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PURCHASE AGREEMENT
between
Auto Credit Clearinghouse L.P.
and
National Auto Finance Company L.P.
_____________________
Dated as of October 21, 1996
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of October 21, 1996, by and between
Auto Credit Clearinghouse L.P., a Delaware limited partnership ("ACCH") and
National Auto Finance Company L.P., a Delaware limited partnership ("NAFCO").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, ACCH and
NAFCO 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 Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October 21, 1996,
by and among National Financial Auto Funding Trust (the "Funding Trust"), as
Transferor, NAFCO, as Servicer, and Xxxxxx Trust and Savings Bank, not in its
individual capacity but solely as Trustee (the "Trustee").
1.2 Other Definitions. When used in this Agreement, the following
words and phrases shall have the following meanings:
Contract Assets: The assets sold, transferred, conveyed and assigned
by ACCH to NAFCO pursuant to this Agreement, which consist of (i) all Contracts
identified in the Contract Schedules attached to the Conveyances delivered
hereunder on each Subsequent Transfer Date; (ii) all monies paid or payable
thereunder on or after the related Cut-Off Date, (iii) the Contract Files
relating to such Contracts; (iv) property which secured any such Contract and
which has been acquired by Repossession or otherwise; (v) all rights to
Insurance Proceeds and Liquidation Proceeds with respect to any such Contract;
(vi) ACCH's rights against Dealers under the Dealer Agreements in respect of the
representations and warranties made by the Dealer thereunder with regard to the
related Contracts and (vii) the proceeds of the foregoing and the rights to
enforce the foregoing.
Contract Documents: With respect to a Contract, all Contract papers
and documents (including those contained in the Contract File) and all other
papers and records (including computerized data) of whatever size or
description, whether developed or originated by ACCH, a Dealer or another
Person, required to document the Contract or to service the Contract.
Contract File: With respect to a Contract, the fully executed
original of such Contract; the assignment of such Contract by a Dealer to ACCH;
the original Title Document or UCC financing statement evidencing that the
security interest in a Financed Vehicle granted to
ACCH under such Contract has been perfected under applicable state law (except
for any Title Documents or UCC financing statements not returned from the
applicable public records office, in which case ACCH will deliver to NAFCO, on
the Closing Date or the Subsequent Transfer Date, as the case may be, an
Officer's Certificate of ACCH indicating that the original of such Title
Document has been applied for at, or the original of such UCC financing
statement was delivered to, such public office and shows ACCH as the lienholder
or secured party and that ACCH will deliver the originals thereof when returned
from such office); the original of any assumption agreement or any modification,
extension or refinancing agreement; and the original application of the related
Obligor to obtain the financing extended by such Contract.
Contract Schedule: The schedule of Contracts attached as Schedule 1
to any Conveyance delivered hereunder, such schedule identifying each Contract
by name of the Obligor and setting forth as to each Contract its Individual Sold
Balance as of the applicable Cutoff Date, loan number, Contract Rate, scheduled
monthly payment of principal and interest, final maturity date and original
principal amount.
Conveyance: As defined in Section 2.3(b).
Purchase Price: As defined in Section 2.1.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Contribution. Subject to and on the terms and
conditions set forth herein, ACCH hereby agrees to sell, transfer , convey and
assign, without recourse except as expressly provided herein, all of its right,
title and interest in and to the Contract Assets to NAFCO on each Subsequent
Transfer Date. NAFCO agrees to pay to ACCH on each Subsequent Transfer Date as
the purchase price (the "Purchase Price") for the Contract Assets sold hereunder
on such date an amount equal to 100% of the aggregate Outstanding Principal
Balance of the Contracts included in such Contract Assets as of the related
Cut-off Date.
2.2 Filings. On or prior to the Closing Date, ACCH shall have filed
in the office of the Secretary of State of Florida a UCC financing statement or
statements, appropriate under the applicable UCC, to reflect the transfer of the
Contract Assets from ACCH to NAFCO and to protect NAFCO's interest in the
Contract Assets against all other Persons. ACCH shall thereafter file any
appropriate continuation statements in respect thereof.
