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EXHIBIT 10.127
AMENDMENT NUMBER 4 TO THE AMENDED AND RESTATED
POOLING AND ADMINISTRATION AGREEMENT
THIS AMENDMENT NUMBER 4, dated as of February 22, 2000 (the
"Amendment"), to the AMENDED AND RESTATED POOLING AND ADMINISTRATION AGREEMENT,
dated as of December 8, 1994 (as amended, restated and otherwise modified from
time to time, the "Agreement"), among NATIONAL FINANCIAL AUTO FUNDING TRUST II
(successor to National Financial Auto Funding Trust, f/k/a NAFCO Funding Trust),
a Delaware business trust ("NAFCO"), as transferor, NATIONAL AUTO FINANCE
COMPANY, INC. (f/k/a National Auto Finance Company L.P.), a Delaware corporation
("National Auto"), as initial Administrator, and BANKERS TRUST COMPANY, a New
York banking corporation, as Trustee.
W I T N E S S E T H:
WHEREAS, NAFCO, National Auto and the Trustee have previously entered
into the Agreement whereby NAFCO and Trustee formed National Financial Auto
Receivables Master Trust (the "Trust") of which First Union National Bank is the
sole Class B Certificateholder (the "Class B Certificateholder") and NAFCO is
the holder of 99% of the Class C Certificates;
WHEREAS, National Auto has stated that an Unmatured Amortization Event
will occur on February 21, 2000 under the Agreement by reason of the
insufficiency of amounts available on such date to pay the entire
Overcollateralization Deficit resulting from the increase in the Minimum
Required Overcollateralization Level on February 21, 2000 (the "Expected
Liquidation Event");
WHEREAS, as a result of such Expected Liquidation Event, an
Administrator Default will occur automatically under Section 10.01(h) of the
Agreement; and
WHEREAS, the parties desire to amend certain terms of the Agreement, as
amended, and agree to additional terms and conditions regarding, inter alia, the
Expected Liquidation Event and limited waiver of the Administrator Default
resulting solely therefrom.
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise amended by the terms of this
Amendment, terms used in this Amendment shall have the meanings assigned in
Appendix A to the Agreement.
SECTION 2. Amendments to Agreement. Effective upon the execution and
delivery of this Amendment:
(a) The definition of "Trust Documents" in Appendix A to the Agreement
shall be amended and restated in its entirety to read:
"`Trust Documents' means any agreements, certificates, or other
documents executed
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in connection with any of the National Auto Finance 1995-1 Trust, the National
Auto Finance 1996-1 Trust, the National Auto Finance 1997-1 Trust, the National
Auto Finance 1998-1 Trust, the National Auto Finance 1999-1 Trust or the
Revolving Credit, Term Loan and Security Agreement, dated as of March 31, 1999,
by and among NAFCO, National Auto and First Union National Bank."
