SECOND AMENDMENT TO AMENDED AND RESTATED RECEIVABLES FINANCING AGREEMENT
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
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EXHIBIT
10.5
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SECOND
AMENDMENT TO
AMENDED
AND RESTATED RECEIVABLES FINANCING AGREEMENT
SECOND
AMENDMENT, dated as of August 22, 2008 (this “Amendment”),
to
AMENDED AND RESTATED RECEIVABLES FINANCING AGREEMENT, dated as of October 18,
2007, as amended by First Amendment dated as of February 8, 2008 (the
“Agreement”;
unless
otherwise defined herein, terms defined in the Agreement are used herein as
therein defined), by and among UPFC Funding Corp. (the “Borrower”),
United Auto Credit Corporation, individually and as Servicer, United Auto
Business Operations, LLC, United PanAm Financial Corp., the Lenders from time
to
time parties thereto (the “Lenders”),
the
Agents from time to time parties thereto, CenterOne Financial Services LLC,
as
Backup Servicer, and Deutsche Bank Trust Company Americas, as
Administrative/Collateral Agent and as Custodian.
WITNESSETH:
WHEREAS,
the parties wish to amend the Agreement as set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and other
good and valuable consideration, the receipt and adequacy of which are hereby
expressly acknowledged, the parties hereto agree as follows:
1.
Amendments.
(a)
The
Commitment of Deutsche Bank AG, New York Branch, as Committed Lender in the
Gemini Lender Group, is hereby amended to be $260,000,000.
(b)
Section 1.1 of the Agreement is hereby amended by:
(i)
deleting the definitions of Additional
Reserve Account Percentage, Additional
Reserve Account Requirement, Adjusted EBITDA, Initial Advance Rate, Initial
Borrowing Base, Interest Expense, Liquidity Amount, Target Advance Rate and
Target Borrowing Base;
(ii)
adding the following definitions in the appropriate alphabetical
order:
“Advance
Rate”
means,
on any day during each of the Accrual Periods beginning on the respective
Distribution Dates set forth in the table in Exhibit E to this Agreement, the
percentage set forth opposite such Distribution Date in such table; provided
that if
a Facility Termination Event shall have occurred, the Advance Rate shall equal
0.0%.
“Amortization
Percentage”
means,
with respect to the Distribution Date occurring during each of the months set
forth in the table in Exhibit F to this Agreement, the percentage set forth
opposite such month in such table.
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“Borrowing
Base”
means,
on any day, the sum of (a) the product of (i) the Advance Rate applicable to
the
Accrual Period in which such day occurs and (ii) the Aggregate Outstanding
Principal Balance of all Transferred Contracts, if any, which were originated
on
or prior to August 22, 2008 and are Eligible Contracts on such day of
determination less any Overconcentration Amount with respect to such Transferred
Contracts (each determined after giving effect to the transfer of Eligible
Contracts to the Borrower on such day), plus
(b) the
product of (i) the lesser of (A) [*] and (B) the Advance Rate applicable to
the
Accrual Period in which such day occurs and (ii) the Aggregate Outstanding
Principal Balance of all Transferred Contracts, if any, which were originated
after August 22, 2008 and are Eligible Contracts on such day of determination
less any Overconcentration Amount with respect to such Transferred Contracts
(each determined after giving effect to the transfer of Eligible Contracts
to
the Borrower on such day), plus
(c) the
amount on deposit in the Collection Account which represents principal
collections on Transferred Contracts as of such day (other than, if such day
is
a Distribution Date, any such principal collections to be included in the Amount
Available on such day).
“Borrowing
Base Cure Period”
shall
be a period (a) commencing on a Distribution Date if, on such Distribution
Date
(after giving effect to the distributions to be made on such date), the
aggregate principal amount of all Advances outstanding exceeds the Borrowing
Base computed using the Advance Rate for the Accrual Period commencing on such
Distribution Date (the “Current
Advance Rate”)
and
would not have exceeded the Borrowing Base computed using the Advance Rate
for
the immediately preceding Accrual Period (the “Prior
Advance Rate”),
and
(b) ending on the first to occur of (i) the date on which the aggregate
principal amount of all Advances outstanding no longer exceed the Borrowing
Base
computed using the Current Advance Rate, (ii) the day on which the Effective
Advance Rate is greater than the Effective Advance Rate for any prior day during
the current Accrual Period, (iii) the date of the occurrence of any Facility
Termination Event, and (iv) the last day of the current Accrual Period;
provided
that if
two Borrowing Base Cure Periods shall have occurred, no additional periods
shall
constitute Borrowing Base Cure Periods.
