EXHIBIT 4.1
TRUST AND SERVICING AGREEMENT
by and among
UNITED FIDELITY FINANCE, LLC,
as Seller
UNITED FIDELITY BANK, FSB,
as Servicer
and
-----------------------------------,
as Owner Trustee
Dated as of ____________, 2001
UNITED FIDELITY AUTO TRUST 2001-A
TABLE OF CONTENTS
Page
ARTICLE I
CREATION OF TRUST........................................................................................1
SECTION 1.01. Name......................................................................................1
SECTION 1.02. Office....................................................................................1
SECTION 1.03. Purposes and Powers.......................................................................1
SECTION 1.04. Appointment of Owner Trustee..............................................................2
SECTION 1.05. Initial Capital Contribution of Trust Estate..............................................2
SECTION 1.06. Declaration of Trust......................................................................2
SECTION 1.07. Title to Trust Property...................................................................3
SECTION 1.08. Situs of Trust............................................................................3
ARTICLE II
DEFINITIONS..............................................................................................3
SECTION 2.01. Definitions...............................................................................3
SECTION 2.02. Usage of Terms...........................................................................13
SECTION 2.03. Closing Date and Record Date.............................................................13
SECTION 2.04. Section References.......................................................................13
ARTICLE III
CONVEYANCE OF RECEIVABLES ..............................................................................13
ARTICLE IV
ACCEPTANCE BY TRUSTEE...................................................................................14
ARTICLE V
INFORMATION DELIVERED TO THE RATING AGENCIES............................................................15
ARTICLE VI
AGENT FOR SERVICE.......................................................................................15
ARTICLE VII
THE RECEIVABLES.........................................................................................16
SECTION 7.01. Representations and Warranties of Seller.................................................16
SECTION 7.02. Repurchase Upon Breach...................................................................16
SECTION 7.03. Custody of Receivable Files..............................................................17
SECTION 7.04. Duties of Servicer as Custodian..........................................................17
SECTION 7.05. Instructions; Authority to Act...........................................................18
SECTION 7.06. Custodian's Indemnification..............................................................18
SECTION 7.07. Effective Period and Termination.........................................................18
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ARTICLE VIII
ADMINISTRATION AND SERVICING OF RECEIVABLES ............................................................19
SECTION 8.01. Duties of Servicer.......................................................................19
SECTION 8.02. Collection of Receivable Payments........................................................19
SECTION 8.03. Realization Upon Receivables.............................................................20
SECTION 8.04. Physical Damage Insurance................................................................20
SECTION 8.05. Maintenance of Security Interests in Financed Vehicles...................................20
SECTION 8.06. Covenants of Servicer....................................................................21
SECTION 8.07. Purchase of Receivables Upon Breach......................................................21
SECTION 8.08. Servicing Fee............................................................................21
SECTION 8.09. Servicer's Certificate...................................................................22
SECTION 8.10. Annual Statement as to Compliance; Notice of Default.....................................22
SECTION 8.11. Annual Independent Certified Public Accountant's Report..................................23
SECTION 8.12. Access to Certain Documentation and Information Regarding
Receivables..............................................................................23
SECTION 8.13. Servicer Expenses........................................................................23
SECTION 8.14. Reports to Noteholders...................................................................23
ARTICLE IX
COLLECTIONS; DISTRIBUTIONS TO NOTEHOLDERS AND
CERTIFICATEHOLDER.......................................................................................24
SECTION 9.01. Collection Account.......................................................................24
SECTION 9.02. Collections..............................................................................24
SECTION 9.03. Purchase Amounts.........................................................................25
SECTION 9.04. Application of Funds.....................................................................25
SECTION 9.05. Advances.................................................................................26
SECTION 9.06. Net Deposits.............................................................................27
SECTION 9.07. No Segregation of Moneys; No Interest....................................................27
SECTION 9.08. Accounting and Reports to the Certificateholder, the Internal Revenue
Service and Others.......................................................................27
ARTICLE X
THE CERTIFICATE.........................................................................................28
SECTION 10.01. The Certificate.........................................................................28
SECTION 10.02. Authentication of Certificate...........................................................28
SECTION 10.03. Registration of Transfer and Exchange of Certificate....................................28
SECTION 10.04. Mutilated, Destroyed, Lost, or Stolen Certificates......................................29
ARTICLE XI
THE SELLER .............................................................................................30
SECTION 11.01. Representations and Undertakings of Seller..............................................30
SECTION 11.02. Liability of Seller; Indemnities........................................................32
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SECTION 11.03. Merger or Consolidation of, or Assumption of the Obligations
of Seller...............................................................................33
SECTION 11.04. Limitation on Liability of Seller and Others............................................34
ARTICLE XII
THE SERVICER............................................................................................34
SECTION 12.01. Representations of Servicer.............................................................34
SECTION 12.02. Indemnities of Servicer.................................................................35
SECTION 12.03. Merger or Consolidation of, or Assumption of the Obligations of
Servicer................................................................................37
SECTION 12.04. Limitation on Liability of Servicer and Others..........................................37
SECTION 12.05. Servicer Not to Resign..................................................................38
SECTION 12.06. Delegation of Duties....................................................................38
ARTICLE XIII
SERVICER DEFAULT........................................................................................38
SECTION 13.01. Events of Servicer Default..............................................................38
SECTION 13.02. Appointment of Successor................................................................40
SECTION 13.03. Notice of Events of Servicer Default....................................................41
SECTION 13.04. Waiver of Past Defaults.................................................................41
ARTICLE XIV
THE OWNER TRUSTEE.......................................................................................41
SECTION 14.01. Duties of Owner Trustee.................................................................41
SECTION 14.02. Owner Trustee's Certificate.............................................................44
SECTION 14.03. Trust's Assignment of Purchased Receivables.............................................44
SECTION 14.04. Certain Matters Affecting the Owner Trustee.............................................44
SECTION 14.05. Owner Trustee Not Liable for Certificate or Receivables.................................46
SECTION 14.06. Owner Trustee May Own Notes.............................................................47
SECTION 14.07. Owner Trustee's and Indenture Trustee's Fees and Expenses;
Indemnification.........................................................................47
SECTION 14.08. Eligibility Requirements for Owner Trustee..............................................48
SECTION 14.09. Resignation or Removal of Owner Trustee.................................................48
SECTION 14.10. Successor Owner Trustee.................................................................49
SECTION 14.11. Merger or Consolidation of Owner Trustee................................................49
SECTION 14.12. Appointment of Co-Trustee or Separate Owner Trustee.....................................49
SECTION 14.13. Representations and Warranties of Owner Trustee.........................................51
ARTICLE XV
TERMINATION.............................................................................................51
SECTION 15.01. Termination of the Trust................................................................51
SECTION 15.02. Optional Disposition of All Receivables.................................................52
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ARTICLE XVI
MISCELLANEOUS PROVISIONS................................................................................52
SECTION 16.01. Amendment...............................................................................52
SECTION 16.02. Protection of Title to Trust............................................................54
SECTION 16.03. Limitation on Rights of Certificateholder...............................................55
SECTION 16.04. Governing Law...........................................................................56
SECTION 16.05. Notices.................................................................................56
SECTION 16.06. Severability of Provisions..............................................................56
SECTION 16.07. Assignment..............................................................................57
SECTION 16.08. Certificate Nonassessable and Fully Paid................................................57
SECTION 16.09. Noncompetition Covenants................................................................57
SECTION 16.10. Counterparts............................................................................57
SECTION 16.11. Third Party Beneficiary.................................................................57
EXHIBIT 1 - Owner Trustee's Certificate Pursuant to Section 14.02
EXHIBIT 2 - Owner Trustee's Certificate Pursuant to Section 14.02
EXHIBIT 3 - Servicer's Certificate
EXHIBIT A - Form of Certificate of Trust
EXHIBIT B - Form of Certificate
SCHEDULE A - Schedule of Receivables
SCHEDULE B - Location of Receivables
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TRUST AND SERVICING AGREEMENT
This TRUST AND SERVICING AGREEMENT, dated as of ____________, 2001, is made
with respect to the formation of the UNITED FIDELITY AUTO TRUST 2001-A, by and
among UNITED FIDELITY FINANCE, LLC, a Delaware limited liability company, as
depositor (the "Seller"), UNITED FIDELITY BANK, FSB, a federally-chartered
savings association, as servicer (the "Servicer"), and
____________________________________, a national banking corporation with its
principal place of business in the State of ____________, as owner trustee (the
"Owner Trustee").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
CREATION OF TRUST
Upon the execution of this Agreement by the parties hereto and the prompt
filing thereafter of the Certificate of Trust in the State of Delaware, there is
hereby created the United Fidelity Auto Trust 2001-A.
SECTION 1.01. Name. The Trust created hereby shall be known as "United
Fidelity Auto Trust 2001-A", in which name the Owner Trustee may conduct the
business and affairs of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued on behalf of the Trust.
The Trust shall constitute a business trust within the meaning of Section
3801(a) of the Delaware Business Trust Act for which the Owner Trustee has filed
a certificate of trust with the Secretary of State of the State of Delaware
pursuant to Section 3810(a) of the Delaware Business Trust Act.
SECTION 1.02. Office. The office of the Trust shall be in care of the Owner
Trustee at its Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificateholder, the Servicer,
the Seller, the Insurer and the Indenture Trustee.
SECTION 1.03. Purposes and Powers. The purpose of the Trust is to engage in
the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificate pursuant to this Agreement and to sell or transfer the
Notes and the Certificate in one or more transactions;
(ii) with the proceeds of the sale of the Notes and the
Certificate, to purchase the Receivables pursuant to this Agreement;
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(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholder pursuant to the terms of this
Agreement any portion of the Trust estate released from the Lien of,
and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the related
documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the related documents, to engage
in such other activities as may be required in connection with
conservation of the Trust estate and the making of distributions to
the Certificateholder, the Noteholders and the others specified in
this Agreement.
The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized
by the terms of this Agreement or the other Basic Documents.
SECTION 1.04. Appointment of Owner Trustee. The Seller hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein and in the Delaware Business
Trust Act.
SECTION 1.05. Initial Capital Contribution of Trust Estate. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Trust, as of the
date hereof, the Trust estate. The Owner Trustee on behalf of the Trust hereby
acknowledges receipt in trust from the Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust estate. The
Seller shall pay the organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 1.06. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Trust estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholder, subject to the
obligations of the Trust under the other related documents. It is the intention
of the parties hereto that the Trust constitute a business trust under the
Delaware Business Trust Act and that this Agreement constitute the governing
instrument of such Trust. Furthermore, it is the intention of the parties hereto
that, solely for federal, state and local income and franchise tax purposes (i)
so long as there is a sole Certificateholder, the Trust shall be disregarded as
a separate entity, with the assets of the Trust being treated as the assets of
such sole Certificateholder, and the Notes being non-recourse debt of the sole
Certificateholder, and (ii) if
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there is more than one Certificateholder, the Trust shall be treated as a
partnership, with the assets of the partnership being the Trust estate, the
partners of the partnership being the Certificateholders and the Notes being
non-recourse debt of the partnership. The Trust shall not elect to be treated as
an association under Treasury Regulations Section 301.7701-3(a) for federal
income tax purposes. The parties agree that, unless otherwise required by
appropriate tax authorities, the sole Certificateholder or the Administrator on
behalf of the Trust will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Trust as provided in the second preceding sentence for such tax purposes. The
Owner Trustee, the Seller as the initial Certificateholder and each successor
Certificateholder (as a condition to acquiring its Certificate) agree to
disregard the trust as a separate entity (if there is one Certificateholder) or
to treat it as a partnership (if there are two or more Certificateholders) and
to treat the Notes as indebtedness for purposes of federal, state, and local
income or franchise taxes.
SECTION 1.07. Title to Trust Property. Legal title to all of the Trust
estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 1.08. Situs of Trust. The Trust will be located and administered in
the State of Delaware. Any bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware.
ARTICLE II
DEFINITIONS
SECTION 2.01. Definitions. Capitalized terms which are used in this
Agreement but are not defined herein shall have the meanings provided in the
Indenture. Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Accrued Interest" means all interest accrued on the Receivables prior to
the opening of business on the day following the Cutoff Date.
"Administration Agreement" means the Administration Agreement dated as of
____________, between the Trust and the Administrator and acknowledged by the
Indenture Trustee.
"Administrator" means the Administrator under the Administration Agreement,
which is initially __________, and its successors and assigns thereunder.
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"Advance" means, with respect to a Receivable and with respect to a
Collection Period, the amount that the Servicer is required to advance pursuant
to Section 9.05.
"Agreement" means this Trust and Servicing Agreement executed by the
Seller, the Servicer and the Owner Trustee, and all amendments and supplements
thereto.
"Amount Financed" means, with respect to a Receivable, the amount advanced
under the Receivable toward the purchase price of the Financed Vehicle and any
related costs.
"Approved Rating" means a short-term rating of _____ by __________ and
_____ by _________.
"Authorized Newspaper" means a newspaper of general circulation in the
Borough of Manhattan, the City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Available Funds" means the amount defined as such in Section 9.04(a)(i).
"Available Spread Amount" means, on any Payment Date, the amount on deposit
in the Spread Account, including any income or gain from any investment of funds
in the Spread Account, net of any losses from such investment before giving
effect to deposits into or withdrawals from the Spread Account on such Payment
Date pursuant to Article IX of the Indenture.
"Basic Documents" has the meaning provided in the Indenture.
"Business Day" means, unless otherwise specified, any day other than a
Saturday, a Sunday or a day on which banking institutions in Wilmington,
Delaware, Chicago, Illinois or New York, New York (or, if the Servicer has
provided prior written notice to each of the Owner Trustee, the Indenture
Trustee and the Insurer that such day is not a Business Day, in Indianapolis,
Indiana) shall be authorized or obligated by law, executive order, or
governmental decree to be closed.
"Certificate" means a certificate executed on behalf of the Trust and
authenticated by the Owner Trustee substantially in the form attached hereto as
Exhibit B, which represents ownership of a 100% interest in the Trust.
"Certificate of Trust" means the Certificate of Trust of the Trust in
substantially the form of Exhibit A hereto.
"Certificate Register" means the register maintained by the Owner Trustee
pursuant to Section 10.03.
"Certificateholder" or "Holder" means the Person in whose name the
Certificate shall be registered in the Certificate Register.
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"Closing Date" means ____________.
"Collected Interest" on a Receivable, as of the last day of a Collection
Period, means the portion of all payments received by the Servicer allocable to
interest relating to such Collection Period.
"Collected Principal" on a Receivable, as of the last day of a Collection
Period, means the portion of all payments received by the Servicer allocable to
principal relating to such Collection Period.
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 9.01.
"Collection Period" means (i) initially, the period from the day after the
Cutoff Date to the end of the calendar month of ____________, and (ii)
thereafter, each calendar month, until the Trust shall terminate pursuant to
Article XV.
"Consolidated Net Income" means, for any period, the consolidated net
income of __________ and its subsidiaries determined in accordance with GAAP
and, with respect to Consolidated Net Income for any fiscal year, as reported in
__________'s audited consolidated financial statements.
"Consolidated Tangible Net Worth" means the excess, if any, of the
consolidated assets of United Fidelity and its subsidiaries over the
consolidated liabilities of __________ and its subsidiaries less any goodwill,
trade names, trademarks, patents, unamortized debt discount and expense, and
other intangibles, except that dealer premium rebates and excess servicing shall
not be so deducted, determined in accordance with GAAP.
"Contract Rate" means, with respect to a Receivable, the contract rate of
interest on such Receivable, exclusive of prepaid finance charges.
"Corporate Trust Office" means the office of the Owner Trustee at which its
corporate trust business shall, at any particular time, be administered, which
office at the date of the execution of this Agreement is located at
_____________________________________________ or at such other address as the
Owner Trustee may designate from time to time by notice to the
Certificateholder, the Seller, the Servicer and the Indenture Trustee.
"Cutoff Date" means ____________.
"Dealer" means the seller of a Financed Vehicle, who originated and
assigned the related Receivable to United Fidelity under an existing agreement
with United Fidelity or who arranged for a loan from United Fidelity to the
purchaser of a Financed Vehicle under an existing agreement with United
Fidelity.
