EXHIBIT 1.1
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$62,098,000
NATIONAL AUTO FINANCE 1996-1 TRUST
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UNDERWRITING AGREEMENT
Dated as of November 7, 1996
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$62,098,000
NATIONAL AUTO FINANCE 1996-1 TRUST
UNDERWRITING AGREEMENT
November 7, 1996
First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
Xxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
NATIONAL FINANCIAL AUTO FUNDING TRUST, a Delaware business
trust (the "Seller"), hereby agrees with you as follows:
Section 1. AUTHORIZATION OF CERTIFICATES. The Seller has
authorized the issuance by National Auto Finance 1996-1 Trust (the "Trust") of
$62,098,000 of 6.33% Automobile Receivables-Backed Certificates, Series 1996-1
(the "Certificates"). The Certificates will evidence in the aggregate an
undivided ownership interest of 91% of the Trust to be formed pursuant to a
Pooling and Servicing Agreement dated as of November 1, 1996 (the "Pooling and
Servicing Agreement") by and among the Seller, National Auto Finance Company
L.P., as master servicer (the "Servicer" or "NAFCO"), and Xxxxxx Trust and
Savings Bank, as trustee (the "Trustee"). The assets of the Trust (the "Trust
Property") will include a pool of non-prime motor vehicle retail installment
sale contracts (the "Contracts"), all monies paid or payable thereunder on or
after the applicable cut-off date, security interests in the new and used
automobiles, light-duty trucks, vans and minivans financed by the Contracts, a
financial guaranty insurance policy (the "Policy") issued by Financial Security
Assurance ("FSA"), certain bank accounts, all proceeds of the foregoing, and
certain other property. The Seller will own the undivided interest in the Trust
not represented by the Certificates (the "Seller Interest"). The Seller Interest
will be subordinated to the Certificates. The Contracts will be serviced by the
Servicer, an affiliate of the Seller, and subserviced initially by Omni
Financial Services of America, Inc. ("OFSA"), a wholly owned subsidiary of World
Omni Financial Corp. ("World Omni"). The Certificates will be purchased by the
Underwriter pursuant to this Agreement. The Certificates will be issued on
November 13, 1996 or such other date as we shall mutually agree upon (the
"Closing Date").
The Seller has filed with the Securities and Exchange
Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-80813), including a base prospectus relating
to the Certificates under the Securities Act of 1933, as amended (the "1933
Act"). The term "Registration Statement" means such registration statement as
amended to the date of the Underwriting Agreement. The term "Base Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Base Prospectus together with the prospectus supplement
specifically relating to the Certificates, as first filed with the Commission
pursuant to Rule 424. The term "Preliminary Prospectus" means a preliminary
prospectus supplement specifically relating to the Certificates together with
the Base Prospectus.
Upon the execution of the Underwriting Agreement and the
authorization by the Underwriter of the release of such Certificates, the
Underwriter proposes to offer for sale to the public (each such purchaser, a
"Purchaser") the Certificates at the prices and upon the terms set forth in the
Prospectus.
Section 2. APPOINTMENT OF UNDERWRITER. Subject to the terms
and conditions set forth herein, the Seller agrees to issue and sell to First
Union Capital Markets Corp. (the "Underwriter"), and the Underwriter agrees to
purchase from the Seller, at the time and place and at the Purchase Price and in
the manner set forth herein, the entire original principal balance of the
Certificates. The "Purchase Price" for the Certificates, including the
underwriting discount, shall be equal to $61,896,181.50.
Section 3. PURCHASE, SALE AND DELIVERY. Payment for the
Certificates shall be made by a same day federal funds wire payable to the order
of the Seller upon delivery of the Certificates registered in global form to the
custodian for DTC, at the offices of Xxxxxxx Xxxxxxxx & Wood, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, before 4:00 P.M., New York time, on the
Closing Date. The denominations of the Certificates to be delivered and the name
in which each Certificate is to be registered will be set forth in a notice to
be delivered by you to the Trustee.
