SPREAD ACCOUNT AGREEMENT among UPFC AUTO RECEIVABLES TRUST 2007-B, as Issuing Entity, AMBAC ASSURANCE CORPORATION, as Insurer, and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee, as Trust Collateral Agent and as Collateral Agent Dated as of November...
EXECUTION
VERSION
among
as
Issuing Entity,
AMBAC
ASSURANCE CORPORATION,
as
Insurer,
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Trustee, as Trust Collateral Agent and as Collateral Agent
Dated
as
of November 8, 2007
TABLE
OF
CONTENTS
Page
|
||||
ARTICLE
I
|
||||
DEFINITIONS
|
||||
Section
1.01. Definitions
|
1
|
|||
Section
1.02. Other Definitional Provisions.
|
4
|
|||
ARTICLE
II
|
||||
THE
SPREAD ACCOUNT AGREEMENT COLLATERAL
|
||||
Section
2.01. Grant of Security Interest by the Issuing Entity
|
5
|
|||
Section
2.02. Priority
|
5
|
|||
Section
2.03. Issuing Entity Remains Liable
|
5
|
|||
Section
2.04. Delivery and Maintenance of Spread Account Agreement
Collateral.
|
6
|
|||
Section
2.05. Termination and Release of Rights.
|
7
|
|||
Section
2.06. Non-Recourse Obligations of Issuing Entity
|
8
|
|||
ARTICLE
III
|
||||
SPREAD
ACCOUNT
|
||||
Section
3.01. Establishment of Spread Account; Initial Deposit into Spread
Account; Maintenance of Spread Account.
|
8
|
|||
Section
3.02. Investments.
|
9
|
|||
Section
3.03. Payments; Priority of Payments.
|
10
|
|||
Section
3.04. General Provisions Regarding Spread Account.
|
11
|
|||
Section
3.05. Reports by the Collateral Agent
|
12
|
|||
ARTICLE
IV
|
||||
THE
COLLATERAL AGENT
|
||||
Section
4.01. Appointment and Powers
|
12
|
|||
Section
4.02. Performance of Duties
|
12
|
|||
Section
4.03. Limitation on Liability
|
13
|
|||
Section
4.04. Reliance upon Documents
|
13
|
|||
Section
4.05. Successor Collateral Agent.
|
13
|
|||
Section
4.06. Indemnification
|
15
|
|||
Section
4.07. Compensation and Reimbursement
|
15
|
|||
Section
4.08. Representations and Warranties of the Collateral
Agent
|
15
|
|||
Section
4.09. Waiver of Setoffs
|
16
|
|||
Section
4.10. Control by the Controlling Party
|
16
|
|||
Section
4.11. Limitation of Collateral Agent Liability
|
16
|
ARTICLE
V
|
||||
COVENANTS
OF THE ISSUING ENTITY
|
||||
Section
5.01. Preservation of Spread Account Agreement Collateral
|
17
|
|||
Section
5.02. Notices
|
17
|
|||
Section
5.03. Waiver of Stay or Extension Laws; Marshalling of
Assets
|
17
|
|||
Section
5.04. Noninterference, etc
|
17
|
|||
Section
5.05. Issuing Entity Changes
|
18
|
|||
ARTICLE
VI
|
||||
CONTROLLING
PARTY; INTERCREDITOR PROVISIONS
|
||||
Section
6.01. Appointment of Controlling Party
|
18
|
|||
Section
6.02. Controlling Party's Authority.
|
18
|
|||
Section
6.03. Rights of Issuing Entity Secured Parties
|
19
|
|||
Section
6.04. Degree of Care.
|
19
|
|||
ARTICLE
VII
|
||||
REMEDIES
UPON DEFAULT
|
||||
Section
7.01. Remedies upon a Default
|
20
|
|||
Section
7.02. Waiver of Default
|
20
|
|||
Section
7.03. Restoration of Rights and Remedies
|
20
|
|||
Section
7.04. No Remedy Exclusive
|
21
|
|||
ARTICLE
VIII
|
||||
MISCELLANEOUS
|
||||
Section
8.01. Further Assurances
|
21
|
|||
Section
8.02. Waiver
|
21
|
|||
Section
8.03. Amendments; Waivers
|
21
|
|||
Section
8.04. Severability
|
22
|
|||
Section
8.05. Nonpetition Covenant
|
22
|
|||
Section
8.06. Notices
|
22
|
|||
Section
8.07. Term of this Agreement
|
24
|
|||
Section
8.08. Assignments; Third-Party Rights; Reinsurance.
|
24
|
|||
Section
8.09. Consent of Controlling Party
|
25
|
|||
Section
8.10. Consents to Jurisdiction
|
25
|
|||
Section
8.11. Determination of Adverse Effect
|
25
|
|||
Section
8.12. Compliance with Laws
|
25
|
|||
Section
8.13. Headings
|
26
|
|||
Section
8.14. TRIAL BY JURY WAIVED
|
26
|
|||
Section
8.15. GOVERNING LAW
|
26
|
|||
Section
8.16. Counterparts
|
26
|
|||
Section
8.17. Limitation of Liability.
|
26
|
ii
This
SPREAD ACCOUNT AGREEMENT, dated as of November 8, 2007 (this "Agreement"),
is
among UPFC AUTO RECEIVABLES TRUST 2007-B, as issuing entity (the "Issuing
Entity"),
AMBAC
ASSURANCE CORPORATION, as insurer (the "Insurer"),
and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as trustee (in such capacity, the
"Trustee"),
as
trust collateral agent (in such capacity the "Trust
Collateral Agent")
and as
collateral agent (in such capacity, the "Collateral
Agent").
RECITALS
WHEREAS,
the Issuing Entity was formed pursuant to the Trust Agreement dated as of July
19, 2007 as amended and restated as of November 8, 2007 (as amended from time
to
time, the "Trust
Agreement"),
between UPFC Auto Financing Corporation, as seller (the "Seller"),
and
Xxxxx Fargo Delaware Trust Company, as owner trustee (the "Owner
Trustee").
WHEREAS,
pursuant to a Sale and Servicing Agreement, dated as of November 1, 2007, (the
"Sale
and Servicing Agreement")
among
the Issuing Entity, the Seller, the Servicer, the Trust Collateral Agent, the
Custodian, the Backup Servicer and the Designated Backup Subservicer, the Seller
sold to the Issuing Entity all of its right, title and interest in and to the
Receivables and Other Conveyed Property.
WHEREAS,
pursuant to the Indenture, dated as of November 1, 2007 (the "Indenture"),
among
the Issuing Entity, the Trustee and the Trust Collateral Agent, the Issuing
Entity pledged all of its right, title and interest in and to the Collateral
to
the Trust Collateral Agent on behalf of the Issuing Entity Secured
Parties.
WHEREAS,
the Issuing Entity requested that the Insurer issue the Note Policy to the
Trustee to guarantee payment of the Insured Payments on each Distribution Date,
in respect of the Notes.
WHEREAS,
in consideration of the issuance of the Note Policy, the Issuing Entity and
the
Servicer have agreed that the Insurer shall have certain rights as Controlling
Party to the extent set forth in the Basic Documents, with respect to the
Collateral.
In
consideration of the premises, and for other good and valuable consideration,
the adequacy, receipt and sufficiency of which are hereby acknowledged the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
Unless
otherwise defined in this Agreement, the following terms shall have the
following meanings:
"Collateral
Agent"
means,
initially Deutsche Bank Trust Company Americas, in its capacity as collateral
agent on behalf of the Issuing Entity Secured Parties, including its successors
in interest, until a successor Person shall have become the Collateral Agent
pursuant to Section 4.05 and thereafter "Collateral Agent" shall mean such
successor Person.
1
"Collateral
Agent Fee"
means
as designated in the fee letter between Collateral Agent and UACC.
"Controlling
Party"
means
the Person designated as the Controlling Party at such time pursuant to
Section 6.01.
"Cumulative
Net Loss"
means
the positive difference between (i) the sum of (A) the aggregate Principal
Balance of all Liquidated Receivables plus (B) aggregate Cram Down Losses minus
(ii) Liquidation Proceeds received with respect to the Receivables described
in
clause (i).
"Cumulative
Net Loss Ratio"
means
the ratio, expressed as a percentage, computed by dividing the Cumulative Net
Losses by the Original Pool Balance.
"Default"
means,
(i) if the Insurer is then the Controlling Party, any Insurance Agreement
Event of Default or an Event of Default under the Indenture and (ii) if the
Trustee is then the Controlling Party, any Event of Default under
Section 5.1 of the Indenture.
"Delinquency
Ratio"
means,
the ratio (expressed as a percentage) computed by dividing: (a) the aggregate
Principal Balance of all Receivables which were Delinquent Receivables as of
the
close of business on the last day of the related Collection Period by (b) the
sum of the aggregate Principal Balance of all Receivables as of the close of
business on the first day of the related Collection Period.
"Delinquent
Receivable"
means a
Receivable with respect to which a scheduled payment is more than sixty (60)
days past due (excluding (i) Receivables which the Servicer has repossessed
the
related Financed Vehicle and (ii) Receivables which have become Liquidated
Receivables).
"Final
Termination Date"
means
the date that is the later of (i) the Insurer Termination Date and
(ii) the Trustee Termination Date.
"Insured
Payments"
has the
meaning set forth in the Note Policy.
"Insurer
Termination Date"
means
the date which is the latest of (i) the date of the expiration of the Note
Policy and the cancellation and return thereof to the Insurer, (ii) the
date on which the Insurer shall have received payment and performance in full
of
all Insurer Issuing Entity Secured Obligations and (iii) the latest date on
which any payment referred to above could be avoided as a preference or
otherwise under the United States Bankruptcy Code or any other similar federal
or state law relating to insolvency, bankruptcy, rehabilitation, liquidation
or
reorganization, as specified in an Opinion of Counsel delivered to the
Collateral Agent, the Insurer and the Trustee.
"Issuing
Entity"
means
UPFC Auto Receivables Trust 2007-B.
