[AFC Funding Corporation]
FOURTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
This FOURTH AMENDMENT (this "Amendment"), dated as of September 22,
1999, is among AFC Funding Corporation, an Indiana corporation (the "Seller"),
Automotive Finance Corporation, an Indiana corporation (the "Servicer"), POOLED
ACCOUNTS RECEIVABLE CAPITAL CORPORATION, a Delaware Corporation (the
"Purchaser"), and NESBITT BURNS SECURITIES, INC., a Delaware Corporation, as
Agent for Purchaser (in such capacity, the "Agent").
RECITALS
1. The Seller, the Servicer, the Purchaser and the Agent are parties
to the Receivables Purchase Agreement, dated as of December 31, 1996 (as amended
by the First Amendment dated as of February 28, 1997; the Second Amendment dated
as of August 15, 1997; and the Third Amendment dated as of October 30, 1998,
the "Agreement").
2. The Seller, the Servicer, the Purchaser, and the Agent desire to
amend the Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Amendments to the Agreement. The Agreement is hereby amended
as follows:
1.1 The definition of "Purchase Limit" in Exhibit I to the Agreement is
hereby amended by substituting "$300,000,000" for "$225,000,000" where the
latter appears in that definition.
1.2 The definition of "Termination Date" in Exhibit I to the Agreement
is hereby amended by substituting "December 30, 2002" for "December 31, 2001"
where the latter appears in that definition.
1.3 The definition of "Loss Percentage" in Exhibit I to the Agreement
is hereby amended and restated in its entirety as follows:
"Loss Percentage" means, on any date, the greatest of (i) 4 times
the highest Delinquency Ratio during the 12 calendar months ended
immediately preceding such date, (ii) the Loss Reserve Ratio, and (iii)
12%.
1.4 The definition of "Net Spread" in Exhibit I to the Agreement is
hereby amended and restated in its entirety as follows:
"Net Spread' means the annualized percentage equivalent of a
fraction (computed as of the last day of each calendar month), the
numerator of which is the excess of (x) all Finance Charge and Floor
Plan Fee Collections received and applied during such calendar month
(including recoveries) over (y) the sum of, without duplication, (i)
the Carry Costs for such calendar month, (ii) the aggregate amount of
Receivables that became Defaulted Receivables during such calendar
month, (iii) the Outstanding Balance of Pool Receivables that have been
or, consistent with the Credit and Collection Policy, should have been
written off the Seller's books as uncollectible during such calendar
month (but excluding any Receivables that were included in the
calculation of Net Spread pursuant to clause (ii) above in any previous
calendar month), and (iv) the aggregate amount of non-cash adjustments
that reduced the Outstanding Balance of any Pool Receivable during such
calendar month (but excluding any Receivable that was included in the
calculation of Net Spread pursuant to clause (ii) above in any previous
calendar month); and the denominator of which is the average aggregate
Outstanding Balances of the Pool Receivables during such calendar
month."
1.5 Clause (viii) of paragraph (l) of Exhibit IV to the Agreement is
hereby amended and restated in its entirety as follows:
"(viii) such other information respecting the Receivables
(including a Portfolio Certificate on a more frequent basis than
provided in clause (iii) above), the Related Security (including
inventory reports by branch, obligor, vehicle identification number,
and other descriptions sufficient to identify the Related Security) or
the condition of operations, financial or otherwise, of the Seller or
AFC as the Agent may from time to time reasonably request;"
SECTION 2. Conditions to Effectiveness.
2.1 This Amendment shall become effective on the date hereof upon
receipt by the Agent of the following, each duly executed and dated as of the
date hereof (or such other date satisfactory to the Agent), in form and
substance satisfactory to the Agent:
(a) counterparts of this Amendment (whether by facsimile or
otherwise) executed by each of the parties hereto;
(b) a written statement from Moody's Investors Service, Inc. and
Standard & Poor's that this Amendment will not result in a downgrade or
withdrawal of the rating of the Notes; and
(c) such other documents and instruments as the Agent may
reasonably request.
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SECTION 3. Effect of Amendment; Ratification. Except as specifically
amended hereby, the Agreement is hereby ratified and confirmed in all respects,
and all of its provisions shall remain in full force and effect. After this
Amendment becomes effective, all references in the Agreement (or in any other
Transaction Document) to "the Receivables Purchase Agreement", "this Agreement",
"hereof", "herein", or words of similar effect, in each case referring to the
Agreement, shall be deemed to be references to the Agreement as amended hereby.
This Amendment shall not be deemed to expressly or impliedly waive, amend, or
supplement any provision of the Agreement other than as specifically set forth
herein.
SECTION 4. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
SECTION 5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Indiana without
regard to any otherwise applicable conflict of laws principles.
SECTION 6. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or the Agreement or any provision hereof or thereof.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
AFC FUNDING CORPORATION
By: Curtis L. Phillips
---------------------------------------
Name: Curtis L. Phillips
---------------------------------
Title: Executive Vice President, Chief
Financial Officer and Treasurer
---------------------------------
AUTOMOTIVE FINANCE CORPORATION
By: Curtis L. Phillips
---------------------------------------
Name: Curtis L. Phillips
---------------------------------
Title: Executive Vice President, Chief
Financial Officer and Treasurer
---------------------------------
POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION
By: Dwight Jenkins
---------------------------------------
Name: Dwight Jenkins
---------------------------------
Title: Vice President
---------------------------------
NESBITT BURNS SECURITIES INC.
By: David J. Kucera
---------------------------------------
Name: David J. Kucera
---------------------------------
Title: Managing Director
---------------------------------
By: Jeffrey J. Phillips
---------------------------------------
Name: Jeffrey J. Phillips
---------------------------------
Title: Managing Director
---------------------------------
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ACKNOWLEDGED AND ACCEPTED
CAPITAL MARKETS ASSURANCE CORPORATION
By: Robert M. Lupoli
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Name: Robert M. Lupoli
---------------------------------
Title: Director
---------------------------------
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ACKNOWLEDGED AND ACCEPTED
BANK OF MONTREAL FIFTH THIRD BANK, INDIANA
By: Leon H. Sinclair By: David P. Greene
--------------------------------------- ------------------------------
Name: Leon H. Sinclair Name: David P. Greene
--------------------------------- ------------------------
Title: Director Title: Vice President
--------------------------------- ------------------------
HARRIS TRUST AND SAVINGS BANK
By: Thad D. (illegible)
---------------------------------------
Name: Thad D. (illegible)
---------------------------------
Title: V.P.
---------------------------------
SUN TRUST BANK, CENTRAL FLORIDA,
N.A.
By: C. A. Black
---------------------------------------
Name: Christopher A. Black
---------------------------------
Title: Director
---------------------------------
LLOYDS TSB BANK, PLC
By: Gavin Rees
---------------------------------------
Name: Gavin Rees
---------------------------------
Title: Assistant Vice President
Structured Finance
R185
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By: Amy Vespasiano
---------------------------------------
Name: Amy Vespasiano
---------------------------------
Title: Vice President
Structured Finance
V024
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