AMENDMENT NUMBER 9 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 9 TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of January 26, 1998 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, Amendment No. 4 dated as of April 25, 1997,
Amendment No. 5 dated as of June 6, 1997, Amendment No. 6 dated as of July 29,
1997, Amendment No.7 dated as of September 29,1997 and Amendment No. 8 dated as
of November 24, 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 1.1 of the Transfer and Administration Agreement is hereby
amended by deleting the definition of Actual Net Loss and replacing it with the
following (solely for convenience changed language is italicized):
"Actual Net Loss" shall mean, for any applicable period and
for any particular Monthly Group, an amount equal to the
cumulative gross charge-offs during such period less any
recoveries realized during such period on charged-off
contracts less the Adjustment Factor times estimated wholesale
value of repossessed financed vehicles which have not yet been
liquidated (based on the National Auto Research Black Book
together with adjustments related to vehicle condition) less
all Reimbursable Dealer Add-ons as determined in accordance
with UAC's Credit and Collection Policy relating to Contracts
for which Reimbursable Dealer Add-ons have not been received
and for which UAC's Credit and Collection Policy deems such
amounts to be collectible, in each case related to specified
contracts and receivables included in such Monthly Group
through the most recent Settlement Period.
(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:
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"Actual Amount" shall mean, for each Settlement Period, the
actual liquidation proceeds obtained for the repossessed
financed vehicles during such Settlement Period upon the
liquidation of the repossessed financed vehicles, as reported
on the related Settlement Statement."
"Adjustment Factor" shall mean, for each Collection Period (i)
0%, if the Ratio of Estimated Amount to Actual Amount is
greater than 120% for the three most recent Collection Periods
or (ii) if the Ratio of Estimated Amount to Actual Amount is
less than 120% for the three most recent Collection Periods,
the percentage equivalent of a fraction, the numerator of
which is 1 and the denominator of which is the highest Ratio
of Estimated Amount to Actual Amount for the six most recent
Collection Periods."
"Estimated Amount' shall mean, for each Settlement Period, the
wholesale value of repossessed financed vehicles which have
not been liquidated as previously estimated by the Collection
Agent for all Monthly Groups in the aggregate, as reported on
the related Settlement Statement."
"Ratio of the Estimated Amount to the Actual Amount" shall
mean, for each Collection Period, the ratio of (a) Estimated
Amount to (b) Actual Amount."
(c) Section 5.2(j) of the Transfer and Administration Agreement is
hereby amended by deleting such section and replacing it with the following
(solely for convenience changed language is italicized):
Minimum Standards of an Independent UAC. Following complete
divestiture by Union Federal Savings Bank of Indianapolis of
its equity interest in UAC, UAC shall not, subsequent to such
divestiture (i) (A) as at the end of each fiscal year, fail to
maintain consolidated shareholder's equity (calculated in
accordance with generally accepted accounting principles) of
at least $50,000,000 and (B) as at the end of each fiscal
quarter, have a ratio of Consolidated Total Debt to the sum of
Subordinated Debt plus Consolidated Tangible Net Worth greater
than 7.5:1.0 (where the Warehouse Facility balances utilized
in such calculation are the average quarterly balances
determined using the Warehouse Facility balances at the end of
each month in the relevant quarter) (capitalized terms used in
this clause are defined in Exhibit P) or (ii) have a long-term
senior unsecured debt rating lower than BB+ from Fitch
Investors Service, Inc. or the equivalent by Xxxxx'x or
Standard and Poor's.
SECTION 2. 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.
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SECTION 3. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4. 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 5. 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 9 as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title:
UNION ACCEPTANCE FUNDING CORPORATION
as Transferor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UNION ACCEPTANCE CORPORATION
as Collection Agent
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