“Capitalized
Lease” means
all
monetary obligations of a Person under any lease or similar arrangement of
such
Person which, in accordance with GAAP, should be capitalized or classified
as
capitalized leases on the balance sheet of such Person and, for purposes of
this
Agreement, the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Effective
Advance Rate”
means,
on any day, the percentage equivalent of a fraction, (a) the numerator of which
equals the aggregate principal amount of all Advances then outstanding and
(b)
the denominator of which equals the sum of (i) the Aggregate Outstanding
Principal Balance of all Transferred Contracts less any Overconcentration Amount
(each determined after giving effect to the transfer of Eligible Contracts
to
the Borrower on such day), plus
(ii) the
amount on deposit in the Collection Account which represents principal
collections on Transferred Contracts as of such day (other than, if such day
is
a Distribution Date, any such principal collections to be included in the Amount
Available on such day).
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“Liquidity
Amount - Cash”
shall
mean, on any determination date, the cash or cash equivalents owned by UACC
and
UPFC and any of their respective subsidiaries on such determination date.
“Second
Amendment”
means
the Second Amendment, dated as of August 22, 2008, to this
Agreement.
“Upfront
Facility Fee”
means
the fee payable pursuant to Section 2(a) of the Fifth Amendment to Fee Letter,
dated as of August 22, 2008, among the Borrower, Deutsche Bank Securities
Inc. and the Administrative/Collateral Agent.
“Subservicing
Fees”
has
the
meaning set forth in Section
8.9(g).
“Tangible
Shareholders’ Equity”
means
shareholders equity, less any goodwill, each determined on a consolidated basis
in accordance with GAAP.
(iii)
adding the following at the end of the definition of “Amount
Available”:
The
Amount Available shall also include (i) the proceeds of the sale of Transferred
Contracts deposited in the Collection Account pursuant to Section 13.4(a) during
the related Accrual Period and (ii) following a Facility Termination Event
or
if, on such Distribution Date, the aggregate principal amount of the Advances
outstanding exceed the Borrowing Base, the amount of “Residual Distributions”
deposited in the Collection Account pursuant to the Residual Security
Agreement.;
(iv)
deleting the number $45,000 in the definition of Capped Fees/Expenses - Backup
Servicer and substituting the number [*] in lieu thereof;
(v)
adding the following at the end of the definition of “Transferred
Contracts”:
Transferred
Contracts shall also include Contracts transferred by the Seller to the Borrower
which were not Eligible Contracts at the time of transfer.;
and
(vi)
deleting the definitions of Backup Servicer Fee, Default Rate, Facility
Termination Date, Required Reserve Account Amount and Total Expense Percentage
and substituting, in lieu thereof, respectively, the following:
“Backup
Servicer Fee”
means,
for any Distribution Date, the amount payable to the Backup Servicer as its
regular fee on such Distribution Date pursuant to the Backup Servicer Fee Letter
together with any amounts payable to the Backup Servicer pursuant to Section
8.9(f).
“Default
Rate”
means
a
rate per annum
equal to
[*] in excess of the rate at which the Yield would otherwise be calculate for
the related monetary obligation.
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“Facility
Termination Date”
means
the earlier of (a) October 15, 2009 and (b) the effective date on which the
Facility is terminated pursuant to Section
14.2.
“Required
Reserve Account Amount”
means,
on any date, the Minimum Reserve Account Requirement.
“Total
Expense Percentage”
means,
as of any date, the sum of (a) the Servicing Fee Percentage plus
(b) the
“Usage Fee Rate” (as defined in the Fee Letter).