Section 4. REPRESENTATIONS AND WARRANTIES. (a) The
Seller hereby represents and warrants to you that as of the
date hereof, unless otherwise stated:
(i) The Registration Statement including a base prospectus
relating to the Certificates and the offering thereof from time to time
in accordance with Rule 415 under the 1933 Act has been filed with the
Commission and such Registration Statement, as amended to the date of
the Underwriting Agreement, has become effective. No stop order
suspending the effectiveness of such
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Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. A
prospectus supplement specifically relating to the Certificates will be
filed with the Commission pursuant to Rule 424 under the 1933 Act;
provided, however, that a supplement to the Prospectus prepared
pursuant to Section 5(ii) hereof shall be deemed to have supplemented
the Base Prospectus only with respect to the Certificates to which it
relates. The conditions to the use of a registration statement on Form
S-3 under the 1933 Act, as set forth in the General Instructions on
Form S-3, and the conditions of Rule 415 under the 1933 Act, have been
satisfied with respect to the Seller and the Registration Statement.
There are no contracts or documents of the Seller that are required to
be filed as exhibits to the Registration Statement pursuant to the 1933
Act or the rules and regulations thereunder that have not been so
filed.
(ii) On the effective date of the Registration Statement, the
Registration Statement and the Base Prospectus conformed in all
material respects to the requirements of the 1933 Act and the rules and
regulations thereunder, and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; on
the date of the Underwriting Agreement and as of the Closing Date, the
Registration Statement and the Prospectus conform, and as amended or
supplemented, if applicable, will conform in all material respects to
the requirements of the 1933 Act and the rules and regulations
thereunder, and on the date of the Underwriting Agreement and as of the
Closing Date, neither of such documents includes any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and neither of such documents as amended or supplemented,
if applicable, will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that the foregoing does not apply to statements or omissions
in any of such documents based upon written information furnished to
the Seller by any Underwriter specifically for use therein.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the condition (financial or otherwise), business, properties or results
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of operations of the Seller, whether or not arising in the ordinary
course of the business of the Seller.
(iv) The Seller is a Delaware business trust with full power
and authority to own its properties and conduct its business, as
presently conducted, and to enter into and perform its obligations
under this Agreement, the Sale Agreement, dated as of October 21, 1996
(the "Sale Agreement") by and between National Financial Auto Funding
Trust ("Funding Trust II") and the Seller, the Purchase Agreements,
dated as of October 21, 1996 (the "Purchase Agreement") by and between
the Seller and NAFCO or Auto Credit Clearinghouse, L.P. ("ACCH"), the
Insurance and Indemnity Agreement, dated as of November 13, 1996 (the
"Insurance and Indemnity Agreement") by and among NAFCO, the Seller and
FSA, the Master Spread Account Agreement, dated as of November 13, 1996
(the "Master Spread Account Agreement"), by and among the Seller, FSA
and the Trustee (together, the "Transaction Documents") and the
Certificates.
(v) Each of the Transaction Documents has been duly
authorized, executed and delivered by the Seller and constitutes a
valid and binding agreement of the Seller.
(vi) The Certificates will conform in all material respects to
the description thereof contained in the Registration Statement and the
Prospectus and, when issued and delivered pursuant to this Agreement,
will have been duly executed, issued and delivered and will be entitled
to the benefits of the Pooling and Servicing Agreement.
(vii) Neither the transfer and assignment of all of the
Seller's right, title and interest in the Contracts and the Trust
Property to the Trustee, nor the issuance nor the delivery of the
Certificates, nor the consummation of any other of the transactions
herein contemplated, nor the fulfillment of the terms of the
Certificates, the Transaction Documents or this Agreement, will result
in the breach of any term or provision of the organizational documents
of the Seller or conflict with, result in a breach, violation or
acceleration of or constitute a default under, the terms of any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Seller is a party or by which it is bound, or result in the
creation or imposition of any lien upon any of its material properties
pursuant to the terms of such indenture, mortgage, deed of trust or
other such instrument, other than the lien created pursuant to the
Pooling and Servicing Agreement, or violate any law, statute, order or
regulation applicable to the Seller of any court,
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regulatory body, administrative agency or governmental body having
jurisdiction over the Seller or any of their properties.
(viii) The Seller is not 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
or any of its properties, which materially and adversely affects (A)
the ability of the Seller to perform any of its obligations under the
Transaction Documents, or the ability of the Seller to perform any of
its obligations hereunder, or (B) the business, operations, financial
condition, properties or assets of the Seller, and the Seller is not a
party to, bound by or in breach or violation of any indenture,
mortgage, deed of trust or other agreement or instrument, which
materially and adversely affects the ability of the Seller to perform
any of its obligations under the Transaction Documents, or the ability
of the Seller to perform any of its obligations hereunder.
