EXHIBIT 10.7(a)
EXECUTION COPY
MASTER TRUST ACCOUNT AGREEMENT
among
UNION ACCEPTANCE CORPORATION,
individually and as Predecessor Servicer,
UAC SECURITIZATION CORPORATION,
as Seller,
PERFORMANCE SECURITIZATION CORPORATION,
as Seller,
OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF
UNION ACCEPTANCE CORPORATION,
as Creditor Representative
MBIA INSURANCE CORPORATION,
BNY MIDWEST TRUST COMPANY,
as Trustee and Indenture Trustee,
THE BANK OF NEW YORK,
as Indenture Trustee
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
as Successor Servicer,
JPMORGAN CHASE BANK,
as Master Trust Paying Agent
and
WILMINGTON TRUST COMPANY,
as Master Trustee
Dated as of April 17, 2003
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................3
Section 1.01. General Definitions.....................................3
Section 1.02. Generic Terms...........................................9
Section 1.03. Computation of Time Periods.............................9
ARTICLE II THE MASTER TRUST ACCOUNT............................................9
Section 2.01. Appointment of Master Trustee...........................9
Section 2.02. Pledge of Security Interest.............................9
Section 2.03. Establishment of Master Trust Account..................10
Section 2.04. Investment of Funds in Master Trust Account............10
Section 2.05. Deposit of Funds into Master Trust Account;
Distribution of Funds on Deposit in Master Trust Account......10
Section 2.06. Release of Funds on Deposit in the
Master Trust Account..........................................12
Section 2.07. Termination of Master Trust Account....................13
ARTICLE III MASTER TRUST TRIGGER EVENTS; TRANSACTION TRIGGER
EVENTS AND TRANSACTION EVENTS OF DEFAULT..............................14
Section 3.01. First Level Trigger Events.............................14
Section 3.02. Second Level Trigger Events............................14
Section 3.03. Duration of Master Trust Trigger Events................14
Section 3.04. Notification of Master Trust Trigger Events,
Transaction Trigger Events and Transaction
Events of Default.............................................15
ARTICLE IV THE MASTER TRUSTEE.................................................15
Section 4.01. Duties of Master Trustee...............................15
Section 4.02. Rights of Master Trustee...............................16
Section 4.03. Compensation and Indemnity.............................17
Section 4.04. Replacement of Master Trustee..........................18
Section 4.05. Successor Master Trustee by Merger.....................19
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Section 4.06. Eligibility............................................19
ARTICLE V Representations and Warranties......................................19
ARTICLE VI Master Trust Paying Agent..........................................20
Section 6.01. Appointment of Master Trust Paying Agent...............20
Section 6.02. Covenants of Master Trust Paying Agent.................20
Section 6.03. Indemnity..............................................20
Section 6.04. Removal of Master Trust Paying Agent...................21
Section 6.05. Successor Master Trust Paying Agents...................21
ARTICLE VII MISCELLANEOUS PROVISIONS..........................................21
Section 7.01. Amendments, Etc........................................21
Section 7.02. Creditor Representative................................21
Section 7.03. Indenture Trustees and Trustee.........................21
Section 7.04. No Assignment..........................................22
Section 7.05. Notices................................................22
Section 7.06. No Waiver; Remedies and Severability...................24
Section 7.07. Governing Law..........................................24
Section 7.08. Counterparts...........................................24
Section 7.09. Paragraph Headings, Etc................................24
Section 7.10. Consent to Jurisdiction................................24
Section 7.11. Jury Trial Waiver......................................25
Section 7.12. Further Assurances.....................................25
Section 7.13. Entire Agreement.......................................25
Section 7.14. Nonpetition............................................26
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MASTER TRUST ACCOUNT AGREEMENT
THIS MASTER TRUST ACCOUNT AGREEMENT (this "Agreement") is made as of April
17, 2003 by and among UNION ACCEPTANCE CORPORATION ("UAC"), individually and as
predecessor servicer (the "Predecessor Servicer"), UAC SECURITIZATION
CORPORATION ("UACSC") as seller, PERFORMANCE SECURITIZATION CORPORATION ("PSC"),
as seller and as depositor, BNY MIDWEST TRUST COMPANY, as successor to the
corporate trust administration of ▇▇▇▇▇▇ Trust and Savings Bank, as indenture
trustee under the various Indentures described below other than the 2000-B
Indenture (as defined below) (the "BNY Indenture Trustee") and as trustee (the
"Trustee") under the various Pooling and Servicing Agreements described below,
THE BANK OF NEW YORK, as indenture trustee under the 2000-B Indenture (the "BONY
Indenture Trustee" and, together with the BNY Indenture Trustee, the "Indenture
Trustees" and, each individually, an "Indenture Trustee"), WILMINGTON TRUST
COMPANY, as master trustee (the "Master Trustee"), SYSTEMS & SERVICES
TECHNOLOGIES, INC., ("SST" and, in its capacity as servicer or successor
servicer under the Servicing Agreements, "Servicer" or "Successor Servicer"),
JPMORGAN CHASE BANK, as master trust paying agent (the "Master Trust Paying
Agent"), MBIA INSURANCE CORPORATION, as financial guaranty insurer ("MBIA") and
the CREDITOR REPRESENTATIVE (as defined herein).
PRELIMINARY STATEMENTS
WHEREAS, UACSC, the Predecessor Servicer and the Trustee are parties to (a)
the Pooling and Servicing Agreement dated as of March 1, 1998 (the "1998-A
Servicing Agreement") with respect to the formation of UACSC 1998-A Auto Trust
(the "1998-A Transaction"); (b) the Pooling and Servicing Agreement dated as of
June 1, 1998 (the "1998-B Servicing Agreement") with respect to the formation of
UACSC 1998-B Auto Trust (the "1998-B Transaction"); (c) the Pooling and
Servicing Agreement dated as of September 1, 1998 (the "1998-C Servicing
Agreement") with respect to the formation of UACSC 1998-C Auto Trust (the
"1998-C Transaction"); (d) the Pooling and Servicing Agreement dated as of
November 1, 1998 (the "1998-D Servicing Agreement") with respect to the
formation of UACSC 1998-D Auto Trust (the "1998-D Transaction"); and (e) the
Pooling and Servicing Agreement dated as of February 1, 1999 (the "1999-A
Servicing Agreement") with respect to the formation of UACSC 1999-A Auto Trust
(the "1999-A Transaction" and together with the 1998-A Transaction, the 1998-B
Transaction, the 1998-C Transaction, and the 1998-D Transaction, the "Grantor
Trust Transactions") (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the 1998-A Servicing Agreement, the 1998-B
Servicing Agreement, the 1998-C Servicing Agreement, the 1998-D Servicing
Agreement, and the 1999-A Servicing Agreement, each a "Grantor Trust Servicing
Agreement" and collectively the "Grantor Trust Servicing Agreements");
WHEREAS, PSC, the Predecessor Servicer and the Trustee are parties to the
Pooling and Servicing Agreement dated as of June 1, 1998 with respect to the
formation of PSC 1998-1 Grantor Trust (the "PSC Transaction") (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
"PSC Servicing Agreement");
WHEREAS, UACSC, the Predecessor Servicer and Wachovia Trust Company,
National Association, formerly First Union Trust Company, National Association,
as owner trustee (the "Owner Trustee") are parties to (a) the Trust and
Servicing Agreement dated as of May 1, 1999
(the "1999-B Servicing Agreement"); (b) the Trust and Servicing Agreement dated
as of July 23, 1999 (the "1999 Master Trust and Servicing Agreement"); (c) the
Trust and Servicing Agreement dated as of August 1, 1999 (the "1999-C Servicing
Agreement"); (d) the Trust and Servicing Agreement dated as of November 1, 1999
(the "1999-D Servicing Agreement"); (e) the Trust and Servicing Agreement dated
as of February 1, 2000 (the "2000-A Servicing Agreement"); (f) the Trust and
Servicing Agreement dated as of June 1, 2000 (the "2000-B Servicing Agreement");
(g) the Trust and Servicing Agreement dated as of November 17, 2000 (the "2000-D
Servicing Agreement"); (h) the Trust and Servicing Agreement dated as of
February 24, 2001 (the "2001-A Servicing Agreement"); (i) the Trust and
Servicing Agreement dated as of September 25, 2001 (the "2001-C Servicing
Agreement"); and (j) the Trust and Servicing Agreement dated as of March 18,
2002 (the "2002-A Servicing Agreement") (the 1999-B Servicing Agreement, the
1999 Master Trust and Servicing Agreement, the 1999-C Servicing Agreement, the
1999-D Servicing Agreement, the 2000-A Servicing Agreement, the 2000-B Servicing
Agreement, the 2000-D Servicing Agreement, the 2001-A Servicing Agreement, the
2001-C Servicing Agreement and the 2002-A Servicing Agreement, as the same have
been or may hereafter be amended, restated, supplemented or otherwise modified
from time to time, each an "Owner Trust Servicing Agreement" and together with
the Grantor Trust Servicing Agreements and the PSC Servicing Agreement, the
"Servicing Agreements"); and
WHEREAS, the Owner Trustee, on behalf of the various trusts parties thereto
(each an "Issuer"), and the BNY Indenture Trustee, are parties to (a) the
Indenture dated as of May 1, 1999 (the "1999-B Indenture") with respect to the
formation of UACSC 1999-B Owner Trust (the "1999-B Transaction"); (b) the
Indenture and Security Agreement dated as of July 23, 1999 (the "1999 Master
Indenture and Security Agreement") with respect to the formation of UACSC 1999
Master Owner Trust (the "1999 Master Owner Trust Transaction"); (c) the
Indenture dated as of August 1, 1999 (the "1999-C Indenture") with respect to
the formation of UACSC 1999-C Owner Trust (the "1999-C Transaction"); (d) the