(c)
Section 1.2 of the Agreement is hereby amended by deleting clause (e) thereof
and substituting, in lieu thereof, the following:
(e) For
the
avoidance of doubt, on each date on which the Aggregate Eligible Contracts
Balance or the Borrowing Base is required to be calculated by the Borrower,
the
Servicer, the Lenders or the Agents hereunder, the eligibility of each of the
Transferred Contracts shall be redetermined as of such calculation date (i.e.,
each reference to a Closing Date in Section 3.01(b) of the Sale and Servicing
Agreement shall be deemed to be a reference to the date of calculation) and,
as
a consequence thereof, Contracts that were Eligible Contracts on the related
Closing Date may be excluded from the Aggregate Eligible Contracts Balance
or
the Borrowing Base on the date of calculation.
(d)
Sections 2.1, 2.6(b), 7.2(a), 7.2(g) and (l), 9.7(a), 10.19, 13.4(a) and 17.1
of
the Agreement are hereby amended by deleting each reference to “Initial
Borrowing Base” therein and substituting, in lieu thereof, “Borrowing
Base”.
(e)
Section 2.1 of the Agreement is hereby amended by adding the following at the
end thereof:
Notwithstanding
any other provision of the Agreement to the contrary, (a) during the period
beginning on August 22, 2008 and ending on (but excluding) the Distribution
Date
in September 2008, the aggregate principal amount of Advances made during such
period shall not exceed the lesser of (i) [*] and (ii) the product of (A) [*]
times (B) the Aggregate Outstanding Principal Balance of Eligible Contracts
transferred to the Borrower during the period from August 22, 2008 through
the
date of determination, (b) during each Accrual Period beginning with the Accrual
Period starting on the Distribution Date in September 2008, the aggregate
principal amount of Advances made during such Accrual Period shall not exceed
the lesser of (i) [*] and (ii) the product of (A) [*] times (B) the Aggregate
Outstanding Principal Balance of Eligible Contracts transferred to the Borrower
during such Accrual Period through the date of determination, and (c) during
the
period beginning with August 22, 2008 and ending on the Scheduled Facility
Termination Date, the aggregate principal amount of Advances made during such
period shall not exceed the lesser of (i) [*] and (ii) the sum, for each of
the
Eligible Contracts transferred to the Borrower during the period from August
22,
2008 through the date of determination, of the product of (A) [*] times (B)
the
Aggregate Outstanding Principal Balance of such Eligible
Contracts.
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(f)
Section 2.6 of the Agreement is hereby amended by deleting the first sentence
thereof and substituting, in lieu thereof, the following:
The
Borrower shall repay in full the unpaid principal amount of each Advance on
the
Facility Termination Date.
(g)
The
sentence in Section 5.1(a) of the Agreement which currently reads “Payments of
the “Program Fee” (as defined in the Fee Letter) shall be allocated and paid to
the Agent for each Lender Group pro rata based on the aggregate Commitments
of
the Lenders in such Lender Group” is hereby deleted and the following is
substituted, in lieu thereof:
Payments
of the “Unused Fee” (as defined in the Fee Letter) shall be allocated and paid
to the Agent for each Lender Group pro rata based on the aggregate Commitments
of the Lenders in such Lender Group.
(h)
Section 7.2 of the Agreement is hereby amended by (i) deleting clause (k)
thereof and substituting, in lieu thereof, the following:
(k) APR.
The
weighted average APR of the Eligible Contracts on such date (after giving effect
to any reduction of the APR of any Eligible Contract pursuant to the provision
of Section 4.01 of the Sale and Servicing Agreement) shall not be less than
[*];
and
(ii)
adding the following at the end thereof:
(p) No
Level III Trigger.
No
level III trigger breach or similar event (whether or not waived) shall have
occurred under the documentation with respect to any securitization or financing
of Contracts by UPFC or any of its Affiliates, other than level III trigger
breaches arising solely from key person provisions applicable to the departure
of Ray Thousand which have been duly waived.
(i)
Section 8.1 of the Agreement is hereby amended by adding the following at the
end thereof:
The
Servicer hereby covenants and agrees to act as such under this Agreement for
an
initial term ending on August 31, 2008, which term shall be subject to
extension for successive months until the Advances are paid in full, if the
Required Lenders, in their sole and absolute good faith discretion (and
regardless of the performance or nonperformance of the Servicer hereunder),
give
written notice of each such extension to the Administrative/Collateral Agent
and
the Servicer. If the Required Lenders do not give written notice of extension
to
the Administrative/Collateral Agent and the Servicer, then the term of UACC
as
Servicer shall terminate on the last day of such term.
