of the
Designated Certificates under the 1933 Act;
(vi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and
neither the
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Company nor the Trust is required to be registered under the
Investment Company Act;
(vii) The Trust as described in the Memorandum will be
treated as a partnership for federal income tax purposes and will
not be treated as an association or publicly traded partnership
taxable as a corporation;
(viii) The Certificates, the Pooling and Servicing Agreement,
the Servicing Assumption Agreement and the Purchase Agreement will
conform in all material respects to the descriptions thereof
contained in the Memorandum; and
(ix) Such counsel has no reason to believe that the Memorandum,
as of its date, and as amended or supplemented, if applicable, as of
the Memorandum Delivery Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading; it being understood that such counsel
need express no opinion as to the financial and statistical
statements or other financial data contained or incorporated by
reference in the Memorandum.
(d) You shall have received from Xxxxxxx Xxxx & Xxxxxxxxx, special
counsel for the Asta Entities, a favorable opinion, dated the Closing
Date, to the effect that:
(i) Each Asta Entity has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has full corporate power and authority
necessary to execute, deliver and perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Purchase
Agreement;
(ii) To their knowledge there are no actions, proceedings or
investigations pending or threatened against or affecting either
Asta Entity before or by any court, arbitrator, administrative
agency or other governmental authority reasonably likely to be
adversely determined that would materially and adversely affect the
ability of such Asta Entity to carry out the transactions
contemplated in this Agreement, the Pooling and Servicing Agreement
or the Purchase Agreement;
(iii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by
either Asta Entity of the transactions contemplated herein, except
such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the
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Designated Certificates and except any recordation of the assignments
of the Contracts to the Trustee pursuant to the Pooling and Servicing
Agreement that have not yet been completed; and
(iv) To their knowledge, neither Asta Entity is in violation of
its certificate of incorporation or by-laws or in default under any
agreement, indenture or instrument the effect of which violation or
default would be material to such Asta Entity, and neither the
issuance and sale of the Designated Certificates, nor the execution
or delivery of or performance under this Agreement, the Pooling and
Servicing Agreement or the Purchase Agreement, nor the consummation
of any other of the transactions contemplated herein or therein will
conflict with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with the
passing of time or notification, or both, would constitute a
default) under, the certificate of incorporation or by-laws of
either Asta Entity, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which either Asta
Entity or any of its affiliates is a party or by which it or any of
them is bound, or any New York or federal statute or regulation
applicable to either Asta Entity or any of its affiliates or, to the
knowledge of such counsel, any order of any New York or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over either Asta Entity or any of its
affiliates.
With respect to the opinions in paragraphs (c) and (d) above, such
counsel may: (1) express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the
Pooling and Servicing Agreement and the Purchase Agreement; (2) assume
the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than an Asta
Entity; and (3) qualify such opinion only as to the federal laws of the
United States of America, the laws of the State of New York and the
general corporation law of the State of Delaware. You shall also receive
(as an additional addressee) all opinions of such counsel submitted to
the rating agency rating the Designated Certificates, such opinions to be
dated the Closing Date, which opinions shall include, among other things,
an opinion regarding the "true sale" nature of the transfer of the
Receivables under the Purchase Agreement and the non-consolidation of the
Asta Entities, in each case for purposes of federal laws relating to
bankruptcy, and an opinion as to the perfection of the Trust's security
interest in the Receivables and the Trust's security interest in the
Financed Vehicles under the law of the State of New York (subject to the
rights of third parties without notice).
(e) The Class A Certificates, the Class B Certificates and the
Class C Certificates shall have been rated no lower than "A", "BBB" and
"BB", respectively, by Duff & Xxxxxx Credit Rating Co.
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(f) You shall have received a letter from Xxxxxxx X. Xxxxxx &
Company, LLP regarding the Memorandum in form and substance satisfactory
to you and your counsel.
(g) You shall have received from counsel for the Trustee a
favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Pooling and
Servicing Agreement has been duly authorized, executed and delivered by
the Trustee and constitutes the legal, valid, binding and enforceable
agreement of the Trustee, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by you and
the Trustee.
(h) You shall have received from counsel for the Back-up Servicer a
favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel.
(i) On the Memorandum Delivery Date, each Asta Entity shall furnish
to you a certificate signed by the president or a senior vice president,
dated the Memorandum Delivery Date, to the effect that such officer has
no reason to believe and does not believe that the Memorandum, as of its
date, and as amended or supplemented, if applicable, as of the Memorandum
Delivery Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading and that the descriptions in the Memorandum of the Designated
Certificates and the Pooling and Servicing Agreement are accurate in all
material respects.
(j) You shall have received from LeBoeuf, Lamb, Xxxxxx & XxxXxx,
Newark, New Jersey, a favorable opinion regarding perfection of the
Trust's security interest in the Receivables, the Trust's security
interest in the Financed Vehicles and certain New Jersey tax matters, all
in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received from Xxxxxxx and Xxxxxx, Chicago,
Illinois, a favorable opinion regarding perfection of the Trust's
security interest in the Receivables and the Trust's security interest in
the Financed Vehicles and certain Illinois tax matters, all in form and
substance satisfactory to you and your counsel.
(l) You shall have received such further information, certificates,
documents and opinions as you may reasonably have requested not later
than the Closing Date.
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(m) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to you and your counsel, and you and
your counsel shall have received such information, certificates and
documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as approved in this Agreement, if
the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you and your counsel, this Agreement and
all your obligations hereunder may be cancelled by you at, or at any time
prior to, the Closing. Notice of such cancellation shall be given to the
Company in writing, or by telephone or facsimile transmission confirmed in
writing.