(ix) There are no actions, proceedings or investigations to
which the Seller, or any of its affiliates, is a party pending, or, to
the knowledge of the Seller, threatened, before any court, regulatory
body, administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of the Transaction
Documents or the Certificates, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by the Transaction Documents, (C) which might materially
and adversely affect the performance by the Seller of its obligations
under the Transaction Documents or the Certificates, (D) which might
materially and adversely affect the validity or enforceability of the
Transaction Documents or the Certificates or (E) which might adversely
affect the federal income tax attributes of the Certificates described
in the Prospectus.
(x) Any taxes, fees and other governmental charges arising
from the execution and delivery of Transaction Documents and in
connection with the execution, delivery and issuance of the
Certificates and with the execution and delivery of the Contracts,
including any amendments thereto and assignments and/or endorsements
thereof have been paid or will be paid by NAFCO or the Seller.
(xi) As of the Closing Date and each date of purchase of
Contracts thereafter, the Seller will have good and marketable title
to, and will be the sole owner of record of each Contract free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim
or
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other security interest except for the security interest granted to the
Trustee (collectively, "Liens").
(xii) As of the Closing Date and each date of purchase of
Contracts thereafter, neither the Seller nor any Person acting on the
Seller's behalf will have offered, transferred, pledged, sold or
otherwise disposed of any of its right, title and interest in the
Contracts or the Pooling and Servicing Agreement other than as
contemplated by this Agreement and the Pooling and Servicing Agreement;
and upon the execution and delivery of the Pooling and Servicing
Agreement and the execution and delivery of the Certificates, the
Seller will have taken all necessary steps to convey good and
marketable title to the Certificates to the Underwriter, in each case
free and clear of any Liens.
(xiii) The Seller is unaware of any facts or circumstances
that would materially adversely affect the Seller's ability to perform
its obligations under the Transaction Documents or its obligations with
respect to the Contracts.
(xiv) Each of the representations and warranties of the Seller
set forth in Section 2.03(b) and Section 2.03(c) of the Pooling and
Servicing Agreement are true and correct.
(xv) Each of the representations and warranties of NAFCO set
forth in Section 2.03(a) of the Pooling & Servicing Agreement and
Section 4.1 of the Purchase
Agreement are true and correct.
(xvi) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of
NAFCO since the financial statements dated June 30, 1996 were delivered
to you. Such financial statements (together with notes and schedules,
if any, thereto) fairly present the financial condition of NAFCO, as of
the dates indicated, for the periods specified, in conformity with
generally accepted accounting principles applied on a consistent basis
during such periods, except as indicated therein. Since the date of the
latest audited financial statements (together with the notes and
schedules, if any, thereto) previously delivered to you, NAFCO has not
sustained any material loss or interference with its business from
court or governmental action, order or decree, or otherwise, and, there
has not been any material reduction in the partners' capital (as such
terms are used in the audited financial statements of NAFCO) or a
material adverse change in the financial condition of NAFCO or any
material adverse change, or any development involving a
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prospective material adverse change in or affecting the general
affairs, management, financial position or results of operations of
NAFCO, which would adversely affect the ability of NAFCO to perform its
obligations hereunder or NAFCO's ability to perform its obligations
under the Purchase Agreements, the Insurance and Indemnity Agreement,
the Amended and Restated Servicing Agreement, dated as of December 8,
1994, (the "Amended and Restated Servicing Agreement") by and between
NAFCO and World Omni, the Supplement to the Amended and Restated
Servicing Agreement, dated November 13, 1996 (the "Supplement to the
Amended and Restated Servicing Agreement") by and between NAFCO and
OFSA and the Pooling and Servicing Agreement.
(xvii) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Property is not required to be registered under the Investment
Company Act of 1940, as amended.
Section 5. COVENANTS OF THE SELLER. The Seller hereby
covenants and agrees with you as follows:
(a) To furnish the Underwriter, without charge, copies of the
Registration Statement and any amendments thereto including exhibits
and as many copies of the Prospectus and any supplements and amendments
thereto as the Underwriter may from time to time reasonably request.
