EXECUTION COPY
AUTORICS II, INC.
Depositor
NAL ACCEPTANCE CORPORATION
Servicer
$1,986,000 14.25% Asset Backed Certificates
CERTIFICATE PURCHASE AGREEMENT
New York, New York
December 20, 1995
Greenwich Capital Financial Products, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Autorics II, Inc., a Delaware corporation (the "Depositor") and a
wholly owned subsidiary of NAL Acceptance Corporation, a Florida corporation
("NAL"), proposes to cause NAL Auto Trust 1995-1 (the "Trust") to issue and sell
to you (you are referred to from time to time herein as the "Purchaser")
$1,986,000 principal amount of its 14.25% Asset Backed Certificates (the
"Certificates"). The assets of the Trust will include a pool of sub-prime
precomputed and simple interest motor vehicle retail installment sale contracts
(the "Receivables"), certain monies received thereon on and after December 1,
1995 (the "Cutoff Date"), Payaheads received thereon prior to the Cutoff Date
but due thereafter, all liquidation proceeds with respect thereto (including
certain insurance proceeds), security interests in the used and new automobiles,
light duty trucks and vans financed thereby, the related Receivables files, the
Trust Accounts and proceeds of the foregoing. The Receivables will be serviced
for the Trust by NAL. The Certificates will be issued pursuant to the Trust
Agreement to be dated as of December 1, 1995 (as amended and supplemented from
time to time, the "Trust Agreement"), between the Depositor and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"). The Certificates will represent
fractional undivided interests in the Trust.
Simultaneously with the issuance and sale of the Certificates, the
Trust will also issue $36,524,000 principal amount of its 6.65% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), $1,605,000 principal amount of its
7.70% Asset Backed
Notes Class A-2 (the "Class A-2 Notes" and, collectively with the Class A-1
Notes, the "Notes"). The Notes will be sold pursuant to a purchase agreement
dated the date hereof (the "Note Purchase Agreement") between the Depositor and
Greenwich Capital Markets, Inc. ("GCM"). The Certificates and the Notes are
referred to herein collectively as the "Securities". The Notes will be issued
pursuant to the Indenture to be dated as of December 1, 1995 (as amended and
supplemented from time to time, the "Indenture") between the Trust and Bankers
Trust Company, as indenture trustee (the "Indenture Trustee"). The Notes will be
secured by the assets of the Trust pursuant to the Indenture.
The sale of the Certificates to the Purchaser will be made without
registration of the Certificates under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act.
The Trust will acquire the Receivables from the Depositor pursuant to a
Sale and Servicing Agreement to be dated as of December 1, 1995 (as amended and
supplemented from time to time, the "Sale and Servicing Agreement"), among the
Trust, the Depositor, NAL, as servicer and Bankers Trust Company, as backup
servicer. NAL will also agree to perform certain administrative functions on
behalf of the Trust pursuant to the Administration Agreement, dated as of
December 1, 1995 (as amended and supplemented from time to time, the
"Administration Agreement") among NAL, as administrator, the Trust and the
Indenture Trustee. The Depositor will acquire the Receivables from Autorics,
Inc., a Delaware corporation and a wholly owned subsidiary of NAL ("Autorics"),
on the Closing Date (as defined herein) pursuant to a Receivables Purchase
Agreement to be dated as of December 1, 1995 (as amended and supplemented from
time to time, the "Receivables Purchase Agreement") among the Depositor, as
purchaser, Autorics, as seller and NAL for the purpose of making certain
representations and warranties as to the Receivables and for certain other
matters. Payments on the Receivables will be made into a Lockbox Account which
will be established and maintained pursuant to a Lockbox Account Agreement,
dated as of November 27, 1995 (as amended from time to time, the "Lockbox
Account Agreement") among NAL, General Electric Capital Corporation ("GECC"),
and SunTrust Bank, South Florida, National Association ("SunTrust").