2.3 Sales. (a) On or prior to each Subsequent Transfer Date, ACCH
shall notify NAFCO in writing of the outstanding principal amount of eligible
Contracts included in Contract Assets available to be sold and conveyed by ACCH
to NAFCO on such Subsequent Transfer Date pursuant to this Agreement, and
subject to the terms and conditions of this Agreement, ACCH shall, on the
applicable Subsequent Transfer Date, sell and convey to NAFCO eligible Contracts
and other Contract Assets having an aggregate outstanding principal amount equal
to the amount specified in such written notice. Each Subsequent Transfer Date
shall be on the date and at the time and place mutually agreed upon by NAFCO and
ACCH. Payment
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of the Purchase Price for the Additional Contracts and other Contract Assets
sold and conveyed on a Subsequent Transfer Date shall be made by NAFCO to ACCH
in immediately available funds to an account at a bank designated to NAFCO by
ACCH.
(b) On or prior to any Subsequent Transfer Date, ACCH shall (i)
deliver to NAFCO a conveyance instrument substantially in the form attached
hereto as Exhibit A (a "Conveyance") with respect to the Contract Assets sold
and conveyed hereunder on such Subsequent Transfer Date, (ii) deliver to NAFCO
or such other Person as NAFCO shall direct the original motor vehicle retail
installment sale contracts, duly endorsed by ACCH, and the Contract Files with
respect to each Additional Contract included in the Contract Assets then being
sold to NAFCO, (iii) deliver to NAFCO or such other Person as NAFCO shall direct
cash equal to all payments received by ACCH on such Additional Contracts on or
after the applicable Cut-off Date and on or before two Business Days prior to
such Subsequent Transfer Date. Within two Business Days after such Subsequent
Transfer Date, ACCH shall deliver to NAFCO or such other Person as NAFCO shall
direct all other payments received by ACCH on such Additional Contracts on or
after the applicable Cut-off Date and on or before such Subsequent Transfer
Date. NAFCO hereby directs ACCH to deliver the materials referenced in the
preceding clause (ii) of the second preceding sentence to OFSA, as Custodian,
and hereby directs ACCH to remit any payments received by ACCH and referenced in
the preceding sentence or in clause (iii) of the second preceding sentence to
the Collection Account.
2.4 No Recourse. Except as specifically provided in this Agreement,
the sale and purchase of Contracts and the other Contract Assets under this
Agreement shall be without recourse to ACCH; provided that ACCH shall be liable
to NAFCO for all representations, warranties and covenants made by ACCH pursuant
to the terms of this Agreement, it being understood that such obligations of
ACCH do not constitute recourse for the credit risk of the Obligors.
2.5 True Sales. ACCH and NAFCO intend that the transactions
contemplated hereby be true sales of Contracts and other Contract Assets by ACCH
to NAFCO providing NAFCO with the full benefits of ownership of the Contracts
and other Contract Assets free and clear of any Liens, and neither ACCH nor
NAFCO intends the transactions contemplated hereby to be, or for an purpose to
be characterized as, a loan from NAFCO to ACCH. ACCH shall reflect sales of the
Contract Assets hereunder on its balance sheet and other financial statements as
sales of assets, and shall treat such sales as sales for all purposes. ACCH will
respond to third party inquiries by indicating that the Contracts have been
sold.
2.6 Receipt of Payments after Closing Date and Subsequent Transfer
Dates. NAFCO shall be entitled to all payments received or receivable with
respect to any Contract or Additional Contract sold and conveyed by ACCH to
NAFCO hereunder that are received on and after the applicable Cut-off Date. If
ACCH receives any payment on a Contract belonging to the Trust, ACCH promptly
shall turn such payment over to the Trustee not later than two Business Days
after receipt for deposit in the Collection Account.