2
"Level
1 Cumulative Net Loss Test"
means,
for any Distribution Date specified below, the Cumulative Net Loss Ratio for
the
related Collection Period is greater than the percentage set forth opposite
such
Distribution Date in Schedule A hereto.
"Level
1 Delinquency Test"
means,
for any Distribution Date, the arithmetic average of the monthly Delinquency
Ratios for the three immediately preceding Collection Periods is greater than
the percentage set forth opposite such Distribution Date in Schedule A
hereto.
"Level
1 Trigger Event"
means
any violation of the Xxxxx 0 Xxxxxxxxxx Xxx Loss Test or the Level 1 Delinquency
Test.
"Level
2 Cumulative Net Loss Test"
means,
for any Distribution Date specified below, the Cumulative Net Loss Ratio for
the
related Collection Period is greater than the percentage set forth opposite
such
Distribution Date in Schedule A hereto.
"Level
2 Delinquency Test"
means,
for any Distribution Date, the arithmetic average of the monthly Delinquency
Ratios for the three immediately preceding Collection Periods is greater than
the percentage set forth opposite such Distribution Date in Schedule A
hereto.
"Level
2 Trigger Event"
means
the occurrence of the Xxxxx 0 Xxxxxxxxxx Xxx Loss Test or the Level 2
Delinquency Test.
"Level
3 Cumulative Net Loss Test"
means,
for any Distribution Date specified below, the Cumulative Net Loss Ratio for
the
related Collection Period is greater than the percentage set forth opposite
such
Distribution Date in Schedule A hereto.
"Level
3 Delinquency Test"
means,
for any Distribution Date, the arithmetic average of the monthly Delinquency
Ratios for the three immediately preceding Collection Periods is greater than
the percentage set forth opposite such Distribution Date in Schedule A
hereto.
"Level
3 Trigger Event"
means
the occurrence of the Xxxxx 0 Xxxxxxxxxx Xxx Loss Test or the Level 3
Delinquency Test.
"Liquidation
Proceeds"
means,
with respect to a Liquidated Receivable, all amounts realized with respect
to
such Receivable including (1) proceeds from the disposition of the underlying
financed vehicles; (2) any related insurance proceeds; (3) other monies received
from the obligor that are allocable to principal and interest due under the
automobile loan, and (4) with respect to a Sold Receivable, the related Sale
Amount.
"Non-Controlling
Party"
means,
at any time, the Issuing Entity Secured Party that is not the Controlling Party
at such time.
"Original
Pool Balance"
means
the Pool Balance as of the Cutoff Date.
"Outstanding
Pool Balance"
means
the Pool Balance as of the end of the related Collection Period.
3
"Requisite
Amount"
will
equal the Spread Account Initial Deposit on the Closing Date, and thereafter,
on
each Distribution Date, the Requisite Amount shall be equal to 2.0% of the
Original Pool Balance, provided,
however,
that (i)
on
each Distribution Date upon which a Level 1 Trigger Event has occurred and
is
continuing, and upon each Distribution Date thereafter (unless no Level 1
Trigger Event has occurred for three consecutive months) the Requisite Amount
shall be equal to the greater of (x) 6.0% of the Outstanding Pool Balance or
(y)
4.0% of the Original Pool Balance; and (ii) on each Distribution Date upon
which
a Level 3 Trigger Event has occurred and upon each Distribution Date thereafter,
the Requisite Amount shall be equal to 100% of the Outstanding Pool
Balance.
"Security
Interests" means
the
security interests and Liens in the Spread Account Agreement Collateral granted
pursuant to Section 2.01.
"Seller"
means
UPFC Auto Financing Corporation
"Spread
Account"
means
the account designated as such, established and maintained pursuant to
Article Three.
"Spread
Account Agreement Collateral"
has the
meaning set forth in Section 2.01.
"Spread
Account Claim Amount"
has the
meaning set forth in Section 1.1 of the Sale and Servicing
Agreement.
"Trigger
Event"
means a
Xxxxx 0 Xxxxxxx Xxxxx, x Xxxxx 0 Xxxxxxx Event or a Xxxxx 0 Xxxxxxx
Xxxxx.
"Trustee
Termination Date"
means
the date which is the latest of the date on which (i) the Trustee shall
have received, as Trustee for the holders of the Notes, payment and performance
in full of all Trustee Issuing Entity Secured Obligations and (ii) all
payments in respect of the Notes shall have been made and the Indenture shall
have been satisfied and discharged pursuant to the terms of Article IV of
the Indenture.
“UACC”
means
United Auto Credit Corporation.
"Uniform
Commercial Code"
or
"UCC"
means
the Uniform Commercial Code in effect in the relevant jurisdiction, as the
same
may be amended from time to time.
Section
1.02. Other
Definitional Provisions.
(a) Capitalized
terms used but not otherwise defined herein shall have the meanings set forth
in
the Sale and Servicing Agreement or the Indenture, as the case may
be.
(b) The
terms
"hereof," "herein" or "hereunder," unless otherwise modified by more specific
reference, shall refer to this Agreement in its entirety. Unless otherwise
indicated in context, the terms "Article," "Section," "Appendix," "Exhibit"
or
"Annex" shall refer to an Article or Section of, or Appendix, Exhibit or
Annex to, this Agreement. The definition of a term shall include the singular,
the plural, the past, the present, the future, the active and the passive forms
of such term.
4
ARTICLE
II
THE
SPREAD ACCOUNT AGREEMENT COLLATERAL
Section
2.01. Grant
of Security Interest by the Issuing Entity.
In order
to secure the performance of Issuing Entity Secured Obligations, to the extent
provided herein, the Issuing Entity hereby pledges, assigns, grants, transfers
and conveys to the Collateral Agent, on behalf of and for the benefit of the
Issuing Entity Secured Parties, a lien on and security interest in (which lien
and security interest is intended to be prior to all other Liens), all of its
right, title and interest in and to the following (all being collectively
referred to herein as the "Spread
Account Agreement Collateral"
and
constituting Spread Account Agreement Collateral hereunder):
(a) the
Spread Account established pursuant to Section 3.01 hereof, and each other
account owned by the Issuing Entity and maintained by the Collateral Agent
and
any funds or investments deposited therein (including, without limitation,
the
Spread Account Initial Deposit related thereto and all additional monies,
checks, securities, investments and other documents from time to time held
in or
evidencing any such accounts);
(b) all
of
the Issuing Entity's right, title and interest in and to investments made with
proceeds of the property described in clause (a) above, or made with
amounts on deposit in the Spread Account; and
(c) all
distributions, revenues, products, substitutions, benefits, profits and
proceeds, in whatever form, of any of the foregoing whether now owned or
hereafter acquired.
Section
2.02. Priority.
The
Issuing Entity intends the security interests granted hereunder in favor of
the
Issuing Entity Secured Parties to be prior to all other Liens in respect of
the
Spread Account Agreement Collateral, and the Issuing Entity shall take all
actions necessary to obtain and maintain, in favor of the Collateral Agent,
for
the benefit of the Issuing Entity Secured Parties, a first lien on and a first
priority, perfected security interest in the Spread Account Agreement Collateral
including, without limitation, the filing of a UCC-1 financing statement
relating to the Spread Account Agreement Collateral. Subject to the provisions
hereof specifying the rights and powers of the Collateral Agent at the written
direction of the Controlling Party from time to time to control certain
specified matters relating to the Spread Account Agreement Collateral, each
Issuing Entity Secured Party shall have all of the rights, remedies and recourse
with respect to the Spread Account Agreement Collateral afforded a Secured
Party
under the Uniform Commercial Code, and all other applicable law in addition
to,
and not in limitation of, the other rights, remedies and recourse granted to
such Issuing Entity Secured Parties by this Agreement or any other law relating
to the creation and perfection of liens on, and security interests in, the
Spread Account Agreement Collateral.
Section
2.03. Issuing
Entity Remains Liable.
The
Security Interests are granted as security only and shall not (i) transfer
or in any way affect or modify, or relieve either the Issuing Entity from,
any
obligation to perform or satisfy, any term, covenant, condition or agreement
to
be performed or satisfied by the Issuing Entity under or in connection with
this
Agreement, the Insurance Agreement or any other Basic Documents to which it
is a
party or (ii) impose any obligation on any of the Issuing Entity Secured
Parties or the Collateral Agent to perform or observe any such term, covenant,
condition or agreement or impose any liability on any of the Issuing Entity
Secured Parties or the Collateral Agent for any act or omission on its part
relative thereto or for any breach of any representation or warranty on its
part
contained therein or made in connection therewith, except, in each case, to
the
extent provided herein and in the other Basic Documents.
5
Section
2.04. Delivery
and Maintenance of Spread Account Agreement Collateral.
(a) The
Collateral Agent agrees to maintain the Spread Account Agreement Collateral
received by it (or evidence thereof, in the case of book-entry securities in
the
name of the Collateral Agent) and all records and documents relating thereto
at
the office of the Collateral Agent specified in Section 8.06 or such other
address as may be approved by the Controlling Party. The Collateral Agent shall
keep all Spread Account Agreement Collateral and related documentation in its
possession separate and apart from all other property that it is holding in
its
possession and from its own general assets and shall maintain accurate records
pertaining to the Eligible Investments and Spread Account included in the Spread
Account Agreement Collateral in such a manner as shall enable the Collateral
Agent and the Issuing Entity Secured Parties to verify the accuracy of such
record-keeping. The Collateral Agent's books and records shall at all times
show
that the Spread Account Agreement Collateral is held by the Collateral Agent
as
agent of the Issuing Entity Secured Parties and is not the property of the
Collateral Agent. The Collateral Agent will promptly report to each Issuing
Entity Secured Party and the Issuing Entity any failure on its part to hold
the
Spread Account Agreement Collateral as provided in this Section 2.04(a) and
will promptly take appropriate action to remedy any such failure.
