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ASSIGNMENT AGREEMENT
between
BANKERS TRUST COMPANY,
as Trustee of the National Financial
Auto Receivables Master Trust
and
NATIONAL FINANCIAL AUTO FUNDING TRUST II
_____________________
Dated as of October 21, 1996
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ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of October 21, 1996, by and between
NATIONAL FINANCIAL AUTO FUNDING TRUST II, a Delaware business trust ("Funding
Trust II") and BANKERS TRUST COMPANY ("Bankers Trust" or the "Trustee"), not in
its individual capacity but solely as Trustee of the National Financial Auto
Receivables Master Trust (the "Master Trust") under the Pooling and
Administration Agreement, dated as of December 8, 1994 (the "Pooling and
Administration Agreement"), among Funding Trust II, as Transferor, National Auto
Finance Company L.P. ("NAFCO"), as Administrator, and Bankers Trust Company, as
Trustee.
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, Funding
Trust II and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
1.1 Incorporation of Definitions. Capitalized terms used but not
defined herein have the meanings ascribed to them in the Pooling and
Administration Agreement.
1.2 Other Definitions. When used in this Agreement, the following
words and phrases shall have the following meanings:
Cut-off Date: As defined in Section 2.1.
Closing Date: means November 13, 1996.
Outstanding Principal Balance: As of any date and with respect to
any Receivable, the outstanding principal balance of such Receivable as of such
date, which shall be computed by reducing the original principal balance of such
Receivable by the principal portion of each payment received and processed by
the Servicer on or before such date.
Purchase Price: As defined in Section 2.1.
Receivable Assets: The assets described in clauses (i) through
(vii), inclusive, of subsection 2.1 hereof.
Related Security: means, with respect to any Receivable, the
interest of the Seller in (i) the security interest in the Financed Vehicles
granted by the Obligors of the Receivables and any accessions thereto and (ii)
physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors (including any blanket
vendor's single interest insurance policy).
Receivables Schedule: The schedule of Receivables attached as
Schedule 1 hereto, such schedule identifying each Receivable by name of the
Obligor and setting forth as to each Receivable its Outstanding Principal
Balance as of the Cut-off Date, loan number, interest rate, scheduled monthly
payment of principal and interest, final maturity date and original principal
amount.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase. Subject to and on the terms and conditions set forth
herein, the Trustee hereby sells, transfers, conveys and assigns, on behalf of
the Master Trust, without representation, warranty or recourse, except as
specifically set forth herein all of its right, title and interest in and to (i)
the Receivables identified on the Receivables Schedule attached hereto as
Schedule I, (ii) all monies paid or payable thereunder on or after October 21,
1996 (the "Cutoff Date"), (iii) the Related Security with respect to each such
Receivable, (iv) all proceeds of the foregoing, including all Collections or
Related Security with respect to such Receivables, or other recoveries applied
to repay or discharge any such Receivable received on or after the Cutoff Date
(including net proceeds of sale or other disposition of repossessed Financed
Vehicles that were the subject of any such Receivable) or other collateral or
property of any Obligor or any other party directly or indirectly liable for
payment of such Receivables, (v) all of its right, title and interest in the
Seller Transaction Documents, (vi) all Records relating to any of the foregoing,
(vii) any other Trust Assets relating to the Receivables Assets and (viii) the
proceeds of the foregoing. Funding Trust II agrees to pay to the Trustee on the
Closing Date as the purchase price (the "Purchase Price") for the Receivable
Assets sold hereunder on such date an amount equal to 100% of the aggregate
Outstanding Principal Balance of the Receivables as of the Cut-off Date in
immediately available funds to an account at a bank designated by the Trustee to
Funding Trust II.
2.2 Filings. (a) On or prior to the Closing Date, the Trustee shall
have filed in the office of the Secretary of State of New York, the office of
the Secretary of State of Florida and the office of the Secretary of State of
Delaware, a UCC financing statement or statements, appropriate under the Uniform
Commercial Code in effect in New York, Florida or Delaware to reflect the
transfer of the Receivables Assets from the Trustee to Funding Trust II and to
protect Funding Trust II's interest in the Receivables Assets against all other
Persons. During the term of this Agreement, the Trustee shall not change its
name, identity or structure or relocate its chief executive office or principal
place of business without first giving 60 days prior written notice to Funding
Trust II and Financial Security Assurance Inc. (for so long as any policy issued
Financial Security Assurance Inc. is in effect with respect to any securities
issued by Funding Trust II or any trust of which Funding Trust II is depositor
or transferor); provided, however, that
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Funding Trust II has no right or power to prohibit a change in the Trustee's
name, identity or structure or, subject to the last sentence of this paragraph,
a relocation of, its chief executive office. If any change in the Trustee's
name, identity or structure or the relocation of its chief executive office or
principal place of business would make any financing or continuation statement
or notice of lien filed in connection with this Agreement seriously misleading
within the meaning of applicable provisions of the UCC or any title statute,
Funding Trust II, shall after the effective date of such change, promptly file
or cause to be filed such amendments as may be required to preserve and protect
Funding Trust II's interest in the Receivables Assets.