2.7 Servicing of Contracts. Consistent with NAFCO's ownership of the
Contract Assets, NAFCO shall have the sole right to service, administer and
collect the Contracts, to assign such right and to delegate such right to
others. In consideration of NAFCO's purchase
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of the Contract Assets, ACCH agrees to cooperate fully with NAFCO to facilitate
the full and proper performance of such duties and obligations for the benefit
of NAFCO.
2.8 Protection of Title to Interest. (a) ACCH shall execute and file
such financing statements and cause to be executed and filed such continuation
and other statements, all in such manner and in such places as may be required
by law fully to preserve, maintain and protect the interest of NAFCO under this
Agreement in the Contract Assets and in the proceeds thereof. ACCH shall deliver
(or cause to be delivered) to NAFCO file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) ACCH shall not change its name, identity or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed by NAFCO in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402(7) of the UCC, unless
it shall have given the Trustee and the Certificate Insurer (so long as a
Certificate Insurer Default shall not have occurred and be continuing) and NAFCO
at least 60 days prior written notice thereof, and shall promptly file
appropriate amendments to all previously filed financing statements and
continuation statements as may be required to preserve and protect NAFCO's
interest in the Contract Assets, which filings shall be made no later than 30
days after the effective date of any such change.
(c) ACCH shall give NAFCO at least 30 days prior written notice of
any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement, and shall promptly file appropriate amendments to all
previously filed financing statements and continuation statements as may be
required to preserve and protect NAFCO's interest in the Contract Assets, which
filings shall be made no later than 30 days after the effective date of any such
change. ACCH shall at all times maintain each office from which it services
Contracts and its principal executive office within the United States of
America.
(d) If at any time ACCH proposes to sell, grant a security interest
in, or otherwise transfer any interest in automotive receivables to any
prospective purchaser, lender or other transferee, ACCH shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they refer in
any manner whatsoever to any Contract, indicate clearly that such contract has
been sold and is owned by the Trust unless such Contract has been paid in full
or repurchased by ACCH, the Transferor or the Servicer.
(e) ACCH shall permit NAFCO, the Trustee, the Certificate Insurer
and their respective agents, at any time to inspect, audit and make copies of
and abstracts from ACCH's records regarding any Contracts or any other portion
of the Contract Assets.
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ARTICLE III
CONDITIONS PRECEDENT
3.1 NAFCO's obligation to purchase Contract Assets hereunder on each
Subsequent Transfer Date shall be subject to the execution, delivery and
effectiveness of the Pooling and Servicing Agreement and the delivery of the
purchase price for the Certificates to Funding Trust by the initial purchasers
thereof. In addition, the obligation of NAFCO to purchase Contract Assets
hereunder on each Subsequent Transfer Date shall be further subject to the
satisfaction of the following conditions on or before the Closing Date or such
Subsequent Transfer Date, as the case may be:
(i) all representations and warranties of ACCH contained in Section
4.1(a) shall be true and correct and all representations and warranties of ACCH
in Section 4.1(b) shall be true and correct with respect to the Contracts sold
transferred, conveyed and assigned to NAFCO on such Subsequent Transfer Date, in
each case, on and as of such Subsequent Transfer Date;
(ii) on such Subsequent Transfer Date, ACCH shall have duly
completed and executed and delivered to NAFCO a Conveyance conforming to the
requirements of Section 2.3(b);
(iii) on or before such Subsequent Transfer Date, as the case may
be, (a) ACCH shall have delivered to NAFCO or such other Person as NAFCO shall
direct the original motor vehicle retail installment sale contract, duly
endorsed by ACCH to NAFCO or such other Person as NAFCO shall direct, and the
Contract Files that relate to each Contract included in the Contract Assets then
being sold by ACCH to NAFCO and (b) ACCH shall have performed all other
obligations then required to be performed by it pursuant to this Agreement,
including, without limitation, Sections 2.2 and 2.3(b);
(iv) no Bankruptcy Event or Servicer Default shall have occurred and
be continuing on and as of such Subsequent Transfer Date;
(v) as of such Subsequent Transfer Date, the Contracts then in the