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"Defaulted Receivable" means, for any Collection Period, a Receivable as to
which the earliest to occur of any of the following has occurred: (i) any
payment, or part thereof, in excess of $10.00 was delinquent 120 days or more as
of the last day of such Collection Period, (ii) the Financed Vehicle that
secures the Receivable has been repossessed, or (iii) the Servicer has
determined that the Receivable is uncollectible in accordance with the
Servicer's customary practices on or before the last day of such Collection
Period; provided, however, that "Defaulted Receivable" shall not include any
Receivable that is to be repurchased pursuant to Section 7.02 or purchased
pursuant to Section 8.07; provided further, that any Advances made with respect
to a Receivable shall not be considered in the determination of the delinquency
status of such Receivable.
"Delaware Business Trust Act" means the Delaware Business Trust Act, 12
Del. C.ss.3801 et seq.
"Determination Date" means, for each Collection Period, the second Business
Day prior to the related Payment Date.
"Dissolution Payment Date" means the Payment Date following the liquidation
of the Trust corpus pursuant to Section 15.02.
"Eligible Bank" means any depository institution with trust powers
(including the Owner Trustee and the Indenture Trustee), organized under the
laws of the United States or any State having a net worth in excess of
$50,000,000, the deposits of which are insured to the full extent permitted by
law by the Federal Deposit Insurance Corporation, which is subject to
supervision and examination by Federal or State authorities and which (i) has a
long-term unsecured debt rating of at least _____ from __________ or (ii) is
approved by each Rating Agency.
"Eligible Investment" means any of the following:
(i) direct obligations of, and obligations the full and timely payment
of principal and interest on which is fully guaranteed by, the United
States of America, the Federal National Mortgage Association, or any agency
or instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(ii) (A) demand and time deposits in, certificates of deposits of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Owner Trustee, the Indenture
Trustee or any of their agents, acting in their respective commercial
capacities) incorporated under the laws of the United States of America,
any State thereof or the District of Columbia or any foreign depository
institution with a branch or agency licensed under the laws of the United
States of America or any State, in each case subject to supervision and
examination by Federal and/or State banking authorities and having an
Approved Rating at the time of such investment or contractual commitment
providing for such
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investment or (B) any other demand or time deposit or certificate of
deposit which is fully insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
in either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii) (A) above;
(iv) short-term securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United States
of America or any State the short-term unsecured obligations of which have
an Approved Rating at the time of such investment; provided, however, that
securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation and
held as part of the corpus of the Trust to exceed 10% of amounts held in
the Collection Account;
(v) commercial paper having an Approved Rating at the time of such
investment;
(vi) a guaranteed investment contract issued by any insurance company
or other corporation acceptable to the Rating Agencies, provided that the
Owner Trustee or the Indenture Trustee shall have received written notice
from the Rating Agencies to the effect that the investment of funds in such
a contract will not result in the reduction or withdrawal of any rating on
the Notes;
(vii) interests in any money market fund having a rating of _____ by
__________ or _____ by __________ (including the money market funds of the
Owner Trustee and the Indenture Trustee in their commercial capacities);
and
(viii) any other investment approved in advance in writing by the
Rating Agencies and the Insurer.
"Event of Servicer Default" means an event specified in Section 13.01.
"Financed Vehicle" means a new or used automobile, light truck or van,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements that are
described in Statement on Auditing Standards No. 69 "The Meaning
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of Present Fairly in Conformity With Generally Accepted Accounting Principles in
the Independent Auditor's Report" that are applicable to the circumstances as of
the date of determination, applied on a consistent basis.
"Holder" -- see "Certificateholder."
"Indenture" means the Indenture dated as of ____________________, between
the Trust and ____________________, as Indenture Trustee, which provides for the
issuance of the Notes.
"Indenture Trustee" means ___________________, a ____________ banking
corporation, in its role as Indenture Trustee under the Indenture, and its
permitted successors and assigns.
"Indenture Trustee Office" means the office of the Indenture Trustee at
which its business as Indenture Trustee under the Indenture shall be
administered, which office is presently located at
____________________________________________________________ or at such other
address as the Indenture Trustee may designate from time to time by notice to
the Owner Trustee, the Servicer and the Noteholders.
"Insolvency Event" with respect to a party means (i) the entry of a decree
or order by a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a trustee-in-bankruptcy or similar official
for such party in any insolvency, readjustment of debt, marshalling of assets
and liabilities, or similar proceedings, or for the winding up or liquidation of
their respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or (ii) the consent
by such party to the appointment of a trustee-in-bankruptcy or similar official
in any insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to such party or of or relating to
substantially all of its property; or (iii) such party shall admit in writing
its inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment of
its obligations.
"Insolvency Proceeding" means the commencement, after the date hereof, of
any bankruptcy, insolvency, readjustment of debt, reorganization, marshaling of
assets and liabilities or similar proceedings by or against United Fidelity or
the Seller, the commencement, after the date hereof, of any proceedings by or
against United Fidelity or the Seller for the winding up or liquidation of its
affairs or the consent, after the date hereof, to the appointment of a trustee,
conservator, receiver, or liquidator in any bankruptcy, insolvency, readjustment
of debt, reorganization, marshaling of assets and liabilities or similar
proceedings of or relating to United Fidelity or the Seller.
"Insurance Agreement" means the Insurance and Reimbursement Agreement,
dated as of the Closing Date, among the Trust, the Seller, United Fidelity
individually and as Servicer, and the Insurer pursuant to which the Insurer
issued the Policy.
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"Insurer" means ________________________, a ____________ domiciled
insurance company.
Insurer Default" has the meaning specified in the Indenture.
"Interest Advance Amount" with respect to a simple interest Receivable as
to which an Advance is required to be made on the last day of a Collection
Period, shall mean an amount equal to 30 days of interest upon the Principal
Balance of such Receivable as of such date.
"Interest Shortfall" means, as to any simple interest Receivable as of the
last day of any Collection Period, the amount, if any, by which (a) interest due
on such Receivable exceeds (b) the Collected Interest on such Receivable.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than tax liens, mechanics' liens, and any liens
which attach to the respective Receivable or related Financed Vehicle by
operation of law.
"Liquidation Proceeds" means the monies collected from whatever source,
including insurance proceeds, on Defaulted Receivables, net of the sum of any
amounts expended by the Servicer for the account of the Obligor plus any amounts
required by law to be remitted to the Obligor. "Liquidation Proceeds" with
respect to a Payment Date means such monies collected during the preceding
Collection Period. In no event shall Liquidation Proceeds be less than zero.
"Monthly Interest" means the amount of interest which is payable to the
Noteholders on any Payment Date pursuant to the terms of the Indenture.
"Monthly Principal" means the amount of principal which is payable to the
Noteholders on any Payment Date pursuant to the terms of the Indenture.
"Monthly Servicing Fee" means, (i) for the first Payment Date, the product
of the following: the (a) monthly Servicing Rate (b) the number of days from and
including the Closing Date to the end of the first Collection Period, assuming
the month of the Closing Date is a 30-day month, divided by 30 and (c) the
Original Pool Balance and (ii) for any subsequent Payment Date, the product of
(a) the Pool Balance as of the beginning of the related Collection Period and
(b) the monthly Servicing Rate.
"Notes" has the meaning specified in the Indenture.
"Noteholders" has the meaning specified in the Indenture.
"Obligor" on a Receivable means the purchaser or the co-purchasers of the
Financed Vehicle or any other Person who owes payments under the Receivable. The
phrase "payment made on behalf
9
of an Obligor" shall mean all payments made with respect to a Receivable except
payments made by United Fidelity, the Seller or the Servicer.
"Officers' Certificate" means a certificate signed by any two of the
chairman of the board, the president, any vice chairman of the board, any vice
president, the treasurer, or the controller of United Fidelity, the Seller or
the Servicer, as the case may be; provided that no individual shall sign in a
dual capacity.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Seller and/or Servicer, which counsel shall be acceptable to the Owner
Trustee.
"Optional Disposition Price" means the amount specified as such in Section
15.02.
"Original Pool Balance" means $____________.
"Outstanding Advances" as of any date, with respect to a Receivable, means
the total amount of Advances made on such Receivable for which the Servicer has
not been reimbursed.
"Owner Trustee" means _________________________________, a national banking
association with its principal place of business in the State of ____________,
acting not in its individual capacity but solely as trustee under this Agreement
and its successors or any corporation resulting from or surviving any merger or
consolidation to which it or its successors may be a party or any successor
trustee at the time serving as successor trustee hereunder.
"Owner Trustee's Certificate" means a certificate completed and executed by
the Owner Trustee by a Responsible Officer pursuant to Section 14.02,
substantially in the form of, in the case of an assignment to United Fidelity,
Exhibit 1, and in the case of an assignment to the Servicer, Exhibit 2.
"Payment Date" means, for each Collection Period, the eighth calendar day
of the month following the end of the related Collection Period or, if such day
is not a Business Day, the first Business Day thereafter. The first Payment Date
shall be ____________.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Policy" means the irrevocable Financial Guaranty Insurance Policy dated as
of the Closing Date issued by the Insurer to the Indenture Trustee for the
benefit of the Noteholders as required under the Indenture.
"Pool Balance" as of any date means the aggregate Principal Balance of the
Receivables as of such date; provided, however, that for purposes of determining
Monthly Principal, the Principal
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Balance of a Defaulted Receivable or a Purchased Receivable (if actually
purchased by the Servicer or United Fidelity) shall be deemed to be zero on and
after the close of business on the last day of the Collection Period in which
the Receivable becomes a Defaulted Receivable or a Purchased Receivable that is
actually purchased or repurchased.
"Principal Balance" of a simple interest Receivable, as of the close of
business on the last day of a Collection Period, means the Amount Financed minus
that portion of all payments received on or before the close of business on such
last day allocable to principal of such Receivable.
"Purchase Agreement" means the Purchase Agreement dated as of the date
hereof by and among the Seller and United Fidelity, as amended, supplemented or
modified from time to time pursuant to which the Seller purchases Receivables
which have been or shall be transferred to the Trust.
"Purchase Amount" of any Receivable, as of the close of business on the
last day of any Collection Period, means the amount equal to the sum of the
Principal Balance of such Receivable plus any unpaid interest accrued and due
during or prior to such Collection Period on such Receivable.
"Purchased Receivable" means a Receivable purchased by the Servicer
pursuant to Section 8.07 or repurchased by United Fidelity pursuant to Section
7.02 not later than the respective dates required thereby.
"Rating Agency" means each of _______________ and their successors and
assigns.
"Rating Agency Condition" has the meaning specified in the Indenture.
"Receivable" means any simple interest installment sales contract or
installment loan and security agreement which shall appear on Schedule A to the
Agreement.
"Receivable Files" means the documents specified in Section 7.03.
"Receivables" or "Receivables Pool" means those Receivables conveyed to the
Trust by the Seller listed as of the Cutoff Date in Schedule A.
"Record Date" has the meaning specified in the Indenture.
"Recoveries of Advances" means, for any Collection Period, all payments
received by the Servicer by or on behalf of Obligors (other than Obligors with
respect to Defaulted Receivables and excluding reimbursements of Outstanding
Advances on Defaulted Receivables pursuant to Section 9.05 hereof and Section
9.04(a)(i) of the Indenture) during such Collection Period representing
recoveries of Interest Shortfalls for which Advances were made for prior
Collection Periods.
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"Responsible Officer" means, when used with respect to the Owner Trustee,
any officer within the Corporate Trust Office (or any successor group of the
Owner Trustee) including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Owner Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Scheduled Payment" on a Receivable means that portion of the payment
required to be made by the Obligor during the respective Collection Period
sufficient to amortize the Principal Balance and to provide interest at the
Contract Rate.
"Secured Parties" means each of the Indenture Trustee, the Noteholders and
the Insurer pursuant to the Indenture.
"Seller" means United Fidelity Finance, LLC, a Delaware limited liability
company, in its capacity as the seller of the Receivables under this Agreement,
and each successor to United Fidelity Finance, LLC (in the same capacity)
pursuant to Section 11.03.
"Servicer" means United Fidelity Bank, FSB, a federally-chartered savings
association, in its capacity as the servicer of the Receivables and each
successor to United Fidelity Bank, FSB (in the same capacity) pursuant to
Section 12.03 or 13.02.
"Servicer's Certificate" means a certificate completed and executed by an
officer of the Servicer pursuant to Section 8.09.
"Servicing Rate" means _______% per annum, payable monthly at one-twelfth
of the annual rate, subject to adjustment with respect to a successor Servicer
pursuant to Section 13.02.
"Spread Account" means the account designated as such, established and
maintained pursuant to the Indenture.
"State" means (i) any state of the United States of America or (ii) the
District of Columbia.
"Stated Final Payment Date" means ____________.
"Trigger Event" means any of the events identified as such in Section 6.01
of the Insurance Agreement.
"Trust" means the Delaware business trust created by the Agreement, the
estate of which shall generally comprise the Receivables (other than Purchased
Receivables) and all monies paid thereon, and all monies due thereon, including
Accrued Interest, as of and after the Cutoff Date (but excluding Accrued
Interest paid on or prior to the Closing Date); security interests in the
Financed Vehicles; funds deposited in the Collection Account; all documents
contained in the Receivable
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Files; any property that shall have secured a Receivable and that shall have
been acquired by or on behalf of the Trust; any Liquidation Proceeds and any
rights of the Seller in proceeds from claims or refunds of premiums on any
physical damage, lender's single interest, credit life, disability, and
hospitalization insurance policies covering Financed Vehicles or Obligors; the
interest of the Seller in recourse to Dealers relating to certain of the
Receivables; the proceeds of the foregoing; amounts on deposit from time to time
in the Spread Account; the benefits of the Policy and certain rights of the
Seller under the Purchase Agreement.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
"United Fidelity" means United Fidelity Bank, FSB, a federally-chartered
savings association.
SECTION 2.02. Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
SECTION 2.03. Closing Date and Record Date. All references to the Record
Date prior to the first Record Date in the life of the Trust shall be to the
Closing Date.
SECTION 2.04. Section References. All section references in this Agreement
shall be to Sections in this Agreement unless otherwise specified.
ARTICLE III
CONVEYANCE OF RECEIVABLES
In consideration of the Trust's issuance of, and the Owner Trustee's
delivery to the Seller of, the Certificate and the proceeds to be realized by
the Trust from the issuance of the Notes pursuant to the Indenture, the Seller
does hereby sell, transfer, assign, and otherwise convey to the Trust, without
recourse (subject to the obligations herein):
(i) all right, title, and interest of the Seller in and to the
Receivables listed in Schedule A hereto;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables;
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(iii) any Liquidation Proceeds and any proceeds from claims or refunds
of premiums on any physical damage, lender's single interest, credit life,
disability and hospitalization insurance policies covering Financed
Vehicles or Obligors;
(iv) funds deposited in the Collection Account;
(v) the interest of the Seller in any proceeds from recourse to
Dealers relating to the Receivables;
(vi) all documents contained in the Receivable Files;
(vii) all monies paid and all monies due, including Accrued Interest,
as of and after the Cutoff Date, with respect to the Receivables held by
the Servicer or Seller (but excluding Accrued Interest paid prior to the
Closing Date);
(viii) the rights of the Seller pursuant to the Purchase Agreement to
require United Fidelity to repurchase any Receivables as to which there has
been a breach of the representations and warranties contained therein;
(ix) the benefits of the Policy; and
(x) all proceeds of the foregoing.
The Seller does hereby further assign, convey, pledge and grant a security
interest in (i) any and all other right, title and interest, including any
beneficial interest the Seller may have in the Collection Account, the Spread
Account and the funds deposited therein, and (ii) any proceeds of any of the
foregoing, to the Owner Trustee and for the benefit of the Noteholders to secure
amounts payable to Noteholders as provided under this Agreement. The Seller
acknowledges that all of the foregoing shall constitute the "Pledged Assets"
pursuant to the terms of the Indenture and the Seller hereby consents to the
pledge of all of such assets to the Indenture Trustee for the benefit of the
Secured Parties pursuant to the Indenture.
