AMENDMENT NUMBER 6 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 6 TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of July 29, 1997 between PERFORMANCE FUNDING CORPORATION,
a Delaware corporation, as transferor (in such capacity, the "Transferor"),
UNION ACCEPTANCE CORPORATION, an Indiana corporation, in its individual capacity
and 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 July 24, 1995
among the parties hereto, as amended by Amendment No. 1 dated as of September 8,
1995, Amendment No. 2 dated as of May 10, 1996, Amendment No. 3 dated as of
December 23, 1996 and Amendment No. 4 dated April 25, 1997 (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) Section 1. I of the Transfer and Administration Agreement is hereby
amended by deleting the definition of Transfer Price and replacing it with the
following (solely for convenience changed language is italicized):
"Transfer Price" shall mean, with respect to any Transfer, an
amount equal to the applicable Transfer Price Percentage of the
aggregate Outstanding Balance of all Eligible Receivables for which
funding hereunder is requested by the Transferor in connection
therewith."
(b) Section 1.1 of the Transfer and Administration Agreement is hereby
amended by the addition of the following definition in the appropriate
alphabetic location:
"Investment Grade Rating" shall mean a rating of at least
"BBB" by Standard & Poor's, Fitch Investor Service, LLP or Duff &
▇▇▇▇▇▇ Credit Rating Co., and/or "Baa" by ▇▇▇▇▇'▇.
(c) Section 1.1 of the Transfer and Administration Agreement is hereby
amended by the addition of the following definition in the appropriate
alphabetic location:
"Ratio of Actual Losses to Maximum Losses" shall mean, on any
date of determination, the percentage equal to the ratio of (i) the
aggregate Actual Net Loss
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for all Monthly Groups to (ii) the aggregate Maximum Net Loss for all
Monthly Groups, such ratio to be rounded to the nearest hundredth of
one percent."
(d) Section 1. I of the Transfer and Administration Agreement is hereby
amended by the addition of the following definition in the appropriate
alphabetic location:
"Securitized Pool" shall mean each pool of receivables
directly or indirectly transferred by the Transferor or UAC to a
securitization vehicle in a structured finance transaction involving
non-prime automobile installment sales contracts and installment notes
and security agreements, similar to the Contracts."
(e) Section 1.1 of the Transfer and Administration Agreement is hereby
amended by the addition of the following definition in the appropriate
alphabetic location:
"Transfer Price Percentage" shall mean, for any date of
determination, the percentage specified in the following table
corresponding to the related Ratio of Actual Losses to Maximum Losses:
Ratio of Actual Losses Transfer Price
to Maximum Losses Percentage
70% and less 87.00%
70.01 to 80.00% 84.00%
80.01% to 90.00% 80.00%
90.01% to 100.00% 75.00%
Greater than 100.00% N/A, Termination Event
provided that in no case will (i) 100% minus (x) the Transfer Price Percentage
plus (y) the amount on deposit in the Reserve Account (after giving effect to
any withdrawal therefrom on the date of determination) expressed as a percentage
of the Maximum Net Investment be less than (ii) the enhancement required for the
most recent Securitized Pool to achieve an Investment Grade Rating."
SECTION 2. Other Amendments. (a) The references in the following
Sections which refer to "87%" (which references were put in effect pursuant to
Amendment No. 4) which appear in Sections 2.2(b)(i), 2.5(a)(iii)(A), 2.9(b),
2.13(a)(vi), 2.14(a)(i), 2.17(a)(i)(x), 3.1(m), and 7.1(k)(ii) are hereby
amended to read "the then applicable Transfer Price Percentage."
(b) The reference to WV in Section 2.13(a)(iv) is hereby amended to
read "the then applicable Transfer Price Percentage."
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SECTION 3. Exhibits. Exhibit D to the Transfer and Administration
Agreement is hereby deleted and replaced with Exhibit D attached hereto.
SECTION 4. Representations and Warranties. The Transferor hereby makes
to the Company, on and as of the date hereof, all of the representations and
warranties set forth in Section 3.1 of the Transfer and Administration
Agreement, except to the extent that any such representation or warranty
specifically refers to an earlier date. In addition, the Collection Agent hereby
makes to the Company, on the date hereof, all the representations and warranties
set forth in Section 3.2 of the Transfer and Administration Agreement, except to
the extent that any such representation or warranty specifically refers to an
earlier date.
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 6 as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
UNION ACCEPTANCE FUNDING CORPORATION
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Secretary
UNION ACCEPTANCE CORPORATION
as Collection Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
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EXHIBIT D
Max. Net-Loss to-
Beginning Balance
Month Ratios
1 0.52%
2 1.03%
3 1.29%
4 1.73%
5 2.04%
6 2.32%
7 2.72%
8 3.01%
9 3.38%
10 3.67%
11 4.00%
12 4.29%
13 5.34%
14 5.67%
15 6.08%
16 6.40%
17 6.80%
18 7.13%
19 7.34%
20 7.54%
21 7.90%
22 8.16%
23 8.41%
24 8.65%
25 8.89%
26 9.25%
27 9.48%
28 9.71%
29 9.94%
30 10.46%
31 10.67%
32 10.89%
33 11.10%
34 11.30%
35 12.05%
36 12.24%
37 12.28%
38 12.32%
39 12.43%
-5-
40 12.54%
41 12.64%
42 12.95%
43 13.04%
44 13.14%
45 13.22%
46 13.30%
47 &UP 13.50%