Indenture dated as of November 1, 1999 (the "1999-D Indenture") with respect to
the formation of UACSC 1999-D Owner Trust (the "1999-D Transaction"); (e) the
Indenture dated as of February 1, 2000 (the "2000-A Indenture") with respect to
the formation of UACSC 2000-A Owner Trust (the "2000-A Transaction"); (f) the
Indenture dated as of November 17, 2000 (the "2000-D Indenture") with respect to
the formation of UACSC 2000-D Owner Trust (the "2000-D Transaction"); (g) the
Indenture dated as of February 24, 2001 (the "2001-A Indenture") with respect to
the formation of UACSC 2001-A Owner Trust (the "2001-A Transaction"); (h) the
Indenture dated as of September 25, 2001 (the "2001-C Indenture") with respect
to the formation of UACSC 2001-C Owner Trust (the "2001-C Transaction"); and (i)
the Indenture dated as of March 18, 2002 (the "2002-A Indenture") with respect
to the formation of UACSC 2002-A Owner Trust (the "2002-A Transaction") and the
Owner Trustee and the BONY Indenture Trustee are parties to the Indenture dated
as of June 1, 2000 (the "2000-B Indenture") with respect to the formation of
UACSC 2000-B Owner Trust (the "2000-B Transaction" and together with the 1999-B
Transaction, the 1999 Master Owner Trust Transaction, the 1999-C Transaction,
the 1999-D Transaction, the 2000-A Transaction, the 2000-D Transaction, the
2001-A Transaction, the 2001-C Transaction and the 2002-A Transaction, the
"Owner Trust Transactions") (the Owner Trust Transactions together with the
Grantor Trust Transactions and the PSC Transaction, the "Transactions") (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the 1999-B Indenture, the 1999 Master Indenture and Security Agreement,
the ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇, the 1999-D Indenture, the 2000-A Indenture, the 2000-B
Indenture, the 2000-D Indenture, the 2001-A Indenture, the
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▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ and the 2002-A Indenture, each an "Indenture" and collectively
the "Indentures"); and
WHEREAS, on October 31, 2002, UAC filed a voluntary petition for relief
(the "Bankruptcy Filing") under Chapter 11 of Title 11 of the United States Code
with the Indianapolis Division of the United States Bankruptcy Court Southern
District of Indiana (the "Bankruptcy Court"); and
WHEREAS, on November 12, 2002, the Bankruptcy Court appointed the Creditor
Representative to represent the unsecured creditors of UAC; and
WHEREAS, on April 10, 2003, the Bankruptcy Court approved the sale and
transfer by UAC of its automobile consumer receivable servicing platform assets
to SST; and
WHEREAS, on the date hereof and prior to the execution hereof, the parties
have amended the Servicing Agreements, the Indentures and certain related
documents to modify the provisions of the Servicing Agreements and the
Indentures to provide for (i) the terms under which the Successor Servicer shall
become party thereto and carry out its responsibilities and (ii) augmentation of
the credit enhancement provisions of the Transactions and to curtail certain
obligations of UAC under the Servicing Agreements (the "Amendments"); and
WHEREAS, in connection with the Amendments, the parties have agreed to
establish the Master Trust Account (as defined herein) and to provide for
certain other matters related thereto.
WHEREAS, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto mutually desire to enter into this
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
General Definitions. The terms defined in this Article I shall have the meanings
provided herein for all purposes of this Agreement, unless the context clearly
requires otherwise, in both singular and plural form, as appropriate.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Servicing Agreements (or, if not defined
herein or therein, in the Indentures).
"Adjusted Full Reserve Amount" means an amount equal to the greater of (a)
15% of the aggregate Outstanding Balance and (b) the Required Reserve Floor.
"Adjusted Minimum Collateral Percentage" means, with respect to any Payment
Date, the greater of (A) a fraction, expressed as a percentage, equal to (i) the
Total Cash Collateral as of the immediately preceding Payment Date divided by
(ii) the aggregate Outstanding Balance as of the immediately preceding Payment
Date , in both cases, after giving effect to all distributions
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on such preceding Payment Date, or (B) the Adjusted Minimum Collateral
Percentage for the immediately preceding Payment Date.
"Affected Servicing Agreement" means each of the Grantor Trust Servicing
Agreements and the 1999-B and 1999-C Servicing Agreements.
"Aggregate Exposure Amount" shall mean, as of any Payment Date, an amount
to be determined by MBIA (reasonably acceptable to UACSC) and provided to the
Master Trustee equal to the sum of (i) 100% of the Outstanding Balance plus 50%
of the projected interest to be paid on the Notes and the Investor Certificates
for their estimated remaining life, as calculated pursuant to a methodology
reasonably acceptable to MBIA and UACSC, plus (ii) any outstanding reimbursement
obligations and fees and expenses owed to MBIA pursuant to the Transaction
Documents plus (iii) the product of (x) the aggregate dollar amount of Servicer
Fees, Owner Trustee Fees, Indenture Trustee Fees, Trustee Fees, Transaction
Paying Agent Fees and Administration Fees or related expenses accrued and/or
paid during the most recent calendar month times (y) the number of calendar
months remaining until the latest legal final Payment Date for any Transaction,
plus (iv) reasonably estimated indemnity amounts required to be paid to the
Administrator, Servicer, Trustee, Owner Trustee, or Indenture Trustees.
"Amendment to Insurance Agreements" shall mean the Amendment to Insurance
and Reimbursement Agreements, dated as of the date hereof, among MBIA, UAFC
Corporation, UAFC-1 Corporation, UAFC-2 Corporation, UACSC, UAC and PSC.
"Applicable Modification Date" means, with respect to any Grantor Trust
Transaction, the 1999-B Transaction or the 1999-C Transaction, the date as of
which the amendments to the Servicing Agreement related to such Transaction as
contemplated in the Grantor Trust Omnibus Amendment or the Owner Trust Omnibus
Amendment, as applicable, become effective with respect to such Servicing
Agreement.
"Available Excess Cash" shall mean $12,500,000.
"Available Spread Amount" shall have the meaning set forth in the
respective Servicing Agreement and/or Indenture, as applicable, except that with
respect to the PSC Transaction, the "Available Spread Amount" shall mean, as of
any date of calculation, the sum of the "Available Cash Collateral Amount" and
the "Available Deferral Reserve Amount" as such terms are defined in the PSC
Servicing Agreement.
"Base Reserve Amount" shall mean an amount equal to 8% of the aggregate
Outstanding Balance.
"Basic Transaction Collateral Amount" shall mean the "Required Spread
Amount" as such term is defined in the respective Servicing Agreement and/or
Indenture, as applicable, except that with respect to the PSC Transaction, the
"Basic Transaction Collateral Amount" shall mean, as of any date of calculation,
the sum of the "Required Cash Collateral Amount" and the "Required Deferral
Reserve Amount" as such terms are defined in the PSC Servicing Agreement.
"Collection Account" shall have the meaning set forth in the respective
Servicing Agreement and/or Indenture, as applicable, except that with respect to
the Grantor Trust
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Transactions and the PSC Transaction, the "Collection Account" shall mean and be
a reference to the "Certificate Account" (as such term is defined in the PSC
Servicing Agreement).
"Creditor Representative" shall mean initially, the Official Committee of
Unsecured Creditors (the "Committee") appointed in connection with the Chapter
11 proceeding in the United States Bankruptcy Court, Southern District of
Indiana, Indianapolis Division, Case No. 02-19231-BHL-11 (the "Proceeding") or
any successor thereto (including, without limitation, any plan Committee
provided for in, or contemplated by, any plan of reorganization approved by the
Bankruptcy Court in the Proceeding) or, in the absence of any successor, one or
more of the unsecured creditors authorized to act on behalf of any such
committee. No change in the identity of the Creditor Representative shall be
effective unless and until the most recent Creditor Representative shall have
notified each of the parties hereto in writing of such change.
"Excess Cash" shall mean the aggregate of all amounts on deposit in the
Spread Accounts on the Servicing Transfer Date or any subsequent Payment Date
for each Transaction available to be distributed to the Residual
Certificateholders pursuant to (i) Section 10.02(e) and/or 10.02(f) of each
Grantor Trust Servicing Agreement with respect to the Grantor Trust
Transactions, (ii) Section 10.02(e) of each Indenture with respect to the Owner
Trust Transactions and (iii) any of Sections 10.01(e), 10.01(i), 10.02(h) and/
or 10.02(i) of the PSC Servicing Agreement with respect to the PSC Transaction.
"Excess Cash Flow" shall mean, as of any Payment Date for all Transactions
after making all required distributions to the Trustee, the Indenture Trustees,
the Transaction Paying Agent, the Owner Trustee, the Servicer, the Investor
Certificateholders, the Noteholders and MBIA under the applicable Servicing
Agreements and/or Indentures, the amount by which the Total Cash Collateral
exceeds the Total Cash Collateral as of the immediately preceding Payment Date.
"First Level Cumulative Net Loss Trigger" shall mean the amounts set forth
on Schedule A attached hereto.
"First Level Net Loss Ratio Trigger" shall mean the amounts set forth on
Schedule B attached hereto.
"First Level Trigger Events" shall have the meaning set forth in Section
3.01.
"First Level Triggers" shall mean the First Level Net Loss Ratio Trigger
and the First Level Cumulative Net Loss Trigger.
