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 corporation, as transferor (in such capacity, the
"Transferor"), UNION ACCEPTANCE CORPORATION, an Indiana corporation, as
collection 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 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 2995-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
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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 sei
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
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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; 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
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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
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Exhibit A
Actual Loss Percentage Transfer Percentage
Per Contract
Number of Monthly
Payments
72 or less +72
Less than 9.30% 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.
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