(b) The
Collateral Agent shall permit each of the Issuing Entity Secured Parties, or
their respective duly authorized representatives, attorneys, auditors or
designees, to inspect the Spread Account Agreement Collateral in the possession
of or otherwise under the control of the Collateral Agent pursuant hereto at
such reasonable times during normal business hours as any such Issuing Entity
Secured Party may reasonably request upon not less than one Business Day's
prior
written notice. The costs and expenses associated with any such inspection
will
be paid by the party making such inspection.
(c) All
Spread Account Agreement Collateral shall be transferred to the Collateral
Agent
on behalf of the Issuing Entity Secured Party in a manner consistent with the
definition of "Delivery" set forth in the Sale and Servicing
Agreement.
(d) Notwithstanding
anything to the contrary herein, the Collateral Agent: (i) is and will be
acting on behalf of the Issuing Entity Secured Parties as a securities
intermediary under Article Eight of the UCC; (ii) shall establish and
maintain the Spread Account for the benefit of the Issuing Entity Secured
Parties as a holder of a security interest in the Spread Account Agreement
Collateral and the Spread Account; (iii) shall treat all of the assets in
the Spread Account (other than cash) as financial assets under
Article Eight of the UCC; (iv) shall not hold, or exercise control
(within the meaning of Article Eight or Nine of the UCC) over, the Spread
Account Agreement Collateral and/or the Spread Account for the benefit of any
person or entity other than the Issuing Entity Secured Parties; (v) has
received notice of the Issuing Entity Secured Parties' interest in the assets
contained and/or to be contained in the Spread Account; and (vi) shall take
instructions only from the Issuing Entity Secured Party constituting the
Controlling Party hereunder (and shall comply with entitlement orders originated
by such Issuing Entity Secured Party without any consent of and notwithstanding
any alternate direction of the Issuing Entity) with respect to the Spread
Account and/or the Spread Account Agreement Collateral, including, without
limitation, all instructions with respect to the acquisition, transfer and
disposition of assets in the Spread Account and the proceeds thereof. In
accordance with the choice of law governing this Agreement set forth in Section
8.15 herein, for purposes of Article Eight of the UCC the jurisdiction of the
Collateral Agent is deemed to be New York.
6
Section
2.05. Termination
and Release of Rights.
(a) On
the
Insurer Termination Date, the rights, remedies, powers, duties, authority and
obligations conferred upon the Insurer pursuant to this Agreement in respect
of
the Spread Account Agreement Collateral shall terminate and be of no further
force and effect and all rights, remedies, powers, duties, authority and
obligations of the Insurer with respect to such Spread Account Agreement
Collateral shall be automatically released; provided that any indemnity provided
to or by the Insurer herein shall survive such Insurer Termination Date. If
the
Insurer is acting as Controlling Party on the related Insurer Termination Date,
the Insurer agrees, at the expense of the Issuing Entity, to execute and deliver
such instruments as the successor Controlling Party may reasonably request
to
effectuate such release, and any such instruments so executed and delivered
shall be fully binding on the Insurer and any Person claiming by, through or
under the Insurer.
(b) On
the
Trustee Termination Date, the rights, remedies, powers, duties, authority and
obligations, if any, conferred upon the Trustee pursuant to this Agreement
in
respect of the Spread Account Agreement Collateral shall terminate and be of
no
further force and effect and all such rights, remedies, powers, duties,
authority and obligations of the Trustee with respect to such Spread Account
Agreement Collateral shall be automatically released; provided that any
indemnity provided to the Trustee herein shall survive such Trustee Termination
Date. If the Trustee is acting as Controlling Party on the related Trustee
Termination Date, the Trustee agrees, at the expense of the Issuing Entity,
to
execute and deliver such instruments as the Issuing Entity may reasonably
request to effectuate such release, and any such instruments so executed and
delivered shall be fully binding on the Trustee.
(c) On
the
Final Termination Date, the rights, remedies, powers, duties, authority and
obligations conferred upon the Collateral Agent and each Issuing Entity Secured
Party pursuant to this Agreement shall terminate and be of no further force
and
effect and all rights, remedies, powers, duties, authority and obligations
of
the Collateral Agent and each Issuing Entity Secured Party with respect to
the
Spread Account Agreement Collateral shall be automatically released. On the
Final Termination Date, the Collateral Agent agrees, and each Issuing Entity
Secured Party agrees, at the expense of the Issuing Entity, to execute such
instruments of release, in recordable form if necessary, in favor of the Issuing
Entity as the Issuing Entity may reasonably request, to deliver any Spread
Account Agreement Collateral in its possession to the Issuing Entity, and to
otherwise release the lien of this Agreement and release and deliver to the
Issuing Entity the Spread Account Agreement Collateral.
7
Section
2.06. Non-Recourse
Obligations of Issuing Entity.
Notwithstanding anything herein or in the other Basic Documents to the contrary,
the parties hereto agree that the obligations of the Issuing Entity hereunder
shall be recourse only to the extent of amounts released to the Issuing Entity
pursuant to Section 3.03(b)(ii) and retained by the Issuing Entity in
accordance with the next sentence. The Issuing Entity agrees that it shall
not
declare or make any payment to the Seller or UACC except in accordance with
the
Basic Documents. Nothing contained herein shall be deemed to limit the rights
of
the Noteholders under any other Basic Document.
ARTICLE
III
SPREAD
ACCOUNT
Section
3.01. Establishment
of Spread Account; Initial Deposit into Spread Account; Maintenance of Spread
Account.
(a) On
or
prior to the Closing Date, the Collateral Agent shall establish, at its office
or at another depository institution or trust company an Eligible Deposit
Account, designated, "Spread Account—Deutsche Bank Trust Company Americas, as
Collateral Agent for Ambac Assurance Corporation and Deutsche Bank Trust Company
Americas, as Trustee and Trust Collateral Agent Re: UPFC Auto Receivables Trust
2007-B, Class A Asset-Backed Notes Series 2007-B" (the "Spread
Account").
The
Spread Account shall be maintained by the Collateral Agent at all times separate
and apart from any other account of UACC, the Seller, the Servicer or the
Issuing Entity. If the Spread Account ceases to be an Eligible Deposit Account,
the Collateral Agent shall notify the Controlling Party of such fact and shall
establish within five Business Days of such determination, in accordance with
Section 3.04(a), a successor Spread Account thereto, which shall be an
Eligible Deposit Account, at another depository institution acceptable to the
Controlling Party.
(b) No
withdrawals may be made of funds in the Spread Account except as provided in
Section 3.03. Except as specifically provided in this Agreement, funds in
the Spread Account shall not be commingled with any other moneys. All moneys
deposited from time to time in the Spread Account and all investments made
with
such moneys shall be held by the Collateral Agent as part of the Spread Account
Agreement Collateral.
(c) On
the
Closing Date, Issuing Entity shall provide or cause to be provided to the
Collateral Agent for deposit into the Spread Account an amount equal to the
Spread Account Initial Deposit.
(d) On
each
Distribution Date, after giving effect to all payments to be made on the related
Distribution Date, the Collateral Agent shall, based solely on the information
contained in the Preliminary Servicer’s Certificate delivered with respect to
the Determination Date, cause to be maintained in the Spread Account an amount
equal to the Requisite Amount in accordance with Section 5.7 of the Sale and
Servicing Agreement.
8
Section
3.02. Investments.
(a) Funds
which may at any time be held in the Spread Account shall be invested and
reinvested by the Collateral Agent, at the written direction (which may include,
subject to the provisions hereof, general standing instructions) of the Issuing
Entity (unless a Default shall have occurred and be continuing, in which case
at
the written direction of the Controlling Party if it so elects) or its designee
received by the Collateral Agent by 1:00 p.m. New York City time,
on the Business Day prior to the date on which such investment shall be made,
in
one or more Eligible Investments in the manner specified in Section 3.02(b)
and (c) herein. If no written direction with respect to any portion of the
Spread Account is received by the Collateral Agent, the Collateral Agent shall
invest such funds overnight in money market mutual funds described in
paragraph (d) of the definition of the term "Eligible Investments,"
provided that the Collateral Agent shall not be liable for any loss or absence
of income resulting from such investments described herein.
(b) Each
investment made pursuant to this Section on any date shall mature not later
than
the Business Day immediately preceding the Distribution Date next succeeding
the
day such investment is made or payable on demand, provided that any investment
of funds in the Spread Account maintained with the Collateral Agent in any
investment as to which the Collateral Agent is the obligor, if otherwise
qualified as an Eligible Investment may mature on the Distribution Date next
succeeding the date of such investment.
(c) Subject
to the other provisions hereof, the Collateral Agent shall have sole control
over each such investment and the income thereon, and any certificate or other
instrument evidencing any such investment, if any, shall be delivered directly
to the Collateral Agent or its agent, together with each document of transfer,
if any, necessary to transfer title to such investment to the Collateral Agent
in a manner which complies with Section 2.04 hereof and the requirements of
the definition of "Eligible Investments."
(d) If
amounts on deposit in the Spread Account are at any time invested in an Eligible
Investment payable on demand, the Collateral Agent shall (i) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Eligible Investment is permitted to mature under
the
provisions hereof and (ii) demand payment of all amounts due thereunder
promptly upon receipt of written notice from the Controlling Party to the effect
that such investment does not constitute an Eligible Investment.
(e) All
moneys on deposit in the Spread Account, together with any deposits or
securities in which such moneys may be invested or reinvested, and any gains
from such investments, shall constitute Spread Account Agreement Collateral
hereunder subject to the Security Interests of the Issuing Entity Secured
Parties.
(f) Subject
to Section 4.03 hereof, the Collateral Agent shall not be liable by reason
of any insufficiency in amounts on deposit in the Spread Account resulting
from
any loss on any Eligible Investment included therein except for losses
attributable to the failure of the relevant Deutsche Bank entity, in its
commercial capacity, to make payments on Eligible Investments for which it
is
obligated. All income or loss on investments of funds in the Spread Account
shall be reported by UACC as taxable income or loss.
9
Section
3.03. Payments;
Priority of Payments.
