EXECUTION COPY
AMENDMENT NUMBER 5 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 5 TO TRANSFER AND ADMINISTRATION AGREEMENT
(this "Amendment"), dated as of October 31, 1996 between UNION ACCEPTANCE
FUNDING CORPORATION, a Delaware corpo ration, as transferor (in such capacity,
the "Transferor"), UNION ACCEPTANCE CORPORATION, an Indiana corporation, as col
lection agent (in such capacity, the "Collection Agent"), and ENTERPRISE FUNDING
CORPORATION, a Delaware corporation (the "Company") amending that certain
Transfer and Administration Agreement dated as of June 27, 1995, as amended as
of September 8, 1995, September 29, 1995, March 1, 1996 and September 5, 1996
(the "Transfer and Administration Agreement").
WHEREAS, the Transferor and the Company have agreed to make
certain amendments to the Transfer and Administration Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined TermsDefined 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 Transfer and Administration
Agreement:
(a) The definition of Securitized Pool is hereby deleted in its
entirety and replaced with the following text (solely for convenience of
reference, the revised language has been italicized):
"Securitized Pool" shall mean each pool of receivables
directly or indirectly transferred by UAFC or UAC to a securitization
vehicle in a structured finance transaction involving prime automobile
installment sales contracts and installment notes and security
agreements, similar to the Contracts, beginning with and including the
pool of receivables securitized in connection with the UACSC 1995-D
Auto Trust.
SECTION 2. Exhibit A. Exhibit A to the Transfer and
Administration Agreement is hereby replaced in its entirety with Exhibit A
attached hereto.
SECTION 3. Amendment to Sections 2.16(c) and 2.17(a). In
connection with the agreement of the undersigned to revise the minimum amount of
funds required to remain on deposit in the Reserve Account under certain
circumstances, Sections 2.16 ("Reserve Account; Withdrawals; Releases") and 2.17
("Optional Repurchase") are hereby amended as follows:
(a) Subsection (iii) of Section 2.16(c) of the Transfer and
Administration Agreement is hereby deleted in its entirety and replaced with the
following text (solely for convenience of reference, the revised language is
italicized):
"(iii) In the event that on the date of any Take-Out pursuant
to Section 2.17(a), the amount on deposit in the Reserve Account
exceeds 2.75% of the Maximum Net Investment, the Collateral Agent shall
release to the Transferor an amount equal to the excess of the amount
on deposit in the Reserve Account over the product of 2.75% and the
Maximum Net Investment."
(b) The first complete paragraph of subsection (a) of Section
2.17(a) of the Transfer and Administration Agreement is hereby deleted in its
entirety and replaced with the following text (solely for convenience of
reference, the revised language is italicized):
"(a) On any Business Day, the Transferor shall have the right
to require the Company or the Liquidity Provider, as applicable, to
assign to the Transferor all of its right, title and interest in and to
the Contracts and the related Receivables (excluding any Contracts and
related Receivables booked on and after the cut-off date applicable to
the structured finance transaction established by or on behalf of the
Transferor or an affiliate, to which the reassigned Contracts and
related Receivables will be subject) on the terms and conditions set
forth herein. It shall be a condition precedent to any such assignment
that (i) the Transferor shall pay to the Company's account an amount
equal to the amount necessary to cause the Net Investment to be equal
to the product of (x) the Net Receivables Balance (allocated between
Contracts which upon origination provided for 72 monthly payments or
less and Contracts which upon origination provided for more than 72
monthly payments) calculated after giving effect to the proposed
reassignment and (y) with respect to each such group of Contracts, the
Transfer Percentage then in effect, (ii) the amount to be paid pursuant
to clause (i) above shall (x) not be greater than the principal
component of the Company's maturing Commercial Paper which was issued
to fund such portion of the Net Investment or the principal component
subject to the funding period utilized by the Liquidity Provider to
fund such portion of the Net Investment, as applicable and (y) be at
least $5,000,000, (iii) the Transferor shall deposit to the Collection
Account an amount equal to the sum of (x) all unreimbursed Servicer
Advances and (y) all interest costs associated with the Company's
Commercial Paper issued to fund its interest in the Contracts and
related Receivables proposed to be reassigned or all interest costs
associated with any funding periods utilized by the Liquidity Provider
with respect to its interest in such Contracts and related Receivables,
as applicable, as well as all Carrying Costs accrued through the date
of the maturity of such Commercial Paper or funding period, (iv) the
Transferor shall have given the Administrative Agent at least thirty
(30) days prior written notice of its intention to reacquire such
Contracts and Receivables, and (v) after giving effect to such
reassignment the amount on deposit in the Reserve Account shall be at
least 2.75% of the Maximum Net Investment. It is the intention of the
parties that the Transferor shall pay to the Company's account and the
Collection Account, as applicable, such amounts as are required under
this Section on the closing date of such structured finance transaction
(which closing date will generally also be the Business Day preceding
the maturity date of the Company's Commercial Paper issued to fund its
interest in the Contracts and related Receivables proposed to be
reassigned)."
SECTION 4. Amendment to Section 7.1(n). In connection with the
agreement of the undersigned to revise the requirements of the Transfer and
Administration Agreement relating to the minimum weighted average annual
percentage rate of the portfolio of Contracts, Section 7.1 ("Termination
Events") is hereby amended as follows:
(a) Section 7.1(n) of the Transfer and Administration
Agreement is hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language is italicized):
"(n) the weighted average annual percentage rate set forth in
the Contracts shall at any time be less than the sum of (i) the Base
Rate at such time, plus (ii) the percentage used to calculate the
Servicing Fee plus (iii) 2.00%."
SECTION 5. 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 Company, the Transferor, Union Acceptance
Corporation, the Collection Agent, the Administrative Agent or the Collateral
Agent under the Transfer and Administration Agreement.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Severability; CounterpartsSeverability;
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 Transfer and Administration 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 Transfer and Administration Agreement to "this Agreement", "hereunder",
"herein" or words of like import shall mean and be a reference to the Transfer
and Administration Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment Number 5 as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UNION ACCEPTANCE
FUNDING CORPORATION
as Transferor
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary
UNION ACCEPTANCE CORPORATION
as Collection Agent
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
Exhibit A
Actual Loss Percentage Transfer Percentage
Per Contract
Number of Monthly
Payments
72 or less +72
Less than 93.0% 98% 90%
93.0% to 95.9% 96% 88%
96.0% to 97.9% 94% 86%
98.0% to 100% 92% 84%
100.0% to 105.9% 90% 82%
106.0% to 110.0% 88% 80%
More than 110% 0% 0%
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Note: Solely for convenience of reference, the revisions to the previous form of
Exhibit A have been italicized.