In connection with the sale of the Securities by the Depositor, the
Depositor and NAL have prepared a preliminary private placement memorandum,
dated December 19, 1995 (including any and all exhibits thereto, the
"Preliminary Memorandum"), and a private placement memorandum, dated the date
hereof (including any and all exhibits thereto, the "Final Memorandum"). Each of
the Preliminary Memorandum and the Final Memorandum sets forth certain
information concerning the Depositor, NAL, Autorics and
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the Securities. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned thereto in the Final Memorandum.
1. Representations and Warranties. NAL and the Depositor jointly and
severally (and with respect to each representation and warranty made as to
Autorics in this Section 1, Autorics, NAL and the Depositor jointly and
severally) represent and warrant to, and agree with, you, and each purchaser of
a Certificate directly from you or one of your affiliates, that:
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and the
Final Memorandum, at the date hereof, does not, and at the Closing Date
will not (and any amendment or supplement thereto, at the date thereof
and at the Closing Date, will not), contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Depositor and
NAL make no representation or warranty as to the information contained
in or omitted from the Preliminary Memorandum or the Final Memorandum,
or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Depositor or
NAL by GCM specifically for inclusion therein. The Depositor and NAL
acknowledge that the statements set forth in the Preliminary Memorandum
and in the Final Memorandum in the second and third sentences of the
first paragraph under the heading "Plan of Distribution" constitute the
only information furnished by GCM for inclusion in the Preliminary
Memorandum or the Final Memorandum.
(b) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business as
now conducted by it and to enter into and perform its obligations under
this Agreement, the Trust Agreement, the Sale and Servicing Agreement
and the Receivables Purchase Agreement and to cause the Trust to
authorize, issue and sell the Notes and Certificates as contemplated by
the Note Purchase Agreement and this Agreement, respectively.
(c) NAL has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Florida,
has full power and authority (corporate and other) necessary to own or
hold its
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properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement, the Sale
and Servicing Agreement, the Administration Agreement, the Lockbox
Account Agreement, that certain demand note dated December 20, 1995
from NAL to the Depositor (the "Demand Note") and the Receivables
Purchase Agreement.
(d) Autorics has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business as
now conducted by it and to enter into and perform its obligations under
this Agreement and the Receivables Purchase Agreement.
(e) This Agreement has been duly authorized, executed
and delivered by the Depositor, NAL and Autorics I.
(f) Each of the Trust Agreement, the Sale and Servicing
Agreement and the Receivables Purchase Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by the Depositor, and when so
executed and delivered, will constitute a legal, valid, binding and
enforceable agreement of the Depositor, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law.
(g) Each of the Sale and Servicing Agreement, the
Administration Agreement, the Lockbox Account Agreement, the Demand
Note and the Receivables Purchase Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by NAL, and when so executed and
delivered, will constitute a legal, valid, binding and enforceable
agreement of NAL, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity
or at law.
(h) The Receivables Purchase Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by Autorics, and when so executed
and delivered, will constitute a legal, valid, binding and enforceable
agreement of Autorics, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
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creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity
or at law.
(i) The execution, delivery and performance of this Agreement,
the Note Purchase Agreement, the Trust Agreement, the Sale and
Servicing Agreement, the Administration Agreement, the Lockbox Account
Agreement, the Demand Note and the Receivables Purchase Agreement and
the issuance and sale of the Securities and compliance with the terms
and provisions hereof and of the Indenture and the Trust Agreement will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any agreement or instrument to which
the Depositor, NAL or Autorics, as the case may be, is a party or by
which the Depositor, NAL or Autorics is bound or to which any of the
properties of the Depositor, NAL or Autorics is subject or of any
statute, order or regulation applicable to the Depositor, NAL or
Autorics of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor, NAL or
Autorics or any of their respective properties, in each case which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein.
(j) As of the Closing Date, the Securities and the Indenture,
the Trust Agreement, the Sale and Servicing Agreement, the
Administration Agreement and the Receivables Purchase Agreement will
conform in all material respects to the respective descriptions thereof
contained in the Final Memorandum. As of the Closing Date, the
Securities will be duly and validly authorized and, when duly and
validly executed, authenticated and delivered in accordance with the
Indenture and Trust Agreement, as the case may be, and delivered to you
or GCM, as the case may be, against payment therefor as provided herein
or in the Note Purchase Agreement, as applicable, will be duly and
validly issued and outstanding and entitled to the benefits of the
Indenture and the Trust Agreement, as the case may be.
(k) The Depositor's representations and warranties in the
Trust Agreement and in the Sale and Servicing Agreement, NAL's
representations and warranties in the Receivables Purchase Agreement,
the Administration Agreement and the Sale and Servicing Agreement and
Autorics I's representations and warranties in the Receivables Purchase
Agreement will be true and correct in all material respects as of the
Closing Date and each such representation and warranty will be true and
correct in all material respects on each date thereafter if and to the
extent that on such date such representation and warranty is made again
by the
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Depositor, NAL or Autorics, as the case may be, pursuant to the terms
of the related agreement.
(l) None of the Depositor, NAL and Autorics is in violation of
its certificate of incorporation or by-laws or in default under any
agreement, indenture or instrument the effect of which violation or
default would be material to the Depositor, NAL or Autorics I. None of
the Depositor, NAL and Autorics is a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject
to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it that materially and adversely affects, or may in
the future materially and adversely affect, (i) the ability of the
Depositor, NAL or Autorics to perform its obligations under this
Agreement, and, to the extent that it is a party thereto, the Trust
Agreement, the Sale and Servicing Agreement, the Lockbox Account
Agreement, the Demand Note, the Administration Agreement or the
Receivables Purchase Agreement or (ii) the business, operations,
financial condition, properties, assets or prospects of the Depositor,
NAL or Autorics I.
(m) There are no actions or proceedings against, or
investigations of, the Depositor, NAL or Autorics pending, or, to the
knowledge of the Depositor, NAL or Autorics, threatened, before any
court, arbitrator, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Indenture, the Trust
Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Lockbox Account Agreement, the Demand Note or the
Receivables Purchase Agreement or the Securities, (ii) seeking to
prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement, the Indenture, the
Trust Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Lockbox Account Agreement, the Demand Note or the
Receivables Purchase Agreement, (iii) that, if adversely determined,
could adversely affect the business, operations, financial condition,
properties, assets or prospects of the Depositor, NAL or Autorics or
the validity or enforceability of, or (to the extent each is a party
thereto) the performance by the Depositor, NAL or Autorics of their
respective obligations under, this Agreement, the Indenture, the Trust
Agreement, the Sale Servicing Agreement, the Administration Agreement,
the Lockbox Account Agreement, the Demand Note or the Receivables
Purchase Agreement or the Securities or (iv) seeking to affect
adversely the federal
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or Florida income tax attributes of the Certificates as
described in the Final Memorandum.
(n) Immediately prior to the assignment of the Receivables to
the Trust as contemplated by the Sale and Servicing Agreement, the
Depositor (i) had good title to, and was the sole owner of, each
Receivable and the other property purported to be transferred by it to
the Trust pursuant to the Sale and Servicing Agreement free and clear
of any pledge, mortgage, lien, security interest or other encumbrance
(collectively, "Liens"), (ii) had not assigned to any person any of its
right, title or interest in such Receivables or property or in the
Receivables Purchase Agreement and (iii) will have the power and
authority to sell such Receivables and property to the Trust, and upon
the execution and delivery of the Sale and Servicing Agreement by the
Owner Trustee on behalf of the Trust, the Trust will have acquired all
of the Depositor's right, title and interest in and to such Receivables
and property free and clear of any Lien (except for the Lien of the
Indenture).
(o) There are no contracts, agreements or understandings
between the Depositor or NAL and any person granting such person the
right to require the Depositor or NAL to file a registration statement
under the Securities Act with respect to any Securities owned or to be
owned by such person.