(a) On
or
before the second Business Day prior to each Distribution Date, the Collateral
Agent will make the following calculations solely on the basis of information
(including, without limitation, the amount of any Spread Account Claim Amount
(but not including the Requisite Amount) received pursuant to Article IV of
the Sale and Servicing Agreement from the Servicer; provided, however, that
if
the Collateral Agent receives written notice from the Insurer, the Trustee,
the
Issuing Entity or the Servicer of the occurrence of a Trigger Event, such notice
shall be determinative for the purposes of determining the Requisite
Amount:
(i) determine
the amounts to be on deposit in the Spread Account on such Distribution Date
which will be available to satisfy any Spread Account Claim Amount;
and
(ii) determine
(A) the amounts, if any, to be paid from the Spread Account with respect to
the Spread Account Claim Amount and (B) whether, following payment from the
Spread Account to the Trust Collateral Agent for deposit into the Collection
Account, a Spread Account Claim Amount will continue to exist.
On
such
Distribution Date, the Collateral Agent shall deliver a certificate to the
Trust
Collateral Agent and the Insurer with respect to any Deficiency Notice, stating
the amount, if any, to be distributed to the Trust Collateral Agent on that
Distribution Date in respect of such Spread Account Claim Amount.
(b) On
each
Distribution Date, the Collateral Agent shall make the following payments from
the Spread Account (to the extent of funds available in the Spread Account)
in
the following order of priority:
(i) if
the
Trust Collateral Agent has delivered a Deficiency Notice and if there exists
a
Spread Account Claim Amount, to the Trust Collateral Agent for deposit in the
Collection Account the amount of such Spread Account Claim Amount;
and
(ii) any
funds
in the Spread Account in excess of the Requisite Amount, after making the
withdrawals therefrom required by clause (i) of this Section 3.03(b) (to
the extent of funds available in excess of the Requisite Amount) and any funds
remaining in the Spread Account as of the Distribution Date immediately
following the Final Termination Date will be applied by the Collateral Agent
in
the following order of priority:
(A) to
the
payment of any expenses payable pursuant to Section 4.5 of the Sale and
Servicing Agreement to the extent not paid by UACC;
(B) to
the
Trust Collateral Agent for payment to the Trustee, the Trust Collateral Agent,
the Backup Servicer, the Custodian, the Collateral Agent and the Designated
Backup Servicer or to any replacement servicer any accrued and unpaid
replacement servicer fees, transition costs or additional compensation to the
extent not paid by UACC or pursuant to the Sale and Servicing
Agreement;
10
(C) to
the
Trust Collateral Agent for payment to the Insurer, any amounts due and owing
to
the Insurer that were not paid under clause (v) of Section 5.7(b) of the
Sale and Servicing Agreement;
(D) to
the
Backup Servicer, any indemnification amounts payable by the Servicer to the
Backup Servicer to the extent not paid by the Servicer;
(E) to
the
Owner Trustee to the extent any amounts due and owing to the Owner Trustee
under
the Transaction Documents were not otherwise paid; and
(F) to
the
holder(s) of the Certificates, any remaining funds in the Spread Account in
excess of the Requisite Amount.
Section
3.04. General
Provisions Regarding Spread Account.
(a) Promptly
upon the establishment (initially or upon any relocation) of the Spread Account
hereunder, the Collateral Agent shall advise the Issuing Entity and each Issuing
Entity Secured Party in writing of the name and address of the depository
institution or trust company where the Spread Account has been established
(if
not at Deutsche Bank Trust Company Americas or any successor Collateral Agent
in
its commercial banking capacity), the name of the officer of the depository
institution who is responsible for overseeing the Spread Account, the account
number and the individuals whose names appear on the signature cards for the
Spread Account. The Issuing Entity shall cause each such depository institution
or trust company to execute a written agreement, in form and substance
reasonably satisfactory to the Controlling Party, waiving, and the Collateral
Agent by its execution of this Agreement hereby waives (except to the extent
expressly provided herein), in each case to the extent permitted under
applicable law, (i) any banker's or other statutory or similar Lien, and
(ii) any right of set-off or other similar right under applicable law with
respect to the Spread Account and agreeing, and the Collateral Agent by its
execution of this Agreement hereby agrees to notify the Issuing Entity and
each
Issuing Entity Secured Party of any charge or claim against or with respect
to
such Spread Account. The Collateral Agent shall give the Issuing Entity and
each
Issuing Entity Secured Party at least ten Business Days' prior written notice
of
any change in the location of the Spread Account or in any related account
information. Anything herein to the contrary notwithstanding, unless otherwise
consented to by the Controlling Party in writing, the Collateral Agent shall
have no right to change the location of the Spread Account.
(b) Upon
the
written request of the Controlling Party or the Issuing Entity, the Collateral
Agent shall cause, at the expense of the Issuing Entity, the depository
institution at which the Spread Account is located to forward to the requesting
party copies of all monthly account statements for the Spread
Account.
11
(c) No
passbook, certificate of deposit or other similar instrument evidencing the
Spread Account shall be issued, and all contracts, receipts and other papers,
if
any, governing or evidencing the Spread Account shall be held by the Collateral
Agent.
Section
3.05. Reports
by the Collateral Agent.
The
Collateral Agent shall report to the Issuing Entity, the Insurer, the Trustee
(unless the Trustee is the same party as the Collateral Agent), the Trust
Collateral Agent (unless the Trust Collateral Agent is the same party as the
Collateral Agent) and the Servicer, on a monthly basis no later than each
Distribution Date, the amount on deposit in the Spread Account and the identity
of the investments included therein as of the last day of the related Collection
Period, and shall provide accountings of deposits into and withdrawals from
the
Spread Account, and of the investments made therein, upon the request of the
Issuing Entity, the Insurer or the Servicer.
ARTICLE
IV
THE
COLLATERAL AGENT
Section
4.01. Appointment
and Powers.
Subject
to the terms and conditions hereof, each of the Issuing Entity Secured Parties
hereby appoints Deutsche Bank Trust Company Americas as the Collateral Agent
with respect to the Spread Account Agreement Collateral, and Deutsche Bank
Trust
Company Americas hereby accepts such appointment and agrees to act as Collateral
Agent with respect to the Spread Account Agreement Collateral, for the Issuing
Entity Secured Parties, to maintain custody and possession of such Spread
Account Agreement Collateral (except as otherwise provided hereunder) and to
perform the other duties of the Collateral Agent in accordance with the
provisions of this Agreement. Each Issuing Entity Secured Party hereby
authorizes the Collateral Agent to take such action on its behalf, and to
exercise such rights, remedies, powers and privileges hereunder, as the
Controlling Party may direct and as are specifically authorized to be exercised
by the Collateral Agent by the terms hereof, together with such actions, rights,
remedies, powers and privileges as are reasonably incidental thereto. The
Collateral Agent shall act (and shall be completely protected in so acting)
upon
and in compliance with the written instructions of the Controlling Party
delivered pursuant to this Agreement promptly following receipt of such written
instructions; provided that the Collateral Agent shall not act in accordance
with any instructions (i) which are not authorized by, or in violation of
the provisions of, this Agreement, (ii) which are in violation of any
applicable law, rule or regulation or (iii) for which the Collateral Agent
has not received reasonable indemnity. Receipt of such instructions shall not
be
a condition to the exercise by the Collateral Agent of its express duties
hereunder, except where this Agreement provides that the Collateral Agent is
permitted to act only following and in accordance with such
instructions.
Section
4.02. Performance
of Duties.
The
Collateral Agent shall have no duties or responsibilities except those expressly
set forth in this Agreement and the other Basic Documents to which the
Collateral Agent is a party or as directed by the Controlling Party in
accordance with this Agreement. The Collateral Agent shall not be required
to
take any discretionary actions hereunder except at the written direction and
with indemnification satisfactory to it from the Controlling Party.
12
Section
4.03. Limitation
on Liability.
Neither
the Collateral Agent nor any of its directors, officers or employees shall
be
liable for any action taken or omitted to be taken by it or them hereunder,
or
in connection herewith, except that the Collateral Agent shall be liable for
its
negligence, bad faith or willful misconduct; nor shall the Collateral Agent
be
responsible for the validity, effectiveness, value, sufficiency or
enforceability against the Issuing Entity of this Agreement or any of the Spread
Account Agreement Collateral (or any part thereof). Notwithstanding any term
or
provision of this Agreement, the Collateral Agent shall incur no liability
to
the Issuing Entity or the Issuing Entity Secured Parties for any action taken
or
omitted by the Collateral Agent in connection with the Spread Account Agreement
Collateral, except for the negligence or willful misconduct on the part of
the
Collateral Agent, and, further, shall incur no liability to the Issuing Entity
Secured Parties except for negligence or willful misconduct in carrying out
its
duties to the Issuing Entity Secured Parties. Subject to Section 4.04
hereof, the Collateral Agent shall be completely protected and shall incur
no
liability to any such party in relying upon the accuracy, acting in reliance
upon the contents, and assuming the genuineness of any notice, demand,
certificate, signature, instrument or other document reasonably believed by
the
Collateral Agent to be genuine and to have been duly executed by the appropriate
signatory, and (absent actual knowledge to the contrary) the Collateral Agent
shall not be required to make any independent investigation with respect
thereto. The Collateral Agent shall at all times be free independently to
establish to its reasonable satisfaction, but shall have no duty to
independently verify, the existence or nonexistence of facts that are a
condition to the exercise or enforcement of any right or remedy hereunder or
under any of the Basic Documents. The Collateral Agent may consult with counsel
selected by it with due care, and shall not be liable for any action taken
or
omitted to be taken by it hereunder in good faith and in accordance with the
advice of such counsel. The Collateral Agent shall not be under any obligation
to exercise any of the remedial rights or powers vested in it by this Agreement
or to follow any direction from the Controlling Party unless it shall have
received reasonable security or indemnity satisfactory to the Collateral Agent
against the costs, expenses and liabilities which might be incurred by
it.
Section
4.04. Reliance
upon Documents.
In the
absence of bad faith or negligence on its part, the Collateral Agent shall
be
entitled to rely on any communication, instrument, paper or other document
reasonably believed by it to be genuine and correct and to have been signed
or
sent by the proper Person or Persons and shall have no liability in acting,
or
omitting to act, where such action or omission to act is in reasonable reliance
upon any statement or opinion contained in any such document or
instrument.
