NAFCO FUNDING TRUST
as Transferor,
NATIONAL AUTO FINANCE COMPANY L.P.
as Administrator,
and
BANKERS TRUST COMPANY
as Trustee
-----------------------------------------
SERIES 1994-R, CLASS B SUPPLEMENT
dated as of December 8, 1994
to the
POOLING AND ADMINISTRATION AGREEMENT
dated as of December 8, 1994
-----------------------------------------
NAFCO AUTO RECEIVABLES MASTER TRUST
$25,000,000 SERIES 1994-R, CLASS B CERTIFICATES
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS OF
Pooling and Administration AGREEMENT
SECTION 1.01 Definitions...................................... 1
SECTION 1.02 Incorporation of Terms and Conditions of
Pooling and Administration Agreement............... 4
ARTICLE II
DESIGNATION
SECTION 2.01 Designation...................................... 4
ARTICLE III
PAYMENTS
SECTION 3.01 Payments......................................... 5
SECTION 3.02 Interest......................................... 5
SECTION 3.03 Principal........................................ 5
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Governing Law.................................... 6
SECTION 4.02 Execution in Counterparts........................ 6
SECTION 4.03 Effect of Unenforceable Provisions............... 6
SECTION 4.04 Amendment, Waiver, Etc........................... 6
SECTION 4.05 The Trustee...................................... 7
SECTION 4.06 Instructions in Writing.......................... 7
Section 4.07 Limitation of Liability.......................... 7
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SERIES 1994-R, CLASS B SUPPLEMENT
THIS SERIES 1994-R, CLASS B SUPPLEMENT, dated as of December 8, 1994 (this
"Supplement"), is made by and among NAFCO Funding Trust, a Delaware business
trust, as transferor ("NAFCO"), National Auto Finance Company L.P., a Delaware
limited partnership, as administrator (in such capacity, together with any
successor in such capacity, the "Administrator"), and BANKERS TRUST COMPANY, a
New York banking corporation, as Trustee (in such capacity, together with any
successor in such capacity, the "Trustee").
Pursuant to the Pooling and Administration Agreement, dated as of December
8, 1994 (as it may be amended, supplemented or otherwise modified from time to
time and as supplemented hereby, the "Pooling and Administration Agreement"),
among NAFCO, the Administrator and the Trustee, NAFCO may from time to time
direct the Trustee to issue, on behalf of the Trust, one or more Series of
Certificates representing undivided interests in the Trust. Certain terms
applicable to any such Series are to be set forth in a Supplement.
Pursuant to this Supplement, NAFCO and the Trustee shall create a Series of
Certificates and specify certain terms thereof.
ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS OF
Pooling and Administration AGREEMENT
SECTION 1.01 Definitions. (a) Capitalized terms that are used but not
defined herein have the meanings that Appendix A to the Pooling and
Administration Agreement ascribes to such terms. In addition, this Supplement
shall be interpreted in accordance with the conventions set forth in Parts B, C
and D of that Appendix A. Except as expressly provided otherwise herein,
references herein to an "Article," "Section," or "clause" refer to an Article,
Section, or clause of this Supplement.
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(b) Each capitalized term defined herein relates only to the Series 1994-R,
Class B Certificates and to no other Series of Certificates issued by the Trust.
Whenever used in this Supplement, the following words and phrases shall have the
following meanings:
"Applicable Rating Agencies" means each nationally recognized rating agency
that, at the request of NAFCO, from time to time maintains a credit rating of
the Class B Certificates.
"Certificate Purchase Agreement" means the Certificate Purchase Agreement
dated as of the date hereof among NAFCO, National Auto Finance Company L.P. and
First Union National Bank of North Carolina, as the same may be amended,
supplemented or otherwise modified from time to time.
"Class B Certificates" shall mean the Series 1994-R, Class B Certificates
issued pursuant to the Pooling and Administration Agreement and this Supplement.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of (i) the sum of the daily interest accruals on the
outstanding principal balance of the Prime Tranche as of the close of business
on each day during the related Yield Period and (ii) the sum of the daily
interest accruals on the outstanding principal balance of any Maturing
Eurodollar Tranches as of the close of business on each day during the related
Yield Period.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the lesser of (a) the outstanding principal balance of the
Class B Certificates as of such Distribution Date (prior to giving effect to any
distributions in reduction of the outstanding principal amount of the Class B
Certificates made on such Distribution Date) and (b)(i) in the case of any
Distribution Date that occurs prior to the Amortization Commencement Date, the
lesser of (x) the Certificate Amortized Pool Balance for such Distribution Date
less any amounts in respect thereof distributed in reduction of the principal
balance of the Class A Certificates on such Distribution Date and (y) the sum of
the outstanding principal balances of the Prime Tranche and any Maturing
Eurodollar Tranches, (ii) in the case of any Distribution Date that occurs on or
after the
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Early Amortization Commencement Date, and prior to the Liquidation Commencement
Date, the product of (A) the Class B Percentage and (B) the Certificate
Amortized Pool Balance for such Distribution Date, and (iii) in the case of any
Distribution Date that occurs on or after the Liquidation Commencement Date, an
amount equal to the Certificate Amortized Pool Balance for such Distribution
Date less any amounts in respect thereof distributed in reduction of the
principal balance of the Class A Certificates on such Distribution Date.