The Seller does not convey to the Trust any interest in any contracts with
Dealers related to any "dealer reserve" or any rights to the recapture of any
dealer reserve.
ARTICLE IV
ACCEPTANCE BY TRUSTEE
The Owner Trustee does hereby accept on behalf of the Trust all
consideration conveyed by the Seller pursuant to Article III, and declares that
the Owner Trustee shall hold such consideration upon the trusts herein set forth
for the benefit of all present and future Certificateholders, subject to the
terms and provisions of this Agreement.
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ARTICLE V
INFORMATION DELIVERED TO THE RATING AGENCIES
(a) The Servicer hereby expresses its intention to deliver promptly to each
Rating Agency (i) a copy of each Servicer's Certificate that it delivers to the
Owner Trustee, the Indenture Trustee and the Insurer pursuant to Section 8.09,
(ii) a copy of each annual Officers' Certificate as to compliance and any notice
of default that it delivers to the Indenture Trustee or the Owner Trustee
pursuant to Section 8.10, (iii) delinquency and loss information for the
Receivables, the amount of any draws on the Policy, written notice of any
merger, consolidation, or other succession of the Servicer, pursuant to Section
12.03, or the Seller, pursuant to Section 11.03, (iv) a copy of each amendment
to this Agreement and (v) any Opinion of Counsel delivered to the Owner Trustee
pursuant to Section 16.02(i).
(b) The Owner Trustee hereby expresses its intention to deliver promptly to
each Rating Agency (i) a copy of each annual certified public accountant's
report received by the Owner Trustee pursuant to Section 8.11, (ii) a copy of
each amendment to this Agreement and (iii) a copy of the notice of termination
of the Trust provided to the Certificateholder pursuant to Section 15.01.
(c) For purposes of delivery pursuant to paragraphs (a) and (b) of this
Article V, the addresses for the Rating Agencies are:
(d) The provisions of this Article V are included herein for convenience of
reference only and shall not be construed to be contractual undertakings or
obligations. The failure of the Servicer or the Owner Trustee to comply with any
or all of the provisions of this Article V shall not constitute an Event of
Servicer Default or a default of any kind under this Agreement or make any
remedy available to any Person.
ARTICLE VI
AGENT FOR SERVICE
The agent for service for the Seller shall be The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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The agent for service for the Servicer shall be The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
A copy of any service of process served on the Seller or the Servicer
hereunder shall also be sent to the parties to receive notices on behalf of the
Seller or Servicer, as the case may be, under Section 16.05 of this Agreement.
ARTICLE VII
THE RECEIVABLES
SECTION 7.01. Representations and Warranties of Seller. Pursuant to Article
III, the Seller has assigned to the Trust the benefit of, and its rights
respecting, the representations and warranties made to the Seller in the
Purchase Agreement as to the Receivables on which the Trust relies in accepting
the Receivables, issuing the Certificate and executing and delivering the
Indenture. The Seller agrees that the representations shall also be for the
benefit of the Secured Parties. Such representations and warranties speak as of
the execution and delivery of the Purchase Agreement but shall survive the sale,
transfer, and assignment of the Receivables to the Trust.
(a) The Seller hereby represents and warrants to the Trust that it has
entered into the Purchase Agreement with United Fidelity, that United Fidelity
has made the representations and warranties set forth therein, that such
representations and warranties run to and are for the benefit of the Seller, and
that pursuant to Article III of this Agreement the Seller has transferred and
assigned to the Trust all rights of the Seller to cause United Fidelity under
the Purchase Agreement to repurchase Receivables in the event of a breach of
such representations and warranties.
(b) It is the intention of the Seller that, other than for Federal and
applicable state and local income and franchise tax purposes, the transfer and
assignment herein contemplated, taken as a whole, constitute a sale of the
Receivables from the Seller to the Trust and that the beneficial interest in and
title to the Receivables not be part of the receivership estate in the event of
the appointment of a receiver for the Seller. No Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person other than the
Trust. Immediately prior to the transfer and assignment herein contemplated, the
Seller had good and marketable title to each Receivable free and clear of all
liens, and, immediately upon the transfer thereof, the Trust (for the benefit of
the Certificateholder and the Secured Parties pursuant to the Indenture) shall
have good and marketable title to each Receivable, free and clear of all liens
and rights of others, except for the rights of the Certificateholder and the
Insurer; and the transfer has been perfected under the UCC. On or prior to the
Closing Date, all filings (including, without limitation, UCC filings) necessary
in any jurisdiction to give the Trust a first perfected ownership interest in
the Receivables shall have been made.
SECTION 7.02. Repurchase Upon Breach. The Seller, United Fidelity, the
Servicer, or the Owner Trustee, as the case may be, shall inform the Indenture
Trustee, the Insurer and the other
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parties promptly, in writing, upon the discovery of any breach of the
representations and warranties contained in the Purchase Agreement. This
obligation shall not constitute an obligation on the part of the Owner Trustee
to actively seek to discover any such breaches. Unless the breach shall have
been cured by the second Record Date following the discovery, United Fidelity,
pursuant to its obligations under the Purchase Agreement, shall repurchase any
Receivable materially and adversely affected by the breach as of such Record
Date (or, at United Fidelity's option, the first Record Date following the
discovery). In consideration of the purchase of the Receivable, United Fidelity
shall remit the Purchase Amount, in the manner specified in Section 9.03. The
sole remedy of the Owner Trustee, the Trust, or the Indenture Trustee with
respect to a breach of the representations and warranties referred to in Section
7.01 shall be to require United Fidelity to repurchase Receivables pursuant to
the Purchase Agreement and this Section 7.02.
SECTION 7.03. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Trust, upon
the execution and delivery of the Agreement, hereby revocably appoints the
Servicer, and the Servicer hereby accepts such appointment, for the benefit of
the Trust and the Indenture Trustee, to act as the agent of the Trust as
custodian of the following documents or instruments which are hereby
constructively delivered to the Trust with respect to each Receivable:
(i) The original of the Receivable.
(ii) The original credit application fully executed by the Obligor.
(iii) The original certificate of title or such documents that the
Seller or Servicer shall keep on file, in accordance with its customary
procedures, evidencing the security interest of the Seller in the Financed
Vehicle.
(iv) Any and all other documents that the Servicer or the Seller shall
keep on file, in accordance with its customary procedures, relating to a
Receivable, an Obligor, or a Financed Vehicle.
SECTION 7.04. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian, shall hold the
Receivable Files on behalf of the Trust for the use and benefit of the Trust,
and maintain such accurate and complete accounts, records, and computer systems
pertaining to each Receivable File as shall enable the Trust to comply with this
Agreement and the other Basic Documents to which it is a party. In performing
its duties as custodian the Servicer shall act with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to the
receivable files relating to all comparable automotive receivables that the
Servicer services for itself. The Servicer shall conduct, or cause to be
conducted, periodic audits of the Receivable Files held by it under this
Agreement, and of the related accounts, records, and computer systems, in such a
manner as shall enable the Trust to verify the accuracy of the Servicer's record
keeping. The Servicer shall promptly report to
17
the Owner Trustee and the Indenture Trustee any failure on its part to hold the
Receivable Files and maintain its accounts, records, and computer systems as
herein provided and promptly take appropriate action to remedy any such failure;
provided, however, notwithstanding anything to the contrary in Section 7.03 or
this Section 7.04, the Servicer shall not be required to possess the original of
Receivables representing less than 2% of the Original Pool Balance until 30 days
following the Closing Date.
(b) Maintenance of and Access to Records. The Servicer shall maintain each
Receivable File at one of its offices specified in Schedule B to this Agreement,
or at such other office as shall be specified to the Owner Trustee and the
Indenture Trustee by prior written notice. The Servicer shall make available to
the Owner Trustee and the Indenture Trustee and their duly authorized
representatives, attorneys, or auditors a list of locations of the Receivable
Files, the Receivable Files, and the related accounts, records, and computer
systems maintained by the Servicer at such times as the Owner Trustee shall
instruct.
(c) Release of Documents. Upon instruction from the Owner Trustee, the
Servicer shall release any document in a Receivable File to the Owner Trustee,
the Owner Trustee's agent, or the Owner Trustee's designee, as the case may be,
at such place or places as the Owner Trustee may designate, as soon as
practicable.
SECTION 7.05. Instructions; Authority to Act. The Servicer shall be deemed
to have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by a Responsible Officer of the Owner
Trustee on behalf of the Trust.
SECTION 7.06. Custodian's Indemnification. The Servicer, shall indemnify
the Trust, the Owner Trustee and the Indenture Trustee (which shall include, for
purposes of this Section 7.06, their directors, officers, employees and agents)
from any and all liabilities, obligations, losses, compensatory damages,
payments, costs, or expenses of any kind whatsoever that may be imposed on,
incurred, or asserted against the Trust, the Owner Trustee or the Indenture
Trustee as the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer of the Receivable Files; provided,
however, that the Servicer shall not be liable for any portion of any such
amount resulting from the willful misfeasance, bad faith, or negligence of the
Owner Trustee or the Indenture Trustee. This indemnity shall survive the
termination of this Agreement and the resignation or removal of the Owner
Trustee or the Indenture Trustee.
SECTION 7.07. Effective Period and Termination. The Servicer's appointment
as custodian shall become effective as of the Cutoff Date and shall continue in
full force and effect until terminated pursuant to this Section 7.07. If the
Servicer shall resign in accordance with the provisions of this Agreement or if
all of the rights and obligations of the Servicer shall have been terminated
under Section 13.01, the appointment of the Servicer as custodian may be
terminated by the Trust with the consent of the Indenture Trustee and the
Insurer (so long as the Insurer is not in default of its obligations under the
Policy). In addition, the Trust may terminate the Servicer's appointment as
custodian with cause at any time upon written notification to the Servicer and
the
18
Indenture Trustee. As soon as practicable after any termination of such
appointment, the Servicer shall deliver the Receivable Files to the Indenture
Trustee or the Trust's agent at such place or places as the Owner Trustee on
behalf of the Trust, with the consent of the Insurer and the Indenture Trustee,
may reasonably designate.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 8.01. Duties of Servicer. The Servicer, for the benefit of the
Trust and the Secured Parties, shall manage, service, administer, and make
collections on the Receivables with reasonable care, using that degree of skill
and attention that the Servicer exercises with respect to all comparable
automotive receivables that it services for itself. The Servicer's duties shall
include collection and posting of all payments, making Advances (in the
Servicer's sole discretion), responding to inquiries of Obligors or of federal,
state or local governmental authorities with respect to the Receivables,
investigating delinquencies, sending payment coupons to Obligors, accounting for
collections, and furnishing monthly and annual statements to the Owner Trustee
and the Indenture Trustee with respect to distributions. The Servicer shall
follow its customary standards, policies, and procedures in performing its
duties as Servicer. Without limiting the generality of the foregoing, the
Servicer is authorized and empowered by the Trust to execute and deliver, on
behalf of itself, the Trust, the Owner Trustee, the Indenture Trustee or any of
them, any and all instruments of satisfaction or cancellation, or partial or
full release or discharge, and all other comparable instruments, with respect to
such Receivables or to the Financed Vehicles securing such Receivables. If the
Servicer shall commence a legal proceeding to enforce a Receivable or a
Defaulted Receivable, the Trust and the Indenture Trustee shall thereupon be
deemed to have automatically assigned, solely for the purpose of collection,
such Receivable to the Servicer. The Owner Trustee and the Indenture Trustee
shall execute any documents prepared by the Servicer and delivered to the Trust
for execution that are necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder.
SECTION 8.02. Collection of Receivable Payments. (a) The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of such Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all comparable
automotive receivables that it services for itself. If payments are extended in
the ordinary course of the Servicer's collection procedures, and, as a result,
any Receivable would be outstanding at the Stated Final Payment Date, then the
Servicer shall be obligated to purchase such Receivable pursuant to Section 8.07
(unless such Receivable is otherwise being purchased pursuant to Section 15.02)
as of the last day of the Collection Period immediately preceding the Stated
Final Payment Date. The Servicer may in its discretion waive any late payment
charge or any other fees that it is entitled to retain under Section 8.08, or
other fee (to the extent consistent with its credit and collection policy on the
Closing Date) that may be collected in the ordinary course of servicing a
Receivable.
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(b) All allocations of payments, with respect to a simple-interest
Receivable, to principal and interest and determinations of periodic charges and
the like shall be made using the simple interest method, based on either the
actual number of days elapsed and the actual number of days in the calendar year
or on the basis of a thirty-day month and a 360-day calendar year, as specified
in the related installment sales contract or installment loan and security
agreement. Each payment on a simple interest Receivable shall be applied first
to the amount of interest accrued on such Receivable to the date of receipt;
second, to principal due on such Receivable; third, to late charges, if any,
accrued on such Receivable; and last, to reduce the remaining principal amount
outstanding on such Receivable.
SECTION 8.03. Realization Upon Receivables. (a) On behalf of the Trust and
the Secured Parties, the Servicer shall use its best efforts, consistent with
its customary servicing procedures, to repossess or otherwise convert the
ownership of the Financed Vehicle securing any Receivable as to which the
Servicer shall have determined that eventual payment in full is unlikely. The
Servicer shall follow such customary and usual practices and procedures as it
shall deem necessary or advisable in its servicing of automotive receivables,
which may include reasonable efforts to realize upon any recourse to Dealers and
selling the Financed Vehicle at public or private sale. The foregoing shall be
subject to the provision that, in any case in which the Financed Vehicle shall
have suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession will increase the
Liquidation Proceeds. After appropriate disposition of the Financed Vehicle, the
Servicer shall also take such measures as it deems reasonable and appropriate to
realize value in respect of any deficiency balance of the Receivable including
pursuit of action on behalf of the Trust and/or the Secured Parties against the
Obligor with respect to such deficiency.
(b) Unless otherwise stated in this Agreement, the Servicer shall either
purchase or liquidate each Financed Vehicle that has not previously been
liquidated and that secures, or previously secured, a Defaulted Receivable
either (i) by the end of the Collection Period preceding the Stated Final
Payment Date or (ii) if earlier, by the end of the ninth Collection Period
following the Collection Period during which such Receivable became a Defaulted
Receivable. Any purchase of a Financed Vehicle by the Servicer shall be made at
a price equal to the fair market value of the Financed Vehicle as determined by
the Servicer in accordance with the Servicer's normal servicing standards.
SECTION 8.04. Physical Damage Insurance. The Servicer, in accordance with
its customary servicing procedures and underwriting standards, shall require
that each Obligor shall have obtained and shall maintain physical damage
insurance covering the Financed Vehicle.
SECTION 8.05. Maintenance of Security Interests in Financed Vehicles. The
Servicer shall, in accordance with its customary servicing procedures, take such
steps as are necessary to ensure that perfection of the security interest
created by each Receivable in the related Financed Vehicle has been obtained,
and to maintain such security interest. The Trust hereby authorizes the Servicer
to take such steps as are necessary to re-perfect such security interest on
behalf of the Trust
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in the event of the relocation of a Financed Vehicle or for any other reason.
Without limiting the foregoing, in the event that the Servicer consigns a
repossessed Financed Vehicle to an affiliate for liquidation, it shall take such
measures as are necessary or appropriate to maintain the security interest in
the Financed Vehicle in the hands of the consignee until such Financed Vehicle
is liquidated, including appropriate precautionary UCC-1 filings. In addition,
United Fidelity and/or such affiliate will notify such affiliate's creditors, if
any, of such consignee affiliate arrangements described above on or before such
arrangements are made.
SECTION 8.06. Covenants of Servicer. The Servicer shall not release the
Financed Vehicle securing any Receivable from the security interest granted by
such Receivable in whole or in part except in the event of payment in full by
the Obligor thereunder or repossession, nor shall the Servicer impair the rights
of the Certificateholder or the Secured Parties in the Receivables, nor shall
the Servicer change the amount of the Scheduled Payment under a Receivable or
change the Amount Financed under a Receivable or reduce the Contract Rate of a
Receivable (except if so ordered by a bankruptcy court in a proceeding
concerning the Obligor or otherwise mandated by law).