"Full Reserve Amount" shall mean an amount equal to the greater of (a) 12%
of the aggregate Outstanding Balance and (b) the Required Reserve Floor.
"Grantor Trust Omnibus Amendment" shall mean the Agreement and Omnibus
Amendments to Pooling and Servicing Agreements and Purchase Agreements, dated as
of the date hereof, among UAC, UACSC, the Trustee and MBIA.
"Interim Agreement" means the Interim Agreements and Stipulations Pending
Effective Date In Respect of Grantor Trust Servicing Agreements and UACSC 1999-B
and 1999-C Owner
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Trust Servicing Agreements, annexed as Exhibit A to the Grantor Trust Omnibus
Amendment and the Owner Trust Omnibus Amendment.
"Investor Certificateholders" shall mean the holders of any Investor
Certificates.
"Investor Certificates" shall mean the Certificates issued pursuant to the
PSC Servicing Agreement and any Class A Certificates issued pursuant to the
Grantor Trust Servicing Agreements.
"Master Trust Account" shall mean the trust account established pursuant to
Section 2.03.
"Master Trustee" shall mean Wilmington Trust Company, and its successors in
such capacity.
"Master Trust Paying Agent" means initially JPMorgan Chase Bank and its
successors in such capacity or any other Person that meets the eligibility
standards for the Master Trustee specified in Section 4.06 and is appointed by
UACSC with the written approval of MBIA to make the distributions required to be
made under this Agreement.
"Master Trust Servicer Certificate" shall mean a certificate completed and
executed by an officer of the Servicer in a form acceptable to UACSC, MBIA and
the Master Trustee, which shall include all information required by the Master
Trustee and the Master Trust Paying Agent to make the withdrawals and
distributions required under Section 2.05 and 2.06 hereof. UAC shall render
assistance reasonably requested by SST in connection with the preparation of the
Master Trust Servicer Certificate.
"Master Trust Trigger Events" shall mean the First Level Trigger Events and
the Second Level Trigger Events.
"1998-A Certificates" shall mean the Investor Certificates issued pursuant
to the 1998-A Servicing Agreement.
"Noteholders" shall mean the holders of any Notes issued pursuant to the
Indentures.
"Outstanding Balance" shall mean, as of any date of calculation, the
Outstanding Note Balance and the Outstanding Certificate Balance as of such
date.
"Outstanding Certificate Balance" shall mean, as of any date of
calculation, the aggregate of the then outstanding Certificate Balances and/or
Certificate Principal Balances, as applicable, of the Investor Certificates.
"Outstanding Note Balance" shall mean, as of any date of calculation, the
aggregate of the then outstanding Note Balances of the Notes issued pursuant to
the Indentures.
"Overfunded Spread Account" shall have the meaning set forth in Section
2.05(c).
"Owner Trust Omnibus Amendment" shall mean the Agreement and Omnibus
Amendments to Trust and Servicing Agreements, Administration Agreements,
Purchase Agreements and Supplemental Indentures, dated as of the date hereof,
among UAC, UACSC, the Owner Trustee, the Indenture Trustees and MBIA.
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"Payment Date" shall mean (i) with respect to the Grantor Trust
Transactions and the PSC Transaction, the "Distribution Date" (as such term is
defined in the Grantor Trust Servicing Agreements and the PSC Servicing
Agreement) and (ii) with respect to the Owner Trust Transactions, the "Payment
Date" (as such term is defined in the Indentures). In the event that the
"Distribution Date" for the 1998-A Transaction in any month is a date different
from the Payment Date for all other transactions: (i) all distributions and
payments to be made on the 1998-A Certificates on such Distribution Date shall,
for purposes of all calculations hereunder, be assumed to have occurred on the
Payment Date for all other Transactions, (except that, unless the 1998-A
Transaction is amended to the contrary, Excess Cash distributed from the 1998-A
Transaction will be deposited into the Master Trust Account only on the actual
Distribution Date for such Transaction); (ii) amounts to be distributed from the
Master Trust Account to the Spread Account for the 1998-A Transaction shall be
distributed as if the 1998-A Distribution Date was the same as every other
Payment Date; and (iii) without limiting the foregoing, the Outstanding
Certificate Balance, the Total Cash Collateral, the Adjusted Minimum Collateral
Percentage, the Full Reserve Amount and the Adjusted Full Reserve Amount as of
any Payment Date shall give effect to all distributions and payments to be made
on the 1998-A Transaction on the related "Distribution Date".
"Plan Confirmation Date" shall mean the date on which UAC's plan of
reorganization is confirmed.
"Plan Consummation Date" shall mean the date on which UAC's plan of
reorganization is consummated.
"Required Reserve Floor" shall mean an amount equal to the lesser of (A) if
no First Level Triggers are then breached, the Aggregate Exposure Amount, or (B)
(i) $27,000,000 until the aggregate Outstanding Balance has been paid to
$54,000,000; (ii) thereafter, $22,000,000 until the aggregate Outstanding
Balance has been reduced to $44,000,000; and (iii) thereafter, $17,000,000 until
the date on which the Series 2001-A Notes have been paid in full and all
reimbursement obligations owed to MBIA in respect thereof have been satisfied;
and (iv) thereafter, $12,000,000 provided, however, that if either of the Second
Level Triggers are breached, then the four sequential floors described in this
clause (B) increase by $3,000,000 each or $30,000,000; $25,000,000; $20,000,000
and $15,000,000 respectively; provided, further, that once both Second Level
Triggers have been restored to compliance for three consecutive months, then the
four sequential floors shall be again reduced to their original levels. For the
avoidance of doubt, if on any Payment Date the First Level Triggers are then
breached so that clause (A) above is inapplicable, then the Required Reserve
Floor shall be calculated solely by reference to clause (B) above.
"Residual Certificateholders" shall mean (i) with respect to the Owner
Trust Transactions, the "Certificateholder" (as such term is defined in the
Owner Trust Servicing Agreements), each of which is currently UACSC, (ii) with
respect to the Grantor Trust Transactions, the "Class IC Certificateholder" (as
such term is defined in the Grantor Trust Servicing Agreements), each of which
is currently UACSC, and (iii) with respect to the PSC Transaction, the
"Depositor" (as such term is defined in the PSC Servicing Agreement), currently
PSC.
"Second Level Cumulative Net Loss Trigger" shall mean the amounts set forth
on Schedule C attached hereto.
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"Second Level Net Loss Ratio Trigger" shall mean the amounts set forth on
Schedule D attached hereto.
"Second Level Trigger Events" shall have the meaning set forth in Section
3.02.
"Second Level Triggers" shall mean the Second Level Net Loss Ratio Trigger
and the Second Level Cumulative Net Loss Trigger.
"Secured Parties" shall have the meaning set forth in Section 2.03.
"Servicing Transfer Agreement" shall mean the Servicing Transfer Agreement,
dated as of the date hereof, by and among the SST, UAC, UACSC, PSC and MBIA.
"Servicing Transfer Date" shall mean April 18 2003.
"Spread Account" shall have the meaning set forth in the respective
Servicing Agreement and/or Indenture, as applicable, except that with respect to
the PSC Transaction, the "Spread Account" shall mean and be a reference to the
"Cash Collateral Account" and/or the "Deferral Reserve Account" or both (as such
terms are defined in the PSC Servicing Agreement and as the context may
require).
"Successor Servicer Monthly Compensation Amount" means, subject to the
Servicing Transfer Agreement, with respect to each Transaction, for each Payment
Date, a fee payable to the Successor Servicer with respect to each Receivable in
an amount equal to the sum of $9.00 per Active Contract (as defined in the
Servicing Transfer Agreement) per Collection Period; provided that the Successor
Servicer Monthly Compensation Amount shall not be less than $2,500.00 per
Transaction.
"Total Cash Collateral" shall mean, as of any date of calculation, the sum
of the aggregate amounts then on deposit in the Spread Accounts for each of the
Transactions together with the amount then on deposit in the Master Trust
Account.
"Transaction Documents" shall mean (i) with respect to the Grantor Trust
Transactions and the PSC Transaction, the Pooling and Servicing Agreement, the
Depository Agreement, the Insurance Agreement and the Policy (as such terms are
defined in the Grantor Trust Servicing Agreements and the PSC Servicing
Agreement, as applicable) for each Grantor Trust Transaction and the PSC
Transaction, (ii) with respect to the Owner Trust Transactions, the Basic
Documents (as such term is defined in the Indentures) for each Owner Trust
Transaction, (iii) the Servicing Transfer Agreement, (iv) the Owner Trust
Omnibus Amendment, (v) the Grantor Trust Omnibus Amendment, (vi) the Amendment
to Insurance Agreement, (vii) the PSC 1998-1 Amendment, (viii) the Master Owner
Trust Amendment and (ix) this Agreement.
"Transaction Paying Agent" shall have the meaning ascribed to the term
"Paying Agent" in the Grantor Trust Servicing Agreements with respect to the
Grantor Trust Transactions and the PSC Transaction and in the Indentures with
respect to the Owner Trust Transactions.
"Transaction Priority" means, initially, the progressive chronological
order of Transactions to which payments are to be made or from which payments
are to be withdrawn, respectively, by the Master Trustee under Section 2.05, or
such other order as may be designated
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by MBIA in written notice to the Master Trustee from time to time (it being
understood that Insurer shall not have discretion to eliminate any Transaction
from any Transaction Priority, but merely to reorder such priorities).
"Transaction Events of Default" shall mean the Events of Default and the
Insurer Defaults under the Indentures.