"Eurodollar Tranche" means, during any Yield Period, any portion of the
Class B Certificate Principal Amount that has been designated by NAFCO in
accordance with the Certificate Purchase Agreement to accrue interest based on
LIBOR.
"Maturing Eurodollar Tranche" means, with respect to any Distribution Date,
any Eurodollar Tranche the related Yield Period of which concludes on such
Distribution Date.
"Prime Rate" means the "prime rate" of interest announced by the Purchaser
from time to time, changing when and as such rate of interest changes.
"Prime Tranche" means, at any time, the portion of the Class B Certificate
Principal Amount that is designated by NAFCO in accordance with the Certificate
Purchase Agreement to accrue interest based on the Prime Rate. Any change in the
interest rate resulting from a change in the Prime Rate announced by the
Purchaser shall become effective without prior notice to NAFCO or the
Administrator as of 12:01 A.M. (New York time) on the Business Day on which each
change in the Prime Rate is announced by the Purchaser.
"Purchaser" means the First Union National Bank of North Carolina, as the
purchaser under the Certificate Purchase Agreement.
"Tranche" means each of the Prime Tranche and each Eurodollar Tranche.
"Yield Period" means with respect to the Class B Certificates:
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(a) as to the Prime Tranche (if any), each period from the date upon
which the Prime Tranche was designated as such pursuant to the Certificate
Purchase Agreement to the next Distribution Date (except that the initial
Yield Period shall commence on the Closing Date and end on the January 15,
1995 Distribution Date); and
(b) as to each Eurodollar Tranche (if any) from time to time, each
period from the Distribution Date designated as the commencement of such
Yield Period pursuant to the Certificate Purchase Agreement to the
Distribution Date specified at the time such Eurodollar Tranche was
designated, provided that the Yield Period shall not extend beyond the
third Distribution Date next succeeding the Distribution Date on which such
Yield Period commenced.
SECTION 1.02 Incorporation of Terms and Conditions of Pooling and
Administration Agreement. This Supplement hereby incorporates by reference the
terms and provisions of the Pooling and Administration Agreement as if such
terms and conditions were set forth in full herein. As supplemented by this
Supplement, the Pooling and Administration Agreement is hereby in all respects
ratified and confirmed and the Pooling and Administration Agreement as so
supplemented by this Supplement shall be read, taken and construed as one and
the same agreement. In the event of any conflict or inconsistency between the
terms of this Supplement and the terms of the Pooling and Administration
Agreement as such terms apply to any of the Class B Certificates, the terms of
this Supplement shall control with respect to the Class B Certificates.
ARTICLE II
DESIGNATION
SECTION 2.01 Designation. There is hereby created a series of Certificates
to be issued pursuant to the Pooling and Administration Agreement and this
Supplement to be known as "Series 1994-R, Class B Certificates." The Trustee
shall authenticate and deliver the Class B Certificates, to or upon the order of
NAFCO, in an aggregate Stated Amount equal
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to $25 million. Each of the Class B Certificates shall be authenticated and
delivered in the manner and at the times for authentication and delivery of
Certificates that is specified in Article VI of the Pooling and Administration
Agreement.
ARTICLE III
PAYMENTS
SECTION 3.01 Payments. Except as expressly provided otherwise in this
Supplement, interest and principal shall be distributed in respect of the Class
B Certificates at the times described in, and in the amounts calculated pursuant
to, Article IV of the Pooling and Administration Agreement for payments that are
to be made with respect to Certificates.
SECTION 3.02 Interest. (a) NAFCO shall have the right from time to time, in
accordance with the terms and conditions in the Certificate Purchase Agreement,
to allocate the outstanding principal amount under the Class B Certificates to
multiple Tranches: one or more Eurodollar Tranches and a Prime Tranche. Interest
on a Prime Tranche shall be payable on each Distribution Date, and interest on a
Eurodollar Tranche shall be payable at the end of the applicable Yield Period,
except that interest on the amount of any principal repaid on any other date
shall be payable on the date of such repayment.