On
each
Business Day, the Servicer shall transmit to the Borrower, the Backup Servicer,
the Agents and the Administrative/Collateral Agent a statement in such form
and
setting forth such information as the Required Lenders may reasonably
request.
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(j)
Section
8.9 of the Agreement is hereby amended by (i) deleting clause (e) thereof and
substituting, in lieu thereof, the following
(e)
Upon
appointment of the Backup Servicer as the successor Servicer, its obligations
as
Backup Servicer and any of its obligations as subservicer hereunder shall
terminate.
and
(ii)
adding the following at the end thereof:
(f) Until
the
earlier of (i) the date on which the Backup Servicer is appointed the successor
Servicer under this Agreement and (ii) the date on which the Backup Servicer
shall have been notified in writing by the Required Lenders that the Backup
Servicer no longer needs to provide such services, the Backup Servicer shall
perform the additional backup services described in Exhibit G to this
Agreement (as such Exhibit G shall be amended from time to time by the
Borrower, UACC, the Backup Servicer and the Required Lenders). In connection
therewith, each of the Borrower, UACC, and UPFC shall, and shall cause each
of
its Subsidiaries, to provided the Backup Servicer with such access to it
facilities, personnel and business records during normal business hours and
upon
reasonable notice, and will deliver or cause to be delivered to the Backup
Servicer the daily, weekly and monthly files and file extracts, such powers
of
attorney, corporate resolutions, servicing assignments, attorney network lists,
repossession agent lists and such other documents and information, in a form
reasonably acceptable to the Backup Servicer, in each case as the Backup
Servicer shall reasonably require to perform such services. As compensation
for
such services, as part of the Backup Servicing Fee in addition to that described
in the Backup Servicing Fee Letter, the Backup Servicer shall be entitled to
receive (A) with respect to the Distribution Date occurring in September 2008,
a
one-time setup fee of [*], (B) with respect to each Distribution Date beginning
with the September 2008 Distribution Date and on each Distribution Date
thereafter related to a Collection Period during which the Backup Servicer
performs any such services, a monthly fee equal to [*] for performing such
services other than the quarterly conversion testing, (C) with respect to the
September 2008 Distribution Date and each Distribution Date thereafter related
to a Collection Period in which the Backup Servicer performs a quarterly
conversion test, a fee equal to [*] for performing the quarterly conversion
test, and (D) with respect to each Distribution Date, reimbursement of all
of
the Backup Servicer’s out of pocket expenses incurred in connection with
providing such services, including but not limited to the reasonable fees and
expenses of its outside counsel in connection with negotiating or documenting
such agreements and those specified in Exhibit G.
(g) In
addition to the services specifically set forth in this Agreement, the Backup
Servicer shall perform subservicing duties consisting of such early- and
mid-stage collection activities with respect to Delinquent Contracts on such
terms and subject to such conditions as may be agreed upon from time to time
in
writing by the Borrower, UACC, the Backup Servicer and the Required Lenders.
The
amounts payable to the Backup Servicer in connection with such subservicing
services are herein referred to as the “Subservicing
Fees.”
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(h) Any
services provided by the Backup Servicer pursuant to Section 8.9(f) or (g)
shall be considered services of the Backup Servicer provided pursuant to this
Agreement and the Backup Servicer shall be entitled to all of the rights,
remedies, benefits and protections with respect to providing such services
as it
receives with respect to the other backup services the Backup Servicer provides
under this Agreement.