Section
4.05. Successor
Collateral Agent.
(a) Any
Person into which the Collateral Agent may be converted or merged, or with
which
it may be consolidated, or to which it may sell or transfer its trust business
and assets as a whole, or substantially as a whole, or any Person resulting
from
any such conversion, merger, consolidation, sale or transfer to which the
Collateral Agent is a party, shall (provided it is otherwise qualified to serve
as the Collateral Agent hereunder and is acceptable to the Insurer) be and
become a successor Collateral Agent hereunder and be vested with all of the
title to and interest in the Spread Account Agreement Collateral and all of
the
trusts, powers, discretions, immunities, privileges and other matters as was
its
predecessor without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, except to the extent, if any, that
any
such action is necessary to perfect, or continue the perfection of, the security
interest of the Issuing Entity Secured Parties in the Spread Account Agreement
Collateral.
13
(b) The
Collateral Agent and any successor Collateral Agent may resign only
(i) upon a determination that by reason of a change in legal requirements
the performance of its duties under this Agreement would cause it to be in
violation of such legal requirements in a manner which would result in a
material adverse effect on the Collateral Agent as evidenced by an Opinion
of
Counsel delivered to the Insurer, and the Controlling Party does not elect
to
waive the Collateral Agent's obligation to perform those duties which render
it
legally unable to act or elect to delegate those duties to another Person,
or
(ii) with the prior written consent of the Controlling Party. The
Collateral Agent shall give not less than 45 days' prior written notice of
any
such permitted resignation by registered or certified mail to the other Issuing
Entity Secured Party and the Issuing Entity; provided, that such resignation
shall take effect only upon the date which is the latest of (A) the
effective date of the appointment of a successor Collateral Agent acceptable
to
the Insurer (provided that an Insurer Default has not occurred and is
continuing) and the acceptance in writing by such successor Collateral Agent
of
such appointment and of its obligation to perform its duties hereunder in
accordance with the provisions hereof, (B) delivery of the Collateral to
such successor to be held in accordance with the procedures specified in
Article Two, and (C) receipt by the Controlling Party of an Opinion of
Counsel to the effect described in Section 5.05 hereof. Notwithstanding the
preceding sentence, if by the contemplated date of resignation specified in
the
written notice of resignation delivered as described above no successor
Collateral Agent or temporary successor Collateral Agent has been appointed
Collateral Agent or becomes the Collateral Agent pursuant to
Section 4.05(d), the resigning Collateral Agent may petition a court of
competent jurisdiction in New York, New York for the appointment of a successor
acceptable to the Insurer (provided that an Insurer Default has not occurred
and
is continuing). Notwithstanding anything herein to the contrary, if the Trustee,
the Trust Collateral Agent and Collateral Agent are the same party and the
Trustee or the Trust Collateral Agent resigns under the Indenture, the
Collateral Agent may resign in accordance with the procedures for resignation
of
the Trustee and the Trust Collateral Agent under the Indenture.
(c) The
Collateral Agent may be removed by the Controlling Party at any time, with
or
without cause, by an instrument or concurrent instruments in writing delivered
to the Collateral Agent, the other Issuing Entity Secured Party and the Issuing
Entity. A temporary successor may be removed at any time to allow a successor
Collateral Agent to be appointed pursuant to Section 4.05(d). Any removal
pursuant to the provisions of this subsection (c) shall take effect only upon
the date which is the latest of (i) the effective date of the appointment
of a successor Collateral Agent acceptable to the Insurer (provided that an
Insurer Default has not occurred and is continuing) and the acceptance in
writing by such successor Collateral Agent of such appointment and of its
obligation to perform its duties hereunder in accordance with the provisions
hereof, (ii) delivery of the Spread Account Agreement Collateral to such
successor to be held in accordance with the procedures specified in
Article Two and (iii) receipt by the Controlling Party of an Opinion
of Counsel to the effect described in Section 5.05 hereof.
(d) The
Controlling Party shall have the sole right to appoint each successor Collateral
Agent. Every temporary or permanent successor Collateral Agent appointed
hereunder shall at the expense of the Issuing Entity execute, acknowledge
and
deliver to its predecessor and to each Issuing Entity Secured Party and the
Issuing Entity an instrument in writing accepting such appointment hereunder
and
the relevant predecessor shall execute, acknowledge and deliver such other
documents and instruments as will effectuate the delivery of all Spread Account
Agreement Collateral to the successor Collateral Agent to be held in accordance
with the procedures specified in Article Two, whereupon such successor,
without any further act, deed or conveyance, shall become fully vested with
all
the estates, properties, rights, powers, duties and obligations of its
predecessor. Such predecessor shall, nevertheless, on the written request
of
either Issuing Entity Secured Party or the Issuing Entity, execute and deliver
an instrument transferring to such successor all the estates, properties,
rights
and powers of such predecessor hereunder. In the event that any instrument
in
writing from the Issuing Entity or a Issuing Entity Secured Party is reasonably
required by a successor Collateral Agent to more fully and certainly vest
in
such successor the estates, properties, rights, powers, duties and obligations
vested or intended to be vested hereunder in the Collateral Agent, any and
all
such written instruments shall, at the request of the temporary or permanent
successor Collateral Agent, be forthwith executed, acknowledged and delivered
by
the Issuing Entity. The designation of any successor Collateral Agent and
the
instrument or instruments removing any Collateral Agent and appointing a
successor hereunder, together with all other instruments provided for herein,
shall be maintained with the records relating to the Spread Account Agreement
Collateral and, to the extent required by applicable law, filed or recorded
by
the successor Collateral Agent in each place where such filing or recording
is
necessary to effect the transfer of the Spread Account Agreement Collateral
to
the successor Collateral Agent or to protect or continue the perfection of
the
security interests granted hereunder.
14
Section
4.06. Indemnification.
The
Servicer shall indemnify the Collateral Agent, its directors, officers,
employees and agents for, and hold the Collateral Agent, its directors,
officers, employees and agents harmless against, any loss, liability or expense
(including the costs and expenses of defending against any claim of liability)
arising out of or in connection with the Collateral Agent's acting as Collateral
Agent hereunder, except such loss, liability or expense as shall result from
the
negligence, bad faith or willful misconduct of the Collateral Agent. The
obligation of the Servicer under this Section 4.06 shall survive the termination
of this Agreement and the resignation or removal of the Collateral Agent or
the
Servicer.
Section
4.07. Compensation
and Reimbursement.
The
Servicer agrees for the benefit of the Issuing Entity Secured Parties to pay
to
the Collateral Agent, the Collateral Agent Fee for all services rendered by
it
hereunder (which compensation shall not be limited by any provision of law
in
regard to the compensation of a collateral trustee) and to reimburse the
Collateral Agent for any reasonable and out of pocket expenses (including
reasonable legal fees and expenses but excluding any expenses resulting from
the
gross negligence, bad faith, or willful misconduct of the Collateral Agent)
incurred in connection with the duties contemplated herein.
Section
4.08. Representations
and Warranties of the Collateral Agent.
The
Collateral Agent represents and warrants to the Issuing Entity and to each
Issuing Entity Secured Party as follows:
(a) Due
Organization. The
Collateral Agent is a New York banking corporation, duly organized, validly
existing and in good standing under the laws of the United States and is duly
authorized and licensed under applicable law to conduct its business as
presently conducted.
15
(b) Corporate
Power.
The
Collateral Agent has all requisite right, power and authority to execute and
deliver this Agreement and to perform all of its duties as Collateral Agent
hereunder.
(c) Due
Authorization.
The
execution and delivery by the Collateral Agent of this Agreement and the other
Basic Documents to which it is a party, and the performance by the Collateral
Agent of its duties hereunder and thereunder, have been duly authorized by
all
necessary corporate proceedings and no further approvals or filings, including
any governmental approvals, are required for the valid execution and delivery
by
the Collateral Agent, or the performance by the Collateral Agent, of this
Agreement and such other Basic Documents.
(d) Valid
and Binding Agreement.
The
Collateral Agent has duly executed and delivered this Agreement and each other
Basic Document to which it is a party, and each of this Agreement and each
such
other Basic Document constitutes the legal, valid and binding obligation of
the
Collateral Agent, enforceable against the Collateral Agent in accordance with
its terms, except as (i) such enforceability may be limited by bankruptcy,
insolvency, reorganization and similar laws relating to or affecting the
enforcement of creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
Section
4.09. Waiver
of Setoffs.
The
Collateral Agent hereby expressly waives any and all rights of set off that
the
Collateral Agent may otherwise at any time have under applicable law with
respect to the Spread Account and agrees that amounts in the Spread Account
shall at all times be held and applied solely in accordance with the provisions
hereof.
Section
4.10. Control
by the Controlling Party.
The
Collateral Agent shall comply with notices and instructions given by the Issuing
Entity only if accompanied by the written consent of the Controlling Party,
except that if any Default shall have occurred and be continuing, the Collateral
Agent shall act upon and comply with notices and instructions given by the
Controlling Party alone in the place and stead of the Issuing
Entity.
Section
4.11. Limitation
of Collateral Agent Liability.
In no
event shall the Collateral Agent be liable for any indirect, special, punitive
or consequential loss or damage of any kind whatsoever, including but not
limited to, lost profits, even if the Trustee, the Trust Collateral Agent or
the
Collateral Agent has been advised of the likelihood of such loss or damage
and
regardless of the form of action.
In
no
event shall the Trustee, the Trust Collateral Agent or the Collateral Agent
be
liable for any failure or delay in the performance of its obligations hereunder
because of circumstances beyond its control, including but not limited to,
acts
of God, flood, war (whether declared or undeclared), terrorism, fire, riot,
embargo, government action, including any laws, ordinances, regulations,
governmental action or the like which delay, restrict or prohibit the providing
of the services contemplated by this Spread Account Agreement.
