AMENDMENT NUMBER 1 TO
NOTE PURCHASE AGREEMENT
AMENDMENT NUMBER 1 TO NOTE PURCHASE AGREEMENT (this
"Amendment"), dated as of September 9, 1999 by and among UNION ACCEPTANCE
FUNDING CORPORATION, a Delaware corporation, as borrower (in such capacity, the
"Issuer"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation, as lender
(the "Company"), and BANK OF AMERICA, N.A., a national banking association
(formerly known as NationsBank, N.A.) ("Bank of America"), as agent for the
Company and the Bank Investors (in such capacity, together with its successors,
the "Agent") and as a Bank Investor individually, amending that certain Note
Purchase Agreement dated as of September 18, 1998 (such agreement as so amended,
the "Note Purchase Agreement").
WHEREAS, the parties hereto mutually desire to make certain
amendments to the Note Purchase Agreement as hereinafter set forth; and
WHEREAS, the Insurer and the Majority Investors have consented
to the execution and delivery of this Amendment by the parties hereto.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined Terms. As used in this Amendment, and
except as otherwise provided in this Section 1, capitalized terms shall have the
same meanings assigned thereto in the Note Purchase Agreement.
(a) Section 1.1 of the Note Purchase Agreement is hereby amended by
deleting the definition of "Facility Limit" and replacing it with the following:
""Facility Limit" shall mean $500,000,000."
SECTION 2. Effectiveness. This Amendment shall become
effective upon receipt by the Agent of (i) a fully executed copy of this
Amendment and Amendment Number 2 to the Security Agreement, of even date
herewith, (iii) an executed replacement Note in substantially in the form
attached hereto as Exhibit A, and (iv) an endorsement to the Insurance Policy
reflecting the amended Facility Limit and otherwise acceptable to the Agent (or,
in lieu thereof, the Issuer may cause to be delivered to the Agent a replacement
Insurance Policy reflecting the amended Facility Limit and otherwise in the form
of the Insurance Policy issued on the Closing Date).
SECTION 3. Limited Scope. This amendment is specific to the
circumstances described above and does not imply any future amendment or waiver
of rights allocated to the Issuer, the Borrower, any Bank Investor or the Agent
under the Note Purchase Agreement.
SECTION 4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. Severability; Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 6. Ratification. Except as expressly affected by the
provisions hereof, the Note Purchase Agreement as amended shall remain in full
force and effect in accordance with its terms and ratified and confirmed by the
parties hereto. On and after the date hereof, each reference in the Note
Purchase Agreement to "this Agreement", "hereunder", "herein" or words of like
import shall mean and be a reference to the Note Purchase Agreement as amended
by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment Number 1 as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
UNION ACCEPTANCE FUNDING
CORPORATION, as Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
BANK OF AMERICA, N.A.,
as Agent, Bank Investor and as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Consented and agreed:
MBIA INSURANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Exhibit A
NOTE
[September __, 1999]
$500,000,000
Reference is hereby made to that certain Note Purchase
Agreement dated as of September 18, 1998 (as amended, supplemented or otherwise
modified in accordance with the terms thereof and in effect from time to time,
the "Note Purchase Agreement") by and among Union Acceptance Funding
Corporation, a Delaware corporation (the "Issuer"), Enterprise Funding
Corporation, a Delaware corporation (the "Company") and Bank of America, N.A., a
national banking association (the "Agent" or the "Bank Investor," as applicable)
and to that certain Security Agreement dated as of September 18, 1998 (as
amended, supplemented or otherwise modified and in effect from time to time, the
"Security Agreement") by and among the Issuer, the Company, UAC, individually
and as Collection Agent, MBIA Insurance Corporation, as Insurer and the Agent,
individually and as Collateral Agent. All capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Note Purchase Agreement
or the Security Agreement, as applicable.
FOR VALUE RECEIVED, the Issuer hereby promises to pay to the
order of the Agent, for the account of the Company or the Bank Investor at the
principal office of the Agent at Bank of America Corporate Center, ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a principal sum equal to FIVE HUNDRED
MILLION DOLLARS ($500,000,000), in lawful money of the United States of America
and in immediately available funds.
The date and amount of each Funding extended by the Company or
the Bank Investor, as the case may be, to the Issuer under the Note Purchase
Agreement, and each payment of principal thereof, shall be recorded by the
Agent, for the account of the Company or the Bank Investor, as appropriate, on
its books and, prior to any transfer of this Note (or, at the discretion of the
Company, and/or the Bank Investor, as appropriate, at any other time), endorsed
by the Agent, on behalf of the Company and the Bank Investor on the schedule
attached hereto or any continuation thereof. Although the stated principal
amount of this Note is as stated above, this Note shall be enforceable only with
respect to the Issuer's obligation to pay the principal hereof only to the
extent of the unpaid principal amount of the Fundings outstanding under the Note
Purchase Agreement at the time such enforcement shall be sought.
Interest on the outstanding principal amount of this Note
shall accrue at the rate or rates necessary for the payment to the holder
hereof, on the dates provided for in the Security Agreement, of Carrying Costs
payable to the holder hereof on such date or dates; in all events interest
hereunder in an amount equal to the Interest Component of all Related Commercial
Paper maturing on any day shall be due and payable on such day. Interest due and
payable hereunder shall be payable in accordance with the priorities set forth
in Section 2.3(a) of the Security Agreement.
Principal will be due and payable on each Remittance Date, and
such amounts shall be payable in accordance with Article II of the Security
Agreement.
The entire outstanding principal amount of this Note and
accrued interest thereon will be due and payable on the Remittance Date
occurring in the fourth calendar month following the calendar month in which the
latest maturing Receivable (determined as of the Termination Date) is scheduled
to mature (without regard to extensions subsequently granted on any Receivable
by the Issuer or the Collection Agent).
The Issuer's obligation to make payments hereunder shall be a
limited recourse obligation of the Issuer, payable solely from the Collateral.
The Issuer shall pay all costs of collection of any amount due
hereunder when incurred, including without limitation, reasonable attorney's
fees and expenses, and including all costs and expenses actually incurred in
connection with the pursuit by the holder of any of its rights or remedies
referred to herein or in the Security Agreement or the protection of or
realization upon collateral, and all such costs shall be payable in accordance
with Section 2.3(a)(xiii) of the Security Agreement.
The Issuer waives presentment, notice of dishonor, protest and
other notice or formality with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
UNION ACCEPTANCE FUNDING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇.,▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
Date Amount of Amount of Principal Notation
Funding Repayment Outstanding By