Trust, together with the Additional Contracts to be transferred to NAFCO on such
Subsequent Transfer Date, shall meet the following criteria (computed based on
the characteristics of the Additional Contracts as of the applicable Subsequent
Cut-off Date): (A) the weighed average Contract Rate of the Contracts shall not
be less than 18.0%, (B) the weighted average remaining term of the Contracts
shall not be greater than 55 months, and (C) not more than 80% of the aggregate
Outstanding Principal Balance of the Contracts shall represent loans to finance
the purchase of used Financed Vehicles and (D) the final scheduled payment date
on the Contract with the latest maturity shall not be later than April 30, 2002;
and
(vi) all conditions precedent in Section 2.06 of the Pooling and
Servicing Agreement to the transfer and assignment of such Additional Contracts
to the Trust pursuant to the Pooling and Servicing Agreement shall have been
satisfied.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 (a) ACCH hereby represents, warrants and covenants to NAFCO on
and as of the Closing Date and each Subsequent Transfer Date that:
(i) ACCH is a Delaware limited partnership duly organized, validly
existing, and in good standing under the laws of the state of its incorporation
and has all licenses necessary to carry on its business as now being conducted
and shall appoint and employ agents or attorneys in each jurisdiction where it
shall be necessary to take action under this Agreement; ACCH has the full power
and authority to own its property, to carry on its business as presently
conducted, and to execute, deliver and perform this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by ACCH and
the consummation of the transaction contemplated hereby have been duly and
validly authorized; this Agreement evidences the valid, binding and enforceable
obligation of ACCH (subject to applicable bankruptcy and insolvency laws and
other similar laws affecting the enforcement of creditors' rights generally);
and all requisite partnership action has been taken by ACCH to make this
Agreement valid and binding upon ACCH;
(ii) ACCH is not required to obtain the consent of any other party
or obtain the consent, license, approval or authorization of, or make any
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement except for those which have been obtained;
(iii) the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of the
partnership agreement of ACCH or result in the breach of any term or provision
of, or conflict with or constitute a default under or result in the acceleration
of any obligation under, any material agreement, indenture or loan or credit
agreement or other instrument to which ACCH or its property is subject, or
result in the violation of any law (including, without limitation, any bulk
transfer or similar law), rule, regulation, order, judgment or decree to which
ACCH or its property or the Contracts are subject;
(iv) no statement, report or other document furnished or to be
furnished pursuant to this Agreement or in connection with the transaction
contemplated hereby contains or will, when furnished, contain any untrue
statement of a material fact or omits or will, when furnished, omit to state a
material fact necessary to make the statements contained therein not misleading,
in light of the circumstances under which they were made;
(v) neither ACCH nor any of its subsidiaries or affiliates is a
party to, bound by or in breach or violation of any indenture or other agreement
or instrument, or is 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, which materially and adversely affects, or may
in the future materially and adversely affect, the ability of ACCH to perform
its obligations under this Agreement
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(vi) there are no actions, suits or proceedings pending or, to the
knowledge of ACCH, threatened against ACCH, before or by any court, regulatory
body, administrative agency, arbitrator or governmental body with respect to any
of the transactions contemplated by this Agreement, which will, if determined
adversely to ACCH, affect the validity or enforceability hereof or materially
and adversely affect ACCH's ability to perform its obligations under this
Agreement;
(vii) ACCH has obtained or made all necessary consents, approvals,
waivers and notifications of creditors, lessors and other non-governmental
persons, in each case, in connection with the execution and delivery of this
Agreement, and the consummation of all the transactions herein contemplated;
(viii) ACCH shall not take any action to impair NAFCO's rights in
any Contract; and
(ix) ACCH is solvent and will not become insolvent after giving
effect to the transactions contemplated hereunder and under the Transaction
Documents; ACCH is paying its debts as they become due; ACCH, after giving
effect to the contemplated transactions, will have adequate capital to conduct
its business.