SECTION 8.07. Purchase of Receivables Upon Breach. The Servicer, the
Indenture Trustee or the Owner Trustee shall inform the other party and the
Indenture Trustee and the Insurer promptly, in writing, upon the discovery of
(i) any breach by the Servicer of its obligations under Section 8.06 or (ii) the
existence of the Servicer's obligation to purchase a Receivable pursuant to
Section 8.02(a). This obligation shall not constitute an obligation on the part
of the Owner Trustee or the Indenture Trustee to discover any such breaches or
circumstances. Unless the breach under Section 8.06 shall have been cured by the
second Record Date following the discovery, the Servicer shall purchase any
Receivable materially and adversely affected by such breach as of such day (or,
at the Servicer's election, as of the first Record Date following the
discovery). In consideration of the purchase of such Receivable, the Servicer
shall remit the Purchase Amount with respect to such Receivable in the manner
specified in Section 9.03. The sole remedy of the Owner Trustee, the Trust, or
the Secured Parties with respect to a breach pursuant to Section 8.06 or the
grant of an extension which triggers an obligation of the Servicer under Section
8.02(a) shall be to require the Servicer to purchase Receivables pursuant to
this Section 8.07, except as provided in Section 12.02.
SECTION 8.08. Servicing Fee. The servicing fee for a Collection Period
shall equal the Monthly Servicing Fee (except that in the case of a successor
Servicer, the servicing fee shall equal such amount as is arranged in accordance
with Section 13.02). The Servicer shall be entitled to retain from payments of
interest on the Receivables collected during a Collection Period an amount equal
to the Monthly Servicing Fee due the Servicer in respect of such Collection
Period and need not deposit such amount in the Collection Account. The Servicer
shall also be entitled to retain, and need not deposit in the Collection
Account, all late fees, Prepayment Charges, other administrative fees or similar
charges allowed by applicable law with respect to Receivables, if any, collected
(from whatever source) on the Receivables. The Monthly Servicing Fee will be
paid only out of the funds of the Trust and not from the Owner Trustee's own
funds. So long as United Fidelity is the Servicer, if the Servicer fails to pay
the fees and expenses of the Owner Trustee or the Indenture Trustee pursuant to
Section 14.07 hereof or pursuant to the Indenture, the Owner Trustee and
Indenture
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Trustee shall be entitled to receive such amount from the Monthly Servicing Fee
prior to payment thereof to the Servicer and the Servicer shall not retain from
collections that portion of the Monthly Servicing Fee equal to any fees of the
Owner Trustee and Indenture Trustee that are due and payable and any unpaid
amount that the Servicer has received notice is due the Owner Trustee or the
Indenture Trustee as reimbursement for expenses.
SECTION 8.09. Servicer's Certificate. On or before the Determination Date
following each Collection Period, the Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and the Insurer a Servicer's Certificate in
substantially the form of Exhibit 3 attached hereto containing all information
necessary to make the distributions pursuant to Section 8.04 of the Indenture
(so long as the Notes remain outstanding) for the Collection Period preceding
the date of such Servicer's Certificate and all information necessary for the
Indenture Trustee to send statements to the Noteholders and the Owner Trustee to
send statements to the Certificateholder, including (a) the amount of aggregate
collections on the Receivables, (b) the aggregate Purchase Amount of the
Receivables repurchased by United Fidelity and purchased by the Servicer, (c)
the amount, if any, to be withdrawn from the Spread Account and the amount, if
any, to be drawn on the Policy, (d) information respecting (i) delinquent
Receivables that are 30, 60 and 90 days past due, and (ii) the number of
repossessions of Financed Vehicles during the preceding Collection Period,
number of unliquidated repossessed Financed Vehicles, gross and net losses on
the Receivables, and recoveries on charged off Receivables; and (e) each other
item listed in Section 8.04 of the Indenture reasonably requested by a Rating
Agency, the Indenture Trustee or the Insurer in order to monitor the performance
of the Receivables. Receivables purchased by United Fidelity as of the last day
of such Collection Period shall be identified by the United Fidelity account
number with respect to such Receivable (as specified in Schedule A to this
Agreement).
SECTION 8.10. Annual Statement as to Compliance; Notice of Default. (a) The
Servicer shall deliver to the Owner Trustee, the Indenture Trustee and the
Insurer, on or before April 30 of each year, beginning on the first April 30
that is at least six months after the Closing Date, an Officers' Certificate,
dated as of December 31 of the preceding year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or in the case
of the initial Officer's Certificate, the period from the Closing Date to and
including the date of such Officer's Certificate) and of its performance under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. A
copy of such certificate and the report referred to in Section 8.11 may be
obtained by any Certificateholder at its own expense by a request in writing to
the Owner Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to a Responsible Officer of the Owner
Trustee, the Indenture Trustee and the Insurer, promptly after having obtained
knowledge thereof, but in no event later than 5 Business Days thereafter,
written notice in an Officers' Certificate of any event which with the giving of
notice or lapse of time, or both, would become an Event of Servicer Default
under
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Section 13.01. The Seller or United Fidelity shall deliver to a Responsible
Officer of the Owner Trustee, the Indenture Trustee and the Insurer, promptly
after having obtained knowledge thereof, but in no event later than 5 Business
Days thereafter, written notice in an Officers' Certificate of any event which
with the giving of notice or lapse of time, or both, would become an Event of
Servicer Default under clause (ii) of Section 13.01.
SECTION 8.11. Annual Independent Certified Public Accountant's Report. The
Servicer shall cause a firm of independent certified public accountants, who may
also render other services to the Servicer, to deliver to the Owner Trustee, the
Indenture Trustee and the Insurer on or before March 30 of each year concerning
the 12-month period ended December 31 of such year (or shorter period since the
date of this Agreement), beginning on the first December 31 following the first
March 30 after the Closing Date, a report addressed to the Board of Directors of
the Servicer to the effect that such firm has reviewed the servicing of the
Receivables by the Servicer and that such review (a) included tests relating to
new or used automobile, van and light truck loans serviced for others in
accordance with the requirements of the Uniform Single Audit Program for
Mortgage Bankers, to the extent the procedures in such program are applicable to
the servicing obligations set forth in the Agreement, and (b) except as
described in the report, disclosed no exceptions or errors in the records
relating to automobile, van or light truck loans serviced for others that, in
the firm's opinion, paragraph four of such program requires such firm to report.
The report will also indicate that the firm is independent of the Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants.
SECTION 8.12. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Owner Trustee, Indenture Trustee
and the Insurer access to the Receivables Files in such cases where such parties
shall be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer. Nothing in this Section shall affect the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of the Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section 8.12.
SECTION 8.13. Servicer Expenses. The Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of independent accountants, taxes imposed on the
Servicer, and expenses incurred in connection with regular payments and reports
to Noteholders.
SECTION 8.14. Reports to Noteholders. The Owner Trustee shall provide to
any Noteholder who so requests in writing (addressed to the Corporate Trust
Office) a copy of any certificate described in Section 8.09, the annual
statement described in Section 8.10, or the annual report described in Section
8.11. The Owner Trustee may require the requesting party to pay a reasonable sum
to cover the cost of the Owner Trustee complying with such request.
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ARTICLE IX
COLLECTIONS; DISTRIBUTIONS TO NOTEHOLDERS AND
CERTIFICATEHOLDER
SECTION 9.01. Collection Account. The Seller shall establish the Collection
Account as a segregated trust account in the name of the Trust for the benefit
of the Secured Parties with the Indenture Trustee (at the Indenture Trustee
Office) or another Eligible Bank. The Servicer shall direct the Indenture
Trustee to invest the amounts in the Collection Account in Eligible Investments
that mature not later than the Business Day prior to the next succeeding Payment
Date and to hold such Eligible Investments to maturity. The Servicer shall
instruct the Indenture Trustee (or its custodian) to and the Indenture Trustee
shall at all times (i) maintain possession of any negotiable instruments or
securities evidencing Eligible Investments until the time of sale or maturity
and each certificated security or negotiable instrument evidencing an Eligible
Investment shall be endorsed in blank or to the Indenture Trustee or registered
in the name of the Owner Trustee and (ii) cause any Eligible Investment
represented by an uncertificated security to be registered in the name of the
Indenture Trustee.
SECTION 9.02. Collections. (a) The Servicer shall remit to the Collection
Account all payments by or on behalf of the Obligors on the Receivables and all
Liquidation Proceeds, both as collected during the Collection Period net of
Monthly Servicing Fees and administrative fees allowed to be retained by the
Servicer pursuant to Section 8.08 and net of charge backs (attributable to
errors in posting, returned checks, or rights of offset for amounts that should
not have been paid or that must be refunded as the result of a successful claim
or defense under bankruptcy or similar laws) not later than the second Business
Day following the Business Day on which such amounts are received by the
Servicer. Notwithstanding the foregoing, for so long as (a) United Fidelity
remains the Servicer, (b) no Event of Servicer Default shall have occurred and
be continuing and (c)(1) United Fidelity maintains a short-term rating of at
least _____ by __________ and _____ by __________ (and for five Business Days
following a reduction in either such rating) or (2) prior to ceasing daily
remittances, the Rating Agency Condition shall have been satisfied (and any
conditions or limitations imposed by the Rating Agencies in connection therewith
are complied with) and the prior written consent of the Insurer (not to be
unreasonably withheld) shall have been obtained, the Servicer may remit all such
payments and Liquidation Proceeds with respect to any Collection Period to the
Collection Account on a less frequent basis, but in no event later than the
Determination Date immediately preceding each Payment Date. The Servicer shall
remit any Advances with respect to a Collection Period to the Collection Account
on or before the Determination Date.
(b) The Servicer, the Owner Trustee and/or Indenture Trustee shall deposit
in the Collection Account any funds received by such parties in respect of funds
drawn under the Policy from the Insurer.
(c) If the Available Funds for a Payment Date are insufficient to pay
current and past due Insurance Premiums, or any amounts owing to the Insurer
pursuant to the Insurance Agreement
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including, without limitation, reimbursements, indemnities, fees and expenses,
plus accrued interest thereon, to the Insurer, the Servicer shall notify the
Owner Trustee and the Indenture Trustee of such deficiency, and the Available
Spread Amount, if any, then on deposit in the Spread Account (after giving
effect to any withdrawal to satisfy a deficiency in Monthly Interest or Monthly
Principal) shall be available to cover such deficiency.
SECTION 9.03. Purchase Amounts. (a) Not later than the Determination Date,
the Servicer, United Fidelity or the Owner Trustee shall remit to the Collection
Account the aggregate Purchase Amount for such Collection Period pursuant to
Sections 7.02 and 8.07 and (b) not later than 11:00 a.m. (New York City time) on
the related Payment Date, the Servicer shall remit to the Collection Account the
aggregate Optional Disposition Price for Receivables on such Payment Date
pursuant to Section 15.02.
SECTION 9.04. Application of Funds. (a) On each Determination Date, the
Servicer shall determine (i) the amount of payments on all Receivables and all
Liquidation Proceeds received during such Collection Period, the amount of
Advances for such Collection Period, and the Purchase Amount for all Receivables
purchased or repurchased with respect to such Collection Period which have been
deposited in the Collection Account (excluding amounts required to be paid
pursuant to Sections 7.02, 8.07, and 9.05 but not so paid) (the "Available
Funds"), and (ii) the amount of funds necessary to make the distributions
required pursuant to Section 8.04(a)(i) through (xii) of the Indenture,
inclusive, on the next Payment Date. The Servicer shall by a Servicer's
Certificate on or before the Determination Date notify the Owner Trustee and the
Indenture Trustee of such amounts by telecopy to the Corporate Trust Office and
the Indenture Trustee Office or to such numbers as the Owner Trustee or
Indenture Trustee may from time to time provide, followed promptly by mailing
such notice to the Owner Trustee and the Indenture Trustee and to the Insurer.
(b) On any Payment Date on which there are not sufficient Available Funds
to make the distributions required pursuant to Section 8.04(a)(i) through (vi)
of the Indenture (after reducing the amount of Monthly Principal which is
payable on such date pursuant to Section 8.04(b)(i) of the Indenture), if
necessary, the Indenture Trustee may, or the Servicer on its behalf shall,
withdraw from the Spread Account, to the extent of the Available Spread Amount,
an amount equal to such deficiency and promptly deposit such amount in the
Collection Account. If such deficiency exceeds the Available Spread Amount, the
Servicer shall simultaneously and in the same manner also notify the Owner
Trustee, the Indenture Trustee and the Insurer of the amount of such excess
deficiency.
(c) On each Payment Date, the Owner Trustee shall distribute to the
Certificateholder the amount of funds on deposit in the Spread Account in excess
of the Required Spread Amount, if any, for such Payment Date, as received from
the Indenture Trustee pursuant to Section 9.02(e) of the Indenture on such
Payment Date.
(d) On each Payment Date, the Owner Trustee shall send to the
Certificateholder the Servicer's Report provided to the Owner Trustee by the
Servicer for such Payment Date.
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(e) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to the Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with this
Section 9.04. The Owner Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholder sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust to be remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee in its sole discretion may (but unless
otherwise required by law shall not be obligated to) withhold such amounts in
accordance with this paragraph (e). Upon request, any Certificateholder shall
provide its federal employer identification number or any other information or
tax forms the Owner Trustee or the Administrator may reasonably request. In the
event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
(f) Distributions required to be made to the Certificateholder on any
Payment Date shall be made to each Certificateholder of record on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor, or by check mailed to such Certificateholder at the address
of such Certificateholder appearing in the Certificate Register.
SECTION 9.05. Advances. (a) As of the last day of the initial Collection
Period, the Servicer shall advance funds equal to the excess, if any, of Monthly
Interest due in respect of the initial Collection Period, over the Collected
Interest for such Collection Period; and (b) as of the last day of each
subsequent Collection Period, the Servicer shall advance funds in the amount of
the Interest Advance Amount (or such other amount as the Servicer shall
reasonably determine to cover an Interest Shortfall) with respect to each
Receivable that is delinquent for more than 30 days, in each such case, to the
extent that the Servicer, in its sole discretion, determines that the Advance
will be recoverable from payments by or on behalf of the Obligor, the Purchase
Amount, or Liquidation Proceeds. With respect to each Receivable, the Advance
paid pursuant to this Section 9.05 shall increase Outstanding Advances.
Outstanding Advances shall be reduced by subsequent payments by or on behalf of
the Obligor, collections of Liquidation Proceeds, or payments of the Purchase
Amount. The Servicer shall remit any Advances with respect to a Collection
Period to the Collection Account by the related Determination Date.
If the Servicer shall determine that an Outstanding Advance with respect to
any Receivable shall not be recoverable, the Servicer shall be reimbursed from
any collections made on other Receivables in the Trust, and Outstanding Advances
with respect to such Receivable shall be reduced accordingly.
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SECTION 9.06. Net Deposits. For so long as United Fidelity is the Servicer,
United Fidelity (in whatever capacity) may make the remittances with respect to
any Payment Date pursuant to Section 9.02 above, net of amounts to be
distributed to itself or its delegee under Section 12.06 (also in whatever
capacity), if it determines pursuant to Section 9.02 that there is no deficiency
in Available Funds for such Payment Date. Nonetheless, the Servicer shall
account for all of the above described amounts as if such amounts were deposited
and distributed.