(p) The sale of the Certificates pursuant to this Agreement
and of the Notes pursuant to the Note Purchase Agreement is exempt from
the registration and prospectus delivery requirements of the Securities
Act. In the case of each offer or sale of the Securities, no form of
general solicitation or general advertising was used by the Depositor,
any affiliates of the Depositor or any person acting on its or their
behalf, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising. Neither the Depositor, any affiliates of the
Depositor nor any person acting on its or their behalf has offered or
sold, nor will the Depositor or any person acting on its behalf offer
or sell directly or indirectly, any Security or any other security in
any manner that, assuming the accuracy of the representations and
warranties and the performance of the covenants given by you, would
render the issuance and sale of any of the Certificates as contemplated
hereby a
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violation of Section 5 of the Securities Act or the registration or
qualification requirements of any state securities laws, nor has any
such person authorized, nor will it authorize, any person to act in
such manner.
(q) Neither the Depositor nor the Trust is, and neither the
issuance and sale of the Securities nor the activities of the Trust
pursuant to the Indenture or the Trust Agreement will cause the
Depositor or the Trust to be, an "investment company" or under the
"control" of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(r) It is not necessary to qualify the Indenture or
the Trust Agreement under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(s) Neither the Depositor nor any affiliate thereof has paid
or agreed to pay to any person any compensation for soliciting another
to purchase any Securities (except as contemplated by the Note Purchase
Agreement).
(t) The information provided by the Depositor and NAL pursuant
to Section 5(k) hereof will not, at the date thereof, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2. Representations, Warranties and Covenants of the Pur-
chaser. You represent and warrant to, and agree with, the
Depositor that:
(a) You are purchasing the Certificates solely for your own
account as principal and not as nominee or agent for any other person,
and not with a view to, or for offer or sale in connection with, any
distribution (within the meaning of the Securities Act) or
fractionalization thereof, subject, nevertheless, to the understanding
that the disposition of your property shall at all times be and remain
within your control.
(b) You are an "accredited investor" as defined in Rule
501(a)(1), (2) or (3) of Regulation D and a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act.
(c) Neither you nor any person acting on your behalf has made
or will make offers or sales of the Certificates by
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means of any form of general solicitation or general advertising
(within the meaning of Regulation D).
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Depositor
agrees to sell the Certificates to you in the original principal balance with
respect thereto set forth on cover page hereof, and you agree to purchase such
Certificates from the Depositor, for the purchase price equal to .9365625% of
such original principal balance plus accrued interest thereon at the interest
rate with respect thereto from and including the Cutoff Date to, but not
including, the Closing Date. If, on or prior to January 21, 1996, you resell any
Certificates at a yield-to-maturity of less than 16% per annum, you shall remit
to the Depositor, in immediately available funds no later than two Business Days
after the date of settlement of such resale, as an adjustment to the purchase
price for such Certificates paid by you hereunder, the dollar price equivalent
of such lower yield (but no more than the dollar price equivalent of a yield-to-
maturity 100 basis points lower than the yield-to-maturity referred to above).
Nothing herein shall be deemed to create any obligation on your part, express or
implied, to sell or to make any attempt to sell Certificates at any time.
4. Delivery and Payment. Delivery of and payment for the Certificates
shall be made at the office of ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York time, on the date specified in Schedule
I hereto (or such later date not later than seven business days after such
specified date as you shall designate), which date and time may be changed by
agreement between you and the Depositor (such date and time of delivery and
payment for the Certificates being herein called the "Closing Date"). Delivery
of the Certificates shall be made to you against payment by you of the purchase
price therefor in immediately available funds. Any amount required to be
remitted by you in connection with a Resale Adjustment shall be made by you on
the day upon which settlement occurs with respect to the applicable sale of
Certificates, by check mailed to the address of Depositor set forth in Section 9
hereof, or, if the Depositor shall have provided you, not less than five
business days prior to such settlement date, with written instructions for
wiring any such remittance, by wire transfer to a U.S. depository institution
reasonably acceptable to you.
The Depositor agrees to have the Certificates available for inspection,
checking and packaging by you in New York, New York, not later than 10:00 a.m.
on the business day prior to the Closing Date.
5. Covenants of the Depositor and NAL. The Depositor and
NAL jointly and severally covenant and agree with you that:
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(a) During the period referred to in Section 5(c), the
Depositor or NAL will furnish to you, without charge, copies of the
Final Memorandum (including all documents incorporated by reference
therein and all amendments or supplements to such documents) in such
reasonable quantities as you request.