"Transaction Trigger Events" shall mean the Trigger Events set forth in the
Insurance and Reimbursement Agreement for each Transaction as modified by the
Amendment to Insurance Agreements.
"Transition Costs" with respect to each Grantor Trust Transaction, means
any reasonable fees and expenses of the Back-Up Servicer, provided, however,
that in no event shall Transition Costs in the aggregate for the related Grantor
Trust Servicing Agreement and all similar servicing agreements to which the
Seller and Servicer are parties, exceed the lesser of (i) $200,000 or such other
amount approved by MBIA, or (ii) the sum of $50,000, plus, for each Collection
Period during which the Back-Up Servicer serves in such capacity the product of
(x) 0.0125% times (y) the Pool Balance as of the beginning of the related
Collection Period, divided by (z) twelve.
"Underfunded Spread Account" shall have the meaning set forth in Section
2.05(c).
Section 1.02. Generic Terms. All words used herein shall be construed to be
of such gender or number as the circumstances require. The words "herein,"
"hereby," "hereof," "hereto," "hereinbefore" and "hereinafter," and words of
similar import, refer to this Agreement in its entirety and not to any
particular paragraph, clause or other subdivision, unless otherwise specified.
Section 1.03. Computation of Time Periods. In this Agreement, the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to and including". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed and
periods of months and years shall be counted in calendar months and calendar
years unless otherwise specified.
ARTICLE II
THE MASTER TRUST ACCOUNT
Section 2.01. Appointment of Master Trustee. UACSC, PSC, SST, MBIA, the
Owner Trustee, the Indenture Trustees and the Trustee hereby appoint Wilmington
Trust Company as the Master Trustee under this Agreement to act in accordance
with the terms of this Agreement. Wilmington Trust Company hereby accepts and
acknowledges its appointment as the Master Trustee.
Section 2.02. Pledge of Security Interest. Each of UACSC and PSC hereby
assigns, sells, conveys and transfers to the Master Trustee and its successors
and assigns, on behalf of the Noteholders, the Certificateholders and MBIA, and
grants thereto a security interest in, all of its right, title and interest in
and to all Excess Cash and Excess Cash Flow, to have and to hold all
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the aforesaid property, rights and privileges unto the Master Trustee, its
successors and assigns, in trust for the benefit of the Master Trustee, the
Investor Certificateholders, the Noteholders under the Owner Trust Transactions,
the Successor Servicer, Indenture Trustees, Owner Trustee and/or Trustee, as
applicable, under each Servicing Agreement and/or Indenture, and MBIA
(collectively, the "Secured Parties") and to hold the aforesaid property, rights
and privileges for the benefit of the Residual Certificateholders, as their
interests may appear, subject to the terms and provisions set forth in this
Agreement. The Master Trustee and the Master Trust Paying Agent hereby
acknowledge such transfer and, upon receipt, the Master Trust Paying Agent shall
hold and distribute the Excess Cash and the Excess Cash Flow in accordance with
the terms and provisions of this Agreement.
Section 2.03. Establishment of Master Trust Account. On or prior to the
Servicing Transfer Date, the Master Trustee shall establish and maintain a
segregated trust account with the Master Trustee or in the corporate trust
department of another Eligible Bank designated by UACSC and approved by MBIA to
be titled: "UACSC Master Trust Account" and referred to herein as the "Master
Trust Account." The Master Trust Account shall be maintained in the name of the
Master Trustee. The Master Trust Account and any amounts on deposit therein
shall be part of the collateral pledged herein for the benefit of the Secured
Parties, as their respective interests may appear herein.
Section 2.04. Investment of Funds in Master Trust Account. Funds on deposit
in the Master Trust Account shall be invested in Eligible Investments in the
same manner and subject to the same requirements and limitations as the
investment of funds in the Collection Account pursuant to Section 9.01 of the
Servicing Agreements and/or Indentures, as applicable (subject to Section 9(a)
of the Servicing Transfer Agreement), including the limitation that Eligible
Investments mature not later than the Business Day (or in certain circumstances
specified in Section 9.01 of the Servicing Agreements and/or the Indentures, as
the case may be, the second Business Day) prior to the next succeeding Payment
Date. For purposes of determining the availability of funds or the balance in
the Master Trust Account for any reason under this Agreement, investment
earnings on such funds shall be deemed to be available or on deposit only to the
extent that the aggregate of such amounts, plus the funds on deposit in the
Master Trust Account, do not exceed the Full Reserve Amount or the Adjusted Full
Reserve Amount, as applicable.
Section 2.05. Deposit of Funds into Master Trust Account; Distribution of
Funds on Deposit in Master Trust Account.
(a) Within two Business Days prior to any Payment Date, SST shall
deliver the Master Trust Servicer Certificate to the Master Trustee, the
Indenture Trustees, the Trustee, UACSC, the Master Trust Paying Agent and
MBIA.
(b) On the Servicing Transfer Date or as soon as practicable
thereafter, but no later than the May 2003 Payment Date, the Trustee and
the Indenture Trustees shall withdraw all Excess Cash on deposit in the
Spread Accounts for each Transaction in excess of the Basic Transaction
Collateral Amounts and transfer such funds net of accrued and unpaid fees
and expenses owed to MBIA pursuant to the Transaction Documents (subject to
an accounting in reasonable detail) to the Master Trust Account.
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(c) On the Business Day preceding each Payment Date, provided that the
Master Trustee Servicer Certificate has been timely received, the Master
Trustee shall make the following distributions out of funds available in
the Master Trust Account in the following priority:
First: to the Master Trustee, all accrued and unpaid
amounts payable to the Master Trustee under
Section 4.03 hereof and not paid by SST;
Second: until the Applicable Modification Date with
respect to any Affected Servicing Agreement, to
the Trustee, the BNY Indenture Trustee and the
BONY Indenture Trustee, all accrued and unpaid
amounts payable to the Trustee, the BNY Indenture
Trustee and the BONY Indenture Trustee under
Section 15.07 of the Affected Servicing Agreement,
pro rata;
Third: until the Applicable Modification Date with
respect to any Affected Servicing Agreement, to
MBIA (for the account of SST for services prior to
the Servicing Transfer Date in its capacity as
Back-up Servicer), all accrued and unpaid
Transition Costs, if any, in connection with
Affected Servicing Agreement;
Fourth: to the Master Trust Paying Agent, all accrued and
unpaid indemnity amounts owed to the Master Trust
Paying Agent pursuant to Section 6.03 hereof and
not paid by SST;
Fifth: until the Applicable Modification Date with
respect to any Affected Servicing Agreement, to
the Successor Servicer, the amount by which the
aggregate accrued and unpaid Successor Servicer
Monthly Compensation Amount for all such Affected
Servicing Agreements exceeds the aggregate of the
Monthly Servicing Fees (as defined in the
applicable Affected Servicing Agreement) paid to
the Successor Servicer under such Affected
Servicing Agreements;
Sixth: until the Applicable Modification Date with
respect to any Affected Servicing Agreement, to
the Successor Servicer, the amount of expenses the
Successor Servicer incurs in connection with
extraordinary re-titling of Financed Vehicles
filing a financing statement in respect of an
Obligor or legal fees and court costs incurred in
pursuing collection of Receivables in bankruptcy
for which Successor Servicer is entitled to
reimbursement in accordance with the Interim
Agreement in respect of such Affected Servicing
Agreement;
Seventh: until the Applicable Modification Date with
respect to any Affected Servicing Agreement, to
the Successor Servicer, all accrued and unpaid
indemnity amounts owed to the Successor Servicer
by UAC under the Interim Agreement or under
Section 11 of the Servicing Transfer Agreement
(after giving effect to any payment of such
indemnity amounts under Section 9.04 of the
Indentures), and (without duplication) to UAC, the
amount of any such indemnity payment previously
paid by UAC to or for the account of Successor
Servicer;
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Eighth: if the Master Trustee has received written notice
from the Servicer, MBIA, the Owner Trustee, the
Trustee or any Indenture Trustee that the sum of
Available Funds and the Available Spread Amount
under any Transaction is insufficient to pay in
full the amounts required to be distributed under
the Applicable Servicing Agreement or Indenture on
such Payment Date (provided that the Trustee, the
Indenture Trustees and the Owner Trustee shall
have no duty to provide such notice and no
responsibility for tracking the amounts in such
accounts) and the amount of any such
insufficiency, then the Master Trustee shall
deposit to the Spread Account for each such
Transaction (each such Spread Account, an
"Underfunded Spread Account"), in the order of the
Transaction Priority the amount of any such
insufficiency;
Ninth: to MBIA, all accrued and unpaid fees and expenses
owed to MBIA pursuant to the Transaction Documents
(subject to an accounting in reasonable detail).
To the extent that the aggregate amount required to be distributed
pursuant to Priorities First through Ninth above exceeds the funds then on
deposit in the Master Trust Account and there are funds on deposit in any
Spread Accounts that are not needed to make distributions required under
the applicable Servicing Agreement or Indenture for the related Transaction
on such Payment Date (each such Spread Account, an "Overfunded Spread
Account"), the Master Trustee, at the written direction of MBIA, shall
direct the BNY Indenture Trustee and/or the BONY Indenture Trustee and/or
Trustee, as applicable, in writing, to the extent permitted under the
related Indenture or Servicing Agreement, in the order of the Transaction
Priority, to withdraw, acting through the related Transaction Paying Agent,
such excess funds from the applicable Overfunded Spread Accounts as
directed by MBIA in writing and transfer such excess funds into the Master
Trust Account for distribution by the Master Trustee or the Master Trust
Paying Agent, as the case may be, in accordance with the priorities set
forth above.
