<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________ to ___________
Commission file number: 0-26906
ASTA FUNDING, INC.
-----------------------------------------------------------------
(Exact name of small business issuer as specified in its charter)
Delaware 22-3388607
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
210 Sylvan Ave., Englewood Cliffs, New Jersey 07632
- --------------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (201) 567-5648
Former name, former address and former fiscal year, if changed since last
report: N/A
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or
for such shorter period that the registrant was required to file such reports)
and (2) has been subject to such filing requirements for the past 90 days.
Yes _X_ No ___
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS
Check whether the registrant filed all documents and reports required to be
filed by Section 12, 13 or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by a court.
Yes ____ No ____
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: As of June 30, 1997 the registrant
had 4,460,000 common shares outstanding.
Transitional Small Business Disclosure Format (check one): Yes __ No _X_
<PAGE>
Asta Funding, Inc. and Subsidiary
Form 10-QSB June 30, 1997
INDEX
Part I. Financial Information
- -----------------------------
Item 1. Financial Statements
Consolidated Balance Sheets as of June 30, 1997 (Unaudited) and
September 30, 1996
Consolidated Statements of Operations for the three- and
nine-month periods ended June 30, 1997 and June 30, 1996
(Unaudited)
Consolidated Statements of Cash Flows for the nine-month periods
ended June 30, 1997 and June 30, 1996 (Unaudited)
Notes to consolidated financial statements (Unaudited)
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Part II. Other Information
- --------------------------
Item 1. Legal Proceedings
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
Signatures
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Asta Funding, Inc. and Subsidiary
Consolidated Balance Sheets
June 30, September 30,
----------- ------------
1997 1996
---- ----
Unaudited
Assets
Cash $ 5,007 $ 3,401,674
Restricted cash and cash equivalents, net 878,760 358,179
Loans receivable, net 16,265,244 3,285,130
Accrued interest receivable 204,000 36,168
Servicing fees receivable 34,069 59,919
Excess servicing receivable, net 1,245,049 2,675,407
Due from trustee 106,585 2,079,679
Furniture and equipment, net 157,886 97,894
Repossessed automobiles, net 467,684 491,314
Deferred taxes 150,000 365,000
Other assets 254,775 259,475
------------ ------------
Total Assets $ 19,769,059 $ 13,109,839
============ ============
Liabilities and Stockholders' Equity
Liabilities
Bank overdraft $ 201,986 $ 54,304
Income taxes payable 51,123 1,705,000
Estimated future losses on loans sold -- 76,756
Accounts payable and accrued expenses 348,995 592,356
Advances under a line of credit 10,550,000 --
Due to affiliate 419,440 1,919,704
------------ ------------
Total Liabilities 11,571,544 4,348,120
------------ ------------
Stockholders' Equity
Common stock, $.01 par value; authorized
10,000,000 shares; issued and outstanding
4,460,000 44,600 44,600
Additional paid-in capital 9,597,271 9,597,271
Accumulated deficit (1,444,356) (880,152)
------------ ------------
Total Liabilities 8,197,515 8,761,719
------------ ------------
Total Liabilities and Stockholders' Equity $ 19,769,059 $ 13,109,839
============ ============
See accompanying notes to consolidated financial statements
<PAGE>
Asta Funding, Inc. and Subsidiary
Consolidated Statements of Operations
Unaudited
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
June 30, June 30,
-------------------------- --------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues:
Interest $ 1,058,056 $ 1,082,314 $ 2,411,181 $ 2,371,977
Servicing fees 45,122 -- 402,907 --
----------- ----------- ----------- -----------
1,103,178 1,082,314 2,814,088 2,371,977
----------- ----------- ----------- -----------
Expenses:
General and administrative 768,341 447,220 2,226,228 993,127
Provision for credit losses 587,000 130,500 1,206,700 388,900
Interest 184,572 158,921 320,773 371,008
----------- ----------- ----------- -----------
1,539,913 736,641 3,753,701 1,753,035
----------- ----------- ----------- -----------
Income (loss) before provision (benefit) for
income taxes $ (436,735) $ 345,673 $ (939,613) $ 618,942
Provision (benefit) for income taxes (173,460) 138,131 (375,410) 249,133
----------- ----------- ----------- -----------
Net income (loss) $ (263,275) $ 207,542 $ (564,203) $ 369,809
=========== =========== =========== ===========
Net income (loss) per share $ (0.07) $ 0.06 $ (0.14) $ 0.11
=========== =========== =========== ===========
Weighted average number of shares
outstanding 3,960,000 3,629,712 3,960,000 3,371,259
=========== =========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE>
Asta Funding, Inc. and Subsidiary
Consolidated Statements of Cash Flows
Unaudited
<TABLE>
<CAPTION>
Nine Months Ended
March 31,
----------------------------
1997 1996
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (564,205) $ 369,809
Adjustments to reconcile net income (loss) to net
cash provided by (used in) operating activities:
Depreciation and amortization 80,327 89,066
Amortization of excess servicing 1,397,206 --
Provision for losses 1,206,700 388,900
Deferred income taxes 215,000 (128,000)
Expenses advanced by affiliate 75,660 61,898
Changes in operating assets and liabilities:
Accrued interest receivable (167,831) (205,164)
Servicing fees receivable 25,850 --
Other assets 24,339 (234,982)
Due from trustee 1,887,625 --
Restricted cash (1,413,345) --
Accounts payable and accrued expenses (1,897,227) 520,453
------------ ------------
Net cash provided by operating activities 870,099 861,980
Cash flows from investing activities:
Loans originated (16,346,349) (18,156,889)
Loans repaid 2,999,440 3,676,826
Capital expenditures (92,243) (35,452)
------------ ------------
Net cash used in investing activities (13,439,152) (14,515,515)
Cash flows from financing activities:
Payments to affiliate (1,525,695) (21,664)
Increase in bank overdraft 147,681 229,945
Issuance of common stock -- 5,699,371
Deferred offering costs -- 97,631
Advances under a line of credit 10,550,000 7,433,925
------------ ------------
Net cash provided by financing activities 9,171,986 13,439,208
------------ ------------
(Decrease) in cash (3,397,067) (214,327)
Cash at the beginning of period 3,401,674 214,391
------------ ------------
Cash at end of period $ 4,607 $ 64
============ ============
Supplemental disclosure of cash flow information:
Cash paid during the period
Interest $ 233,360 $ 295,844
Income taxes $ 900,000 $ 26,250
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE>
Asta Funding, Inc.
Notes to Consolidated Financial Statements
Note 1: Basis of Presentation
Asta Funding, Inc. (the "Company") is a consumer finance company engaged in the
business of purchasing, selling and servicing retail installment sales contracts
("Contracts") originated by automobile dealers ("Dealers") in the sale primarily
of used automobiles. The Company was formed July 7, 1994. The Company's fiscal
year-end is September 30.
The consolidated balance sheet as of June 30, 1997, the consolidated statements
of operations for the three- and nine-month periods ended June 30, 1997 and
1996, and the consolidated statements of cash flows for the nine-month periods
ended June 30, 1997 and 1996, have been prepared by the Company without an
audit. In the opinion of management, all adjustments (which include only normal
recurring adjustments) necessary to present fairly the financial position at
June 30, 1997 and 1996, the results of operations for the three- and nine-month
periods ended June 30, 1996 and 1997 and the cash flows for the nine-month
periods ended June 30, 1996 and 1997 have been made. The results of operations
for the three- and nine-month periods ended June 30, 1997 are not necessarily
indicative of the operating results for the full year.
Pursuant to the rules and regulations of the Securities and Exchange Commission,
certain information and footnote disclosures required under generally accepted
accounting principles have been condensed or omitted from the presented
financial statements. It is suggested that these financial statements be read in
conjunction with the financial statements and notes thereto included in the
Company's Annual Report on Form 10-KSB for the fiscal year ended September 30,
1996.
Note 2: Principles of Consolidation
The consolidated financial statements include the accounts of Asta Funding, Inc.
and its wholly-owned subsidiary, Asta Auto Receivables Company, a limited
purpose corporation formed to accommodate certain resales of Contracts by the
Company. All significant intercompany balances and transactions have been
eliminated in consolidation.
Note 3: Loans Receivable
The Contracts which the Company purchases from dealers provide for finance
charges of between 16.95% and 29.9% per annum. Each Contract provides for full
amortization, equal monthly payments and permits prepayments by the borrower at
any time without penalty. The Company generally purchases Contracts at a
discount from the full amount financed under a Contract.
Note 4: Interest Income
Interest income on loans is recognized using the interest method. Accrual of
interest income on loans receivable is suspended when a loan is contractually
delinquent more than 60 days.
Note 5: Servicing Fees
Servicing fees are reported as income when earned, net of related amortization
of excess servicing fees. Servicing costs are charged to expense as incurred.
Note 6: Initial Public Offering
On November 17, 1995, the Company, in its initial public offering, sold
1,200,000 shares of its common stock. Proceeds, net of expenses of the offering,
were approximately $4,400,000. Additionally, the underwriter received warrants
to purchase shares of common stock at $6.50 per share. An additional 180,000
shares were sold on December 1, 1995 pursuant to the exercise by the underwriter
of the over-allotment option for approximately $800,000 net of expenses.
<PAGE>
Asta Funding, Inc.
Notes to Consolidated Financial Statements
Note 7: Due to Affiliate
On June 10, 1997, Asta Group Incorporated, formerly the majority shareholder of
the Company, sold all of the shares of the Company's Common Stock it
beneficially owned to the shareholders of Asta Group Incorporated and Mitchell
Herman, the Chief Financial Officer of the Company. On prior financial
statements the due to affiliate was reported as due to parent.
<PAGE>
Asta Funding, Inc.
Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations
Overview
The Company is engaged in the business of purchasing, selling and servicing
retail installment sales contracts ("Contracts") originated by automobile
dealers ("Dealers") in the sale primarily of used automobiles. The Company was
formed July 7, 1994 and purchased its first Contract in October 1994.
The Company typically purchases Contracts between Dealers and purchasers of
automobiles ("Sub-Prime Borrowers") who may have limited credit histories, low
incomes or past credit problems and, therefore, are generally unable to obtain
credit from traditional sources of automobile financing such as commercial
banks, savings and loan associations or credit unions. Sub-Prime Borrowers
typically pay a higher rate of interest than do prime borrowers utilizing
traditional financing sources.
The Company generates revenues, earnings and cash flow primarily through the
purchase and collection of principal, interest and other payments on Contracts.
Results of operations
The three-month period ended June 30, 1997, compared to the three-month period
ended June 30, 1996
Revenues. During the three-month period ended June 30, 1997, revenues increased
by $20,864 compared to the three-month period ended June 30, 1996. Interest
income decreased by $24,258 compared to the three-month period ended June 30,
1996. The increase in revenue is due to the increase in the volume of Contracts
serviced by the Company. The decrease in interest income is primarily due to the
decrease in the average number of Contracts outstanding compared to the
three-month period ended June 30, 1996. During the three-month period ended June
30, 1997, the Company purchased 877 Contracts from Dealers, compared to 1,026 in
the three-month period ended June 30, 1996. The Company earned Servicing fees of
$45,122 for the three months ended June 30, 1997, which consisted of base and
excess monthly servicing fees on Contracts sold and serviced by the Company. The
Company completed its first sale and securitization of a portfolio of Contracts
in September 1996 and therefore it did not have any income from servicing fees
during the three-month period ended June 30, 1996.
Expenses. During the three-month period ended June 30, 1997, general and
administrative expenses increased by $321,141 compared to the three-month period
ended June 30, 1996. The increase is due to the hiring of additional employees
and the increased overhead expenses necessary to accommodate the Company's
increased volume of servicing Contracts. In addition, the Company has incurred
an increase in marketing expenses as compared to the three-month period ended
June 30, 1996.
Interest expense increased by $25,651 during the three-month period ended June
30, 1997 compared to the same period in the prior year and represented 12% of
total expenses for the three-month period ended June 30, 1997. The increase is
due to an increase in borrowings under the line of credit on the Company's
credit facility with BankAmerica Business Credit, Inc. ("BankAmerica").
During the three-month period ended June 30, 1997, the provision for losses on
Contracts purchased increased by $456,500 and represented 38% of total expenses
compared to the three-month period ended June 30, 1996. The increase is due to
management's evaluation of its loan loss reserves and higher than expected
losses on Contracts held and serviced by the Company.
The nine-month period ended June 30, 1997, compared to the nine-month period
ended June 30, 1996
Revenues. During the nine-month period ended June 30, 1997, revenues increased
by $442,111 compared to the nine-month period ended June 30, 1996. Interest
income increased by $39,204 compared to the nine-month period ended June 30,
1996. The increase in revenue and interest income is primarily due to the
increase in the average number of Contracts outstanding compared to the
nine-month period ended June 30, 1996 . During the nine-month period ended June
30, 1997, the Company purchased 1,736 Contracts from Dealers, compared to 1,993
in the nine-month period ended June 30, 1996. The Company earned Servicing fees
of $402,907 for the nine months ended June 30, 1997 which consisted of base and
excess monthly servicing
<PAGE>
Asta Funding, Inc.
Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations
fees on Contracts sold and serviced by the Company. The Company completed its
first sale and securitization of a portfolio of Contracts in September 1996 and
therefore did not have income from servicing fees for the nine-month period
ended June 30, 1996.
Expenses. During the nine-month period ended June 30, 1997, operating expenses
increased by $2,000,666 as compared to the nine-month period ended June 30,
1996. The increase is due to the addition of employees and increased overhead
expenses necessary to accommodate the Company's increased volume of servicing
Contracts. In addition, the Company has incurred an increase in marketing
expenses as compared to the nine-month period ended June 30, 1996.
Interest expense decreased by $50,235 during the nine-month period ended June
30, 1997 compared to the same period in the prior year and represented 9% of
total expenses for the nine-month period ended June 30, 1997. The decrease is
due to a decrease in borrowings under the line of credit on the Company's credit
facility with BankAmerica.
During the nine-month period ended June 30, 1997, the provision for losses on
Contracts purchased increased by $817,800 and represented 32% of total expenses
compared to the nine-month period ended June 30, 1997. The increase is due to
management's evaluation of its loan loss reserves and higher than previously
expected losses on Contracts held and serviced by the Company.
Liquidity and Capital Resources
The funds necessary to support the Company's purchasing of Contracts have been
provided primarily from its initial public offering, bank borrowings under a
line of credit and contributed capital from Asta Group, Incorporated, an
affiliate of the Company.
In November 1995, the Company entered into a two-year credit facility with
BankAmerica (the "Credit Facility") under which the Company can borrow the
lesser of the advance rate (between 70% and 80% of eligible loans receivable)
and $15 million. At June 30, 1997, advances under the Credit Facility aggregated
$10,550,000. The advances bear interest at the prime rate plus 1%.
The Company's cash requirements have been and will continue to be significant.
Pursuant to the terms of the securitization agreement between Greenwich Capital
Markets, Inc. and Asta Funding, Inc., entered into in September 1996, the
Company was required to make a significant initial cash deposit, for purposes of
credit enhancement, to a spread account (the "Spread Account"). The Spread
Account is pledged to support the related Asset Backed Securities ("ABS"), and
is invested in high quality liquid securities. Excess cash flows from the
securitized Contracts are required to be deposited into the Spread Account until
such time as the Spread Account balance reaches a specific percent of the
outstanding balance of the related ABS.
The Company anticipates the funds available under the Credit Facility, the
proceeds from the sale of Contracts and cash from operations will be sufficient
to satisfy the Company's estimated cash requirements for the next 12 months,
assuming that the Company continues to have a means by which to sell its
warehoused Contracts. If for any reason the Company is unable to sell its
Contracts, or if the Company's available cash otherwise proves to be
insufficient to fund operations (because of future changes in the industry,
general economic conditions, unanticipated increases in expenses, or other
factors), the Company may be required to seek additional funding.
The Company does not anticipate any need for significant capital expenditures in
connection with the expansion of its business for at least 12 months.
This Form 10-QSB contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Such statements include but are not
limited to , the Company's opportunities to increase revenues through, among
other things, the purchase and sale of additional Contracts, and the anticipated
need and availability of financing.
<PAGE>
Asta Funding, Inc.
Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations
Forward-looking statements are inherently subject to risks and uncertainties,
many of which cannot be predicted with accuracy and some of which might not even
be anticipated. Future events and actual results, financial and otherwise, could
differ materially from those set forth in or contemplated by the forward-looking
statements herein. Important factors that could contribute to such differences
are: increases in unemployment or other changes in domestic economic conditions
which adversely affect the sales of new and used automobiles and which may
result in increased delinquencies, foreclosures and losses on Contracts; adverse
economic conditions in geographic areas in which the Company's business is
concentrated, mainly the Northeast and Mid-Atlantic States; changes in interest
rates, adverse changes in the market for securitized receivables pools or a
substantial lengthening of the Company's warehousing each of which could
restrict the Company's ability to obtain cash for Contract origination and
purchases; increases in the amounts required to be set aside in spread accounts
or to be expended for other forms of credit enhancement to support future
securitizations; increased competition; a reduction in the number and amount of
acceptable Contracts submitted to the Company by its dealers; changes in
government regulations effecting consumer credit; and other risk factors
identified in the Company's filings with the Securities and Exchange Commission,
including under the caption "Risk Factors" in its most recent Registration
Statement on Form S-1. Subsequent, written and oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified by the precautionary statements in this paragraph and elsewhere in
this Form 10-QSB.
<PAGE>
Asta Funding, Inc. and Subsidiary
Form 10-QSB June 30, 1997
Part II. OTHER INFORMATION
Item 1. Legal Proceedings
As of the date of this Filing, the Company was not involved in any
material litigation in which it is the defendant. The Company regularly
initiates legal proceedings as a plaintiff in connection with its routine
collection activities.
Item 5. Other Information
On June 10, 1997, Asta Group Incorporated, formerly the majority
shareholder of the Company, sold all of the shares of the Company's Common Stock
it beneficially owned to the shareholders of Asta Group Incorporated and
Mitchell Herman, the Chief Financial Officer of the Company.
On July 30, 1997, the Company and its wholly-owned subsidiary, Asta
Auto Receivables Company ("Asta Receivables") consummated a securitization of
automobile loan receivables. The transaction involved the private placement by
Asta Receivables of pass-through certificates evidencing ownership interests in
a trust. The assets of the trust are primarily comprised of motor vehicle retail
installment sale Contracts having an aggregate principal balance of $15,839,988
as of July 1, 1997. The contracts were transferred by the Company to Asta
Receivables which subsequently transferred such assets to the trust. The Company
received net proceeds of $13,427,428 from the sale of the Contracts to Asta
Receivables.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
Exhibit
Number
10.1 Pooling and Servicing Agreement dated as of July 1, 1997 among
Asta Auto Receivables Company, the Company and The Chase Manhattan Bank.
10.2 Certificate Purchase Agreement dated July 30, 1997 between
Greenwich Capital Markets, Inc. and Asta Auto Receivables Company.
10.3 Purchase Agreement dated as of July 1, 1997 between Asta Auto
Receivables Company and the Company.
27 Financial Data Schedule
b. Reports on Form 8-K filed during the quarter ended June 30,
1997-None.
<PAGE>
Asta Funding, Inc. and Subsidiary
Form 10-QSB June 30, 1997
Signatures
In accordance with the requirements of the Exchange Act of 1934, the Registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
ASTA FUNDING, INC.
(Registrant)
Date: August 4, 1997 By: /s/ Gary Stern
----------------------------------------------
Gary Stern, President, Chief Executive Officer
(Principal Executive Officer)
Date: August 4, 1997 By: /s/ Mitchell Herman
----------------------------------------------
Mitchell Herman, Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 1997
by and among
ASTA AUTO RECEIVABLES COMPANY
as Seller
ASTA FUNDING, INC.
as Servicer
CSC LOGIC/MSA, L.L.P.
as Backup Servicer
and
THE CHASE MANHATTAN BANK
as Trustee and Custodian
$21,119,985
ASTA AUTO TRUST 1997-1
Automobile Receivable Pass-Through Certificates
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
CREATION OF THE TRUST
Section 1.1 Creation of the Trust...................................... 1
ARTICLE II
DEFINITIONS
Section 2.1 Definitions................................................ 1
Section 2.2 Usage of Terms............................................. 17
Section 2.3 References................................................. 18
ARTICLE III
THE RECEIVABLES
Section 3.1 Conveyance of Receivables.................................. 18
Section 3.2 Transfer Intended as Sale; Precautionary Security Interest. 20
Section 3.3 Acceptance by Trustee...................................... 20
Section 3.4 Representations and Warranties of Seller................... 20
Section 3.5 Repurchase Upon Breach..................................... 26
Section 3.6 Custody of Receivable Files................................ 27
Section 3.7 Duties of Custodian........................................ 29
Section 3.8 Instructions; Authority to Act............................. 30
Section 3.9 Custodian's Indemnification................................ 30
Section 3.10 Effective Period and Termination........................... 30
Section 3.11 Pre-Funding Events......................................... 30
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.1 Duties of Servicer......................................... 31
Section 4.2 Collection and Allocation of Receivable Payments........... 32
Section 4.3 Realization Upon Receivables............................... 33
Section 4.4 Physical Damage Insurance; Other Insurance................. 33
Section 4.5 Maintenance of Security Interests in Financed Vehicles..... 34
Section 4.6 Covenants of Servicer...................................... 34
Section 4.7 Purchase of Receivables Upon Breach........................ 34
Section 4.8 Servicing Fee.............................................. 35
i
<PAGE>
Page
----
Section 4.9 Servicer's Certificate..................................... 35
Section 4.10 Annual Statement as to Compliance; Notice of Default....... 35
Section 4.11 Annual Independent Certified Public Accountant's Report.... 36
Section 4.12 Servicer Expenses.......................................... 36
Section 4.13 Access to Certain Documentation and Information Regarding
Receivables.............................................. 37
Section 4.14 Preparation and Verification of Servicer's Certificate..... 37
Section 4.15 Errors and Omissions....................................... 38
Section 4.16 Duties of Backup Servicer.................................. 39
ARTICLE V
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 5.1 Accounts................................................... 39
Section 5.2 Collections................................................ 40
Section 5.3 Application of Collections................................. 40
Section 5.4 Additional Deposits........................................ 40
Section 5.5 Distributions.............................................. 40
Section 5.6 Reserve Account, Priority of Distributions................. 42
Section 5.6A Pre-Funding Account........................................ 43
Section 5.6B Capitalized Interest Account............................... 43
Section 5.7 Simple Interest Differential Account....................... 44
Section 5.8 Statements to Certificateholders; Tax Returns.............. 44
Section 5.9 Reliance on Information from the Servicer.................. 47
Section 5.10 Statements to Certificateholders; Characteristics of
Receivables Pool......................................... 48
Section 5.11 Amendment to Schedule of Receivables....................... 48
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates........................................... 48
Section 6.2 Appointment of Paying Agent................................ 48
Section 6.3 Authenticating Agent....................................... 49
Section 6.4 Authentication of Certificates............................. 50
Section 6.5 Registration of Transfer and Exchange of Certificates...... 50
Section 6.6 Mutilated, Destroyed, Lost, or Stolen Certificates......... 53
Section 6.7 Persons Deemed Owners...................................... 53
Section 6.8 Access to List of Certificateholders' Names and Addresses.. 53
Section 6.9 Maintenance of Office or Agency............................ 53
ii
<PAGE>
Page
----
ARTICLE VII
THE SELLER
Section 7.1 Representations of Seller.................................. 54
Section 7.2 Liability of Seller; Indemnities........................... 57
Section 7.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller................................... 57
Section 7.4 Limitation on Liability of Seller and Others............... 58
Section 7.5 Seller May Own Certificates................................ 58
Section 7.6 Covenants of the Seller.................................... 58
Section 7.7 Enforcement by Trustee..................................... 59
Section 7.8 No Bankruptcy Petition..................................... 61
ARTICLE VIII
THE SERVICER
Section 8.1 Representations of Servicer................................ 62
Section 8.2 Indemnities of Servicer.................................... 63
Section 8.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer or Backup Servicer.............. 64
Section 8.4 Limitation on Liability of Servicer and Others............. 65
Section 8.5 Servicer and Backup Servicer Not to Resign................. 65
ARTICLE IX
DEFAULT
Section 9.1 Events of Default.......................................... 66
Section 9.2 Appointment of Successor................................... 68
Section 9.3 Notification to Certificateholders......................... 69
Section 9.4 Action Upon Certain Failures of the Servicer............... 69
Section 9.5 Waiver of Past Defaults.................................... 70
ARTICLE X
THE TRUSTEE
Section 10.1 Duties of Trustee.......................................... 70
Section 10.2 Trustee's Certificate...................................... 72
Section 10.3 Certain Matters Affecting Trustee.......................... 72
Section 10.4 Trustee Not Liable for Certificates or Receivables......... 74
Section 10.5 Trustee May Own Certificates............................... 75
Section 10.6 Indemnity of Trustee....................................... 75
Section 10.7 Eligibility Requirements for Trustee....................... 75
iii
<PAGE>
Page
----
Section 10.8 Resignation or Removal of Trustee.......................... 75
Section 10.9 Successor Trustee.......................................... 76
Section 10.10 Merger or Consolidation of Trustee......................... 76
Section 10.11 Appointment of Co-Trustee or Separate Trustee.............. 77
Section 10.12 Representations and Warranties of Trustee.................. 78
Section 10.13 No Bankruptcy Petition..................................... 78
Section 10.14 Trustee May Enforce Claims Without Possession of
Certificates............................................. 78
Section 10.15 Trustee Not Liable for Losses.............................. 79
Section 10.16 Application of Article X................................... 79
ARTICLE XI
TERMINATION
Section 11.1 Termination of the Trust................................... 79
Section 11.2 Optional Purchase of all Receivables....................... 80
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Amendment.................................................. 80
Section 12.2 Protection of Title to Trust............................... 81
Section 12.3 Limitation on Rights of Certificateholders................. 83
Section 12.4 Governing Law.............................................. 84
Section 12.5 Notices.................................................... 84
Section 12.6 Severability of Provisions................................. 85
Section 12.7 Assignment................................................. 85
Section 12.8 Certificates Nonassessable and Fully Paid.................. 85
Section 12.9 Nonpetition Covenant....................................... 85
Section 12.10 Third Party Beneficiaries.................................. 85
Section 12.11 Agent for Service.......................................... 86
Section 12.12 Tax Treatment.............................................. 86
Section 12.13 Seller's Partnership Interest.............................. 86
Section 12.14 [Reserved]................................................. 86
Section 12.15 Withholding................................................ 86
Section 12.16 Right to Direct............................................ 87
iv
<PAGE>
EXHIBITS
- --------
Exhibit A Form of Class A Certificate
Exhibit B Form of Class B Certificate
Exhibit C-1 Form of Trustee's Certificate (Seller)
Exhibit C-2 Form of Trustee's Certificate (Servicer)
Exhibit D Form of Servicer's Certificate
Exhibit E List of Lock-Boxes, Lock-Box Accounts and Lock-Box Banks
Exhibit F Form of Investor Representation Letter
Exhibit G Underwriting Guidelines
Exhibit H VSI Insurance Policy
Exhibit I Form of Request for Release of Documents
Exhibit J Form of Certificate of Non-Foreign Status
Exhibit K Form of Notice of Pre-Funding
Exhibit L Form of Acknowledgment of Receipt
Exhibit M Form of Statement to Certificateholders regarding
Characteristics of Receivables as of the Termination of the
Pre-Funding Period.
SCHEDULES
- ---------
Schedule A Schedule of Receivables
Schedule B Location of Receivable Files
Schedule C Fees of Trustee, Custodian and Backup Servicer
v
<PAGE>
This POOLING AND SERVICING AGREEMENT, dated as of July 1,
1997, is made with respect to the formation of the ASTA AUTO TRUST 1997-1 among
ASTA AUTO RECEIVABLES COMPANY, a Delaware corporation, as Seller (in such
capacity, the "Seller"), ASTA FUNDING, INC., a Delaware corporation, as Servicer
(in such capacity, the "Servicer"), CSC LOGIC/MSA, L.L.P., a Texas limited
liability partnership, as Backup Servicer (in such capacity, the "Backup
Servicer") and THE CHASE MANHATTAN BANK, a New York banking corporation, as
Trustee and Custodian (in such capacities, the "Trustee" and "Custodian"
respectively).
WITNESSETH THAT: In consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
CREATION OF THE TRUST
Section 1.1 Creation of the Trust. Upon the execution of this
Agreement by the parties hereto, there is hereby created the Asta Auto Trust
1997-1.
ARTICLE II
DEFINITIONS
Section 2.1 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Actuarial Receivable" means any Receivable that provides for
the amortization of the amount financed under the Receivable over a series of
fixed, level monthly payments. Each monthly payment, including the monthly
installment representing the final payment on the Receivable, consists of an
amount of interest equal to 1/12th of the stated APR multiplied by the unpaid
principal balance of the loan, and an amount of principal equal to the remainder
of such monthly payment.
"Affiliate" of any Person means any Person who directly or
indirectly controls, is controlled by or is under common control with such
person. For purposes of this definition of "Affiliate," the term "control"
(including the terms "controlling," "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause a direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agreement" means this Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
<PAGE>
"Amount Financed" with respect to a Receivable means the
amount advanced under the Receivable toward the purchase price of the Financed
Vehicle and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the
annual rate of finance charges stated in the Receivable.
"Asta Funding" means Asta Funding, Inc., a Delaware
corporation, and its successors and assigns.
"Assumption Date" shall have the meaning specified in 9.2(a).
"Authenticating Agent" has the meaning assigned to such term
in Section 6.3.
"Available Interest Distribution Amount" means, for any
Distribution Date, the sum (without duplication) of the following amounts
received with respect to the preceding Collection Period: (i) that portion of
all collections on Receivables attributable to interest, (ii) Liquidation
Proceeds attributable to interest with respect to the Receivables that became
Liquidated Receivables during the Collection Period in accordance with the
Servicer's customary servicing procedures; (iii) proceeds attributable to
interest from recoveries with respect to Liquidated Receivables that became
Liquidated Receivables during prior Collection Periods; and (iv) the Purchase
Amount of each Receivable that became a Purchased Receivable during the related
Collection Period to the extent attributable to accrued interest on such
Receivable; provided, however, that in calculating the Available Interest
Distribution Amount, all payments and proceeds (including Liquidation Proceeds)
of any Purchased Receivables the principal portion of the Purchase Amount of
which has been included in the Available Principal Distribution Amount in a
prior Collection Period will be excluded.
"Available Principal Distribution Amount" means, for any
Distribution Date, the sum (without duplication) of the following amounts
received with respect to the preceding Collection Period: (i) that portion of
all collections on Receivables allocable to principal; (ii) Liquidation Proceeds
attributable to principal with respect to Receivables that became Liquidated
Receivables during the Collection Period in accordance with the Servicer's
customary servicing procedures; (iii) proceeds attributable to principal from
recoveries with respect to Liquidated Receivables that became Liquidated
Receivables during prior Collection Periods; (iv) with respect to the First
Distribution Date following the Pre-Funding Period, the amount, if any,
remaining on deposit in the Pre-Funding Account (other than investment
earnings); and (v) to the extent attributable to principal, the Purchase Amount
of each Receivable that became a Purchased Receivable during the related
Collection Period; provided, however, that in calculating the Available
Principal Distribution Amount, all payments and proceeds (including Liquidation
Proceeds) of any Purchased Receivables the principal portion of the Purchase
Amount of which has been included in the Available Principal Distribution Amount
in a prior Collection Period that are allocable to principal will be excluded.
"Backup Servicer" means CSC Logic/MSA, L.L.P.. d/b/a Loan
Servicing Enterprise, a Texas limited liability partnership.
2
<PAGE>
"Backup Servicing Fee" means the monthly fee payable to the
Backup Servicer for services rendered during the respective Collection Period in
the amount specified in Schedule C hereto.
"Backup Servicing Officer" means any person whose name appears
on a list of Backup Servicing Officers delivered to the Trustee, as the same may
be amended from time to time.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions in New York, New York, the State in which
the Corporate Trust Office is located or the State in which the executive
offices of the Servicer are located shall be authorized or obligated by law,
executive order or governmental decree to be closed.
"Capitalized Interest Account" means the account, which shall
be an Eligible Account, established and maintained pursuant to Section 5.6B
hereof.
"Capitalized Interest Account Balance" means the amount on
deposit in the Capitalized Interest Account as of any date of determination.
"Capitalized Interest Requirement" means for any Collection
Period during the Pre-Funding Period the excess of (A) the sum of the interest
accruing on the amounts on deposit in the Pre-Funding Account for each day of
such Collection Period over (B) any earnings on Eligible Investments of funds in
such Pre-Funding Account during such Collection Period. Such daily interest
shall equal the sum of (i) the product of (a) the Class A Percentage, (b) the
daily balance in the Pre-Funding Account divided by 360, and (c) the Class A
Rate and (ii) the product of (a) the Class B Percentage, (b) the daily balance
in the Pre-Funding Account divided by 360, and (c) the Class B Rate.
"Certificate Account" means the account designated as such,
established and maintained pursuant to Section 5.5 hereof.
"Certificateholder" or "Holder" means the Person in whose name
the respective Certificate shall be registered in the Certificate Register,
except solely for the purposes of giving any consent, waiver, request, or demand
pursuant to this Agreement, the interest evidenced by any Certificate registered
in the name of the Seller or the Servicer, or any Affiliate of either of them,
shall not be taken into account in determining whether the requisite percentage
necessary to effect any such consent, waiver, request, or demand shall have been
obtained.
