AMENDED AND RESTATED ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of _________, 1997 (this
"Agreement"), between National Auto Finance Company, Inc., a Delaware
corporation (the "Company"), and National Auto Finance Company L.P., a Delaware
limited partnership (the "NAFCO Partnership").
W I T N E S S E T H
WHEREAS, the NAFCO Partnership is organized and existing pursuant to a
Second Amended and Restated Agreement of Limited Partnership, dated as of
September 1, 1995 (the "NAFCO Partnership Agreement"; terms defined therein and
not otherwise defined herein being used herein with the meanings as so defined),
among National Auto Finance Corporation, as general partner, and the limited
partners party thereto;
WHEREAS, the Company was formed on October 4, 1996, for the purpose of
acquiring all of the assets, subject to all of the liabilities, of the NAFCO
Partnership in exchange (the "NAFCO Exchange") for shares of common stock, par
value $.01 per share, of the Company (the "Common Stock") and shares of
preferred stock of the Company (the "Preferred Stock" and, together with the
Common Stock, the "Capital Stock");
WHEREAS, immediately prior to the NAFCO Exchange, all of the partners of
Auto Credit Clearinghouse (other than the NAFCO Partnership) will transfer their
partner interests in Auto Credit Clearinghouse to the NAFCO Partnership
in exchange for limited partner interests in the NAFCO Partnership (such
transaction being referred to herein as the "ACCH Exchange").
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. (a) The NAFCO Partnership shall assign, transfer, convey and deliver all
of its right, title and interest in all of its assets, subject to all of its
liabilities, to the Company, and the Company shall accept the assignment and
shall assume all of the duties, obligations and liabilities relating thereto.
(b) In consideration for the transfer of all of the assets, subject to
all of the liabilities, of the NAFCO Partnership, the Company will issue to the
NAFCO Partnership
on the Closing Date (as defined below), the number of shares of Capital Stock
set forth on Schedule I hereto, which shares, together with the shares of
Capital Stock currently owned by the NAFCO Partnership, shall constitute all of
the issued and outstanding shares of Capital Stock of the Company; provided,
that the number of shares of Capital Stock set forth on Schedule I hereto may be
modified by the Company prior to the Closing Date; provided, further, that such
shares of Capital Stock shall constitute, together with the shares of Common
Stock owned by the NAFCO Partnership, all of the issued and outstanding shares
of Capital Stock.
(c) Notwithstanding anything to the contrary contained herein, the
parties hereto agree that fulfillment by the NAFCO Partnership of its
obligations hereunder is subject to prior Consent of the Limited Partners.
2. The closing of the transactions contemplated by this Agreement shall
take place at the offices of Weil, Gotshal & Xxxxxx LLP in New York City, or
such other place as the parties shall agree, immediately prior to the closing of
the initial public offering and sale by the Company of shares of Common Stock
(the "Offering") pursuant to a Registration Statement on Form S-1 under the
Securities Act of 1933, as amended (the "Act"), to be filed with the Securities
and Exchange Commission following the execution and delivery of this Agreement
(such date being referred to herein as the "Closing Date").
3. In the event the Closing Date shall not have occurred or the Offering
shall have been abandoned by the Company on or prior to March 31, 1997, this
Agreement shall terminate and be of no further force or effect and the Company
shall give notice of such abandonment to the parties hereto promptly thereafter.
4. The Company represents, warrants and covenants to the NAFCO Partnership
as follows:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power to own, lease and operate its properties and to carry on its
business as the same is now being conducted and will be conducted following the
Closing Date.
(b) The Company is authorized to issue 20,000,000 shares of Common
Stock, of which 1,000 shares are issued and
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outstanding as of the date hereof and registered in the name of the NAFCO
Partnership, and 1,000,000 shares of Preferred Stock, par value $0.01, of which
no shares are issued and outstanding as of the date hereof. On the Closing Date
and prior to the consummation of the Offering, (a) the Company will have issued
to the NAFCO Partnership a number of shares of Common Stock and Preferred Stock
which, when taken together with all of the shares of Common Stock then owned by
the NAFCO Partnership, will constitute 100% of the then outstanding Capital
Stock, and (b) no other shares of capital stock of the Company will then be
outstanding.
(c) On the Closing Date after giving effect to the transactions
contemplated hereby, there will be no outstanding rights of subscription,
warrants, calls, options, contracts or other agreements of any kind issued or
granted by the Company to purchase or otherwise to receive any capital stock of
the Company, except (i) for shares of Common Stock issuable upon the exchange of
deferred additional interest notes held by Xxxxxx Guaranty Trust Company of New
York, as trustee of (A) the Commingled Pension Fund Trust (Multi-Market Special
Investment Fund II) of Xxxxxx Guaranty Trust Company of New York and (B)
Multi-Market Special Investment Trust Fund of Xxxxxx Guaranty Trust Company of
New York) and Xxxxxx Guaranty Trust Company of New York, as investment manager
and agent for the Xxxxxx X. Xxxxx Foundation, (ii) the underwriting agreement
with respect to the shares of Common Stock to be issued and sold in the Offering
and (iii) stock options issued pursuant to the Company's 1996 Share Incentive
Plan.
(d) Since its formation, the Company has not been engaged in the conduct
of any business except for the activities incident to the transactions
contemplated hereunder and in connection with the Offering.