SECTION 9.07. No Segregation of Moneys; No Interest. Subject to Section
9.04, moneys received by the Owner Trustee hereunder need not be segregated in
any manner except to the extent required by law or this Agreement and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
SECTION 9.08. Accounting and Reports to the Certificateholder, the Internal
Revenue Service and Others. The Owner Trustee shall deliver to the
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, or as may be requested by such Certificateholder, such information,
reports or statements as may be necessary to enable the Certificateholder to
prepare its federal and state income tax returns. Consistent with the Trust's
characterization for tax purposes as a disregarded entity so long as the Seller
or any other Person is the sole beneficial owner of the Trust, no federal income
tax return shall be filed on behalf of the Trust unless either (a) the Owner
Trustee shall receive an Opinion of Counsel that, based on a change in
applicable law occurring after the date hereof, or as a result of a transfer by
a selling Certificateholder permitted by Section 10.03, the Code requires such a
filing or (b) the Internal Revenue Service shall determine that the Trust is
required to file such a return. In the event that there shall be two or more
beneficial owners of the Trust (including the treatment of any class of Notes as
a beneficial ownership in the Trust pursuant to a final determination of the
Internal Revenue Service or a court), the Owner Trustee shall inform the
Indenture Trustee in writing of such event, (i) the Administrator, on behalf of
the Trust shall prepare or shall cause to be prepared federal and, if
applicable, state or local partnership tax returns required to be filed by the
Trust (using the calendar year or its fiscal year, or such other taxable year as
may be required by the Code) and shall remit such returns to the Seller for
signature (or if the Seller no longer owns the Certificate, to the Seller to the
extent its tax liability is affected thereby and otherwise to the successor
Certificateholder owning the largest percentage interest in the Certificates) at
least five (5) days before such returns are due to be filed, and (ii) capital
accounts shall be maintained for each beneficial owner in accordance with the
Treasury Regulations under Section 704(b) of the Code reflecting each such
beneficial owner's share of the income, gains, deductions, and losses of the
Trust and/or guaranteed payments made by the Trust and contributions to, and
distributions from, the Trust. The Seller (or such successor Certificateholder,
as applicable) shall promptly sign such returns and deliver such returns after
signature to the Administrator, on behalf of the Trust and such returns shall be
filed by the Administrator, on behalf of the Trust with the appropriate tax
authorities. In the event that a "tax matters partner" (within the meaning of
Code Section 6231(a)(7)) is required to be appointed with respect to the Trust,
the Seller is hereby designated as tax matters partner or, if the Seller is not
the Certificateholder, the Seller to the extent its tax liability is affected
thereby and otherwise the successor Certificateholder owning the largest
percentage interest in the Certificates, shall be
27
designated as tax matters partner. In no event shall the Owner Trustee, the
Administrator or the Seller (or such designee Certificateholder, as applicable)
be liable for any liabilities, costs or expenses of the Trust or the Noteholders
arising out of the application of any tax law, including federal, state, foreign
or local income or excise taxes or any other tax imposed on or measured by
income (or any interest, penalty or addition with respect thereto or arising
from a failure to comply therewith) except for any such liability, cost or
expense attributable to any act or omission by the Owner Trustee, the
Administrator or the Seller (or such designee Certificateholder as applicable),
as the case may be, in breach of its obligations under this Agreement. Unless
otherwise instructed by a majority in interest of the Certificateholders, none
of the Owner Trustee, the Administrator, or the Seller shall elect, or shall
cause an election to be made on behalf of the Trust, under (i) Section 1278 of
the Code to accrue its market discount income currently or (ii) Section 754 of
the Code.
ARTICLE X
THE CERTIFICATE
SECTION 10.01. The Certificate. The Certificate shall be issued in the form
of one or more certificates and shall initially be issued to the Seller. The
Certificate shall be executed on behalf of the Trust by manual or facsimile
signature of a Responsible Officer of the Owner Trustee. A Certificate bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be a valid and binding obligation of the Trust, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificate or did not hold such
offices at the date of such Certificate.
SECTION 10.02. Authentication of Certificate. The Owner Trustee shall cause
the Certificate to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Seller, signed by its chairman of
the board, its president, or any vice president, without further corporate
action by the Seller, in authorized denominations, pursuant to this Agreement.
No Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication, substantially as set forth in the form of
Certificate attached as an exhibit to this Agreement, executed by a Responsible
Officer of the Owner Trustee by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. Each Certificate shall be dated the date
of its authentication.
SECTION 10.03. Registration of Transfer and Exchange of Certificate. The
Owner Trustee shall keep or cause to be kept, at the Corporate Trust Office, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates subject to the restrictions
provided herein.
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Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Owner Trustee shall execute, authenticate, and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Owner Trustee, provided, however, that
registration of transfer of a Certificate may not be effected unless (A) the
Owner Trustee receives an Opinion of Counsel, satisfactory to it, to the effect
that (i) such transfer may be made in reliance upon an exemption from the
registration requirements of the Securities Act of 1933, as amended, and (ii)
such transfer will not adversely affect the tax treatment of the Trust or the
Notes; (B) the Insurer has consented to such transfer and (C) the Rating Agency
Condition shall have been satisfied with respect to such transfer.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee duly executed by the Holder or his attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer and exchange shall be canceled and subsequently destroyed by the Owner
Trustee.
The Seller, as the initial Certificateholder, and each subsequent
Certificateholder by its acceptance of its Certificate, represents and warrants
to the Trust, the Owner Trustee and the Secured Parties that it is not a
"Benefit Plan" (as such term is defined in the Employee Retirement Income
Security Act of 1974, as amended) or a person who is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code and agrees to
indemnify and hold harmless the Trust, the Owner Trustee and the Secured Parties
in respect of any tax, loss, liability or expense incurred as a result of the
breach of such representation and warranty by such Certificateholder.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Owner Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of a Certificate.
SECTION 10.04. Mutilated, Destroyed, Lost, or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Owner Trustee, or if the
Owner Trustee shall receive evidence to its satisfaction of the destruction,
loss, or theft of any Certificate and (b) there shall be delivered to the Owner
Trustee such security or indemnity as may be required by it to save it harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost, or stolen Certificate, a new Certificate
of like tenor and denomination. In connection with the issuance of any new
Certificate under this Section 10.04, the Owner Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section 10.04 shall constitute conclusive evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen, or destroyed
Certificate shall be found at any time.
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ARTICLE XI
THE SELLER
SECTION 11.01. Representations and Undertakings of Seller. (a) The Seller
makes the following representations on which the Trust relies in accepting the
Receivables and executing and authenticating the Certificate and undertaking its
obligations under the Indenture. The Seller agrees that the representations and
undertakings shall also be for the benefit of the Owner Trustee and the Secured
Parties. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Trust.
(i) Organization and Good Standing. The Seller has been duly organized
and is validly existing as a limited liability company under the laws of
the State of Delaware, with power and authority to own its properties and
to conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times, and
has, power, authority, and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do business as
a foreign limited liability company, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of property or the conduct of its business requires such qualifications.
(iii) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Trust and has duly authorized such sale
and assignment to the Trust by all necessary company action; and the
execution, delivery, and performance of the Agreement has been duly
authorized by the Seller by all necessary company action.
(iv) Valid Sale; Binding Obligations. This Agreement evidences a valid
sale, transfer, and assignment of the Receivables, enforceable against
creditors of and purchasers from the Seller; and evidences a legal, valid,
and binding obligation of the Seller enforceable in accordance with its
terms.
(v) No Violation. The consummation of the transactions contemplated by
the Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
organization or operating agreement of the Seller, or any indenture,
agreement, or other instrument to which the Seller is a party or by which
it shall be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such
30
indenture, agreement, or other instrument (other than this Agreement); nor
violate any law or, to the best of the Seller's knowledge, any order, rule,
or regulation applicable to the Seller of any court or of any federal or
State regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or, to the Seller's knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties: (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, (C)
seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement, or (D) which might adversely
affect the federal income tax attributes of the Trust.
(b) The Seller further covenants that, prior to termination of the Trust:
(i) It will not engage at any time in any business or business
activity other than such activities expressly set forth in its
organizational documents delivered to the Insurer on or prior to the
Closing Date, and will not amend its organizational documents without the
prior written consent of the Insurer.
(ii) It will not, without the consent of the Insurer (not to be
unreasonably withheld), sell, assign, pledge or otherwise transfer, in
whole, or in part or in any series of related or unrelated transactions any
of its right, title or interest in or to the Certificate.
(iii) It will not:
(A) Fail to do all things necessary to maintain its corporate
existence separate and apart from United Fidelity and any other
Person, including, without limitation, holding regular meetings of its
members and board of directors and maintaining appropriate company
books and records (including a current minute book);
(B) Suffer any limitation on the authority of its own directors
or managers and officers to conduct its business and affairs in
accordance with their independent business judgment or authorize or
suffer any Person other than its own officers and directors or
managers to customarily delegated to others under powers of attorney
for which a limited liability company's own officers and directors
would customarily be responsible;
31
(C) Fail to (I) maintain or cause to be maintained by an agent of
the Seller under the Seller's control physical possession of all its
books and records, (II) maintain capitalization adequate for the
conduct of its business, (III) account for and manage all its
liabilities separately from those of any other Person, including
payment by it of all payroll, administrative expenses and taxes, if
any, from its own assets, (IV) segregate and identify separately all
of its assets from those of any other Person, (V) to the extent any
such payments are made, pay its employees, officers and agents for
services performed for the Seller or (VI) maintain a separate office
address with a separate telephone number from those of United Fidelity
or any other affiliate thereof; or
(D) Except as may be provided in this Agreement, or a similar
agreement relating to other securitizations in which the Seller has
similar rights and/or obligations, commingle its funds with those of
United Fidelity or any affiliate thereof or use its funds for other
than the Seller's uses.
SECTION 11.02. Liability of Seller; Indemnities. The Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(i) The Seller shall indemnify, defend, and hold harmless, the Owner
Trustee in its individual and trust capacities, the Indenture Trustee,
their respective officers, directors, employees and agents, the Trust and
the Noteholders from and against any taxes that may at any time be asserted
against such parties with respect to, and as of the date of, the sale of
the Receivables to the Trust or the issuance and original sale of the
Certificate and the Notes, including any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or
license taxes (but, in the case of the Trust, not including any taxes
asserted with respect to ownership of the Receivables or federal or other
income taxes arising out of distributions on the Certificate or the Notes)
and costs and expenses in defending against the same.
(ii) The Seller shall indemnify, defend, and hold harmless, the Owner
Trustee (in its individual and trust capacities), the Indenture Trustee,
their officers, directors, employees and agents and the Trust from and
against any loss, liability, or expense incurred by reason of (a) the
Seller's willful misfeasance, bad faith, or negligence in the performance
of its duties under this Agreement, or by reason of reckless disregard of
its obligations and duties under this Agreement and (b) the Seller's
violation of federal or State securities laws in connection with the
registration of the sale of the Certificate.
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Indemnification under this Section 11.02 shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. Neither the
Seller nor any of the persons indemnified under this Section 11.02 will in any
event be entitled to make any claim upon the Trust estate for the payment or
reimbursement of any losses, liabilities, taxes, costs, expenses or fees under
this Section 11.02. If the Seller shall have made any indemnity payments to the
Owner Trustee, the Indenture Trustee or the Trust pursuant to this Section and
the Owner Trustee, the Indenture Trustee or the Trust thereafter shall collect
any of such amounts from others, the Owner Trustee, the Indenture Trustee or the
Trust, as the case may be, shall repay such amounts to the Seller, without
interest. This indemnification shall survive the termination of this Agreement
and the resignation or removal of the Owner Trustee or the Indenture Trustee.
Notwithstanding the foregoing, any amounts Seller shall pay pursuant to this
Section 11.02 shall be paid solely from Available Funds in excess of funds
necessary to pay all outstanding interest and principal due to the Noteholders
in accordance with the priorities set forth in Section 9.04 of the Indenture
(or, if an Event of Default (as defined in the Indenture) has occurred under the
Indenture, in accordance with the priorities set forth in Section 5.06 of the
Indenture) and shall in any case be nonrecourse to the Seller and to the
Seller's assets and, to the extent funds are not so available to pay any amounts
when due and owing, the claims relating thereto shall not constitute a claim (as
defined in Section 101 of Title 11 of the United States Bankruptcy Code) against
the Seller but shall continue to accrue. Each party hereto agrees that the
payment of any claim of any such party pursuant to this Section 11.02 shall be
subordinated to the payment in full of all outstanding interest and principal
due to the Noteholders. The payment of any claim pursuant to this Section 11.02
shall in no event be construed as a "fee" of the Indenture Trustee or the Owner
Trustee as such term is used in Section 5.06(a)(ii) of the Indenture.
SECTION 11.03. Merger or Consolidation of, or Assumption of the Obligations
of Seller. Any Person (a) into which the Seller may be merged or consolidated,
(b) which may result from any merger or consolidation to which the Seller shall
be a party, or (c) which may succeed to all or substantially all of the
properties and assets of the Seller's business, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Seller under this Agreement, shall be the successor to the Seller
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; provided, however, that (i) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 7.01 shall have been breached and no Event of Servicer
Default, and no event that, after notice or lapse of time, or both, would become
an Event of Servicer Default shall have happened and be continuing, (ii) the
Seller shall have delivered to the Owner Trustee and the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, or succession and such agreement of assumption comply
with this Section 11.03 and that all conditions precedent, if any, provided for
in this Agreement relating to such transaction have been complied with and (iii)
the Seller shall have delivered an Opinion of Counsel to the Owner Trustee and
the Indenture Trustee either (A) stating that, in the opinion of such counsel,
all financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Trust and the Indenture Trustee in the Receivables, and reciting
the details of such filings, or (B) stating that, in the opinion of such
Counsel, no such
33
action shall be necessary to preserve and protect such interest. Notwithstanding
the foregoing, the Seller shall not engage in any merger or consolidation with
any Person, or a disposition of all or substantially all of its assets without
providing advance written notice thereof to the Owner Trustee, the Indenture
Trustee and the Rating Agencies and without obtaining the prior written consent
of the Insurer, not to be unreasonably withheld.
SECTION 11.04. Limitation on Liability of Seller and Others. The Seller and
any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall not be under any obligation to appear in, prosecute,
or defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
ARTICLE XII
THE SERVICER
SECTION 12.01. Representations of Servicer. The Servicer makes the
following representations on which the Trust relies in accepting the Receivables
and issuing the Certificate and executing and delivering the Indenture. The
Servicer agrees that the representations shall also be for the benefit of the
Owner Trustee and the Secured Parties. The representations speak as of the
execution and delivery of this Agreement and shall survive the sale of the
Receivables to the Owner Trustee and the pledge to the Secured Parties pursuant
to the Indenture.
(i) Organization and Good Standing. The Servicer is duly organized and
validly existing as a federally-chartered savings association under the
laws of the United States, with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has,
power, authority, and legal right to acquire, own, sell, and service the
Receivables and to hold the Receivable Files as custodian on behalf of the
Trust.
(ii) Due Qualification. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) requires such qualifications.
(iii) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery, and performance of this Agreement has been duly
authorized by the Servicer by all necessary corporate action.
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(iv) Binding Obligations. This Agreement constitutes a legal, valid,
and binding obligation of the Servicer enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(v) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof does not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
charter or by-laws of the Servicer, or any indenture, agreement, or other
instrument to which the Servicer is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, or other instrument
(other than this Agreement); nor violate any law or, to the best of the
Servicer's knowledge, any order, rule, or regulation applicable to the
Servicer of any court or of any federal or State regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties:
(A) asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, (C)
seeking any determination or ruling that might materially and adversely
affect the performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement, or (D) which might adversely
affect the federal income tax attributes of the Trust.
SECTION 12.02. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
(i) The Servicer shall defend, indemnify, and hold harmless the Owner
Trustee (in its individual and trust capacities), the Indenture Trustee,
and their officers, directors, employees and agents, the Trust, the
Certificateholder and the Noteholders from and against any and all costs,
expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership, or operation by the Servicer or any
affiliate thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend and hold harmless the Owner
Trustee (in its individual and trust capacities), the Indenture Trustee,
their officers, directors, employees and agents and the Trust from and
against any taxes that may
35
at any time be asserted against such parties with respect to the
transactions contemplated herein, including, without limitation, any sales,
gross receipts, general corporation, tangible or intangible personal
property, privilege, or license taxes (but, in the case of the Trust, not
including any taxes asserted with respect to, and as of the date of, the
sale of the Receivables to the Trust or the issuance and original sale of
the Certificate, the Notes, or asserted with respect to ownership of the
Receivables, or federal or other income taxes arising out of distributions
on the Certificate or the Notes) and costs and expenses in defending
against the same.