ACCH shall indemnify NAFCO and hold NAFCO harmless against any loss
and damages resulting from a breach of the representations and warranties set
forth in Section 4.1(a).
(b) ACCH hereby represents and warrants to NAFCO as of the Closing
Date with respect to the Initial Contracts originated by ACCH and sold and
conveyed to NAFCO on the Closing Date by ACCH and as of each Subsequent Transfer
Date with respect to the Additional Contracts originated by ACCH and sold and
conveyed to NAFCO on such Subsequent Transfer Date by ACCH (unless another date
or time period is otherwise specified or indicated in the particular
representation or warranty):
(i) the information regarding such Contracts set forth in the
applicable Contract Schedule or Receivables Schedule is true and
correct in all material respects at the applicable Cut-off Date;
each Contract was originated in the United States of America and no
Obligor in the United States of America or any state or any agency,
department, subdivision or instrumentality thereof;
(ii) immediately prior to the Closing Date or such Subsequent
Transfer Date, as the case may be, ACCH had a valid and enforceable
security interest in the related Financed Vehicle, and such security
interest had been duly perfected and was prior to all other present
and future liens and security interests (except future tax liens and
liens that, by statute, may be granted priority over previously
perfected security interests) that exist or may hereafter arise, and
ACCH had the full right to assign such security interest to NAFCO;
(iii) on and after the Closing Date or such Subsequent
Transfer Date, as the case may be, there shall exist under the
Contract a valid, subsisting and enforceable first priority
perfected security interest in the Financed Vehicle
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securing such Contract (other than, as to the priority of such
security interest, any statutory lien arising by operation of law
after the Closing Date or the Subsequent Transfer Date, as the case
may be, which is prior to such interest) and at such time as
enforcement of such security interest is sought there shall exist a
valid, subsisting and enforceable first priority perfected security
interest in such Financed Vehicle in favor of NAFCO or its assigns
(other than, as to the priority of such security interest, any
statutory lien arising by operation of law after the Closing Date or
such Subsequent Transfer Date which is prior to such interest);
(iv) (a) if such Contract was originated in a state in which
notation of a security interest on the Title Document for the
Financed Vehicle securing such Contract is required or permitted to
perfect such security interest, the Title Document for such Financed
Vehicle shows, or if a new or replacement Title Document is being
applied for with respect to such Financed Vehicle the Title Document
will show ACCH, as sole original holder of a security interest in
such Financed Vehicle and (b) if such Contract was originated in a
state in which the filing of a financing statement under the UCC is
required to perfect a security interest in motor vehicles, such
filings or recordings have been duly made and show ACCH as the sole
holder of a security interest in such Financed Vehicle;
(v) as of the Closing Date or such Subsequent Transfer Date,
as the case may be, each such Contract has not been sold, assigned
or pledged to any other Person other than an endorsement to the
Servicer for purposes of servicing or any such pledge has been
released, and ACCH has good and marketable title to each such
Contract free and clear of any encumbrance, equity, pledge, charge,
claim or security interest and is the sole owner thereof and has
full right to transfer each such Contract to NAFCO and, upon the
transfers pursuant to Article II, NAFCO will have good and
marketable title to each such Contract and will be the sole owner of
each such Contract free and clear of any encumbrance, lien, pledge,
charge, claim, security interest or rights of others; the purchase
of each such Contract by ACCH from a Dealer was not an extension of
financing to such Dealer. No Dealer has a participation in, or other
right to receive, proceeds of any Contract. ACCH has not taken any
action to convey any right to any Person that would result in such
Person having a right to payments received under the related
insurance policies or Dealer Agreements or to payments due under
such Contract;
(vi) as of the Closing Date or such Subsequent Transfer Date,
as the case may be, no such Contract is delinquent for more than
thirty days in payment as to any scheduled payment;
(vii) as of the Closing Date or such Subsequent Transfer Date,
