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EXHIBIT 10.102
AMENDMENT TO
CUSTODIAN AGREEMENT
THIS AMENDMENT, dated March , 1999 (this "Amendment") to the Custodian
Agreement, dated October 15, 1998 (the "Custodian Agreement"), by and among
XXXXXX TRUST AND SAVINGS BANK, an Illinois banking corporation ("Custodian"),
NATIONAL AUTO FINANCE COMPANY, INC. as Administrator (the "Company" or "NAFI")
and XXXXXX TRUST AND SAVINGS BANK as (i) trustee pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 1995, pursuant to which the National
Auto Finance 1995-1 Trust was formed and the Pooling and Servicing Agreement,
dated as of October 21, 1996, pursuant to which the National Auto Finance 1996-1
Trust was formed, each among National Financial Auto NFAFT ("NFAFT"), NAFI, as
successor to National Auto Finance Company L.P., and Xxxxxx Trust and Savings
Bank, as trustee, (ii) trust collateral agent pursuant to the Sale and Servicing
Agreement, dated as of June 29, 1997, among NFAFT, NAFI, National Auto Finance
1997-1 Trust and Xxxxxx Trust and Savings Bank, as trust collateral agent and
the Sale and Servicing Agreement, dated as of December 15, 1997, among NFAFT,
NAFI, National Auto Finance 1998-1 Trust and Xxxxxx Trust and Savings Bank, as
trust collateral agent, and (iii) trust collateral agent pursuant to the
Indenture, dated as of June 29, 1997, between National Auto Finance 1997-1 Trust
and Xxxxxx Trust and Savings Bank, as trust collateral agent and indenture
trustee and the Indenture, dated as of December 15, 1997, between National Auto
Finance 1998-1 Trust and Xxxxxx Trust and Savings Bank, as trust collateral
agent and indenture trustee (each such agreement referenced in the preceding
clauses (i) through (iii), as such agreement has been amended as of the date
hereof and as the same may be further amended, supplemented, amended and
restated or otherwise modified in accordance with the terms thereof, an
"Agreement" and, collectively, the "Agreements"). Xxxxxx Trust and Savings Bank
in its capacity as trustee as referenced in clause (i) above and trust
collateral agent as referenced in clauses (ii) and (iii) above shall be referred
to herein as "Trustee." National Auto Finance 1995-1 Trust, National Auto
Finance 1996-1 Trust, National Auto Finance 1997-1 Trust, and National Auto
Finance 1998-1 Trust, shall each be referred to herein as a "NAFI Trust" and
together shall be referred to herein as the "NAFI Trusts."
WITNESSETH
WHEREAS the parties hereby desire to amend certain terms of the Custodian
Agreement.
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 such terms in the
Custodian Agreement.
SECTION 2. AMENDMENTS TO THE CUSTODIAN AGREEMENT
Section 4 of the Custodian Agreement shall be amended as follows:
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MAINTENANCE OF CUSTODIAN DOCUMENTS. (a) Senior Interests and Perfection on
behalf of Senior Interest. The Custodian agrees to maintain the Custodian
Documents in its possession at its office located at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 or at such other location as Custodian
shall give Trustee thirty (30) days advance written notice. It is intended that
by the Custodian's possession of the Custodian Documents pursuant to this
Custodian Agreement that the Trustee will be deemed to have possession of the
Custodian Documents for purposes of Section 9-305 of the UCC as in effect in the
state in which the Custodian Documents are located, for itself and as Trustee on
behalf of the Series 1995-1 Certificateholders, the Series 1996-1
Certificateholders, the Series 1997-1 Noteholders, the Series 1998-1 Noteholders
(the "Related Security Holders") the Collateral Agent and Financial Security
Assurance Inc. ("FSA") (the interest of all such holders herein, the "Senior
Lien Holders"), all as set forth in the Subordination and Intercreditor
Agreement, by and among NFAFT, the NAFI Trusts, NAFI, First Union National Bank
("FUNB"), FSA and Xxxxxx (the "Intercreditor Agreement").