"Certificate Register" and "Certificate Registrar" mean,
respectively, the register maintained, and the Certificate Registrar appointed,
pursuant to Section 6.5.
"Certificates" means, collectively, the Class A Certificates
and the Class B Certificates.
"Class" means all Certificates having the same order of
priority and bearing the same alphabetical designation ("A" or "B").
3
<PAGE>
"Class A Certificate" means any one of the Certificates
executed by the Trust and authenticated by the Trustee in substantially the form
set forth in Exhibit A hereto.
"Class A Certificate Balance" shall initially equal the Class
A Original Class Certificate Balance and thereafter shall equal the Class A
Original Class Certificate Balance, reduced by all amounts previously
distributed to Class A Certificateholders and allocable to principal.
"Class A Distributable Amount" means, with respect to each
Distribution Date, the sum of the Class A Interest Distributable Amount and the
Class A Interest Carryover Shortfall for the prior Distribution Date and the
Class A Principal Distributable Amount and the Class A Principal Carryover
Shortfall for the prior Distribution Date.
"Class A Interest Carryover Shortfall" means, as of the close
of any Distribution Date, the excess of the Class A Interest Distributable
Amount for such Distribution Date and any outstanding Class A Interest Carryover
Shortfall from the preceding Distribution Date plus interest on such outstanding
Class A Interest Carryover Shortfall, to the extent permitted by law, at the
Class A Rate from such preceding Distribution Date through the current
Distribution Date (calculated on the basis of a 360-day year consisting of
twelve 30-day months), over the amount of interest that the Holders of the Class
A Certificates actually received on such current Distribution Date.
"Class A Interest Distributable Amount" means, for any
Distribution Date, 30 days of interest at the Class A Rate on the Class A
Certificate Balance as of the close of business on the last day of the related
Collection Period (calculated on the basis of a 360-day year consisting of
twelve 30-day months).
"Class A Percentage" shall be 75%.
"Class A Principal Carryover Shortfall" means, as of the close
of any Distribution Date, the excess of the Class A Principal Distributable
Amount and any outstanding Class A Principal Carryover Shortfall from the
preceding Distribution Date over the amount of principal that the Holders of the
Class A Certificates actually received on such current Distribution Date.
"Class A Principal Distributable Amount" means, with respect
to any Distribution Date, the Class A Percentage of the Principal Distributable
Amount.
"Class A Rate" means 7.60% of interest per annum.
"Class B Certificate" means any one of the Certificates
executed by the Trust and authenticated by the Trustee in substantially the form
set forth in Exhibit B hereto.
"Class B Certificate Balance" shall equal, initially, the
Class B Original Class Certificate Balance and, thereafter, shall equal the
Class B Original Class Certificate Balance,
4
<PAGE>
reduced by all amounts previously distributed to Class B Certificateholders and
allocable to principal.
"Class B Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Interest Distributable Amount and the
Class B Interest Carryover Shortfall for the prior Distribution Date and the
Class A Principal Distributable Amount and the Class A Principal Carryover
Shortfall for the prior Distribution Date.
"Class B Interest Carryover Shortfall" means, as of the close
of any Distribution Date, the excess of the Class B Interest Distributable
Amount for such Distribution Date and any outstanding Class B Interest Carryover
Shortfall from the preceding Distribution Date plus interest on such outstanding
Class B Interest Carryover Shortfall, to the extent permitted by law, at the
Class B Rate from such preceding Distribution Date through the current
Distribution Date (calculated on the basis of a 360-day year consisting of
twelve 30-day months), over the amount of interest that the Holders of the Class
B Certificates actually received on such current Distribution Date.
"Class B Interest Distributable Amount" means, for any
Distribution Date, 30 days of interest at the Class B Rate on the Class B
Certificate Balance as of the close of business on the last day of the related
Collection Period (calculated on the basis of a 360-day year consisting of
twelve 30-day months).
"Class B Percentage" shall be 25%.
"Class B Principal Carryover Shortfall" means, as of the close
of any Distribution Date, the excess of the Class B Principal Distributable
Amount and any outstanding Class B Principal Carryover Shortfall on the
preceding Distribution Date over the amount of principal that the Holders of the
Class B Certificates actually received on such current Distribution Date.
"Class B Principal Distributable Amount" means, with respect
to any Distribution Date, the Class B Percentage of the Principal Distributable
Amount.
"Class B Rate" means 8.95% of interest per annum.
"Class Certificate Balance" means as of any date of
determination, with respect to the applicable Class of Certificates, the Class A
Certificate Balance or the Class B Certificate Balance as of such date.
"Class Factor" as of the close of business on the last day of
the Collection Period, means with respect to each Class of Certificates, a
seven-digit decimal figure equal to the Class Certificate Balance of such Class
as of such date divided by the Original Class Certificate Balance thereof. The
Class Factor will be 1.0000000 as of the Cutoff Date; thereafter, the Class
Factor will decline to reflect reductions in the Class Certificate Balance.
"Closing Date" means July 29, 1997.
5
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Collection Period" means a calendar month. Any amount stated
"as of the close of business on the last day of a Collection Period" shall give
effect to the following calculations as determined at the end of the day on such
last day: (a) all applications of collections, and (b) all distributions. A
Collection Period with respect to a Distribution Date will be the calendar month
preceding the month in which such Distribution Date occurs.
"Corporate Trust Office" at the date hereof is located at:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Structured Finance Services
"Cram Down Loss" means, with respect to a Receivable, if a
court of appropriate jurisdiction in an insolvency proceeding shall have issued
an order reducing the amount owed on a Receivable or otherwise modifying or
restructuring the scheduled payments to be made on a Receivable, an amount equal
to the difference between the Principal Balance of such Receivable immediately
prior to the issuance of such order and the Principal Balance of such Receivable
as so reduced or the net present value (using as the discount rate, the lower of
the contract rate or the rate of interest specified by the court in such order)
of the Scheduled Payments as so modified or restructured by such order. A Cram
Down Loss shall be deemed to have occurred on the date of issuance of such
order.
"Cross-Acceleration Amount" shall have the meaning specified
in Section 9.1(e).
6
<PAGE>
"Cumulative Gross Loss Curve" means the ratios set forth in
the table below:
Month Ratio Month Ratio
- ----- ----- ----- -----
July, 1997 0.00% November, 1998 19.54%
August, 1997 0.79% December, 1998 20.13%
September, 1997 1.58% January, 1999 20.71%
October, 1997 2.36% February, 1999 21.29%
November, 1997 3.15% March, 1999 21.88%
December, 1997 3.94% April, 1999 22.46%
January, 1998 5.54% May, 1999 23.04%
February, 1998 7.15% June, 1999 23.63%
March, 1998 8.75% July, 1999 24.06%
April, 1998 10.35% August, 1999 24.50%
May, 1999 11.96% September, 1999 24.94%
June, 1998 13.56% October, 1999 25.38%
July, 1998 15.17% November, 1999 25.81%
August, 1998 16.77% December, 1999 26.25%
September, 1998 18.38% January, 2000 26.25%
October, 1998 18.69% and thereafter 26.25%
"Cumulative Gross Loss Ratio" means, as of any date of
determination, the ratio of the aggregate Liquidated Receivables since the
Initial Cutoff Date to the Original Pool Balance.
"Custodian" means the Person acting as custodian of the Trust
pursuant to Section 3.6 of this Agreement, the successor in interest and any
successor Custodian.
"Custodian Fees" means the monthly fee payable on each
Distribution Date to the Custodian for services rendered during the respective
Collection Period, in the amount specified in Schedule C hereto.
"Cutoff Date" shall mean (i) with respect to each Initial
Receivable, July 1, 1997 and (ii) with respect to each Subsequent Receivable,
the last Business Day of the calendar week immediately preceding the calendar
week of the Subsequent Transfer Date related to such Subsequent Receivable.
"Dealer" means the dealer who financed and sold a Financed
Vehicle and with respect to which Asta Funding purchased the respective
Receivable and sold it to the Seller.
7
<PAGE>
"Determination Date" means the earlier of (i) the ninth
Business Day of each calendar month and (ii) the fourth Business Day preceding
the related Distribution Date.
"Distribution Date" means, for each Collection Period, the
20th of the following month, or if the 20th is not a Business Day, the next
following Business Day, commencing on August 20, 1997.
"Eligible Account" means (a) a segregated account or accounts
maintained with a depository institution or trust company whose long-term
unsecured debt obligations are rated at least A by the Rating Agency at the time
of any deposit therein, or (b) a segregated trust account or accounts maintained
with a federal or state chartered depository institution subject to regulations
regarding fiduciary funds on deposit substantially similar to 12 C.F.R. Section
9.10(b).
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(i) direct obligations of, and obligations fully
guaranteed as to the full and timely payment by, the United States of
America;
(ii) demand deposits, time deposits or certificates
of deposit of any depository institution or trust company incorporated
under the laws of the United States of America or any State thereof (or
any domestic branch of a foreign bank) and subject to supervision and
examination by federal or State banking or depository institution
authorities; provided, however, that at the time of the investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a
short-term credit rating from the Rating Agency in the highest
investment category granted thereby;
(iii) commercial paper having, at the time of the
investment or contractual commitment to invest therein, a rating from
the Rating Agency in the highest investment category granted thereby;
(iv) bankers' acceptances issued by any depository
institution or trust company referred to in clause (ii) above;
(v) repurchase obligations with respect to any
security that is a direct obligation of, or fully guaranteed as to the
full and timely payment by, the United States of America or any agency
or instrumentality thereof the obligations of which are backed by the
full aith and credit of the United States of America, in either case
entered into with (a) a depository institution or trust company (acting
as principal) described in clause (b) above or (ii) a depository
institution or trust company whose commercial paper or other short term
unsecured debt obligations are rated not less than the highest
investment category granted by the Rating Agency;
8
<PAGE>
(vi) money market mutual funds registered under the
Investment Company Act of 1940, as amended, having a short-term or
long-term rating, at the time of such investment, from both Standard &
Poor's and Moody's in the highest investment category granted thereby;
and
(vii) any other investment that is approved in writing
by the Rating Agency and given one of its three highest ratings.
Any Eligible Investments may be purchased by or through the
Trustee or any of its Affiliates.
"ERISA" shall have the meaning specified in Section
6.5(c)(iv).
"Event of Default" means an event set forth in Section 9.1.
"Excess Interest" means the amount payable to the Seller on
each Distribution Date pursuant to Section 5.5(c)(vii).
"Final Scheduled Distribution Date" shall be the October 2002
Distribution Date.
"Final Subsequent Transfer Date" means the Subsequent Transfer
Date upon which the balance in the Pre-Funding Account is reduced to zero.
"Financed Vehicle" means a new or used automobile, van or
light-duty truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Initial Receivables" means all Receivables sold to the Trust
by the Seller on the Closing Date.
"Insurance Policy" means, with respect to a Receivable, any
comprehensive, collision, fire and theft insurance policy required to be
maintained by the Obligor with respect to the Financed Vehicle, the VSI
Insurance Policy and any credit life, credit accident and credit disability
insurance policies or certificates of insurance maintained by the Obligor or the
Seller relating to the Financed Vehicles or the Obligors.
"Lien" means a security interest, lien, charge, pledge,
equity, or encumbrance of any kind other than tax liens, mechanics' liens and
any liens which attach to the respective Receivable by operation of law or
unpaid storage or repair charges that may arise after the Closing Date.
"Liquidated Receivable" means any Receivable (i) that has been
liquidated by the Servicer through the sale of the Financed Vehicle or (ii) as
to which all or any part of a Scheduled Payment in an amount of more than five
percent (5%) of such Scheduled Payment is 120 days or more delinquent as of the
end of a Collection Period or (iii) with respect to which
9
<PAGE>
proceeds have been received that, in the Servicer's good faith judgment,
constitute the final amounts recoverable in respect of such Receivable.
"Liquidation Proceeds" means the monies collected from
whatever source on a Liquidated Receivable during the respective Collection
Period in which such Receivable became a Liquidated Receivable, net of the
reasonable costs of liquidation and any amounts required by law to be remitted
to the Obligor.
"Lock-Box" means the post office box or other mailing location
in the name of the Trustee identified in Exhibit E hereto maintained by the
Lock-Box Bank for the purpose of receiving payments by Obligors for subsequent
deposit into a Lock-Box Account.
"Lock-Box Account" means the account, which shall be an
Eligible Account established and maintained pursuant to Section 5.1 hereof.
"Lock-Box Bank" means, as of any date, the bank set forth in
Exhibit E hereto (including its successors) and any other bank that becomes a
Lock-Box Bank pursuant to Section 5.1 and that holds, or may in the future hold,
the Lock-Box Account for depositing payments made by Obligors.
"Majority Certificateholders" means the Holders of
Certificates evidencing not less than 51% of the Voting Interests thereof.
"Moody's" means Moody's Investors Service, Inc., or its
successor.
"Net Losses" means, with respect to a Collection Period, the
sum of (i) the sum of the Principal Balances of Receivables that became
Liquidated Receivables during such Collection Period minus Liquidation Proceeds
and (ii) Cram Down Losses incurred during such Collection Period minus (a)
recoveries received during such Collection Period on Liquidated Receivables of
prior Collection Periods minus (b) recoveries, if any, received during such
Collection Period on Cram Down Losses incurred during such Collection Period and
during prior Collection Periods.
"Obligor" on a Receivable means the purchaser or co-purchasers
of the Financed Vehicle or any other Person who owes payments under the
Receivable.
"Officer's Certificate" means a certificate signed by the
chief executive officer, chief financial officer, the president, any vice
president, the treasurer, the controller of Asta Funding, the Seller, or the
Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel who
may but need not be counsel to the Seller or Servicer, which counsel shall be
reasonably acceptable to the Trustee and which opinion shall be acceptable to
the Trustee in form and substance and which shall not be at the expense of the
Trustee. Such Opinion of Counsel may rely with respect to matters of fact on an
Officer's Certificate or certificates of public officials.
10
<PAGE>
"Optional Purchase Percentage" shall be 10% or less.
"Original Class Certificate Balance" means, with respect to
the Class A Certificates, $15,839,989; and with respect to the Class B
Certificates, $5,279,996.
"Original Pool Balance" means, as of any date of
determination, the aggregate Principal Balance of all Receivables (including
Subsequent Receivables) as of their respective Cutoff Dates.
"Original Pre-Funded Amount" means the amount deposited in the
Pre-Funding Account on the Closing Date.
"Paying Agent" shall have the meaning set forth in
Section 6.2.
"Person" means any individual, corporation, limited liability
company, estate, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"Pool Balance" means, as of the Determination Date, the
aggregate Principal Balance of the Receivables less Net Losses.
"Pool Factor" as of the close of business on the last day of a
Collection Period, means a seven-digit decimal figure equal to the Pool Balance
on such day divided by the Original Pool Balance. The Pool Factor will be
1.0000000 as of the Cutoff Date; thereafter, the Pool Factor will decline to
reflect reductions in the Pool Balance.
"Pre-Funding Account" means the trust account, which shall be
an Eligible Account, designated as such, established and maintained pursuant to
Sections 5.1 and 5.6A hereof.
"Pre-Funding Event" shall mean, with respect to a Subsequent
Transfer Date, the occurrence of the events required to occur in accordance with
Section 3.11.
"Pre-Funding Period" means the period beginning on the Closing
Date and ending on the earlier to occur of (a) any date on which the amount on
deposit in the Pre-Funding Account is less than $2,000, (b) the occurrence of an
Event of Default under the Agreement, or (c) the close of business on October
29, 1997.
"Principal Balance" of a Receivable, as of the close of
business on the last day of a Collection Period, means the Amount Financed minus
the sum of (i) that portion of all Scheduled Payments made by or on behalf of
the Obligor on or prior to such day allocable to principal using the Simple
Interest Method; (ii) any refunded portion of any Insurance Policy premiums or
other amounts included in the Amount Financed; (iii) any payment of the Purchase
Amount with respect to the Receivable allocable to principal; (iv) any
prepayment applied to reduce the Principal Balance of the Receivable; and (v)
any Cram Down Loss or Simple Interest
11
<PAGE>
Differential Adjustment in respect of such Receivable (without duplication of
amounts included above).
"Principal Distributable Amount" means (i) the amount of all
Scheduled Payments collected during the related Collection Period and allocated
to principal under the Simple Interest Method; (ii) the principal portion of all
prepayments (whether in whole or in part) on Receivables (without duplication of
amounts included in clause (i) above and clause (iv) below) received during the
related Collection Period including refunded portions of Insurance Policy
premiums or other amounts included in the Amount Financed; (iii) the Principal
Balance of each Receivable that became a Purchased Receivable during the related
Collection Period (without duplication of amounts referred to in clauses (i) and
(ii) above or clause (iv) below); (iv) the Principal Balance of each Receivable
that became a Liquidated Receivable during the related Collection Period
(without duplication of the amounts included in clause (i) and (ii) above); (v)
the aggregate amount of Cram Down Losses that shall have occurred during the
related Collection Period (without duplication of amounts included above); and
(vi) the aggregate amount of Simple Interest Differential Adjustments that shall
have occurred during the related Collection Period; provided, however, that, in
calculating the Principal Distributable Amount, all payments and proceeds of any
Purchased Receivable the Purchase Amount of which has been included in the
Principal Distributable Amount in a prior Collection Period shall be excluded.
"Program" shall have the meaning set forth in Section 4.11.
"Purchase Agreement" means the agreement dated as of July 1,
1997 relating to the purchase of the Receivables by the Seller from Asta
Funding.
"Purchase Amount" equals, as of any date of determination, the
Principal Balance plus interest thereon at the respective APR to the last day of
the month of repurchase.
"Purchased Receivable" means a Receivable purchased as of the
close of business on the last day of a Collection Period by the Servicer or the
Seller, as the case may be, pursuant to Section 4.7 or by Asta Funding pursuant
to Section 3.5.
"Rating Agency" means Duff & Phelps Credit Rating Co., or its
successor, as the statistical credit rating agency that rated the Certificates
at the request of the Seller at the time of the initial issuance of the
Certificates. If such organization or successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization or other comparable Person designated by the Seller, notice of
which designation shall be given to the Trustee.
"Realized Losses" means the excess of the Principal Balance of
any Liquidated Receivable over Liquidation Proceeds to the extent allocable to
principal received in the Collection Period in which the Receivable became a
Liquidated Receivable.
"Receivable" means any retail installment sale contract set
forth on Schedule A hereto (which Schedule A may be in the form of microfiche),
a portion of which shall be Actuarial Receivables; provided that Schedule A
shall be deemed to be amended on each
12
<PAGE>
Subsequent Transfer Date to add the Subsequent Receivables acquired by the
Seller from Asta Funding pursuant to the Purchase Agreement and sold to the
Trust pursuant to the terms hereof on each such Subsequent Transfer Date;
provided further, however, that the portion of a payment allocable to interest
and the portion allocable to principal with respect to each Receivable,
including Actuarial Receivables, shall be determined herein according to the
Simple Interest Method.
"Receivable Files" means the documents specified in
Section 3.6(a).
"Receivables Cash Purchase Price" means with respect to any
Subsequent Receivable and any date of determination, an amount equal to 100% of
the outstanding Principal Balance of such Subsequent Receivable as of such date
of determination.
"Record Date" means, with respect to each Distribution Date,
the last Business Day of the immediately preceding calendar month, except that
the Record Date with respect to the first Distribution Date will be the Closing
Date.
"Refunding Event" means the transfer of remaining funds in the
Pre-Funding Account to the Certificate Account and distribution to the
Certificateholders on a pro rata basis on the first Distribution Date following
the end of the Pre-Funding Period of such remaining funds in the Pre-Funding
Account (other than investment earnings) in accordance with Section 3.11 hereof.
"Repossession Inventory Rate" means, with respect to a
Collection Period, the fraction, expressed as a percentage, equal to the sum of
the aggregate outstanding Principal Balance of Receivables as to which the
related Financed Vehicles have been repossessed but not yet liquidated by the
Servicer as of the end of such Collection Period divided by the Pool Balance as
of the end of such Collection Period.
"Repurchase Threshold" shall equal at any time, an amount
equal to the available amount under the Seller note, as reduced by any payments
made on the Seller Note.
"Required Deposit Rating" shall be a rating of an institution
which has a short term deposit rating of at least A-1+ by the Rating Agency and
a long term deposit rating of at least AA by the Rating Agency or in the event
such institution is not rated by the Rating Agency, an equivalent rating from
each of Standard & Poor's and Moody's.
"Reserve Account" means the account, which shall be an
Eligible Account, established and maintained pursuant to Section 5.6 hereof.
"Reserve Account Balance" means the amount on deposit in the
Reserve Account as of any date of determination.
"Reserve Account Draw" shall have the meaning set forth in
Section 5.6(d).
13
<PAGE>
"Reserve Account Initial Deposit" means $1,932,478.63, an
amount equal to 9.15% of the aggregate certificate principal balance of the
Class A Certificates and Class B Certificates as of the Closing Date.
"Reserve Account Property" shall have the meaning set forth in
Section 5.6(d).
"Reserve Requirement" means, as of any Distribution Date,
after giving effect to distributions of principal on such date, an amount equal
to the greatest of the following provisions that are applicable as of such date:
1. twelve percent (12%) of the Pool Balance;
2. fourteen percent (14%) of the Pool Balance if, as of the
end of any Collection Period, the 60 Day + Delinquency
Rate is greater than 4% of the Pool Balance, in which
event the Reserve Requirement shall remain at 14% of the
Pool Balance until such time as the 60 day + Delinquency
Rate equals or drops below 4% of the Pool Balance for
three (3) consecutive subsequent Collection Periods at
which point the Reserve Requirement will be reduced to
twelve percent (12%) of the Pool Balance (the Reserve
Requirement may be reduced only one time under this
provision);
3. fourteen percent (14%) of the Pool Balance if the
Repossession Inventory Rate is greater than 4.50% of the
Pool Balance, in which event the Reserve Requirement
shall remain at 14% of the Pool Balance until such time
as the Repossession Inventory Rate equals or drops below
4.50% of the Pool Balance for three (3) consecutive
subsequent Collection Periods at which point the Reserve
Requirement will be reduced to twelve (12%) of the Pool
Balance (the Reserve Requirement may be reduced only one
time under this provision);
4. fourteen percent (14%) of the Pool Balance if the
cumulative Net Losses exceed ten and one-half percent
(10.50%) of the Original Pool Balance; provided, however,
that if the cumulative Net Losses exceed fourteen percent
(14%) of the Original Pool Balance, the Reserve
Requirement shall be equal to the Pool Balance; or
5. fourteen percent (14%) of the Pool Balance if the
Cumulative Gross Loss Ratio as of the last day of any
calendar month occurring during such Collection Period is
greater than the percentage set forth in the Cumulative
Gross Loss Curve.
6. the lesser of two percent (2%) of the Original Pool
Balance and the then current aggregate Pool Balance.
14
<PAGE>
"Scheduled Payment" on a Receivable means that payment
required to be made by the Obligor during the respective Collection Period
which, together with all other scheduled payments thereon, will be sufficient to
amortize the Principal Balance under the actuarial method set forth in the
related Contract over the term of the Receivable and to provide interest at the
APR.
"Schedule of Receivables" shall mean the schedule of all motor
vehicle retail installment sale contracts and promissory notes sold and
transferred pursuant to this Agreement which schedule is attached hereto as
Schedule A; provided that the Schedule of Receivables shall be deemed to be
amended (i) on each Subsequent Transfer Date to add all such contracts and
promissory notes acquired by Asta Funding during the Pre-Funding Period, subject
to the requirements of Section 3.11(b); and provided further that the aggregate
Principal Balance of such Subsequent Receivables added to the Schedule of
Receivables on a Subsequent Transfer Date shall not exceed the amount of the
principal balance of the Pre-Funding Account on such Subsequent Transfer Dates.
"Securities Act" shall have the meaning set forth in
Section 6.5(b).
"Seller" means Asta Auto Receivables Company as the seller of
the Receivables hereunder, and each successor to the Seller (in the same
capacity) pursuant to Section 7.3.
"Seller Note" shall mean the demand note issued by Asta
Funding to the Seller in the principal amount as of the Closing Date of
$2,100,000.
"Seller Partnership Interest" means at any time of
measurement, ownership of the sum of (i) the Excess Interest, (ii) the Seller's
interest in the Reserve Account, (iii) the Seller's interest in the Simple
Interest Differential Account and (iv) the Seller's interest in the Capitalized
Interest Account.
"Servicer" means Asta Funding as the servicer of the
Receivables that were purchased by the Seller, and each successor to Asta
Funding (in the same capacity) pursuant to Section 8.3(a) or 9.2.
"Servicer's Certificate" means a certificate completed and
executed by a Servicing Officer or Trustee Officer pursuant to Section 4.9,
substantially in the form of Exhibit D hereto.
"Servicing Fee" means the fee payable to the Servicer for
services rendered during the respective Collection Period, determined pursuant
to Section 4.8.
"Servicing Officer" means any person whose name appears on a
list of Servicing Officers delivered to the Trustee, as the same may be amended
from time to time.
"Servicing Rate" shall be 3.00% per annum.
"Simple Interest Differential Account" means the account,
which shall be an Eligible Account, established and maintained pursuant to
Section 5.7 hereof.
15
<PAGE>
"Simple Interest Differential Adjustment" shall have the
meaning specified in Section 5.7.
"Simple Interest Method" means the method of allocating a
fixed level payment to principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of the APR
multiplied by the unpaid principal balance multiplied by a fraction the
numerator of which is the number of days elapsed since the preceding payment was
made and the denominator of which is 365.
"60 Day + Delinquency Rate" means, with respect to any
Collection Period, the fraction, expressed as a percentage, equal to the sum of
the aggregate outstanding Principal Balance of Receivables (other than the
aggregate Principal Balance of Liquidated Receivables and repossessed vehicles)
as to which Obligors are more than 60 days past due in making Scheduled Payments
as of the end of such Collection Period divided by the Pool Balance as of the
end of such Collection Period. For purposes of the foregoing definition only, a
Scheduled Payment shall be considered to be made if 95% or more of such
Scheduled Payment is made.
"Standard & Poor's" means Standard & Poor's Ratings Services
or its successor.
"State" means any state of the United States of America, or
the District of Columbia.
"Subsequent Receivables" means all Receivables sold by the
Seller to the Trust after the Closing Date and during the Pre-Funding Period,
which shall be listed on Schedule A to the related assignment.
Subsequent Transfer Date" means each Business Day occurring no
more than once per calendar week during the Pre-Funding Period on which
Receivables are sold to the Trust.
"Successor Bank" shall have the meaning set forth in
Section 5.1.
"Total Available Distribution Amount" shall mean, for each
Distribution Date, the sum of the Available Interest Distribution Amount and the
Available Principal Distribution Amount.
"Trust" means the Asta Auto Trust 1997-1 created by this
Agreement, the estate of which shall consist of the Trust Property.
"Trust Property" shall have the meaning set forth in
Section 3.2.
"Trustee" means the Person acting as Trustee hereunder, its
successor in interest, and any successor Trustee appointed pursuant to Section
10.8.
16
<PAGE>
"Trustee Fee" means the monthly fee payable on each
Distribution Date to the Trustee for services rendered during the respective
Collection Period, in the amount specified in Schedule C hereto.
"Trustee Officer" means any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement.
"Trustee's Certificate" means a certificate completed and
executed by the Trustee by a Trustee Officer pursuant to Section 10.2,
substantially in the form of, in the case of assignment to Asta Funding, Exhibit
C-1 hereto and in the case of an assignment to the Servicer, Exhibit C-2 hereto.
"UCC" means the Uniform Commercial Code, as amended from time
to time, as in effect in the States of New Jersey and Illinois and in any other
State where the filing of a financing statement is required to perfect an
interest in the Receivables and the proceeds thereof or in any other specified
jurisdiction.
"Underwriting Guidelines" means the Underwriting guidelines of
Asta Funding with respect to each of its programs, copies of which are attached
hereto as Exhibit G.
"Voting Interests" means the portion of the voting interests
of all the Certificates that is allocated to any Certificate for purposes of the
voting provisions of this Agreement. Voting Interests shall be allocated to the
Class A and Class B Certificates, respectively, in proportion to their
respective Class Certificate Balances. Voting Interests allocated to each Class
of Certificates shall be allocated among the Certificates within each such Class
in proportion to their respective Certificate Balances. Where the Voting
Interests are relevant in determining whether the vote of the requisite
percentage of the Certificateholders necessary to effect any consent, waiver,
request or demand shall have been obtained, the Voting Interests shall be deemed
to be reduced by the amount equal to the Voting Interests (without giving effect
to this provision) represented by the interests evidenced by any Certificate
registered in the name of the Servicer, Asta Funding, the Seller or any Person
known to a Trustee Officer to be an Affiliate of any such foregoing entities,
unless such entity owns all affected Certificates.
"VSI Insurance Policy" means the Vendor's Single Interest
Physical Damage Insurance Policy attached hereto as Exhibit H issued by the VSI
Insurer, including all endorsements thereto or any replacement policy under
Section 4.4.
"VSI Insurer" means certain underwriters at Lloyd's, London,
England, or any issuer of a replacement VSI Insurance Policy under Section 4.4.
Section 2.2 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments
17
<PAGE>
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
term "including" means "including without limitation."
Section 2.3 References. Unless otherwise noted herein, all
section references shall be to Sections in this Agreement.
ARTICLE III
THE RECEIVABLES
Section 3.1 Conveyance of Receivables.
(a) In consideration of the Trustee's delivery of Certificates
to, or upon the written order of, the Seller in an aggregate principal amount
equal to the aggregate Principal Balance of the Initial Receivables plus the
Original Pre-Funded Amount, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Trustee on behalf of the Trust, in trust for
the benefit of the Certificateholders, without recourse (subject to the
obligations contained herein):
(i) all right, title and interest of the Seller in and to the
Receivables listed in Schedule A hereto and all monies received thereon
on or after the initial Cutoff Date and all Liquidation Proceeds
received with respect to such Receivables;
(ii) all right, title and interest of the Seller in and to the
security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Seller in the
Financed Vehicles, including, without limitation, the certificates of
title with respect to Financed Vehicles;
(iii) all, right, title and interest of the Seller in and to
any proceeds from claims on any Insurance Policies covering the
Receivables, the Financed Vehicles or the Obligors;
(iv) all, right, title and interest of the Seller in and to
the Pre-Funding Account and all moneys and investments from time to
time on deposit therein;
(v) all right, title and interest of the Seller in and to
the Purchase Agreement, including a direct right to cause Asta Funding
to purchase Receivables from the Trust under certain circumstances;
(vi) all right, title and interest of the Seller in and to
refunds of unearned premiums with respect to any Insurance Policies
covering the Receivables, an Obligor or the Financed Vehicle or his or
her obligations with respect to a Financed Vehicle and any recourse to
Dealers for any of the foregoing;
18
<PAGE>
(vii) the Receivables File related to each Receivable;
(viii) all right, title and interest of the Seller in and to
the Reserve Account, the Simple Interest Differential Account, the
Capitalized Interest Account, the Collection Account, the Lock-Box
Account, the Certificate Account and all monies on deposit therein; and
(ix) the proceeds of any and all of the foregoing.
(b) Subject to the conditions set forth in Section 3.11
hereof, in consideration of the Trustee's delivery on the related Subsequent
Transfer Dates to or upon the order of the Seller of all or a portion of the
balance in the Pre-Funding Account in an amount equal to the aggregate
Receivables Cash Purchase Price of the Subsequent Receivables to be acquired on
such Subsequent Transfer Date, the Seller shall on such Subsequent Transfer Date
sell, transfer, assign, set over and otherwise convey to the Trustee, without
recourse (subject to the obligations herein):
(i) all right, title and interest of the Seller in and to
the Subsequent Receivables and all monies received thereon on or after
the related Cutoff Date and all Liquidation Proceeds received with
respect to such Receivables;
(ii) all right, title and interest of the Seller in and to
the security interests in the Financed Vehicles granted by Obligors
pursuant to the Subsequent Receivables and any other interest of the
Seller in the Financed Vehicles, including, without limitation, the
certificates of title with respect to Financed Vehicles;
(iii) all, right, title and interest of the Seller in and to
any proceeds from claims on any Insurance Policies covering the
Subsequent Receivables, the Financed Vehicles or the Obligors;
(iv) all right, title and interest of the Seller in and to
the Purchase Agreement, including a direct right to cause Asta Funding
to purchase the Subsequent Receivables from the Trust under certain
circumstances;
(v) all right, title and interest of the Seller in and to
refunds of unearned premiums with respect to any Insurance Policies
covering the Subsequent Receivables, an Obligor or the Financed Vehicle
or his or her obligations with respect to a Financed Vehicle and any
recourse to Dealers for any of the foregoing;
(vi) the Receivables File related to each Subsequent
Receivable; and
(vii) the proceeds of any and all of the foregoing.
The Trustee, on behalf of the Trust and the
Certificateholders, acknowledges and agrees that the Seller and any successor is
the holder of the Excess Interest, that such Excess Interest is not Trust
Property and, subject to the terms and provisions of this Agreement, that
19
<PAGE>
the Seller or any successor shall be entitled to receive all distributions of
amounts in respect thereof pursuant to Section 5.5(d), subject to the limitation
therein.