(iii) The Servicer shall indemnify, defend, and hold harmless the
Owner Trustee (in its individual and trust capacities), the Indenture
Trustee, the Insurer, their officers, directors, employees and agents, and
the Trust, the Certificateholder and the Noteholders from and against any
and all costs, expenses, losses, claims, actions, suits, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon such parties through, the
negligence, willful misfeasance, or bad faith of the Servicer in the
performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement. This
indemnity shall survive the termination of this Agreement or the Trust and
the resignation or removal of the Owner Trustee.
(iv) The Servicer shall indemnify, defend, and hold harmless the Owner
Trustee (in its individual and trust capacities), the Indenture Trustee,
their respective officers, directors, employees and agents and the Trust
from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties herein contained and contained in the
Indenture and the Basic Documents, except to the extent that such cost,
expense, loss, claim, damage or liability: (a) shall be due to the willful
misfeasance, bad faith, or negligence of the Owner Trustee or the Indenture
Trustee; (b) relates to any tax other than the taxes with respect to which
either the Seller or Servicer shall be required to indemnify the Owner
Trustee or the Indenture Trustee; (c) shall arise from the breach of any of
the representations or warranties of the Owner Trustee set forth in Section
14.13 or by the Indenture Trustee set forth in Section 6.13 of the
Indenture; (d) shall be one as to which the Seller is required to indemnify
the Owner Trustee or the Indenture Trustee under the Agreement and the
Seller has paid such indemnity claim; or (e) shall arise out of or be
incurred in connection with the acceptance or performance by the Owner
Trustee of the duties of successor Servicer.
(v) The Servicer agrees to pay to the Indenture Trustee from time to
time such compensation as the Servicer or Issuer and the Indenture Trustee
have agreed to in writing. Subject to Section 6.07 of the Indenture, the
Servicer agrees to reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance
36
with any provision of the Indenture or any of the Basic Documents
(including the compensation and the expenses and disbursements of its
agents, counsel, experts and accountants).
Indemnification under this Section 12.02 shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Servicer shall have made
any indemnity payments pursuant to this Section and the recipient thereafter
collects any of such amounts from others, the recipient shall promptly repay
such amounts to the Servicer, without interest. This indemnification shall
survive the termination of this Agreement and the removal of the Servicer.
SECTION 12.03. Merger or Consolidation of, or Assumption of the Obligations
of Servicer. Any Person (a) into which the Servicer may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Servicer shall be a party, or (c) which may succeed to all or substantially all
of the properties and assets of the Servicer's indirect automobile financing and
receivables servicing business, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Servicer
hereunder, shall be the successor to the Servicer under this Agreement without
further act on the part of any of the parties to this Agreement; provided,
however, that (i) immediately after giving effect to such transaction, no Event
of Servicer Default, and no event which, after notice or lapse of time, or both,
would become an Event of Servicer Default shall have happened and be continuing,
(ii) the Servicer shall have delivered to the Owner Trustee and the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section 12.03 and that all conditions precedent provided for in this
Agreement relating to such transaction have been complied with and (iii) the
Servicer shall have delivered an Opinion of Counsel to the Owner Trustee and its
Indenture Trustee either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Trust and the Secured Parties in the Receivables, and reciting
the details of such filings, or (B) stating that, in the opinion of such
Counsel, no such action shall be necessary to preserve and protect such
interest. Notwithstanding the foregoing, the Servicer shall not engage in any
merger or consolidation in which it is not the surviving corporation without
providing advance written notice thereof to the Owner Trustee and the Indenture
Trustee and without obtaining the prior written consent of the Insurer, not to
be unreasonably withheld.
SECTION 12.04. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be under any liability to the Trust, the Indenture Trustee, the
Certificateholder or the Noteholders, except as provided under this Agreement,
for any action taken or for refraining from the taking of any action pursuant to
this Agreement; provided, however, that this provision shall not protect the
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith, or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement. The Servicer and any director or officer or
employee or agent of the
37
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement.
Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute, or defend any legal action that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement (collection actions with respect to Defaulted Receivables are
understood to be incidental to the Servicer's duties to service the
Receivables), and that in its opinion may involve it in any expense or
liability.
SECTION 12.05. Servicer Not to Resign. The Servicer shall not resign from
its obligations and duties under this Agreement except upon determination that
the performance of its duties shall no longer be permissible under applicable
law or otherwise with the consent of the Owner Trustee, the Indenture Trustee
and the Insurer. Any determination described above permitting the resignation of
the Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Owner Trustee. No such resignation shall become effective until
the Indenture Trustee or a successor servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
13.02.
SECTION 12.06. Delegation of Duties. Except as provided in Section 12.03
hereof, it is understood and agreed by the parties hereto that the Servicer or
the Seller may at any time delegate any duties including duties as custodian to
any Person willing to accept such delegation and to perform such duties
(including any affiliate of the Servicer) in accordance with the customary
procedures of the Servicer. In connection with such delegation, the Servicer or
the Seller may assign rights to the delegee or direct the payment to the delegee
of benefits or amounts otherwise inuring to the benefit of, or payable to, the
Seller or the Servicer hereunder. Any such delegation shall not relieve the
Servicer or the Seller of their respective liability and responsibility with
respect to such duties, and shall not constitute a resignation within Section
12.05 hereof. The Servicer shall give written notice to the Rating Agencies, the
Owner Trustee, the Indenture Trustee and the Insurer of any such delegation.
ARTICLE XIII
SERVICER DEFAULT
SECTION 13.01. Events of Servicer Default. If any one of the following
events ("Events of Servicer Default") shall occur and be continuing:
(i) Any failure by the Servicer or United Fidelity to deliver to the
Collection Account (or to the Indenture Trustee for distribution to the
Noteholders) any proceeds or payment required to be so delivered under the
terms of the Indenture, this Agreement or the Purchase Agreement or any
failure by the Servicer to deliver any Servicer's Certificate pursuant to
Section 8.09 that, in either case, shall continue unremedied for a period
of two Business Days (A) after written notice from either the
38
Owner Trustee, the Indenture Trustee or the Insurer (so long as the Insurer
is not in default of its obligations under the Policy) or by the holders of
Notes evidencing not less than 25% of the aggregate outstanding balance of
the Notes is received by the Servicer or United Fidelity as specified in
this Agreement or (B) after discovery by an officer of the Servicer; or
(ii) Failure on the part of the Servicer, the Seller or United
Fidelity duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer, the Seller or United Fidelity, as
the case may be, set forth in this Agreement or the Purchase Agreement,
which failure shall (a) materially and adversely affect the rights of the
Certificateholder or the Secured Parties and (b) continue unremedied for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer,
United Fidelity or the Seller, as the case may be, by the Owner Trustee,
the Indenture Trustee or the Insurer (so long as the Insurer is not in
default of its obligations under the Policy) or by the holders of Notes
evidencing not less than 25% of the aggregate outstanding balance of the
Notes; or
(iii) The occurrence of an Insolvency Event with respect to the
Servicer;
then, and in each and every case, so long as an Event of Servicer Default
shall not have been remedied, the Insurer (so long as the Insurer is not in
default of its obligations under the Policy), or the Indenture Trustee
(upon direction to do so by the holders of Notes evidencing not less than
25% of the outstanding principal balance of the Notes if the Insurer is in
default under the Policy), by notice then given in writing to the Servicer
may, terminate all of the rights and obligations of the Servicer under this
Agreement. In addition, if a Trigger Event (as defined in the Insurance
Agreement) shall have occurred, the Insurer may (A) require that the
Indenture Trustee or the Administrator, on behalf of the Owner Trustee,
deliver a notice of termination to the Servicer and appoint a successor
Servicer designated by the Insurer in such notice pursuant to Section
13.02; (B) require that the Indenture Trustee or the Administrator, on
behalf of the Owner Trustee, amend certificates of title relating to the
Financed Vehicles and take other actions to identify the Indenture Trustee
(on behalf of the Secured Parties) as the new secured party on such
certificates of title; (C) as provided in the Insurance Agreement, require
that the Servicer or successor Servicer or the Indenture Trustee instruct
Obligors in respect of the Receivables to remit payment on the Receivable
directly to the Owner Trustee or a separate account established exclusively
for the Trust; and (D) as provided in the Insurance Agreement, compel
transfer by the Servicer of all Receivables Files and, if applicable,
certain rights in respect of servicing systems assets to the Insurer or to
the successor Servicer designated by the Insurer. On or after the receipt
by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Certificate, the
Notes or the Receivables or otherwise, shall, without further action, pass
to and be vested in the Indenture Trustee (except that the Indenture
Trustee may but shall not be required to make Advances) or such successor
Servicer as may be appointed under Section 13.02 pursuant to and under this
Section 13.01; and, without limitation, the Indenture Trustee is hereby
authorized and
39
empowered to execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate
to effect the purposes of such notice of termination, whether to complete
the transfer and endorsement of the Receivables and related documents, or
otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Indenture Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this
Agreement, including the transfer to the successor Servicer of electronic
records related to the Receivables in such form as the successor Servicer
may reasonably request and the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by
the predecessor Servicer for deposit, or shall thereafter be received with
respect to a Receivable. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Receivable
Files to the successor Servicer and amending this Agreement to reflect such
succession as Servicer pursuant to this Section 13.01 shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses.
SECTION 13.02. Appointment of Successor. (a) Upon the Servicer's receipt of
notice of termination pursuant to Section 13.01 or the Servicer's resignation in
accordance with the terms of this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in the case
of termination, only until the date specified in such termination notice or, if
no such date is specified in a notice of termination, until receipt of such
notice and, in the case of resignation, until the later of (i) the date 45 days
from the delivery to the Owner Trustee and the Indenture Trustee of written
notice of such resignation (or written confirmation of such notice) in
accordance with the terms of this Agreement and (ii) the date upon which the
predecessor Servicer shall become unable to act as Servicer, as specified in the
notice of resignation and accompanying Opinion of Counsel. In the event of the
Servicer's resignation or termination hereunder, the Indenture Trustee shall
appoint a successor Servicer, which successor Servicer shall be reasonably
acceptable to the Insurer (so long as the Insurer is not in default of its
obligations under the Policy), and the successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Owner Trustee and
the Indenture Trustee. In the event that a successor Servicer has not been
appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section 13.02, the Indenture Trustee without
further action shall automatically be appointed the successor Servicer.
Notwithstanding the above, the Indenture Trustee shall, if it shall be legally
unable, or if it is unwilling so to act, appoint, or petition a court of
competent jurisdiction to appoint, any established financial institution, having
a net worth of not less than $50,000,000 and whose regular business shall
include the servicing of automotive receivables, as the successor to the
Servicer under this Agreement and which financial institution is, in the case of
appointment by the Owner Trustee, reasonably acceptable to the Insurer and the
Indenture Trustee.
(b) Upon appointment, the successor Servicer shall be the successor in all
respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties, and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, and shall be entitled to the Monthly
Servicing Fee and all of the rights granted to the predecessor Servicer, by the
terms and provisions
40
of this Agreement. The predecessor Servicer shall be entitled to be reimbursed
for Outstanding Advances.
(c) In connection with such appointment, the Indenture Trustee may make
such arrangements for the successor Servicer out of payments on Receivables it
and such successor Servicer shall agree; provided, however, that no such
compensation shall be in excess of that permitted the original Servicer under
this Agreement. The Indenture Trustee and such successor Servicer shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
SECTION 13.03. Notice of Events of Servicer Default. Upon any notice of an
Event of Servicer Default or upon any termination of, or appointment of a
successor to, the Servicer pursuant to this Article XIII, the Owner Trustee
shall give prompt written notice thereof to the Certificateholder at the address
appearing in the Certificate Register, to the Insurer and to the Indenture
Trustee for further notice thereof to the Noteholders.
SECTION 13.04. Waiver of Past Defaults. The Insurer (so long as the Insurer
is not in default of its obligations under the Policy) or the Indenture Trustee
(if the Insurer is in default under the Policy) upon direction from holders of
Notes evidencing not less than 51% of the outstanding principal balance of the
Notes may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences, except a default in making any
required deposits to or payments from the Collection Account in accordance with
this Agreement; provided, that no waiver of any default or provision of this
Agreement shall become effective without the consent of the Insurer (unless the
Insurer is in default of its obligations under the Policy). Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Servicer
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
ARTICLE XIV
THE OWNER TRUSTEE
SECTION 14.01. Duties of Owner Trustee. The Owner Trustee, both prior to
and after the occurrence of an Event of Servicer Default, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Servicer Default shall have occurred and shall not
have been cured and, in the case of an Event of Servicer Default described in
clause (i) of Section 13.01, the Owner Trustee has received notice of such Event
of Servicer Default, the Owner Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and shall use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
The Owner Trustee shall execute and deliver, on behalf of the Trust, each
Basic Document to which the Trust is a party and all certificates, instruments
and agreements contemplated thereby.
41
The Owner Trustee shall execute and authenticate the Certificates in accordance
with this Agreement and shall execute the Notes in accordance with the
Indenture.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all its responsibilities pursuant to the terms of this Agreement and
to administer the Trust in the interest of the Certificateholder, subject to and
in accordance with the provisions of this Agreement and the other documents to
which the Trust is a party. Without limiting the foregoing, the Owner Trustee
shall, upon written direction of the Certificateholder and on behalf of the
Trust, file and prove any claim or claims that may exist on behalf of the Trust
against the Seller in connection with any claims paying procedure as part of an
insolvency or a receivership proceeding involving the Seller. Notwithstanding
the foregoing, the Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the other documents to which the Trust
is a party to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Trust or the Owner
Trustee hereunder or under any other document to which the Trust is a party, and
the Owner Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
Except as expressly provided in the documents to which the Trust is a party, the
Owner Trustee shall have no obligation to administer, service or collect the
Receivables or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Receivables.
The Owner Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner Trustee that shall be specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the Owner
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Servicer Default, and after
the curing of all such Events of Servicer Default that may have occurred,
the duties and obligations of the Owner Trustee shall be determined solely
by the express provisions of this Agreement, the Owner Trustee shall not be
liable except for the performance of such duties and obligations as shall
be specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Owner Trustee
and, in the absence of bad faith on the part of the Owner Trustee, or
manifest error, the Owner Trustee may conclusively rely on the truth of the
statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Owner Trustee and conforming to
the requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Owner Trustee shall have been negligent in ascertaining the pertinent
facts;
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(iii) The Owner Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken in good faith in accordance with
this Agreement or at the direction of the Certificateholder relating to the
time, method, and place of conducting any proceeding for any remedy
available to the Owner Trustee, or exercising any trust or power conferred
upon the Owner Trustee, under this Agreement;
(iv) The Owner Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer
referred to in clauses (i) or (ii) of Section 13.01, or of any failure by
the Seller to comply with the obligations of the Seller referred to in
clause (ii) of Section 13.01, unless a Responsible Officer of the Owner
Trustee receives written notice of such failure (it being understood that
knowledge of the Servicer or the Servicer as custodian, in its capacity as
agent for the Owner Trustee, is not attributable to the Owner Trustee) from
the Servicer or the Seller, as the case may be; and
(v) Without limiting the generality of this Section or Section 14.04,
the Owner Trustee shall have no duty (A) to see to any recording, filing,
or depositing of this Agreement or any agreement referred to therein or any
financing statement (or continuation statement) evidencing a security
interest in the Receivables or the Financed Vehicles, or to see to the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance of the Financed Vehicles or Obligors or to effect or maintain any
such insurance, (C) 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
Trust, (D) to confirm or verify the contents of any reports or certificates
of the Servicer delivered to the Trust pursuant to this Agreement believed
by the Owner Trustee to be genuine and to have been signed or presented by
the proper party or parties, or (E) to inspect the Financed Vehicles at any
time or ascertain or inquire as to the performance or observance of any of
the Seller's or the Servicer's representations, warranties or covenants or
the Servicer's duties and obligations as Servicer and as custodian of the
Receivable Files under this Agreement.