(b) Paragraphs (viii) and (x) of Section 4.03(a) shall be amended and
restated in their entirety to read:
"(viii) to the Class B Certificateholders, an amount equal to
the sum of the Class B Principal Distributable Amount and any outstanding Class
B Principal Carryover Shortfall as of the close of business on the preceding
Distribution Date, provided that for the February 21, 2000 Distribution Date
only, payment of the Overcollateralization Deficit component of the Class B
Principal Distributable Amount, consisting of amounts attributable to clause (c)
of the definition of the Minimum Required Overcollateralization Level (the
amount calculated pursuant to such proviso, the "Clause 8 Deferred Amount"),
shall be (1) deferred until March 21, 2000, but, to avoid double counting, shall
not be included in the calculation of the Overcollateralization Deficit
otherwise payable on March 21, 2000, and (2) disregarded, with respect to
calculation of the amounts payable pursuant to clause (xv) of this Section;"
"(x) on any Distribution Date occurring prior to the
Amortization Commencement Date, an amount equal to any Overcollateralization
Deficit remaining after giving effect to the distributions pursuant to clause
(vii) above and clause (viii) above, either (as specified in the Distribution
Date Statement) (a) to the Excess Funding Account or (b) pro rata to the Class A
Certificateholders and Class B Certificateholders in reduction of the respective
outstanding principal amounts thereof, provided that for the February 21, 2000
Distribution Date only, payment of the amount provided for in clause (c) of the
definition of the Minimum Required Overcollateralization Level component of the
Overcollateralization Deficit distribution pursuant to this clause (x) shall be
(1) deferred until March 21, 2000 (the amount calculated pursuant to such
proviso, the "Clause 10 Deferred Amount"), but, to avoid double counting, shall
not be included in the calculation of the Overcollateralization Deficit
otherwise payable on March 21, 2000, and (2) disregarded, with respect to
calculation of the amounts payable pursuant to clause (xv) of this Section;"
(c) Section 4.03(b) shall be amended and restated in its entirety to
read as follows:
"(b) Notwithstanding anything to the contrary in this Agreement,
payment of the Clause 8 Deferred Amount and the Clause 10 Deferred Amount will
be deferred until March 21, 2000 and distributions on the February 21, 2000
Distribution Date shall be made as if an Overcollateralization Deficit shall not
exist.
(d) The last sentence of Section 4.03(d)(2) shall be amended and
restated in its entirety to read:
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"If a Late Fee Trigger Event shall have occurred and be continuing,
Late Fees shall not be available to pay amounts set forth in Section 4.03(a)(i)
hereof but shall be available for application to pay all amounts owing pursuant
to Section 4.03(a)(ii) through Section 4.03(a)(xv) hereof; provided, further,
that any Late Fees not necessary for application pursuant to Section 4.03(a)
(ii) through Section 4.03(a)(xii) hereof shall be paid to Loan Servicing
Enterprise, for so long as it shall continue to be Servicer of the Receivables
(whether as Administrator hereunder or as Servicer under the Portfolio Servicing
Agreement or any agreement of similar import), as additional compensation,
payable pursuant to the priority set forth in Section 4.03(a)(xiii) hereof."
(e) Section 4.06(a) shall be amended and restated in its entirety to
read:
"(a) If amounts distributed on any Distribution Date pursuant to
Section 4.03 are not sufficient to make the entire distributions required on
such Distribution Date by Section 4.03(a) (iv), (v), (vii) and (viii), the
Administrator shall cause the Trustee to withdraw funds from the Reserve Fund to
the extent available therein, and apply such funds to complete the distributions
pursuant to Section 4.03(a)(iv), (v), (vii) and (viii) in the priority therein
provided."
(f) Section 10.01(g) shall be amended and restated in its entirety to
read:
"(g) any Servicer Default, Servicer Termination Event (as each such
term is defined in the applicable Trust Document or transaction document) or any
other breach of servicing or administration obligations (which has not been duly
waived or cured) under any of the Trust Documents or under any securitization or
warehouse transaction or any other transaction to which First Union National
Bank, or any of its affiliates or subsidiaries is a party, shall occur;"
SECTION 3. Excess Funding Account. Except with respect to funding
requests submitted to the Class B Certificateholders no later than February 22,
2000, notwithstanding anything in the Agreement to the contrary, National Auto
agrees that it shall not withdraw any amounts on deposit in the Excess Funding
Account except for the payment of interest and principal on the Class B
Certificates.
SECTION 4. Limited Waivers.