5. The NAFCO Partnership represents and warrants to the Company as follows:
(a) Upon the transfer of the assets of the NAFCO Partnership to the
Company on the Closing Date, title to such assets will be acquired by the
Company, free and clear of any pledge, lien, security interest or other
encumbrances, other than any lien securing obligations of the NAFCO Partnership.
(b) The NAFCO Partnership acknowledges that: (i) it has no present plan
or intention to sell, exchange,
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transfer, distribute or otherwise dispose of (whether by gift or by means of any
hedging or similar transaction that would reduce its risk of loss on) any of the
shares of Capital Stock or rights to acquire shares of Capital Stock that it
will receive on the Closing Date; and (ii) it has been informed by the Company
of the restrictions contained in Section 6 hereof and that it is acquiring the
Capital Stock for its own account with no present intention of distributing
the same, except in compliance with the Act.
(c) The NAFCO Partnership acknowledges that it has such knowledge and
experience in financial and business matters that such party is capable of
evaluating the merits and risks of the acquisition of the Capital Stock pursuant
to this Agreement. The NAFCO Partnership recognizes that the Capital Stock has
not been registered under the Act or applicable state securities laws, and that,
accordingly, such securities will not be transferable except upon satisfaction
of the registration and prospectus delivery requirements of such laws or
pursuant to an available exemption therefrom, and such party must bear the
economic risk of its investment for an indefinite period of time. The NAFCO
Partnership acknowledges it has received or been given access to financial
information and other documents and records necessary to make a well-informed
investment decision and has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's management.
(d) The NAFCO Partnership acknowledges that nothing in this Agreement
shall obligate the Company or any proposed underwriter to commence the Offering,
nor create any liability on the part of the Company or any proposed underwriter
to the parties hereto if (i) the Company shall elect for any reason not to file
a registration statement or withdraw any registration statement subsequent to
its filing or if any underwriter shall decline to participate in the Offering,
regardless of any action that any party hereto may have taken in connection
therewith or (ii) the ACCH Exchange shall not have occurred. The NAFCO
Partnership acknowledges that no representation is being made by the Company or
any proposed managing underwriter, nor can there be any assurance, that the
Offering will be made or consummated.
(e) The NAFCO Partnership shall, prior to the initial filing of the
registration statement for the Offering, maintain the confidentiality of, and
not disclose to any person, the pendency of the Offering except as may be
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required by applicable law or authorized by the Company and except on a
confidential basis to any agents or employees of such party to the extent
reasonably necessary in order to effectuate the transactions contemplated
hereby.
6. (a) The NAFCO Partnership shall not, directly or indirectly, at any time
transfer, sell, assign, convey or otherwise dispose of any shares of Common
Stock held by it or any right, title or interest therein (each a "Transfer")
except in compliance with the Act, and the certificates representing the Capital
Stock issued pursuant hereto shall be so restricted and a restrictive legend
placed on the certificates therefor in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR AN OPINION OF COUNSEL SELECTED BY THE
HOLDER AND SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS
NOT REQUIRED BY SAID ACT."
(b) Until 180 days after the effective date of the registration
statement for the Offering, the NAFCO Partnership shall not offer to sell, sell,
contract to sell or otherwise dispose of any shares of Capital Stock, or
securities convertible into or exchangeable or exercisable for, or rights to
acquire shares of Capital Stock (including the right to acquire Capital Stock
arising out of this Agreement) without the prior written consent of the
underwriter of the Offering.
(c) Each of the parties shall execute such documents and other
instruments and take such further actions as may be reasonably required or
desirable or as may be reasonably be requested by the Company to give effect to
the transactions contemplated hereby or carry out its obligations hereunder in
consummating the transactions contemplated hereby. The Company may issue "stop
transfer" instructions to the transfer agent for the Capital Stock and take such
other actions as it may deem appropriate to prevent transfers in violation of
this Paragraph 6(c).
7. On the Closing Date, the Company shall deliver to the NAFCO Partnership
a stock certificate or certificates representing the shares of Capital Stock to
be issued to the NAFCO Partnership pursuant to this Agreement.
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8. Any notice or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission, sent by a recognized national courier service, postage
or charges prepaid or sent by first class registered or certified mail, return
receipt requested, postage prepaid. Any such notice shall be deemed given when
so delivered personally, telegraphed, telexed or sent by facsimile transmission,
or in the case of delivery by a courier service, on the date of confirmation of
delivery or, if by first class registered or certified mailed, return receipt
requested, three days after the date of deposit in the United States mails, as
follows:
(i) If to the Company, to:
National Auto Finance Company, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Vice Chairman and Secretary
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx, Esq.
(ii) If to the NAFCO Partnership, to the address set forth on Schedule I
hereto.
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
9. (a) This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, with respect thereto.
(b) This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms and conditions hereof may be waived, only by a written
instrument signed by the parties. No delay on the part of any party in
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exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right, power
or privilege, nor any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
(c) This Agreement shall be governed and construed in accordance with
the laws of the State of New York, without regard to the conflict of laws
principles thereof.
(d) This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns.
(e) This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above.
NATIONAL AUTO FINANCE COMPANY L.P.
by National Auto Finance
Corporation,
its general partner
By: _________________________________
Name:
Title:
NATIONAL AUTO FINANCE COMPANY, INC.
By: _________________________________
Name:
Title:
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