(b) Immediately following the execution of the Underwriting
Agreement, the Seller will prepare a prospectus supplement setting
forth the principal amount, notional amount or stated amount, as
applicable, of the Certificates covered thereby, the price at which the
Certificates are to be purchased by the Underwriter from the Seller,
either the initial public offering price or prices or the method by
which the price or prices at which the Certificates are to be sold will
be determined, the selling concessions and reallowances, if any, any
delayed delivery arrangements, and such other information as the
Underwriter and the Seller deem appropriate in connection with the
offering of the Certificates, but the Seller will not file any
amendment to the Registration Statement or any supplement to the
Prospectus of which the Underwriter shall not previously have been
advised and furnished with a copy within a reasonable time prior to the
proposed filing or to which the Underwriter shall have reasonably
objected. The Seller will use its reasonable best efforts to cause any
amendment to the Registration Statement to become effective as promptly
as possible. During the time when a Prospectus is required to be
delivered under the 1933 Act, the Seller will
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comply so far as it is able with all requirements imposed upon it by
the 1933 Act and the rules and regulations thereunder to the extent
necessary to permit the continuance of sales or of dealings in the
Certificates in accordance with the provisions hereof and of the
Prospectus, and the Seller will prepare and file with the Commission,
promptly upon request by the Underwriter, any amendments to the
Registration Statement or supplements to the Prospectus which may be
necessary or advisable in connection with the distribution of the
Certificates by the Underwriter, and will use its reasonable best
efforts to cause the same to become effective as promptly as possible.
The Seller will advise the Underwriter, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement or any amended Registration Statement has become effective or
any supplement to the Prospectus or any amended Prospectus has been
filed. The Seller will advise the Underwriter, promptly after it
receives notice or obtains knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, or the suspension of the
qualification of the Certificates for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose, or of any request made by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information, and the Seller will use its
reasonable best efforts to prevent the issuance of any such stop order
or any order suspending any such qualification, and if any such order
is issued, to obtain the lifting thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact, or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary for any other reason to amend or supplement the Prospectus to
comply with the 1933 Act, to promptly notify the Underwriter thereof
and upon its request to prepare and file with the Commission, at the
Seller's own expense, an amendment or supplement which will correct
such statement or omission or any amendment which will effect such
compliance.
(d) During the period when a prospectus is required by law to
be delivered in connection with the sale of the
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Certificates pursuant to the Underwriting Agreement, the Seller will
file, on a timely and complete basis, all documents that are required
to be filed by the Seller with the Commission pursuant to Sections 13,
14, or 15(d) of the 1934 Act.
(e) To qualify the Certificates for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Underwriter
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel in the amounts previously agreed to) in
connection with such qualification of the eligibility of the
Certificates for investment under the laws of such jurisdictions as the
Underwriter may designate provided that in connection therewith the
Seller shall not be required to qualify to do business or to file a
general consent to service of process in any jurisdiction.
(f) To make generally available to the Seller's security
holders, as soon as practicable, but in any event not later than
eighteen months after the date on which the filing of the Prospectus,
as amended or supplemented, pursuant to Rule 424 under the 1933 Act
first occurs, an earnings statement of the Seller covering a
twelve-month period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section 11(a) and Rule
158 of the 1933 Act.
(g) The Seller agrees that, so long as the Certificates shall
be outstanding, it will deliver to you and each Purchaser upon request,
all monthly servicing reports and any other reports available to the
holders of Certificates.
(h) The Seller agrees that any person designated in writing by
you or by any other holder of the Certificates may consult with the
proper officials of the Seller and the Seller shall use its reasonable
best efforts to arrange the cooperation of the officials of its
affiliates (including, without limitation, officials in charge of
servicing the Contracts) at such times and as often as you may
reasonably request regarding the information required to be furnished
pursuant to Section 5(g) or regarding the performance of the Seller's
covenants and agreements contained in this Agreement or the Transaction
Documents or regarding the information required to be furnished
pursuant to the Transaction Documents. In addition, the Seller agrees
to provide any further information and documentation as may reasonably
be requested by the holders of the Certificates regarding any of the
matters set forth herein or in the Transaction Documents; it being
understood that all such information
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and documentation may be subject to appropriate confidentiality
agreements.