16
ARTICLE
V
COVENANTS
OF THE ISSUING ENTITY
Section
5.01. Preservation
of Spread Account Agreement Collateral.
Subject
to the rights, powers and authorities granted to the Collateral Agent and the
Controlling Party in this Agreement, the Issuing Entity shall take such action
as is necessary and proper with respect to the Spread Account Agreement
Collateral in order to preserve and maintain such Spread Account Agreement
Collateral and to cause (subject to the rights of the Issuing Entity Secured
Parties) the Collateral Agent to perform its obligations with respect to such
Spread Account Agreement Collateral as provided herein including, without
limitation, filing UCC-1s on the Spread Account and investments therein. The
Issuing Entity will do, file, execute, acknowledge and deliver, or cause to
be
filed, executed, acknowledged and delivered, such instruments of transfer or
take such other steps or actions as may be necessary, or required by the
Controlling Party, to perfect the Security Interests granted hereunder in the
Spread Account Agreement Collateral, to ensure that such Security Interests
rank
prior to all other Liens and to preserve the priority of such Security Interests
and the validity and enforceability thereof.
Section
5.02. Notices.
In the
event that the Issuing Entity acquires knowledge of the occurrence and
continuance of any Insurance Agreement Event of Default or Event of Default
under the Indenture or of any event of default or like event, howsoever
described or called, under any of the Basic Documents, the Issuing Entity shall
immediately give notice thereof to the Collateral Agent and each Issuing Entity
Secured Party.
Section
5.03. Waiver
of Stay or Extension Laws; Marshalling of Assets.
The
Issuing Entity covenants, to the fullest extent permitted by applicable law,
that it will not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law wherever enacted, now or at any time hereafter
in
force, in order to prevent or hinder the enforcement of this Agreement or any
absolute sale of the Spread Account Agreement Collateral or any part thereof,
or
the possession thereof by any purchaser at any sale under Article Seven;
and the Issuing Entity, to the fullest extent permitted by applicable law,
for
itself and all who may claim under it, hereby waives the benefit of all such
laws, and covenants that it will not hinder, delay or impede the execution
of
any power herein granted to the Collateral Agent, but will suffer and permit
the
execution of every such power as though no such law had been enacted. The
Issuing Entity, for itself and all who may claim under it, waives, to the
fullest extent permitted by applicable law, all right to have the Spread Account
Agreement Collateral marshaled upon any foreclosure or other disposition
thereof.
Section
5.04. Noninterference,
etc.
The
Issuing Entity shall not (i) waive or alter any of its rights under the
Spread Account Agreement Collateral (or any agreement or instrument relating
thereto) without the prior written consent of the Controlling Party,
(ii) fail to pay any tax, assessment, charge or fee levied or assessed
against the Spread Account Agreement Collateral, or to defend any action, if
such failure to pay or defend may adversely affect the priority or
enforceability of the Issuing Entity's right, title or interest in and to the
Spread Account Agreement Collateral or the Collateral Agent's lien on, and
security interest in, the Spread Account Agreement Collateral for the benefit
of
the Issuing Entity Secured Parties or (iii) take any action, or fail to
take any action, if such action or failure to take action will interfere with
the enforcement of any rights under the Basic Documents.
17
Section
5.05. Issuing
Entity Changes
(a) Change
in Name, Structure, etc. The
Issuing Entity shall not change its name, identity or corporate structure unless
it shall have given each Issuing Entity Secured Party and the Collateral Agent
at least 30 days' prior written notice thereof, shall have effected any
necessary or appropriate assignments or amendments thereto and filings of
financing statements or amendments thereto.
(b) Relocation
of the Issuing Entity.
The
Issuing Entity shall not change its principal executive office or jurisdiction
of organization unless it gives each Issuing Entity Secured Party and the
Collateral Agent at least 30 days' prior written notice of any relocation of
its
principal executive office. If the Issuing Entity relocates its principal
executive office, jurisdiction of organization or principal place of business
from Delaware, the Issuing Entity shall give prior notice thereof to the
Controlling Party and the Collateral Agent and shall effect whatever appropriate
recordations and filings are necessary and shall provide an Opinion of Counsel
to the Controlling Party and the Collateral Agent, to the effect that, upon
the
recording of any necessary assignments or amendments to previously-recorded
assignments and filing of any necessary amendments to the previously filed
financing or continuation statements or upon the filing of one or more specified
new financing statements, and the taking of such other actions as may be
specified in such opinion, the security interests in the Spread Account
Agreement Collateral shall remain, after such relocation, valid and
perfected.
ARTICLE
VI
CONTROLLING
PARTY; INTERCREDITOR PROVISIONS
Section
6.01. Appointment
of Controlling Party.
From and
after the Closing Date until the Insurer Termination Date, the Insurer shall
be
the Controlling Party and shall be entitled to exercise all the rights given
the
Controlling Party hereunder. From and after the Insurer Termination Date until
the Trustee Termination Date, the Trustee shall be the Controlling Party.
Notwithstanding the foregoing, in the event that an Insurer Default shall have
occurred and be continuing, the Trustee shall be the Controlling Party until
the
applicable Trustee Termination Date. If prior to an Insurer Termination Date the
Trustee shall have become the Controlling Party as a result of the occurrence
of
an Insurer Default and either such Insurer Default is cured or for any other
reason ceases to exist or the Trustee Termination Date occurs, then upon such
cure or other cessation or on such Trustee Termination Date, as the case may
be,
the Insurer shall, upon notice thereof being duly given to the Collateral Agent,
again be the Controlling Party.
Section
6.02. Controlling
Party's Authority.
(a) The
Issuing Entity hereby irrevocably appoints the Collateral Agent, and any
successor to the Collateral Agent appointed pursuant to Section 4.05
hereof, its true and lawful attorney, with full power of substitution, in the
name of the Issuing Entity, the Issuing Entity Secured Parties or otherwise,
but
(subject to Section 2.06 hereof) at the expense of the Issuing Entity, to
the extent permitted by law to exercise, at any time and from time to time
while
any Insurance Agreement Event of Default has occurred but at all such times
at
the written direction of the Controlling Party, any or all of the following
powers with respect to all or any of the Spread Account Agreement Collateral:
(i) to demand, xxx for, collect, receive and give acquittance for any and
all monies due or to become due upon or by virtue thereof, (ii) to settle,
compromise, compound, prosecute or defend any action or proceeding with respect
thereto, (iii) to sell, transfer, assign or otherwise deal with the same or
the proceeds thereof as fully and effectively as if the Collateral Agent were
the absolute owner thereof, and (iv) to extend the time of payment of any
or all thereof and to make any allowance or other adjustments with respect
thereto.
18
(b) With
respect to the Notes and the related Spread Account Agreement Collateral, each
Issuing Entity Secured Party hereby irrevocably and unconditionally constitutes
and appoints the Collateral Agent, and any successor to such Collateral Agent
appointed pursuant to Section 4.05 hereof from time to time, as the true
and lawful attorney-in-fact of the Issuing Entity Secured Parties, with full
power of substitution, to execute, acknowledge and deliver any notice, document,
certificate, paper, pleading or instrument and to do in the name of the
Collateral Agent as well as in the name, place and stead of such Issuing Entity
Secured Party such acts, things and deeds for and on behalf of and in the name
of the Issuing Entity Secured Parties under this Agreement which the Issuing
Entity Secured Parties could or might do or which may be necessary, desirable
or
convenient in the Collateral Agent's sole discretion with the prior written
consent of the Controlling Party or at the direction of the Controlling Party
to
effect the purposes contemplated hereunder and, without limitation, exercise
full right, power and authority to take, or defer from taking, any and all
acts
with respect to the administration of the Spread Account Agreement Collateral,
and the enforcement of the rights of the Issuing Entity Secured Parties
hereunder, on behalf of and for the benefit of the Issuing Entity Secured
Parties, as their interests may appear.
Section
6.03. Rights
of Issuing Entity Secured Parties.
With
respect to the Notes and the related Spread Account Agreement Collateral, the
Non-Controlling Party at any time expressly agrees that it shall not assert
any
rights that it may otherwise have, as an Issuing Entity Secured Party with
respect to the Spread Account Agreement Collateral, to direct the maintenance,
sale or other disposition of the Spread Account Agreement Collateral or any
portion thereof, notwithstanding the occurrence and continuance of any Default
or any non-performance by the Issuing Entity of any obligation owed to such
Issuing Entity Secured Party hereunder or under any other Basic Document, and
each party hereto agrees that the Collateral Agent, at the written direction
of
the Controlling Party shall be the only Person entitled to assert and exercise
such rights.
Section
6.04. Degree
of Care.
(a) Controlling
Party.
Notwithstanding any term or provision of this Agreement, the Collateral Agent
shall incur no liability to the Issuing Entity for any action taken or omitted
by the Collateral Agent in connection with the Spread Account Agreement
Collateral, except for any negligence, bad faith or willful misconduct on the
part of the Collateral Agent and, further, shall incur no liability to the
Non-Controlling Party except for the negligence, bad faith or willful misconduct
of the Collateral Agent in carrying out its duties, if any, to the
Non-Controlling Party. The Collateral Agent shall be completely protected and
shall incur no liability to any such party in relying upon the accuracy, acting
in reliance upon the contents and assuming the genuineness of any notice,
demand, certificate, signature, instrument or other document believed by the
Collateral Agent to be genuine and to have been duly executed by the appropriate
signatory, and (absent manifest error or actual knowledge to the contrary)
the
Collateral Agent shall not be required to make any independent investigation
with respect thereto. The Collateral Agent shall, at all times, be free
independently to establish to its reasonable satisfaction the existence or
nonexistence, as the case may be, of any fact the existence or nonexistence
of
which shall be a condition to the exercise or enforcement of any right or remedy
under this Agreement or any of the Basic Documents.
19
(b) The
Non-Controlling Party.
The
Non-Controlling Party shall not be liable to the Issuing Entity for any action
or failure to act by the Controlling Party or the Collateral Agent in
exercising, or failing to exercise, any rights or remedies
hereunder.
ARTICLE
VII
REMEDIES
UPON DEFAULT
Section
7.01. Remedies
upon a Default.