as the case may be, there is no lien against any related Financed
Vehicle for delinquent taxes;
(viii) as of the Closing Date or such Subsequent Transfer
Date, as the case may be, there is no right of rescission, offset,
defense or counterclaim to the obligation of the related Obligor to
pay the unpaid principal or interest due under
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such Contract; the operation of the terms of such Contract or the
exercise of any right thereunder will not render such Contract
unenforceable in whole or in part or subject to any right of
rescission, offset, defense or counterclaim, and no such right of
rescission, offset, defense or counterclaim has been asserted;
(ix) as of the Closing Date or such Subsequent Transfer Date,
as the case may be, there are no prior liens or claims for work,
labor or material affecting any related Financed Vehicle which are
or may become a lien prior to or equal with the security interest
granted by such Contract;
(x) each such Contract, and the sale of the Financed Vehicle
securing such Contract, where applicable, complied, at the time it
was made and as of the Closing Date or related Subsequent Transfer
Date, as applicable, in all material respects with applicable state
and federal laws (and regulations thereunder), including, without
limitation, usury, disclosure and consumer protection laws, equal
credit opportunity, fair-credit reporting, truth-in-lending or other
similar laws, the Federal Trade Commission Act, and applicable state
laws regulating retail installment sales contracts and loans in
general and motor vehicle retail installment sales contracts and
loans in particular, and the receipt of interest on, and the
ownership of, such Contract by NAFCO will not violate any such laws;
(xi) each such Contract is a legal, valid and binding
obligation of the Obligor thereunder and is enforceable in
accordance with its terms, except only as such enforcement of
creditors' rights generally, and all parties to such Contract had
full legal capacity to execute such Contract and all documents
related thereto and to grant the security interest purported to be
granted thereby;
(xii) as of the Closing Date or such Subsequent Transfer Date,
as the case may be, the terms of each such Contract have not been
impaired, waived, altered or modified in any respect, except by
written instruments that are part of the Contract Documents, and no
such Contract has been satisfied, subordinated or rescinded;
(xiii) at the time of origination of each such Contract, the
proceeds of such Contract were fully disbursed, there is no
requirement for future advances thereunder, and all fees and
expenses in connection with the origination of such Contract have
been paid;
(xiv) as of the Closing Date or such Subsequent Transfer Date,
as the case may be, there is no default, breach, violation or event
of acceleration existing under any such Contract (except payment
delinquencies permitted by subparagraph (vi) above) and no event
which, with the passage of time or with notice or with both, would
constitute a default, breach, violation or event of acceleration
under any such Contract or would otherwise affect the value or
marketability of such contract; and ACCH has not waived any such
default, breach, violation or event of acceleration and as of the
applicable Cut-Off Date, the related Finance Vehicle has not been
repossessed;
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(xv) at the origination date of each such Contract, the
related Financed Vehicle was covered by a comprehensive and
collision insurance policy (i) in an amount at least equal to the
lesser of (a) the actual cash value of the related Financed Vehicle
or (b) the unpaid balance owing on such Contract, less the related
Unearned Finance Charge, (ii) naming ACCH as a loss payee and (iii)
insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and
collision coverage; each Contract requires the Obligor to maintain
physical loss and damage insurance, naming ACCH as an additional
insured party;
(xvi) each such Contract was acquired by ACCH from a Dealer
with which it ordinarily does business; such Dealer had full right
to assign to ACCH such Contract and the security interest in the
related Financed Vehicle and the Dealer's assignment thereof to ACCH
is legal, valid and binding and ACCH had full right to assign to
NAFCO such Contract and the security interest in the related
Financed Vehicle and ACCH's assignment thereof to NAFCO is legal,
valid and binding;
(xvii) each such Contract contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the related Financed
Vehicle of the benefits of the security;
(xviii) scheduled payments under each such Contract are due