(b) At any closing occurring during the period referred to in
Section 5(c) as to which any of the Certificates are resold by you to
any subsequent purchaser, the Depositor and NAL will furnish or cause
to be furnished to such subsequent purchaser, if you so request, a
letter from each person furnishing a certificate or opinion on the
Closing Date as described in Sections 6(a), (b) and (c) hereof, in
which such person shall state that such subsequent purchaser may rely
upon such original certificate or opinion as though delivered and
addressed to such subsequent purchaser and made on and as of the
closing of the resale to such subsequent purchaser, except for such
exceptions set forth in such letter as are attributable to events
occurring after the Closing Date.
(c) If, at any time prior to 90 days after the date hereof or
such earlier date as you shall have resold all of the Certificates, any
event occurs as a result of which the Final Memorandum (as then amended
or supplemented) would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it should be necessary to amend or supplement the
Final Memorandum to comply with applicable law, the Depositor and NAL
will promptly prepare and furnish to you an amendment or supplement to
the Final Memorandum satisfactory to you that will correct such
statement or omission.
(d) Neither the Depositor nor NAL will amend or supplement the
Final Memorandum without your prior written consent.
(e) During the period referred to in Section 5(c), the
Depositor or NAL will, at your request, furnish through you to any
prospective purchaser of Certificates from you such information as is
reasonably requested and is reasonably available concerning matters
reasonably relevant to such prospective purchaser's decision to
purchase the Certificates and the Depositor and NAL jointly and
severally represent and warrant that such information will be accurate
and not misleading.
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(f) The Depositor and NAL authorize you to deliver to
investors copies of the Final Memorandum, as then amended or
supplemented, as contemplated by Section 5(c) hereof and any
information provided under Section 5(e) hereof in connection with any
reoffer or resale of the Certificates by you in accordance herewith.
(g) The Depositor and NAL jointly and severally agree to pay
all costs and expenses in connection with the transactions herein
contemplated, including, but not limited to, (i) the printing and
delivery to you of the Preliminary Memorandum, the Final Memorandum,
and each amendment thereto, (ii) the fees of the Owner Trustee, and its
counsel, (iii) the fee of the Indenture Trustee and its counsel, (iv)
the preparation, issuance and delivery of the Securities to you, (v)
the fees and disbursements of the Depositor's accountants, Price
Waterhouse LLP (including but not limited to the letters furnished by
it pursuant to Section 6(m) hereof), (vi) the fees and disbursements of
your counsel, and (vii) any fees charged by Duff & ▇▇▇▇▇▇ Credit Rating
Co. ("Duff & ▇▇▇▇▇▇") or ▇▇▇▇▇ Investors Service, Inc. ("Fitch") for
the rating of the Certificates.
(h) Each of the Depositor and NAL will not, and will not
permit any of the affiliates (as such term is defined in Rule 501(b) of
Regulation D) of the Depositor (such affiliates (including NAL) being
herein after referred to as the "Affiliates") to, resell any
Certificates that have been acquired by it or by any of them.
(i) Neither the Depositor, nor any of its Affiliates, nor any
person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the
Certificates under the Securities Act.
(j) Neither the Depositor, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities.
(k) So long as any of the Certificates are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, the Depositor and NAL will, unless the Depositor becomes subject
to and complies with Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), provide to each holder of
such restricted securities and to each prospective purchaser (as
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designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Securities Act.
This covenant is intended to be for the benefit of the holders, and the
prospective purchasers designated by such holders, from time to time of
such restricted securities.
(l) To the extent, if any, that the rating provided with
respect to the Certificates by Duff & ▇▇▇▇▇▇ or Fitch is conditional
upon the furnishing of documents or the taking of any actions by the
Depositor or NAL, the Depositor or NAL, as the case may be, shall
furnish such documents and take any such other actions.