7. Conditions of the Company's Obligations. The obligation of the
Company to sell the Designated Certificates to you shall be subject to: (i)
the accuracy of your representations and warranties herein contained at and as
of the Closing Date and (ii) your performance of all of your obligations
hereunder to be performed at or prior to the Closing Date.
8. Information Provided by the Purchaser. It is understood and agreed
that the information contained in the first sentence of the last paragraph on
the cover page of the Memorandum and under the heading "Method of
Distribution" in the Memorandum is the only information furnished by the
Purchaser to the Company for inclusion in the Memorandum.
9. Indemnification and Contribution. The Company and Asta Funding
agree with you that:
(a) The Company and Asta Funding, jointly and severally, will
indemnify and hold harmless you and each person who controls you within
the meaning of either the 1933 Act or the Securities Exchange Act of
1934, as amended (the "1934 Act") against any and all losses, claims,
damages or liabilities, joint or several, to which you or any of them may
become subject under the 1933 Act, the 1934 Act, or other federal or
state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
(x) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Memorandum or in any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances in which
they were made, not misleading, or (y) arise out of or are based upon any
material inaccuracy contained in any statistical information provided by
the Company to you in writing or by electronic transmission prior to the
date hereof or in the Preliminary
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Term Sheet, dated September 16, 1996 and the written presentations to each
proposed rating agency, dated August, 1996, and agrees to reimburse each
such indemnified party for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
damage, liability or action including, without limitation, any such legal
or other expenses incurred in connection with any action or proceeding
between the indemnified party and any third party; provided, however, that
neither the Company nor Asta Funding will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company as herein
stated by you specifically for use in connection with the preparation
thereof. This indemnity will be in addition to any liability that the
Company may otherwise have.
(b) You will indemnify and hold harmless the Company, Asta Funding
and each of their respective directors and officers and each person, if
any, who controls the Company within the meaning of either the 1933 Act or
the 1934 Act, to the same extent as the foregoing indemnity from the
Company and Asta Funding to you, but only with reference to written
information furnished to the Company as herein stated by you specifically
for use in connection with the preparation of the documents referred to in
the foregoing indemnity, such information being only the information
described in Section 8 hereof. This indemnity will be in addition to any
liability that you may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it may
have to any indemnified party otherwise than under this Section 9. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or
them and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to elect separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election to so assume the defense of such action and
14
approval by the indemnified party of counsel, the indemnifying party will
not be liable for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i)
the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the
next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by you in the case of paragraph (a) of this
Section 9, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 shall for
any reason be unavailable to an indemnified party under this Section 9,
then you and the Asta Entities shall contribute to the amount paid or
payable by such indemnified party as a result of the aggregate losses,
claims, damages and liabilities referred to in paragraph (a) or (b) above,
in such proportion so that (i) you are responsible for the lesser of (1)
1.25% thereof and (2) 1.25% of the original principal balance of the
Designated Receivables (as set forth on Schedule I hereto) and (ii) the
Asta Entities are, jointly and severally, responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any,
who controls you within the meaning of either the 1933 Act or the 1934 Act
shall have the same rights to contribution as do you and each person, if
any, who controls the Company or Asta Funding within the meaning of either
the 1933 Act or the 1934 Act shall have the same rights to contribution as
does the Company and Asta Funding. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit
or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under
this paragraph (d).
10. Termination. (a) This Agreement shall be subject to termination in
your absolute discretion by notice given to the Company prior to delivery of
and payment for the Designated Certificates, if prior to such time, (i)
trading of securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited; (ii) a general
moratorium on commercial banking activities in New York
15
shall have been declared by either federal or New York State authorities; or
(iii) there shall have occurred any material outbreak or declaration of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Designated Certificates on the terms
specified herein.
(b) If the sale of the Designated Certificates shall not be consummated
because any condition to your obligations set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of your default, the Company shall reimburse you for the
reasonable fees and expenses of your counsel and for such other out-of-pocket
expenses as shall have been incurred by you in connection with this Agreement
and the proposed purchase of the Designated Certificates, and upon demand the
Company shall pay the full amount thereof to you.
(c) This Agreement will survive delivery of and payment for the
Designated Certificates. The provisions of Section 9 and this Section 10(c)
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
transmitted by facsimile and confirmed to you at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: President; or, if sent to the
Company, will be mailed, delivered or transmitted by facsimile and confirmed
to it at 000 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9 and
their successors and assigns, and no other person will have any right or
obligation hereunder.
13. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall
for all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and Asta Funding on the one hand and you on the other.
Very truly yours,
ASTA AUTO RECEIVABLES COMPANY
By:________________________________
Name:
Title: President
ASTA FUNDING, INC.
By:________________________________
Name: Xxxx Xxxxx
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written:
GREENWICH CAPITAL MARKETS, INC.
By:________________________________
Name:
Title:
17
SCHEDULE I
Certificate Purchase Agreement dated September 30, 1996
Closing Date: September 30, 1996
Title, Purchase Price and Description of Designated Certificates:
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES, SERIES 1996-1, CLASS A
and CLASS B
Aggregate Initial Certificate Balance: $23,967,605
Cut-off Date: September 1, 1996
(Date of purchase by Asta Funding for Contracts
originated after opening of business
on September 1, 1996 and prior to
close of business on September 10, 1996)
Original Amount Designated
Designated Certificate Retained Certificates
Certificates Balance by Seller Amount
Class A $22,050,197 $220,502 $21,829,695
Class B $ 958,704 $ 9,588 $ 949,116
