FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES FINANCING AGREEMENT
[**CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS
DOCUMENT]
|
EXHIBIT
10.4
|
FIRST
AMENDMENT TO AMENDED AND RESTATED RECEIVABLES FINANCING AGREEMENT
FIRST
AMENDMENT, dated as of February 8, 2008 (this “Amendment”),
to
AMENDED AND RESTATED RECEIVABLES FINANCING AGREEMENT, dated as of October 18,
2007 (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 Business Operations, LLC, United Auto Credit Corporation, United
PanAm Financial Corp., CenterOne Financial Services LLC, as Backup Servicer,
the
Agents from time to time parties thereto, the Lenders from time to time parties
thereto (the “Lenders”),
and
Deutsche Bank Trust Company Americas, as Administrative/Collateral Agent and
as
Backup 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)
Section 1.1 of the Agreement is hereby amended by (i) adding the following
definitions in the appropriate alphabetical order:
“Residual
Pledge Agreement”
means
the Pledge Agreement dated as of February 8, 2008 between UACC, as Pledgor,
and
the Administrative/Collateral Agent, as the same may from time to time be
amended, supplemented or otherwise modified.
“Residual
Security Agreement”
means
the Security Agreement dated as of February 8, 2008 between UPFC Auto
Receivables Corp. and UPFC Auto Financing Corporation, as Obligors, and the
Administrative/Collateral Agent, as the same may from time to time be amended,
supplemented or otherwise modified.
and
(ii)
deleting the definition of Transaction Documents and substituting, in lieu
thereof, the following:
“Transaction
Documents”
means
this Agreement, the Notes, the Fee Letter, the Sale and Servicing Agreement,
the
Intercreditor Agreement, each Interest Rate Cap, the Residual Security
Agreement, the Residual Pledge Agreement and the other documents to be executed
and delivered in connection with this Agreement.
(b)
Article IX of the Agreement is hereby amended by adding the following at the
end
thereof:
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
SECTION
9.8 Residual
Collateral Account.
If,
on
any Distribution Date prior to the occurrence of an Event of Default, the Amount
Available is less than the aggregate amount required to be distributed pursuant
to clauses (i) through (ix) of Section
9.5(a),
the
Administrative/Collateral Agent shall at the written direction of the Servicer
withdraw the amount of such deficiency, up to the lesser of the Maximum Amount
(as defined in the Residual Security Agreement) and the amount available in
the
“Collateral Account” (as defined in the Residual Security Agreement), from such
Collateral Account and shall apply such amount directly (and solely) to any
unpaid amounts described in clause (vii) or (ix) of Section
9.5 (a).
If,
on
the Distribution Date following the occurrence of an Event of Default, the
Amount Available (after giving effect to any withdrawal of funds from the
Reserve Account) is less than the aggregate amount required to be distributed
pursuant to clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix)
of
Section
9.5(a),
the
Administrative/Collateral Agent shall withdraw the amount of such deficiency
up
to the lesser of the Maximum Amount and the amount available in the “Collateral
Account” (as defined in the Residual Security Agreement), from the such
Collateral Account and shall apply such amount directly (and solely) to any
unpaid amounts described in clauses (i), (ii), (iii), (iv), (v), (vi), (viii)
and (ix) of Section
9.5(a)
in the
order of priority and in the manner set forth in such clauses. After making
the
withdrawal required by this Section
9.8,
such
Collateral Account shall be closed and any remaining funds in such Collateral
Account shall be paid to the “Obligors” under the Residual Security Agreement on
such Distribution Date.
(b)
Section 14.1 of the Agreement is hereby amended by adding the following at
the
end thereof:
or
(u)
Any “Obligor” under the Residual Security Agreement or UACC (in any capacity)
shall fail to perform or observe any other term, covenant or agreement contained
in the Residual Security Agreement or Residual Pledge Agreement on its part
to
be performed or observed and any such failure shall remain unremedied for 30
days after knowledge thereof or after written notice thereof shall have been
given by the Administrative/Collateral Agent to the “Obligor” or
UACC.
2.
Waiver.
The
Borrower informed Deutsche Bank AG, New York Branch, as Agent, and the Lenders
that (a) the Delinquency Ratio as of December 31, 2007 exceeds [ * ] (but
does not exceed [ * ]), the Delinquency Ratio as of January 31, 2008 may
exceed [ * ] (but not [ * ]) and the Delinquency Ratio as of February 29,
2008 may exceed [ * ] (but not [ * ]), (b) the Portfolio Loss Ratio as of
December 31, 2007 exceeds [ * ] (but does not exceed [ * ]), the Portfolio
Loss Ratio as of January 31, 2008 may exceed [ * ] (but not [ * ]) and the
Portfolio Loss Ratio as of February 29, 2008 may exceed [ * ] (but not [ *
]) and (c) the Portfolio Delinquency Ratio as of December 31, 2007
exceeds [ * ] (but does not exceed [ * ]), the Portfolio Delinquency Ratio
as of January 31, 2008 may exceed [ * ] (but not [ * ]) and the Portfolio
Delinquency Ratio as of February 29, 2008 may exceed [ * ] (but not [ * ]).
The Lenders and Agents hereby agree that, during the period from the date hereof
through and including the Business Day prior to the Servicer Report Date
occurring in April 2008, no Additional Reserve Account Percentage will exist
if
the ratios set forth in the preceding sentence are greater than the percentages
set forth therein (but not in excess of the percentages set forth in parentheses
in such sentence).
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
3.
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.
4.
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.
5.
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.
6.
Governing
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
7.
Effectiveness.
This
Amendment shall become effective as of February 8, 2008, when:
(a)
each
of the parties hereto shall have executed a counterpart hereof and delivered
the
same to the Agent;
(b)
each
Rating Agency shall have confirmed that this Amendment will not result in the
withdrawal or reduction of its rating of the Notes or the commercial paper
of
any Noncommitted Lender; and
(c)
the
Agent shall have received any other documents relating to this Amendment
reasonably requested by the Agent.
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
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.
|
UPFC
FUNDING CORP.
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
CFO
|
|
|
UNITED
AUTO CREDIT CORPORATION,
individually
and as Seller, Servicer and Custodian
|
|
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
|
Name:
Xxxxx Xxxxxxxx
|
|
|
Title:
EVP
|
|
|
UNITED
AUTO BUSINESS OPERATIONS, LLC,
individually
and as Seller
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
CFO
|
|
|
UNITED
PANAM FINANCIAL CORP. ,
individually
and as Guarantor
|
|
|
By:
|
/s/
Ray Thousand
|
|
Name:
Ray Thousand
|
|
|
Title:
CEO
|
|
[**CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
|
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Administrative/Collateral Agent
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Vice President
|
|
|
By:
|
/s/
Xxxxx Xxxx
|
|
Name:
Xxxxx Xxxx
|
|
|
Title:
Vice President
|
|
[**CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
|
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Backup Custodian
|
|
|
By:
|
/s/
Xxxxxxxxxxx Xxxxxxxx
|
|
Name:
Xxxxxxxxxxx Xxxxxxxx
|
|
|
Title:
Vice President
|
|
|
By:
|
/s/
Xxxxxx Xxxxxx
|
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title:
Associate
|
|
|
CENTERONE
FINANCIAL SERVICES LLC, as
|
|
|
Backup
Servicer
|
|
|
By:
|
/s/
Xxxxxx X. Xxxxx, Xx.
|
|
Name:
Xxxxxx X. Xxxxx Xx.
|
|
|
Title:
Group Vice President
|
|
GEMINI
LENDER GROUP
|
GEMINI
SECURITIZATION CORP., LLC
|
|
|
As
Noncommitted Lender
|
|
|
By:
|
/s/
R. Xxxxxxx Xxxxxxxxx
|
|
Name:
R. Xxxxxxx Xxxxxxxxx
|
|
|
Title:
Treasurer
|
|
[**CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT]
|
as
Agent and Committed Lender
|
|
|
By:
|
/s/
Xxxx Xxxx
|
|
Name:
Xxxx Xxxx
|
|
|
Title:
Managing Director
|
|
|
By:
|
/s/
Xxxxx Xxx
|
|
Title:
Vice President
|
|