(k)
Section 9.5(a) of the Agreement is hereby amended by deleting clauses (iv)
through (xiv) thereof and substituting, in lieu thereof, respectively, the
following:
(iv) FOURTH,
from
the
remaining Amount Available, pro rata based on the amount owed, (A) to the Backup
Servicer, any accrued and unpaid Subservicing Fees, and (B) to the Servicer,
any
accrued and unpaid Servicing Fees, any transition expenses payable to the
successor Servicer pursuant to the Sale and Servicing Agreement to the extent
not paid by the predecessor Servicer, provided,
that
such transition expenses, including travel, boarding fees, mailing costs,
obligor letters (welcome and goodbye) and document packaging and shipping,
shall
not exceed $200,000 in the aggregate (nor shall the boarding fee exceed $5.00
per contract) and the amounts specified in Section
9.2
to the
extent the Servicer has not reimbursed itself in respect of such amounts
pursuant to Section
9.6;
(v) FIFTH,
from the remaining Amount Available, to the Administrative/Collateral Agent,
on
behalf of the Lenders, an amount equal to the Yield on the Advances accrued
during the Accrual Period with respect to such Distribution Date (and any Yield
with respect to any prior Accrual Period to the extent not paid on a prior
Distribution Date), and the Fees (excluding the Upfront
Facility Fee)
payable
on such Distribution Date pursuant to the Fee Letter (and any Fees (excluding
the Upfront
Facility Fee)
due
and not paid on a prior Distribution Date);
(vi) SIXTH,
from the remaining Amount Available, to the Administrative/Collateral Agent,
on
behalf of the Lenders, to repay pursuant to Section 2.6(b)
the
principal amount of Advances in an amount equal to the excess, if any, of the
then outstanding principal amount of all Advances over the Borrowing Base with
respect to such Distribution Date;
(vii) SEVENTH,
from the remaining Amount Available, to the Administrative/Collateral Agent,
on
behalf of the Lenders, the sum of (A) the product of (i) the Amortization
Percentage and (ii) the excess, if any, of the remaining Amount Available over
the aggregate amount of proceeds
of the sale of Transferred Contracts deposited in the Collection Account
pursuant to Section 13.4(a) during the related Accrual Period and (B) 100%
of
the aggregate amount of proceeds of the sale of Transferred Contracts deposited
in the Collection Account pursuant to Section 13.4(a)
during
the related Accrual Period to repay the principal amount of outstanding Advances
until such Advances are paid in full;
(viii) EIGHTH,
from the remaining Amount Available, if a Facility Termination Event shall
have
occurred and be continuing, to the Administrative/Collateral Agent, on behalf
of
the Lenders, the principal amount of outstanding Advances until such Advances
are paid in full
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(ix) NINTH,
from the remaining Amount Available, to the Administrative/Collateral Agent,
for
the benefit of Affected Persons, any Increased Costs then due and
owing;
(x) TENTH,
from
the remaining Amount Available, to the extent not previously paid by or on
behalf of the Borrower, to each Indemnified Party, any Indemnity Amounts then
due and owing to each such Indemnified Party;
(xi) ELEVENTH,
from the remaining Amount Available, to the Servicer the accrued and unpaid
Subordinate Servicing Fee;
(xii) TWELFTH,
from
the
remaining Amount Available, to the extent not previously paid pursuant to clause
FIRST, SECOND or THIRD above, pro
rata
to the
Backup Servicer, the Custodian (if other than UACC ) and the
Administrative/Collateral Agent, any costs and expenses due to the Backup
Servicer, the Custodian and the Administrative/Collateral Agent under the
Transaction Documents;
(xiii) THIRTEENTH,
from the remaining Amount Available, if (i) a Facility Termination Event shall
have occurred and be continuing, (ii) if the Facility Termination Date shall
have occurred or (iii) all Advances outstanding are being repaid, to the
Administrative/Collateral Agent, on behalf of the Lenders, an amount equal
to
the Upfront
Facility Fee
(or
the remaining unpaid portion thereof) and any interest accrued
thereon;
(xiv) FOURTEENTH,
from the remaining Amount Available, to the Borrower.