(a) In consideration of the execution and delivery of this Amendment,
the Class B Certificateholders hereby waive, for the limited period up to and
including the earliest to occur of the events in clauses (a), (b) or (c) below
or the April 21, 2000 Distribution Date, the Administrator Default that would be
triggered solely as a result of the Expected Liquidation Event; provided that
if: (a) any Administrator Default (other than the Administrator Default
resulting from the Expected Liquidation Event) has occurred, (b) National Auto
ceases to act as servicer under any servicing agreement to any Trust Document
except for the Servicing Agreement (the "Nuvell Facility"), dated as of February
4, 2000, by and between Nuvell Credit Corporation and National Auto (provided
that, if Financial Security Assurance Inc. terminates any servicing agreement
with National Auto, then, notwithstanding the foregoing exception for the Nuvell
Facility, such Administrator Default shall be deemed to have occurred) or (c)
any Material Adverse Effect occurs prior to April 21, 2000 and
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continues unremedied until the lesser of 30 calendar days and April 21, 2000,
then such Administrator Default shall be deemed to have occurred as of the
earliest date that any of (a), (b) or (c) shall have occurred. The limited
waiver in this Section 4(a) is effective only in this particular instance, only
for the specific purpose for which it is given and only for the limited period
set forth above.
(b) In consideration of the execution and delivery of this Amendment,
Non-Dealer Originations originated by a Non-Dealer shall be deemed Eligible
Receivables to the extent that the Non-Dealer Originations originated by such
Non-Dealer Originator do not exceed (i) until the last day of the March, 2000
Calculation Period, five percent 5% of the Eligible Pool Balance and (ii)
thereafter, three percent (3%) of the Eligible Pool Balance.
SECTION 5. Liquidation of Collateral. The parties hereto acknowledge
and agree that the Class B Certificateholders shall have the right, by notice in
writing delivered to the Trustee, to direct the Trustee to foreclose, seize,
sell or otherwise dispose of all or any part of the Trust Assets at anytime
after the occurrence of a Liquidation Event, provided, however that such right
shall not be exercisable solely by reason of the occurrence of the Expected
Liquidation Event, until April 21, 2000.
SECTION 6. Representations and Warranties.
(a) NAFCO hereby confirms that (i) each of the representations and
warranties set forth in Section 7.01 of 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 and (ii) on February 29, 2000, a
Liquidation Event shall occur, by reason of the Expected Liquidation Event.
(b) National Auto hereby confirms that (i) each of the representations
and warranties set forth in Section 8.01 of 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 and (ii) on February 29, 2000, a
Liquidation Event shall occur, by reason of the Expected Liquidation Event.
SECTION 7. Cooperation.
(a) National Auto, NAFCO, the Trust and their respective affiliates,
and each of their employees, officers and directors shall cooperate, in good
faith, with the Class B Certificateholders (i) in giving the Class B
Certificateholders' representatives access to all credit files relating to the
Receivables for the purpose of making copies therefrom and conducting and
underwriting and documentation review thereof, (ii) in connection with servicing
operations and/or delinquencies, including cooperating, in good faith, with the
Backup Servicer to obtain any and all records requested, including, but not
limited to, all data files and (iii) in ensuring a proper chain of title from
National Auto to NAFCO and from NAFCO to the Trust.
(b) National Auto shall forthwith provide the Class B
Certificateholders with notice of any (1) suspension or cessation of funding
and/or purchases, for a period more than five (5)
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consecutive Business Days, under the Contract Sale Agreement, dated as of
February 4, 2000, by and between National Auto and Nuvell Credit Corporation or
(2) termination of such agreement.
SECTION 8. Further Assurances. NAFCO and National Auto agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Class B Certificateholders
to more fully effect the purposes of this Amendment.
SECTION 9. Conditions Precedent. As a condition precedent to the
limited waiver contained in Section 4 of this Amendment each of the following
shall have been executed and delivered: (a) Amendment Number 1, dated as of
February 22, 2000, to the Certificate Purchase Agreement, dated as of December
8, 1994, among NAFCO, National Auto and the Class B Certificateholders, (b)
Second Amendment, dated as of February 22, 1999, to that certain Revolving
Credit, Term Loan and Security Agreement, dated as of March 31, 1999, by and
between National Financial Auto Funding Trust , National Auto Finance Company,
Inc. and First Union National Bank, (c) [the Release, dated February 22, 2000,
by the NAFI Parties (as defined therein)], (d) an opinion of Xxxxxxxx &
Xxxxxxxx, in a form and substance satisfactory to the Class B
Certificateholders, to the effect that each of the items referred to in clauses
(a), (b) and (c) as well as this Amendment and the Agreement, as amended by this
Amendment, has been duly authorized, executed and delivered by the parties to
such agreements and is the legal, valid, and binding obligation of the parties
to such agreement, enforceable against such parties in accordance with its
terms, (e) the delivery to the Class B Certificateholders of a certified copy of
each agreement between Nuvell Credit Corporation and National Auto, and (f)
payment of, or reimbursement for, its reasonable out-of-pocket costs and
expenses, including legal fees and disbursements, incurred in connection with
the negotiation, development, preparation and attention to the execution of the
amendments and other certificates, letters and documents.