(d) Provided that the Master Trust Servicer Certificate has been
timely received, on the Business Day preceding each Payment Date, after
giving effect to all distributions under Section 2.05(c), the Master
Trustee shall determine the amount of any required distributions to be made
from the Master Trust Account under Section 2.06 below and, to the extent
of any remaining excess funds in any Overfunded Spread Accounts which are
permitted to be withdrawn under the related Indenture or Servicing
Agreement, shall direct the BNY Indenture Trustee and/or the BONY Indenture
Trustee and/or Trustee, as applicable, in writing, to the extent permitted
under the related Indenture or Servicing Agreement, to withdraw, acting
through the related Transaction Paying Agent, such funds from the
applicable Overfunded Spread Accounts in the order of the Transaction
Priority and transfer such excess funds into the Master Trust Account for
immediate distribution in accordance with Section 2.06.
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(e) After giving effect to any withdrawals made pursuant to Section
2.05 (b) and (c) above, on each Payment Date after the Servicing Transfer
Date, the Trustee and the Indenture Trustees shall withdraw, acting through
the related Transaction Paying Agent, all Excess Cash available to be
distributed from the Spread Accounts for each Transaction on such Payment
Date and transfer such funds in the Master Trust Account.
Section 2.06. Release of Funds on Deposit in the Master Trust Account.
Until the Plan Confirmation Date, no releases shall be made from the Master
Trust Account except as expressly contemplated under Sections 2.05(b) and (c).
Thereafter, the Master Trustee shall distribute amounts on deposit in the Master
Trust Account as follows:
(a) Provided that the Master Trustee shall have timely received the
Master Trust Servicer Certificate, on the first Payment Date following the
Plan Consummation Date, after giving effect to all distributions made on
such Payment Date under Section 2.05 and under each Transaction, the Master
Trustee shall distribute the following amounts:
(i) to UAC, all accrued and unpaid Servicer Advances to the extent
not paid in full pursuant to the funds available under the
Servicing Agreements and/or Indentures (approximately $5,400,000
as of the Servicing Transfer Date); and
(ii) to the Residual Certificateholders, an amount equal to the lesser
of (a) Available Excess Cash and (b) an amount that would not cause the
Total Cash Collateral to be less than 5.0% of the then Outstanding Balance
on the Plan Confirmation Date; provided that if the Plan Confirmation Date
occurs in any month later than August, 2003, the foregoing distribution
shall nevertheless be calculated and made at and after the Plan
Consummation Date as if the Plan Confirmation Date had occurred immediately
prior to the September 2003 Payment Date.
(b) Provided that the Master Trustee shall have timely received the
Master Trust Servicer Certificate, commencing with the second Payment Date
after the Plan Consummation Date, after giving effect to all distributions
made on such Payment Date under Section 2.05 and under each Transaction,
the Master Trustee shall make the following distributions in the following
order of priority:
First: (x) to the Residual Certificateholders, an amount equal to
the lesser of (i) the remaining amount of Available Excess
Cash, if any, not previously distributed pursuant to Section
2.06(a)(ii) above or this Priority First and (ii) an amount
equal to 50% of the amount, if any, by which the Total Cash
Collateral (before taking into effect any distribution under
this Priority First) exceeds the Adjusted Minimum Collateral
Percentage times the aggregate Outstanding Balance on such
Payment Date and (y) the remainder to remain on deposit in
the Master Trust Account and/or the Spread Accounts until
the Total Cash Collateral equals the Base Reserve Amount;
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Second: after the Total Cash Collateral equals the Base Reserve
Amount, (x) to the Residual Certificateholders, so long as
no First Level Trigger Event has occurred and is continuing
and to the extent that release of such funds would not cause
the Total Cash Collateral to be less than the Base Reserve
Amount, an amount equal to 50% of Excess Cash Flow on such
Payment Date and (y), the remainder to remain on deposit in
the Master Trust Account until the Total Cash Collateral
equals the Full Reserve Amount; provided that if a First
Level Trigger Event has occurred and is continuing, 100% of
Excess Cash Flow shall remain on deposit in the Master Trust
Account and/or the Spread Accounts until the Total Cash
Collateral equals the Adjusted Full Reserve Amount;
Third: to the Residual Certificateholders, (i) so long as no First
Level Trigger Event has occurred and is continuing, the
amount, if any, by which the Total Cash Collateral equals or
exceeds the Full Reserve Amount or (ii) if a First Level
Trigger Event has occurred and is continuing, the amount, if
any, by which the Total Cash Collateral equals or exceeds
the Adjusted Full Reserve Amount.
All amounts distributed to the Residual Certificateholders under this
Section 2.06 shall be distributed to or at the written direction of UACSC
(or its designee) on behalf of the Residual Certificateholders.
Section 2.07. Termination of Master Trust Account. Ninety-one days after
the payment in full to the Investor Certificateholders and the Noteholders of
all amounts payable with respect to the Notes and Investor Certificates,
respectively, and the payment in full of all amounts payable to MBIA under this
Agreement and the Insurance Agreements, and the payment in full of all other
amounts owed to the Secured Parties under the applicable Servicing Agreements
and/or Indentures, MBIA shall direct that any amounts remaining in the Master
Trust Account shall be released to Residual Certificateholders; provided,
however, that, if any Insolvency Event occurs with respect to any of the Trusts,
the Issuers, UACSC or PSC (collectively, the "Potential Preference Parties")
during the ninety-one day period described above, then all funds shall remain on
deposit in the Master Trust Account until the date that all applicable
limitation periods with respect to all applicable preferential transfer or other
payment avoidance statutes relating to any of the Potential Preference Parties
have expired and if no proceeding at law or in equity is commenced during any
such period based upon any such statute, all such amounts remaining on deposit
in the Master Trust Account shall be released at the end of all such periods to
the Residual Certificateholders; provided, further, however, that if any such
proceeding is commenced during any applicable limitation period, all funds on
deposit in the Master Trust Account shall remain on deposit therein until the
date on which there is a final determination by a court of competent
jurisdiction as to whether any payment or payments made pursuant to any of the
Transaction Documents relating to the Transactions or this Agreement is
recoverable from MBIA, the Noteholders or the Certificateholders. If such a
court determines that a payment is so recoverable, all funds on deposit in the
Master Trust Account shall remain on deposit in the Master Trust Account and
shall be applied to the payment of any and all such claims that MBIA may be
required to pay. If such a court determines that such payment is not
recoverable, all funds on deposit in the Master Trust Account shall be released
to the Residual Certificateholders.
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ARTICLE III
MASTER TRUST TRIGGER EVENTS; TRANSACTION TRIGGER EVENTS AND
TRANSACTION EVENTS OF DEFAULT
Section 3.01. First Level Trigger Events. The First Level Trigger Events
(the "First Level Trigger Events" shall be the following:
(a) First Level Net Loss Ratio Trigger Event: the actual twelve-month
rolling average of the monthly annualized net loss ratio in aggregate for
all Transactions at the end of any calendar month shall exceed the First
Level Net Loss Ratio Trigger for such month; and
(b) First Level Cumulative Net Loss Trigger Event: the actual historic
cumulative net losses in aggregate for all Transactions commencing from
April, 2002 through the end of a calendar month shall exceed the First
Level Cumulative Net Loss Trigger for such month.
Section 3.02. Second Level Trigger Events. The Second Level Trigger Events
(the "Second Level Trigger Events" shall be the following:
(a) Second Level Net Loss Ratio Trigger Event: the actual twelve-month
rolling average of the monthly annualized net loss ratio in aggregate for
all Transactions at the end of any calendar month shall exceed the Second
Level Net Loss Ratio Trigger for such month; and
(b) Second Level Cumulative Net Loss Trigger Event: the actual
historic cumulative net losses in aggregate for all Transactions commencing
from April, 2002 through the end of a calendar month shall exceed the
Second Level Cumulative Net Loss Trigger for such month.
Section 3.03. Duration of Master Trust Trigger Events. Each of the First
Level Trigger Events and the Second Level Trigger Events shall be deemed to be
continuing until the related Master Trust Trigger Event has been restored to
compliance for three consecutive months; provided that, with respect to the
First Level Trigger Events, if a breach of a First Level Trigger occurs in 2003,
such breach shall be deemed to be continuing until the first Payment Date on
which such First Level Trigger has been restored to compliance.
Section 3.04. Notification of Master Trust Trigger Events, Transaction
Trigger Events and Transaction Events of Default. MBIA shall provide the Master
Trustee and all other parties hereto written notice of the occurrence of any
Master Trust Trigger Event, Transaction Trigger Event or Transaction Event of
Default. In addition, MBIA shall provide the Master Trustee and all other
parties hereto written notice of the conclusion of such Master Trust Trigger
Event, Transaction Trigger Event or Transaction Event of Default at such time
the event is no longer deemed to be continuing in accordance with Section 3.03
above (with respect to any Master Trust Trigger Event) or in accordance with the
Insurance Agreements and the Indentures for the related Transaction (with
respect to any Transaction Trigger Event or Transaction Event of Default).
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ARTICLE IV
THE MASTER TRUSTEE
Section 4.01 Duties of Master Trustee.
(a) The Master Trustee shall exercise the rights and powers vested in
it by this Agreement and with the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) The Master Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) the Master Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Master Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Master Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 2.05(c), Section 2.05(e)
or Section 2.07; and
(iii) this paragraph does not limit the effect of Sections
4.01(c), (f), (g), (h), (i) or 4.02.