Section 6. CONDITIONS OF UNDERWRITER OBLIGATION. Your
obligation to act as Underwriter for the Certificates on the Closing Date shall
be subject to the accuracy in all material respects of the representations and
warranties of the Seller herein and in the Transaction Documents, to the
performance by the Seller in all material respects of its obligations hereunder,
and to the execution and delivery of the Transaction Documents, the
Certificates, the Amended and Restated Servicing Agreement, the Assignment of
the Amended and Restated Servicing Agreement from World Omni to OFSA, dated
November 13, 1996, the Supplement to the Amended and Restated Servicing
Agreement, the Custodial Agreement, dated November 13, 1996 by and between the
Trustee and OFSA, by all parties thereto, and to the following additional
conditions:
(a) All actions required to be taken and all filings required
to be made by or on behalf of the Seller under the 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act") prior to
the sale of the Certificates shall have been duly taken or made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect; (ii) no proceedings for such
purpose shall be pending before or threatened by the Commission, or by
any authority administering any state securities or "Blue Sky" laws;
(iii) any requests for additional information on the part of the
Commission shall have been complied with to the Underwriter's
reasonable satisfaction, (iv) since the respective dates as of which
information is given in the Registration Statement and the Prospectus
except as otherwise stated therein, there shall have been no material
adverse change in the condition (financial or otherwise), business,
properties or results of operations of the Seller; (v) there are no
material actions, suits or proceedings pending before any court or
governmental agency, authority or body or to the knowledge of the
Seller threatened, affecting the Seller or the transactions
contemplated by the Underwriting Agreement; (vi) the Seller is not in
violation of its charter or its by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or its properties may be bound, which violations or defaults
separately or in the aggregate would have a material adverse effect on
the Seller.
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(c) Subsequent to the execution of the Underwriting Agreement,
there shall not have occurred any of the following: (i) if at or prior
to the Closing Date, trading in securities on the New York Stock
Exchange shall have been suspended or any material limitation in
trading in securities generally shall have been established on such
exchange, or a banking moratorium shall have been declared by New York
or United States authorities; (ii) if at or prior to the Closing Date,
there shall have been an outbreak or escalation of hostilities between
the United States and any foreign power, or of any other insurrection
or armed conflict involving the United States which results in the
declaration of a national emergency or war, and, in the reasonable
opinion of the Representative, makes it impracticable or inadvisable to
offer or sell the Certificates or (iii) if at or prior to the Closing
Date, a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State
authorities.
(d) The representations and warranties of the Seller contained
in Section 4 hereof and in the Transaction Documents shall be true and
correct in all material respects, and NAFCO and the Seller shall have
delivered to you certificates, dated the Closing Date, of the Executive
Vice President of National Auto Finance Corporation (the sole general
partner of NAFCO), acting solely in his capacity as executive officer
of National Auto Finance Corporation and not in his individual
capacity, to the effect that the signer of such certificate examined
this Agreement, the Transaction Documents, the Registration Statement
and the Prospectus and that: (i) the representations and warranties of
the Seller in Section 4 of this Agreement and in the Transaction
Documents are true and correct in all material respects, (ii) each of
NAFCO and the Seller have complied in all material respects with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date, (iii) nothing
has come to his attention that would lead him to believe that the
Registration Statement or the Prospectus as of the date thereof
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
and (iv) the conditions contained in Section 4(b) have been satisfied.
Such certificate shall further state that the contents thereof
constitute representations and warranties of the Seller to you and each
Purchaser as to the matters covered thereby.
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(e) You shall have received from Xxxxxxx Xxxxxxxx & Xxxx, a
favorable opinion, dated the Closing Date and reasonably satisfactory
in form and substance to you and your special counsel. In rendering
such opinion, counsel may rely, to the extent deemed proper and as
stated therein, as to matters of fact on certificates of responsible
officers of NAFCO, the Seller and public officials. In rendering such
opinion, such counsel may rely to the extent deemed proper and as
stated therein, as to matters of state law of jurisdictions other than
the jurisdictions in which such counsel is admitted to practice, and
opinions of local counsel satisfactory to your special counsel. Each
opinion shall state that it may be relied upon by the Purchasers and
you as if the same had been addressed to them or to you.
(f) You shall have received from Xxxxx Xxxxxxxxxx, your
special counsel, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to you, and NAFCO and the
Seller shall have furnished to your special counsel such documents as
they may request for the purpose of enabling them to pass on certain
matters.
(g) You shall have received a comfort letter, dated the
Closing Date and satisfactory to you (the "Comfort Letter") from
independent accountants, with respect to the Contracts.
(h) The Certificates shall have been rated at least "AAA" by
Standard and Poor's Ratings Service ("S&P") and "Aaa" by Xxxxx'x
Investor Services, Inc. ("Moody's").
(i) The Policy shall have been issued by FSA with respect to
the Certificates guaranteeing the payment of the Guaranteed
Distributions under the Pooling and Servicing Agreement.
(j) You shall have received a certificate of a responsible
officer of FSA stating that the information contained in the sections
of the Prospectus entitled "The Certificate Policy", "The Certificate
Insurer" and Appendix A thereto are true and correct in all material
respects.