monthly (or, in the case of the first payment, no later than the
forty-fifth day after the date of the Contract) in substantially
equal amounts to maturity, and will be sufficient to fully amortize
such Contract at maturity, assuming that each scheduled payment is
made on its Due Date; such scheduled payments are applicable only to
payment of principal and interest on such Contract and not to the
payment of any insurance premiums (although the proceeds of the
extension of credit on such Contract may have been used to pay
insurance premiums); the original term to maturity of such Contract
was not more than 60 months;
(xix) the collection practices used with respect to each such
Contract have been in all material respects legal, proper, prudent
and customary in the automobile installment sales contract or
installment loan servicing business;
(xx) there is only one original of each such Contract, the
Servicer is currently in possession of the Contract Documents for
such Contract and there are no custodial agreements in effect
adversely affecting the rights of ACCH to make the deliveries
required hereunder on the Closing Date or such Subsequent Transfer
Date;
(xxi) as of the Cut-off Date or Subsequent Cut-off Date, as
applicable, no Obligor was the subject of a current bankruptcy
proceeding;
(xxii) the Contracts constitute "chattel paper" within the
meaning of the UCC as in effect in the State of Florida, and all
filings (including without
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limitation, UCC filings) required to be made and all actions
required to be taken or performed by any Person in any jurisdiction
to give NAFCO an ownership interest in the Contracts and the
proceeds thereof and the remaining Contract Assets have been made,
taken or performed;
(xxiii) by the Closing Date and prior to each Subsequent
Transfer Date, as applicable, ACCH will have caused the portions of
ACCH's servicing records relating to the Contracts to be clearly and
unambiguously marked to show that the Contracts constitute part of
the Trust Estate and are owned by the Trust in accordance with the
terms of this Agreement;
(xxiv) no Contract was originated in, or is subject to the
laws of, any jurisdiction the laws of which would make unlawful,
void or voidable the sale, transfer and assignment of such contract
under this Agreement. ACCH has not entered into any agreement with
any account debtor that prohibits, restricts or conditions the
assignment of any portion of the Contracts;
(xxv) no selection procedures adverse to the
Certificateholders or to the Certificate Insurer have been utilized
in selecting such Contract from all other similar Contracts
originated by ACCH; and
(xxvi) The final scheduled payment date on the Initial
Contract with the latest maturity is November 1, 2001. Each Contract
is a Simple Interest or Actuarial Contract.
In the event ACCH has breached any of the foregoing representations
and warranties and NAFCO has accepted a retransfer or is required to accept a
retransfer of the affected Contract pursuant to the Purchase and Contribution
Agreement, ACCH shall, upon demand, repurchase such Contract from NAFCO. In
addition, with respect to any Contract in respect of which the Title Document
was being applied for on the Closing Date or the applicable Subsequent Transfer
Date, as the case may be, if such Title Document has not been received by NAFCO
or its transferee within 180 days after the Closing Date or such Subsequent
Transfer Date, as the case may be and NAFCO is required to accept a retransfer
of such Contract pursuant to the Purchase and Contribution Agreement, ACCH
shall, upon demand by NAFCO, repurchase such Contract. Any such repurchases by
ACCH shall be at a repurchase price equal to the Retransfer Amount determined in
the manner provided in the Pooling and Servicing Agreement. Such repurchase
price shall be paid by ACCH at the direction of NAFCO and upon receipt of such
repurchase price, NAFCO shall release, or cause to be released, to ACCH the
related Contract File and NAFCO or its transferee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in ACCH or its designee any Contract released pursuant
thereto. Except as expressly provided in the next sentence, it is understood and
agreed that the obligation of ACCH to purchase any Contract as to which such a
breach has occurred and is continuing as described above shall constitute the
sole remedy respecting such breach available to NAFCO. ACCH shall indemnify,
defend and hold NAFCO harmless from and against any and all losses, damages,
claims, expenses and liabilities arising out of or relating to a breach by ACCH
of its representations and warranties in clauses (viii) and (x) of this Section
4.1(b).