(c) No provision of this Agreement shall require the Master Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Master Trust Account Agreement relating to
the conduct or affecting the liability of or affording protection to the
Master Trustee shall be subject to the provisions of this Section and
Section 4.02
(e) The Master Trustee shall, and hereby agrees that it will perform
all of the obligations and duties required of it under this Master Trust
Account Agreement.
(f) The Master Trustee shall have no duties other than performing
those ministerial acts set forth in this Master Trust Account Agreement to
accomplish the purposes set forth in this Master Trust Account Agreement
and no covenants or obligations shall be implied in this Agreement that are
not specifically set forth herein.
(g) The Master Trustee shall not be liable in its individual capacity
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with this Master Trust Account Agreement or at the
direction of MBIA,
16
relating to the time, method and place of conducting any Proceeding for any
remedy available to the Master Trustee, or exercising or omitting to
exercise any trust or power conferred upon the Master Trustee, under this
Master Trust Account Agreement.
(h) Subject to the other provisions of this Master Trust Account
Agreement, the Master Trustee shall have no duty (i) to see to any
recording, filing, or depositing of this Master Trust Account Agreement or
any agreement referred to herein or any UCC financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof or any other matters
with respect to the perfection, maintenance or continuation of any security
interest, (ii) to see to any insurance, (iii) to see to the payment or
discharge of any tax, assessment, or other governmental charge or any lien
or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Excess Cash or other monies on deposit with the
Master Trustee or the Master Trust Paying Agent, or (iv) to confirm or
verify the contents of any reports, certificates or other materials or
information delivered to the Master Trustee pursuant to this Master Trust
Account Agreement believed by the Master Trustee to be genuine and to have
been signed or presented by the proper party or parties.
(i) Anything in this Master Trust Account Agreement to the contrary
notwithstanding, in no event shall the Master Trustee be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Master Trustee has
been advised of the likelihood of such loss or damage, regardless of the
form of action.
(j) The Master Trustee shall have no liability on account of any loss
of principal in connection with any investment of funds held in the Master
Trust Account that are invested in Eligible Investments.
Section 4.02. Rights of Master Trustee.
(a) Except as otherwise provided in the second succeeding sentence,
the Master Trustee may conclusively rely and shall be protected in acting
upon or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, note,
direction, demand, election or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person. The
Master Trustee need not investigate any fact or matter stated in the
document. Notwithstanding the foregoing, the Master Trustee, upon receipt
of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Master Trustee that shall be
specifically required to be furnished pursuant to any provision of this
Master Trust Account Agreement, shall examine them to determine whether
they comply as to form to the requirements of this Master Trust Account
Agreement, but shall not be required to investigate or verify any of the
contents thereof.
(b) Before the Master Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an
Opinion of Counsel, as applicable. The Master Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officer's Certificate or Opinion of Counsel.
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(c) The Master Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and the Master Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent, attorney, custodian or nominee appointed by the Master Trustee with
due care.
(d) The Master Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, however, that the Master Trustee's conduct
does not constitute willful misconduct, negligence or bad faith.
(e) The Master Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Master
Trust Account Agreement shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Master Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Master Trust Account Agreement or
to institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the parties to this
Master Trust Account Agreement, pursuant to the provisions of this Master
Trust Account Agreement, unless the requesting, ordering or directing party
shall have offered to the Master Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby.
(g) The Master Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
MBIA; provided, however, that if the payment within a reasonable time to
the Master Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Master Trustee, not reasonably assured to the Master Trustee by the
security afforded to it by the terms of this Master Trust Account
Agreement, the Master Trustee may require indemnity reasonably satisfactory
to it against such cost, expense or liability as a condition to taking any
such action.
(h) The right of the Master Trustee to perform any discretionary act
enumerated in this Master Trust Account Agreement shall not be construed as
a duty, and the Master Trustee shall not be answerable for other than its
willful misconduct, negligence or bad faith in the performance of such act.
(i) The Master Trustee makes no representation as to the validity or
adequacy of any of the Transaction Documents or any documents delivered in
connection therewith, including, without limitation, the Investor
Certificates and the Notes, and is not accountable to any person for the
use or application by any party to this Agreement or the Master Trust
Paying Agent of any funds received or disbursed hereunder, and it shall not
be responsible for any statement in any of the Transaction Documents or any
documents
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executed in connection therewith (other than its representations and
warranties set forth in this Agreement).
Section 4.03. Compensation and Indemnity.
(a) The Master Trustee from time to time shall be entitled to
reasonable compensation for its services, as agreed among the Master
Trustee, SST, UACSC and MBIA in writing. The Master Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Master Trustee shall be entitled to be reimbursed for all
reasonable out-of-pocket expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses and
disbursements and advances of the Master Trustee's agents, counsel,
accountants and experts. The Master Trustee and its officers, directors,
attorneys-in-fact and agents shall be indemnified and held harmless against
any and all loss, liability or expense (including attorneys' fees and
expenses) arising out of or incurred by it in connection with the
administration of this trust and the performance of its duties hereunder,
including, without limitation, the reasonable costs and expenses of
enforcing this Agreement and of defending themselves against any claim
(whether asserted by any party hereto or any other person or entity) or
liability in connection with the exercise or performance of any of their
rights, powers or duties hereunder. The Master Trustee shall notify SST,
MBIA and UACSC promptly of any claim for which it may seek indemnity.
Failure by the Master Trustee to so provide such notice shall not impair
its rights to indemnity hereunder, except to the extent material prejudice
results from such failure. The Master Trustee shall not be entitled to
reimbursement of any expense or indemnity against any loss, liability or
expense incurred by the Master Trustee through the Master Trustee's own
willful misconduct, negligence or bad faith. All compensation,
reimbursement and indemnity amounts to which the Master Trustee is entitled
hereunder shall be paid by SST and, to the extent unpaid, from the Master
Trust Account in accordance with Section 2.05(c).
(b) To secure the payment obligations under this Section 4.03, the
Master Trustee shall have a lien on all assets or money held or collected
by the Master Trustee or the Master Trust Paying Agent in the Master Trust
Account or any similar account maintained by the Master Trust Paying Agent
with the rights of priority set forth in Section 2.05(c). When the Master
Trustee incurs expenses or renders services after the commencement of any
bankruptcy, insolvency or similar proceeding occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar law.
(c) The rights of the Master Trustee pursuant to this Section shall
survive the resignation or removal of the Master Trustee or any other
termination of this Agreement including without limitation, any termination
or rejection of this Agreement in any bankruptcy or other insolvency or
similar proceeding.
Section 4.04. Replacement of Master Trustee.
(a) The Master Trustee may resign at any time by so notifying UACSC,
PSC, the Indenture Trustees, the Trustee and MBIA. UACSC and PSC, may, with
the written
19
consent of MBIA, and at the written request of MBIA shall, remove the
Master Trustee for any reason or for no reason.
(b) If the Master Trustee resigns or is removed or if a vacancy exists
in the office of Master Trustee for any reason (the Master Trustee in such
event being referred to herein as the retiring Master Trustee), UACSC shall
promptly appoint a successor Master Trustee acceptable to MBIA.
(c) A successor Master Trustee shall deliver a written acceptance of
its appointment to the retiring Master Trustee and to the Issuer. Thereupon
the resignation or removal of the retiring Master Trustee shall become
effective, and the successor Master Trustee shall have all the rights,
powers and duties of the Master Trustee under this Agreement. The retiring
Master Trustee shall promptly transfer all property held by it as Master
Trustee to the successor Master Trustee.
(d) If a successor Master Trustee shall not have taken office within
30 days after the retiring Master Trustee resigns or is removed, the
retiring Master Trustee, UACSC, PSC or MBIA, at the expense of UACSC,
petition any court of competent jurisdiction for the appointment of a
successor Master Trustee.
(e) Any resignation or removal of the Master Trustee and appointment
of a successor Master Trustee pursuant to the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Master Trustee pursuant to this Section and payment of all fees and
expenses owed to the retiring Master Trustee. Notwithstanding the
replacement of the Master Trustee pursuant to this Section, the retiring
Master Trustee shall be entitled to payment or reimbursement of such
amounts as such Person is entitled pursuant to Section 4.03.
Section 4.05. Successor Master Trustee by Merger. If the Master Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Master Trustee; provided, that such
corporation or banking association shall be otherwise qualified and eligible
under Section 4.06. The Master Trustee shall provide UACSC, PSC and MBIA prompt
notice after the closing of any such transaction.
Section 4.06. Eligibility. The Master Trustee hereunder shall at all times
be a financial institution organized and doing business under the laws of the
United States of America or any state, authorized under such laws to exercise
corporate trust powers, whose long term unsecured debt is rated at least Baa3 by
Moody's and shall have a combined capital and surplus of at least $50,000,000 or
shall be a member of a bank holding system the aggregate combined capital and
surplus of which is $50,000,000 and subject to supervision or examination by
federal or state authority. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of a supervising or
examining authority, then for the purposes of this Section 4.06, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time the Master Trustee shall cease to be eligible in accordance
with the provisions of this Section 4.06, the Master Trustee shall resign
immediately in the manner and with the effect specified in Section 4.04.
20
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the parties hereto hereby makes the following representations and
warranties on which the other parties hereto shall rely:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of its place of incorporation;
(b) it has full power, authority and legal right to execute, deliver,
and perform this Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement; and
(c) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid, and binding agreement of it, enforceable
against it in accordance with its terms, except as such enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or other similar laws now or
hereinafter in effect relating to the enforcement of creditors' rights in
general, as such laws apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship, receivership or
similar occurrence affecting it, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as well as concepts of reasonableness, good faith and
fair dealing.