Section 3.2 Transfer Intended as Sale; Precautionary Security
Interest. The conveyance to the Trust of the property set forth in Section 3.1
(collectively, the "Trust Property") is intended as a sale free and clear of all
Liens. The Seller will reflect on its books that such property is owned by the
Trust. In the event, however, that notwithstanding the intent of Asta Funding,
the Seller and the Trustee, the transfer hereunder is held not to be a sale,
this Agreement shall constitute a grant of a security interest in the property
described in Section 3.1 to the Trustee on behalf of the Trust for the benefit
of the Certificateholders.
Section 3.3 Acceptance by Trustee. The Trustee on behalf of
the Trust does hereby accept all consideration conveyed by the Seller pursuant
to Section 3.1, and declares that the Trustee on behalf of the Trust shall hold
such consideration upon the trusts herein set forth for the benefit of all
present and future Certificateholders, subject to the terms and provisions of
this Agreement.
Section 3.4 Representations and Warranties of Seller. The
Seller makes the following representations and warranties to the Trustee as to
the Initial Receivables as of the Closing Date and as to the Subsequent
Receivables as of the applicable Subsequent Transfer Date, on which the Trustee,
on behalf of itself and the Certificateholders, relies in accepting the items
specified in Section 3.1 in trust on the Closing Date and each applicable
Subsequent Transfer Date and executing and authenticating the Certificates. Such
representations and warranties speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of the
Receivables to the Trustee.
(i) Characteristics of Receivables. Each Receivable:
(A) has been originated in the United States of America by a
Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business, has been fully and
properly executed by the parties thereto, and has been
purchased by Asta Funding in connection with the sale of a
Financed Vehicle by the Dealer or has been or will be financed
for such Dealer under an existing agreement with Asta Funding;
(B) has created a valid, subsisting and enforceable first
priority security interest in favor of Asta Funding in the
Financed Vehicle, which security interest has been assigned by
Asta Funding to the Seller, which in turn has assigned such
security interest to the Trustee;
(C) contains or will contain customary and enforceable
provisions such that the rights and remedies of the holder or
assignee thereof shall be adequate for realization against the
collateral of the benefits of the security;
20
<PAGE>
(D) provides for level monthly payments that fully amortize
(based upon the actuarial basis set forth in such Receivable)
the Amount Financed by maturity and yield interest at the
Annual Percentage Rate;
(E) has an Annual Percentage Rate of not less than 16.95%;
(F) no Receivable has a payment that is more than 30 days past
due and no Financed Vehicle with respect to a Receivable has
been subject to any repossession activity;
(G) each Receivable has a final scheduled payment due no later
than September 30, 2002;
(H) provides for, in the event that such contract is prepaid,
a prepayment that fully pays the principal balance and
interest accrued to the date of prepayment, computed at the
Annual Percentage Rate and based upon the actuarial method;
(I) no more than 20.25% of the Initial Receivables are
Actuarial Receivables, not less than 79.75% of the Initial
Receivables are Simple Interest Receivables. With respect to
each Subsequent Receivable such Receivable is a Simple
Interest Receivable;
(J) as of the end of the Pre-Funding Period, the transfer of
all the Subsequent Receivables shall not cause the weighted
average APR for all the Receivables in the Trust as of such
date to be more than 100 basis points lower than the weighted
average APR of the Initial Receivables as of the initial
Cutoff Date; and
(ii) Schedule of Receivables. The information with respect to
the Receivables set forth in Schedule A hereto is true and correct in
all material respects as of the opening of business on the applicable
Cutoff Date, and no selection procedures adverse to the
Certificateholders have been utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable, the sale of the
Financed Vehicle and the sale of any Insurance Policy and any service
contracts (A) complied at the time the related Receivable was
originated or made and at the execution of this Agreement complies in
all material respects with all requirements of applicable federal,
State and local laws, and regulations thereunder including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B
and Z, the New Jersey Consumer Credit Code and State adaptations of the
National Consumer Act, any State or federal provision or act relating
to motor vehicle retail installment sales contracts, or any similar
state or federal provision or act, and of the Uniform Consumer Credit
Code, and other consumer credit laws and equal credit opportunity and
disclosure laws and (B) does not contravene any contracts to which Asta
Funding is a party.
21
<PAGE>
(iv) No Government Obligor. None of the Receivables are due
from the United States of America or any State or local government or
from any agency, department, or instrumentality of the United States of
America or any State or local government.
(v) Security Interest in Financed Vehicle. Immediately prior
to the sale, assignment and transfer thereof, each Receivable shall be
secured by a validly perfected first security interest in the Financed
Vehicle in favor of Asta Funding as secured party, and such security
interest is prior to all other Liens upon and security interests in
such Financed Vehicle that now exist or may hereafter arise or be
created (except, as to priority, for (A) any lien for unpaid storage or
repair charges which may arise after the Closing Date or (B) any liens
for municipal or other local taxes). The Seller has caused each
certificate of title (or copy of an application for title), or such
other document delivered by the State title registration agency
evidencing the security interest in each Financed Vehicle, to be
delivered to the Custodian pursuant to Section 3.6 hereof, together
with a power of attorney, duly executed by Asta Funding in favor of the
Trustee, which powers of attorney are sufficient to change the lien
holder on the certificate of title with respect to a Financed Vehicle.
(vi) Receivables in Force. No Receivable has been satisfied
in full, subordinated or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Receivable in whole or in
part.
(vii) No Waiver. Other than with respect to the amendments set
forth in clause (viii) below, no provision of a Receivable has been
waived, impaired, altered or modified in any respect.
(viii) No Amendments. No Receivable has been amended, except
as such Receivable may have been amended to grant one extension of not
more than 15 days as a matter of convenience to each Obligor.
(ix) No Defenses. No right of rescission, setoff,
counterclaim or defense exists or has been asserted or, to the Seller's
knowledge, threatened with respect to any Receivable. The operation of
the terms of any Receivable or the exercise of any right thereunder
will not render such Receivable unenforceable in whole or in part or
subject to any such right of rescission, setoff, counterclaim, or
defense.
(x) No Liens. There are, to the Seller's knowledge, no
Liens or claims existing or that have been filed for work, labor,
storage or materials relating to a Financed Vehicle that shall be Liens
prior to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment delinquencies continuing
for a period of not more than 30 days as of the applicable Cutoff Date
(provided that repossession of the related Financed Vehicle has not
been initiated prior to such Cutoff Date due to such payment
delinquency), no default, breach, violation or event permitting
acceleration
22
<PAGE>
under the terms of any Receivable has occurred; and no continuing
condition that with notice or the lapse of time would constitute a
default, breach, violation or event permitting acceleration under the
terms of any Receivable has arisen; and the Seller shall not waive and
has not waived any of the foregoing. To the best of Seller's knowledge,
no Obligor is the subject of any pending bankruptcy, insolvency or
similar proceeding or no other fact exists regarding any Receivable
that would indicate that such Receivable would not be paid in full.
(xii) Insurance. As of the Closing Date and throughout the
shorter of the term of the Trust or the term of the Receivable, each
Receivable is and shall be covered under the VSI Insurance Policy, and
such insurance policy is valid and remains in full force and effect.
Asta Funding, in accordance with its customary procedures, has
determined that (A) each Obligor has obtained insurance covering the
Financed Vehicle as of the execution of the Receivable insuring against
loss and damage due to fire, theft, transportation, collision and other
risks generally covered by comprehensive and collision coverage and
that each Receivable requires the Obligor to maintain such insurance
naming Asta Funding and its successors and assigns as an additional
insured and permits Asta Funding to obtain such insurance at the
expense of the Obligor if the Obligor fails to do so and (B) each
Receivable, if any, that finances the cost of premiums for any
Insurance Policy is covered by an Insurance Policy, naming the
respective Dealer or Asta Funding as policyholder (creditor) or
creditor's assignee, respectively, under each such Insurance Policy.
(xiii) Title. No Receivable has been sold, transferred,
assigned, or pledged by the Seller to any Person other than the Trustee
or any such pledge has been released. Immediately prior to the transfer
and assignment herein contemplated, the Seller had good and marketable
title to each Receivable, and was the sole owner thereof, free and
clear of all liens, claims, encumbrances, security interests and rights
of others and, immediately upon the transfer thereof, the Trustee for
the benefit of the Certificateholders shall have good and marketable
title to each such Receivable, and will be the sole owner thereof, free
and clear of all liens, encumbrances, security interests and rights of
others, and the transfer has been validly perfected under the UCC.
(xiv) Lawful Assignment. No Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Receivable hereunder or pursuant
to transfers of the Certificates shall be unlawful, void or voidable.
(xv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Trustee a first priority perfected ownership interest in the
Receivables have been made.
(xvi) Receivable File; One Original. The Seller has delivered
to the Custodian a complete Receivable File with respect to each
Receivable. There is only one original executed copy of each
Receivable.
23
<PAGE>
(xvii) Chattel Paper. Each Receivable constitutes "chattel
paper" under the UCC and is the legal, valid and binding obligation of
the Obligor thereunder in accordance with the terms thereof.
(xviii) Title Documents. (A) If the related Financed Vehicle
was originated in a State in which notation of security interest on the
title document 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 be received within 180
days from the date of application and will show, Asta Funding named as
the original secured party under the related Receivable as the Holder
of a first priority security interest in such Financed Vehicle, and (B)
if the related Financed Vehicle 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 Asta Funding named as the original secured
party under the related Receivable, and in either case, the Trustee,
upon the conveyance of the Seller's interests in such security
interests to the Trustee, has the same rights as such secured party has
or would have (if such secured party were still the owner of the
Receivable) against all parties claiming an interest in such Financed
Vehicle. With respect to each Receivable for which the title document
has not yet been returned from the Registrar of Titles, Asta Funding
has received written evidence from the related Dealer that such title
document showing Asta Funding as first lienholder has been applied for.
(xix) Valid and Binding Obligation of Obligor. Each Receivable
is the legal, valid and binding obligation of the Obligor thereunder
and is enforceable in accordance with its terms, except only as such
enforcement may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally, all parties
to such contract had full legal capacity to execute and deliver such
contract and all other documents related thereto and to grant the
security interest purported to be granted thereby and no party to such
contract is in violation of any applicable law, rule or regulation that
is material to the Receivable or the sale of the Financed Vehicle; the
terms of such Receivable have not been waived or modified in any
respect (other than with respect to amendments permitted by clause
(viii) above).
(xx) Tax Liens. As of the Cutoff Date, to the Seller's
knowledge, there is no Lien against the related Financed Vehicle for
delinquent taxes.
(xxi) Maturity of Receivables. Each Receivable has an original
maturity of not more than 60 months; the weighted average original
maturity of the Initial Receivables is approximately 43 months as of
the Cutoff Date relating to Initial Receivables; the remaining maturity
of each Receivable was 60 months or less as of the Cutoff Date; the
weighted average remaining maturity of the Initial Receivables was 41
months as of the Cutoff Date relating to Initial Receivables; the
addition of the Subsequent Receivables on each Subsequent Transfer Date
will not extend the weighted average remaining term to maturity of all
Receivables sold hereunder by more than one month as of the applicable
Cutoff Dates.
24
<PAGE>
(xxii) Scheduled Payments. Each Initial Receivable shall have
an outstanding principal balance as of the Cutoff Date of not more than
$24,552 and a first Scheduled Payment due on or prior to August 1,
1997. Each Receivable, including Subsequent Receivables shall have a
final Scheduled Payment due no later than the Final Scheduled
Distribution Date.
(xxiii) Characteristics of Obligors. As of the applicable
Cutoff Date, no Obligor on any Receivable was noted in the related
records of Asta Funding or in the Receivable Files (A) as having been
unemployed or (B) as having no verifiable address during the year
immediately preceding the origination of the related Receivable.
(xxiv) Location of Receivable Files. A complete Receivable
File with respect to each Receivable is in the possession of or, in the
case of Subsequent Receivables, will be held by the Custodian at the
location listed in Schedule B.
(xxv) At the time of origination, each Receivable was
originated in one of the following States, which are the only States in
which the Receivables were originated:
New York
New Jersey
Delaware
Connecticut
Pennsylvania
Maryland
Virginia
(xxvi) No Future Advances. The full principal amount of each
Receivable has been advanced to each Obligor or advanced in accordance
with the directions of each such Obligor, and there is no requirement
for future advances thereunder. The Obligor with respect to the
Receivable does not have any options under such Receivable to borrow
from any person additional funds secured by the Financed Vehicle.
(xxvii) Underwriting Guidelines. Each Receivable has been
originated in accordance with the applicable Underwriting Guidelines of
Asta Funding in effect at the time of origination.
(xxviii) Financed Vehicle in Good Repair. To the best of the
Seller's knowledge, each Financed Vehicle is in good repair and in
working order.
(xxix) Principal Balance. No Receivable has a Principal
Balance which includes capitalized interest, physical damage insurance
or late charges.
(xxx) Servicing. At the applicable Cutoff Date, each
Receivable was being serviced by the Servicer.
25
<PAGE>
(xxxi) Original Principal Amount. The original principal
amount of each Initial Receivable does not exceed $26,100.
(xxxii) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller,
threatened before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Seller
or its respective properties: (A) asserting the invalidity of any of
the Receivables; (B) seeking to prevent the enforcement of any of the
Receivables; or (C) seeking any determination or ruling that might
materially and adversely affect the payment on or enforceability of any
Receivable.
(xxxiii) Certain New Jersey Receivables. No Receivables
originated in New Jersey where cash price of the vehicle as shown on
the Receivable is $10,000 or less shall require the payment by the
Obligor of a premium with respect to the VSI Insurance Policy.
(xxxiv) Geographic Distribution of Subsequent Receivables.
As of the termination of the Pre-Funding Period, the percentage of
Receivables having Obligor billing addresses in New Jersey, New York
and Pennsylvania shall not exceed 27.24%, 50.00% and 20.00%,
respectively, of the aggregate principal balance of all the Receivables
as of such date.
(xxxv) No Consents Required. No consents, filings or
governmental approvals that have not been made or obtained are required
for the due authorization, execution, delivery and performance of the
Agreement by the Seller.
(xxxvi) Seller Note. The Seller will not extinguish or cause
to be extinguished or in any way reduce the value of the Seller Note
on or before the November 1997 Distribution Date, except to the extent
that reductions in the principal value of the Seller Note are
necessary to fund the repurchase by the Seller of Receivables pursuant
to Section 4.7 hereof.
(xxxvii) The Certificates issued to the Seller in exchange
for the Initial Receivables and the deposit of the Original Pre-Funded
Amount in the Pre-Funding Account represent the fair market value of
the Initial Receivables and the Original Pre-Funded Amount.
Section 3.5 Repurchase Upon Breach. The Seller, the Servicer,
the Backup Servicer or the Trustee, as the case may be, shall inform the other
parties hereto promptly, in writing, upon the discovery of any breach of the
Seller's representations and warranties made pursuant to Section 3.4 (without
regard to any limitation therein as to the Seller's knowledge). Unless the
breach shall have been cured by the last day of the second Collection Period
following the Collection Period in which the discovery thereof was made by a
Trustee Officer of the Trustee or the Trustee received written notice from the
Seller, the Backup Servicer or the Servicer of such breach, Asta Funding shall
purchase any Receivable materially and adversely affected, or where the
Trustee's interest therein has been adversely affected, by the breach as of the
last day of such second Collection Period (or, at Asta Funding's option, the
last day of
26
<PAGE>
the first Collection Period following the Collection Period in which the
discovery was made). In consideration of the purchase of the Receivable, Asta
Funding shall remit the Purchase Amount, in the manner specified in Section 5.4.
For the purposes of this Section 3.5, the Purchase Amount of a Receivable that
is not consistent with the warranty pursuant to Section 3.4(i)(D) shall include
such additional amount as shall be necessary to provide the full amount of
interest as contemplated therein. The sole remedy of the Trustee, the Trust or
the Certificateholders with respect to a breach of representations and
warranties pursuant to Section 3.4 shall be to enforce Asta Funding's obligation
to purchase such Receivables pursuant to the Purchase Agreement; provided,
however, that Asta Funding shall indemnify the Trustee and the Backup Servicer,
including officers, directors, employees and agents of either entity, the Trust
and the Certificateholders against all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach. Upon receipt of
the Purchase Amount, written instructions from the Servicer, and instruments
necessary to effect such transfer the Trustee shall execute and deliver all such
instruments of transfer or assignment, without representation, warranty or
recourse, as are prepared by the Seller and delivered to the Trustee and
necessary to vest in Asta Funding or such designee title to the Receivable, the
related Receivable File and the other related documents and instruments referred
to in Section 3.6(a).
Section 3.6 Custody of Receivable Files.
(a) To assure uniform quality in servicing the Receivables, to
reduce administrative costs and to perfect the security interest, the Trustee,
upon the execution and delivery of this Agreement, is hereby appointed as
Custodian and the Trustee hereby accepts such appointment, to act as Custodian
of the following documents or instruments which are hereby delivered to the
Trustee with respect to each Initial Receivable and shall be delivered to the
Trustee with respect to each Subsequent Receivable on the applicable Subsequent
Transfer Date:
(i) the fully executed original of the Receivable and any
amendments thereto;
(ii) the original certificate of title or, if the applicable
State title registration agency does not issue certificates of title to
lienholders, such other documents under the applicable State's laws
evidencing the security interest of Asta Funding in the Financed
Vehicle (as indicated by the Servicer as the equivalent in such State
of a certificate of title), or a guarantee of title or an application
for title if a certificate of title or other document evidencing the
security interest in the Financed Vehicle has not yet been issued; and
(iii) a copy of the VSI Insurance Policy (including all
endorsements thereto), including endorsements confirming insurance
thereunder (as reflected on master lists of insured Receivables annexed
to such endorsements) regarding each Receivable covered thereby and an
endorsement naming the Trustee as an additional insured thereunder.
27
<PAGE>
As evidence of its acknowledgment of such receipt of the
Receivable Files, the Custodian shall execute and deliver an acknowledgment of
such receipt, as set forth in Exhibit L hereof.
The following documents shall be delivered to the Custodian
within 30 days of the Closing Date or applicable Subsequent Transfer Date:
(iv) file-stamped copies of the UCC-1 from among statements
filed pursuant to this Agreement.
Items (a)(i), (ii) and (iii) shall be referred to collectively
as the "Receivable Files."
The Custodian shall review the Receivable Files within 30 days
after the Closing Date or applicable Subsequent Transfer Date, to verify that an
original retail installment sale contract and certificate of title are present
for each Receivable and to verify that the name of the Obligor, the Amount
Financed, the account number and the APR are as stated on Schedule A for such
Receivable and that the Obligor's signature is an original signature and that no
Receivable evidenced by a New Jersey form of contract shows a vehicle cash price
of $10,000 or less and requires a payment by the Obligor of a premium under the
VSI Insurance Policy. The Custodian shall immediately deliver written notice by
certified mail to the Seller and Asta Funding if any such document is missing or
has not been delivered to the Custodian by the time required as set forth in
this Agreement. The Custodian shall deliver written notice by facsimile or
overnight courier to the Rating Agency and the Certificateholders if any
original certificate of title or other document evidencing the security interest
of Asta Funding in the Financed Vehicle has not been delivered to the Custodian
within 180 days after the Closing Date or applicable Subsequent Transfer Date.
Such notice shall confirm whether or not a guaranty of title or an application
for title has been delivered to the Custodian with respect to the related
Receivable.
With respect to Receivables for which the original retail
installment sale contract and, with respect to any Receivables File that does
not contain an original certificate of title, a copy of the application for a
certificate of title have not been delivered to the Custodian in accordance with
this Section 3.6(a), the Seller shall cause Asta Funding to deliver the missing
documents within seven (7) Business Days of receipt of such notice or repurchase
such Receivables pursuant to Section 3.5 hereof. With respect to Receivables for
which original certificates of title or other documents evidencing the security
interest of Asta Funding in the Financed Vehicle have not been delivered to the
Custodian within 180 days of the Closing Date or applicable Subsequent Transfer
Date, the Seller shall cause Asta Funding to deliver such documents within such
period of time as determined by the Rating Agency (after receipt of notice as
described in the preceding paragraph) or repurchase the Receivables pursuant to
Section 3.5 hereof. Other than the reviews set forth in this paragraph, the
Custodian shall have no duty or obligation to review any of the Receivable Files
and shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face.
28
<PAGE>
In performing any such review, the Custodian may conclusively
rely on the Seller as to the purported genuineness of any such document and any
signature thereon. The Custodian shall have no responsibility for determining
whether any document is valid and binding, whether the text of any assignment or
endorsement is in proper or recordable form, whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction, or
whether a blanket assignment is permitted in any applicable jurisdiction.
(b) The Custodian agrees to maintain the Receivable Files at
the Custodian's office at 2 Chase Manhattan Plaza, New York, New York 10081 or
such other offices as shall from time to time be identified to the Trustee, the
Seller and Asta Funding by written notice. Subject to the foregoing, the
Custodian may temporarily move individual Receivable Files or any portion
thereof without notice as necessary to enable the Servicer to conduct collection
and other servicing activities in accordance with its customary practices and
procedures.
The Custodian shall have and perform the following powers and
duties:
(i) hold the Receivable Files for the benefit of all present
and future Certificateholders, maintain accurate records pertaining to
each Receivable to enable it to comply with the terms and conditions of
this Agreement and maintain a current inventory thereof;
(ii) carry out such policies and procedures in accordance
with its customary actions with respect to the handling and custody of
the Receivable Files so that the integrity and physical possession of
the Receivable Files will be maintained; and
(iii) promptly release the original certificate of title to
the Servicer upon receipt of a written request for release of documents
certified by an officer of the Servicer, substantially in the form of
Exhibit I hereto, with respect to the matters therein.
Section 3.7 Duties of Custodian.
(a) Safekeeping. The Trustee, in its capacity as Custodian,
shall hold the Receivable Files for the benefit of the Certificateholders and
maintain accurate and complete accounts and records pertaining to each
Receivable File. In performing its duties, the Custodian shall act with
reasonable care, using that degree of skill and attention that the Custodian
exercises with respect to the receivable files relating to all comparable
automotive receivables held by the Custodian. The Custodian makes no
representations as to (i) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Receivables File or of any of the Receivables or (ii) the collectibility,
effectiveness, insurability or suitability of any Receivable.
(b) Maintenance of and Access to Records. Subject to Section
3.6(b), the Custodian shall maintain each Receivable File at the Corporate Trust
Office. The original of each Receivable and the original of each certificate of
title or application therefor shall be stored in a fireproof vault. The
Custodian shall make available to the Servicer and the Certificateholders or
their duly authorized representatives, attorneys, or auditors a list of
29
<PAGE>
locations of the Receivable Files and the related accounts, records and computer
systems maintained by the Custodian at such times as the Servicer, the Trustee
or the Majority Certificateholders shall instruct following reasonable notice to
the Custodian and during business hours and at the expense of such requesting
Party.
(c) Release of Documents. In addition to releasing
certificates of title pursuant to Section 3.6(b)(iii), upon instruction from the
Servicer, in the form of Exhibit I hereto, the Custodian shall release as soon
as practicable any document in a Receivable File to the Servicer, the Servicer's
agent or designee, as the case may be, at such place or places as the Servicer
may designate following reasonable notice to the Custodian and during business
hours.
Section 3.8 Instructions; Authority to Act. The Custodian
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions from the Servicer in
the form of Exhibit I hereto.
Section 3.9 Custodian's Indemnification. The Servicer shall
indemnify the Custodian, including its officers, directors, employees and
agents, for any and all liabilities, obligations, losses, compensatory damages,
payments, costs, or expenses of any kind whatsoever that may be imposed on,
incurred, or asserted against the Trust or the Custodian as the result of any
improper act or omission by the Servicer in any way relating to the maintenance
and custody by the Custodian of the Receivable Files; provided, however, that
the Servicer shall not be liable for any portion of any such amount resulting
from the willful misfeasance, bad faith, or gross negligence of the Custodian or
its representatives, attorneys or auditors.
Section 3.10 Effective Period and Termination. The Trustee's
appointment as Custodian shall become effective as of the Closing Date and shall
continue in full force and effect until the Trustee resigns or is removed
pursuant to Section 10.8. As soon as practicable after any termination of such
appointment, the Custodian shall, at the Servicer's expense if the Custodian is
not then the Servicer, deliver the Receivable Files to the successor Custodian
or its agent at such place or places as the successor Custodian may designate in
writing to the Trustee, Asta Funding and the Seller.
Section 3.11 Pre-Funding Events.
(a) A pre-funding event (each a "Pre-Funding Event") shall
occur upon a Subsequent Transfer Date and in accordance with the
requirements of this Section 3.11.
(b) Subject to the conditions set forth in this Section 3.11,
in consideration of the Trustee's release on the related Subsequent
Transfer Dates to the Seller or its designee of the related Receivables
Cash Purchase Price, the Seller shall, in accordance with Section
3.1(b) hereof, sell, transfer, assign, set over and otherwise convey,
without recourse, to the Trustee, all right, title and interest of the
Seller in and to each Subsequent Receivable and other interests of the
Seller therein as set forth in Section 3.1(b) hereof, which Subsequent
Receivables shall be listed on the schedule attached to the Notice of
Pre-Funding delivered by the Seller to the Trustee prior to such
Subsequent Transfer Date; provided, however, that the principal amount
of Subsequent Receivables
30
<PAGE>
to be acquired on any Subsequent Transfer Date, other than the Final
Subsequent Transfer Date, shall not be less than $2,000; provided
further that as of such Subsequent Transfer Date, the aggregate
principal amount of all Subsequent Receivables on which at least one
Scheduled Payment has not been made by the related Obligor and received
by the Servicer with respect to such Receivables shall not exceed the
Repurchase Threshold.
On any Subsequent Transfer Date and in accordance with written
instructions from the Servicer received prior to such date, the Trustee
shall disburse the related Receivables Cash Purchase Price only if (i)
the Trustee shall have received, on or before such Subsequent
Receivables Transfer Date, a letter issued by an independent accountant
retained by Asta Funding (copies of which shall have been delivered to
Greenwich Capital Markets, Inc. and the Rating Agency) certifying that
the characteristics of the Subsequent Receivables conform to the
characteristics set forth in Section 3.4 hereof and described in the
Private Placement Memorandum under the heading "The Receivables Pool"
and (ii) it has received a certification from the Seller stating that
the conditions set forth in Section 3.6(a)(i)-(iii) have been satisfied
on or prior to the related Subsequent Transfer Date. In addition, if
the transfer of Subsequent Receivables to the Trust on any Subsequent
Transfer Date would cause the percentage of Receivables in any one
State (other than New Jersey, New York or Pennsylvania) to equal or
exceed 20.00% of the aggregate principal balance of all the Receivables
as of such date, the Seller shall obtain at its own expense within 10
days of the related Subsequent Transfer Date, an Opinion of Counsel to
the effect that (i) the security interest of Asta Funding in each of
the Receivables in the related State is perfected; (ii) the security
interest of the Trustee in the Receivables in the related State is
perfected and (iii) the security interest of Asta Funding in the
related Financed Vehicles is perfected.
(c) Upon satisfaction of the above requirements with respect
to events to occur on or before the Subsequent Transfer Date, the
Trustee will on the Subsequent Transfer Date withdraw the Receivables
Cash Purchase Price from the Pre-Funding Account and shall pay such
amount to the Seller or its designee by federal wire transfer in
accordance with the written instructions provided in the Notice of
Pre-Funding.
(d) The Seller shall take any action required to maintain the
first priority perfected ownership interest of the Trust in the Trust
Property.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.1 Duties of Servicer. The Servicer, as agent for the
Trust and the Certificateholders (to the extent provided herein), shall manage,
service, administer, make collections on the Receivables (other than Purchased
Receivables) and administer and enforce the Insurance Policies, with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable automotive receivables that it services for itself
31
<PAGE>
or others and that is consistent with prudent industry standards. The Servicer's
duties shall include collection and posting of all payments, administering and
enforcing the Insurance Policies, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, sending monthly invoices to Obligors,
accounting for collections and furnishing monthly and annual statements to the
Trustee with respect to distributions. The Servicer shall follow its currently
employed standards, policies and procedures or such more exacting standards,
policies and procedures as the Servicer employs in the future, in performing its
duties as Servicer. Without limiting the generality of the foregoing, and
subject to the servicing standards set forth in this Agreement, the Servicer is
authorized and empowered by the Trustee to execute and deliver, on behalf of
itself, the Trust and the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Vehicles securing such Receivables and/or the
certificates of title with respect to such Financed Vehicles. If the Servicer
shall commence a legal proceeding to enforce a Receivable, the Trustee (in the
case of a Receivable other than a Purchased Receivable) shall thereupon be
deemed to have automatically assigned, solely for the purpose of collection,
such Receivable to the Servicer. If in any enforcement suit or legal proceeding
it shall be held by a court of competent jurisdiction that the Servicer may not
enforce a Receivable on the ground that it shall not be a real party in interest
or a Holder entitled to enforce such Receivable, the Trustee shall, at the
Servicer's expense and written direction, take reasonable steps to enforce such
Receivable, including bringing suit in its name or the name of the
Certificateholders. The Servicer may delegate any of its duties set forth herein
to the Trustee to the extent that the Trustee has agreed to perform such duties
herein. The Servicer shall prepare and furnish and the Trustee shall execute,
any powers of attorney and other documents reasonably necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
hereunder.
Section 4.2 Collection and Allocation of Receivable Payments.
The Servicer shall use its best efforts to collect all payments called for under
the terms and provisions of the Receivables as and when the same shall become
due and shall follow such collection procedures as it follows with respect to
all comparable automotive receivables that it services for itself or others and
that are consistent with prudent industry standards; provided, however, that the
Servicer shall notify each Obligor to make all payments with respect to the
Receivables to a Lock-Box. The Servicer, for so long as Asta Funding is the
Servicer, may grant extensions on a Receivable; provided, however, that no
extension shall for the purpose of this Agreement modify the Scheduled Payment
due in respect of any Collection Period; provided further, however, that the
Servicer may grant only one extension not in excess of 15 days with respect to a
Receivable (including for purposes of the foregoing, any extension granted prior
to the Cutoff Date); and provided, further, that if the Servicer extends the
date for final payment by the Obligor of any Receivable beyond the last day of
the Collection Period preceding the Final Scheduled Distribution Date, it shall
promptly purchase the Receivable from the Trust in accordance with the terms of
Section 4.7 hereof (and for purposes thereof, the Receivable shall be deemed to
be materially and adversely affected by such breach). Notwithstanding the
foregoing, the Servicer shall not extend or modify the Scheduled Payments of a
Receivable unless such Receivable is in default, default thereunder is imminent
or a modification is required by law. The Servicer may, in its discretion, waive
any late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable. The Servicer shall not
32
<PAGE>
consensually agree to any alteration of the interest rate on any Receivable or
of the amount of any Scheduled Payment on Receivables.
Section 4.3 Realization Upon Receivables. On behalf of the
Trust and the Certificateholders, the Servicer shall use its best efforts,
consistent with its customary servicing procedures, to repossess or otherwise
convert the ownership of the Financed Vehicle securing any Receivable as to
which the Servicer shall have determined eventual payment in full is unlikely.
The Servicer shall commence efforts to repossess or otherwise convert the
ownership of a Financed Vehicle on or prior to the date that all or a portion of
a Scheduled Payment thereon in excess of five percent (5%) of such Scheduled
Payment is 120 days or more delinquent; provided, however, that the Servicer may
elect not to commence such efforts within such time period if in its good faith
judgment it determines either that it would be impracticable to do so or that
the proceeds ultimately recoverable with respect to such Receivable would be
increased by forbearance. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of automotive receivables and that are consistent with prudent
industry standards, which may include its best efforts to realize upon any
recourse to Dealers and selling the Financed Vehicle at public or private sale.
The foregoing shall be subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
in connection with the repair or the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair or repossession
will increase the proceeds ultimately recoverable with respect to such
Receivable by an amount greater than the amount of such expenses. The Servicer
shall dispose of any Financed Vehicle acquired by the Trust as soon as
practicable. The Servicer shall not convey to the Trust any consideration for
any acquired Financed Vehicle other than cash.
Section 4.4 Physical Damage Insurance; Other Insurance.
(a) The Servicer, in accordance with its customary servicing
procedures, shall require (i) that each Obligor shall maintain insurance
covering the Financed Vehicle insuring against loss and damage due to fire,
theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage naming Asta Funding and its successors and
assigns as an additional insured and permits the Holder of such Receivable to
obtain physical damage insurance at the expense of the Obligor if the Obligor
fails to do so, (ii) maintain the VSI Insurance Policy in full force and effect
with respect to all Receivables for the life of the Trust, or, at the Seller's
option, replace such insurance with a policy from another insurer having a
claims paying rating not lower than the then current claims paying rating of the
then current VSI insurer with substantially similar loss coverage and covering
all Receivables and (iii) each Receivable that finances the cost of premiums for
any Insurance Policy is covered by an Insurance Policy naming the respective
Dealer or Asta Funding as policyholder (creditor) or creditor's assignee,
respectively.