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Notwithstanding Section 5.1, it is understood and agreed that the
representations, warranties and covenants set forth in this Section 4.1 shall
survive until the date upon which the Trust terminates pursuant to Section 9.01
of the Pooling and Servicing Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Term. This Agreement shall commence as of the Closing Date and
shall continue in full force and effect until the close of business on the last
day of the Revolving Period.
5.2 Notices. All notices, demands and requests that may be given or
that are 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 NAFCO: National Auto Finance Company L.P.
Xxx Xxxx Xxxxx
Xxxxx 000
000 X.X. 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
Telecopy No: (000) 000-0000
Confirmation: (000) 000-0000
If to ACCH: Auto Credit Clearinghouse L.P.
Xxx Xxxx Xxxxx, Xxxxx 000
000 X.X. 00xx Xxxxxx
Boca Raton, Florida 33487
Attention: __________
Telecopy No: __________
Confirmation: _________
If to Financial Security Assurance Inc.:
Financial Security Assurance, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Surveillance Department
Re: National Auto Finance 1996-1 Trust,
6.33% Automobile Receivables-
Backed Certificates
Telecopy No: (000) 000-0000
(000) 000-0000
Confirmation: (000) 000-0000
If to the Trustee:
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
5.3 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.
5.4 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.
5.5 Amendment. This Agreement may be amended from time to time by
ACCH and NAFCO to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein or therein, or
to make any other provisions with respect to matters or questions arising under
this agreement which shall not be materially inconsistent with the provisions of
this Agreement, provided that such action shall not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect in any material respect
the interests of the Certificateholders and provided further that such action
shall be consented to in writing by the Certificate Insurer (unless a
Certificate Insurer Default shall have occurred and be continuing).
5.6 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
5.7 Assignment. This Agreement may not be assigned by ACCH or NAFCO
except as contemplated by this Section, the Purchase and Contribution Agreement
and the Pooling and Servicing Agreement; provided however, that simultaneously
with the execution and delivery of this Agreement, NAFCO shall assign all of its
right, title and interest under Section 4.1 to the Trustee on behalf of the
Certificateholders and the Certificate Insurer, to which ACCH hereby
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expressly consents. ACCH agrees to perform its obligations hereunder for the
benefit of the Trust and further agrees that the Trustee or the Certificate
Insurer may (but shall have no obligation to) enforce the provisions of Section
4.1 and exercise the rights of NAFCO to enforce the obligations of ACCH under
Section 4.1 on behalf of the Trust and the Certificateholders without the
consent of NAFCO.
5.8 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, and the Trustee 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 on and directly enforce the provisions of this Agreement. The
Certificate Insurer may disclaim any of its rights and powers under this
Agreement upon delivery of a written note to ACCH and NAFCO. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder.
5.9 No Petition. ACCH hereby agrees that it will not institute
against NAFCO, or join any other Person instituting against NAFCO, any
bankruptcy or insolvency proceeding under any applicable state or federal law so
long as any Certificate issued pursuant to the Pooling and Servicing Agreement
remains outstanding or there shall have not elapsed one year plus one day since
the date of the final payment on the Certificates issued pursuant to the Pooling
and Servicing Agreement. The foregoing shall not limit the right of ACCH to file
any claim in or otherwise take any action with respect to any bankruptcy or
insolvency proceeding that was instituted against NAFCO by any Person other than
ACCH.
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IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement as of the day and year first written above.
NATIONAL AUTO FINANCE COMPANY L.P.
By: NATIONAL AUTO FINANCE
CORPORATION, as General Partner
By: ____________________________________
Name:
Title:
AUTO CREDIT CLEARINGHOUSE L.P.
By: NATIONAL AUTO FINANCE
CORPORATION, as General Partner
By: ____________________________________
Name:
Title:
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