EXECUTION COPY
ASTA AUTO RECEIVABLES COMPANY
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES,
SERIES 1997-1
CERTIFICATE PURCHASE AGREEMENT
July 30, 1997
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
1997-1 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 July 1, 1997, among the Company, as seller, Asta Funding, as Servicer, CSC
Logic/MSA, L.L.P., as backup servicer (the "Backup Servicer"), The Chase
Manhattan Bank, as trustee (the "Trustee") and The Chase Manhattan 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 Cutoff
Date. Upon your request, the Company will furnish to you, on or before such date
as you shall specify, a private placement memorandum, dated July 30, 1997, which
will more fully describe the Designated 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". Capitalized terms used herein which are not otherwise defined
shall have the meanings ascribed to such terms in the Pooling and Servicing
Agreement.
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 July 1, 1997 (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 and as of any Subsequent Transfer
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 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.
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(k) Immediately prior to each 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 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:
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(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 $21,119,985
(including accrued interest from and including the Cutoff 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.
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:
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(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 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
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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 &
Sutcliffe LLP, special counsel for the Purchaser, such opinions as you
may reasonably require, and 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 or
Xxxxxxxxxx, Sandler, Kohl, Xxxxxx & Xxxxxx, 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
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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 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
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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 or
Xxxxxxxxxx, Sandler, Kohl, Xxxxxx & Xxxxxx, 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 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
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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 and the Class B Certificates
shall have been rated no lower than "A" or "BBB", respectively, by Duff
& Xxxxxx Credit Rating Co.
(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.
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(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 Xxxxxxxxxx, Sandler, Kohl,
Xxxxxx & Boylan, Roseland, 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 Reed, Smith, Xxxx & XxXxxx,
Philadelphia, Pennsylvania, a favorable opinion regarding perfection of
the Trust's security interest in the Receivables, the Trust's security
interest in the Financed Vehicles and the enforceability of the
Pennsylvania form of Contract, all in form and substance reasonably
satisfactory to you and your counsel.
(l) You shall have received from Xxxxxxx Xxxx & Xxxxxxxxx, New
York, New York, 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 New York tax matters, all in form
and substance satisfactory to you and your counsel.
(m) You shall have received such further information,
certificates, documents and opinions as you may reasonably have
requested not later than the Closing Date.
(n) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be satisfactory in form and substance to you and your counsel, and you
and your counsel shall have received such information, certificates and
documents as you or they may have reasonably requested.
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.
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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 Term Sheet,
dated July 21, 1997, 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
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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 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
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(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 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:
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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: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: President
ASTA FUNDING, INC.
By: /s/ Xxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxx
Title: CFO
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written:
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SCHEDULE I
Certificate Purchase Agreement dated July 30, 1997
Closing Date: July 30, 1997
Title, Purchase Price and Description of Designated Certificates:
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES,
SERIES 1997-1, CLASS A and CLASS B
Aggregate Initial Certificate Balance: $21,119,985
Cutoff Date with respect to the Initial Receivables: July 1, 1997
Designated Certificates Original Certificate Balance
----------------------- ----------------------------
Class A $15,839,989
Class B 5,279,996
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