The Owner Trustee shall not be required 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 there shall be
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability shall not be reasonably assured to it,
and none of the provisions contained in this Agreement shall in any event
require the Owner Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Agreement
except during such time, if any, as the Owner Trustee shall be the successor to,
and be vested with the rights, duties, powers, and privileges of, the Servicer
in accordance with the terms of this Agreement. Except for actions expressly
authorized by this Agreement, the Owner
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Trustee shall take no action reasonably likely to impair the security interests
created or existing under any Receivable or to impair the value of any
Receivable.
SECTION 14.02. Owner Trustee's Certificate. On or as soon as practicable
after each Payment Date on which Receivables shall be (i) assigned to United
Fidelity pursuant to Section 7.02 or deemed to be assigned to the Seller as a
result of the application of Available Funds in respect of Defaulted Receivables
pursuant to Sections 9.04 and 9.05 or (ii) assigned to the Servicer pursuant to
Section 8.07 or to the Servicer or any other Person designated by the Servicer
pursuant to Section 15.02, the Owner Trustee shall, at the written request of
the Servicer, execute an Owner Trustee's Certificate, substantially in the form
of, in the case of an assignment to United Fidelity, Exhibit 1, or, in the case
of an assignment to the Servicer, Exhibit 2, based on the information contained
in the Servicer's Certificate for the related Collection Period, amounts
deposited to the Collection Account, and notices received pursuant to this
Agreement, identifying the Receivables repurchased or deemed to be repurchased
by United Fidelity pursuant to Section 7.02 or 9.02 or purchased by the Servicer
pursuant to Section 8.07 or the Servicer or any other Person designated by the
Servicer pursuant to Section 15.02 during such Collection Period, and shall
deliver such Owner Trustee's Certificate, accompanied by a copy of the
Servicer's Certificate for such Collection Period to United Fidelity or the
Servicer, as the case may be with a copy to the Indenture Trustee. The Owner
Trustee's Certificate shall be an assignment pursuant to Section 14.03.
SECTION 14.03. Trust's Assignment of Purchased Receivables. With respect to
each Receivable repurchased by United Fidelity pursuant to Section 7.02, or
deemed to be so repurchased pursuant to Section 8.02, purchased by the Servicer
pursuant to Section 8.07 or the Servicer or any other Person designated by the
Servicer pursuant to Section 15.02, the Trust shall assign, as of the last day
of the Collection Period during which such Receivable became a Defaulted
Receivable or became subject to repurchase by United Fidelity or purchase by the
Servicer or such other Person, without recourse, representation, or warranty, to
United Fidelity, the Servicer or such other Person (as the case may be) all the
Trust's right, title, and interest in and to such Receivables, and all security
and documents relating thereto, such assignment being an assignment outright and
not for security. If in any enforcement suit or legal proceeding it shall be
held that the Servicer may not enforce a Receivable on the ground that it shall
not be a real party in interest or a holder entitled to enforce the Receivable,
the Owner Trustee shall, at the Servicer's expense, take such steps as the Owner
Trustee deems necessary to enforce the Receivable, including bringing suit in
its name and/or the name of the Indenture Trustee.
SECTION 14.04. Certain Matters Affecting the Owner Trustee. Except as
otherwise provided in Section 14.01:
(i) The Owner Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
Servicer's Certificate, certificate of auditors, or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, or other paper or
44
document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
(ii) The Owner Trustee may consult with counsel and any written advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
under this Agreement in good faith and in accordance with such written
advice or Opinion of Counsel.
(iii) The Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct, or defend any litigation under this Agreement or in relation to
this Agreement, at the request, order, or direction of the
Certificateholder pursuant to the provisions of this Agreement, unless the
Certificateholder shall have offered to the Owner Trustee reasonable
security or indemnity reasonably satisfactory to the Owner Trustee against
the costs, expenses, and liabilities that may be incurred therein or
thereby. Nothing contained in this Agreement, however, shall relieve the
Owner Trustee of the obligations, upon the occurrence of an Event of
Servicer Default (that shall not have been cured), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(iv) The Owner Trustee shall not be liable for any action taken,
suffered, or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement.
(v) Prior to the occurrence of an Event of Servicer Default and after
the curing of all Events of Servicer Default that may have occurred, the
Owner Trustee shall not be bound to make any investigation into the facts
of 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 the Insurer or
the Indenture Trustee or holders of Notes evidencing not less than 25% of
the outstanding principal balance of the Notes; provided, however, that if
the payment within a reasonable time to the Owner Trustee of the costs,
expenses, or liabilities likely to be incurred by it in the making of such
investigation shall be, in the opinion of the Owner Trustee, not reasonably
assured to the Owner Trustee by the security afforded to it by the terms of
this Agreement, the Owner Trustee may require reasonable indemnity against
such cost, expense, or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the Servicer
or, if paid by the Owner Trustee, shall be reimbursed by the Servicer upon
demand. Nothing in this clause (v) shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors.
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(vi) The Owner Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either directly or by
or through agents or attorneys or a custodian. The Owner Trustee shall not
be responsible for any misconduct or negligence solely attributable to the
acts or omissions of the Servicer in its capacity as Servicer or custodian
or the Administrator.
(vii) The Owner Trustee shall have no duty of independent inquiry,
except as may be required by Section 14.01, and the Owner Trustee may rely
upon the representations and warranties and covenants of the Seller and the
Servicer contained in this Agreement with respect to the Receivables and
the Receivable Files.
SECTION 14.05. Owner Trustee Not Liable for Certificate or Receivables. The
recitals contained herein and in the Certificate (other than the certificate of
authentication on the Certificate) shall be taken as the statements of the
Seller or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
Certificate (other than the certificate of authentication on the Certificate),
or of any Receivable or related document. The Owner Trustee shall at no time
have any responsibility or liability for or with respect to the legality,
validity, and enforceability of any security interest in any Financed Vehicle or
any Receivable, or the perfection and priority of such a security interest or
the maintenance of any such perfection and priority, or for or with respect to
the efficacy of the Trust or its ability to generate the payments to be
distributed to the Certificateholder or the Noteholders under this Agreement or
the Indenture, including, without limitation, the existence, condition,
location, and ownership of any Financed Vehicle; the existence and
enforceability of any physical damage insurance, lender's single interest
insurance, or credit life or disability and hospitalization insurance with
respect to any Receivable; the existence and contents of any Receivable or any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the compliance
by the Seller or the Servicer with any warranty or representation made under
this Agreement or in any related document and the accuracy of any such warranty
or representation prior to the Owner Trustee's receipt of notice or other
discovery of any noncompliance therewith or any breach thereof; any investment
of monies by the Servicer or any loss resulting therefrom (it being understood
that the Owner Trustee shall remain responsible for any Trust property that it
may hold); the acts or omissions of the Seller, the Servicer, or any Obligor; an
action of the Servicer taken in the name of the Owner Trustee; or any action by
the Owner Trustee taken at the instruction of the Servicer. Except with respect
to a claim based on the failure of the Owner Trustee to perform its duties under
this Agreement or based on the Owner Trustee's negligence or willful misconduct,
no recourse shall be had for any claim based on any provision of this Agreement,
the Certificateholder or the Noteholders, or any Receivable or assignment
thereof against the Owner Trustee in its individual capacity, the Owner Trustee
shall not have any personal obligation, liability, or duty whatsoever to any
Certificateholder or the Noteholders or any other Person with respect to any
such claim, and any such claim shall be asserted solely against the Trust or any
indemnitor who shall furnish indemnity as provided in this Agreement. The Owner
Trustee shall not be deemed to owe any fiduciary duty
46
to the Insurer. The Owner Trustee shall not be accountable for the use or
application by the Seller of any of the Certificate or Notes or of the proceeds
thereof, or for the use or application of any funds paid to the Seller or the
Servicer in respect of the Receivables.
Notwithstanding the foregoing or any other provision in this Agreement to
the contrary, the Owner Trustee shall be liable in its commercial capacity for
losses attributable to its failure to make payments on Eligible Investments
issued by the Owner Trustee in its commercial capacity as principal obligor and
not as Owner Trustee hereunder, in accordance with the terms of the agreements
or instruments governing any such Eligible Investments.
SECTION 14.06. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes with
the same rights as it would have if it were not the Owner Trustee.
SECTION 14.07. Owner Trustee's and Indenture Trustee's Fees and Expenses;
Indemnification. (a) The Servicer shall pay to the Owner Trustee, and the Owner
Trustee shall be entitled to, such reasonable compensation as shall have been
separately agreed to in writing on or prior to the date hereof (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the trusts
created by this Agreement and in the exercise and performance of any of the
Owner Trustee's powers and duties under this Agreement and the Indenture, and
the Servicer shall pay or reimburse the Owner Trustee upon its request for all
reasonable expenses, disbursements, and advances (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) incurred or made by the Owner Trustee in
accordance with any provisions of this Agreement and the Indenture, except any
such expense, disbursement, or advance as may be attributable to its willful
misfeasance, negligence, or bad faith. The Servicer shall indemnify the Owner
Trustee (in its individual and trust capacities) (which, for purposes of this
section, shall include its directors, officers, employees, and agents) for and
hold it harmless against any loss, liability, claim, action, suit, cost,
disbursement, tax (other than taxes as or resulting from compensation received
for its services as Owner Trustee) or expense incurred without willful
misfeasance, negligence, or bad faith on its part, arising out of or in
connection with the acceptance or administration of the Trust, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties under
this Agreement and the Indenture. The Servicer shall pay the fees and expenses
of the Administrator under the Administration Agreement; provided, however, that
the Servicer shall only be required to pay the reasonable fees and expenses of
any successor Administrator or such other fees agreed to in writing by the
Servicer. Additionally, the Seller, pursuant to Section 11.02 and subject to the
limitations set forth therein, and the Servicer, pursuant to Section 12.02,
respectively, shall indemnify the Owner Trustee with respect to certain matters.
This indemnity shall survive the termination of this Agreement and the Indenture
or the termination of the Trust and the resignation or removal of the Owner
Trustee.
47
(b) The Servicer hereby agrees to pay or reimburse the fees and expenses of
the Indenture Trustee as provided in Section 6.07 of the Indenture.
SECTION 14.08. Eligibility Requirements for Owner Trustee. The Owner
Trustee under this Agreement shall at all times be a corporation (i) having an
office in the same State as the location of the Corporate Trust Office as
specified in this Agreement; (ii) organized and doing business under the laws of
such State or the United States of America; (iii) authorized under such laws to
exercise corporate trust powers; (iv) having a net worth of at least
$50,000,000; (v) subject to supervision or examination by federal or State
authorities; and (vi) the long-term unsecured debt of which is rated at least
Baa3 or which is approved by the Insurer and each Rating Agency. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 14.08, the combined capital and surplus of
such corporation 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 Owner Trustee shall cease to be eligible in accordance with the provisions
of this Section 14.08, the Owner Trustee shall resign immediately in the manner
and with the effect specified in Section 14.09.
SECTION 14.09. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer, with the prior written consent of the Insurer, shall
promptly appoint a successor Owner Trustee, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Owner Trustee may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 14.08 and shall fail to resign after written
request therefor by the Servicer, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation, or
liquidation, then the Servicer may remove the Owner Trustee. If it shall remove
the Owner Trustee under the authority of the immediately preceding sentence, the
Servicer shall promptly appoint a successor Owner Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Owner
Trustee so removed and one copy to the successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 14.09
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 14.10.
48
SECTION 14.10. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 14.09 shall execute, acknowledge, and deliver to
the Servicer and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed, or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. Any
successor Owner Trustee appointed hereunder shall file an amendment to the
Certificate of Trust with the Delaware Secretary of State reflecting the name
and principal place of business of such successor Owner Trustee in the State of
Delaware. The predecessor Owner Trustee shall deliver to the successor Owner
Trustee all documents and statements held by it under this Agreement; and the
Servicer and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 14.10 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 14.08.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 14.10, the Servicer shall mail notice of the successor of such
Owner Trustee under this Agreement to the Indenture Trustee and to the Holder of
the Certificate at its address as shown in the Certificate Register. If the
Servicer shall fail to mail such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Servicer.
SECTION 14.11. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion, or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 14.08, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 14.12. Appointment of Co-Trustee or Separate Owner Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Vehicle may at the time be located, the Servicer
and the Owner Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Owner
Trustee to act as co-trustee, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person, in such capacity and for the benefit of the Certificateholder, such
title to the Trust, or any part thereof, and, subject to the other provisions of
49
this Section 14.12, such powers, duties, obligations, rights, and trusts as the
Servicer and the Owner Trustee may consider necessary or desirable. If the
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in the case an Event of Servicer Default
shall have occurred and be continuing, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 14.08 and no notice to the Certificateholder
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 14.10.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) The Servicer and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request, or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article XIV. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-
50
trustee shall die, become incapable of acting, resign, or be removed, all of its
estates, properties, rights, remedies, and trusts shall vest in and be exercised
by the Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor Owner Trustee.
SECTION 14.13. Representations and Warranties of Owner Trustee. The Owner
Trustee makes the following representations and warranties on which the Seller,
the Certificateholder and the Secured Parties may rely:
(i) Organization and Existence. The Owner Trustee is a national
banking corporation with a principal place of business in the State of
__________ and is authorized to engage in a banking and trust business
under such laws.
(ii) Power and Authority. The Owner Trustee has full power, authority,
and legal right to execute, deliver, and perform this Agreement, and shall
have taken all necessary action to authorize the execution, delivery, and
performance by it of this Agreement.
(iii) Duly Executed. This Agreement has been duly executed and
delivered by the Owner Trustee and constitutes the legal, valid, and
binding agreement of the Owner Trustee, enforceable 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 would apply
in the event of a bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or similar occurrence affecting
the Owner Trustee, 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 XV
TERMINATION
SECTION 15.01. Termination of the Trust. The respective obligations and
responsibilities of the Seller, the Servicer and the Owner Trustee created
hereby shall terminate and the Trust created by this Agreement shall dissolve
upon (i) written notice to the Owner Trustee from the Servicer at any time after
the disposition of the Trust corpus as of the last day of any Collection Period
at the direction of the Servicer, at its option, pursuant to Section 15.02, or
(ii) the payment to all Noteholders and the Insurer of all amounts required to
be paid to them pursuant to this Agreement, the Indenture and the Insurance
Agreement (as set forth in writing by the Insurer) and the disposition of all
property held as part of the Trust; provided, however, that in no event shall
the trust created by this Agreement continue beyond the expiration of 21 years
from the date as of which this Agreement is executed. The Servicer shall
promptly notify the Owner Trustee and Indenture Trustee
51
in writing of any prospective termination pursuant to this Section 15.01.
Notwithstanding the foregoing, the Trust shall continue and the Indenture
Trustee shall pursue recovery of any Preference Amounts under the Policy and the
distribution of the same to Noteholders until the Policy terminates by its own
terms.
SECTION 15.02. Optional Disposition of All Receivables. On any Payment Date
(after giving effect to any payments to be made on such Payment Date) on which
the Note Balances will be equal to or less than 10% of the Initial Note
Balances, the Servicer shall have the option to cause the Owner Trustee to sell
(to the Servicer or any other person designated by the Servicer) the corpus of
the Trust at a price (the "Optional Disposition Price") equal to the fair market
value of the Receivables, but not less than the sum of (i) 100% of the
outstanding Note Balances (including any overdue principal or interest thereon),
(ii) accrued and unpaid interest on such amount computed at a rate equal to the
weighted average interest rate applicable to the Notes then outstanding, and
(iii) all amounts due and owing to the Insurer under this Agreement, the
Indenture and the Insurance Agreement. Any such purchase will be effective as of
the end of the Collection Period which relates to the Payment Date on which the
repurchase occurs. The proceeds of such sale will be deposited into the
Collection Account for distribution to the Indenture Trustee (and, to the extent
applicable, the Insurer) on the next succeeding Payment Date. In connection with
such disposition, the Servicer is required to pay any unpaid fees and expenses
of the Owner Trustee and the Indenture Trustee that it would otherwise have been
entitled to pursuant to this Agreement. The Servicer shall notify the Owner
Trustee and the Indenture Trustee on or before the Determination Date if the
Note Balances as of the related Payment Date will be less than or equal to 10%
of the Initial Note Balances. The Servicer shall notify the Owner Trustee in
writing on or before the Determination Date if the Servicer intends to exercise
its option to purchase the corpus of the Trust pursuant to this Section 15.02.