(b) Subordinate Interest. The Custodian acknowledges, pursuant to the
Revolving Credit Term Loan and Security Agreement (the "Credit Agreement") among
NFAFT, NAFI, and FUNB, that FUNB has been granted a security interest,
subordinate only to the interests of the Senior Lien Holders in the Custodian
Documents and, until the applicable Insurance Termination Date related thereto
such security interests of FUNB are subordinate only to the interests of the
Senior Lien Holders under the Intercreditor Agreement and such security
interests of FUNB shall, immediately upon the related Insurance Termination Date
(as defined in the immediately succeeding sentence) be as a perfected security
interest prior to all other Liens, claims and encumbrances in, to, and under the
Custodian Documents, until the Final Insurance Termination Date related thereto
related to such Insurance Termination Date with respect to the related NAFI
Trust. The "Insurance Termination Date" with respect to any NAFI Trust is the
termination date of (i) in the case of National Auto Finance 1995-1 Trust, the
Insurance and Indemnity Agreement dated as of November 21, 1995, (ii) in the
case of National Auto Finance 1996-1 Trust, the Insurance and Indemnity
Agreement dated as of November 13, 1996, (iii) in the case of National Auto
Finance 1997-1 Trust, the Insurance and Indemnity Agreement dated as of July 23,
1997, and (iv) in the case of National Auto Finance 1998-1 Trust, the Insurance
and Indemnity Agreement dated as of January 20, 1998, in each case among FSA,
NFAFT, and NAFI and, in the case of the latter two agreements, also among the
related NAFI Trust, in each case as such Insurance and Indemnity Agreement
terminates in accordance with its terms pursuant to Section 4.01 thereof. The
Custodian covenants that it shall, immediately after each such Insurance
Termination Date with respect to any NAFI Trust, unless there shall have been a
foreclosure by any of the Senior Lien Holders under the Intercreditor Agreement,
(i) hold the Custodian Documents related to such NAFI Trust as bailee and
Custodian of FUNB for the purpose of perfecting the Lender's interest in a sale
of, or security interest in the Custodian Documents, until the Obligations (as
defined in the Credit Agreement) are paid in full to FUNB, (ii) not act to harm
the interests of FUNB in such bailment, and (iii) only follow the written
instructions of FUNB with respect to such bailment until the Obligations are
paid in full to the Lender. Until such time as the Insurance Termination Date
with respect to the related NAFI Trust has occurred, (i) the interest of FUNB in
the related Custodian Documents shall be subordinate to the interests of the
Senior Lien Holders, as aforesaid and as set forth in the Intercreditor
Agreement, (ii) no authority shall be conferred upon FUNB to direct any
Custodian with respect to the NAFI Trust to which such Custodian's duties
relate, and (iii) the Custodian shall maintain possession of any
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Custodian Documents for purposes of perfection of a sale thereof, or security
interest therein, only for the benefit of the Senior Lien Holders as described
in paragraph (a) above and shall not maintain possession of any Custodian
Documents for purposes of perfection of a sale thereof, or security interest
therein, for any other person. Until the Insurance Termination Date with respect
to the related NAFI Trust has occurred, the Custodian shall continue to follow
the direction of the Controlling Party exclusively. Custodian shall be notified
in writing by FUNB when the Obligations are paid in full and at such time, the
Custodian shall then cease to hold the Custodian Documents for the benefit of
FUNB, and shall follow the procedures in Section 10 of the Custodian Agreement.
In the event of a foreclosure by any of the Senior Lien Holders under the
Intercreditor Agreement, the Custodian shall dispose of or retain the Custodian
Documents as directed by such foreclosing creditor free and clear of the
interests of FUNB hereunder.
SECTION 3. FSA, by execution of its acknowledgement hereto, consents to
this Amendment and, as Controlling Party under the Agreements, directs Xxxxxx
Trust and Savings Bank as Trustee and as Custodian to enter into this Amendment.
In the event of any contradiction or ambiguity between this Agreement and
the Intercreditor Agreement, the terms of the Intercreditor shall govern. All
disputes with respect to matters addressed in the Intercreditor Agreement shall
be determine by reference to the Intercreditor Agreement exclusively and no
provisions of this Agreement or any other Agreement should be interpreted as
altering, amending, explaining or clarifying and provision of the Intercreditor
Agreement.
Nothing contained herein is intended to or should be deemed to (i) restrict
in any manner the authority or discretion of the Controlling Party under the
Agreements or (ii) any of the rights or remedies available to any of the Senior
Lien Holders under the Intercreditor Agreement or the Agreements or any other
Controlling Party (as defined in the Agreements).
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IN WITNESS WHEREOF, each of the parties hereto have executed this Custodian
Agreement as of the date first above written.
XXXXXX TRUST AND SAVINGS BANK,
as Custodian
/s/ XXXXXX X. XXXXX
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By: XXXXXX X. XXXXX
Title: VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
/s/ XXXXXX X. XXXXX
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By: XXXXXX X. XXXXX
Title: VICE PRESIDENT
NATIONAL AUTO FINANCE COMPANY, INC.
/s/ XXXXX X. XXXXX
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By: Xxxxx X. Xxxxx
Title: Vice Chairman and
Chief Executive Officer
Acknowledged and Agreed
FINANCIAL SECURITY ASSURANCE INC.
/s/ XXXXXXX X. XXXXXXXXX
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By: Xxxxxxx X. Xxxxxxxxx
Title: MD
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FIRST UNION NATIONAL BANK
/s/ C. BRAND XXXXXXX
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By: C. BRAND XXXXXXX
Title: VICE PRESIDENT