If a
Default has occurred, the Collateral Agent shall, at the written direction
of
the Controlling Party, take whatever action at law or in equity as may appear
necessary or desirable in the judgment of the Controlling Party to collect
and
satisfy all Issuing Entity Secured Obligations, including, but not limited
to,
foreclosure upon the Spread Account Agreement Collateral and all other rights
available to secured parties under applicable law or to enforce performance
and
observance of any obligation, agreement or covenant under any of the Basic
Documents.
Section
7.02. Waiver
of Default.
The
Controlling Party shall have the sole right, to be exercised in its complete
discretion, to waive any Default by a writing setting forth the terms,
conditions and extent of such waiver signed by the Controlling Party and
delivered to the Collateral Agent, the other Issuing Entity Secured Party and
the Issuing Entity. Any such waiver shall be binding upon the Non-Controlling
Party and the Collateral Agent. Unless such writing expressly provides to the
contrary, any waiver so granted shall extend only to the specific event or
occurrence which gave rise to the Default so waived and not to any other similar
event or occurrence which occurs subsequent to the date of such
waiver.
Section
7.03. Restoration
of Rights and Remedies.
If the
Collateral Agent has instituted any proceeding to enforce any right or remedy
under this Agreement, and such proceeding has been discontinued or abandoned
for
any reason, or has been determined adversely to the Collateral Agent, then
and
in every such case the Issuing Entity, the Collateral Agent and each of the
Issuing Entity Secured Parties shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Issuing Entity Secured
Parties shall continue as though no such proceeding had been
instituted.
20
Section
7.04. No
Remedy Exclusive.
No right
or remedy herein conferred upon or reserved to the Collateral Agent, the
Controlling Party or either of the Issuing Entity Secured Parties is intended
to
be exclusive of any other right or remedy, and every right or remedy shall,
to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law, in equity or
otherwise (but, in each case, shall be subject to the provisions of this
Agreement limiting such remedies), and each and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised from
time to time and as often and in such order as may be deemed expedient by the
Controlling Party, and the exercise of or the beginning of the exercise of
any
right or power or remedy shall not be construed to be a waiver of the right
to
exercise at the same time or thereafter any other right, power or
remedy.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01. Further
Assurances.
Each
party hereto shall take such action and deliver such instruments to any other
party hereto, in addition to the actions and instruments specifically provided
for herein, as may be reasonably requested or required to effectuate the purpose
or provisions of this Agreement or to confirm or perfect any transaction
described or contemplated herein.
Section
8.02. Waiver.
Any
waiver by any party of any provision of this Agreement or any right, remedy
or
option hereunder shall only prevent and stop such party from thereafter
enforcing such provision, right, remedy or option if such waiver is given in
writing and only as to the specific instance and for the specific purpose for
which such waiver was given. The failure or refusal of any party hereto to
insist in any one or more instances, or in a course of dealing, upon the strict
performance of any of the terms or provisions of this Agreement by any party
hereto or the partial exercise of any right, remedy or option hereunder shall
not be construed as a waiver or relinquishment of any such term or provision,
but the same shall continue in full force and effect.
Section
8.03. Amendments;
Waivers.
No
amendment, modification, waiver or supplement to this Agreement or any provision
of this Agreement shall in any event be effective unless the same shall have
been made or consented to in writing by each of the parties hereto and prior
written notice shall have been given to the Rating Agencies; provided,
however,
that,
notwithstanding the foregoing, for so long as the Insurer shall be the
Controlling Party, any amendments, modifications, waivers or supplements hereto,
or to the Spread Account Agreement Collateral or Spread Account or to any
requirement hereunder to deposit or retain any amounts in such Spread Account
or
to distribute any amounts therein as provided in Section 3.03 hereof shall
be effective if made or consented to in writing by the Insurer, the Issuing
Entity and the Collateral Agent (the consent of which shall not be withheld
or
delayed with respect to any amendment that does not adversely affect the
Collateral Agent) but shall in no circumstances require the consent of the
Trustee or the Noteholders.
Section
8.04. Severability.
In the
event that any provision of this Agreement or the application thereof to
any
party hereto or to any circumstance or in any jurisdiction governing this
Agreement shall, to any extent, be invalid or unenforceable under any applicable
statute, regulation or rule of law, then such provision shall be deemed
inoperative to the extent that it is invalid or unenforceable and the remainder
of this Agreement, and the application of any such invalid or unenforceable
provision to the parties, jurisdictions or circumstances other than to whom
or
to which it is held invalid or unenforceable, shall not be affected thereby
nor
shall the same affect the validity or enforceability of any other provision
of
this Agreement. The parties hereto further agree that the holding by any
court
of competent jurisdiction that any remedy pursued by the Collateral Agent,
or
any of the Issuing Entity Secured Parties, hereunder is unavailable or
unenforceable shall not affect in any way the ability of the Collateral Agent
or
any of the Issuing Entity Secured Parties to pursue any other remedy available
to it or them (subject, however, to the provisions of this Agreement limiting
such remedies).
21
Section
8.05. Nonpetition
Covenant.
Notwithstanding any prior termination of this Agreement, each of the parties
hereto agrees that it shall not, prior to one year and one day after the Final
Scheduled Distribution Date of the Class A-3 Notes and payment of all amounts
due to the Insurer under the Insurance Agreement, acquiesce, petition or
otherwise invoke or cause the Issuing Entity or the Seller to invoke the process
of the United States of America, any State or other political subdivision
thereof or any entity exercising executive, legislative, judicial, regulatory
or
administrative functions of or pertaining to government for the purpose of
commencing or sustaining a case by or against the Issuing Entity or the Seller
under a federal or state bankruptcy, insolvency or similar law or appointing
a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuing Entity or the Seller or all or any part of
its
respective property or assets or ordering the winding up or liquidation of
the
affairs of the Issuing Entity or the Seller. The parties agree that damages
will
be an inadequate remedy for breach of this covenant and that this covenant
may
be specifically enforced.
Section
8.06. Notices.
All
notices, demands, certificates, requests and communications hereunder
("notices") shall be in writing and shall be effective (a) upon receipt
when sent through the U.S. mails, registered or certified mail, return receipt
requested, postage prepaid, with such receipt to be effective the date of
delivery indicated on the return receipt, (b) one Business Day after
delivery to an overnight courier, (c) on the date personally delivered to
an Authorized Officer of the party to which sent, or (d) on the date
transmitted by legible telecopier transmission with a confirmation of receipt,
in all cases addressed to the recipient as follows:
(a) |
If
to the Issuing Entity:
|
c/o
Wells
Fargo Delaware Trust Company
000
X.
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Services
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
22
(b) |
If
to the Insurer:
|
Ambac
Assurance Corporation
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Structured Finance Department - ABS
Telecopy
No.: 000-000-0000
Confirmation:
212-668-0340
with
a
copy to the attention of:
Xxxxxxx
Xxxxxx, Managing Director
Telecopy
No.: 000-000-0000
Confirmation:
212-208-3407
(in
each
case in which notice or other communication to the Insurer refers to a Default
or a claim on the Policy or in which failure on the part of the Insurer to
respond shall be deemed to constitute consent or acceptance, then with a copy
to
the attention of the General Counsel marked to reflect "Urgent Materials
Enclosed")
(c) |
If
to the Trustee and the Trust Collateral
Agent:
|
Deutsche
Bank Trust Company Americas
00
Xxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
number: (000) 000-0000
Attention:
UPFC Auto Receivables Trust 2007-B
(d) |
If
to the Collateral Agent:
|
Deutsche
Bank Trust Company Americas
00
Xxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
number: (000) 000-0000
Attention:
UPFC Auto Receivables Trust 2007-B
(e) |
If
to Moody's:
|
Xxxxx'x
Investors Service, Inc.
ABS
Monitoring Department
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
23
(f) |
If
to Standard & Poor's:
|
Standard
& Poor's Ratings Services, a division of
The
McGraw Hill Companies, Inc.
00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Asset-Backed Surveillance Department
A
copy of
each notice given hereunder to any party hereto shall also be given to (without
duplication) the Insurer, the Issuing Entity, the Trustee, the Trust Collateral
Agent and the Collateral Agent. Each party hereto may, by notice given in
accordance herewith to each of the other parties hereto, designate any further
or different address to which subsequent notices shall be sent.
Section
8.07. Term
of this Agreement.
This
Agreement shall take effect on the Closing Date and shall continue in effect
until the Distribution Date occurring immediately following the Final
Termination Date. On the Distribution Date occurring immediately following
the
Final Termination Date and after giving effect to any withdrawals pursuant
to
Section 3.03 hereof, this Agreement shall terminate, all obligations of the
parties hereunder shall cease and terminate and the Spread Account Agreement
Collateral, if any, held hereunder and not to be used or applied in discharge
of
any obligations of the Issuing Entity in respect of the Issuing Entity Secured
Obligations or otherwise under this Agreement, shall be released to and in
favor
of the Issuing Entity; provided that the provisions of Sections 4.06, 4.07
and
8.05 hereof shall survive any termination of this Agreement and the release
of
any Spread Account Agreement Collateral upon such termination.
Section
8.08. Assignments;
Third-Party Rights; Reinsurance.
(a) This
Agreement shall be a continuing obligation of the parties hereto and shall
(i) be binding upon the parties and their respective successors and
assigns, and (ii) inure to the benefit of and be enforceable by each
Issuing Entity Secured Party and the Collateral Agent, and by their respective
successors, transferees and assigns. The Issuing Entity may not assign this
Agreement, or delegate any of its duties hereunder, without the prior written
consent of the Controlling Party.