(b) Interest on each Eurodollar Tranche shall accrue during each Yield
Period at a rate per annum equal to the sum of (i) LIBOR and (ii) the Applicable
Margin and shall be calculated on the basis of actual days over a year of 360
days.
(c) Interest on the Prime Tranche shall accrue at the Prime Rate in
effect from time to time and shall be calculated on the basis of actual days
over a year of 365 or 366 days, as the case may be.
SECTION 3.03 Principal. Notwithstanding the priority of payments set forth
in Section 4.03(b) of the Pooling and Administration Agreement, if on any
Distribution Date
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occurring on or after the Amortization Commencement Date the Class B Principal
Distributable Amount exceeds the sum (calculated prior to giving effect to
distributions pursuant to Section 4.03(b) on such Distribution Date) of (i) the
outstanding principal balance of the Prime Tranche, if any, and (ii) the
outstanding principal balances of the Maturing Eurodollar Tranches, if any, such
excess shall be deposited in the Excess Funding Account pending distribution
thereof pursuant to Section 4.03(c).
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 4.02 Execution in Counterparts. This Supplement may be executed in
any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same agreement.
SECTION 4.03 Effect of Unenforceable Provisions. If any provision hereof
shall be invalid, illegal or unenforceable in any jurisdiction, the remaining
provisions shall continue to be valid and enforceable and such provision shall
continue to be valid and enforceable in any other jurisdiction.
SECTION 4.04 Amendment, Waiver, Etc.
(a) This Supplement may be amended, subject to the provisions of Article
XIII of the Pooling and Administration Agreement, from time to time by the
Administrator, NAFCO and the Trustee by a written instrument signed by each of
them, without the consent of any of the holders of the Class B Certificates but
only to cure any ambiguities, or to cure, correct or supplement any provisions
contained in this Supplement that may be defective or inconsistent with any
other provision contained in this Supplement; provided, however, that such
action shall not adversely affect in any
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material respect the interests of any holder of a Class B Certificate (as
evidenced by an officer's certificate of the Administrator); and, provided,
further, that for purposes of this Supplement, any decrease in the Class B
Certificate Rate, or any increase in the Stated Amount shall be deemed to
materially adversely affect the interests of a holder of a Class B Certificate.
(b) The provisions of this Supplement may also be amended, modified or
waived from time to time by the Administrator, NAFCO and the Trustee with the
consent of the holders of class B Certificates that evidence at lease 66- 2/3%
of the outstanding principal amount of the Class B Certificates (exclusive of
any Class B Certificates held by NAFCO or any of its Affiliates) to the extent
permitted by Section 13.01 of the Pooling and Administration Agreement, and the
terms of such Section 13.01 shall apply to any such amendment, modification or
waiver.
SECTION 4.05 The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplement or for or in respect of the recitals contained herein, all of which
recitals are made solely by NAFCO and the Administrator.
SECTION 4.06 Instructions in Writing. All instructions given by the
Administrator to the Trustee pursuant to this Supplement shall be in writing,
and may be included in a Daily Report or the Distribution Date Statement.
Section 4.07 Limitation of Liability. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by The
Chase Manhattan Bank (USA), not individually or personally but solely as trustee
of NAFCO, 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 NAFCO is made and intended not as personal representations,
undertakings and agreements by The Chase Manhattan Bank (USA) but is made and
intended for the purpose of binding only NAFCO and (c) under no circumstances
shall The Chase Manhattan Bank (USA) be personally liable for the payment of any
indebtedness or expenses of NAFCO or be liable for the breach or failure of any
obligation,
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representation, warranty or covenant made or undertaken by NAFCO under this
Agreement or the other Transaction Documents.
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IN WITNESS WHEREOF, NAFCO, the Administrator and the Trustee have caused
this Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
NAFCO FUNDING TRUST
By: THE CHASE MANHATTAN BANK (USA),
not in its individual capacity
but solely as Owner Trustee of the
NAFCO Funding Trust
By: _________________________
Name:
Title:
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:
Telephone:
Facsimile:
NATIONAL AUTO FINANCE COMPANY L.P.
By: NATIONAL AUTO FINANCE CORPORATION,
as General Partner
By: _________________________
Name
Title:
Address: One Park Place
000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention:
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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BANKERS TRUST COMPANY,
not in its individual
capacity but solely as the Trustee of NAFCO
Auto Receivables Master Trust
By _________________________________
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
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