(k) You shall have received a certificate of a responsible
officer of OFSA stating that the information contained in the Section
of the Prospectus entitled "Omni Financial Services of America, Inc."
is true and correct in all material respects.
(l) You shall have received an opinion of local Florida
counsel, dated the Closing Date and reasonably
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satisfactory in form and substance to you and your special counsel with
respect to the first priority security interest of the Seller and the
Trustee in the Contracts and with respect to the disclosures contained
in the Prospectus in the section entitled "State and Local Tax
Consequences - Florida".
(m) You shall have received an opinion of local Tennessee
counsel, dated the Closing Date and reasonably satisfactory to you and
your special counsel with respect to the disclosure contained in the
Prospectus in the section entitled "State and Local Tax Consequences
Tennessee".
(n) You shall have received an opinion of the general counsel
of NAFCO, dated the Closing Date and reasonably satisfactory in form
and substance to you and your special counsel.
(o) You shall have received an opinion of counsel to FSA,
dated the Closing Date and reasonably satisfactory in form and
substance to you and your special counsel.
(p) You shall have received an opinion of counsel to the
Trustee dated the Closing Date and reasonably satisfactory in form and
substance to you and your special counsel.
(q) You shall have received an opinion of counsel to OFSA,
dated the Closing Date and reasonably satisfactory in form and
substance to you and your special counsel.
(r) You shall have received an opinion of local Delaware
counsel to the Seller, dated the Closing Date, and reasonably
satisfactory in form and substance to you and your special counsel.
(s) You shall have received an opinion of counsel to the
trustee of the Seller, dated the Closing Date and reasonably
satisfactory in form and substance to you and your special counsel.
(t) You shall have received from counsel in each state in
which 10% or more of the Obligors on the Contracts, by aggregate
principal balance, are located a favorable opinion as to the lack or
necessity of noting the Trust's security interest on the certificates
of title for the Financed Vehicles to maintain its first priority
security interest, subject to certain exceptions and qualifications.
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(u) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be reasonably satisfactory in form and substance to you and your
special counsel.
(v) You and your special counsel shall have received such
other information, certificates and documents as you or they may
reasonably request.
Section 7. SURVIVAL. The Seller agrees that the
representations, warranties and agreements made by it herein, in any certificate
or other instrument delivered pursuant hereto and in the Transaction Documents
shall be deemed to be relied upon by you, notwithstanding any investigation
heretofore or hereafter made by or on behalf of you, and that such
representations, warranties and agreements made by the Seller shall survive the
delivery and payment for the Certificates.
Section 8. EXPENSES. In the event that no closing of the sale
of the Certificates occurs through no fault of the Seller or because the
conditions set forth in Sections 6(e) and 6(f) have not been met, then the
Seller's liability to the Underwriter shall be limited to the reimbursement of
the Underwriter's expenses incurred through the date of termination for its
reasonable out-of-pocket and incidental expenses. In addition, whether or not
the Certificates are issued or sold, the Seller shall pay the reasonable fees
and expenses associated with the transactions contemplated hereby including,
without limitation, the following fees and expenses:
(a) Rating Agency fees payable to S&P and Moody's with respect
to their rating of the Certificates;
(b) The fees and expenses of the Seller's and NAFCO's counsel
and any special counsel required to be retained;
(c) Fees charged by the firm of independent public accountants
referred to in Section 6(g) for the Comfort Letter;
(d) Reasonable copying costs for the Prospectus;
(e) Legal fees of Xxxxx Xxxxxxxxxx, special counsel to the
Underwriter;
(f) Trustee's fees and reasonable fees of counsel to the
Trustee;
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(g) Fees and expenses of the Underwriter (including legal fees
and expenses) in connection with compliance with Blue Sky laws;
(h) The Commission's registration fee; and
(i) The expenses of printing and distributing this Agreement,
the Registration Statement, any Preliminary Prospectus, the Prospectus,
any amendments or supplements to the Registration Statement or the
Prospectus.
; provided that the Seller shall not be liable for the fees and expenses of the
Underwriter in the event that this Agreement is terminated without cause by the
Underwriter or if the Underwriter defaults in its obligation to purchase the
Certificates hereunder.