(b) To the extent applicable, the Servicer shall not take any
action which would result in noncoverage under any of the insurance policies
referred to in Section 4.4(a) which, but for the actions of the Servicer, would
have been covered thereunder. The Servicer, on behalf of the Trustee, shall take
such reasonable action as shall be necessary to permit recovery under any of the
foregoing insurance policies. Any amounts collected by the Servicer under any
33
<PAGE>
of the foregoing insurance policies shall be deposited in the Collection Account
pursuant to Section 5.2. The Servicer shall cause to be maintained and enforced
in respect of each Financed Vehicle the insurance referred to in Section
4.4(a)(i) above; provided, that the Servicer shall not be required to maintain
and enforce such insurance in respect to any Financed Vehicle having an unpaid
Principal Balance of less than $2,000.
Section 4.5 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall take such steps as are necessary to maintain
perfection of the security interest created by each Receivable in the related
Financed Vehicle including but not limited to obtaining the execution by the
Obligors and the recording, registering, filing, re-recording, re-registering
and refiling of all security agreements, financing statements (including the
filing of UCC-3 Termination Statements) and continuation statements or
instruments as are necessary to maintain the security interest granted by
Obligors under the respective Receivables. The Trustee hereby authorizes the
Servicer to take such steps as are necessary to re-perfect or continue the
perfection of such security interest on behalf of the Trust in the event of the
relocation of a Financed Vehicle or for any other reason, with regard to any
related Subsequent Receivables, the Servicer shall send to the Trustee a filed
stamped Termination Statement.
Section 4.6 Covenants of Servicer. The Servicer shall not
release the Financed Vehicle securing each Receivable from the security interest
granted by such Receivable in whole or in part except in the event of payment in
full by the Obligor thereunder or foreclosure thereunder, nor shall the Servicer
impair the rights of the Certificateholders in such Receivables, nor shall the
Servicer commingle any payments received on behalf of the Trustee for the
benefit of Certificateholders with assets of the Servicer, nor shall the
Servicer amend a Receivable, except that extensions may be granted in accordance
with Section 4.2.
Section 4.7 Purchase of Receivables Upon Breach. The Servicer
or the Trustee shall inform the other party promptly, in writing, upon the
discovery of any breach pursuant to Sections 4.2, 4.4, 4.5 or 4.6. Unless the
breach shall have been cured by the last day of the second Collection Period
following the month in which such discovery was made (or, at the Servicer's
election, the last day of the first following Collection Period), the Servicer
shall purchase any Receivable materially and adversely affected by such breach.
On each Determination Date, the Servicer will inform the Trustee and the Seller
as to the Initial Receivables or Subsequent Receivables, if any, with respect to
which the date on which the first Scheduled Payment had not occurred as of the
applicable Cutoff Date and as to which such first Scheduled Payment has not been
made or received by the Servicer within the earlier of (a) forty-five days after
the contractual due date of such payment or (b) the date on which the related
Financed Vehicle is assigned for repossession. All such Receivables shall be
repurchased by the Seller on the next Distribution Date. In consideration of the
purchase of any such Receivable, the Seller shall remit the Purchase Amount in
the manner specified in Section 5.4. The sole remedy of the Trustee, the Trust
or the Certificateholders with respect to a breach pursuant to Section 4.2, 4.4,
4.5 or 4.6 shall be to require the Servicer to repurchase Receivables pursuant
to this Section 4.7. The Trustee shall be under no duty or obligation to inquire
or investigate as to the Servicer's compliance with Sections 4.2, 4.4, 4.5 or
4.6. If the Backup Servicer is appointed successor Servicer pursuant to Section
9.2, such successor Servicer shall not be required to (i) repurchase any
Receivables other than as provided in this Section 4.7 and subject
34
<PAGE>
to Section 9.2 or (ii) to obtain any physical damage insurance at the expense of
the Obligor as provided in Section 4.4(a)(i).
Section 4.8 Servicing Fee. The Servicing Fee for the initial
Distribution Date shall equal the product of one-twelfth of the Servicing Rate
and the Original Pool Balance. Thereafter, the Servicing Fee for a Distribution
Date shall equal (i) with respect to the Servicer, the product of one twelfth of
the Servicing Rate and the Pool Balance as of the close of business on the last
day of the second Collection Period immediately preceding the related
Distribution Date and (ii) with the event that the Backup Servicer becomes
Servicer, an amount equal to fifteen dollars per each Receivable outstanding on
the date of business of the preceding Collection Period. The Servicer shall also
be entitled to collect and retain, and the Servicing Fee shall also include (i)
all other administrative fees or similar charges allowed by applicable law with
respect to Receivables, collected (from whatever source) on the Receivables and
(ii) except with respect to the Backup Servicer in the event it becomes
Servicer, any interest or investment income earned on funds deposited in the
Collection Account.
Section 4.9 Servicer's Certificate. By 12:00 noon, New York
City time, on the eleventh Business Day of each month, the Servicer shall
deliver or cause the Trustee (upon its timely receipt of the information set
forth in Section 4.14) to deliver to the Trustee, the Backup Servicer, the
Rating Agency, Greenwich Capital Markets, Inc. and the Seller, a Servicer's
Certificate containing all information necessary to make the distributions
pursuant to Section 5.5 (including, if required, the computation of the Reserve
Account Draw, the amount of any Simple Interest Adjustment and the amount of any
Capitalized Interest Requirement) for the Collection Period preceding the date
of such Servicer's Certificate and all information necessary for the Trustee to
send statements to Certificateholders pursuant to Section 5.8. Receivables to be
purchased by the Servicer or to be purchased by Asta Funding shall be identified
by the Servicer by account number with respect to such Receivable (as specified
in Schedule A). Notwithstanding the foregoing, it is understood and agreed that
the Trustee has agreed to act as the Servicer's agent for the purpose of
preparing and delivering the Servicer's Certificate, and so long as the Trustee
timely prepares and delivers the Servicer's Certificate, the Servicer shall not
be required to do so.
Section 4.10 Annual Statement as to Compliance; Notice of
Default.
(a) The Servicer shall deliver to the Trustee, on or before
January 31 of each year beginning January 31, 1999, an Officer's Certificate,
dated as of July 31 of the preceding year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or in the case
of the first such certificate, the period from the Closing Date to July 31,
1998) and of its performance under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year (or period, as applicable), or, if there has been a default
in the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof. The Trustee shall send a copy of
such certificate and the report referred to in Section 4.11 to the Rating Agency
and Greenwich Capital Markets, Inc. A copy of such certificate and the report
referred to in
35
<PAGE>
Section 4.11 may be obtained by any Certificateholder by a request in writing to
the Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee, the Backup
Servicer, Greenwich Capital Markets, Inc. and the Rating Agency, promptly after
having obtained knowledge thereof, but in no event later than five (5) Business
Days thereafter, written notice in an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under clause (a), (b) or, so long as Asta Funding is Servicer, clause
(d) or (e) of Section 9.1. The Seller shall deliver to the Trustee, the Backup
Servicer, Greenwich Capital Markets, Inc. and the Rating Agency, promptly after
having obtained knowledge thereof, but in no event later than five (5) Business
Days thereafter, written notice in an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under clause (b) of Section 9.1.
Section 4.11 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a nationally recognized firm of independent
certified public accountants who may also render other services to the Servicer
or to the Seller, to deliver to the Trustee and the Rating Agency on or before
January 31 of each year beginning January 31, 1999, a report addressed to the
Board of Directors of the Servicer, to the effect that such firm has examined
the financial statements of the Servicer and issued its report thereof and that
such examination (a) was made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records and
such other auditing procedures as such firm considered necessary in the
circumstances; (b) included tests relating to auto loans serviced for others in
accordance with the requirements of the Uniform Single Audit Program for
Mortgage Bankers (the "Program"), to the extent the procedures in such Program
are applicable to the servicing obligations set forth in this Agreement; (c)
included an examination of the delinquency and loss statistics relating to the
Servicer's portfolio of automobile, van and light truck installment sales
contracts; and (d) except as described in the report, disclosed no exceptions or
errors in the records relating to automobile, van and light truck loans serviced
for others that, in the firm's opinion, paragraph four (4) of such Program
requires such firm to report. The accountant's report shall further state that
(i) a review in accordance with agreed upon procedures acceptable to the Rating
Agency was made of three (3) randomly selected Servicer's Certificates; (ii)
except as disclosed in the report, no exceptions or errors in the Servicer's
Certificates were found; and (iii) the delinquencies and loss information
relating to the Receivables contained in the Servicer's Certificates were found
to be accurate.
The Report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 4.12 Servicer Expenses. The Servicer shall be required
to pay out of its Servicing Fee all expenses incurred by it in connection with
its activities hereunder (other than the reasonable costs of liquidation of
Receivables), including fees and disbursements of independent accountants, the
cost of maintaining the rating on the Certificates, taxes imposed on the
Servicer, and expenses incurred in connection with distributions and reports to
36
<PAGE>
Certificateholders. In the event that the Backup Servicer becomes Servicer, the
cost of maintaining the rating on the Certificates shall be paid by the Seller.
Section 4.13 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to representatives of the
Trustee reasonable access to documentation and computer systems and information
regarding the Receivables. The Servicer shall provide such access to any
Certificateholder only in such cases where the Servicer is required by
applicable statutes or regulations (whether applicable to the Servicer or to
such Certificateholder) to permit such Certificateholder to review such
materials. In each case, such access shall be afforded without charge but only
upon reasonable request and during normal business hours. Nothing in this
Section 4.13 shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors, and
the failure of the Servicer to provide access as provided in this Section 4.13
as a result of such obligation shall not constitute a breach of this Section
4.13.
Section 4.14 Preparation and Verification of Servicer's
Certificate.
(a) On or before the seventh Business Day of each month, the
Servicer shall deliver to the Trustee and the Backup Servicer:
(i) all information necessary to prepare the Servicer's Certificate
required by Section 4.9 and to make the distributions required by
Section 5.5 hereof (including, if required, the computation of the
Reserve Account Draw, the amount of Simple Interest Differential
Adjustments and the amount of the Capitalized Interest Requirement) for
the Collection Period immediately preceding the related Distribution
Date; and
(ii) all information necessary for sending statements to Holders
pursuant to Section 5.8 hereof.
(b) The information set forth in (a)(i) and (ii) above shall
include information as of (A) July 1, 1997 (with respect to the initial
Servicer's Certificate) and (B) the close of business on the last day of the
preceding Collection Period (with respect to each subsequent Servicer's
Certificate). Such information shall be provided by a magnetic tape, diskette or
electronic data transmission in a format reasonably acceptable to the Trustee
and the Backup Servicer.
The Servicer hereby represents, as of the date of each such delivery, that such
information is accurate and complete in all material respects.
(c) The Trustee shall use the information described in
subparagraph (a) to either, at the Servicer's option:
(i) verify the Servicer's Certificate delivered by the
Servicer, and the Trustee shall notify the Servicer of any
discrepancies on or before the second Business Day following
the Determination Date. In the event that the Trustee reports
any discrepancies, the Servicer and the Trustee shall attempt
to reconcile such
37
<PAGE>
discrepancies prior to the third Business Day following the
Determination Date, but in the absence of a reconciliation,
the Servicer's Certificate shall control for the purpose of
calculations and distributions with respect to the related
Distribution Date. In the event that the Trustee and the
Servicer are unable to reconcile discrepancies with respect to
a Servicer's Certificate by the related Distribution Date, the
Servicer shall cause a firm of independent certified public
accountants, at the Servicer's expense, to audit the
Servicer's Certificate and, prior to the fifth calendar day of
the following month, reconcile the discrepancies. The effect,
if any, of such reconciliation shall be reflected in the
Servicer's Certificate for such next succeeding Determination
Date; or
(ii) prepare the Servicer's Certificate on the Servicer's
behalf, if so requested by the Servicer.
Notwithstanding the foregoing, it is understood and agreed that the Trustee has
agreed to act as Servicer's agent for the purpose of preparing and delivering
Servicer's Certificates, and so long as Trustee timely prepares and delivers
Servicer's Certificates, Servicer shall not be required to do so.
(d) The Trustee shall not be responsible for delays
attributable to the Servicer's failure to deliver information, defects in the
information supplied by the Servicer or other circumstances beyond the Trustee's
control.
(e) Other than the duties specifically set forth in this
Section 4.14, the Trustee shall have no obligation hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of the
Servicer. The Trustee shall have no liability for any action taken or omitted by
the Servicer. The duties and obligations of the Trustee in connection with the
verification or preparation of any Servicer's Certificate shall be determined
solely by the express provisions of this Section 4.14 and no implied covenants
or obligations shall be read into this Section 4.14 against the Trustee.
Section 4.15 Errors and Omissions Insurance. The Servicer, at
its own expense, shall procure within 30 days of the Closing Date and shall
thereafter maintain an errors and omissions insurance policy, with $500,000
coverage with responsible companies on all officers, employees or other persons
acting on behalf of the Servicer in any capacity with regard to the Receivables
to handle funds, money, documents and papers relating to the Receivables. Any
such errors and omissions insurance shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons and shall be maintained in a form
that would meet the requirements of prudent institutional sub-prime automobile
loan servicers. No provision of this Section 4.15 requiring such errors and
omissions insurance shall diminish or relieve the Servicer from its duties and
obligations as set forth in this Agreement. The Servicer shall be deemed to have
complied with this provision if one of its respective Affiliates has such errors
and omissions policy coverage and, by the terms of such errors and omission
policy, the coverage afforded thereunder extends to the Servicer. Upon request
of the Trustee, the Servicer shall cause to be delivered to the Trustee a
certification evidencing coverage under such insurance policy. Any such errors
and
38
<PAGE>
omissions insurance policy shall not be cancelled or modified in a materially
adverse manner without ten days' prior written notice to the Trustee and the
Rating Agency.
Section 4.16 Duties of Backup Servicer. The Backup Servicer
prior to the Assumption Date shall be responsible for (a) performing initial
data mapping of the tape provided to the Backup Servicer and Trustee; and (b)
receiving and ensuring the proper and safe storage of the information provided
to the Backup Servicer pursuant to Section 4.14(b).
ARTICLE V
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 5.1 Accounts. Exhibit E hereto sets forth the Lock-Box
and the Lock-Box Account. The Lock-Box shall be a post office box in the name of
the Trustee. Neither the Seller nor the Servicer shall have access to or any
control over such Lock-Box. The Servicer may, at the Servicer's expense, cause
the Trustee to terminate and substitute the Lock-Box Bank for another bank, but
only (a) upon written notice from the Servicer to the Trustee and the Seller,
and (b) so long as no Event of Default shall have occurred and be continuing.
The Servicer shall give ten (10) days prior written notice (if practicable) to
the Trustee of the name and address of the proposed new Lock-Box Bank, which
notice shall identify the related Lock-Box Account.
The Trustee shall establish the Lock-Box Account, the
Collection Account, the Certificate Account and the Pre-Funding Account in the
name of the Trustee for the benefit of the Certificateholders, such accounts to
be Eligible Accounts. The Collection Account, the Pre-Funding Account and the
Certificate Account shall be segregated trust accounts initially established
with the Trustee and maintained with the Trustee so long as the Trustee has the
Required Deposit Rating; provided, however, if the deposits of the Trustee no
longer have the Required Deposit Rating, the Servicer shall within 30 days, with
the Trustee's assistance as necessary, cause such accounts to be moved to a bank
or trust company with the Required Deposit Rating (each such bank or trust
company, a "Successor Bank"). Should the deposits of any Successor Bank no
longer have the Required Deposit Rating, the Servicer within 30 days shall, with
the Successor Bank's assistance as necessary, cause such accounts to be moved to
a bank or trust company, the deposits of which shall have the Required Deposit
Rating.
All amounts held in the Collection Account and the Pre-Funding
Account shall be invested by the Trustee at the written direction of the
Servicer in Eligible Investments in the name of the Trustee as trustee of the
Trust and shall mature no later than the Business Day immediately preceding the
Distribution Date next succeeding the date of such investment. Such written
direction shall certify that any such investment is authorized by this Section.
No investment may be sold prior to its maturity. Amounts in the Lock-Box Account
and the Certificate Account shall not be invested. The Certificate Account shall
be a non-interest-bearing account. Earnings on investments of funds in the
Collection Account shall be paid to the Servicer as additional servicing
compensation pursuant to Section 4.8 hereof. Earnings on investments of funds in
the Pre-Funding Account during any Collection Period during the
39
<PAGE>
Pre-Funding Period shall be credited to the Pre-Funding Account and transferred
to the Collection Account pursuant to Section 5.6A(c) hereof.
Section 5.2 Collections. The Servicer shall remit all payments
made by or on behalf of the Obligors that are received by the Servicer with
respect to the Receivables (other than Purchased Receivables) and all
Liquidation Proceeds to the Lock-Box Account no later than the Business Day
following receipt. No later than the Business Day after deposit in the Lock-Box
Account, the Trustee shall cause the Lock-Box Bank to transfer all available
funds from the Lock-Box Account to the Collection Account.
Section 5.3 Application of Collections. All collections for
the Collection Period shall be applied by the Servicer as follows:
with respect to each Receivable (other than a
Purchased Receivable), payments by or on behalf of the
Obligor shall be applied first to interest on the
Receivable and any excess remaining thereafter shall
be applied to principal of the Receivable.
Section 5.4 Additional Deposits. The Servicer or Asta Funding,
as the case may be, shall deposit or cause to be deposited in the Collection
Account the aggregate Purchase Amount with respect to Purchased Receivables and
the Servicer shall deposit therein all amounts to be paid under Section 11.2.
All such deposits shall be made, in immediately available funds, on the Business
Day preceding the Distribution Date.
Section 5.5 Distributions.
(a) One Business Day prior to each Distribution Date, the
Trustee shall cause to be transferred from the Collection Account, to the extent
of the Total Available Distribution Amount, to the Certificate Account, in
immediately available funds, those funds that were deposited in the Collection
Account for the Collection Period related to such Distribution Date, based
solely on the amounts set forth in the Servicer's Certificate for the related
Distribution Date.
(b) Prior to each Distribution Date, the Trustee on behalf of
the Servicer shall on the related Determination Date calculate the Total
Available Distribution Amount, the Available Interest Distribution Amount, the
Available Principal Distribution Amount, the Class A Distributable Amount, the
Class B Distributable Amount, the Reserve Account Balance, the amount on deposit
in the Simple Interest Differential Account, the amount on deposit in the
Capitalized Interest Account and, based on the Total Available Distribution
Amount, all other amounts in the Certificate Account and the other distributions
to be made on such Distribution Date, determine the amount distributable to
Certificateholders of each Class and the other distributions to be made on such
Distribution Date.
(c) The rights of the Class B Certificateholders to receive
distributions with respect to the Class B Certificateholders shall be and hereby
are subordinated to the rights of
40
<PAGE>
the Class A Certificateholders to receive distributions in respect of the Class
A Certificates to the extent provided in this Section. On each Distribution
Date, the Trustee (based on the information contained in the Servicer's
Certificate delivered on the related Determination Date pursuant to Section 4.9)
shall, subject to Section 5.5(e), make the following distributions from the
funds then on deposit in the Certificate Account (including funds transferred
from the Reserve Account when necessary pursuant to Section 5.6) in the
following order of priority:
(i) to the Trustee and the Custodian, the Trustee Fee and
Custodian Fee and all unpaid Trustee Fees and Custodian Fees from prior
Collection Periods; to the Backup Servicer, the Backup Servicer Fee and
all unpaid Backup Servicer Fees from prior Collection Periods; to the
Servicer, the Servicing Fees and liquidation expenses (including
reasonable attorney fees and expenses) to the extent such liquidation
expenses are not required to be covered by the Servicing Fee or to the
extent not previously recovered from Liquidation Proceeds, and all
unpaid Servicing Fees and unreimbursed liquidation expenses (including
reasonable attorney fees and expenses) to the extent such liquidation
expenses are not required to be covered by the Servicing Fee or to the
extent not previously recovered from Liquidation Proceeds, from prior
Collection Periods and, to the extent not previously paid by the
predecessor Servicer pursuant to Section 9.1, to the successor to the
Servicer, any reasonable transition costs incurred by such successor
Servicer in acting as successor Servicer;
(ii) to the Class A Certificateholders, an amount equal to
the sum of the Class A Interest Distributable Amount and any Class A
Interest Carryover Shortfall from the prior Distribution Date;
(iii) to the Class B Certificateholders, an amount equal to
the sum of the Class B Interest Distributable Amount and any Class B
Interest Carryover Shortfall from the prior Distribution Date;
(iv) to the Class A Certificateholders, an amount equal to
the sum of the Class A Principal Distributable Amount and any Class A
Principal Carryover Shortfall from the prior Distribution Date;
(v) to the Class B Certificateholders, an amount equal to
the sum of the Class B Principal Distributable Amount and any Class B
Principal Carryover Shortfall from the prior Distribution Date;
(vi) until but not including the March 20, 1998 Distribution
Date, to the Reserve Account, and beginning with the March 20, 1998
Distribution Date, to the Reserve Account, the amount, if any, required
to cause the balance therein to be equal to the Reserve Requirement;
and
(vii) beginning with the March 20, 1998 Distribution Date, to
the Seller, an amount equal to any remaining amounts in the Certificate
Account after the distributions described in clauses (i) through (vi)
above, and any amounts in the Reserve Account in excess of the Reserve
Requirement, if any.
41
<PAGE>
(d) Subject to Section 11.1 respecting the final payment upon
retirement of each Certificate, the Servicer shall on each Distribution Date
instruct the Trustee to distribute to each Certificateholder of any Class of
record on the preceding Record Date either by wire transfer, in immediately
available funds to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Trustee appropriate written instructions prior to the Record Date for
such Distribution Date and such Holder's Certificates of such Class in the
aggregate evidence a denomination of not less than $1,000,000, or if not, by
check mailed to such Certificateholder at the address of such Holder appearing
in the Certificate Register, the amounts to be distributed to such
Certificateholder pursuant to Section 5.5(c) in proportion to its Certificate
Balance.
Section 5.6 Reserve Account, Priority of Distributions.
(a) In order to assure that sufficient amounts to make
required payments to the Certificateholders specified therein will be available,
there shall be established and maintained with the Trustee, the following
Eligible Account: the "Reserve Account-Asta Auto Trust 1997- 1" (the "Reserve
Account"), which will include the money and other property deposited and held
therein pursuant to Section 5.5(c) and this Section 5.6.
(b) The Reserve Account shall be initially funded on the
Closing Date by the Seller in the amount of the Reserve Account Initial Deposit.
(c) Amounts held in the Reserve Account shall be invested in
Eligible Investments, in accordance with written instructions from the Seller
(or its successors) or its designee, and such investments shall not be sold or
disposed of prior to their maturity but shall mature no later than one (1)
Business Day before the Distribution Date next succeeding the date of
investment. All such investments shall be made in the name of the Trustee as
Trustee for the benefit of the Certificateholders. Any loss on investment of
amounts held in the Reserve Account and all income and gain on the Reserve
Account shall be credited to such account.
(d) If on any Distribution Date the Total Available
Distribution Amount is insufficient to distribute the full amount described in
clauses (i) through (v) of Section 5.5(c), the Trustee shall withdraw an amount
equal to such insufficiency from the Reserve Account (any such amount, the
"Reserve Account Draw") and apply such amount (in the order of priority provided
by Section 5.5(c)) in respect of such insufficiencies. If on any Distribution
Date beginning with the March 20, 1998 Distribution Date, amounts on deposit in
the Reserve Account are in excess of the Reserve Requirement for such date
(after giving effect to Reserve Account Draws on such date, if applicable), the
Trustee shall release such excess to the Seller as owner of the funds on deposit
in the Reserve Account. Any such amounts released from the Reserve Account shall
not be available for Reserve Account Draws on following Distribution Dates. Upon
termination of this Agreement, any amounts on deposit in the Reserve Account,
after payment of all amounts due the Backup Servicer, the Trustee, the
Custodian, the Servicer and the Certificateholders, shall be paid to the Seller.
42
<PAGE>
Section 5.6A Pre-Funding Account.
(a) The Trustee shall establish the Pre-Funding Account for
the benefit of the Certificateholders. The Pre-Funding Account shall be
initially funded in the amount of $5,279,996.
(b) The Trustee shall use funds on deposit in the Pre-Funding
Account on Subsequent Transfer Dates to acquire Subsequent Receivables on behalf
of the Trust (in accordance with Section 3.1(b) hereof.
(c) Amounts held in the Pre-Funding Account shall be invested
in Eligible Investments, in accordance with written instructions from the Seller
(or its successors) or its designee, which mature, or which are payable or
redeemable upon demand of the holder thereof, so that such funds will be
available on or before each Subsequent Transfer Date. All such investments shall
be made in the name of the Trustee as Trustee for the benefit of the
Certificateholders. Any loss on investment of amounts held in the Pre-Funding
Account and all income and gain on the Pre-Funding Account shall be credited to
such account. Two Business Days prior to each Distribution Date, the Trustee
shall transfer all amounts received as earnings on income from any investments
or reinvestments of funds in the Pre-Funding Account to the Collection Account.
(d) The Trustee shall distribute all funds remaining in the
Pre-Funding Account on the last day of the Pre-Funding Period to the
Certificateholders as principal on a pro rata basis in proportion to the
respective Class Percentage of each class of then outstanding Certificates on
the immediately succeeding Distribution Date.
Section 5.6B Capitalized Interest Account.
(a) In order to cover certain interest shortfalls during the
Pre-Funding Period resulting from the difference between the aggregate
Certificate Balance of the Certificates and the aggregate Principal Balance of
the Initial Receivables, there shall be established and maintained with the
Trustee the following Eligible Account: the "Capitalized Interest Account-Asta
Auto Trust 1997-1", which will include the money and other property deposited
and held therein pursuant to this Section 5.6B.
(b) The Capitalized Interest Account shall be funded on the
Closing Date by a single deposit therein by the Seller in the amount of
$199,539.85.
(c) Amounts held in the Capitalized Interest Account shall be
invested in Eligible Investments, in accordance with written instructions from
the Seller (or its successors) or its designee, and such investments shall not
be sold or disposed of prior to their maturity but shall mature no later than
one (1) Business Day before the Distribution Date next succeeding the date of
investment. All such investments shall be made in the name of the Trustee as
Trustee for the benefit of the Certificateholders. Any loss on investment of
amounts held in the Capitalized Interest Account and all income and gain on the
Capitalized Interest Account shall be credited to such account.
43
<PAGE>
(d) On each Distribution Date prior to the December 1997
Distribution Date, the Trustee shall withdraw from the Capitalized Interest
Account an amount, calculated by the Trustee, equal to the Capitalized Interest
Requirement and deposit such amount in the Certificate Account. Upon the
termination of the Pre-Funding Period, any amounts on deposit in the Capitalized
Interest Account shall be deposited first into the Reserve Account to the extent
required to maintain the Reserve Requirement, and the balance will be paid to
the Seller.
Section 5.7 Simple Interest Differential Account.
(a) In order to cover certain potential shortfalls due to use
of the Simple Interest Method, there shall be established and maintained with
the Trustee the following Eligible Account: the "Simple Interest Differential
Account-Asta Auto Trust 1997-1" (the "Simple Interest Differential Account"),
which will include the money and other property deposited and held therein
pursuant to this Section 5.7.
(b) The Simple Interest Differential Account shall be
initially funded on the Closing Date by the Seller in the amount of $48,168.04.
(c) Amounts held in the Simple Interest Differential Account
shall be invested in Eligible Investments, in accordance with written
instructions from the Seller (or its successors) or its designee, and such
investments shall not be sold or disposed of prior to their maturity but shall
mature no later than one (1) Business Day before the Distribution Date next
succeeding the date of investment (or in the case of money market fund
investments, on such Distribution Date). All such investments shall be made in
the name of the Trustee as Trustee for the benefit of the Certificateholders.
Any loss on investment of amounts held in the Simple Interest Differential
Account and all income and gain on the Simple Interest Differential Account
shall be credited to such account.
(d) On each Distribution Date, the Trustee shall withdraw from
the Simple Interest Differential Account an amount, calculated by the Servicer
and transmitted to the Trustee in writing on or before the related Determination
Date, equal to the sum of the amounts for each Actuarial Receivable that was the
subject of a prepayment or final Scheduled Payment during the preceding
Collection Period, or that became a Liquidated Receivable during such Collection
Period, in an amount (the "Simple Interest Differential Adjustment") equal to
the excess, if any, of the principal balance of such Actuarial Receivable
computed pursuant to the Simple Interest Method over the principal balance of
such Actuarial Receivable computed pursuant to the actuarial method set forth in
such Actuarial Receivable as of the date of the last payment made by the Obligor
on the Actuarial Receivable, and shall transfer such sum to the Certificate
Account for application pursuant to Section 5.5(c). Upon termination of this
Agreement, any amounts on deposit in the Simple Interest Differential Account,
after payment of all amounts due the Backup Servicer, the Trustee, the
Custodian, the Servicer and the Certificateholders, shall be paid to the Seller.
Section 5.8 Statements to Certificateholders; Tax Returns.
With each distribution from the Certificate Account to the Certificateholders
made on a Distribution Date, the Trustee (to the extent that the Servicer has
provided to the Trustee the necessary information
44
<PAGE>
pursuant to the terms hereof) shall prepare and forward to each
Certificateholder of record, Greenwich Capital Markets, Inc. and the Rating
Agency a statement substantially in the form of Exhibit D hereto setting forth
at a minimum the following information as to each Class of Certificates to the
extent applicable:
(a) Servicer Collections:
(i) the Available Interest Distribution Amount;
(ii) the Available Principal Distribution Amount; and
(iii) the Total Available Distribution Amount.
(b) Distribution:
(i) the amount of such distribution allocable to
principal in respect of each Class of Certificates;
(ii) the amount of such distribution allocable to
interest in respect of each Class of Certificates;
(iii) the Pool Balance, the Pool Factor, the Class
Factor, the weighted average coupon, the weighted average maturity (in
months) and the remaining number of Receivables as of the close of
business on the first and the last day of the related Collection
Period, after giving effect to payments allocated to principal reported
under clause (b)(i) above;
(iv) the aggregate Certificate Balance of each Class
as of the close of business on the last day of the preceding Collection
Period, after giving effect to payments allocated to principal reported
under clause (b)(i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period and the amount
of any unpaid Servicing Fees and the change in such amount from that of
the prior Distribution Date;
(vi) the amount of the Principal Carryover Shortfalls
and Interest Carryover Shortfalls with respect to each Class, if any,
on such Distribution Date and the change, if any, in each such amount
from the preceding Distribution Date;
(vii) the amount of the aggregate Realized Losses, if
any on such Distribution Date and the change in such amount from that
of the prior Distribution Date and the amount of Cram Down Losses with
respect to the preceding Collection Period;
(viii) the amount on deposit in the Reserve Account on
such Distribution Date, after giving effect to amounts on deposit in
the Reserve Account and Reserve Account Draws, if any, on such dates;
the amount of net investment earnings with
45
<PAGE>
respect to the Reserve Account earned during the related Collection
Period; and the amounts, if any, released from the Reserve Account to
the Seller as owner of the funds held therein;
(ix) the amount on deposit in the Simple Interest
Differential Account on such Distribution Date, after giving effect to
all withdrawals on such date, the aggregate amount of Simple Interest
Differential Account withdrawals to cover Simple Interest Differential
Adjustments to any Class on such Distribution Date and the aggregate
amount of any Simple Interest Differential Adjustments with respect to
such Distribution Date;
(x) the aggregate amount of Reserve Account Draws, if
any, and the application of such draws to cover any payment shortfalls
to the Class A or B Certificateholders, made on such Distribution Date;
(xi) the amount of Receivables (other than Liquidated
Receivables) as to which the related Obligors are: (i) 31 to 60 days
past due; (ii) 61-90 days past due; and (iii) 91 days or more past due
in making Scheduled Payments;
(xii) the 60 Day + Delinquency Rate, the aggregate
amount of Net Losses with respect to such Collection Period and its
percentage of the Original Principal Balance, the Repossession
Inventory Rate, the aggregate amount of Liquidated Receivables with
respect to such collection period and its percentage of the Original
Principal Balance, and the Reserve Requirement;
(xiii) the number and the aggregate Purchase Amount of
Receivables that became Purchased Receivables during the related
Collection Period;
(xiv) the number and principal balance of Receivables
as to which the Servicer has repossessed the Financed Vehicle during
the current period and the total number of repossessed Financed
Vehicles from prior periods that have yet to be liquidated;
(xv) the amount of Liquidation Proceeds, the amount of
rebates received from the Servicer as a result of cancelled warranty or
extended service contracts and the amount of claims paid under any
Insurance Policy (other than the VSI Insurance Policy) during the
related Collection Period and on a cumulative basis;
(xvi) the number of Receivables as to which a claim
was filed under the VSI Insurance Policy, the amount of such claims,
the number of claims rejected and the principal balance of related
Receivables rejected for the related Collection Period and on a
cumulative basis;
(xvii) the amount of reinvestment income on funds held in
the Collection Account;
46
<PAGE>
(xviii) the beginning balance of the Pre-Funding
Account, the amount withdrawn from such account to purchase Subsequent
Receivables and to make deposits to the Reserve Account, the amount of
any reinvestment income earned on the moneys on deposit therein, and
the ending balance; and
(xix) the amount on deposit in the Capitalized
Interest Account, after giving effect to all withdrawals, if any, on
such date; the amount of net investment earnings with respect to the
Capitalized Interest Account; and the amount, if any, of any
Capitalized Interest Requirement.
(xx) any other information regarding each distribution
which any Certificateholder reasonably requests in writing 30 days
prior to such distribution and which the Trustee can provide without
undue expense or effort.