SECTION 10. Effectiveness of Agreement. Except as expressly amended by
the terms of this Amendment, all terms and conditions of the Agreement, as
amended by Amendments Xx. 0, Xxxxxxxxx Xx. 0, and Amendment No. 3 shall remain
in full force and effect.
SECTION 11. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be executed by the NAFCO,
National Auto and the Trustee and be deemed to be an original and all of which
shall constitute together but one and the same agreement.
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICT
OF LAW PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 13. Limitation of Liability.
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(a) It is expressly understood and agreed by the parties hereto that
(a) this Amendment is executed and delivered by Chase Manhattan Bank Delaware
(as successor to Chase Manhattan Bank USA, N.A.), not individually or personally
but solely as trustee of National Financial Auto Funding Trust II, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of National
Financial Auto Funding Trust II is made and intended not as a personal
representation, undertaking and agreement by Chase Manhattan Bank Delaware (as
successor to Chase Manhattan Bank USA, N.A.) but is made and intended for the
purpose of binding only National Financial Auto Funding Trust II and (c) under
no circumstances shall Chase Manhattan Bank Delaware (as successor to Chase
Manhattan Bank USA, N.A.) be personally liable for the payment of any
indebtedness or expenses of National Financial Auto Funding Trust II or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by National Financial Auto Funding Trust II under
this Amendment or the Agreement.
(b) National Auto and NAFCO confirm the terms and conditions of Section
11.03 of the Agreement as if set forth herein in their entirety.
SECTION 14. No Duress, Etc. Each of National Auto and NAFCO has
reviewed this Amendment and the Agreement with its counsel and understand and
agree to all of the terms and conditions of the agreements contained herein and
therein (which agreements are the product of arms length negotiations between
the parties hereto) and agree to execute and deliver this Amendment as its own
free act and deed, with the benefit of legal counsel and without duress.
[signatures follow]
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IN WITNESS WHEREOF, NAFCO, the Administrator and the Trustee have
caused this Amendment to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
NATIONAL FINANCIAL AUTO FUNDING TRUST II (as
successor to National Financial Auto Funding
Trust, f/k/a NAFCO Funding Trust) as the
transferor
By: Chase Manhattan Bank Delaware (as successor to
Chase Manhattan Bank USA, N.A.), not in its
individual capacity but solely as Owner Trustee
of the National Financial Auto Funding Trust II)
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL AUTO FINANCE COMPANY, INC. (f/k/a
National Auto Finance Company L.P.) as Administrator
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Vice President, Secretary & General
Counsel
Address: 00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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BANKERS TRUST COMPANY,
not in its individual capacity but solely as Trustee
of National Financial Auto Master Trust (f/k/a NAFCO
Auto Receivables Master Trust)
By: /s/ XXXXXXXX X.X. XXXXX
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Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Address: Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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ACKNOWLEDGED AND AGREED:
FIRST UNION NATIONAL BANK,
as the Class B Certificateholder
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Address: One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL FINANCIAL AUTO FUNDING
TRUST II (as successor to National Financial
Auto Funding Trust, f/k/a NAFCO Funding
Trust) as a Class C Certificateholder
By: Chase Manhattan Bank Delaware (as
successor to Chase Manhattan Bank USA,
N.A.), not in its individual capacity but
solely as Owner Trustee of the National
Financial Auto Funding Trust II)
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