ARTICLE IV
MASTER TRUST PAYING AGENT
Section 6.01. Appointment of Master Trust Paying Agent. UACSC, PSC, SST,
MBIA, the Owner Trustee, the Indenture Trustees and the Trustee hereby appoint
JPMorgan Chase Bank as the Master Trust Paying Agent under this Agreement to act
in accordance with the terms of this Agreement. JPMorgan Chase Bank hereby
accepts and acknowledges its appointment as the Master Trust Paying Agent. To
the extent that the Master Trust Paying Agent acts as a Transaction Paying
Agent, the Master Trust Paying Agent shall be entitled to the privileges of this
Article VI in performing such function.
Section 6.02. Covenants of Master Trust Paying Agent. The Master Trust
Paying Agent hereby agrees that it shall:
(a) hold all sums held by it for the payment of amounts due under
Sections 2.05 and 2.06 in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons by the Master Trust
Paying Agent or otherwise disposed of as herein provided;
(b) immediately resign as Master Trust Paying Agent and forthwith pay
to the Master Trustee all sums held by it in trust for the payment of
amounts due under Section 2.05 and 2.06 if at any time it ceases to meet
the standards required to be met by a Master Trust Paying Agent at the time
of its appointment; and
21
(c) comply with all requirements of the Code with respect to the
withholding from any payments made by it hereunder of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
Section 6.03. Indemnity. The Master Trust Paying Agent and its officers,
directors, attorneys-in-fact and agents shall be indemnified and held harmless
against any and all loss, liability or expense (including attorneys' fees and
expenses) arising out of or incurred by it in connection with the performance of
its duties hereunder, including, without limitation, the reasonable costs and
expenses of defending themselves against any claim (whether asserted by any
party hereto or any other person or entity) or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder. The
Master Trust Paying Agent shall notify SST, MBIA and UACSC promptly of any claim
for which it may seek indemnity. Failure by the Master Trust Paying Agent to so
provide such notice shall not impair its rights to indemnity hereunder, except
to the extent material prejudice results from such failure. The Master Trust
Paying Agent shall not be entitled to reimbursement of any expense or indemnity
against any loss, liability or expense incurred by the Master Trust Paying Agent
through the Master Trust Paying Agent's own willful misconduct, negligence or
bad faith. All indemnity amounts to which the Master Trust Paying Agent is
entitled hereunder shall be paid by SST and, to the extent unpaid, from the
Master Trust Account in accordance with Section 2.05(c).
Section 6.04. Removal of Master Trust Paying Agent. UACSC may at any time
with the consent of MBIA, by Officer's Certificate, direct the Master Trust
Paying Agent to pay to the Master Trustee all sums held in trust by the Master
Trust Paying Agent, such sums to be held by the Master Trustee upon the same
trusts as those upon which the sums were held by the Master Trust Paying Agent;
and upon such payment by the Master Trust Paying Agent to the Master Trustee,
the Master Trust Paying Agent shall be released from all further liability with
respect to such sums.
Section 6.05. Successor Master Trust Paying Agents. Upon the removal or
resignation of the Master Trust Paying Agent, UACSC shall appoint a successor
Master Trust Paying Agent with the approval of MBIA. UACSC will cause each
Master Trust Paying Agent other than the Master Trustee to execute and deliver
to UACSC for the benefit of the Master Trustee and MBIA an instrument in which
such Master Trust Paying Agent shall agree with the Master Trustee (and if the
Master Trustee acts as the Master Trust Paying Agent, it hereby so agrees), that
it shall comply with the covenants set forth in Section 6.02.
22
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure therefrom, shall in any event be
effective unless in writing and signed by all of the parties hereto and the
Creditor Representative (provided that the consent of PSC shall not be required
following the termination of the PSC 1998-1 Transaction); provided that any
waiver so granted shall extend only to the specific event of occurrence so
waived and not to any other similar event or occurrence which occurs subsequent
to the date of such waiver. No act or course of dealing shall be deemed to
constitute an amendment, modification or termination hereof.
Section 7.02. Creditor Representative. Any consent, approval or other
determination under this Agreement which contemplates participation by UAC (or a
subsidiary thereof) shall apply with equal force to, and also shall require the
consent, approval and determination, as applicable, of the Creditor
Representative. Any requirement to provide reports, access to records and/or
notice to UAC (or a subsidiary thereof) shall also be imposed as to the Creditor
Representative.
Section 7.03. Indenture Trustees and Trustee. The Indenture Trustees and
the Trustee shall be afforded the same rights, protections, immunities and
indemnities provided each of them in each respective Indenture and Servicing
Agreement as if the same were specifically set forth herein. The parties hereto
agree that the Indenture Trustees and the Trustee shall in no event be liable
for the acts or omissions of the Master Trustee or the Master Paying Agent.
Section 7.04. No Assignment. This Agreement shall be a continuing
obligation of the parties hereto and shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. None of the Master Trustee, the Trustee, or the Indenture Trustees may
assign its rights under this Agreement, or delegate any of its duties hereunder,
without the prior written consent of the MBIA. UACSC or PSC may assign their
rights hereunder in any manner and to any person that does not impair, in MBIA's
reasonable determination, the status of UACSC, PSC or the proposed assignee, as
a bankruptcy remote business entity. Any assignment made in violation of this
Agreement shall be null and void.
Section 7.05. Notices. Except to the extent otherwise expressly provided
herein, all notices, requests, directions, orders and demands to or upon the
respective parties hereto to be effective shall be in writing (and if sent by
mail, certified or registered, return receipt requested) or facsimile
transmission and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three (3) Business Days
after being deposited in the mail, postage prepaid, or, in the case of facsimile
transmission, when sent, addressed as follows or to such other address or
facsimile number as set forth in a written notice delivered by a party to each
other party hereto:
23
If to UAC:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to UACSC:
UAC Securitization Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to PSC:
Performance Securitization Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the BNY Indenture Trustee or the Trustee:
BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the BONY Indenture Trustee:
The Bank of New York
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to SST, the Servicer or the Successor Servicer:
Systems & Services Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
24
If to the Master Trust Paying Agent:
JPMorgan Chase Bank
Structured Finance Admin
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Attention: UAC - Master Trust Paying Agent
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Master Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to MBIA:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copies of all notices, reports or other correspondence sent to any party
hereto pursuant to this Agreement shall also be sent to the Creditor
Representative c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or to such other address as the
Creditor Representative may designate from time to time in a written notice to
each of the parties hereto.
Section 7.06. No Waiver; Remedies and Severability. No failure on the part
of any party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law. The parties further agree that the holding by any
court of competent jurisdiction that any remedy pursued by a party hereunder is
unavailable or unenforceable shall not affect in any way the ability of such
party to pursue any other remedy available to it. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, the parties hereto agree that such holding shall not invalidate or
render unenforceable any other provision hereof.
Section 7.07. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED,
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
25
YORK INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW BUT OTHERWISE
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Sectio 7.08. Counterparts. This Agreement may be executed in 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 7.09. Paragraph Headings, Etc. The headings of paragraphs contained
in this Agreement are provided for convenience only. They form in no part of
this Agreement and shall not affect its construction or interpretation.
Section 7.10. Consent to Jurisdiction. THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND 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 TO OR IN CONNECTION WITH
ANY OF THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREUNDER OR
FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH
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. THE PARTIES HERETO AGREE
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, THE
PARTIES HERETO HEREBY WAIVE AND AGREE 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 THE TRANSACTION DOCUMENTS OR THE
SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS.
Section 7.11. Jury Trial Waiver. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH
ANY OF THE TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREUNDER. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THE TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THIS WAIVER.
Section 7.12. Further Assurances. UACSC or PSC, as the case may be, shall,
at all times on and after the date hereof, at its expense and in such manner and
form as the Master Trustee or
26
MBIA may reasonably require, execute, deliver, file and record any other
statement, continuation statement, specific assignment or other instrument or
document and take any other action that may be necessary or reasonably
desirable, or that the Master Trustee or MBIA, or their respective successors or
permitted assigns or their respective agents or representatives, may reasonably
request, to create, evidence, preserve, perfect or validate the security
interests created hereunder or to enable the Master Trustee to exercise and
enforce its rights hereunder for the benefit of the Secured Parties or perform
its obligations hereunder. Without limiting the generality of the foregoing,
UACSC or PSC, as the case may be, shall, upon the request of the Master Trustee
or MBIA, execute and file such UCC financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate to evidence the liens created
hereby. UACSC hereby authorizes MBIA to file one or more UCC financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the collateral pledged hereunder, whether now existing
or hereafter arising, without the signature of UACSC or PSC, as the case may be.
If UACSC or PSC, as the case may be, fails to perform any of its agreements or
obligations under this paragraph, then MBIA may (but shall not be required to)
itself perform, or cause performance of, such agreement or obligation, and the
reasonable expenses of MBIA incurred in connection therewith shall be payable in
accordance with the provisions of Section 2.05.
Section 7.13. Entire Agreement. Subject to the terms of the Transaction
Documents, this Agreement sets forth the entire agreement between the parties
with respect to the subject matter hereof, and this Agreement supersedes and
replaces any agreement or understanding that may have existed between the
parties prior to the date hereof in respect of any such subject matter.
Section 7.14. Nonpetition. None of the parties hereto shall file any
involuntary petition or otherwise institute any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or state
bankruptcy or similar law against PSC or UACSC.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as
of the day and year first above mentioned.