(c) Within 30 days after the end of each calendar year, the
Trustee shall, provided it has received the necessary information from the
Servicer, furnish to each Person who at any time during such calendar year was a
Certificateholder of record and received any payment thereon (i) a report as to
the aggregate of amounts reported pursuant to clauses (b)(i), (ii) and (v) of
this Section 5.8 for such calendar year or applicable portion thereof during
which such person was a Certificateholder, and (ii) such information as may be
reasonably requested by the Certificateholders or required by the Code and
regulations thereunder, to enable such Holders to prepare their federal and
State income tax returns. Within 30 days after the end of each calendar year,
the Trustee shall furnish or shall cause to be furnished to the Seller or its
successors a statement containing such of the information provided pursuant to
this Section 5.8 as relates to distributions to the Seller, as holder of the
Excess Interest and owner of the funds on deposit in the Reserve Account,
aggregated for such calendar year, as well as information respecting the amounts
that were transferred from the Reserve Account to make payments to
Certificateholders and amounts otherwise distributable to the Seller which were
placed in the Reserve Account. The obligation of the Trustee set forth in this
paragraph shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided pursuant to any
requirements of the Code.
(d) The Servicer, at its own expense, shall prepare or cause a
firm of nationally recognized accountants to prepare any tax returns required to
be filed by the Trust, and the Trustee shall, at the Servicer's expense, execute
and file such returns if requested to do so by the Servicer unless applicable
law requires a different signatory to such return, in which case the Seller or
the holder of the Seller Partnership Interest in the Trust shall, where
permitted by law, sign such return. The Trustee, upon request, will furnish the
Servicer with all such information known to the Trustee as may be reasonably
required in connection with the preparation of all tax returns of the Trust. The
Seller or the holder of the Seller Partnership Interest in the Trust shall serve
as the "Tax Matters Partner" for purposes of the Code.
Section 5.9 Reliance on Information from the Servicer.
Notwithstanding anything to the contrary contained in this Agreement, all
distributions from any of the accounts described in this Article V and any
transfer of amounts between such accounts shall be made by
47
<PAGE>
the Trustee in reliance on information provided to the Trustee by the Servicer
in writing, whether by way of a Servicer's Certificate or otherwise.
Section 5.10 Statements to Certificateholders; Characteristics
of Receivables Pool. Within 30 days after the end of the Pre-Funding Period,
Asta Funding shall provide to the Trustee for the Trustee to forward to each
Certificateholders of record, Greenwich Capital Markets, Inc. and the Rating
Agency a statement, in a form substantially similar to Exhibit M, setting forth
the characteristics of the Receivables after giving effect to the addition of
all Subsequent Receivables acquired by the Seller from Asta Funding pursuant to
the Purchase Agreement and transferred to the Trust on each Subsequent Transfer
Date.
Section 5.11 Amendment to Schedule of Receivables. On each
Subsequent Transfer Date, the Seller shall provide to the Trustee an amended
Schedule of Receivables, which reflects the addition of all Subsequent
Receivables acquired by the Seller from Asta Funding pursuant to the Purchase
Agreement and transferred to the Trust on such Subsequent Transfer Date.
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. The Class A and B Certificates
shall be substantially in the forms of Exhibit A and Exhibit B, respectively.
The Certificates shall be issued in fully registered, definitive form in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
The Certificates shall be executed on behalf of the Trust by manual signature of
a Trustee Officer. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trustee, shall be valid and binding
obligations of the Trust, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
Section 6.2 Appointment of Paying Agent. The Trustee may act
as or appoint one or more paying agents (each, a "Paying Agent"). Any such
Paying Agent must be rated no less than investment grade by the Rating Agency.
The Paying Agent shall make distributions to Certificateholders from amounts
delivered by the Trustee to the Paying Agent from amounts on deposit in the
Certificate Account pursuant to Article V. The Trustee may remove the Paying
Agent if the Trustee determines in its sole discretion that the Paying Agent
shall have failed to perform its obligations under this Agreement in any
material respect. The Paying Agent shall initially be the Trustee. A co-paying
agent may be chosen by the Trustee. Any co-paying agent or any successor Paying
Agent shall be permitted to resign as Paying Agent, co-paying agent or successor
Paying Agent, as the case may be, upon 30 days prior written notice to the
Trustee and the Seller. In the event that the Trustee, any co-paying agent or
any successor Paying Agent shall no longer be the Paying Agent, co-paying agent
or successor Paying Agent, as the case may be, the Trustee shall appoint a
successor to act as Paying Agent or co-paying agent. The
48
<PAGE>
Trustee shall cause each Paying Agent and each successor Paying Agent or any
co-Paying Agent appointed by the Trustee (other than the Trustee, which hereby
agrees) to execute and deliver to the Trustee an instrument in which such Paying
Agent, successor Paying Agent or additional co-Paying Agent shall agree with the
Trustee that, as Paying Agent, such Paying Agent, successor Paying Agent or
additional co-Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto in a segregated trust account with the corporate trust
department of a depositary institution or trust company having corporate trust
powers and acting as trustee with respect to such funds or with an institution
having the Required Deposit Rating (which may be such Paying Agent) until such
sums shall be paid to such Certificateholders and shall promptly notify the
Trustee of any default in making such payment. The Paying Agent shall return all
unclaimed funds to the Trustee and upon removal of a Paying Agent shall also
return all funds in its possession to the Trustee. The provisions of Sections
10.1, 10.4 and 10.5 shall apply to each Paying Agent in its role as Paying
Agent. The fees of any Paying Agent or co-paying agent shall be paid by the
Trustee. Each Paying Agent and co-paying agent must be acceptable to the Seller.
Section 6.3 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents
(each, an "Authenticating Agent") with respect to the Certificates which shall
be authorized to act on behalf of the Trustee in authenticating the Certificates
in connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Certificates. Whenever reference is made in this Agreement to
the authentication of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication by
an Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. The Trustee is hereby appointed as
the initial Authenticating Agent.
(b) Any institution succeeding to the corporate agency
business of an Authenticating Agent shall continue to be an Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Seller. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving notice of
termination to such Authenticating Agent and to the Seller. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be acceptable to the Trustee or the Seller,
the Trustee may appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless acceptable to the Seller.
(d) The Trustee agrees to pay to each Authenticating Agent
from its own funds from time to time reasonable compensation for its services
under this Section 6.3.
49
<PAGE>
(e) The provisions of Sections 10.1, 10.4 and 10.5 shall be
applicable to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section 6.3,
the Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the Certificates described in the Pooling and
Servicing Agreement.
___________________________
as Authenticating Agent
for the Trustee,
By:________________________
Authorized Signatory
Section 6.4 Authentication of Certificates. The Trustee shall
cause the Certificates to be executed on behalf of the Trust, authenticated, and
delivered to or upon the written order of the Seller, pursuant to this
Agreement. No Certificate shall entitle its Holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A or Exhibit B hereto, as the case may be, executed by the Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates issued on the Closing Date shall be dated the Closing Date. All
Certificates issued upon transfer or exchange thereafter shall be dated the date
of their authentication.
Section 6.5 Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall be the Trustee and any
co-registrar chosen by the Servicer and acceptable to the Trustee. The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 6.9, a Certificate Register in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided. The Trustee shall be the initial Certificate Registrar.
(b) No transfer of a Certificate shall be made unless (i) the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable State securities laws are complied with,
(ii) such transfer is exempt from the registration requirements under said
Securities Act and applicable state securities laws or (iii) such Certificate is
transferred to a Person who the transferor reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A of the Securities Act) that is
purchasing such
50
<PAGE>
Certificate for its own account or the account of a qualified institutional
buyer to whom notice is given that the transfer is being made in reliance on
said Rule 144A and such transfer complies with any applicable State securities
laws. In the event that a transfer is to be made in reliance upon clause (ii)
above, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee must each (A) provide a letter to the
Seller and the Trustee regarding the facts surrounding such transfer in a form
substantially similar to that attached hereto as Exhibit F and (B) provide the
Trustee with a written Opinion of Counsel in form and substance satisfactory to
the Seller and the Trustee that such transfer may be made pursuant to an
exemption from the Securities Act or State securities laws, which Opinion of
Counsel shall not be an expense of the Seller or the Trustee. Neither the Seller
nor the Trustee is under an obligation to register the Certificates under said
Securities Act or any other securities law. The Certificate Registrar may
request and shall receive in connection with any transfer signature guarantees
satisfactory to it in its sole discretion.
(c) Certificateholders, by virtue of the acquisition and
holding thereof, will be deemed to have represented and agreed as follows:
(i) it is a qualified institutional buyer as defined in Rule
144A or an accredited investor as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D promulgated under the Securities Act and is
acquiring the Certificates for its own institutional account or for the
account of a qualified institutional buyer or an institutional
accredited investor;
(ii) it understands that the Certificates have been offered
in a transaction not involving any public offering within the meaning
of the Securities Act, and that, if in the future it decides to resell,
pledge or otherwise transfer any Certificates, such Certificates may be
resold, pledged or transferred only (A) to a person whom the Seller
reasonably believes is a qualified institutional buyer (as defined in
Rule 144A under the Securities Act) that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (B) pursuant to an effective registration statement under
the Securities Act or (C) in reliance on another exemption under the
Securities Act and, in each case, in compliance with any applicable
State securities laws;
(iii) it understands that the Certificates will bear a legend
substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES THAT THIS SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
51
<PAGE>
BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR (3) IN RELIANCE ON ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE
RECEIPT BY THE TRUSTEE AND THE SELLER OF A CERTIFICATION OF THE
TRANSFEROR AND THE TRANSFEREE AND AN OPINION OF COUNSEL (EACH IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE SELLER) TO THE EFFECT
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. ANY TRANSFER OF THIS SECURITY MUST COMPLY WITH ANY
ADDITIONAL TRANSFER RESTRICTIONS IN SECTION 6.5 OF THE POOLING AND
SERVICING AGREEMENT; and
(iv) [Applicable to Class A Certificates only] if such Holder
is an employee benefit plan or other retirement arrangement subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or the Code (a "Plan"), such Holder is an accredited investor
as defined in Regulation D promulgated under the Securities Act.
(v) [Applicable to Class B Certificates] such Holder
represents that it is neither a Plan nor purchasing the Certificates
with "plan assets" of any Plan unless such Holder is an insurance
company and the acquisition and holding of such Certificates by such
entity is permitted under Section 401(c) of ERISA and is made in
reliance upon the availability of exemptive relief under Section III of
Prohibited Transaction Class Exemption 95-60 (60 Fed. Reg. 35925, July
12, 1995) issued by the DOL.
(d) Upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office, the Trust shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of like Class in authorized
denominations of a like aggregate amount dated the date of authentication. At
the option of a Holder, Certificates may be exchanged for other Certificates of
like Class of authorized denominations of a like aggregate amount upon surrender
of the Certificates to be exchanged at the Corporate Trust Office.
(e) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by an enforceable
written instrument of transfer duly executed by the Holder or his attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
and exchange shall be canceled and subsequently disposed of by the Trustee in
accordance with its customary practices.
(f) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
52
<PAGE>
Section 6.6 Mutilated, Destroyed, Lost, or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar, the Trustee and the
Servicer such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, the Trustee on behalf of the Trust shall
execute and the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and denomination. In connection with the issuance of
any new Certificate under this Section 6.6, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 6.6 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen, or destroyed Certificate shall be found at any time.
Section 6.7 Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.5(c) and for all other purposes whatsoever, and neither
the Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
Section 6.8 Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the Servicer,
at the expense of the Trust, within 15 days after receipt by the Trustee of a
request therefor from the Servicer, in writing, a list of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
(3) or more Certificateholders, or one (1) or more Certificateholders evidencing
not less than 25% of the Voting Interests thereof apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and such application shall be accompanied by a copy of
the communication that such applicants propose to transmit, then the Trustee
shall, within five (5) Business Days after the receipt for such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Holder, by receiving and holding a Certificate,
shall be deemed to have agreed to hold neither of the Servicer or the Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 6.9 Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, the City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Certificates and this Agreement may be served. The Trustee
initially designates 450 W. 33rd Street, 8th Floor, New York, New York 10001,
Attn: Structured Finance Operations as its office for such purposes. The Trustee
shall give prompt written notice to the Servicer and to Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
53
<PAGE>
ARTICLE VII
THE SELLER
Section 7.1 Representations of Seller. The Seller makes the
following representations to the Trustee, on which the Trustee on behalf of
itself and the Certificateholders relied in accepting the Receivables in trust
and executing and authenticating the Certificates. The representations speak as
of the execution and delivery of this Agreement and shall survive the sale of
the Receivables to the Trustee in trust for the benefit of the
Certificateholders.
(i) Due Organization and Good Standing. The Seller has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is presently
conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement, the Purchase Agreement
and any other agreement related thereto (collectively, the "Transaction
Documents"), and to carry out their terms; the Seller has full power
and authority to sell and assign the property sold and assigned to and
deposited with the Trustee as part of the Trust and has duly authorized
such sale and assignment to the Trustee by all necessary corporate
action; and the execution, delivery and performance of the Transaction
Documents have been duly authorized by the Seller by all necessary
corporate action.
(iv) Valid and Binding Obligation. The Transaction Documents
shall constitute the legal, valid and binding obligations of the Seller
enforceable in accordance with their terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights in
general and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), or by
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of the Transaction Documents which purport to provide
indemnification from liabilities under applicable securities laws.
(v) No Violation. The consummation of the transactions
contemplated by the Transaction Documents and the fulfillment of the
terms thereof do not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation or
by-laws of the Seller, or any indenture, loan agreement, mortgage or
other agreement, or other
54
<PAGE>
instrument to which the Seller is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, loan agreement,
mortgage or other agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the Seller of
any court or of any federal or State regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Seller or its properties.
(vi) No Proceedings. There are no proceedings,
investigations, injunctions, writs, restraining orders or any orders of
any nature pending or, to the best of the Seller's knowledge,
threatened, before any court, regulatory body, administrative agency,
or other governmental instrumentality having jurisdiction over the
Seller or its properties: (A) asserting or declaring the invalidity of
the Transaction Documents or the Certificates; (B) seeking to prevent
or preventing the issuance of the Certificates or the consummation of
any of the transactions contemplated by the Transaction Documents; (C)
seeking any determination or ruling that might materially and adversely
affect or which materially and adversely affects the performance by the
Seller of its obligations under, or the validity or enforceability of,
the Transaction Documents or the Certificates; or (D) relating to the
Seller and which might adversely affect the federal or State income tax
attributes of the Certificates.
(vii) No Approvals. No approval, consent, authorization or
other action by, or filing with, any governmental authority of the
United States of America or any of the States is required or necessary
to consummate the transactions contemplated hereby, except as such as
have been duly obtained or made by the Closing Date. The Seller
complies in all material respects with all applicable laws, rules and
orders with respect to itself, its business and properties and the
Receivables; and Seller maintains all applicable permits and
certifications.
(viii) Taxes. The Seller has filed all federal, State, county,
local and foreign income, franchise and other tax returns required to
be filed by it through the date hereof, and has paid all taxes
reflected as due thereon. There is no pending dispute with any taxing
authority that, if determined adversely to the Seller, would result in
the assertion by any taxing authority of any material tax deficiency,
and the Seller has no knowledge of a proposed liability for any tax to
be imposed upon the Seller's properties or assets for which there is
not an adequate reserve reflected in the Seller's current financial
statements.
(ix) Adequate Provisions for Taxes. The provisions for taxes
on the Seller's books are in accordance with generally accepted
accounting principles.
(x) Pension/Profit Sharing Plans. No contribution failure
has occurred with respect to any pension or profit sharing plan, and
all such plans have been fully funded as of the date of this Agreement.
55
<PAGE>
(xi) Trade Names. "Asta Auto Receivables Company" is the only
trade name under which the Seller is currently operating its business
and under which the Seller operated its business for the period of time
during which the Seller was in existence preceding the Closing Date.
(xii) Ability to Perform. There has been no material
impairment in the ability of the Seller to perform its obligations
under the Transaction Documents.
(xiii) Chief Executive Office. Since its inception, the Seller
has maintained its chief executive office in the State of New Jersey
and there have been no other locations of the Seller's chief executive
office preceding the Closing Date. The Seller shall give written notice
to the Trustee and the Certificateholders at least 30 days prior to
relocating its chief executive office and shall make, or cause the
appropriate Person to make, such filings under the UCC as shall be
necessary to maintain the perfected, first priority security interest
in the Receivables granted hereunder in favor of the Trust.
(xiv) Adverse Orders. There is no injunction, writ,
restraining order or other order of any nature binding upon the Seller
that adversely affects the Seller's performance of the Transaction
Documents and the transactions contemplated thereby.
(xv) Solvent. The Seller is solvent and will not become
insolvent after giving effect to the transactions contemplated
hereunder; the Seller is paying its debts as they become due; Seller,
after giving effect to the contemplated transactions, will have
adequate capital to conduct its business.
(xvi) Lock-Box Account. Each Obligor of a Receivable has
been directed and is required to remit payments to the Lock-Box.
(xvii) Consolidation. The Seller has operated and will operate
its business such that its assets and liabilities will not be
substantively consolidated with the assets and liabilities of Asta
Funding and its separate existence will not be disregarded in any State
or federal court proceeding.
(xviii) Business Purpose. The Seller will acquire and sell,
transfer, assign and otherwise convey (for State law, tax and financial
accounting purposes) the Receivables for a bona fide business purpose
and will treat such acquisition and conveyance of Receivables as such
for State law, tax and financial accounting purposes.
(xix) Federal Income Tax Purposes. The Seller intends to
treat the transactions contemplated under this Agreement as a sale of
the Receivables to the Trust for federal income tax purposes. The
Trustee intends to cause to be filed all returns or reports on behalf
of the Trust in a manner consistent with such treatment.
(xx) Valid Transfer. The Purchase Agreement constitutes a
valid transfer to the Seller of all of Asta Funding's right, title and
interest in the Receivables transferred to the Seller for reasonably
equivalent value pursuant to such Purchase Agreement.
56
<PAGE>
(xxi) Seller's Obligations. The Seller has submitted all
necessary documentation for payment of the Receivables to the Obligors
and has fulfilled all of its applicable obligations hereunder required
to be fulfilled as of the Closing Date.
(xxii) 1940 Act. The Seller is not, and is not controlled by,
an "investment company" registered or required to be registered under
the Investment Company Act of 1940, as amended.
Section 7.2 Liability of Seller; Indemnities. The Seller shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller hereunder and the representations and
warranties made by the Seller in this Agreement and as provided in Section
12.14.
(a) The Seller shall indemnify, defend and hold harmless the
Trustee, the Backup Servicer and the Custodian, including the officers,
directors, employees and agents of each such entity, and each Certificateholder
from and against any taxes, other than income and franchise taxes, that may at
any time be asserted against the Trustee, the Trust, the Backup Servicer, the
Custodian or the Certificateholders with respect to, and as of the date of, the
transfer of the Receivables to the Trust or the issuance and original sale of
the Certificates, including any sales, gross receipts, general corporation,
tangible personal property, privilege or license taxes and costs and expenses in
defending against the same.
(b) The Seller shall indemnify, defend, and hold harmless the
Trustee, the Trust, the Backup Servicer, the Custodian and each
Certificateholder from and against any loss, liability or expense incurred by
reason of (a) the Seller's willful misfeasance, bad faith, or negligence in the
performance of its duties hereunder, or by reason of reckless disregard of its
obligations and duties hereunder or (b) the Seller's violation of federal or
State securities laws in connection with the sale of the Certificates.
Indemnification under this Section 7.2 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Seller shall have made any indemnity payments to the Trustee pursuant to
this Section and the Trustee thereafter shall collect any of such amounts from
others, the Trustee shall repay such amounts to the Seller, without interest.
Section 7.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party, or (c) which may succeed to the properties and assets
of the Seller substantially as a whole (excluding, however, any transaction
involving the sale of Receivables in a securitization), which Person in any of
the foregoing cases executes an agreement or assumption to perform every
obligation of the Seller hereunder, shall be the successor to the Seller
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; provided, however, that (i) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 3.4 shall have been breached and no Event of Default, and no
event that, after notice or lapse of time, or both, would become an Event of
Default shall have happened and be
57
<PAGE>
continuing, (ii) the Seller shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement or assumption comply with this Section
7.3 and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with and (iii) the Seller shall
have delivered to the Trustee an Opinion of Counsel either (A) stating that, in
the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables (other than any notations or filings with respect to the title
documents for the Financed Vehicles), and reciting the details of such filings,
or (B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest. The Seller shall provide notice
of any merger, consolidation or succession pursuant to this Section 7.3 to the
Rating Agency and shall have received confirmation from the Rating Agency that
the then current rating of the Certificates will not be downgraded as a result
of such merger, consolidation or succession. Notwithstanding anything herein to
the contrary, the execution of the foregoing agreement or assumption and
compliance with clauses (i), (ii) or (iii) above shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c) above.
Section 7.4 Limitation on Liability of Seller and Others. The
Seller and any director or officer or employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations hereunder, and that in its opinion may involve it in any expense or
liability.
Section 7.5 Seller May Own Certificates. The Seller and any
Person controlling, controlled by or under common control with the Seller may in
its individual or any other capacity become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Seller or an Affiliate
thereof, except as otherwise provided in the definition of "Certificateholder"
specified in Section 2.1. Certificates so owned by or pledged to the Seller or
such controlling or commonly controlled Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates except as
otherwise provided herein or by the definition of Certificateholder.
Section 7.6 Covenants of the Seller. The Seller shall:
(i) not impair the rights of the Certificateholders or the
Trustee in the Receivables;
(ii) except for the sale and assignment effected under this
Agreement and prior to the termination of the Trust, not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on any Receivable sold to the Trustee or
any interest therein;
(iii) immediately notify the Trustee of the existence of any
Lien on any Receivable;
58
<PAGE>
(iv) defend the right, title and interest of the Trustee in,
to and under the Receivables transferred to the Trustee, against all
claims of third parties claiming through or under the Seller, Asta
Funding or the Servicer;
(v) comply in all respects with the terms and conditions of
the Purchase Agreement and not amend, modify, or waive any provision of
the Purchase Agreement in any manner relating to the obligation of Asta
Funding to repurchase Receivables or in any manner that would have a
materially adverse effect on the interests of the Certificateholders;
(vi) promptly notify the Trustee and the Certificateholders
of the occurrence of any Event of Default and any breach by the Seller,
the Servicer or the Backup Servicer of any of its respective covenants
or representations and warranties contained in this Agreement or, with
respect to the Seller, in the Purchase Agreement;
(vii) make at its sole cost and expense any filings, reports,
notices or applications and seek any consents or authorizations from
any and all government agencies, tribunals or authorities in accordance
with the UCC and any State vehicle license or registration authority on
behalf of the Trust as may be necessary or advisable or reasonably
requested by the Trustee to create, maintain and protect a security
interest of the Trust in, to and on the Financed Vehicles and a first
priority perfected ownership interest of the Trust in, to and on the
Receivables transferred to it; and
(viii) upon request of any Certificateholder, furnish the
information required by paragraph (d)(4) of Rule 144A promulgated under
the Securities Act.
Section 7.7 Enforcement by Trustee. The Seller hereby
acknowledges and agrees that the following covenants and agreements of the
Seller shall be enforceable by the Trustee at all times until the Trust is
terminated:
(a) the Seller shall not engage in any business or activity
other than as currently set forth in its Certificate of Incorporation;
(b) the Seller shall not consolidate or merge with or into
any other entity or convey or transfer its properties and assets
substantially as an entirety to any entity unless (A) the entity (if
other than the Seller) formed or surviving such consolidation or
merger, or that acquires by conveyance or transfer the properties and
assets of the Seller substantially as an entirety, shall be organized
and existing under the laws of the United States of America or any
State thereof, and shall expressly assume in form satisfactory to the
Rating Agency and the Majority Certificateholders, the performance of
every covenant on the part of the Seller to be performed or observed
pursuant to this Agreement and the Purchase Agreement, (B) immediately
after giving effect to such transaction, no default or event of default
under this Agreement shall have occurred and be continuing and (C) the
Seller shall have delivered to the Rating Agency, each
Certificateholder and the Trustee an Officers' Certificate and an
Opinion of Counsel,
59
<PAGE>
each stating that such consolidation, merger, conveyance or transfer
comply with this Agreement;
(c) the Seller shall not dissolve or liquidate, in whole or in
part, except (A) as permitted in paragraph (ii) above or (B) with the
prior written consent of the Trustee and prior written confirmation
from the Rating Agency (a copy of which shall be provided to the
Trustee and each Certificateholder by the Seller) that such dissolution
or liquidation will have no adverse effect on the rating assigned to
the Certificates;
(d) the funds and other assets of the Seller shall not be
commingled with those of any other corporation, entity or Person,
including, but not limited to, the parent or Affiliates of the Seller;
(e) the Seller shall not hold itself out as being liable for
the debts of any other party, including, but not limited to, the debts
of the parent or Affiliates of the Seller;
(f) the Seller shall not form, or cause to be formed, or
otherwise have, any subsidiaries;
(g) the Seller shall act solely in its corporate name and
through the duly authorized officers or agents in the conduct of its
business, and shall conduct its business so as not to mislead others as
to the identity of the entity with which they are concerned;
(h) at all times, except in the case of a temporary vacancy,
which shall promptly be filled, the Seller shall have on its board of
directors at least one director who qualifies as an "Independent
Director" as such term is defined in the Seller's Certificate of
Incorporation as originally filed with the Delaware Secretary of
State's office;
(i) the Seller shall maintain records and books of account of
the Seller and shall not commingle such records and books of account
with the records and books of account of any Person. The books of the
Seller may be kept (subject to any provision contained in the statutes)
inside or outside the State of New Jersey at such place or places as
may be designated from time to time by the board of directors of the
Seller;
(j) the board of directors of the Seller shall hold
appropriate meetings to authorize all of its corporate actions. Regular
meetings of the board of directors of the Seller shall be held not less
frequently than one (1) time per annum;
(k) meetings of the shareholders of the Seller shall be held
not less frequently than one time per annum;
(l) the Seller shall not, without the affirmative unanimous
vote of the whole board of directors of the Seller (including at least
one director referred to in clause (h) above), institute any
proceedings to adjudicate the Seller a bankrupt or insolvent, consent
to the institution of bankruptcy or insolvency proceedings against the
Seller, file a
60
<PAGE>
petition seeking or consenting to reorganization or relief under any
applicable federal or State law relating to bankruptcy, consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Seller or a substantial part of its
property or admit its inability to pay its debts generally as they
become due or authorize any of the foregoing to be done or taken on
behalf of the Seller;
(m) the Seller is not and shall not be involved in the
day-to-day or other management of its parent or any of its Affiliates;
(n) other than the purchase and sale or pledge of assets as
provided in this Agreement and related agreements with respect to this
transaction and other transactions relating to the purchase of auto
loan receivables and the issuance of rated debt or rated certificates
of participation, the Seller shall engage in no other transactions with
any of its Affiliates;
(o) the Seller shall maintain a separate business office and
telephone number from any of its Affiliates;
(p) the Seller's financial statements shall reflect its
separate legal existence from any of its Affiliates;
(q) the Seller shall use separate invoices, stationery and
checks from any of its Affiliates;
(r) the Seller shall not suffer or permit the credit or assets
of Asta Funding or any of its Affiliates to be held out as available
for the obligations of the Seller;
(s) the Seller shall enter into transactions with Asta Funding
or its affiliates only on commercially reasonable terms;
(t) the Seller shall not incur any indebtedness other than
trade payables and expense accruals incurred in its ordinary course of
business and any indebtedness contemplated by this Agreement; and
(u) the Seller shall not issue any Securities or incur or
issue any Obligations under any other pooling and servicing agreement,
purchase agreement or otherwise, unless such agreement contains an
express provision limiting recourse to the Seller to the assets
involved in the transaction to which such agreement relates.
Section 7.8 No Bankruptcy Petition. The Seller covenants and
agrees that prior to the date which is one year and one day after the payment in
full of all securities issued by the Seller or by a trust for which the Seller
was the depositor, which securities were rated by any nationally recognized
statistical rating organization, it will not institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law.
61
<PAGE>
ARTICLE VIII
THE SERVICER
Section 8.1 Representations of Servicer. The Servicer makes
the following representations to the Trustee on which the Trustee on behalf of
itself and the Certificateholders relies in accepting the Receivables in trust
and executing and authenticating the Certificates. The representations speak as
of the execution and delivery of this Agreement and shall survive the sale of
the Receivables to the Trustee in trust for the benefit of the
Certificateholders.
(a) Due Organization and Good Standing. The Servicer has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire, own and service the
Receivables.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) shall require such qualifications,
except where failure to qualify will not have a material adverse effect on the
Receivables or the business, prospects or financial condition of the Servicer.
(c) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and to carry out its terms; and
the execution, delivery and performance of this Agreement has been duly
authorized by the Servicer by all necessary corporate action.
(d) Valid and Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors' rights in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law), or
by public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Servicer, or any indenture, loan
agreement, mortgage or other agreement or other instrument to which the Servicer
is a party or by which it is bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any indenture, loan
agreement, mortgage or other agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the
62
<PAGE>
Servicer's knowledge, any order, rule or regulation applicable to the Servicer
of any court or of any federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Servicer or
its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best of the Servicer's knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its properties: (i)
asserting the invalidity of this Agreement or the Certificates, (ii) seeking to
prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any determination or
ruling that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability of, this
Agreement or the Certificates, or (iv) relating to the Servicer and which might
adversely affect the federal income tax attributes of the Certificates.
Section 8.2 Indemnities of Servicer.
(a) The Servicer shall be liable in accordance herewith only
to the extent of the obligations specifically undertaken by the Servicer
hereunder and the representations made by the Servicer herein.
(i) the Servicer shall defend, indemnify and hold harmless the
Trustee, the Custodian, the Backup Servicer and the Seller, including
officers, directors, employees and agents of each such entity, and the
Trust and the Certificateholders from and against any and all costs,
expenses, losses, damages, claims and liabilities, arising out of or
resulting from the use, ownership, or operation by the Servicer or any
Affiliate thereof of a Financed Vehicle;
(ii) The Servicer shall indemnify, defend and hold harmless
the Trustee, the Custodian, the Backup Servicer, and the Seller,
including officers, directors, employees and agents of each such
entity, and the Trust from and against any taxes that may at any time
be asserted against the Trustee, the Custodian, the Backup Servicer,
the Trust or the Seller with respect to the Trust including, without
limitation, any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes and costs and expenses in
defending against the same;
(iii) the Servicer shall indemnify, defend and hold harmless
the Trustee, the Backup Servicer and the Seller, including officers,
directors, employees and agents of each such entity, and the Trust and
the Certificateholders from and against any and all costs, expenses,
losses, claims, damages and liabilities to the extent that such cost,
expense, loss, claim, damage or liability was proximately caused by,
arose out of, or was imposed upon the Trustee, the Backup Servicer, the
Seller, the Trust or the Certificateholders through, the negligence,
willful misfeasance or bad faith of the Servicer in the performance of
its duties hereunder or by reason of reckless disregard of its
obligations and duties hereunder; and
63
<PAGE>
(iv) the Servicer shall indemnify, defend and hold harmless
the Trustee, the Backup Servicer and the Custodian, including their
officers, directors, employees and agents, from and against all costs,
expenses, losses, claims, damages and liabilities arising out of or
incurred in connection with the acceptance or performance of the trusts
and duties herein contained, or contained in the documents contemplated
hereby or thereby, if any, except to the extent that such cost,
expense, loss, claim, damage or liability: (A) shall be due to the
willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Trustee; (B) relates to any tax other than the taxes
with respect to which the Servicer shall be required to indemnify the
Trustee, the Backup Servicer or the Custodian; or (C) shall arise from
the Trustee's, the Backup Servicer's or the Custodian's breach of any
of its representations or warranties set forth in Section 10.12.
(b) For purposes of this Section, in the event of the
termination of the rights and obligations of a Servicer (or any successor
thereto pursuant to Section 8.3) as Servicer pursuant to Section 9.1, or a
resignation by such Servicer pursuant to this Agreement, such Servicer shall be
deemed to be the Servicer pending appointment of a successor Servicer pursuant
to Section 9.2. The provisions of this Section 8.2(b) shall in no way affect the
survival pursuant to Section 8.2(c) of the indemnification by the Servicer
provided by Section 8.2(a).
(c) Indemnification under this Section 8.2 shall survive the
termination of this Agreement and the resignation or removal of the Servicer and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts to the Servicer, without
interest.
(d) Except to the extent resulting from the Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties or by
reason of reckless disregard of its obligations or duties hereunder, the
Servicer shall not be liable to any party indemnified under this Agreement, for
any liability, cost, expense or financial loss which may arise solely as a
result of the economic performance of the Receivables or other assets.
Section 8.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer or Backup Servicer.
(a) Any Person (i) into which the Servicer may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
the Servicer shall be a party, or (iii) which may succeed to the properties and
assets of the Servicer substantially as a whole, shall execute an agreement of
assumption to perform every obligation of the Servicer hereunder, and whether or
not such assumption agreement is executed, shall be the successor to the
Servicer hereunder without further act on the part of any of the parties hereto;
provided, however, that (A) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default shall have happened and be continuing, (B) the
Servicer shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 8.3 and that all
conditions precedent provided for in this Agreement relating to such transaction
have been complied with, (C) the Servicer
64
<PAGE>
shall have delivered to the Trustee an Opinion of Counsel either (1) stating
that, in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables (other than any notations or filings with respect to the title
documents for the Financed Vehicles) and reciting the details of such filings,
or (2) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest and (D) nothing herein shall be
deemed to release the Servicer from any obligation. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement or assumption
and compliance with clauses (A), (B) or (C) above shall be conditions to the
consummation of the transactions referred to in clause (i), (ii) or (iii) above.