Section 9. INDEMNIFICATION. (a) The Seller will indemnify and
hold harmless the Underwriter against any losses, claims, damages or liabilities
to which the Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, or the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will promptly reimburse the Underwriter for any
legal or other expenses (as such expenses are incurred) reasonably incurred by
the Underwriter in connection with investigating, preparing to defend or
defending, or appearing as a third party witness in connection with, any such
action or claim; PROVIDED, HOWEVER, (i) that the Seller shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Seller
by you expressly for use therein and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of the Underwriter from
whom the Purchaser asserting any such action or claim purchased the Certificates
which are the subject thereof if such Purchaser did not receive a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or prior to the
confirmation of sale of such Certificates to such Purchaser in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus
15
as amended or supplemented) and such corrected Prospectus was available by the
date of such confirmation. The Seller acknowledges that the Underwriter may
enter into one or more dealer agreements in connection with the offering of the
Certificates and agrees that the terms of this Section 9(a) will accrue to the
benefit of such dealers.
(b) The Underwriter hereby agrees to indemnify and hold harmless the
Seller and its affiliates, their respective directors, officers, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, if any, agents and employees of the Seller or any of the
Seller's affiliates (collectively, "Seller Indemnified Persons", and
individually, a "Seller Indemnified Person") from and against any and all
claims, liabilities, losses, damages and expenses incurred by any Indemnified
Person (including reasonable fees and disbursements of the Seller's and a Seller
Indemnified Person's counsel) which arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any other prospectus relating to the
Certificates, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statements or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Seller by the Underwriter specifically for
use therein and the Underwriter shall reimburse the Seller, its affiliates, and
each of their directors, officers, or controlling persons for any legal and
other expenses reasonably incurred by the Seller, its affiliates, or any such
directors, officers, employees, agents or controlling persons in investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action.
(c) The Seller acknowledges that the statements set forth
under the caption "Underwriting" in the Prospectus Supplement constitute the
only information furnished to the Seller by or on behalf of any Underwriter for
use in the Registration Statement, any Preliminary Prospectus or the Prospectus,
and the Underwriter represents and warrants that such statements are correct as
to it. Furthermore, the Underwriter will not be responsible for any claims
liabilities, losses, damages, or expenses which are finally judicially
determined to have resulted primarily from the Seller's or NAFCO's bad faith or
negligence.
(d) In order to provide for just and equitable contribution,
if a claim for indemnification is made pursuant
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to these provisions but is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) that such indemnification is not
available for any reason (except, with respect to indemnification sought solely
pursuant to clause (b) of the first paragraph hereof, for the reasons specified
in the second sentence thereof), even though the express provisions hereof
provide for indemnification in such case, then the Seller or the Underwriter as
the case may be shall contribute to such claim, liability, loss, damage or
expense for which such indemnification or reimbursement is held unavailable in
such proportion as is appropriate to reflect the relative benefits to the Seller
or the Underwriter as the case may be in connection with the transactions
contemplated by the engagement. The relative benefits received by the Seller or
the Underwriter as the case may be shall be deemed to be in the same proportion
as the total net proceeds from the placement of securities (before deducting
expenses) received by the Seller or the Underwriter as the case may be. The
Seller and the Underwriter agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation other than described above.
(e) The foregoing right to indemnity and contribution shall be
in addition to any rights that any party or Underwriter Indemnified Person or
Seller Indemnified Person may have at common law or otherwise and shall remain
in full force and effect following the completion or any termination of your
engagement. Each party hereby consents to personal jurisdiction and to service
and venue in any court in which any claim which is subject to this agreement is
brought against any Underwriter Indemnified Person or Seller Indemnified Person.
Section 10. TERMINATION.
(a) This Agreement may be terminated by you at any time upon
the giving of notice prior to the Closing Date: (A) if there has been,
since the respective dates as of which information is given in the
Registration Statement or the Prospectus, any material adverse change
in the condition (financial or otherwise), of NAFCO or the Seller or in
the business, properties or results of operations of NAFCO or the
Seller, whether or not arising in the ordinary course of business, or
(B) if there has occurred any outbreak or escalation 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 Certificates or enforce contracts
for the sale of the Certificates, or (C) if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for
17
trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the
Securities and Exchange Commission or any other governmental authority,
or (D) if a banking moratorium has been declared by either federal or
New York authorities. In the event of any such termination, no party
will have any liability to any other party hereto, except as otherwise
provided in Section 8 or 9 hereof.
(b) This Agreement may not be terminated by the Seller without
the written consent of the Underwriter until after December 31, 1996.