(b) On or prior to the Closing Date, the Trustee shall deliver to
Funding Trust II or such other Person as Funding Trust II shall direct cash
equal to all payments received on such Receivables on or after the Cut-off Date
and on or before two Business days prior to the Closing Date. Within two
Business Days after the Closing Date, the Trustee shall deliver to Funding Trust
II or such other Person as Funding Trust II shall direct all other payments
received on such Receivables on or after the Cut-off Date and on or before the
Closing Date.
2.3 No Recourse. The sale and purchase of Receivables and the other
Receivables Assets under this Agreement shall be without recourse to the Trustee
or the Master Trust.
2.4 True Sales. The Trustee and Funding Trust II intend that the
transactions contemplated hereby be true sales of the Receivables and other
Receivables Assets by the Trustee to Funding Trust II providing Funding Trust II
with the full benefits of ownership of the Receivables and other Receivables
Assets free and clear of any liens, and neither the Trustee nor Funding Trust II
intends the transactions contemplated hereby to be, or for any purpose to be
characterized as, a loan from Funding Trust II to the Trustee. The Trustee shall
reflect sales of the Receivables Assets hereunder on the books and records
maintained by the Trustee with respect to the Master Trust as sales of assets,
and shall treat such sales as sales for all purposes.
2.5 Receipt of Payments after Closing Date. Funding Trust II shall
be entitled to all payments received or receivable with respect to any
Receivable sold and conveyed by the Trustee to Funding Trust II hereunder that
are received on and after the Cut-off Date. If the Trustee knowingly receives
any payment on a Receivable belonging to Funding Trust II, the Trustee promptly
shall turn such payment over to Xxxxxx Trust and Savings Bank ("Xxxxxx Trust"),
as trustee under the Pooling and Servicing Agreement, dated as of October 21,
1996 (the "Pooling and Servicing Agreement"), among National Financial Auto
Funding Trust ("Funding Trust I"), NAFCO and Xxxxxx Trust.
ARTICLE III
MISCELLANEOUS
3.1 Notices. All notices, demands and requests that may be given or
that are
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required to be given hereunder shall be sent by United States certified mail,
postage prepaid, return receipt requested, to the parties at their respective
addresses as follows:
If to the Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust and Agency Group -
Structured Finance
Telecopier No: (000) 000-0000
Confirmation: (000) 000-0000
If to Funding Trust II:
National Financial Auto Funding Trust II
c/o Chase Manhattan Bank USA, N.A., as Trustee
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Administration Department
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
If to Financial Security Assurance Inc.:
Financial Security Assurance Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: NAFCO Auto Finance 1996-1 Trust, 6.33% Automobile
Receivables-Backed Certificates
Attention: Surveillance Department
Telecopier No.: (000) 000-0000
(000) 000-0000
Confirmation: (000) 000-0000
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If to Xxxxxx Trust and Savings Bank:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Division
Telecopier: (000) 000-0000
Confirmation: (000) 000-0000
3.2 Choice of Law. This Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
3.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
3.4 Assignment. This Agreement may not be assigned by the Trustee or
Funding Trust II except as contemplated by this Section; provided, however, that
simultaneously with the execution and delivery of this Agreement, (i) Funding
Trust II shall assign all of its right, title and interest hereunder to Funding
Trust I pursuant to that certain Sale Agreement, dated as of October 21, 1996
between Funding Trust II and Funding Trust I, and (ii) Funding Trust I shall
assign all of such right, title and interest to Xxxxxx Trust under the Pooling
and Servicing Agreement, as provided in Section 2.01 of the Pooling and
Servicing Agreement, to which the Trustee hereby expressly consents.
3.5 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, Funding Trust I, and Xxxxxx
Trust for the benefit of the Certificateholders and the Certificate Insurer,
which shall be considered to be third-party beneficiaries of this Agreement and
shall be entitled to rely upon and directly enforce the provisions of this
Agreement. Except as otherwise provided in this Agreement, no other Person will
have any right or obligation hereunder. The Certificate Insurer may disclaim any
of its rights and powers under this Agreement upon delivery of a written note to
the Trustee and Funding Trust II.
3.6 No Petition. The Trustee hereby agrees not to cause the filing
of a petition in bankruptcy against Funding Trust II until one year and one day
after the maturity of any securities issued pursuant to the Pooling and
Servicing Agreement.
3.7 Further Assurances. It is the Trustee's intention to convey its
entire rights, title and interest in the Receivables Assets or other assets
related thereto acquired from Funding Trust II pursuant to the Pooling and
Administration Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
NATIONAL FINANCIAL AUTO FUNDING
TRUST II
By: CHASE MANHATTAN BANK USA, N.A.
not in its individual capacity but
solely as Owner Trustee of the National
Financial Auto Funding Trust II
By: ____________________________________
Name:
Title:
NATIONAL FINANCIAL AUTO RECEIVABLES
MASTER TRUST
By: BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Trustee of National Financial Auto
Receivables Master Trust
By: ____________________________________
Name:
Title:
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