(b) Any Person (i) into which the Backup Servicer may be
merged or consolidated, (ii) which may result from any merger or consolidation
to which the Backup Servicer shall be a party, or (iii) which may succeed to the
properties and assets of the Backup Servicer substantially as a whole, shall
execute an agreement of assumption to perform every obligation of the Backup
Servicer hereunder, and whether or not such assumption agreement is executed,
shall be the successor to the Backup Servicer hereunder without further act on
the part of any of the parties hereto; provided, however, that nothing herein
shall be deemed to release the Backup Servicer from any obligation.
Section 8.4 Limitation on Liability of Servicer and Others.
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Trust or the
Certificateholders, except as provided hereunder, for any action taken or for
refraining from the taking of any action pursuant hereto; provided, however,
that this provision shall not protect the Servicer or any such person against
any liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Servicer and any director or officer or employee or agent of the Servicer
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder.
Except as specifically provided in this Agreement, the
Servicer shall not be under any obligation to appear in, prosecute or defend any
legal action that shall not be incidental to its duties to service the
Receivables in accordance with this Agreement, and that in its opinion may
involve it in any expense or liability.
Section 8.5 Servicer and Backup Servicer Not to Resign.
Subject to the provisions of Section 8.3 hereof, neither the Servicer nor the
Backup Servicer may resign from the obligations and duties hereby imposed on it
as Servicer or Backup Servicer, as the case may be, under this Agreement except
upon determination that by reason of a change in legal requirements the
performance of its duties under this Agreement would cause it to be in violation
of such legal requirements in a manner which would result in a material adverse
effect on the Servicer or the Backup Servicer, as the case may be. Notice of any
such determination permitting the resignation of the Servicer or the Backup
Servicer, as the case may be, shall be communicated to the Trustee at the
earliest practicable time (and, if such communication is not in writing, shall
be confirmed in writing at the earliest practicable time) and any such
65
<PAGE>
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to and satisfactory to the Trustee concurrently with or promptly after
such notice. No such resignation of the Servicer shall become effective until a
successor servicer shall have assumed the responsibilities and obligations of
Asta Funding in accordance with Section 9.2 hereof. No such resignation of the
Backup Servicer shall become effective until an entity acceptable to the Trustee
shall have assumed the responsibilities and obligations of the Backup Servicer;
provided, however, that if no such entity shall have assumed such
responsibilities and obligations of the Backup Servicer within 30 days of the
resignation of the Backup Servicer, the Backup Servicer may petition a court of
competent jurisdiction for the appointment of a successor to the Backup
Servicer.
ARTICLE IX
DEFAULT
Section 9.1 Events of Default. If any one of the following
events ("Events of Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit under this Agreement that shall continue unremedied for a period of
three (3) Business Days; or the certificate required by Section 4.9, the
statement required by Section 4.10 or the report required by Section 4.11 shall
not have been delivered within ten (10) days after the date such certificates or
statements or reports, as the case may be, are required to be delivered; or
(b) failure on the part of the Servicer, or the Seller, as the
case may be, duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer or the Seller (as the case may be) set
forth in the Certificates or in this Agreement, which failure shall continue
unremedied for a period of 30 days after the date on which written notice of
such failure requiring the same to be remedied, shall have been given (i) to the
Servicer or the Seller as the case may be, by the Trustee, or (ii) to the
Servicer or the Seller, as the case may be, and to the Trustee by the Majority
Certificateholders; or
(c) the filing of a petition against the Seller or Servicer in
any court or agency or supervisory authority having jurisdiction in the premises
for (i) the appointment of a conservator, receiver or liquidator for the
Servicer or the Seller (or, so long as Asta Funding is Servicer, Asta Funding or
any of its subsidiaries) in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for (ii) the winding up or
liquidation of its affairs, and the continuance of any such petition unstayed
and in effect for a period of 60 consecutive days; or
(d) the consent by the Servicer or the Seller (or, so long as
Asta Funding is Servicer, Asta Funding or any of its subsidiaries) to the
appointment of a conservator, trustee, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or the Seller (or, so long as Asta
Funding is Servicer, Asta Funding or any of its subsidiaries) of or relating to
substantially all
66
<PAGE>
of its property; or the Servicer or the Seller (or, so long as Asta Funding is
Servicer, Asta Funding or any of its subsidiaries) shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations; or
(e) So long as Asta Funding is Servicer, (i)(A) the occurrence
or existence of an event or condition in respect of Asta Funding under one or
more agreements or instruments relating to any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in respect
of borrowed money in an aggregate amount of not less than $500,000 (the
"Cross-Acceleration Amount") which has resulted in such obligation becoming due
and payable under such agreements or instruments, before it would otherwise have
been due and payable or (B) the failure by Asta Funding to make one or more
payments at maturity in an aggregate amount of not less than the
Cross-Acceleration Amount under such agreements or instruments; or (ii) one or
more judgments are entered against Asta Funding within any twelve month period
involving in the aggregate a liability (to the extent not paid or fully covered
by insurance) of $100,000 or more at any one time and either (A) enforcement
proceedings have been commenced and are continuing by any party entitled to
enforce such judgment or (B) there is a period of ten (10) consecutive days
during which a stay of enforcement of such judgment or judgments are not bonded
or discharged or such judgment or judgments are not in effect; or
(f) the cumulative Net Losses in the current and all prior
Collection Periods exceeds 15.00% of the Original Pool Balance; or
(g) the occurrence of a 60 Day + Delinquency Rate in any
Collection Period exceeding 6.00% of the Pool Balance during such Collection
Period;
then, and in each and every case, so long as an Event of Default shall not have
been remedied, then either the Trustee or the Majority Certificateholders, by
notice then given in writing to the Servicer, the Trustee, and the Rating Agency
may terminate all of the rights and obligations of the Servicer hereunder. The
Servicer shall be entitled to its pro rata share of the Servicing Fee for the
number of days in the Collection Period prior to the effective date of its
termination. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Certificates or the Receivables or otherwise, shall, without further action,
pass to and be vested in (i) the Backup Servicer or (ii) such successor Servicer
as may be appointed under Section 9.2; provided, however, that the successor
Servicer shall have no liability with respect to any obligation which was
required to be performed by the predecessor Servicer prior to the date the
successor Servicer becomes the Servicer or any claim of a third party based on
any alleged action or inaction of the predecessor Servicer; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise.
67
<PAGE>
The predecessor Servicer shall cooperate with the successor
Servicer (which shall initially be the Backup Servicer) and the Trustee in
effecting the termination of the responsibilities and rights of the predecessor
Servicer hereunder, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held or
should have been held by the predecessor Servicer for deposit, or shall
thereafter be received with respect to a Receivable and the delivery to the
successor Servicer of all files and records concerning the Receivables and a
computer tape or diskette in readable form containing all information necessary
to enable the successor Servicer to service the Receivables and the other
property of the Trust. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Receivable Files to the
successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section 9.1 shall be paid by the predecessor Servicer
(unless such predecessor Servicer was previously a Backup Servicer) upon
presentation of reasonable documentation of such costs and expenses. In
addition, any successor Servicer shall be entitled to payment from the immediate
predecessor Servicer for reasonable transition expenses incurred in connection
with acting as successor Servicer, and to the extent not so paid, such payment
shall be made pursuant to Section 5.5(c)(i) hereof. Upon receipt of notice of
the occurrence of an Event of Default, the Trustee shall give notice thereof to
the Rating Agency. The predecessor Servicer shall grant the Trustee and the
Backup Servicer reasonable access to the predecessor Servicer's premises at the
predecessor Servicer's expense. If requested by the Backup Servicer or successor
Servicer, the predecessor Servicer shall terminate any arrangements relating to
the Lock-Box and the Lock-Box Account with the Lock-Box Bank and direct the
Obligors to make all payments under the Receivables directly to the Successor
Servicer at the predecessor Servicer's expense (in which event the successor
Servicer shall process such payments directly or through a Lock-Box and a
Lock-Box Account with a Lock-Box Bank).
Section 9.2 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination
pursuant to Section 9.1 or the Servicer's resignation in accordance with the
terms hereof, the predecessor Servicer shall continue to perform its functions
as Servicer hereunder, in the case of termination, only until the date (the
"Assumption Date") which is specified in such termination notice or, if no such
date is specified in a notice of termination, until receipt of such notice and,
in the case of expiration and non-renewal of the term of the Servicer upon the
expiration of such term, and in the case of resignation, until the later of (A)
the date 45 days from the delivery to the Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (B) the date upon which the predecessor Servicer
shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of termination of
the Servicer, the Backup Servicer shall assume the obligations of Servicer
hereunder on the Assumption Date, unless the Backup Servicer is determined to be
incapable of performing such duties as a matter of law in accordance with the
provisions of Section 8.5 hereof. To the extent that any Trustee Officer has
actual notice of the termination of the Servicer, the Trustee shall reasonably
endeavor to give the Backup Servicer notice of the Servicer's termination at
least two weeks prior to the Assumption Date; provided, however, that the
failure of the Trustee to give the Backup Servicer such notice shall not
otherwise relieve the Backup Servicer of its obligation to assume the duties of
the Servicer
68
<PAGE>
hereunder on the Assumption Date. Notwithstanding the Backup Servicer's
assumption of, and its agreement to perform and observe all duties,
responsibilities and obligations of Asta Funding as Servicer under this
Agreement arising on and after the Assumption Date, the Backup Servicer shall
not be deemed to have assumed or to become liable for, or otherwise have any
liability for, any duties, responsibilities, obligations or liabilities of Asta
Funding or any predecessor Servicer arising on or before the Assumption Date,
whether provided for by the terms of this Agreement, arising by operation of law
or otherwise, including, without limitation, any liability for any duties,
responsibilities, obligations or liabilities of Asta Funding or any predecessor
Servicer arising on or before the Assumption Date under Section 4.7 or 8.2 of
this Agreement, regardless of when the liability, duty, responsibility or
obligation of Asta Funding or any predecessor Servicer arose, whether provided
by the terms of this Agreement, arising by operation of law or otherwise. In
addition, if the Backup Servicer shall be legally unable to act as Servicer and
an Event of Default shall have occurred and be continuing, the Backup Servicer,
the Trustee or the Majority Certificateholders may petition a court of competent
jurisdiction to appoint any successor to the Servicer. Pending appointment
pursuant to the preceding sentence, the Backup Servicer shall act as successor
Servicer unless it is legally unable to do so, in which event the predecessor
Servicer shall continue to act as Servicer until a successor has been appointed
and accepted such appointment. In the event that a successor Servicer has not
been appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section 9.2, then the Trustee shall appoint, or
petition a court of competent jurisdiction to appoint, any established
institution having a net worth of not less than $50,000,000 and whose regular
business shall include the servicing of automotive receivables, as the successor
to the Servicer hereunder.
(b) Upon appointment, the successor Servicer shall be the
successor in all respects to the predecessor Servicer and, except with respect
to the limitations of the Backup Servicer's obligations under Section 9.2(a),
shall be subject to all the responsibilities, duties and liabilities arising
thereafter relating thereto placed on the predecessor Servicer, and shall be
entitled to the Servicing Fee and all of the rights granted to the predecessor
Servicer by the terms and provisions of this Agreement.
Section 9.3 Notification to Certificateholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article IX, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to the Rating Agency.
Section 9.4 Action Upon Certain Failures of the Servicer. In
the event that the Trustee shall have knowledge of any failure of the Servicer
specified in Section 9.1 that would give rise to a right of termination under
such Section upon the Servicer's failure to remedy the same after notice, the
Trustee shall give notice thereof to the Servicer, the Certificateholders and
the Rating Agency. For all purposes of this Agreement, in the absence of actual
knowledge by a Trustee Officer, the Trustee shall not be deemed to have
knowledge of any failure of the Servicer as specified in Section 9.1 unless
notified thereof in writing by the Servicer or by a Certificateholder. The
Trustee shall be under no duty or obligation to investigate or inquire as to any
potential default of the Servicer specified in Section 9.1.
69
<PAGE>
Section 9.5 Waiver of Past Defaults. The Majority
Certificateholders (or, in the case of a default referred to in Section 9.1(a),
the Holders of Certificates evidencing 100% of the Voting Interests thereof)
may, on behalf of all Holders of Certificates, waive any default by the Servicer
or the Seller in their performance of their respective obligations hereunder and
its consequences. Upon any such waiver of a past default, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
ARTICLE X
THE TRUSTEE
Section 10.1 Duties of Trustee. The Trustee, both prior to the
occurrence of an Event of Default and after an Event of Default shall have been
cured or waived, shall undertake to perform such duties and only such duties as
are specifically set forth in this Agreement. Notwithstanding any other
provision of this Agreement, if an Event of Default shall have occurred and
shall not have been cured or waived, the Trustee shall exercise such of the
rights and powers vested in it hereby and shall use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs. The Trustee shall
provide written notice to the Rating Agency immediately upon the occurrence of
any Event of Default, or event which at the expiration of a grace period will
become an Event of Default, in either case, solely to the extent that a Trustee
Officer has actual knowledge of such event (there being no duty of investigation
regarding the existence of such events). The Trustee must promptly notify the
Certificateholders of any Rating Agency action of which a Trust Officer has
actual knowledge.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement; provided, however, that the
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer or the Seller hereunder except to the extent set forth
in Section 4.14(c)(ii). If any such instrument is found not to conform in any
material respect to the requirements of this Agreement, the Trustee shall notify
the Certificateholders of such instrument in the event that the Trustee, after
so requesting, does not receive a satisfactorily corrected instrument.
The Trustee shall take and maintain custody of the schedule of
Receivables included as Schedule A hereto and shall retain copies of all
Servicer's Certificates prepared hereunder.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own bad faith; provided, however, that:
70
<PAGE>
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations
as shall be specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely on the truth of the statements and
the correctness of the opinions expressed upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) the Trustee shall not be liable for an error of judgment
made in good faith by a Trustee Officer, unless it shall be proved that
the Trustee shall have been negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken in good faith in
accordance with this Agreement or at the direction of the Holders of
Certificates evidencing not less than 50% of the Voting Interests
thereof relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement;
(iv) the Trustee shall not be charged with knowledge of any
Event of Default, unless a Trustee Officer assigned to the Trustee's
Corporate Trust Office receives written notice of such Event of Default
from the Servicer or the Seller, as the case may be, or the Holders of
Certificates evidencing not less than 10% of the Voting Interests
thereof (such notice shall constitute actual knowledge of an Event of
Default by the Trustee). In the absence of receipt of such notice, the
Trustee may conclusively assume that there is no Event of Default;
(v) without limiting the generality of this Section 10.1 or
Section 10.3, the Trustee shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement
referred to therein or any financing statement or continuation
statement evidencing a security interest in the Receivables or the
Financed Vehicles, or to see to the maintenance of any such recording
or filing or depositing or to any rerecording, refiling or redepositing
of any thereof, (B) to enforce any Insurance Policy or to effect or
maintain any such insurance, (C) to see to the payment or discharge of
any tax, assessment, or other governmental charge or any Lien or
encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust, (D) except to the extent set forth in
Section 4.14(c)(i) hereof, to confirm or verify the contents of any
reports or certificates of the Servicer delivered to the Trustee
pursuant hereto believed by the Trustee to be genuine, to conform to
the requirements hereof as to form and to have been signed or presented
by the proper party or parties or (E) to inspect the Financed Vehicles
at any time or ascertain or inquire as to the performance or observance
of any of the Seller's or the Servicer's representations warranties or
covenants or the Servicer's duties and obligations as Servicer; and
71
<PAGE>
(vi) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there
shall be reasonable ground for believing that the repayment of such funds or
indemnity reasonably satisfactory to it against such risk or liability shall not
be reasonably assured to it, and none of the provisions contained herein shall
in any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer hereunder except to the
extent set forth in Section 4.14(c) hereof.
Section 10.2 Trustee's Certificate. On or as soon as
practicable after each Distribution Date on which Receivables shall be assigned
to Asta Funding or the Servicer, as applicable, pursuant to this Agreement,
notices received pursuant to this Agreement and the information contained in the
Servicer's Certificate for the related Collection Period, identifying the
Receivables purchased by Asta Funding pursuant to Section 3.5 or purchased by
the Servicer pursuant to Section 4.7 or 11.2, the Trustee shall execute a
Trustee's Certificate (in the form of Exhibit C-1 or Exhibit C-2 attached
hereto, as applicable), and shall deliver such Trustee's Certificate,
accompanied by a copy of the Servicer's Certificate for such Collection Period
to Asta Funding or the Servicer, as the case may be. The Trustee's Certificate
submitted with respect to such Distribution Date shall operate, as of such
Distribution Date, as an assignment, without recourse, representation or
warranty, to Asta Funding or the Servicer, as the case may be, of all the
Trustee's right, title and interest in and to such repurchased Receivable, and
all security and documents relating thereto, such assignment being an assignment
outright and not for security.
Section 10.3 Certain Matters Affecting Trustee. Except as
otherwise provided in Section 10.1:
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's Certificate,
Servicer's Certificate, certificate of auditors, or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
(b) The Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel.
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct, or defend any litigation under this Agreement or in relation to this
Agreement, at the request, order or direction of any of the Certificateholders
pursuant to the provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee security or indemnity reasonably satisfactory
to it against the
72
<PAGE>
costs, expenses, and liabilities that may be incurred therein or thereby;
nothing contained in this Agreement, however, shall relieve the Trustee of the
obligations, upon the occurrence of an Event of Default (that shall not have
been cured or waived), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(d) Prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, or other paper or document,
unless requested in writing to do so by the Holders of Certificates evidencing
not less than 25% of the Voting Interests thereof; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses, or
liabilities likely to be incurred by it in the making of such investigation
shall be, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the Trustee may
require indemnity reasonably satisfactory to it against such cost, expense, or
liability as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Person making such request or, if paid by the
Trustee, shall be reimbursed by the Person making such request upon demand.
Nothing in this clause (b) shall affect the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors.
(e) The Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either directly or by or
through agents or attorneys or a custodian. The Trustee shall not be responsible
for any misconduct or negligence of any such agent or custodian appointed with
due care by it hereunder or of the Servicer in its capacity as Servicer.
(f) Except as may be required by Section 10.1, subsequent to
the sale of the Receivables by the Seller to the Trust, the Trustee shall have
no duty of independent inquiry and the Trustee may rely upon the representations
and warranties and covenants of the Seller and the Servicer contained in this
Agreement with respect to the Receivables and the Receivable Files.
(g) The Trustee may conclusively rely, as to factual matters
relating to the Seller or the Servicer, on an Officer's Certificate of the
Seller or Servicer, respectively.
(h) The Trustee shall not be required to take any action or
refrain from taking any action under this Agreement, or any related documents
referred to herein, nor shall any provision of this Agreement, or any such
related document be deemed to impose a duty on the Trustee to take action, if
the Trustee shall have been advised by counsel that such action is contrary to
(i) the terms of this Agreement, (ii) any such related document or (iii) the
law.
(i) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act.
73
<PAGE>
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust created hereby or the powers
granted hereunder.
Section 10.4 Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the certificate of authentication on the Certificates) shall be taken as the
statements of the Seller or the Servicer, as the case may be, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or related document. The Trustee shall at no time have any
responsibility or liability for or with respect to any directions by the
Servicer to the Lock-Box Bank, the legality, validity, and enforceability of any
security interest in any Financed Vehicle or any Receivable, or the perfection
and priority of such a security interest or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust or
its ability to generate the payments to be distributed to Certificateholders
hereunder, including, without limitation: the existence, condition, location,
and ownership of any Financed Vehicle; the existence and enforceability of any
physical damage insurance thereon; the existence, contents and completeness of
any Receivable or any Receivable File or any computer or other record thereof;
the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the performance or enforcement of any Receivable; the
compliance by the Seller or the Servicer with any warranty or representation
made hereunder or in any related document and the accuracy of any such warranty
or representation prior to the Trustee's receipt of notice or other discovery of
any noncompliance therewith or any breach thereof; any investment of monies by
or at the direction of the Servicer or any loss resulting therefrom (it being
understood that the Trustee shall remain responsible for any Trust Property that
it may hold); the acts or omissions of the Seller, the Servicer, or any Obligor;
any action of the Servicer taken in the name of the Trustee; or any action by
the Trustee taken at the instruction of the Servicer; provided, however, that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties hereunder. Except with respect to a claim based on the failure of the
Trustee to perform its duties hereunder or based on the Trustee's negligence or
willful misconduct, no recourse shall be had for any claim based on any
provision of this Agreement, the Certificates, or any Receivable or assignment
thereof against the Trustee in its individual capacity, the Trustee shall not
have any personal obligation, liability, or duty whatsoever to any
Certificateholder or any other Person with respect to any such claim, and any
such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided in this Agreement. The Trustee shall not be
accountable for the use or application by the Seller of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Servicer in respect of the Receivables. The Seller hereby
certifies to the Trustee that the Rating Agency rating the Certificates is Duff
& Phelps Credit Rating Co. and that its existing address is as set forth in
Section 12.5. The Trustee may rely on the accuracy of such certification until
it receives from the Seller an Officer's Certificate superseding such
certification. It is expressly understood and agreed by the parties hereto that
(a) this Agreement and the Certificates are executed and delivered by The Chase
Manhattan Bank, not individually or personally but solely as Trustee of the Asta
Auto Trust 1997-1, in the exercise of the powers and authority conferred and
vested in it, (b) the representations, undertakings and agreements herein made
on the part of the Trust are made and intended not as personal representations,
undertakings and agreements by The
74
<PAGE>
Chase Manhattan Bank, but are made and intended for the purpose of binding only
the Trust, and (c) under no circumstances shall The Chase Manhattan Bank be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representations,
warranty or covenant made or undertaken by the Trust under this Agreement and
the Certificates.
Section 10.5 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Seller and the Servicer in banking transactions with the
same rights as it would have if it were not Trustee.
Section 10.6 Indemnity of Trustee. The Servicer shall
indemnify the Trustee, including its officers, directors, employees and agents,
for, and hold it harmless against any loss, liability, or expense incurred
without willful misfeasance, negligence, or bad faith on its part, arising out
of or in connection with the acceptance or administration of the Trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. Additionally the Seller, pursuant to Section 7.2, shall
indemnify the Trustee with respect to certain matters, the Servicer, pursuant to
Section 8.2, shall indemnify the Trustee with respect to certain matters, and
Certificateholders, pursuant to Section 10.3 shall, upon the circumstances
therein set forth, indemnify the Trustee under certain circumstances. The
provisions of this Section 10.6 shall survive the termination of this Agreement
and the resignation or removal of the Servicer.
Section 10.7 Eligibility Requirements for Trustee. The Trustee
or its parent shall at all times be organized and doing business under the laws
of the United States of America or any State thereof; authorized under such laws
to exercise corporate trust powers; having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or State
authorities; and having a rating, both with respect to long-term and short-term
unsecured obligations, of not less than investment grade by the Rating Agency.
If such corporation shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 10.7, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 10.7, the Trustee shall resign immediately in the
manner and with the effect specified in Section 10.8.
Section 10.8 Resignation or Removal of Trustee. The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer, the Seller and each
Certificateholder. Upon receiving such notice of resignation, with the prior
written consent of the Rating Agency and the Majority Certificateholders the
Servicer shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and have accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
75
<PAGE>
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.7 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Servicer
may remove the Trustee. If the Servicer shall remove the Trustee under the
authority of the immediately preceding sentence, the Servicer shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Trustee so removed and one
copy to the successor Trustee, and pay all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 10.8 shall
not become effective until acceptance of appointment by the successor Trustee
pursuant to Section 10.9 and payment of all fees and expenses owed to the
outgoing Trustee. The Servicer shall provide notice of such resignation or
removal of the Trustee to the Rating Agency then rating the Certificates.
Section 10.9 Successor Trustee. Any successor Trustee
appointed pursuant to Section 10.8 shall execute, acknowledge and deliver to the
Servicer, the Backup Servicer and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee. The predecessor Trustee shall
upon payment of its fees and expenses deliver to the successor Trustee all
documents and statements and monies held by it hereunder; and the Servicer and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept appointment as provided in
this Section 10.9 unless at the time of such acceptance such successor Trustee
shall be eligible pursuant to Section 10.7.
Upon acceptance of appointment by a successor Trustee pursuant
to this Section 10.9, the Servicer shall mail notice of the successor of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register and to the Rating Agency. If the Servicer shall fail to
mail such notice within ten (10) days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
Section 10.10 Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 10.7, without the execution or
filing of any instrument or any
76
<PAGE>
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 10.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Vehicle may at the time be located, the Servicer,
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 10.11,
such powers, duties, obligations, rights and trusts as the Servicer and the
Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.7, except as to the
rating requirements set forth therein, and no notice of a successor trustee
pursuant to Section 10.9 and no notice to Certificateholders of the appointment
of any co-trustee or separate trustee shall be required pursuant to Section
10.9. Texas Commerce Bank National Association has been appointed as Co-Trustee,
pursuant to this Section 10.11, as of the Closing Date with respect to any
Receivables originated in the State of Pennsylvania.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised or performed by
the Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(c) The Servicer and the Trustee acting jointly may, at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the other then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to
77
<PAGE>
this Agreement and the conditions of this Article X. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Each such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 10.12 Representations and Warranties of Trustee. The
Trustee shall make the following representations and warranties on which the
Seller and Certificateholders shall rely:
(a) The Trustee is a New York banking corporation duly
organized, validly existing and in good standing under the laws of its place of
incorporation.
(b) The Trustee has full corporate power, authority and legal
right to execute, deliver and perform this Agreement and shall have taken all
necessary action to authorize the execution, delivery and performance by it of
this Agreement.
(c) This Agreement shall have been duly executed and delivered
by the Trustee and shall be enforceable against the Trustee in accordance with
its terms.
Section 10.13 No Bankruptcy Petition. The Trustee covenants
and agrees that prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for which
the Seller was the depositor it will not institute against, or join any other
Person in instituting against, the Seller or the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law.
Section 10.14 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as Trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
78
<PAGE>
Section 10.15 Trustee Not Liable for Losses. The Trustee shall
not be liable for the selection of, or for losses incurred in respect, of
Eligible Investments provided that the Trustee complies with the written
instructions provided by the Servicer pursuant to Section 5.1.
Section 10.16 Application of Article X. In the event that the
entity serving as Trustee hereunder is also serving as Custodian hereunder, the
rights and protection afforded to the Trustee pursuant to this Article X shall
also be afforded to such Custodian.
ARTICLE XI
TERMINATION
Section 11.1 Termination of the Trust. The respective
obligations and responsibilities of the Seller, the Servicer, the Trustee and
the Trust created hereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to this Agreement and the
disposition of all property held as part of the Trust; provided, however, that
in no event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States of America to the Court of St.
James, living on the date of this Agreement. The Servicer shall promptly notify
the Trustee of any prospective termination pursuant to this Section 11.1.
Based upon written notice from the Servicer to the Trustee,
notice of any termination, specifying the Distribution Date upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 15th day and
not later than the 25th day of the month next preceding the specified
Distribution Date stating (A) the Distribution Date upon which final payment of
the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final payment, and (C) if applicable, that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the Trustee
therein specified. The Trustee shall give such notice to the Certificate
Registrar (if other than the Trustee) at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.5.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six (6) months after the
date specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one (1) year after the second notice all the Certificates
shall not have been surrendered for cancellation, the Trustee shall take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain
79
<PAGE>
subject to this Agreement or if none from Asta Funding. Any funds remaining in
the Trust after exhaustion of such remedies shall be distributed by the Trustee
to the Seller.
Section 11.2 Optional Purchase of all Receivables. On the last
day of any Collection Period as of which the Pool Balance as a percentage of the
Original Pool Balance shall be less than or equal to the Optional Purchase
Percentage, the Servicer shall have the option to repurchase the Receivables. To
effect such purchase the Servicer shall (a) give written notice to the Trustee
and the Certificateholders no later than 30 days prior to the Distribution Date
on which such purchase is to be effected and (b) on or before such Distribution
Date, deposit into the Collection Account pursuant to Section 5.4 an amount
equal to the sum of (i) the aggregate Purchase Amount for the Receivables plus
(ii) the market value of any other property held by the Trust. After payment of
the amount specified in this Section 11.2, the Seller shall succeed to all
interests in and to the Trust.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Amendment. This Agreement may be amended by the
Seller, the Servicer and the Trustee without the consent of any of the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising hereunder which shall not be inconsistent with the
provisions hereof; provided, however, 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 any Certificateholder; provided, further, that
the written consent of the Backup Servicer to any such amendment hereunder shall
only be required if such amendment materially changes the duties,
responsibilities, liabilities or compensation or priority of compensation of the
Backup Servicer or Servicer and in no event shall such written consent be
unreasonably withheld.
This Agreement may also be amended from time to time by the
Seller, the Servicer and the Trustee with the consent of the Holders of each
Class of Certificates materially affected thereby (which consent of any Holder
of a Certificate given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder and
on all future Holders of such Certificate and of any Certificate issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Certificate) evidencing not less than
51% of the Voting Interests of all the affected Certificates for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Certificate without the consent of each
Certificateholder affected thereby, (b) reduce the aforesaid percentage of the
Voting Interests of the Certificates required to consent to any such amendment,
without the consent of the Holders of all Certificates of the applicable Class
then outstanding or (c) result in a downgrade or withdrawal of the then-current
rating of any Class of Certificates
80
<PAGE>
by the Rating Agency without the consent of the Holders of all Certificates of
the applicable Class then outstanding; provided, further, that the written
consent of the Backup Servicer to any such amendment hereunder shall only be
required if such amendment materially changes the duties, responsibilities,
liabilities or compensation of the Backup Servicer or Servicer and in no event
shall such written consent be unreasonably withheld. This Agreement may, upon
the Backup Servicer becoming Servicer, also be amended from time to time by the
Seller, the Servicer and the Trustee with the unanimous consent of the Holders
of each Class of Certificates to provide for an increase in the Servicing Fee.
Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Rating Agency.
It shall not be necessary for the consent of
Certificateholders pursuant to this Section 12.1 to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and the Opinion of Counsel referred to in Section 12.2(i)(i). The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's own rights, duties or immunities hereunder or otherwise.
Section 12.2 Protection of Title to Trust.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such continuation statements, all
in such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Certificateholders and the Trustee in
the Receivables and in the proceeds thereof (other than any notations or filings
with respect to the title documents for the Financed Vehicles). The Seller shall
deliver (or cause to be delivered) to the Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor Asta Funding shall change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-402(7) of
the UCC, unless it shall have given the Trustee at least five (5) days prior
written notice thereof, shall have promptly filed appropriate amendments to all
previously filed financing statements or continuation statements and shall have
delivered an Opinion of Counsel (i) stating that, in the opinion of such
counsel, all amendments to all previously filed financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee in the Receivables, and
81
<PAGE>
reciting the details of such filings, or (ii) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interest.
(c) Each of the Seller and Asta Funding shall have an
obligation to give the Trustee 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, shall promptly file any such amendment and shall deliver an
Opinion of Counsel (i) stating that, in the opinion of such counsel, all
amendments to all previously filed financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the Trustee in the Receivables, and reciting the details
of such filings, or (ii) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest. The Servicer
shall at all times maintain each office from which it shall service Receivables,
and its principal executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Certificate
Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale hereunder of the Receivables to the Trust, the
Servicer's master computer records (including any back-up archives) that refer
to a Receivable shall indicate clearly the interest of the particular grantor
trust or agent as the case may be, in such Receivable and that such Receivable
is owned by the Trust. Indication of the Trust's ownership of a Receivable shall
be deleted from or modified on the Servicer's computer systems when, and only
when, such Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender, or other
transferee, the Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or print-outs (including any restored
from back-up archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Trustee.
(g) The Servicer shall permit the Trustee and its agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request the Servicer shall furnish to the Trustee,
within (5) five Business Days, a list of all Receivables (by contract number and
name of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and
82
<PAGE>
to each of the Servicer's Certificates furnished before such request indicating
removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee:
(i) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel either
(A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the
Trust in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given,
or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest; and
(ii) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three (3)
months after the Cutoff Date, an Opinion of Counsel, dated as of a date
during such 90-day period either (A) stating that, in the opinion of
such counsel, all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and
protect the interest of the Trust in the Receivables (other than any
notations or filings with respect to the title documents for the
Financed Vehicles), and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given
or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(i) or
(i)(ii) above shall specify any action necessary (as of the date of such
opinion) to be taken in the following year to preserve and protect such
interest.
(j) For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
(k) In the event any of the events described in Section
9.1(iii) or (iv) shall have occurred, or in the event Asta Funding shall have
been removed or replaced as Servicer for any reason, then Asta Funding or the
Servicer shall immediately cause each certificate of title for a Financed
Vehicle to be marked to reflect the security interest of the Trust in the
Financed Vehicle, and Asta Funding hereby appoints the Trustee its
attorney-in-fact to effect such marking, and the Trustee hereby accepts such
appointment. The appointment of the Trustee hereunder shall not operate to
relieve Asta Funding and/or the Servicer of its obligations to mark each
Certificate of Title under this Section 12.2(k). Asta Funding shall be liable
for all costs, fees and expenses incurred under this Section 12.2(k).
