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EXHIBIT 10.98
CONSENT AND AMENDMENT TO
POOLING AND SERVICING AGREEMENTS
THIS CONSENT AND AMENDMENT, dated as of March 31, 1999 (the
"Amendment") to the Pooling and Servicing Agreement, dated as October 1, 1995,
and the Pooling and Servicing Agreement, dated as of October 21, 1996 (each, as
such agreement may be amended, supplemented, amended and restated or otherwise
modified in accordance with the terms thereof, a "Pooling Agreement" and
together, the "Pooling Agreements"), each among National Financial Auto Funding
Trust (f/k/a NAFCO Funding Trust) ("Funding Trust"), National Auto Finance
Company, Inc. ("NAFI"), as successor to National Auto Finance Company L.P., and
Xxxxxx Trust and Savings Bank, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the parties hereto desire to amend certain terms of the
Pooling Agreements;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein
shall have the respective meanings assigned to them as set forth in the Pooling
Agreements.
SECTION 2. Amendments to the Pooling Agreements. (a) Section 3.06(a) of
each of the Pooling Agreements is hereby amended by deleting the text set forth
in each of such clauses and substituting therefor the following:
(a) The Servicer shall proceed diligently to collect all
payments called for under the terms and provisions of the
Contracts, and shall service the Contracts in a manner
consistent with the servicing standards and procedures
generally accepted in the financial services industry for
similar Contracts, and as otherwise expressly provided by
this Agreement. Consistent with the foregoing, the Servicer
may in its discretion (i) waive any late payment charge and
(ii) extend the then current maturity date of a Contract by
two months, once during each calendar year at the request of
the related Obligor on account of the Obligor's adverse
financial circumstances that affect the Obligor's ability to
make payments under such Contract; provided, however, that the
Servicer may not so extend the then current maturity date of
Contract more than twice during the life of such Contract;
provided further, that the Average Extension Ratio for any
calendar month, commencing May 1999, shall not exceed 2.5% for
each January, August, September and December and 2.0% for any
other calendar month. The Average Extension Ratio for any Due
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Period shall equal the arithmetic average of the Extension
Ratios for such Due Period and the two preceding Due Periods
(for example, the Average Extension Ratio for May 1999 will
equal the arithmetic average of the Extension Ratios for the
months February 1999, March 1999 and April 1999 and will be
included in the report delivered by the Servicer pursuant to
Section 3.17 on or before the June 1999 Reporting Date). The
Extension Ratio for any calendar month shall equal the
percentage equivalent of a fraction the numerator of which is
the aggregate number of Contracts that have been extended
during such calendar month and the denominator of which is the
aggregate number of Contracts outstanding as of the first day
of such calendar month.
SECTION 3.
(a) Waiver of Average Extension Ratio Violations and the March
1999 and April 1999 Due Periods. Notwithstanding anything to the contrary set
forth herein, Financial Security Assurance, Inc., by signature hereto, hereby
permanently waives any default under Section 3.06 of the Pooling Agreements with
regard to any month prior to March 1999 where the Average Extension Ratio is
higher than permitted levels.
(b) Notwithstanding anything to the contrary set forth herein,
with regard to the March 1999 Due Period, the Average Extension Ratio shall be
equal to the March 1999 Extension Ratio and shall not exceed 2.5%.
(c) Notwithstanding anything to the contrary set forth herein,
with regard to the April 1999 Due Period, the Average Extension Ratio shall be
equal to the arithmetic average of the April 1999 Extension Ratio and March 1999
Extension Ratio and shall not exceed 2.25%.
SECTION 4. Effectiveness of Agreement. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of any of
the parties to the Pooling Agreements under the Pooling Agreements, nor alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Pooling Agreements, all of which are
hereby ratified and affirmed in all respects by the parties hereto and shall
continue in full force and effect. This Amendment shall apply and be effective
only with respect to the provisions of the Pooling Agreements specifically
referred to herein and any references in the Pooling Agreements to the
provisions of the Pooling Agreements specifically referred to herein shall be to
such provisions as amended by this Amendment.
SECTION 5. Effectiveness of Amendment. This Consent and Amendment
shall become effective when counterparts hereof executed and delivered on behalf
of each party hereto shall have been received by the Certificate Insurer and the
Certificate Insurer shall
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have executed a written consent to this Amendment pursuant to Section 10.01 of
each of the Pooling Agreements.
SECTION 6. Instruction to the Trustee. NAFI by its execution of this
Consent and Agreement hereby directs Chase Manhattan Bank Delaware, as Owner
Trustee of Funding Trust, to execute and deliver this agreement on behalf of
Funding Trust.
SECTION 7. Execution in Counterparts. This Consent and Amendment may be
executed by the parties hereto in several counterparts and be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 8. Governing Law. THIS CONSENT AND AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
XXXXXX TRUST AND SAVINGS BANK, as trustee
By: /s/ EXECUTED BY AUTHORIZED OFFICER
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Name: Executed by Authorized Officer
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Title:
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NATIONAL FINANCIAL AUTO FUNDING TRUST
(f/k/a NAFCO Funding Trust)
By: CHASE MANHATTAN BANK DELAWARE
(as successor to Chase Manhattan
Bank USA, N.A.), not in its
individual capacity but solely as
Owner Trustee
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
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Title: Trust Officer
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NATIONAL AUTO FINANCE COMPANY, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Vice Chairman and Chief Executive
Officer
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Consented and Agreed:
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ EXECUTED BY AUTHORIZED OFFICER
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Name: Executed by Authorized Officer
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Title:
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