1
EXHIBIT 10.94
AMENDMENT ONE
Amendment One to Back-up Servicing Agreement (the "Amendment") is made
as of the 26th day of March, 1999, by and among CSC Logic/MSA LLP d/b/a Loan
Servicing Enterprise, a Texas limited liability partnership ("LSE", or, "the
Back-up Servicer"), National Auto Finance Company, Inc. (as "Servicer"), First
Union National Bank (as "Lender" and as "Class B Certificateholder"), and
acknowledged and agreed by Bankers Trust Company (as "Trustee" of National
Financial Auto Receivables Master Trust) and National Financial Auto Funding
Trust II (as "Class C Certificateholder") (collectively, the "Parties").
WHEREAS, LSE and the Parties have entered into that certain Back-up
Servicing Agreement dated as of June 16, 1998 (the "Agreement") by which the
Parties requested LSE to perform certain back-up servicing duties related to
motor vehicle contracts owned or to be acquired by the Parties; and
WHEREAS, LSE and the Parties now desire to amend the Agreement to
conform to modified services and/or procedures mutually agreed to by such
parties; and
WHEREAS, the Back-up Servicing Agreement may be amended or modified by
mutual written consent of the parties thereof, without the consent of third
parties; and
NOW THEREFORE, in consideration of the covenants and conditions
contained in this Amendment, the parties hereto, intending to legally bound,
hereby agree to the changes and additions as follow (capitalized terms not
defined herein shall have the meanings ascribed thereto in the Agreement):
1. EXHIBIT A IS DELETED IN ITS ENTIRETY AND REPLACED WITH AMENDED
AND RESTATED EXHIBIT A, ATTACHED HERETO AS ATTACHMENT 1.
2. THE FIRST AND SECOND SENTENCES OF SECTION 2.05 (e) ARE DELETED
IN THEIR ENTIRETY AND REPLACED WITH THE FOLLOWING SENTENCE:
The Back-up Servicing Fee for the services specified in
Amended and Restated Exhibit A shall be $6,500.00 per month.
The Parties hereto hereby confirm that each of the representations and
warranties set forth in the Agreement are true and correct as of the date first
written above with the same effect as though each had been made as of such date,
except to the extent that any of such representations and warranties expressly
relate to earlier dates.
Except as expressly amended by the terms of this Amendment, all terms
and conditions of the Agreement shall remain in full force and effect.
This Amendment may be executed by the Parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement.
NAFI/1st Union/LSE 04/06/99
Back-Up Servicing Agreement
1
2
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
National Auto Finance Company, Inc., by its executing this Amendment,
hereby directs Chase Manhattan Bank Delaware, as Owner Trustee of National
Financial Auto Funding Trust II to acknowledge, agree to, execute and deliver
this Amendment on behalf of National Financial Auto Funding Trust II.
First Union National Bank and National Financial Auto Funding Trust II,
representing 100% of all Class B Certificateholders of the Trust and 99% of
all Class C Certificateholders of the Trust, respectively, hereby authorize,
empower and direct the Trustee to execute and deliver on behalf of the Trust,
this Amendment.
IN WITNESS WHEREOF, LSE and the Parties have caused this Amendment to be duly
executed by their respective authorized officers to become effective as of March
26th, 1999.
CSC Logic/MSA LLP First Union National Bank,
d/b/a Loan Servicing Enterprise, as Lender and as Class B
as Back-up Servicer Certificateholder
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
------------------------------- --------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Director Title: Director
National Auto Finance Company, Inc.,
as Servicer
By: /s/ XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice Chairman and Chief
Executive Officer
ACKNOWLEDGED AND AGREED:
Bankers Trust Company, National Financial Auto Funding
not in its individual capacity, Trust II, as Class C Certificateholder
but solely as Trustee of By: Chase Manhattan Bank Delaware,
National Financial Auto not in its individual capacity,
Receivables Master Trust but solely as Owner Trustee
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXX XXXXX
------------------------------- --------------------------
Name: XXXXXX X. XXXXX Name: XXXXX XXXXX
Title: VICE PRESIDENT Title: TRUST OFFICER
NAFI/1st Union/LSE 03/26/99
Back-Up Servicing Agreement
2
3
AMENDED AND RESTATED EXHIBIT A
MONTHLY BACK-UP SERVICING DUTIES
MONTHLY BACK-UP SERVICING FEES
Monthly Duties:
o Upon completion of data mapping as referenced in Section 2.03(a) of
this Agreement, the Back-up Servicer will load the information from the
Monthly Extract Files ("Monthly Files") onto LSE's system within 7 days
of receipt of the complete files.
Monthly Files:
Loan File
Name and Address File;
o On the date on which the Servicer's Certificate is due to Lender, the
Back-up Servicer shall receive from the Servicer the following reports
in order to balance such reports to the Monthly Files:
Trial Balance (derived from the BNI System)
Suspense Account
Insurance Tracking Status (once available)
Aged Delinquency Summary
Servicer's Certificate (Month-End Investor Report)
Repossession Report
Inventory Report
Within ten (10) days of receipt of complete Monthly Files and reports specified
above, Back-up Servicer will run a conversion program which will load the latest
Monthly Files received from the Servicer onto the LSE test system.
o The Back-up Servicer will produce reports from the conversion and will
compare the resulting information to the reports received from the
Servicer. In the event of any discrepancy between the Monthly Files
provided by Servicer and the reports, the Back-up Servicer shall
promptly notify the Servicer and Lender of such discrepancy. If, within
15 days of such notice being provided to the Servicer and Lender, the
Back-up Servicer and the Servicer are unable to resolve such
discrepancy, the Back-up Servicer shall promptly notify the Servicer
and Lender in writing. Following receipt of the notice provided in the
foregoing sentence, the Servicer shall deliver to the Lender no later
than the related Distribution Date (as such term is defined in the
Pooling Agreement) a certificate describing the nature and amount of
such discrepancies and the actions the Servicer proposes to take with
respect thereto.
o Collections: With regard to Collections, Back-up Servicer shall
identify collection account stratification, identify collection
policies and determine collection abbreviations.
o Post Collections: With regard to Post-Collections, Back-up Servicer
shall identify assignment inventory and location, identify location of
vehicles and identify auction personnel and procedures.
Site visits:
Back-up Servicer shall conduct visits at the Servicer's site as frequently as
the Lender or Servicer determine appropriate, provided that any such visits have
been approved in advance
NAFI/1st Union/LSE 04/06/99
Back-Up Servicing Agreement
3
4
by Lender or Servicer. The fees for such visits shall be charged to the Servicer
at a mutually agreed upon rate (and within CSC corporate guidelines), plus
actual, reasonable travel expenses of LSE personnel.
NAFI/1st Union/LSE 04/06/99
Back-Up Servicing Agreement
4