Section 12.3 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to
83
<PAGE>
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as
specifically provided herein, including in Section 12.1) or in any manner
otherwise control the operation and management of the Trust, or the obligations
of the parties to this Agreement, nor shall anything in this Agreement set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken pursuant to any provision of this
Agreement.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, and unless also the
Holders of Certificates evidencing not less than 25% of the Voting Interests
thereof shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such indemnity as it may reasonably require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee, for 30 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and during such 30-day period no request or waiver inconsistent with
such written request has been given to the Trustee pursuant to this Section 12.3
or Section 9.4; no one or more Holders of Certificates shall have any right in
any manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the rights of any
other such Holder of Certificates, or to obtain or seek to obtain priority over
or preference to any other such Holder, or to enforce any right, under this
Agreement except in the manner provided herein and for the equal, ratable and
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 12.3, each Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 12.4 Governing 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.
Section 12.5 Notices. All demands, notices, and communications
upon or to the Seller, the Servicer, the Trustee or the Rating Agency hereunder
shall be in writing, and delivered (a) personally, (b) by certified mail, return
receipt requested, (c) by Federal Express or similar overnight courier service
or (d) by telecopy, and shall be deemed to have been duly given upon receipt (a)
in the case of the Seller, to the agent for service as specified herein, at the
following address: Asta Auto Receivables Company, 210 Sylvan Avenue, Englewood
Cliffs, New Jersey 06830 (Telecopy: (201) 569-6198), or at such other address as
shall be designated by the Seller in a written notice to the Trustee, (b) in the
case of the Servicer, to the Secretary, Asta Funding, Inc., 210 Sylvan Avenue,
Englewood Cliffs, New Jersey 06830 (Telecopy: (201)
84
<PAGE>
569-6198), (c) in the case of the Trustee, at 450 West 33rd Street, 15th Floor,
New York, New York 10001 (Telecopy: (212) 946-3240) Attention: Structured
Finance Services, (d) in the case of the Rating Agency at the following address:
Duff & Phelps Credit Rating Co., 55 East Monroe Street, Chicago, Illinois 60603,
Attention: Asset-Backed Surveillance; (e) in the case of Greenwich Capital
Markets, Inc., at the following address: 600 Steamboat Road, Greenwich,
Connecticut 06830, Attention: Structured Finance Department; and (f) in the case
of the Backup Servicer, 9330 LBJ Freeway, Suite 500, Dallas, Texas 75243-3495.
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder shall receive such notice.
Section 12.6 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 or of the
Certificates or the rights of the Holders thereof.
Section 12.7 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 7.3 and 8.3 and as
provided in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Trustee and the Holders of Certificates
evidencing not less than 66% of the Voting Interests thereof.
Section 12.8 Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever.
Section 12.9 Nonpetition Covenant.
(a) Neither the Seller nor the Servicer shall petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Trust under any federal
or State bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Trust.
(b) The Servicer shall not, nor cause the Seller to, petition
or otherwise invoke the process of commencing or sustaining a case against the
Seller under any federal or State bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
Section 12.10 Third Party Beneficiaries. Except as otherwise
specifically provided herein with respect to Certificateholders, the parties to
this Agreement hereby manifest
85
<PAGE>
their intent that no third party shall be deemed a third party beneficiary of
this Agreement, and specifically that the Obligors are not third party
beneficiaries of this Agreement.
Section 12.11 Agent for Service. The agent for service for
the Seller shall be The Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware 19801.
Section 12.12 Tax Treatment. The Seller and the Trustee on
behalf of the Trust, by entering into this Agreement, and the Holders, by
acquiring any Certificate, express their intention that (i) the Trust be treated
as a partnership for federal income tax purposes, State and local income and
franchise tax purposes and for purposes of any other taxes that are imposed
upon, measured by or based upon gross or net income, and (ii) the Certificates
and the Excess Interest be treated as the interests in such partnership. For
such purposes and unless otherwise required by appropriate taxing authorities,
the Seller, the Trustee and the Holders hereby agree: (i) to treat the
Certificates and the Excess Interest as the interests in such partnership and to
treat any distributions with respect thereto from the Trust as partnership
distributions, (ii) that the Holders of the Certificates will be treated as
limited partners of such partnership and that the Seller, as the holder of the
Excess Interest, will be treated as the general partner, (iii) with respect to
each Holder and the Seller, to include in income its respective share of income,
gain, loss and deduction generated by the Trust Property and related property as
determined under partnership tax accounting rules, and (iv) that the net income
allocated to the Holders of the Certificates will be equal to the interest rate
on their respective Certificates and that all other net income of the Trust will
be allocated to the Seller as holder of the Excess Interest. The Parties agree
that the Trust shall file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Trust as a partnership and the characterization of the Certificates as
partnership interests therein for such tax purposes and shall make no election
to be treated as a corporation for such tax purposes.
Section 12.13 Seller's Partnership Interest. The Seller shall
at all times retain its Seller Partnership Interest and may not transfer,
assign, pledge, participate, alienate or hypothecate any interest in the same at
any time. Any attempted transfer, assignment, pledge, participation, alienation
or hypothecation of any interest in the Seller Partnership Interest by the
Seller shall be void. Any Certificate issued to the Seller shall contain a
legend to such effect. In addition, the Seller shall at all times remain a party
to this Agreement and shall not withdraw from or terminate this Agreement.
Section 12.14 [Reserved].
Section 12.15 Withholding. The Trustee on behalf of the Trust
shall comply with all requirements of the Code and the Treasury regulations and
applicable state and local law with respect to the withholding from any
distributions made by it to any Holder of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith. In that regard, the Trustee shall withhold from amounts
otherwise distributable to a Certificateholder at the highest potentially
applicable rate if such Certificateholder fails to provide a duly executed
Certificate of Non-Foreign Status in the form attached hereto as Exhibit J,
which withholding shall be computed on the basis of such Certificateholder's
allocable net income or, if it produces a larger withholding amount, its gross
86
<PAGE>
income, and such withheld amounts shall be deemed paid to the affected
Certificateholder for all purposes of this Agreement.
Section 12.16 Right to Direct. The Majority Certificateholders
shall have the right to direct and manage the trust, including the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, the Servicer or the Backup Servicer, or exercising any
trust or power conferred on the Trustee, the Servicer or the Backup Servicer;
provided, however, that the Trustee, the Servicer and the Backup Servicer shall
have the right to decline to follow any such direction if (i) the Trustee, the
Servicer or the Backup Servicer, as advised by counsel, determines that the
action so directed may not lawfully be taken, (ii) if in good faith shall, by a
Trustee Officer, Servicing Officer or Backup Servicer, determine that the
proceedings so directed would be illegal, involve it in personal liability,
unduly prejudicial to the rights of Certificateholders not parties to such
direction or would not be possible to be performed by such entity without undue
burden or expense; and provided further that nothing in this Agreement shall
impair the right to take any action deemed proper by the Trustee, the Servicer
or the Backup Servicer and which is not inconsistent with such management and
direction by the Majority Certificateholders.
87
<PAGE>
IN WITNESS WHEREOF, the Seller, the Servicer, the Trustee, the
Custodian and the Backup Servicer have caused this Pooling and Servicing
Agreement to be duly executed by their authorized officers as of the date first
above written.
ASTA AUTO RECEIVABLES COMPANY,
as the Seller,
By:/s/ Gary Stern
------------------------------
Name: Gary Stern
Title: President
ASTA FUNDING, INC.,
as the Servicer
By:/s/ Mitchell Herman
------------------------------
Name: Mitchell Herman
Title: CFO
CSC LOGIC/MSA, L.L.P.,
as the Backup Servicer
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as the Trustee and Custodian
By:
------------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the Seller, the Servicer, the Trustee, the
Custodian and the Backup Servicer have caused this Pooling and Servicing
Agreement to be duly executed by their authorized officers as of the date first
above written.
ASTA AUTO RECEIVABLES COMPANY,
as the Seller,
By:
-------------------------------
Name:
Title:
ASTA FUNDING, INC.,
as the Servicer
By:--------------------------------
Name:
Title:
CSC LOGIC/MSA, L.L.P.,
as the Backup Servicer
By:--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as the Trustee and Custodian
By:/s/ Vada Haight
--------------------------------
Name: Vada Haight
Title: Assistant Vice President
<PAGE>
EXECUTION COPY
ASTA AUTO RECEIVABLES COMPANY
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES,
SERIES 1997-1
CERTIFICATE PURCHASE AGREEMENT
July 30, 1997
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Dear Sir or Madam:
Asta Auto Receivables Company, a Delaware corporation (the "Company")
and a wholly-owned subsidiary of Asta Funding, Inc., a Delaware corporation
("Asta Funding") (each of the Company and Asta Funding are sometimes hereinafter
referred to as an "Asta Entity"), proposes to sell to you its Asta Auto Trust
1997-1 Automobile Receivable Pass-Through Certificates in the classes, in the
respective original principal amounts and with the designations set forth in
Schedule I hereto (the "Designated Certificates"). Only the Designated
Certificates are being purchased by you hereunder. The Designated Certificates
(collectively, the "Certificates"), will be issued by the Company pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of July 1, 1997, among the Company, as seller, Asta Funding, as Servicer, CSC
Logic/MSA, L.L.P., as backup servicer (the "Backup Servicer"), The Chase
Manhattan Bank, as trustee (the "Trustee") and The Chase Manhattan Bank, as
custodian (the "Custodian"). Each Certificate will evidence the holder's
fractional undivided interest in a trust (the "Trust"), created pursuant to the
Pooling and Servicing Agreement, and consisting primarily of a pool (the "Pool")
of retail installment sale contracts for new or used automobiles, vans and
light-duty trucks between dealers and retail purchasers (the "Contracts" or the
"Receivables") and certain monies received thereunder on and after the Cutoff
Date. Upon your request, the Company will furnish to you, on or before such date
as you shall specify, a private placement memorandum, dated July 30, 1997, which
will more fully describe the Designated Certificates. Such private placement
memorandum, in the form so furnished, including the documents incorporated by
reference thereto or attached as exhibits thereto, is herein referred to as the
"Memorandum". Capitalized terms used herein which are not otherwise defined
shall have the meanings ascribed to such terms in the Pooling and Servicing
Agreement.
<PAGE>
1. Representations and Warranties of the Asta Entities. Each Asta
Entity represents and warrants to, and agrees with, you and each person who
purchases a Designated Certificate directly from you that:
(a) Such Asta Entity 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 Pooling and Servicing Agreement and the Purchase
Agreement dated as of July 1, 1997 (the "Purchase Agreement"), between
the Company and Asta Funding.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and Asta Funding.
(c) The Pooling and Servicing Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by the Company, and when so executed
and delivered, will constitute a legal, valid, binding and enforceable
agreement of the Company, 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.
(d) The Purchase Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized,
executed and delivered by the Company and Asta Funding, and when so
executed and delivered, will constitute a legal, valid, binding and
enforceable agreement of each of the Company and Asta Funding, except
insofar as any indemnification provisions therein may be limited by
applicable law.
(e) The Memorandum and any amendment or supplement thereto, as
of the date thereof, and as of the date hereof, will not contain an
untrue statement of any material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) As of the Closing Date, the Designated Certificates and
the Pooling and Servicing Agreement will conform in all material
respects to the respective descriptions thereof contained in the
Memorandum. As of the Closing Date, the Designated Certificates will be
duly and validly authorized and, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and delivered to you against payment therefor as
provided herein, will be duly and validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement.
2
<PAGE>
(g) On the Closing Date and as of any Subsequent Transfer
Date, the representations and warranties of the Company and Asta
Funding with respect to the Contracts contained in the Pooling and
Servicing Agreement and the Purchase Agreement, respectively, will be
true and correct.
(h) Neither Asta Entity is in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture
or instrument which violation or default would have a material adverse
affect on such Asta Entity. Neither the issuance and sale of the
Designated Certificates, nor the execution and delivery by either Asta
Entity of this Agreement, the Pooling and Servicing Agreement or the
Purchase Agreement, nor the consummation by either Asta Entity of any
of the transactions herein or therein contemplated, nor compliance by
either Asta Entity with the provisions hereof or thereof, does or will
conflict with or result in a breach of any term or provision of the
certificate of incorporation or by-laws of such Asta Entity or conflict
with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other agreement or
instrument to which such Asta Entity is a party or by which it is
bound, or any statute (including, without limitation, any local
registration or licensing requirements), order or regulation applicable
to such Asta Entity of any court, regulatory body, administrative
agency or governmental body having jurisdiction over such Asta Entity.
Neither Asta Entity 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 such Asta Entity to
perform its obligations under this Agreement, the Pooling and Servicing
Agreement or the Purchase Agreement or (ii) the business, operations,
financial conditions, properties or assets of such Asta Entity.
(i) There are no actions or proceedings against, or
investigations of, either Asta Entity pending, or, to the knowledge of
such Asta Entity, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement, the Purchase
Agreement or the Certificates, (ii) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or
the Purchase Agreement, (iii) that are reasonably likely to be
adversely determined and that might materially and adversely affect the
performance by such Asta Entity of its obligations under, or the
validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement, the Purchase Agreement or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Memorandum.
(j) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Pooling and Servicing Agreement and the Purchase Agreement or the
execution, delivery and sale of the Certificates have been or will be
paid on or prior to the Closing Date.
3
<PAGE>
(k) Immediately prior to each assignment of the Contracts to
the Trustee as contemplated by the Pooling and Servicing Agreement, the
Company (i) had good title to, and was the sole owner of, each Contract
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 Contracts or in the
Pooling and Servicing Agreement and (iii) will have the power and
authority to sell such Contracts to the Trustee, and upon the execution
and delivery of the Pooling and Servicing Agreement by the Trustee, the
Trustee will have acquired all of the Company's right, title and
interest in and to the Contracts.
(l) There are no contracts, agreements or understandings
between either Asta Entity and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), with respect to
any Designated Certificates owned or to be owned by such person.
(m) The sale of the Designated Certificates pursuant to this
Agreement is exempt from the registration and prospectus delivery
requirements of the 1933 Act. In the case of each offer or sale of the
Designated Certificates, no form of general solicitation or general
advertising was used by the Company or its representatives, 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 Company nor any person acting on its behalf
has offered or sold, nor will the Company or any person acting on its
behalf offer or sell directly or indirectly, any Designated Certificate
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
Designated Certificates as contemplated hereby a violation of Section 5
of the 1933 Act or the registration or qualification requirements of
any state securities laws, nor has the Company authorized, nor will it
authorize, any person to act in such manner.
(n) Neither the Company nor the Trust is, and neither the
issuance and sale of the Certificates nor the activities of the Trust
pursuant to the Pooling and Servicing Agreement will cause the Company
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").
(o) Each Asta Entity is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its properties or the conduct of its business shall require
such qualifications.
2. Representations, Warranties and Covenants of the Purchaser.
You represent and warrant to, and agree with, the Company that:
4
<PAGE>
(a) You are purchasing the Designated Certificates, in the
Original Class Certificate Principal Balances for each Class set forth
on Schedule I, 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 1933 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. It is understood that you
intend to reoffer or resell the Designated Certificates from time to
time in one or more privately negotiated transactions.
(b) You are an "accredited investor" as defined in Rule
501(a)(1), (2) or (3) of Regulation D under the 1933 Act or a
"qualified institutional buyer" as defined in Rule 144A under the 1933
Act.
(c) You will not offer the Designated Certificates or any part
thereof or any similar security for issue or sale to, or solicit any
offer to acquire any of the same from, anyone so as to bring the offer
and sale of the Designated Certificates to you and by you within the
provisions of Section 5 of the 1933 Act.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell the Designated Certificates to you, and you agree to purchase the
Designated Certificates from the Company, for the purchase price of $21,119,985
(including accrued interest from and including the Cutoff Date to, but not
including, the Closing Date).
4. Delivery and Payment. Delivery of and payment for the Designated
Certificates shall be made at the offices of Orrick, Herrington & Sutcliffe LLP,
666 Fifth Avenue, New York, New York 10103-0001, on the date specified in
Schedule I hereto, which date and time may be changed by mutual agreement
between you and the Company (such date and time of delivery and payment for the
Designated Certificates being herein called the "Closing Date"). Delivery of the
Designated Certificates shall be made to you against payment by you of the
purchase price therefor in immediately available funds wired to such bank as may
be designated by the Company, or such other manner of payment as may be agreed
upon by the Company and you. The Designated Certificates to be so delivered
shall be in definitive, fully registered form, in such denominations and
registered in such names as you may have requested in writing not less than two
full business days in advance of the Closing Date.
The Company agrees to have the Designated Certificates available for
inspection, checking and packaging by you in New York, New York on the business
day prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees with you
that:
5
<PAGE>
(a) On the date hereof or such other date as you may specify
(the "Memorandum Delivery Date"), the Company will prepare and furnish
to you the Memorandum, appropriately completed, with such changes
therein as are satisfactory to you and your counsel.
(b) If, at any time prior to 90 days after the Memorandum
Delivery Date or such later date as you shall have resold all of the
Designated Certificates, any event occurs as a result of which the
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 light of the circumstances
under which they were made, not misleading, the Company will promptly
prepare and furnish to you an amendment or supplement to the Memorandum
reasonably satisfactory to you and your counsel that will correct such
statement or omission.
(c) During the period referred to in Section 5(b), the Company
will furnish to you, without charge, copies of the Memorandum
(including all documents incorporated by reference therein and all
amendments or supplements to such documents) in each case as soon as
available and in such reasonable quantities as you request.
(d) During the period referred to in Section 5(b), the Company
will, at your request, furnish through you to any prospective purchaser
of Designated 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
Designated Certificates and the Company represents and warrants that
such information will be accurate and not misleading.
(e) The Company authorizes you to deliver to investors copies
of the Memorandum, as then amended or supplemented as contemplated by
Section 5(b) hereof, and any information provided under Section 5(d)
hereof in connection with any reoffer or resale of the Designated
Certificates by you in accordance herewith.
(f) The Company agrees to use its best efforts to furnish (or
cause to be furnished) such information and to execute such documents
or instruments as you may reasonably request to satisfy any condition
to the availability of an exemption under the state securities or "blue
sky" laws of any state for any sale of Designated Certificates by you
(provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Certificates, in any jurisdiction where it is not now so subject).
(g) The Company will pay all reasonable costs and expenses in
connection with the transactions herein contemplated, including, but
not limited to, the reasonable fees and disbursements of its counsel
and your counsel; the costs and expenses of
6
<PAGE>
printing (or otherwise reproducing) and delivering the Memorandum, the
Pooling and Servicing Agreement and the Certificates; the fees, costs
and expenses of the Trustee (to the extent permitted under the Pooling
and Servicing Agreement, and except to the extent that another party is
obligated to pay such amounts thereunder) and the fees and
disbursements of accountants for the Company (including those fees and
disbursements arising in connection with any comfort letter issued by
such accountants that addresses the information contained in the
Memorandum).
(h) The Company will enter into the Pooling and Servicing
Agreement and Purchase Agreement on or prior to the Closing Date.
(i) The Company agrees to take such action as you shall
reasonably request following the Closing Date in connection with any
subsequent transfer of the Designated Certificates by you.
6. Conditions to the Purchase of the Designated Certificates. Your
obligation hereunder to purchase the Designated Certificates shall be subject to
the accuracy of the representations and warranties on the part of the Asta
Entities contained herein as of the date hereof and as of the Closing Date, to
the accuracy of the statements of the Asta Entities made in any certificates
delivered pursuant to the provisions hereof, to the performance by each Asta
Entity of its obligations hereunder and to the following additional conditions:
(a) Each Asta Entity shall have delivered to you a certificate
of such Asta Entity, signed by the President or a vice president of
such Asta Entity and dated the Closing Date, to the effect that the
signer of such certificate has carefully examined this Agreement and
that to the best of such signer's knowledge: (i) the representations
and warranties of such Asta Entity 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) such Asta Entity
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 from Orrick, Herrington &
Sutcliffe LLP, special counsel for the Purchaser, such opinions as you
may reasonably require, and the Company shall have furnished to such
counsel such documents as you may reasonably request for the purposes
of enabling them to render such opinions.
(c) You shall have received from Willkie Farr & Gallagher or
Lowenstein, Sandler, Kohl, Fisher & Boylan, special counsel for the
Asta Entities, a favorable opinion, dated the Closing Date,
substantially to the effect that:
(i) This Agreement has been duly authorized, executed
and delivered by the Company and Asta Funding, and when so
executed and delivered, constitutes a legal, valid, binding
and enforceable agreement of each Asta Entity, enforceable
according to its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
7
<PAGE>
creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a
proceeding in equity or at law;
(ii) The Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Company, and
when so executed and delivered, constitutes a legal, valid,
binding and enforceable agreement of the Company, enforceable
according to its terms, subject 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;
(iii) The Purchase Agreement has been duly
authorized, executed and delivered by the Company and Asta
Funding constitutes a legal, valid, binding and enforceable
agreement of each of the Company and Asta Funding, except
insofar as the indemnification provisions therein may be
limited by applicable law;
(iv) The issuance of the Certificates has been duly
and validly authorized by all required corporate action by the
Company and when executed and countersigned in the manner
contemplated in the Pooling and Servicing Agreement will be
validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement;
(v) The offer and sale of the Designated Certificates
to you in the manner contemplated in this Agreement and the
Pooling and Servicing Agreement is not, assuming the accuracy
of your representations and warranties and the performance of
your covenants contained herein, a transaction requiring the
registration of the Designated Certificates under the 1933
Act;
(vi) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and neither the Company nor the Trust is
required to be registered under the Investment Company Act;
(vii) The Trust as described in the Memorandum will
be treated as a partnership for federal income tax purposes
and will not be treated as an association or publicly traded
partnership taxable as a corporation;
(viii) The Certificates, the Pooling and Servicing
Agreement, the Servicing Assumption Agreement and the Purchase
Agreement will conform in all material respects to the
descriptions thereof contained in the Memorandum; and
(ix) Such counsel has no reason to believe that the
Memorandum, as of its date, and as amended or supplemented, if
applicable, as of the
8
<PAGE>
Memorandum Delivery Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial and
statistical statements or other financial data contained or
incorporated by reference in the Memorandum.
(d) You shall have received from Willkie Farr & Gallagher or
Lowenstein, Sandler, Kohl, Fisher & Boylan, special counsel for the
Asta Entities, a favorable opinion, dated the Closing Date, to the
effect that:
(i) Each Asta Entity has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has full corporate power and
authority necessary to execute, deliver and perform its
obligations under this Agreement, the Pooling and Servicing
Agreement and the Purchase Agreement;
(ii) To their knowledge there are no actions,
proceedings or investigations pending or threatened against or
affecting either Asta Entity before or by any court,
arbitrator, administrative agency or other governmental
authority reasonably likely to be adversely determined that
would materially and adversely affect the ability of such Asta
Entity to carry out the transactions contemplated in this
Agreement, the Pooling and Servicing Agreement or the Purchase
Agreement;
(iii) No consent, approval, authorization or order
of, or filing or registration with, any state or federal court
or governmental agency or body is required for the
consummation by either Asta Entity of the transactions
contemplated herein, except such as may be required under the
blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Designated Certificates and
except any recordation of the assignments of the Contracts to
the Trustee pursuant to the Pooling and Servicing Agreement
that have not yet been completed; and
(iv) To their knowledge, neither Asta Entity 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 such
Asta Entity, and neither the issuance and sale of the
Designated Certificates, nor the execution or delivery of or
performance under this Agreement, the Pooling and Servicing
Agreement or the Purchase Agreement, nor the consummation of
any other of the transactions contemplated herein or therein
will conflict with or result in a breach or violation of any
term or provision of, or constitute a default (or an event
which with the passing of time or notification, or both, would
constitute a default) under, the certificate of incorporation
or by-laws of either Asta Entity, or, to the knowledge of such
counsel, any indenture or other agreement or
9
<PAGE>
instrument to which either Asta Entity or any of its
affiliates is a party or by which it or any of them is bound,
or any New York or federal statute or regulation applicable to
either Asta Entity or any of its affiliates or, to the
knowledge of such counsel, any order of any New York or
federal court, regulatory body, administrative agency or
governmental body having jurisdiction over either Asta Entity
or any of its affiliates.
With respect to the opinions in paragraphs (c) and (d) above,
such counsel may: (1) express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the
Pooling and Servicing Agreement and the Purchase Agreement; (2) assume
the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than an Asta
Entity; and (3) qualify such opinion only as to the federal laws of the
United States of America, the laws of the State of New York and the
general corporation law of the State of Delaware. You shall also
receive (as an additional addressee) all opinions of such counsel
submitted to the rating agency rating the Designated Certificates, such
opinions to be dated the Closing Date, which opinions shall include,
among other things, an opinion regarding the "true sale" nature of the
transfer of the Receivables under the Purchase Agreement and the
non-consolidation of the Asta Entities, in each case for purposes of
federal laws relating to bankruptcy, and an opinion as to the
perfection of the Trust's security interest in the Receivables and the
Trust's security interest in the Financed Vehicles under the law of the
State of New York (subject to the rights of third parties without
notice).
(e) The Class A Certificates and the Class B Certificates
shall have been rated no lower than "A" or "BBB", respectively, by Duff
& Phelps Credit Rating Co.
(f) You shall have received a letter from Richard A. Eisner &
Company, LLP regarding the Memorandum in form and substance
satisfactory to you and your counsel.
(g) You shall have received from counsel for the Trustee a
favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that the Pooling
and Servicing Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes the legal, valid, binding and
enforceable agreement of the Trustee, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights in general and by general principles
of equity regardless of whether enforcement is considered in a
proceeding in equity or at law, and as to such other matters as may be
agreed upon by you and the Trustee.
(h) You shall have received from counsel for the Back-up
Servicer a favorable opinion, dated the Closing Date, in form and
substance satisfactory to you and your counsel.
10
<PAGE>
(i) On the Memorandum Delivery Date, each Asta Entity shall
furnish to you a certificate signed by the president or a senior vice
president, dated the Memorandum Delivery Date, to the effect that such
officer has no reason to believe and does not believe that the
Memorandum, as of its date, and as amended or supplemented, if
applicable, as of the Memorandum Delivery Date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading and that the descriptions in
the Memorandum of the Designated Certificates and the Pooling and
Servicing Agreement are accurate in all material respects.
(j) You shall have received from Lowenstein, Sandler, Kohl,
Fisher & Boylan, Roseland, New Jersey, a favorable opinion regarding
perfection of the Trust's security interest in the Receivables, the
Trust's security interest in the Financed Vehicles and certain New
Jersey tax matters, all in form and substance reasonably satisfactory
to you and your counsel.
(k) You shall have received from Reed, Smith, Shaw & McClay,
Philadelphia, Pennsylvania, a favorable opinion regarding perfection of
the Trust's security interest in the Receivables, the Trust's security
interest in the Financed Vehicles and the enforceability of the
Pennsylvania form of Contract, all in form and substance reasonably
satisfactory to you and your counsel.
(l) You shall have received from Willkie Farr & Gallagher, New
York, New York, a favorable opinion regarding perfection of the Trust's
security interest in the Receivables and the Trust's security interest
in the Financed Vehicles and certain New York tax matters, all in form
and substance satisfactory to you and your counsel.
(m) You shall have received such further information,
certificates, documents and opinions as you may reasonably have
requested not later than the Closing Date.
(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 approved in this Agreement,
if the Company is in material 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 cancelled by you at, or at any time prior to, the
Closing. Notice of such cancellation shall be given to the Company in writing,
or by telephone or facsimile transmission confirmed in writing.
11
<PAGE>
7. Conditions of the Company's Obligations. The obligation of the
Company to sell the Designated Certificates to you shall be subject to: (i) the
accuracy of your representations and warranties herein contained at and as of
the Closing Date and (ii) your performance of all of your obligations hereunder
to be performed at or prior to the Closing Date.
8. Information Provided by the Purchaser. It is understood and agreed
that the information contained in the first sentence of the last paragraph on
the cover page of the Memorandum and under the heading "Method of Distribution"
in the Memorandum is the only information furnished by the Purchaser to the
Company for inclusion in the Memorandum.
9. Indemnification and Contribution. The Company and Asta Funding
agree with you that:
(a) The Company and Asta Funding, jointly and severally, will
indemnify and hold harmless you and each person who controls you within
the meaning of either the 1933 Act or the Securities Exchange Act of
1934, as amended (the "1934 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 1933 Act, the 1934 Act, or other federal
or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
(x) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Memorandum or in
any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading, or (y) arise out of or are
based upon any material inaccuracy contained in any statistical
information provided by the Company to you in writing or by electronic
transmission prior to the date hereof or in the Preliminary Term Sheet,
dated July 21, 1997, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim,
damage, liability or action including, without limitation, any such
legal or other expenses incurred in connection with any action or
proceeding between the indemnified party and any third party; provided,
however, that neither the Company nor Asta Funding will 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 therein
in reliance upon and in conformity with written information furnished
to the Company as herein stated by you specifically for use in
connection with the preparation thereof. This indemnity will be in
addition to any liability that the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, Asta
Funding and each of their respective directors and officers and each
person, if any, who controls the Company within the meaning of either
the 1933 Act or the 1934 Act, to the same extent as the foregoing
indemnity from the Company and Asta Funding to you, but
12
<PAGE>
only with reference to written information furnished to the Company as
herein stated by you specifically for use in connection with the
preparation of the documents referred to in the foregoing indemnity,
such information being only the information described in Section 8
hereof. This indemnity will be in addition to any liability that you
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 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 9, 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 9.
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
reasonably 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 by you in
the case of paragraph (a) of this Section 9, representing the
indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably 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 in writing
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).
(d) If the indemnification provided for in this Section 9
shall for any reason be unavailable to an indemnified party under this
Section 9, then you and the Asta Entities shall contribute to the
amount paid or payable by such indemnified party as a result of the
aggregate losses, claims, damages and liabilities referred to in
paragraph
13
<PAGE>
(a) or (b) above, in such proportion so that (i) you are responsible
for the lesser of (1) 1.25% thereof and (2) 1.25% of the original
principal balance of the Designated Receivables (as set forth on
Schedule I hereto) and (ii) the Asta Entities are, jointly and
severally, responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person, if any, who controls you
within the meaning of either the 1933 Act or the 1934 Act shall have
the same rights to contribution as do you and each person, if any, who
controls the Company or Asta Funding within the meaning of either the
1933 Act or the 1934 Act shall have the same rights to contribution as
does the Company and Asta Funding. Any party entitled to contribution
will, promptly after receipt of notice 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).
10. Termination. (a) This Agreement shall be subject to termination in
your absolute discretion by notice given to the Company prior to delivery of and
payment for the Designated Certificates, if prior to such time, (i) trading of
securities generally on the New York Stock Exchange or the American Stock
Exchange shall have been suspended or materially limited; (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities; or (iii) there shall have
occurred any material outbreak or declaration of hostilities or other calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in your reasonable judgment, impracticable to market the
Designated Certificates on the terms specified herein.
(b) If the sale of the Designated 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
Company to perform any agreement herein or comply with any provision hereof
other than by reason of your default, the Company shall 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 Designated Certificates, and upon demand the
Company shall pay the full amount thereof to you.
(c) This Agreement will survive delivery of and payment for the
Designated Certificates. The provisions of Section 9 and this Section 10(c)
shall survive the termination or cancellation of this Agreement.
11. 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 600 Steamboat Road, Greenwich,
Connecticut 06830, Attention:
14
<PAGE>
President; or, if sent to the Company, will be mailed, delivered or transmitted
by facsimile and confirmed to it at 210 Sylvan Avenue, Englewood Cliffs, New
Jersey 07632.
12. 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 9 and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. 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.
15
<PAGE>
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 the
Company and Asta Funding on the one hand and you on the other.
Very truly yours,
ASTA AUTO RECEIVABLES COMPANY
By: /s/ Gary Stern
-----------------------
Name: Gary Stern
Title: President
ASTA FUNDING, INC.
By: /s/ Mitchell Herman
-----------------------
Name: Mitchell Herman
Title: CFO
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written:
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Jere P. Dieck
--------------------------------
Name: Jere P. Dieck
Title: Vice President
<PAGE>
SCHEDULE I
Certificate Purchase Agreement dated July 30, 1997
Closing Date: July 30, 1997
Title, Purchase Price and Description of Designated Certificates:
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES,
SERIES 1997-1, CLASS A and CLASS B
Aggregate Initial Certificate Balance: $21,119,985
Cutoff Date with respect to the Initial Receivables: July 1, 1997
Designated Certificates Original Certificate Balance
- ----------------------- ----------------------------
Class A $15,839,989
Class B 5,279,996
- --------------------------------------------------------------------------------
S-1
<PAGE>
EXECUTION COPY
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 1st day of July 1997, by and
between ASTA FUNDING, INC., a Delaware corporation (the "Seller"), having its
principal executive office at 210 Sylvan Avenue, Englewood Cliffs, New Jersey
07632 and ASTA AUTO RECEIVABLES COMPANY, a Delaware corporation (the
"Purchaser"), having its principal executive office at 210 Sylvan Avenue,
Englewood Cliffs, New Jersey 07632.