Such price shall be deposited to the Collection Account in immediately available
funds by 11:00 a.m., New York City time, on the Payment Date and, upon notice to
the Owner Trustee of such deposit, the Owner Trustee shall transfer the
Receivables and the Receivable Files to the purchaser, whereupon the Certificate
shall no longer evidence any right or interest in the Receivables or any
proceeds thereof.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. Amendment. This Agreement may be amended by the Seller, the
Servicer and the Owner Trustee, without the consent of the Certificateholder or
the Noteholders, to cure any ambiguity, to correct or supplement any provisions
in this Agreement, or to add any other provisions with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of the Certificateholder or the Secured Parties.
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Notwithstanding anything to the contrary in this Agreement (i) no amendment
of this Agreement shall be effective without the prior written consent of the
Insurer and the holders of 51% of the outstanding Note Balances, (ii) no
amendment to this Agreement shall be recognized or be effective without the
written consent of the Owner Trustee and receipt by the Owner Trustee of an
Opinion of Counsel to the effect that such amendment will not cause the Trust to
be treated as an association taxable as a corporation or as a publicly-traded
partnership, (iii) the Indenture Trustee shall receive a copy of all amendments
to this Agreement and (iv) no amendment which affects the Indenture Trustee
shall be effective without the consent of the Indenture Trustee.
So long as an Insurer Default shall not have occurred and be continuing,
the Insurer shall have the right to exercise all rights, including voting
rights, which the Noteholders are entitled to exercise pursuant to this
Agreement, without any consent of such Noteholders; provided, however, that
without the consent of each Noteholder affected thereby, the Insurer shall not
exercise such rights to amend this Agreement in any manner that would (i) reduce
the amount of, or delay the timing of, collections of payments on the
Receivables or distributions which are required to be made on any Note, (ii)
adversely affect in any material respect the interests of the Holders of any
Notes, or (iii) alter the rights of any such Holder to consent to such
amendment.
Notwithstanding any provision in this Agreement to the contrary, in the
event an Insurer Default shall have occurred and be continuing, the Insurer
shall not have the right to take any action under this Agreement or to control
or direct the actions of the Trust, the Seller, the Indenture Trustee or the
Owner Trustee pursuant to the terms of this Agreement, nor shall the consent of
the Insurer be required with respect to any action (or waiver of a right to take
action) to be taken by the Trust, the Seller, the Indenture Trustee, the Owner
Trustee or the Noteholders or the Certificateholders; provided, that the consent
of the Insurer shall be required at all times with respect to any amendment of
this Agreement.
Promptly after the execution of any amendment or consent, the Owner Trustee
shall furnish written notification of the substance of such amendment or consent
to the Certificateholder and the Indenture Trustee for notification to each of
the Noteholders.
It shall not be necessary for the consent of the Certificateholder or the
Noteholders pursuant to this Section 16.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by the Certificateholder
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State of the State of Delaware.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of
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Counsel referred to in Section 16.02(i)(1). The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties, or immunities under this Agreement.
SECTION 16.02. Protection of Title to Trust.
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain, and protect
the interest of the Trust under this Agreement in the Receivables and in the
proceeds thereof. The Seller shall deliver (or cause to be delivered) to the
Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor the Servicer shall change its name, identity, or
corporate structure in any manner that would, could, or might make any financing
statement or continuation statement filed by the Seller in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-402(7) of
the UCC, unless it shall have given the Owner Trustee and the Indenture Trustee
at least 60 days prior written notice thereof.
(c) The Seller and the Servicer shall give the Owner Trustee and Indenture
Trustee at least 60 days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement (in which
case the Servicer shall file or cause to be filed such amendment or continuation
statement or new financing statement). The Owner Trustee and the Indenture
Trustee shall be permitted to waive the 60 day notice period to any shorter
period; provided that such UCC financing statements or amendments have been
filed on or before the effective date of any such waiver. The Servicer shall at
all times maintain each office from which it shall service Receivables, and its
principal executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Owner
Trustee, the Servicer's master computer records (including any back-up archives)
that refer to a Receivable shall indicate clearly with reference to the
particular trust that such Receivable is owned by the Owner Trustee. Indication
of the Owner Trustee's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the Receivable
shall have been paid in full or repurchased.
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(f) If at any time the Seller or the Servicer shall propose to sell, grant
a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender, or other transferee, the
Servicer shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trust.
(g) The Servicer shall permit the Owner Trustee and its agents at any time
during normal business hours to inspect, audit, and make copies of and abstracts
from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee and the
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(1) promptly after the execution and delivery of this Agreement and of
each amendment thereto, an Opinion of Counsel either (a) stating that, in
the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee in the Receivables
and reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (b) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 90 days after the beginning of each calendar year beginning
with the first calendar year beginning more than three months after the
Cutoff Date, an Opinion of Counsel, dated as of a date during such 90-day
period, either (a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Owner Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are given,
or (b) stating that, in the opinion of such counsel, no such action shall
be necessary to preserve and protect such interest.
SECTION 16.03. Limitation on Rights of Certificateholder. The death or
incapacity of the Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties to
this Agreement or any of them.
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No Certificateholder shall have any right to vote (except as provided in
Section 16.01, 16.03 or 16.07) or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties to this Agreement
except as expressly set forth herein, nor shall anything in this Agreement set
forth, or contained in the terms of the Certificate, be construed so as to
constitute the Certificateholder from time to time as members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action, or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given to the Owner Trustee a written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Certificateholder requests in writing to the Owner Trustee to
institute such action, suit, or proceeding in its own name as Trustee under this
Agreement and shall have offered to the Owner Trustee such reasonable indemnity
as it may require against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Owner Trustee, for 30 days after its receipt of such
notice, request, and offer of indemnity, shall have neglected or refused to
institute any such action, suit, or proceeding and during such 30-day period no
direction inconsistent with such written request has been given to the Owner
Trustee.
SECTION 16.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed within the State of Delaware, and the obligations, rights,
and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
SECTION 16.05. Notices. All demands, notices, and communications under this
Agreement shall be in writing, personally delivered, sent by e-mail to, sent by
facsimile to, sent by courier to or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given unless otherwise provided
herein, upon receipt (a) in the case of the Seller to
___________________________________________________________________, e-mail
_______________, facsimile _______________ or at such other address as shall be
designated by the Seller in a written notice to the Servicer or Trustee; (b) in
the case of the Servicer to
___________________________________________________________________, e-mail
_______________, facsimile _______________, (c) in the case of the Owner
Trustee, at the Corporate Trust Office, (d) in the case of the Insurer,
_______________________________________________ and (e) in the case of the
Indenture Trustee at the Indenture Trustee Office. Unless otherwise provided
herein, any notice so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the
Certificateholder or Noteholders shall receive such notice.
SECTION 16.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining
56
covenants, agreements, provisions, or terms of this Agreement and shall in no
way affect the validity or enforceability of the other provisions of this
Agreement.
SECTION 16.07. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided below or in Sections 11.03 and 12.03 and as
provided in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Owner Trustee and the
Certificateholder.
SECTION 16.08. Certificate Nonassessable and Fully Paid. The
Certificateholder shall not be personally liable for obligations of the Trust.
The interests represented by the Certificate shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Owner Trustee pursuant to Section 10.02, the
Certificate shall be deemed fully paid.
SECTION 16.09. Noncompetition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer, United Fidelity and the Owner
Trustee shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Trust or the Seller,
acquiesce, petition or otherwise invoke or cause the Trust or the Seller to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Trust or the Seller under any
Federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or the Seller or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Trust or the Seller.
SECTION 16.10. Counterparts. For the purpose of facilitating the execution
of this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
SECTION 16.11. Third Party Beneficiary. This Agreement shall inure to the
benefit of the Insurer, the Indenture Trustee and their successors and assigns.
[next page is signature page]
57
IN WITNESS WHEREOF, the parties hereto have caused this Trust and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
UNITED FIDELITY FINANCE, LLC,
as Seller
By:
------------------------------------
Its:
-----------------------------------
UNITED FIDELITY BANK, FSB,
as Servicer
By:
------------------------------------
Its:
-----------------------------------
---------------------------------------
as Owner Trustee
By:
------------------------------------
Its:
-----------------------------------
Accepted and agreed to as of the day and year first above written.
not in its individual capacity but solely as Indenture
Trustee
By:
------------------------------------
Its:
-----------------------------------
58
Exhibit 1
Owner Trustee's Certificate
pursuant to Section 14.02
of the Trust and Servicing Agreement
_________________________________________, not in its individual capacity
but solely as owner trustee (the "Owner Trustee") of the United Fidelity Auto
Trust 2001-A (the "Trust") created pursuant to the Trust and Servicing Agreement
(the "Trust Agreement") dated as of ____________, among United Fidelity Finance,
LLC, as seller (the "Seller"), United Fidelity, as servicer (the "Servicer") and
the Owner Trustee, does hereby sell, transfer, assign, and otherwise convey on
behalf of the Trust to United Fidelity without recourse, representation, or
warranty, all of the Owner Trustee's or the Trust's right, title, and interest
in and to all of the Receivables (as defined in the Trust Agreement) identified
in the attached Servicer's Certificate as "Purchased Receivables," which have
been repurchased by the Seller pursuant to Section 7.02 and all security and
documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this _____ day of
_______________, _____.
__________________________________________________
___________________________, not in its individual
capacity but solely as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
59
Exhibit 2
Owner Trustee's Certificate
pursuant to Section 14.02
of the Trust and Servicing Agreement
__________________________________________, not in its individual capacity
but solely as trustee (the "Owner Trustee") of the United Fidelity Auto Trust
2001-A (the "Trust") created pursuant to the Trust and Servicing Agreement (the
"Trust Agreement") dated as of ____________, among United Fidelity Finance, LLC,
as seller (the "Seller"), United Fidelity, as servicer (the "Servicer") and the
Owner Trustee, does hereby sell, transfer, assign, and otherwise convey on
behalf of the Trust to the [Servicer], without recourse, representation, or
warranty, all of the Owner Trustee's or the Trust's right, title, and interest
in and to all of the Receivables (as defined in the Trust Agreement) identified
in the attached Servicer's Certificate as "Purchased Receivables," which have
been purchased by [the Servicer pursuant to Section 8.07 or by the Servicer or
any other Person designated by the Servicer pursuant to Section 15.02], and all
security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this _____ day of
_______________, _____.
__________________________________________________
___________________________, not in its individual
capacity but solely as Owner Trustee
By:
----------------------------------------
Title:
-------------------------------------
60
Exhibit 3
Form of Servicer's Certificate
pursuant to Sections 8.09 and 9.02
of the Trust and Servicing Agreement
SERVICER'S CERTIFICATE
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[EXHIBIT A]
CERTIFICATE OF TRUST OF
UNITED FIDELITY AUTO TRUST 2001-A
This Certificate of Trust of United Fidelity Auto Trust 2001-A (the
"Trust"), is being duly executed and filed by the undersigned, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is United Fidelity
Auto Trust 2001-A.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is ____________________________________________.
3. Effective Date. This Certificate of Trust shall be effective on
____________.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of
Trust in accordance with Section 3811(a) of the Act.
_____________________________________________
___________________________, as Owner Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
62
[EXHIBIT B]
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT (1) IN COMPLIANCE
WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS AND (2) IN COMPLIANCE WITH THE
RESTRICTIONS OF THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNITED FIDELITY AUTO TRUST 2001-A
AUTOMOBILE RECEIVABLE
BACKED CERTIFICATE
evidencing an undivided interest in the Trust, as defined below, the property of
which includes a pool of simple interest installment loan and security
agreements and installment sales contracts secured by new and used automobiles,
light trucks and vans. The contracts were sold to the Owner Trustee by United
Fidelity Finance, LLC.
(This Certificate does not represent an interest in or obligation of United
Fidelity Finance, LLC or any of its affiliates. Neither this Certificate nor the
underlying Receivables, as defined below, are insured or guaranteed by any other
government agency).
NUMBER
R-1
THIS CERTIFIES THAT United Fidelity Finance, LLC, an Indiana limited
liability company, is the registered owner of a nonassessable, fully-paid
interest in the United Fidelity Auto Trust 2001-A (the "Trust"), a Delaware
business trust. The Trust was created pursuant to a Trust and Servicing
Agreement, dated as of ____________ (the "Agreement"), among United Fidelity
Finance, LLC, as seller, United Fidelity, as servicer and
___________________________________________ (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. A copy of the
Agreement may be examined during normal business hours at the Corporate Trust
Office of the Owner Trustee by any Certificateholder upon request. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is issued under and
is subject to the terms, provisions, and conditions of the Agreement, to which
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust includes a
pool of simple interest loan and security agreements and installment sales
contracts for new and used automobiles, light trucks, vans and van conversions
(the "Receivables"), all monies paid and all monies due thereon, including
Accrued Interest, as of and after ____________ (but excluding Accrued Interest
paid prior to the Closing Date), security interests in the vehicles financed
thereby,
63
certain bank accounts and the proceeds thereof and certain other property and
rights described in the Agreement and the proceeds of the foregoing.
This Certificate represents an undivided beneficial interest in certain
assets of the Trust, including the right to receive a portion of the collections
and other amounts at the times and in the amounts specified in the Agreement.
The rights of the Certificateholder in the assets of the Trust are subordinated
to the rights of the Noteholders as set forth in the Indenture and the
Agreement.
Unless the certificate of authentication hereon shall have been executed by
a Responsible Officer of the Owner Trustee, by manual or facsimile signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose. Registration of transfer of this
Certificate to a person may not be effected unless (a) the Insurer consents to
such transfer, (b) the Owner Trustee receives an Opinion of Counsel,
satisfactory to it, to the effect that (i) such transfer may be made in reliance
upon an exemption from the registration requirements of the Securities Act of
1933, as amended, (ii) such transfer will not adversely affect the tax treatment
of the Trust or the Notes, and (c) the Rating Agency Condition has been
satisfied with respect to such transfer. Notwithstanding the foregoing, the
Trust shall have no obligation to register this Certificate under the Securities
Act of 1933, as amended.
The obligations and responsibilities created by the Agreement and the Trust
created thereby shall terminate upon the payment to the Certificateholder of all
amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Certificateholder is
required to pay any unpaid fees and expenses of the Owner Trustee and in
connection with such disposition.
Although this Certificate summarizes certain provisions of the Agreement,
this Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Owner Trustee. In the event of any inconsistency
or conflict between the terms of this Certificate and the terms of the
Agreement, the terms of the Agreement shall control. By acceptance of this
Certificate, the holder agrees to be bound by the terms of the Agreement,
including the agreement to disregard the Trust as a separate entity if there is
one beneficial owner and as a partnership is there are two or more beneficial
owners of the Trust, and to treat the Notes as indebtedness for income tax
purposes.
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IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in its
individual capacity has caused this Certificate to be duly executed.
Dated: ____________
UNITED FIDELITY AUTO TRUST 2001-A
By:____________________________________, not
in its individual capacity, but solely in its
capacity as Owner Trustee
By:_______________________________________
Responsible Officer
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Agreement.
____________________________________, not in
its individual capacity, but solely in its
capacity as Owner Trustee
By:_______________________________________
Signatory
Dated: ____________
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code,
of assignee)
------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
__________________________________*
Signature Guaranteed:
__________________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank,
trust company savings bank or other savings and loan institution.
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Schedule A
to the Trust and
Servicing Agreement
SCHEDULE OF RECEIVABLES
Seller Name of
Account Number Obligor Amount Financed
(as of the Cutoff Date)
$
A COPY OF THE SCHEDULE OF RECEIVABLES, INCLUDING THE ABOVE CAPTIONED INFORMATION
WITH RESPECT TO EACH RECEIVABLE, WAS DELIVERED TO THE INDENTURE TRUSTEE WITH A
COUNTERPART OF THE TRUST AND SERVICING AGREEMENT.
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Schedule B
to the Trust and
Servicing Agreement
1. Location of Receivables:
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