(l)
Article IX of the Agreement is hereby amended by adding the following
Section at the end thereof:
SECTION
9.8 Lockboxes.
On or
prior to September 30, 2008, the Borrower and the Servicer shall use reasonable
commercial efforts to establish one or more lockboxes for collection of payments
on the Contracts with a lockbox processor or processors reasonably satisfactory
to the Required Lenders, and shall enter into, and shall use reasonable
commercial efforts to cause each such lockbox processor to enter into, lockbox
control agreements with the Administrative/Collateral Agent in form and
substance reasonably satisfactory to the Required Lenders and the
Administrative/Collateral Agent. As to each such lockbox, once established,
(a)
the Borrower (or the Servicer on its behalf) shall use reasonable commercial
efforts to direct the Obligors to make all payments on the Contracts to such
lockboxes and otherwise to cause all payments made on the Contracts to be made
directly to one of such lockboxes, unless the Servicer has determined in good
faith that to direct payments in such manner would have an adverse effect on
Net
Collections, and (b) without the consent of the Required Lenders, neither the
Borrower nor the Servicer shall (i) terminate or move any lockbox, terminate,
or
(ii) make any change in its arrangements with the lockbox processor of any
lockbox if such change would adversely affect the Administrative/Collateral
Agent’s Lien (for the benefit of the Secured Parties) on such lockbox and the
amounts and items on deposit therein.
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(m)
Article XI of the Agreement is hereby amended by adding the following
Section at the end thereof:
SECTION
11.23 New
Receivables.
During
the period from the date of this Agreement to the Scheduled Facility Termination
Date, the Seller shall sell or contribute to the Borrower all newly originated
Contracts and all Contracts acquired by the Seller, whether or not such
Contracts are Eligible Contracts transferred pursuant to the Sale and Servicing
Agreement.
(n)
Section 13.4 of the Agreement is hereby amended by deleting paragraph (a)
thereof and substituting, in lieu thereof, the following:
(a)
Generally.
To the
extent that (i) the Borrowing Base equals or exceeds the aggregate outstanding
principal amount of Advances, (ii) all Advances, Yield thereon and other amounts
then due under this Agreement have been paid in full, (iii) there is no Facility
Termination Event or Unmatured Facility Termination Event under Section 14.1,
(iv) either (A) the Required Lenders have consented thereto in writing or (B)
the purchase price for such Transferred Contracts equals or exceeds [*]
per
outstanding dollar of the principal amount of Transferred Contracts
sold,
and (v)
there is no selection of Contracts in a manner adverse to the Lenders, in
connection with the sale or transfer of Contracts pursuant to a Take-Out
Securitization, in connection with the purchase by the Servicer or a Seller
of a
Transferred Contract pursuant to the Sale and Servicing Agreement, in connection
with the purchase by a Seller from the Borrower of a Contract which the Seller
represented was an Eligible Contract and which is not an Eligible Contract
or in
connection with the payment in full of the Advances and other Obligations
hereunder, the Borrower, upon providing to the Administrative/Collateral Agent
an officer’s certificate certifying that the conditions set forth in clauses
(i), (ii), (iii), (iv) and (v) above have been satisfied, may from time to
time
obtain releases of the Administrative/Collateral Agent’s (for the benefit of the
Secured Parties) security interest in all or any part of the Contract Collateral
(with the matters set forth in the foregoing clauses (i), (ii) and (iii) being
determined immediately after giving effect to any requested release and any
payments made on the date thereof, including, without limitation, any repayment
of Advances and payment of Yield thereon on such date) and may sell the portion
of the Contract Collateral so released to a Seller or the Servicer or the party
to the Take-Out Securitization, as the case may be (the making of any payments
contemplated by such officer’s certificate being a condition to such release, it
being understood that the Administrative/Collateral Agent’s security interest
shall continue in any proceeds of such sale). In addition, without regard to
the
requirements of the preceding sentence, the Borrower may obtain a release of
the
Administrative/Collateral Agent’s (for the benefit of the Secured Parties)
security interest in all or any part of the Contract Collateral and may sell
the
portion of the Contract Collateral so released to a Seller or the Servicer
or
the party to the Take-Out Securitization, as the case may be, if all Advances
and other Obligations hereunder are paid in full from the proceeds of such
sale
concurrently therewith (which application shall be a condition to such release,
it being understood that the Administrative/Collateral Agent’s security interest
shall continue in all of such proceeds of such sale). (The Borrower shall have
no obligation to sell to a Seller any Contract which is not an Eligible
Contract. If the Borrower shall, in its sole discretion, agree to sell any
such
Contract, the purchase price to be paid by a Seller to the Borrower for such
Contract shall be an arm’s length price to be mutually agreed by that Seller and
the Borrower.)