RECITALS
1. In the regular course of its business, the Seller purchases from
motor vehicle dealers and services certain motor vehicle retail installment loan
contracts and promissory notes secured by new and used automobiles and light
duty trucks.
2. The Seller desires to sell, and the Purchaser desires to purchase,
Receivables (as hereinafter defined) pursuant to the terms and conditions of
this Agreement.
3. The Receivables to be sold subsequently hereunder will be sold by
the Purchaser pursuant to the Pooling and Servicing Agreement (as hereinafter
defined) to the Asta Auto Trust 1997-1 to be created thereunder, in
consideration of certificates issued by the Trust which represent beneficial
ownership interests in the Trust (the "Certificates").
4. The Purchaser will sell to Greenwich Capital Markets, Inc. for cash
100% of the principal amount of the Class A Certificates and Class B
Certificates.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth in
the Pooling and Servicing Agreement. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of the
terms defined):
"Agreement" shall mean this Purchase Agreement and all amendments
hereof and supplements hereto.
<PAGE>
"Certificate Purchase Agreement" shall mean the Certificate Purchase
Agreement by and between Greenwich Capital Markets, Inc., the Purchaser and the
Seller, dated as of July 30, 1997.
"Initial Receivables" means all Receivables acquired by the Purchaser
from the Seller on the Closing Date pursuant to this Agreement.
"Memorandum" shall have the meaning assigned to such term in the
Certificate Purchase Agreement.
"Other Conveyed Property" means (i) all monies at any time paid on the
Receivables or in respect thereof on or after the applicable Cutoff Date,
including all Liquidation Proceeds to be received with respect to such
Receivables; (ii) all right, title and interest of the Seller in and the
security interests to the Financed Vehicles and any other interest of the Seller
in the Financed Vehicles, including, without limitation, the certificates of
title with respect to Financed Vehicles; (iii) all right, title and interest of
the Seller with respect to the Receivables in and to any proceeds from any
claims on any Insurance Policies covering the Obligors, the Financed Vehicles or
the Receivables; (iv) all right, title and interest of the Seller in and to
refunds of unearned premiums with respect to any Insurance Policies covering the
Receivables, the Obligors or the Financed Vehicles or their obligations with
respect to the Financed Vehicles and any recourse to Dealers for any of the
foregoing and (v) all items contained in the Receivable Files, any and all other
documents or electronic records that the Seller keeps on file in accordance with
its customary procedures relating to the Receivables, the Obligors or the
Financed Vehicles, property (including the right to receive future Liquidation
Proceeds) that secures a Receivable and that has been acquired by or on behalf
of the Seller pursuant to liquidation of such Receivable, all present and future
claims, demands, causes and choses in action in respect of the Receivables and
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of the Receivables and any and all
of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivables, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in the
proceeds of the Receivables and any of the foregoing.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement by and among Asta Auto Receivables Company, as Seller, Asta Funding,
Inc., as Servicer, CSC Logic/MSA, L.L.P., as Backup Servicer, and The Chase
Manhattan Bank, as Trustee and Custodian, dated as of July 1, 1997.
"Purchase Price" shall have the meaning specified in Section 2.1(a)
hereof.
"Purchaser" shall mean Asta Auto Receivables Company, a Delaware
corporation, its successors and assigns.
2
<PAGE>
"Rating Agency" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Repurchase Event" shall mean the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2 hereof (without
regard to any limitations regarding Seller's knowledge) that materially and
adversely affects the interests of the Purchaser in any Receivable (including
any Liquidated Receivable) or the failure of an Obligor to make its first
Scheduled Payment causing a repurchase obligation under Section 4.7 of the
Pooling and Servicing Agreement.
"Seller" shall mean Asta Funding, Inc., a Delaware corporation, in its
capacity as seller of the Receivables and the Other Conveyed Property relating
thereto, its successors and assigns.
"Subsequent Receivables" means all Receivables acquired by the
Purchaser from the Seller after the Closing Date and during the Pre-Funding
Period pursuant to this Agreement.
"Subsequent Transfer Date" means each Business Day occurring no more
than once per calendar week during the Pre-Funding Period on which Subsequent
Receivables shall be acquired by the Purchaser pursuant to this Agreement and
transferred to the Trust pursuant to the Pooling and Servicing Agreement.
"Trust" shall mean the Asta Auto Trust 1997-1.
"Trustee" means The Chase Manhattan Bank, its successors and assigns.
"UCC" shall mean the Uniform Commercial Code, as in effect from time to
time in the relevant jurisdictions.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
2.1 Purchase Price.
(a) In consideration of the conveyance of the Initial
Receivables and the related Other Conveyed Property by the Seller to the
Purchaser, the Purchaser shall pay or cause to be paid to the Seller on the
Closing Date an amount equal to 100% of the aggregate Receivables Cash Purchase
Price for the Initial Receivables. Such Receivables Cash Purchase Price shall be
payable in cash by federal wire transfer funds.
(b) In consideration of the conveyance of Subsequent
Receivables and related Other Conveyed Property by the Seller to the Purchaser,
upon prior notice of one Business Day given by the Purchaser to the Trustee, the
Purchaser shall cause the Trustee, on each Subsequent Transfer Date, to pay to
the Seller an amount equal to the Receivables Cash Purchase Price for such
Subsequent Receivables in cash by federal wire transfer funds. The Seller
acknowledges
3
<PAGE>
that funds to purchase the Subsequent Receivables and Other Conveyed Property
relating thereto and to fund the corresponding deposit in the Reserve Fund on
each Subsequent Transfer Date shall be disbursed by the Trustee solely from the
Pre-Funding Account pursuant to Section 5.6A of the Pooling and Servicing
Agreement.
2.2 Conveyance of Receivables
(a) Subject to the conditions set forth in paragraph (b)
below, the Seller, pursuant to the mutually agreed upon terms contained herein,
shall on the Closing Date (with respect to the Initial Receivables) and each
Subsequent Transfer Date (with respect to any Subsequent Receivables) sell,
transfer, assign and otherwise convey to the Purchaser without recourse (but
without limitation of their obligations in this Agreement or the Pooling and
Servicing Agreement), all of the right, title and interest of the Seller,
whether then existing or thereafter acquired, in and to all accounts, contract
rights, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices of
credit and uncertificated securities consisting of, arising from or relating to
the Receivables listed on the Schedule of Receivables and the Other Conveyed
Property related thereto. With respect to Subsequent Receivables, the Seller
shall only be obligated to sell, transfer, assign or otherwise convey Subsequent
Receivables to the Purchaser with an aggregate Principal Balance up to the
amount on deposit in the Pre-Funding Account on the applicable Subsequent
Transfer Date. It is the intention of the Seller and the Purchaser that the
transfers and assignments contemplated by this Agreement shall constitute a sale
of the Receivables and the Other Conveyed Property from the Seller to the
Purchaser conveying good title thereto free and clear of any Liens, and the
Receivables and Other Conveyed Property shall not be a part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy or similar law.
(b) The Seller shall transfer to the Purchaser the Receivables
and Other Conveyed Property as described in paragraph (a) above only upon the
satisfaction of each of the following conditions on or prior to the Closing Date
(with respect to the Initial Receivables) or each applicable Subsequent Transfer
Date (with respect to the transfer of Subsequent Receivables):
(i) The Seller shall not have been insolvent nor shall the
Seller have been rendered insolvent by the sale and assignment
contemplated hereby, nor shall the Seller be aware of any pending
insolvency;
(ii) The Seller shall have taken any action necessary or
advisable to maintain the perfected ownership interest of the Purchaser
in the Receivables and Other Conveyed Property;
(iii) No selection procedures adverse to the interests of the
Purchaser or the Trust shall have been utilized by the Seller or the
Purchaser in selecting the related Receivables; and
4
<PAGE>
(iv) no more than 20.25% of the Initial Receivables are
Actuarial Receivables, not less than 79.75% of the Initial Receivables
are Simple Interest Receivables and each Subsequent Receivable will be
a Simple Interest Receivable.
(c) With respect to the Subsequent Receivables, the Purchaser
shall be obligated to purchase from the Seller, and the Seller shall be
obligated to sell to the Purchaser Subsequent Receivables only if all of the
following conditions have been met:
(A) the aggregate Principal Balance of any Subsequent Receivables sold
to the Purchaser on a Subsequent Transfer Date must not be less than
$2,000;
(B) the Seller and the Purchaser must comply with the requirements
specified in Section 2.3 hereof;
(C) the Pre-Funding Account shall contain available funds in an amount
at least equal to the related aggregate amount set forth in Section
2.1(b) hereof on such Subsequent Transfer Date;
(D) each Subsequent Receivable must meet the terms and conditions set
forth in Section 3.4 of the Pooling and Servicing Agreement and
described in the Private Placement Memorandum under the heading "The
Receivables Pool;"
(E) the representations and warranties set forth in Sections 3.1 and
3.2 hereof are true and complete as of the related Subsequent Transfer
Date and the Seller has complied with Article IV hereof;
(F) the purchase by the Purchaser of any Subsequent Receivables and the
subsequent transfer of such Subsequent Receivables by the Purchaser to
the Trust during the Pre-Funding Period pursuant to the Pooling and
Servicing Agreement must not result in any reduction of the rating of
any Certificate by any of the Rating Agencies below the rating that was
obtained on the Closing Date;
(G) solely as a result of the purchase by the Purchaser of any
Subsequent Receivables and the subsequent transfer of such Subsequent
Receivables by the Purchaser to the Trust pursuant to the Pooling and
Servicing Agreement, the weighted average annual percentage interest
rate (the "Average Interest Rate") for all the Receivables in the Trust
at the end of the Pre-Funding Period must not be more than 100 basis
points lower than the Average Interest Rate of the Initial Receivables;
(H) on or prior to each Subsequent Transfer Date, the Seller shall have
caused to be provided to the Purchaser, the Trustee, the Rating Agency
and the Placement Agent a letter prepared by an independent accountant
retained by the Seller certifying that the characteristics of the
related Subsequent Receivables conform to the characteristics set forth
in Section 3.4 of the Pooling and Servicing Agreement and described in
the Private Placement Memorandum under the heading "The Receivables
Pool;"
5
<PAGE>
(I) as of the termination of the Pre-Funding Period, the percentage of
Receivables having Obligor billing addresses in New Jersey, New York
and Pennsylvania shall not exceed 27.24%, 50.00% and 20.00%,
respectively, of the aggregate principal balance of all Receivables as
of such date; and
(J) on each Subsequent Transfer Date, the aggregate principal amount of
Subsequent Receivables on which at least one Scheduled Payment has not
been made by the related Obligor and received by the Servicer with
respect to such Receivables shall not exceed the Repurchase Threshold.
2.3 Delivery of Receivable Files. The Seller shall deliver to the
Purchaser the following documents (a) on the Closing Date (with respect to each
Initial Receivable) and (b) two Business Days prior to each Subsequent Transfer
Date (with respect to each related Subsequent Receivable to be purchased on such
Subsequent Transfer Date):
(i) The fully executed original of each Receivable and any
amendments thereto;
(ii) a copy of the VSI Insurance Policy meeting the
requirements of Section 3.6(a)(iii) of the Pooling and Servicing
Agreement; and
(iii) The original certificate of title or other evidence of
title as specified in Section 3.6(a)(ii) of the Pooling and Servicing
Agreement.
2.4 The Closing. The sale by the Seller and purchase by the Purchaser
of the Initial Receivables being purchased directly from the Seller shall take
place at a closing (the "Closing") held at the offices of Orrick, Herrington &
Sutcliffe LLP, 666 Fifth Avenue, 18th Floor, New York, New York 10103 on the
Closing Date, simultaneously with the closings under: (a) the Pooling and
Servicing Agreement pursuant to which (i) the Purchaser will assign all of its
right, title and interests in and to the Initial Receivables and the related
Other Conveyed Property to the Trustee for the benefit of the
Certificateholders, (ii) the Purchaser shall have deposited $1,932,478.63 in the
Reserve Account; $48,168.04 in the Simple Interest Differential Account, and
$199,539.85 in the Capitalized Interest Account and (iii) the Trust will issue
and deliver the Certificates to the Purchaser in exchange for the Initial
Receivables, the Other Conveyed Property, and the Pre-Funding Account; and (b)
the Certificate Purchase Agreement pursuant to which the Purchaser will sell a
portion of the Certificates to Greenwich Capital Markets, Inc.
2.5 The Pre-Funding Events. The sale and purchase of the Subsequent
Receivables on each Subsequent Date shall take place at the offices of the
Trustee or such other location as the Seller and Purchaser may reasonably agree;
provided, however, that any such sale and purchase of Subsequent Receivables is
conditioned upon the requirements of Section 3.11 of the Pooling and Servicing
Agreement having been fulfilled as of such Subsequent Transfer Date.
6
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Seller as of the date hereof, as of the
Closing Date and as of each Subsequent Transfer Date:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire and own the
Receivables and the Other Conveyed Property, and to transfer the Receivables and
the Other Conveyed Property to the Trust pursuant to the Pooling and Servicing
Agreement.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect the Purchaser's ability to acquire the
Receivables and the Other Conveyed Property or the validity or enforceability of
the Receivables and the Other Conveyed Property or to perform the Purchaser's
obligations hereunder.
(c) Power and Authority. The Purchaser has the corporate power
and authority to execute and deliver this Agreement, the Pooling and Servicing
Agreement and any other agreement related thereto (collectively, the "Purchaser
Transaction Documents") and to carry out the terms thereof and to acquire the
Receivables and the Other Conveyed Property hereunder and the execution,
delivery and performance of the Purchaser Transaction Documents have been duly
authorized by the Purchaser by all necessary action.
(d) No Consent Required. The Purchaser is not required to
obtain the consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery or performance of
the Purchaser Transaction Documents, except for such as have been obtained,
effected or made.
(e) Binding Obligation. The Purchaser Transaction Documents
constitute the legal, valid and binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with their terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to general
equitable principles.
(f) No Violation. The execution, delivery and performance by
the Purchaser of the Purchaser Transaction Documents, the consummation of the
transactions contemplated thereby and the fulfillment of the terms of the
Purchaser Transaction Documents do not and will not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
bylaws of
7
<PAGE>
the Purchaser, or, after giving effect to the transactions contemplated thereby
and any consents that have been obtained and are in full force and effect,
conflict with or breach any of the terms or provisions of, or constitute (with
or without notice or lapse of time) a default under, any indenture, agreement,
mortgage, deed of trust or other instrument to which the Purchaser is a party or
by which the Purchaser is bound or to which any of its properties are subject,
or result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than the Pooling and Servicing Agreement), or violate
any law, order, rule or regulation, applicable to the Purchaser or its
properties, of any federal or state regulatory body, any court, administrative
agency, or other governmental instrumentality having jurisdiction over the
Purchaser or any of its properties.
(g) No Proceeding. There are no proceedings, investigations,
injunctions, writs, restraining orders or any order of any nature pending, or,
to the best knowledge of the Purchaser, threatened against the Purchaser, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over the Purchaser or its
properties: (i) asserting or declaring the invalidity of the Purchaser
Transaction Documents, (ii) seeking to prevent or preventing the consummating of
any of the transactions contemplated by the Purchaser Transaction Documents, or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations under, or the
validity or enforceability of, the Purchaser Transaction Documents or the
Certificates.
In the event of any breach of a representation and warranty made by the
Purchaser hereunder, the Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all the
Certificates or other similar securities issued by the Trust have been paid in
full. The Seller agrees that damages will not be an adequate remedy for such
breach and that this covenant may be specifically enforced by the Purchaser or
by the Trust.
3.2 Representations and Warranties of the Seller. (a) The Seller hereby
represents and warrants to the Purchaser as of the date hereof, as of the
Closing Date, and as of each Subsequent Transfer Date:
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties shall
be currently owned and such business is presently conducted and had at
all relevant times, and shall have, power, authority and legal right to
acquire, own and service the Receivables and the Other Conveyed
Property transferred by it to the Purchaser.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in
8
<PAGE>
all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where
the failure to qualify or maintain such licenses or approvals would not
have a material adverse effect on the Seller.
(iii) Power and Authority. The Seller has the corporate power
and authority to execute and deliver this Agreement, the Pooling and
Servicing Agreement (in its capacity as Servicer thereunder) and any
other agreement related thereto (collectively, the "Seller Transaction
Documents") and to carry out the terms thereof; the Seller has full
corporate power and authority to sell and assign the Receivables and
the Other Conveyed Property to be sold and assigned to the Purchaser
hereunder and has duly authorized such sale and assignment to the
Purchaser by all necessary corporate action; and the execution,
delivery and performance of the Seller Transaction Documents have been
duly authorized by it by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. The Seller Transaction
Documents have been duly executed and delivered and this Agreement
shall effect a valid sale, transfer and assignment of the Receivables
and the Other Conveyed Property transferred by it, and each of the
Seller Transaction Documents shall be enforceable against the Seller
and any creditors of and purchasers from the Seller; and the Seller
Transaction Documents constitute the legal, valid and binding
obligations of the Seller enforceable in accordance with their terms
against the Seller, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law.
(v) No Violation. The consummation of the transactions
contemplated by the Seller Transaction Documents by the Seller and the
fulfillment of the terms of thereof by the Seller do not and shall not
conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice, lapse of time or both) a
default under, the certificate of incorporation or bylaws of the
Seller, or, after giving effect to the transactions contemplated
thereby and any consents that have been obtained and are in full force
and effect, any indenture, agreement, mortgage, deed of trust or other
instrument to which the Seller is a party or by which it or any of its
properties are bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument,
other than this Agreement, or violate any law, order, rule or
regulation applicable to it of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its properties.
(vi) No Proceedings. There are no proceedings, investigations,
injunctions, writs, restraining orders or any order of any nature
pending or, to the best of the Seller's knowledge, threatened against
the Seller, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction over
the Seller or their respective properties (i) asserting or declaring
the
9
<PAGE>
invalidity of the Seller Transaction Documents, (ii) seeking to prevent
or preventing the issuance of the Certificates or the consummation of
any of the transactions contemplated by the Seller Transaction
Documents, or (iii) that might materially and adversely affect the
performance by it of obligations under, or the validity or
enforceability of, the Seller Transaction Documents or the
Certificates.
(vii) Chief Executive Office. The chief executive offices of
the Seller are located at 210 Sylvan Avenue, Englewood Cliffs, New
Jersey 07632 and there have been no other such locations during the
past four months.
(viii) Taxes. The Seller has filed all federal, State, county,
local and foreign income, franchise and other tax returns required to
be filed by it through the date hereof, and has paid all taxes
reflected as due thereon. There is no pending dispute with any taxing
authority that, if determined adversely to the Seller, would result in
the assertion by any taxing authority of any material tax deficiency,
and the Seller has no knowledge of a proposed liability for any tax to
be imposed upon the Seller's properties or assets for which there is
not an adequate reserve reflected in the Seller's current financial
statements.
(ix) Pension/Profit Sharing Plans. No contribution failure has
occurred with respect to any pension or profit sharing plan, and all
such plans have been fully funded as of the date of this Agreement.
(x) Trade Names. "Asta Funding, Inc." and "Asta Holding, Inc."
are the only trade names under which the Seller is currently operating
its business and under which the Seller operated its business for the
period of time during which the Seller was in existence preceding the
Closing Date.
(xi) Lock-Box Account. Each Obligor of a Receivable has been
directed and is required to remit payments to the Lock-Boxes.
(xii) Consolidation. The Seller has operated and will operate
its business such that its assets and liabilities will not be
substantively consolidated with the assets and liabilities of the
Purchaser and its separate existence will not be disregarded in any
State or federal court proceeding.
(xiii) Business Purpose. The Seller will acquire and sell,
transfer, assign and otherwise convey (for State law, tax and financial
accounting purposes) the Receivables for a bona fide business purpose.
(xiv) Federal Income Tax Purposes. The Seller intends to treat
the transactions contemplated under this Agreement as a sale of the
Receivables to the Purchaser for federal income tax purposes. The
Purchaser and the Trustee intend to cause to be filed all returns or
reports in a manner consistent with such treatment.
10
<PAGE>
(b) The Seller hereby makes all representations and warranties
in Section 3.4 of the Pooling and Servicing Agreement as if it were the Seller
under the Pooling and Servicing Agreement. Such representations and warranties
are true and correct as of the Closing Date with respect to the Initial
Receivables and shall be true and correct as of each Subsequent Transfer Date
with respect to the Subsequent Receivables, and shall survive the sale,
transfer, and assignment of the Receivables and the Other Conveyed Property
relating thereto to the Purchaser and the subsequent assignment and transfer
pursuant to the Pooling and Servicing Agreement.
ARTICLE IV
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, however,
that to the extent that any provision of this ARTICLE IV conflicts with any
provision of the Pooling and Servicing Agreement, the Pooling and Servicing
Agreement shall govern:
4.1 Protection of Title of Purchaser and the Trust.
(a) At the Closing Date and on each Subsequent Transfer Date,
the Seller shall have filed or caused to be filed a protective UCC-1 financing
statement (in case the conveyance of the Receivables is deemed to be a security
for a loan), executed by it as seller or debtor, naming the Purchaser as
purchaser or secured party and describing the Receivables and the Other Conveyed
Property to be sold by it to the Purchaser on such date as collateral, with the
office of the Secretary of State of the State of New Jersey and in such other
locations as the Purchaser shall have required. In addition, on the Closing Date
and on each Subsequent Transfer Date, the Seller shall have filed or caused to
be filed a UCC-3 financing statement releasing any existing liens on any of the
Receivables with the Secretary of State of the State of New Jersey and in such
other locations as the Purchaser shall have required. From time to time
thereafter the Seller shall execute and file such financing statements, all in
such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Purchaser under this Agreement and of
the Trust under the Pooling and Servicing Agreement in the Receivables and the
Other Conveyed Property and in the proceeds thereof. The Seller shall deliver
(or cause to be delivered) to the Purchaser and the Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
practicably available following such filing. In the event that the Seller fails
to perform its obligations under this subsection, the Purchaser or the Trustee
may do so, at the expense of the Seller.
(b) The Seller 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 the Seller (or by the Purchaser or
the Trustee on behalf of the Seller) in accordance with paragraph (a) above
seriously misleading within the meaning of ss. 9-402(7) of the UCC, unless it
shall have given the Purchaser and the Trustee at least 30 days' prior written
notice thereof, and shall promptly file appropriate amendments to all previously
filed financing statements and continuation statements,
11
<PAGE>
(c) The Seller shall give the Purchaser and the Trustee 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. The Seller shall at
all times maintain each office from which it services its respective Receivables
and its principal executive office within the United States of America.
(d) The Seller shall maintain its computer systems so that,
from and after the time of the sale hereunder of the Receivables to the
Purchaser and the conveyance under the Pooling and Servicing Agreement of such
Receivables by the Purchaser to the Trust, each of the Seller's master computer
records (including archives) that refers to a Receivable shall indicate clearly
that such Receivable has been sold to the Purchaser and has been conveyed by the
Purchaser to the Trust. Indication of the Trust's ownership of a Receivable
shall be deleted from or modified on each of the Seller's computer systems when,
and only when, such Receivable shall have been paid in full or shall have been
repurchased by any of the Seller or the Purchaser.
(e) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in motor vehicle
receivables to any prospective purchaser, lender or other transferee, the Seller
shall give to such prospective purchaser, lender, or other transferee computer
tapes, records, or print-outs (including any restored from archives) that, if
they shall refer in any manner whatsoever to any of the Receivables, shall
indicate clearly that such Receivables have been sold to the Purchaser and are
owned by the Trust pursuant to the Pooling and Servicing Agreement.
4.2 Other Lien or Interests. The Seller will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on the Receivables or the Other Conveyed Property transferred
hereunder by it or any interest therein, and the Seller shall defend the right,
title, and interest of the Purchaser in and to the Receivables and the Other
Conveyed Property against all claims of third parties claiming through or under
the Seller; provided that the Seller's obligation under this Section 4.2 shall
terminate upon termination of the Trust pursuant to the Pooling and Servicing
Agreement.
4.3 Indemnification.
(a) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims,
and liabilities arising out of or resulting from any breach of any of Seller's
representations and warranties contained herein (except for any representation
or warranty contained in this Agreement, the Pooling and Servicing Agreement or
other related documents or instruments with respect to a Receivable, the remedy
for the breach of which is the repurchase of such Receivable), to the extent all
losses, liabilities, damages, costs or expenses, including without limitation,
all fees and expenses of attorneys, consultants and auditors and the reasonable
cost of investigations, with respect thereof are not satisfied in full by
payment of the purchase price of such Receivable in accordance with the terms of
the Pooling and Servicing Agreement.
12
<PAGE>
(b) The Seller agrees to pay, and shall defend, indemnify and
hold harmless the Purchaser, from and against any taxes that may at any time be
asserted against the Purchaser with respect to this Agreement, including,
without limitation, any sales, tangible or intangible personal property,
privilege, or license taxes (but not including any taxes asserted with respect
to, and as of any date of, the sale, transfer and assignment of any Receivables
and Other Conveyed Property to the Seller and of the sale, transfer and
assignment of such Receivables and Other Conveyed Property to the Trust or the
issuance and sale of any Certificates, or asserted with respect to ownership of
the Receivables and Other Conveyed Property or federal, state or other income
taxes, franchise taxes or taxes on gross receipts or capital) and costs and
expenses in defending against the same, arising by reason of the acts to be
performed by the Seller under this Agreement or imposed against the Purchaser.
(c) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, claims, damages,
and liabilities to the extent that such costs, expenses, losses, claims,
damages, or liabilities arose out of, or were imposed upon the Purchaser,
through the negligence, willful misfeasance, or bad faith of the Seller, in the
performance of its duties under this Agreement or by reason of the Seller's
reckless disregard of its obligations and duties under this Agreement.
(d) The Seller shall defend, indemnify, and hold harmless the
Purchaser, from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the Seller's duties as Servicer under the Pooling and Servicing
Agreement.
Indemnification under this Section 4.3 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive the
maturity of the Certificates. The indemnity obligations hereunder shall be in
addition to any obligation that the Seller may otherwise have. The Backup
Servicer, the Custodian and the Trustee on behalf of the Certificateholders
shall be third party beneficiaries of the indemnities provided in this Section.
4.4 Seller Note. Neither the Seller nor the Purchaser shall extinguish
nor cause to be extinguised nor in any way impair the value of the Seller Note
prior to the November 1997 Distribution Date, except to the extent that
reductions in the principal value of the Seller Note are necessary to fund the
repurchase by the Seller of Receivables pursuant to Section 4.7 of the Pooling
and Servicing Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Obligations of Seller. The obligations of the Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
5.2 Repurchase Events. The Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trustee and the
Certificateholders, that upon occurrence of a Repurchase Event, the Seller
shall, unless the related breach shall have been cured in all material respects,
repurchase the affected Receivables hereunder, at the Purchase Amount from
13
<PAGE>
the Trust. The provisions of this Section 5.2 are intended to grant the Trustee
a direct right against the Seller to demand performance hereunder and in
connection therewith the Seller waives any requirement of prior demand against
the Purchaser and waives any defaults it would have against the Purchaser with
respect to such repurchase obligation. Any such purchase shall take place in the
manner specified in Section 3.5 of the Pooling and Servicing Agreement. The sole
remedy of the Certificateholders, the Trust, the Trustee, or the Purchaser
against the Seller with respect to any Repurchase Event shall be to enforce the
Seller's obligation to purchase such Receivables pursuant to this Agreement;
provided, however, that the Seller shall indemnify the Trustee, including its
officers, directors, employees and agents, and the Trust and the
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them, as a result of third party claims
arising out of the events or facts giving rise to such breach. Upon receipt of
the Purchase Amount, the Purchaser shall cause the Trustee to release the
related Receivable File to the Seller and to execute and deliver all instruments
of transfer or assignment, without recourse, as are necessary to vest in the
Seller title to the Receivable.
5.3 Seller's Assignment of Purchased Receivables. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser
shall assign, without recourse (except as provided herein), representation or
warranty, to the Seller all of the Purchaser's right, title and interest in and
to such Receivables, and all security and documents and all Other Conveyed
Property conveyed to the Purchaser directly relating thereto, without recourse,
representation or warranty, except as to the absence of liens, charges or
encumbrances created by or arising as a result of actions of the Purchaser or
the Trust. Such assignment shall be a sale and assignment outright, and not for
security. If, following the reassignment of a Purchased Receivable in any
enforcement suit or legal proceeding, it is held that the Seller may not enforce
any such Receivable on the ground that it shall not be a real party in interest
or a holder entitled to enforce the Receivable, the Purchaser shall, at the
expense of the Seller, take such steps as the Seller deems reasonably necessary
to enforce the Receivable, including bringing suit in the Purchaser's or in the
name of the Trustee on behalf of the Certificateholders.
5.4 Waivers. No failure or delay on the part of Purchaser or the
Trustee as assignee of the Purchaser in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or future
exercise thereof or the exercise of any other power, right or remedy.
5.5 Limitation on Liability of the Seller and Others. Each of the
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement. The Seller shall be under no obligation to appear in,
prosecute or defend any legal action that is not incidental to its obligations
under this Agreement, the Pooling and Servicing Agreement or other related
documents or instruments and that in its opinion may involve it in any expense
or liability.
5.6 Amendment. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Seller and the Purchaser;
provided, however, that
14
<PAGE>
any such amendment that would materially adversely affect the rights of the
Certificateholders of any Class under the Pooling and Servicing Agreement must
be consented to by Certificateholders representing at least 51% of the
then-outstanding Certificate Balance of each Class or such other Person
adversely affected. Certificates held by the Purchaser or the Seller, or any
Affiliate thereof, shall be deemed not outstanding for purposes of the preceding
sentence.
5.7 Notices. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or facsimile and addressed or
delivered to it at its address (or in case of facsimile, at its facsimile number
at such address) shown in the opening portion of this Agreement or at such other
address as may be designated by it by notice to the other party and, if mailed
or sent by telegraph or facsimile, shall be deemed given when mailed,
communicated to the telegraph office or transmitted by facsimile.
5.8 Severability of Provisions. If any one or more of the covenants,
provisions or terms of this Agreement is invalid, for any reason whatsoever,
then such covenants, provisions of terms shall be deemed severable from the
remaining covenants, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement.
5.9 Intention of the Parties. The execution and delivery of this
Agreement shall constitute an acknowledgement by the Seller and the Purchaser
that they intend that the assignments and transfers contemplated herein
constitute a sale and assignment outright, and not for security, of the
Receivables and the Other Conveyed Property, conveying good title thereto free
and clear of any Liens, from the Seller to the Purchaser, and that the
Receivables and the Other Conveyed Property shall not be a part of the Seller's
estate in the event of the bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, or the occurrence of another similar event, of or
with respect to, the Seller. In the event that such conveyance is determined to
be made as security for a loan made by the Purchaser or the Trust or the Trustee
on behalf of the Certificateholders to the Seller, the parties intend that the
Seller shall have granted to the Purchaser a security interest in all of its
right, title and interest in and to the Receivables and the Other Conveyed
Property conveyed by it pursuant to this Agreement, and that this Agreement
shall constitute a security agreement under applicable law.
5.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF AND THE OBLIGATIONS RIGHTS AND REMEDIES
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE IN ACCORDANCE WITH SUCH LAWS.
5.11 Counterparts. For the purpose of facilitating the execution of
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
15
<PAGE>
5.12 Conveyance of the Receivables and the Other Conveyed Property to
the Trustee on Behalf of the Trust. The Seller acknowledges that the Purchaser
intends, pursuant to the Pooling and Servicing Agreement, to convey the
Receivables and Other Conveyed Property, together with its rights under this
Agreement, to the Trustee on the date hereof. The Seller acknowledges and
consents to such conveyance and waives any further notice thereof and covenants
and agrees that the representations and warranties of the Seller contained in
this Agreement and the rights of the Purchaser hereunder are intended to benefit
the Trustee on behalf of the Certificateholders. In furtherance of the
foregoing, the Seller covenants and agrees to perform its duties and obligations
hereunder, in accordance with the terms hereof for the benefit of the Trustee on
behalf of the Certificateholders and that, notwithstanding anything to the
contrary in this Agreement, the Seller shall be directly liable to the Trust
(notwithstanding any failure by the Servicer, the Backup Servicer or the
Purchaser to perform its duties and obligations hereunder or under the Pooling
and Servicing Agreement) and that the Trustee may enforce the duties and
obligations of the Seller, under this Agreement against the Seller,
respectively, for the benefit of the Trustee on behalf of the
Certificateholders.
5.13 Nonpetition Covenant. The Seller shall not petition or otherwise
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Purchaser under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Purchaser or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Purchaser.
5.14 No Recourse. Without limiting the obligations of the Seller
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any affiliate, employee, incorporator, stockholder,
officer or director, as such, of the Seller, or any affiliate, employee,
incorporator, stockholder, officer or director, as such, of any predecessor or
successor of the Seller.
5.15 Third Party Beneficiaries. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Each of the Backup Servicer, the Custodian and
the Trustee on its own behalf and on behalf of the Certificateholders shall be a
third-party beneficiary to the provisions of this Agreement, and shall be
entitled to rely upon and to enforce directly such provisions.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed by their respective officers there unto duly authorized
as of the date and year first above written.
ASTA AUTO RECEIVABLES COMPANY
By: /s/ Gary Stern
-----------------------------
Name: Gary Stern
Title: President
ASTA FUNDING, INC.
By: /s/ Mitchell Harmon
------------------------------
Name: Mitchell Herman
Title: CFO