6. Conditions to the Purchase of the Certificates. Your obligation
hereunder to purchase the Certificates shall be subject to the accuracy of the
representations and warranties on the part of the Depositor, NAL and Autorics
contained herein as of the date hereof and as of the Closing Date, to the
accuracy of the statements of the Depositor, NAL and Autorics made in any
certificates delivered pursuant to the provisions hereof, to the performance by
each of the Depositor, NAL and Autorics of its obligations hereunder and to the
following additional conditions:
(a) Each of the Depositor, NAL and Autorics shall have
delivered to you an officers' certificate, signed by its President or
vice president and dated the Closing Date, to the effect that the
signer of such certificate has carefully examined this Agreement and,
in the case of NAL and the Depositor, the Final Memorandum and that:
(i) the representations and warranties of the Depositor, NAL or
Autorics, as the case may be, in this Agreement are true and correct in
all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date and (ii) it has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(b) You shall have received an opinion, addressed to you, of
English, ▇▇▇▇▇▇▇▇▇ & ▇'▇▇▇▇▇, P.A., counsel for the Depositor, NAL and
Autorics, dated the Closing Date, in form and substance satisfactory to
you and your counsel, substantially in the form attached as Exhibit A
hereto.
(c) With respect to each state in which Financed Vehicles are
registered, you shall have received an opinion, addressed to you, of
special counsel to the Depositor admitted to practice in such state and
otherwise acceptable to you, dated the Closing Date, in form and
substance
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satisfactory to you and your counsel, substantially in the
form attached as Exhibit B hereto.
(d) You shall have received an opinion addressed to you of
▇▇▇▇▇ & Wood, in its capacity as federal tax counsel for the Trust,
dated the Closing Date, to the effect that the statements in the Final
Memorandum under the heading "Certain Federal Income Tax Consequences"
and under the heading "Summary of Terms -- Tax Status" (to the extent
relating to federal income tax consequences) accurately describe the
material federal income tax consequences to holders of the
Certificates.
(e) You shall have received an opinion addressed to you of
▇▇▇▇▇ & ▇▇▇▇, in its capacity as special counsel to the Purchaser,
dated the Closing Date, with respect to the validity of the
Certificates and such other related matters as you shall require, and
the Depositor shall have furnished or caused to be furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. ▇▇▇▇▇ & Wood, in its
capacity as special ERISA counsel to the Trust, shall have delivered an
opinion, addressed to you and dated the Closing Date, to the effect
that the statements in the Final Memorandum under the heading "ERISA
Considerations," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately describe the
material consequences to holders of the Certificates under ERISA.
(f) You shall have received an opinion addressed to you, the
Depositor and NAL of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner
Trustee, dated the Closing Date and satisfactory in form and substance
to you and your counsel, substantially in the form attached as Exhibit
C hereto.
(g) Counsel to the Depositor, NAL and Autorics shall have
furnished and addressed to you any opinions addressed to Duff & ▇▇▇▇▇▇
or Fitch and not otherwise furnished pursuant to this Section 6.
(h) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC-1 financing statements have been or
are being filed in the office of the Secretary of State of the States
of Florida and Delaware reflecting the transfer of the interest of
Autorics, NAL and the Depositor in the Receivables and the proceeds
thereof to NAL, the Depositor and the Trust, respectively, and the
grant of the security interest by the Trust in the
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Receivables and the proceeds thereof to the Indenture Trustee.
(i) On the date of the Preliminary Memorandum, on the date
hereof and on the Closing Date, Price Waterhouse LLP shall have
furnished to you a letter or letters, dated respectively as of the date
of the Preliminary Memorandum, the date hereof and as of the Closing
Date, substantially in the forms of the drafts to which you have
previously agreed and otherwise in form and substance satisfactory to
you and to your counsel.
(j) You shall have received from Duff & ▇▇▇▇▇▇ a rating letter
assigning a rating not lower than "BB" to the Certificates, which
ratings shall not have been modified, lowered or withdrawn.
(k) You shall have received from Fitch a rating letter
assigning a rating not lower than "BB" to the Certificates, which
ratings shall not have been modified, lowered or withdrawn.
(l) The Notes shall have been issued by the Trust and
purchased by GCM pursuant to the Note Purchase Agreement.
(m) You shall have received such further information,
certificates, documents and opinions as you may reasonably
have requested.