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(o)
Section 14.1 of the Agreement is hereby amended (i) by deleting paragraph (m)
thereof in its entirety and substituting, in lieu thereof, “[reserved]”, (ii) by
deleting paragraphs (e), (i), (j), (q), (r) and (s) thereof in their
entireties and substituting, in lieu thereof, respectively, the
following:
(e)
The
aggregate principal amount of all Advances outstanding hereunder exceeds the
Borrowing Base and such condition continues unremedied for one Business Day
and
a Borrowing Base Cure Period is not in effect;
(i)
The
Delinquency Ratio exceeds during any of the periods set forth below the amount
set forth opposite such period:
August,
2008 through January, 2009 [*]
February,
2009 and thereafter [*];
(j)
The
Net Loss Ratio exceeds during any of the periods set forth below the amount
set
forth opposite such period:
August,
2008 through January, 2009 [*]
February,
2009 and thereafter [*]
provided
that if
the Effective Advance Rate for such date of determination is less than [*],
such
percentage shall be [*];
(q)
▇▇▇▇▇
▇▇▇▇▇ shall cease to be CEO of UACC and the replacement CEO has not been
approved by the Required Lenders;
(r)
The
average Monthly Extension Ratio exceeds (i) for any three months which ends
in
any of April through September of any year, [*] or (ii) for any other three
months, [*];
(s)
The
Tangible Shareholders’ Equity of UPFC shall be less than [*] plus [*] of its
positive net income (determined on a consolidated basis in accordance with
GAAP)
less amounts used for stock repurchases subsequent to the reporting period
ended
March 31, 2007 and each subsequent quarter;
(iii)
by
deleting paragraph (t) thereof in its entirety and substituting, in lieu
thereof, “[reserved];” and (iv) by adding the following at the end thereof:
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[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
or
(v)
The Borrower or the Servicer shall fail to perform or observe any term, covenant
or agreement contained in Section 9.8 of this Agreement (without regard to
application of any grace periods otherwise provided for in clause (b)
above);
(w)
The
Borrower and the Servicer shall have failed to contract, on or prior to
September 15, 2008, with CenterOne to perform subservicing duties consisting
of
early- and mid-stage collection activities with respect to Delinquent Contracts
in accordance with Section 8.9(g) or shall have failed to provide, on or
prior to September 15, 2008, funds to CenterOne sufficient to hire a number
of
employees (as determined by CenterOne) to carry out such
subservicing;
(x)
The
Liquidity Amount - Cash is less than (i) [*] on any day prior to ▇▇▇▇▇ ▇, ▇▇▇▇,
(▇▇) [*] on any day from and including April 1, 2009 and prior to August 1,
2009, or (iii) [*] on any day from and after August 1, 2009;
(y)
The
net income, determined in accordance with GAAP, of UPFC and its consolidated
Subsidiaries is less than zero for two consecutive fiscal quarters of
UPFC;
(z)
The
Walk-In Payment Ratio for any Distribution Date is greater than
[*];
(aa)
MBIA
Insurance Corporation, Ambac Assurance Corporation or XL Capital Assurance
Inc.
shall have declared an event of default or similar event under the documentation
with respect to any securitization or financing of Contracts by UPFC or any
of
its Affiliates;
(bb)
Any
event shall have occurred under the
documentation with respect to any securitization or financing of Contracts
by
UPFC or any of its Affiliates which
causes cash which would have otherwise been payable to UPFC or any of its
Affiliates to be retained in a cash account or used to reduce the outstanding
principal amount of the securities issued in connection with such securitization
or financing; or
(cc)
The
Borrower shall not have delivered to the Lenders and the
Administrative/Collateral Agent, on or before August 29, 2008, such Opinions
of
Counsel with respect to enforceability of the obligations of the Borrower,
the
Sellers, the Servicer, and the Guarantor and affiliates thereof under this
Agreement, as amended by the Second Amendment, and with respect to true sale
and
nonconsolidation matters as the Required Lenders shall have requested in
connection with the Second Amendment and the transactions contemplated
thereby.
(p)
All
references in the Agreement to the Custodian shall be deemed to refer to
Deutsche Bank Trust Company Americas (together with its successors in such
capacity), which has succeeded to United Auto Credit Corporation in that
capacity under the Agreement.