UNION ACCEPTANCE CORPORATION,
individually and as Predecessor
Servicer under each Servicing Agreement
By: /s/ ▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: President and CEO
UAC SECURITIZATION CORPORATION,
as Seller under each Grantor Trust
Servicing Agreement and Owner Trust
Servicing Agreement and Certificateholder
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
PERFORMANCE SECURITIZATION CORPORATION,
as Seller under the PSC
Servicing Agreement and Certificateholder
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
WILMINGTON TRUST COMPANY,
as Master Trustee
By: /s/ ▇▇▇▇▇ ▇. Neaci
---------------------------------------
Name: ▇▇▇▇▇ ▇. Neaci
Title: Authorized Signer
BNY MIDWEST TRUST COMPANY, not in its
individual capacity but solely as
Indenture Trustee under the various
Indentures other than the 2000-B
Indenture described above
and as Trustee under the various
Pooling and Servicing Agreements
described above
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
27
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee under the 2000-B
Indenture described above
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
as Servicer or Successor Servicer
under the Servicing Agreements
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
JPMORGAN CHASE BANK,
as Master Trust Paying Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MBIA INSURANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CREDITOR REPRESENTATIVE
By: Official Committee of the Unsecured
Creditors of Union Acceptance
Corporation
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SCHEDULE A
First Level Cumulative Net Loss Trigger Amounts
Apr-03 149,301,495
May-03 157,003,878
Jun-03 164,520,053
Jul-03 171,843,294
Aug-03 178,968,576
Sep-03 184,690,719
Oct-03 190,241,638
Nov-03 195,619,860
Dec-03 200,825,245
Jan-04 205,858,245
Feb-04 210,719,419
Mar-04 215,409,966
Apr-04 219,932,785
May-04 224,290,075
Jun-04 228,484,225
Jul-04 232,518,352
Aug-04 236,396,299
Sep-04 240,121,951
Oct-04 243,698,934
Nov-04 247,131,410
Dec-04 250,422,787
Jan-05 253,565,918
Feb-05 256,567,172
Mar-05 259,424,100
Apr-05 262,147,933
May-05 264,739,809
Jun-05 267,192,435
Jul-05 269,521,293
Aug-05 271,730,497
Sep-05 273,808,282
Oct-05 275,764,039
Nov-05 277,607,706
Dec-05 279,347,506
Jan-06 280,989,009
Feb-06 282,541,449
Mar-06 284,015,626
Apr-06 285,422,121
May-06 286,759,409
Jun-06 288,034,457
Jul-06 289,251,356
Aug-06 290,409,950
Sep-06 291,514,734
Oct-06 292,568,743
Nov-06 293,573,266
Dec-06 294,535,069
Jan-07 295,461,342
Feb-07 296,340,752
Mar-07 297,169,069
Apr-07 297,949,852
May-07 298,685,706
Jun-07 299,373,348
Jul-07 300,010,525
Aug-07 300,595,606
Sep-07 301,095,365
Oct-07 301,510,596
Nov-07 301,861,569
Dec-07 302,164,659
Jan-08 302,413,394
Feb-08 302,613,042
Mar-08 302,806,175
Apr-08 302,995,237
May-08 303,168,929
Jun-08 303,315,327
Jul-08 303,445,558
Aug-08 303,555,286
Sep-08 303,634,126
Oct-08 303,705,254
Nov-08 303,756,967
Dec-08 303,792,677
Jan-09 303,819,546
Feb-09 303,840,179
Mar-09 303,849,670
SCHEDULE B
First Level Net Loss Ratio Trigger Amounts
Apr-03 6.96%
May-03 7.09%
Jun-03 7.25%
Jul-03 7.35%
Aug-03 7.42%
Sep-03 7.34%
Oct-03 7.14%
Nov-03 7.04%
Dec-03 6.80%
Jan-04 6.62%
Feb-04 6.59%
Mar-04 6.51%
Apr-04 5.70%
May-04 5.69%
Jun-04 5.68%
Jul-04 5.66%
Aug-04 5.64%
Sep-04 5.72%
Oct-04 5.79%
Nov-04 5.87%
Dec-04 5.95%
Jan-05 6.03%
Feb-05 6.11%
Mar-05 6.20%
Apr-05 6.28%
May-05 6.37%
Jun-05 6.45%
Jul-05 6.54%
Aug-05 6.63%
Sep-05 6.72%
Oct-05 6.81%
Nov-05 6.90%
Dec-05 6.99%
Jan-06 7.09%
Feb-06 7.20%
Mar-06 7.32%
Apr-06 7.46%
May-06 7.61%
Jun-06 7.79%
Jul-06 8.00%
Aug-06 8.24%
Sep-06 8.52%
Oct-06 8.84%
Nov-06 9.21%
Dec-06 9.63%
Jan-07 10.13%
Feb-07 10.69%
Mar-07 11.31%
Apr-07 12.00%
May-07 12.78%
Jun-07 13.64%
Jul-07 14.58%
Aug-07 15.62%
Sep-07 16.63%
Oct-07 17.55%
Nov-07 18.44%
Dec-07 19.32%
Jan-08 20.12%
Feb-08 20.79%
Mar-08 21.75%
Apr-08 23.11%
May-08 24.82%
Jun-08 26.72%
Jul-08 29.13%
Aug-08 32.06%
Sep-08 35.08%
Oct-08 39.73%
Nov-08 45.29%
Dec-08 51.85%
Jan-09 61.19%
Feb-09 75.48%
Mar-09 87.51%
SCHEDULE C
Second Level Cumulative Net Loss Trigger Amounts
Apr-03 156,087,927
May-03 164,140,418
Jun-03 171,998,237
Jul-03 179,654,353
Aug-03 187,103,511
Sep-03 193,085,751
Oct-03 198,888,985
Nov-03 204,511,672
Dec-03 209,953,665
Jan-04 215,215,438
Feb-04 220,297,574
Mar-04 225,201,328
Apr-04 229,929,729
May-04 234,485,079
Jun-04 238,869,872
Jul-04 243,087,368
Aug-04 247,141,586
Sep-04 251,036,585
Oct-04 254,776,158
Nov-04 258,364,656
Dec-04 261,805,641
Jan-05 265,091,641
Feb-05 268,229,316
Mar-05 271,216,105
Apr-05 274,063,748
May-05 276,773,436
Jun-05 279,337,546
Jul-05 281,772,261
Aug-05 284,081,883
Sep-05 286,254,113
Oct-05 288,298,768
Nov-05 290,226,238
Dec-05 292,045,119
Jan-06 293,761,237
Feb-06 295,384,242
Mar-06 296,925,427
Apr-06 298,395,854
May-06 299,793,927
Jun-06 301,126,933
Jul-06 302,399,145
Aug-06 303,610,403
Sep-06 304,765,404
Oct-06 305,867,323
Nov-06 306,917,505
Dec-06 307,923,027
Jan-07 308,891,403
Feb-07 309,810,786
Mar-07 310,676,754
Apr-07 311,493,027
May-07 312,262,329
Jun-07 312,981,227
Jul-07 313,647,367
Aug-07 314,259,042
Sep-07 314,781,518
Oct-07 315,215,624
Nov-07 315,582,549
Dec-07 315,899,416
Jan-08 316,159,457
Feb-08 316,368,180
Mar-08 316,570,092
Apr-08 316,767,747
May-08 316,949,335
Jun-08 317,102,388
Jul-08 317,238,538
Aug-08 317,353,254
Sep-08 317,435,677
Oct-08 317,510,038
Nov-08 317,564,102
Dec-08 317,601,435
Jan-09 317,629,525
Feb-09 317,651,096
Mar-09 317,661,019
SCHEDULE D
Second Level Net Loss Ratio Trigger Amounts
Apr-03 7.28%
May-03 7.41%
Jun-03 7.58%
Jul-03 7.68%
Aug-03 7.76%
Sep-03 7.67%
Oct-03 7.47%
Nov-03 7.36%
Dec-03 7.11%
Jan-04 6.92%
Feb-04 6.89%
Mar-04 6.81%
Apr-04 5.95%
May-04 5.95%
Jun-04 5.93%
Jul-04 5.92%
Aug-04 5.90%
Sep-04 5.98%
Oct-04 6.06%
Nov-04 6.14%
Dec-04 6.22%
Jan-05 6.31%
Feb-05 6.39%
Mar-05 6.48%
Apr-05 6.57%
May-05 6.66%
Jun-05 6.75%
Jul-05 6.84%
Aug-05 6.93%
Sep-05 7.03%
Oct-05 7.12%
Nov-05 7.21%
Dec-05 7.31%
Jan-06 7.41%
Feb-06 7.52%
Mar-06 7.65%
Apr-06 7.79%
May-06 7.96%
Jun-06 8.15%
Jul-06 8.37%
Aug-06 8.62%
Sep-06 8.91%
Oct-06 9.24%
Nov-06 9.63%
Dec-06 10.07%
Jan-07 10.59%
Feb-07 11.18%
Mar-07 11.83%
Apr-07 12.55%
May-07 13.36%
Jun-07 14.26%
Jul-07 15.25%
Aug-07 16.33%
Sep-07 17.38%
Oct-07 18.35%
Nov-07 19.27%
Dec-07 20.20%
Jan-08 21.03%
Feb-08 21.74%
Mar-08 22.74%
Apr-08 24.17%
May-08 25.95%
Jun-08 27.93%
Jul-08 30.45%
Aug-08 33.52%
Sep-08 36.67%
Oct-08 41.54%
Nov-08 47.35%
Dec-08 54.20%
Jan-09 63.97%
Feb-09 78.91%
Mar-09 91.49%