(c) Notwithstanding anything herein to the contrary, in the
event the Seller does not perform any obligation under this Agreement
or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the
Underwriter's obligations hereunder may be immediately cancelled by the
Underwriter by notice thereof to the Seller. Any such cancellation
shall be without liability of any party to any other party except that
the provisions of Sections 8 and 9 hereof shall survive any such
cancellation.
Section 11. SURVIVAL. The provisions of Section
5(g) and Section 9 of this Agreement shall survive the
termination of this Agreement.
Section 12. NOTICES. All communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered to or mailed by certified or registered mail,
postage prepaid, or transmitted by facsimile and confirmed by a similar mailed
writing, if to you, addressed to you, at the address first stated in this
Agreement, or to such other address as you may designate in writing to the
Seller and, if to the Seller, addressed to the Seller at One Park Place, 000
X.X. 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 or to such other address as the
Seller may have designated in writing to you.
Section 13. SUCCESSORS. This Agreement will inure to the
benefit of and be binding upon the Seller and its successors and assigns and you
and your successors and assigns, except that no Purchaser will be bound by any
part of this Agreement.
No other person will have any right or obligation hereunder,
except that the provisions of this Agreement, including, without limitation, the
representations and warranties and the covenants and agreements of the Seller
contained herein are intended to be for the benefit of all
18
Purchasers and shall be enforceable by any such Purchaser, whether or not an
express assignment to such Purchaser of rights under this Agreement has been
made by you, any intervening Purchaser or any of your or their successors and
assigns.
Section 14. ENTIRE AGREEMENT. This Agreement and the documents
referred to herein and to be delivered pursuant hereto constitute the entire
agreement between the parties pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
Section 15. MISCELLANEOUS. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 16. DEFINED TERMS. Capitalized terms used
herein but not defined herein shall have the meaning ascribed
to them in the Pooling and Servicing Agreement.
Section 17. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL. (A) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(B) THE UNDERWRITER AND THE SELLER HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK, AND EACH
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE RESPECTIVE
ADDRESS SET FORTH HEREIN AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE
PREPAID. THE UNDERWRITER AND THE SELLER EACH HEREBY WAIVE ANY OBJECTION BASED ON
FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT
OF EITHER THE UNDERWRITER OR THE SELLER, AS THE CASE MAY BE, TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT ITS RIGHT TO BRING ANY
ACTION OR PROCEEDING AGAINST THE
19
UNDERWRITER OR ITS PROPERTY OR THE SELLER OR ITS PROPERTY IN THE COURT OF ANY
OTHER JURISDICTION.
(C) THE UNDERWRITER AND THE SELLER EACH HEREBY WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN
CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 18. LIMITATION OF LIABILITY. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Chase Manhattan Bank USA, National Association, not
individually or personally but solely as owner trustee (the "Owner Trustee") of
National Financial Auto Funding Trust (the "Trust"), in the exercise of the
powers and authority conferred and vested in it under the related Trust
Agreement, (b) each of the representations, undertakings and agreements herein
made on the part of the Owner Trustee or the Trust is made and intended not as
personal representations, undertakings and agreements by Chase Manhattan Bank
USA, National Association but is made and intended for the purpose of binding
only the Trust and (c) under no circumstances shall Chase Manhattan Bank USA,
National Association be personally liable for the payment of any indebtedness or
expenses of the Owner Trustee or the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Owner Trustee or the Trust under this Agreement or other
related documents.
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If you are in agreement with the foregoing, please sign a
counterpart hereof and return the same to that company, whereupon this Agreement
shall become a binding agreement between you and the Seller.
Very truly yours,
NATIONAL FINANCIAL AUTO FUNDING
TRUST
By: THE CHASE MANHATTAN BANK
(USA), not in its
individual capacity but
solely as Owner Trustee
of the National Financial
Auto Funding Trust
By______________________________________
Name:___________________________________
Title:__________________________________
BY AFFIXING ITS SIGNATURE HERETO, NATIONAL AUTO
FINANCE COMPANY L.P. ALSO HEREBY AGREES TO BE JOINTLY AND
SEVERALLY LIABLE FOR THE OBLIGATIONS OF NATIONAL FINANCIAL
AUTO FUNDING TRUST.
NATIONAL AUTO FINANCE COMPANY
L.P.
By: NATIONAL AUTO FINANCE
CORPORATION, as
its general partner
Name:___________________________________
Title:__________________________________
The foregoing Agreement is hereby accepted and entered into as of the date
hereof.
FIRST UNION CAPITAL
MARKETS CORP.
By____________________________
Name:_________________________
Title:________________________