(q)
The
Agreement is hereby amended by adding Exhibits E, F and G thereto in the
respective forms of Exhibits E, F and G attached hereto.
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[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
2.
Agreement
in Full Force and Effect.
Except
as specifically amended and waived hereby, all of the terms and conditions
of
the Agreement shall remain in full force and effect.
3.
Representations.
Each of
the Borrower, the Seller, the Servicer and the Guarantor severally represents
and warrants that all acts, filings and conditions required to be done and
performed and to have happened (including, without limitation, the obtaining
of
necessary governmental approvals) precedent to the entering into of this
Amendment to constitute this Amendment and the Agreement as amended hereby
the
duly authorized, legal, valid and binding obligation of such party, enforceable
in accordance with its terms, have been done, performed and have happened in
due
and strict compliance with all applicable laws.
4.
Counterparts.
This
Amendment may be executed in any number of counterparts and by separate parties
hereto on separate counterparts, each of which when executed shall be deemed
an
original, but all such counterparts taken together shall constitute one and
the
same instrument.
5.
Governing
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
6.
Effectiveness.
(a)
This Amendment shall become effective as of August 22, 2008 (the “Closing
Date”),
when:
(i)
each
of the parties hereto shall have executed a counterpart hereof and delivered
the
same to the Agent;
(ii)
each
Rating Agency shall have confirmed that this Amendment will not result in the
withdrawal or reduction of its rating of the commercial paper of any
Noncommitted Lender;
(iii)
each of the parties to the Fee Letter shall have executed a counterpart of
the
Fifth Amendment thereof and delivered the same to the Agent, and all fees and
other compensation required to be paid on the date hereof pursuant to such
Fifth
Amendment shall have been paid in full;
(iv)
each
of the parties to the Sale and Servicing Agreement shall have executed a
counterpart of the First Amendment thereto dated as of date hereof and delivered
the same to the Agent;
(v)
each
of the parties to the Residual Security Agreement shall have executed a
counterpart of the Second Amendment thereto dated as of date hereof and
delivered the same to the Agent; and
(vi)
the
Seller shall have transferred to the Borrower all Contracts which it owns as
of
the date hereof, whether or not such Contracts are Eligible
Contracts.
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PORTIONS OF THIS DOCUMENT]
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
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UPFC
FUNDING CORP.
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name:
▇▇▇▇▇ ▇▇▇▇▇ III
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Title:
President
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UNITED
AUTO CREDIT CORPORATION,
individually
and as Seller, Servicer and Custodian
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name:
▇▇▇▇▇ ▇▇▇▇▇ III
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Title:
President
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UNITED
AUTO BUSINESS OPERATIONS, LLC,
individually
and as Seller
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name:
▇▇▇▇▇ ▇▇▇▇▇ III
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Title:
President
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UNITED
PANAM FINANCIAL CORP. ,
individually
and as Guarantor
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name:
▇▇▇▇▇ ▇▇▇▇▇ III
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|
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Title:
President
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[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
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DEUTSCHE
BANK TRUST COMPANY
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AMERICAS,
as Administrative/Collateral Agent
|
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By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Vice President
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By:
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/s/
▇▇▇▇▇ ▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇
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|
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Title:
Vice President
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[Signature
page to Second Amendment
to
Amended and Restated Receivables Financing Agreement]
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
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DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Custodian
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
Associate
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By:
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/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
Vice President
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[Signature
page to Second Amendment
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
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CENTERONE
FINANCIAL SERVICES LLC, as
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Backup
Servicer
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By:
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/s/
▇▇▇▇▇▇ ▇. De ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. De ▇▇▇▇▇
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Title:VP
& CFO
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[Signature
page to Second Amendment
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
GEMINI
LENDER GROUP
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As
Noncommitted Lender
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Vice President
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DEUTSCHE
BANK AG, NEW YORK BRANCH,
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as
Agent and Committed Lender
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By:
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/s/
▇▇▇▇ ▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇
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Title:
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|
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By:
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/s/
▇▇▇▇ ▇▇▇▇
|
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Name:
▇▇▇▇ ▇▇▇▇
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|
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Title:
Vice President
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