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EXHIBIT 10.118
AMENDMENT NUMBER 1 TO THE AMENDED AND RESTATED
POOLING AND ADMINISTRATION AGREEMENT
THIS AMENDMENT NUMBER 1, dated as of May __, 1999 (the "Amendment") to
AMENDED AND RESTATED POOLING AND ADMINISTRATION AGREEMENT, dated as of December
4, 1994 (as amended and restated, 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;
WHEREAS, National Auto agreed to act as Administrator and the Trustee
agreed to act as trustee;
WHEREAS, the Agreement provides that following the Effective Date, the
Administrator will cause the Trustee to enter into certain hedging agreements;
WHEREAS, the parties desire to amend the Agreement to incorporate
certain provisions relating to hedging;
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 Agreement, terms used in this Amendment shall have the meanings assigned in
the Agreement.
SECTION 2. Amendments to Agreement. (a) Effective upon the execution
and delivery of this Amendment, a new subsection (iii) of Section 4.03(a), shall
be inserted following subsection (ii) of Section 4.03(a) which reads as follows:
"(iii) to any Hedging Counterparty, the amount of any payments (other than
termination payments) then due and payable pursuant to the terms of any Hedging
Instrument;"
(b) Effective upon the execution and delivery of this Amendment, a new
subsection (xiv) (prior to renumbering pursuant to clause (c) below) of
Section 4.03(a) shall be inserted following subsection (xiii) (prior to
the renumbering pursuant to clause (c) below) of Section 4.03(a) which
reads as follows:
"(xiv) to any Hedging Counterparty, the amount of any termination payments then
due and payable pursuant to the terms of any Hedging Instrument;"
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(c) Effective upon execution and delivery of this Amendment, each subsection
of Section 4.03(a) shall be renumbered to reflect the insertion of new
subsections (iii) and (xiv); and
(d) Effective upon the execution and delivery of this Amendment, each
reference to the subsections in subsection 4.03(a) shall be amended,
mutatis mutandis.
SECTION 3. 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) no Amortization Event has occurred and is continuing.
(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)
no Amortization Event or Administrator Default has occurred and is
continuing.
SECTION 4. Effectiveness of Agreement. Except as expressly amended by
the terms of this Amendment, all terms and conditions of the Agreement, as
amended, shall remain in full force and effect.
SECTION 5. Execution in Counterparts, Effectiveness. 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 6. 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.
[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 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
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 Receivables Master Trust (f/k/a NAFCO Auto Receivables Master Trust)
By: /s/ AUTHORIZED SIGNATURE
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Name:
Title:
Address: Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
