Exhibit 4.1
AMENDMENT NUMBER EIGHT TO
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDMENT NUMBER EIGHT TO AMENDED AND RESTATED SECURITY AGREEMENT (this
"Amendment"), dated as of August 23, 2002 by and among UNION ACCEPTANCE FUNDING
CORPORATION, an Indiana corporation, as Seller (in such capacity, the "Seller"),
UAFC CORPORATION, a Delaware corporation, as debtor (in such capacity, the
"Debtor"), UNION ACCEPTANCE CORPORATION, an Indiana corporation ("UAC"),
individually and in its capacity as collection agent (in such capacity, the
"Collection Agent"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation (the
"Company"), MBIA INSURANCE CORPORATION, a New York stock insurance company, as
financial guaranty insurer (the "Insurer") and BANK OF AMERICA, N.A., a national
banking association ("Bank of America"), individually and as collateral agent
for the Company, the Bank Investors, and the Insurer (in such capacity, the
"Collateral Agent") amending that certain Amended and Restated Security
Agreement dated as of May 12, 2000 (as the same may be amended, restated,
supplemented or modified from time to time, the "Security Agreement").
WHEREAS, in order to induce the Insurer and the Collateral Agent to consent
to the extension of the Termination Date until August 25, 2003 subject to the
terms and conditions of this Amendment, and in consideration of the foregoing
and of other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto mutually desire to make certain amendments to
the Security Agreement as hereinafter set forth.
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 Security Agreement.
(a) Section 1.1 of the Security Agreement is hereby amended by adding
the following definitions in alphabetical order therein:
"Back-up Servicing Agreement" shall mean the agreement or agreements
pursuant to which an entity acceptable to the Insurer agrees to perform
back-up servicing functions as provided therein and as successor servicer
under the Servicing Agreements and the Security Agreement if so required.
"Servicing Agreement" shall mean each of the following agreements, as
the same may be amended, restated, supplemented or otherwise modified from
time to time:
(A) the Pooling and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
BNY Midwest Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings
Bank as trustee dated as of March 1, 1998;
(B) the Pooling and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
BNY Midwest Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings
Bank as trustee dated as of June 1, 1998;
(C) the Pooling and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
BNY Midwest Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings
Bank as trustee dated as of September 1, 1998;
(D) the Pooling and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
BNY Midwest Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings
Bank as trustee dated as of November 1, 1998;
(E) the Pooling and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
BNY Midwest Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings
Bank as trustee dated as of February 1, 1999;
(F) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of May
1, 1999;
(G) the Trust and Servicing Agreement among UAC Securitization
Corporation as seller, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of July
23, 1999;
(H) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of
August 1, 1999;
(I) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of
November 1, 1999;
(J) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of
February 1, 2000;
(K) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of June
1, 2000;
(L) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of
November 17, 2000;
(M) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of
February 24, 2001;
(N) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of
September 25, 2001; and
(O) the Trust and Servicing Agreement among UAC Securitization
Corporation as depositor, Union Acceptance Corporation as servicer and
Wachovia Trust Company, National Association, formerly First Union
Trust Company, National Association as owner trustee dated as of March
18, 2002.
"Servicing Term Agreements" shall mean the agreement or agreements pursuant
to which the term of UAC as servicer under each Servicing Agreement shall
terminate and UAC shall be reappointed for a period of 60 days ending on October
31, 2002.
(b) Section 1.1 of the Security Agreement is hereby amended by
deleting the definition of "Commitment Termination Date" and replacing it
with the following (solely for convenience changed language is italicized):
"Commitment Termination Date" shall mean August 25, 2003, or such
later date to which the Commitment Termination Date may be extended by the
Debtor, the Agent and the Bank Investors not later than 30 days prior to
the then current Commitment Termination Date.
(c) Section 1.1 of the Security Agreement is hereby amended by deleting the
definition of "Termination Date" and replacing it with the following (solely for
convenience changed language is italicized):
"Termination Date" shall mean the earliest of (i) that Business Day
designated by the Debtor to the Agent as the Termination Date at any time
following 60 days' written notice to the Agent, (ii) the date of
termination of the liquidity commitment of the Liquidity Provider under the
Liquidity Provider Agreement, (iii) the date of termination of the
commitment of the Credit Support Provider under the Credit Support
Agreement, (iv) the day on which a Termination Event occurs pursuant to
Section 7.1, (v) two business days prior to the Commitment Termination
Date, (vi) August 25, 2003, unless extended prior to such date pursuant to
a Revolving Period Extension (as defined in the Insurance Agreement), or
(vii) the day on which UAC's term as Collection Agent shall terminate and
shall not be extended pursuant to Section 6.1A hereof.