(n) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be satisfactory in form and substance to you and your counsel, and you
and your counsel shall have received such information, certificates and
documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if either of the Depositor, NAL or Autorics is in breach of any covenants or
agreements contained herein or if any of the opinions and certificates referred
to above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you and your counsel, this
Agreement and all your obligations hereunder may be canceled by you at, or at
any time on or prior to, the Closing Date. Notice of such cancellation shall be
given to the Depositor in writing, or by telephone or facsimile transmission
confirmed in writing.
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7. Indemnification and Contribution. (a) The Depositor and NAL, jointly
and severally, agree to indemnify and hold harmless you, your directors,
officers, employees and agents and each person who controls you within the
meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which you or any of
them may become subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum, the Final
Memorandum or any information provided by the Depositor or NAL to any holder or
prospective purchaser of Notes pursuant to Section 5(k), or in any amendment
thereof 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, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Depositor and
NAL will 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 any such untrue statement or
alleged untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Depositor by you or any of your affiliates specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Depositor or NAL may otherwise have.
(b) You agree to indemnify and hold harmless the Depositor and NAL,
their directors, their officers, and each person who controls the Depositor or
NAL within the meaning of either the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Depositor and NAL to you, but
only with reference to written information relating to you furnished to the
Depositor by you specifically for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Depositor and NAL acknowledge that the statements set forth in the second and
third sentences of the first paragraph under the heading "Plan of Distribution"
in the Preliminary Memorandum and in the Final Memorandum constitute the only
information furnished in writing by or on behalf of you for inclusion in the
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Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to elect separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to so assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved, in the case
of paragraph (a) of this Section 7, by you and representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall only be in respect of the counsel referred to in such
clause (i) or (iii). An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to
16
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to an indemnified party under this Section 7, then the
Depositor, NAL and you shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Depositor, NAL and you may be subject in such proportion that you are
responsible for the excess, if any, of the Resale Price for any Certificates
sold by you over the purchase price paid by you pursuant to Section 3 (including
any Resale Adjustment) and the Depositor and NAL are responsible the balance. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Depositor, NAL and you shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Depositor and NAL on the one hand and of you on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Relative benefits shall be
determined as provided in the preceding sentence. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Depositor and NAL on the one hand or you
on the other. The Depositor, NAL and you agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls you within the meaning of either the
Securities Act or the Exchange Act and each of your directors, officers,
employees and agents shall have the same rights to contribution as you, and each
person who controls the Depositor or NAL within the meaning of either the
Securities Act or the Exchange Act and each officer and director of the
Depositor or NAL shall have the same rights to contribution as the Depositor or
NAL, subject in each case to the applicable terms and conditions of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice
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of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. Termination. (a) If the sale of the Certificates shall not be
consummated because any condition to your obligations set forth in Section 6
hereof is not satisfied or because of any refusal, inability or failure on the
part of the Depositor, NAL or Autorics to perform any agreement herein or comply
with any provision hereof other than by reason of your default, the Depositor
and NAL jointly and severally agree to reimburse you for the reasonable fees and
expenses of your counsel and for such other out-of-pocket expenses as shall have
been incurred by you in connection with this Agreement and the proposed purchase
of the Securities, and upon demand the Depositor or NAL shall pay the full
amount thereof to you.
(b) This Agreement will survive delivery of and payment for the
Certificates. The provisions of Section 7 and this Section 8(c) shall survive
the termination or cancellation of this Agreement.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
transmitted by facsimile and confirmed to you at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇; or, if sent to the
Depositor, NAL or Autorics, will be mailed, delivered or transmitted by
facsimile and confirmed to it at NAL Acceptance Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 and their
successors and assigns, and no other person will have any right or obligation
hereunder.
11. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Depositor, NAL and Autorics I.
Very truly yours,
NAL ACCEPTANCE CORPORATION
By:_________________________
Name:
Title:
AUTORICS II, INC.
By:_________________________
Name:
Title:
AUTORICS, INC.
By:_________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By:____________________________
Name:
Title:
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