(b) The
Insurer shall have the right to give participations in its rights under this
Agreement and to enter into contracts of reinsurance with respect to the Note
Policy issued in connection with the Notes, upon such terms and conditions
as
the Insurer in its discretion determines, and each such participant or reinsurer
shall be entitled to the benefit of any representation, warranty, covenant
and
obligation of each party (other than the Insurer) hereunder as if such
participant or reinsurer was a party hereto and, subject only to such agreement
regarding such reinsurance or participation, shall have the right to enforce
the
obligations of each such other party directly hereunder; provided, however,
that
no such reinsurance or participation agreement or arrangement shall relieve
the
Insurer of its obligations hereunder, under the Basic Documents to which it
is a
party or under the Note Policy. In addition, nothing contained herein shall
restrict the Insurer from assigning to any Person pursuant to any liquidity
facility or credit facility any rights of the Insurer under this Agreement
or
with respect to any real or personal property or other interests pledged to
the
Insurer, or in which the Insurer has a security interest, in connection with
the
transactions contemplated hereby.
24
Section
8.09. Consent
of Controlling Party.
In the
event that the Controlling Party's consent is required under the terms hereof
or
under the terms of any Basic Document, it is understood and agreed that, except
as otherwise provided expressly herein, the determination whether to grant
or
withhold such consent shall be made solely by the Controlling Party in its
sole
discretion.
Section
8.10. Consents
to Jurisdiction.
Each of
the parties hereto irrevocably submits to the non-exclusive jurisdiction of
the
United States District Court for the Southern District of New York, any court
in
the state of New York located in the city and county of New York, and any
appellate court from any thereof, in any action, suit or proceeding brought
against it and related to or in connection with this Agreement, the other Basic
Documents or the transactions contemplated hereunder or thereunder or for
recognition or enforcement of any judgment and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
suit or action or proceeding may be heard or determined in such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent
permitted by applicable law, each of the parties hereby waives and agrees not
to
assert by way of motion, as a defense or otherwise in any such suit, action
or
proceeding, any claim that it is not personally subject to the jurisdiction
of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that
this
Agreement or any of the other Basic Documents or the subject matter hereof
or
thereof may not be litigated in or by such courts. The Issuing Entity hereby
irrevocably appoints and designates Deutsche Bank Trust Company Americas, as
its
true and lawful attorney and duly authorized agent for acceptance of service
of
legal process relating hereto. The Issuing Entity agrees that service of such
process upon such Person shall constitute personal service of such process
upon
it. Subject to Section 8.05 hereof, nothing contained in this Agreement
shall limit or affect the rights of any party hereto to serve process in any
other manner permitted by law or to start legal proceedings relating to any
of
the Basic Documents against the Issuing Entity or its property in the courts
of
any jurisdiction.
Section
8.11. Determination
of Adverse Effect.
Any
determination of an adverse effect on the interest of the Issuing Entity Secured
Parties or the Noteholders shall be made without consideration of the
availability of funds under the Note Policy.
Section
8.12. Compliance
with Laws.
In order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available for such party in order to enable the Trustee to comply with
Applicable Law.
25
Section
8.13. Headings.
The
headings of articles, sections and paragraphs and the Table of Contents
contained in this Agreement are provided for convenience only. They form no
part
of this Agreement and shall not affect its construction or
interpretation.
Section
8.14. TRIAL
BY JURY WAIVED.
EACH OF
THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT
IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR
INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER
BASIC DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER.
EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER BASIC DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER
THINGS, THIS WAIVER.
Section
8.15. GOVERNING
LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS (OTHER
THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section
8.16. Counterparts.
This
Agreement may be executed in two or more counterparts by the parties hereto,
and
each such counterpart shall be considered an original and all such counterparts
shall constitute one and the same instrument.
Section
8.17. Limitation
of Liability.
(a) Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Xxxxx Fargo Delaware Trust Company not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuing Entity and in no event shall
Xxxxx Fargo Delaware Trust Company in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Issuing Entity hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be
had
solely to the assets of the Issuing Entity. For all purposes of this Agreement,
in the performance of its duties or obligations hereunder or in the performance
of any duties or obligations of the Issuing Entity hereunder, the Owner Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding
anything contained herein to the contrary, this Agreement has been executed
and
delivered by Deutsche Bank Trust Company Americas, not in its individual
capacity but solely in its capacities as Collateral Agent, Trustee and Trust
Collateral Agent and in no event shall Deutsche Bank Trust Company Americas,
have any liability for the representations, warranties, covenants, agreements
or
other obligations of the Issuing Entity hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuing Entity.
26
[REMAINDER
OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS]
27
IN
WITNESS WHEREOF, the parties hereto have executed this Spread Account Agreement
as of the date set forth on the first page hereof.
UPFC AUTO RECEIVABLES TRUST 2007-B, as Issuing Entity | ||
|
|
|
By: |
XXXXX
FARGO DELAWARE TRUST COMPANY,
not
in
its individual capacity but solely as Owner Trustee on behalf of
the
Issuing Entity.
|
|
By: | ||
Name:
Title:
|
AMBAC
ASSURANCE CORPORATION,
as
Insurer
|
||
By: | ||
Name:
Title:
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Trustee, as Trust Collateral Agent and as Collateral
Agent
|
||
By: | ||
Name:
Title:
|
By: | ||
Name:
Title:
|
Accepted
and Agreed with respect to Sections 4.06 and 4.07:
UNITED AUTO CREDIT CORPORATION | |||
By: | |||
Name:
Title:
|
SCHEDULE
A
XXXXX
0, XXXXX 0 XXX XXXXX 0 XXXXXXX EVENT
CUMULATIVE
NET LOSS TESTS AND DELINQUENCY TESTS
Cumulative
Net Loss Test
|
|||
Month
|
1st
Xxxxx
|
0xx
Xxxxx
|
0xx
Xxxxx
|
0
|
0.50%
|
0.61%
|
0.68%
|
2
|
1.00%
|
1.22%
|
1.36%
|
3
|
1.50%
|
1.83%
|
2.04%
|
4
|
2.00%
|
2.44%
|
2.71%
|
5
|
2.50%
|
3.05%
|
3.39%
|
6
|
3.10%
|
3.66%
|
4.07%
|
7
|
3.70%
|
4.27%
|
4.75%
|
8
|
4.30%
|
4.88%
|
5.43%
|
9
|
4.90%
|
5.49%
|
6.11%
|
10
|
5.50%
|
6.10%
|
6.78%
|
11
|
6.10%
|
6.71%
|
7.46%
|
12
|
6.70%
|
7.32%
|
8.14%
|
13
|
7.20%
|
7.93%
|
8.82%
|
14
|
7.70%
|
8.54%
|
9.50%
|
15
|
8.20%
|
9.15%
|
10.18%
|
16
|
8.70%
|
9.76%
|
10.85%
|
17
|
9.20%
|
10.36%
|
11.53%
|
18
|
9.70%
|
10.98%
|
12.21%
|
19
|
10.20%
|
11.59%
|
12.89%
|
20
|
10.70%
|
12.19%
|
13.57%
|
21
|
11.20%
|
12.80%
|
14.25%
|
22
|
11.70%
|
13.42%
|
14.92%
|
23
|
12.20%
|
14.02%
|
15.60%
|
24
|
12.60%
|
14.63%
|
16.28%
|
25
|
12.90%
|
14.94%
|
16.62%
|
26
|
13.10%
|
15.24%
|
16.96%
|
27
|
13.30%
|
15.55%
|
17.30%
|
28
|
13.50%
|
15.85%
|
17.64%
|
29
|
13.70%
|
16.16%
|
17.98%
|
30
|
13.90%
|
16.46%
|
18.32%
|
31
|
14.10%
|
16.76%
|
18.65%
|
32
|
14.30%
|
17.07%
|
18.99%
|
33
|
14.50%
|
17.38%
|
19.33%
|
34
|
14.70%
|
17.68%
|
19.67%
|
35
|
14.90%
|
17.99%
|
20.01%
|
36
and
on
|
15.10%
|
18.29%
|
20.35%
|
60+
Day Delinquency Test
|
|||
Month
|
1st
Xxxxx
|
0xx
Xxxxx
|
0xx
Xxxxx
|
0
|
3.00%
|
3.63%
|
4.00%
|
2
|
3.00%
|
3.63%
|
4.00%
|
3
|
3.00%
|
3.63%
|
4.00%
|
4
|
3.00%
|
3.63%
|
4.00%
|
5
|
3.00%
|
3.63%
|
4.00%
|
6
|
3.00%
|
3.63%
|
4.00%
|
7
|
3.00%
|
3.63%
|
4.00%
|
8
|
3.00%
|
3.63%
|
4.00%
|
9
|
3.00%
|
3.63%
|
4.00%
|
10
|
3.00%
|
3.63%
|
4.00%
|
11
|
3.00%
|
3.63%
|
4.00%
|
12
|
3.00%
|
3.63%
|
4.00%
|
13
|
4.00%
|
4.63%
|
5.00%
|
14
|
4.00%
|
4.63%
|
5.00%
|
15
|
4.00%
|
4.63%
|
5.00%
|
16
|
4.00%
|
4.63%
|
5.00%
|
17
|
4.00%
|
4.63%
|
5.00%
|
18
|
4.00%
|
4.63%
|
5.00%
|
19
|
4.00%
|
4.63%
|
5.00%
|
20
|
4.00%
|
4.63%
|
5.00%
|
21
|
4.00%
|
4.63%
|
5.00%
|
22
|
4.00%
|
4.63%
|
5.00%
|
23
|
4.00%
|
4.63%
|
5.00%
|
24
|
4.00%
|
4.63%
|
5.00%
|
25
|
4.00%
|
4.63%
|
5.00%
|
26
|
4.00%
|
4.63%
|
5.00%
|
27
|
4.00%
|
4.63%
|
5.00%
|
28
|
4.00%
|
4.63%
|
5.00%
|
29
|
4.00%
|
4.63%
|
5.00%
|
30
|
4.00%
|
4.63%
|
5.00%
|
31
|
5.00%
|
5.63%
|
6.00%
|
32
|
5.00%
|
5.63%
|
6.00%
|
33
|
5.00%
|
5.63%
|
6.00%
|
34
|
5.00%
|
5.63%
|
6.00%
|
35
|
5.00%
|
5.63%
|
6.00%
|
36
and
on
|
5.00%
|
5.63%
|
6.00%
|