SECTION 2. Amendment to Article VI. Article VI of the Security Agreement is
hereby amended to add the following section as Section 6.1A immediately
following Section 6.1 thereof:
SECTION 6.1A Successor Collection Agent. Notwithstanding Section 6.1
of this Agreement, the parties hereby agree that the initial term of UAC as
Collection Agent shall terminate at 11:59 p.m. on August 26, 2002;
provided, however, UAC shall act as successor Collection Agent for a 60-day
term commencing at 12:00 a.m. on August 27, 2002 and terminating at 11:59
a.m. on October 31, 2002 (the "Servicing Term"), unless such term is
extended for an additional 60-day term (such term, an "Extended Servicing
Term") in writing executed by the Insurer prior to the expiration of such
Servicing Term. Any Extended Servicing Term may be similarly extended prior
to its expiration. Upon the expiration of the Servicing Term or any
subsequent Extended Serving Term without renewal, all rights and
obligations of UAC as successor Collection Agent under the Transaction
Documents shall terminate and all authority and power of UAC as successor
Collection Agent shall pass to and be vested in the back-up servicer
designated pursuant to the Back-up Servicing Agreement or such other entity
as shall be designated by the Insurer. UAC shall, on or before September 4,
2002 and on the date that is three (3) Business Days from the end of each
Settlement Period, deliver to the Insurer a tape containing the master
record of the Receivables as of the end of the previous Settlement Period
in such form as the Insurer shall reasonably require. UAC hereby agrees to
cooperate with the Insurer and the back-up servicer designated pursuant to
the Back-up Servicing Agreement or other successor Collection Agent in
effectuating the complete transfer of the servicing, administration and
collection functions from UAC to the back-up servicer or such other
successor Collection Agent in accordance with the Transaction Documents and
this Agreement.
SECTION 3. Amendment to Section 7.1.
(a) Section 7.1(o) of the Security Agreement is hereby amended by
deleting such paragraph and replacing it with the following (solely for
convenience added language is italicized):
(o) the Insurer shall have given notice that a Trigger Event (as
defined in the Insurance Agreement) has occurred and is continuing
under the Insurance Agreement;
(b) Section 7.1 of the Security Agreement is hereby amended deleting
the word "and" at the end of subsection (p) thereof and by adding the
following subsections (r)-(u) in alphabetical order at the end thereof:
(r) the Servicing Term Agreements shall not be fully executed and
in full force and effect by September 6, 2002;
(s) the Back-up Servicing Agreement shall not be fully executed
and in full force and effect by October 31, 2002;
(t) UAC shall cease to be the Collection Agent and
(u) the Transaction Documents shall not be amended to reflect the
changes required by either S&P or ▇▇▇▇▇'▇ to restore or maintain the
Insurer's shadow rating with respect to the Policy at BBB or Baa2
respectively within five (5) Business Days of notice from the Insurer
that such amendments are necessary.
SECTION 4. 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 Debtor, the Collection Agent, the Agent, the Administrative
Agent, the Insurer or the Collateral Agent under the Security Agreement.
SECTION 5. Effectiveness. This Amendment shall become effective as of
August 23, 2002 when counterparts of this Amendment shall have been accepted and
agreed to by each of the parties hereto.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES WHICH MAY REQUIRE THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION.
SECTION 7. 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 8. Ratification. Except as expressly affected by the provisions
hereof, the Security 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 Security Agreement to "this
Agreement", "hereunder", "herein" or words of like import shall mean and be a
reference to the Security Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment Number Eight as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: _______________________________
Name:
Title:
UAFC CORPORATION,
as Debtor
By: _______________________________
Name:
Title:
UNION ACCEPTANCE FUNDING
CORPORATION, as Seller
By: _______________________________
Name:
Title:
UNION ACCEPTANCE CORPORATION,
individually and as Collection Agent
By: _______________________________
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Collateral Agent
and Bank Investor
By: _______________________________
Name:
Title:
MBIA INSURANCE CORPORATION, as
Insurer
By: _______________________________
Name:
Title: