As filed with the Securities and Exchange Commission on June 27 1996
Registration No. 333-________
Post-Effective Amendment No. 1 to Registration No. 33-97320
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
AND POST EFFECTIVE AMENDMENT NO. 1
UNDER THE SECURITIES ACT OF 1933
UACSC AUTO TRUSTS
(Issuer with respect to the securities)
UAC SECURITIZATION CORPORATION
(Originator of the Trusts described herein)
(Exact name of registrant as specified in its charter)
Delaware 35-1937340
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization of registrant)
250 North Shadeland Ave., Suite 210A
Indianapolis, Indiana 46219
(317) 231-6400
(Address, including ZIP code, and
telephone number, including
area code, of registrant's
principal place of business)
MELANIE S. OTTO
UAC Securitization Corporation
250 North Shadeland Ave., Suite 210A
Indianapolis, Indiana 46219
(317) 231-7939
(Name, address, including ZIP code,
and telephone number, including
area code, of agent for service)
Copies to:
ERIC R. MOY, ESQ. RICHARD M. SCHETMAN, ESQ.
Barnes & Thornburg Cadwalader, Wickersham & Taft
1313 Merchants Bank Building 100 Maiden Lane
11 South Meridian Street New York, New York 10038
Indianapolis, Indiana 46204
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed Proposed maximum Amount of
Title of each class of Amount to be maximum offering aggregate offering registration
securities to be registered registered (1) price per unit (1) price (1) fee (2)
- - - - --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Asset Backed Certificates $350,000,000.00 100% $350,000,000.00 $120,689.66
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Determined pursuant to Section 6(b) of the Securities Act. $112,504.99
previously paid in connection with the filing of Registration No. 33-97320.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act, upon effectiveness, this
Registration Statement shall contain a combined prospectus which also relates to
$326,264,490.97 aggregate amount of securities registered on Form S-3,
Registration No. 33-97320, which was declared effective on November 17, 1995.
This Registration Statement also constitutes Post-Effective Amendment No. 1 to
Registration No. 33-97320.
<PAGE>
INTRODUCTORY NOTE
This Registration Statement contains a form of Prospectus relating to
the offering of Series of Asset Backed Certificates by various UACSC Auto Trusts
created from time to time by UAC Securitization Corporation and two forms of
Prospectus Supplement relating to the offering by UACSC 199 - Auto Trust of the
particular Series of Asset Backed Certificates described therein. Each form of
Prospectus Supplement relates only to the securities described therein and is a
form that may be used, among others, by UAC Securitization Corporation to offer
Asset Backed Certificates under this Registration Statement.
I-2
<PAGE>
CROSS REFERENCE SHEET
Name and Caption in Form S-3 Caption in Prospectus
---------------------------- ---------------------
1. Foreport of the Registration
Statement and Outside Front
Cover Page of Prospectus............ Front Cover Page of Registration
Statement; Outside Front Cover Page
of Prospectus and Prospectus
Supplements
2. Inside Front and Outside Back
Cover Pages of Prospectus........... Inside Front Page Prospectus
Supplements
3. Summary Information, Risk Factors
and Ratio of Earnings to Fixed
Charges............................. Summary of Terms (Prospectus
Supplements and Prospectuses), Risk
Factors (Prospectus Supplements and
Prospectus); Yield and Prepayment
Considerations (Prospectus
Supplement)
4. Use of Proceeds..................... Use of Proceeds (Prospectus)
5. Determination of Offering Price..... *
6. Dilution............................ *
7. Selling Security Holders............ *
8. Plan of Distribution................ Underwriting
9. Description of Securities to Be
Registered.......................... Summary of Terms (Prospectus
Supplements and Prospectus); The
Receivables Pools (Prospectus), The
Receivables Pool (Prospectus
Supplements); Description of
Certificates (Prospectus); The
Offered Certificates (Prospectus
Supplements); Certain Legal Aspects
of the Receivables (Prospectus);
Certain Federal Income Tax
Consequences (Prospectus)
10. Interests of Named Experts and
Counsel............................. Legal Opinions
11. Material Changes.................... *
12. Information with Respect to the
Registrant.......................... Union Acceptance Corporation and
Affiliates (Prospectus); The Trusts
(Prospectus); Formation of the
Trust (Prospectus Supplements);
Description of the Certificates
(Prospectus); The Offered
Certificates (Prospectus
Supplement)
13. Incorporation of Certain
Information by Reference............ Incorporation of Certain
Information by Reference
(Prospectus)
14. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities..................... See page II-2
- - - - -------------
*Not Applicable
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL
THERE BY ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion dated June 27, 1996
Prospectus Supplement
(To Prospectus Dated June 27, 1996)
$ [LOGO HERE]
-----------------------
UACSC 199__-__ Auto Trust
$______________ _____% Class A Automobile Receivable Pass-Through Certificates
Class I Interest Only Automobile Receivable Pass-Through Certificates
UAC Securitization Corporation
Depositor
Union Acceptance Corporation
Servicer
Principal, and interest at the applicable Pass-Through Rate shown above, will be
distributed to Class A Certificateholders on the third business day after the
5th day of each month (the "Distribution Date"), beginning _________,199__. The
final scheduled Distribution Date of the Class A Certificates will be _______
_______ (the "Final Scheduled Distribution Date"). The Class I Certificates will
not receive principal payments, but interest at the Class I Pass-Through Rate of
___% per annum on the Notional Principal Amount (as defined herein) of the Class
I Certificates will be distributed to Class I Certificateholders on each
Distribution Date. The Original Notional Principal Amount will be
$____________and will decrease on each Distribution Date. Each Certificate
offered hereby will represent an undivided interest in the UACSC 199__-__ Auto
Trust (the "Trust") to be formed by UAC Securitization Corporation, a Delaware
corporation, having its principal office and place of business in Indianapolis,
Indiana (the "Depositor"). The Trust property will include a pool of simple and
precomputed interest installment sale and installment loan contracts originated
in various states in the United States of America, secured by new and used
automobiles, light trucks and vans (the "Receivables"), certain monies due
thereunder as of and after ________, 199__ (the "Cutoff Date"), security
interests in the vehicles financed thereby and certain other property. The Trust
Property will also include an irrevocable surety bond guaranteeing payments of
interest and principal on the Class A Certificates and Class I Monthly Interest
(the "Surety Bond") issued by ______________________________ and a Spread
Account for the benefit of the Class A and the Class I Certificateholders, as
well as the surety bond issuer.
<PAGE>
Concurrently with the issuance of the Class A Certificates and the Class I
Certificates, the Trust will issue a Class IC Automobile Receivable Pass-Through
Certificate (the "Class IC Certificate"). The Class IC Certificate will be
issued to UAC Securitization Corporation, the Depositor, and will not be offered
hereby. The Class A Certificates and the Class I Certificates are together
sometimes referred to herein as the "Offered Certificates."
Prior to their issuance there has been no market for the Offered Certificates
nor can there be any assurance that one will develop, or if it does develop,
that it will provide the holders of the Offered Certificates with liquidity or
will continue for the life of the Offered Certificates. The Underwriters intend,
but are not obligated, to make a market in the Offered Certificates.
The yield to maturity of the Class I Certificates will be sensitive to the rate
and timing of principal payments (including prepayments) on the Receivables.
Investors in the Class I Certificates should fully consider the associated
risks, including the risk that a rapid rate of principal payments could result
in the failure of such investors to recoup their initial investments. See "Risk
Factors -- Prepayment Risks Associated with Class I Certificates" and
"Termination Upon Insolvency Event of the Class IC Certificateholder", "Yield
and Prepayment Considerations" and "The Offered Certificates -- The Class I
Certificates -- Calculation of Notional Principal Amount" herein.
Prospective investors should consider, among other things, the information set
forth under "Risk Factors" on page S-10 hereof and page 10 of the Prospectus.
THE CERTIFICATES DO NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF UAC
SECURITIZATION CORPORATION OR ANY AFFILIATE THEREOF. NEITHER THESE SECURITIES
NOR THE UNDERLYING RECEIVABLES WILL BE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
===================================================================================================
Price to Underwriting Proceeds to
Public Discounts (1) Depositor (2)
<S> <C> <C> <C>
Per Class A Certificate................ _________% _______% ____________%
Per Class I Certificate................ _________% _______% ____________%
Total.................................. $__________ $_________ $____________
===================================================================================================
</TABLE>
(1) With respect to the Class I Certificates, the Price to Public and Proceeds
to Depositor are expressed as a percentage of the Notional Principal Amount
(initially $_____________), and the Underwriting Discounts are expressed as
a percentage of the related Price to Public.
(2) Before deducting expenses, estimated to be $_____________.
The Offered Certificates are offered, subject to prior sale, when, as and if
accepted by the Underwriters, and subject to approval of certain legal matters
by Cadwalader, Wickersham & Taft, counsel for the Underwriters. It is expected
that delivery of the Offered Certificates in book-entry form will be made on or
about ___________, 199___ through the facilities of The Depository Trust
Company, against payment therefor in immediately available funds.
The date of this Prospectus Supplement is _____________, 199___.
<PAGE>
THIS PROSPECTUS SUPPLEMENT DOES NOT CONTAIN COMPLETE INFORMATION ABOUT
THE OFFERING OF THE OFFERED CERTIFICATES. ADDITIONAL INFORMATION IS CONTAINED IN
THE PROSPECTUS, AND PROSPECTIVE INVESTORS ARE URGED TO READ BOTH THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS IN FULL. SALES OF THE OFFERED CERTIFICATES MAY NOT
BE CONSUMMATED UNLESS THE PURCHASER HAS RECEIVED BOTH THIS PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS. THIS PROSPECTUS SUPPLEMENT CONTAINS INFORMATION THAT IS
SPECIFIC TO THE TRUST AND THE OFFERED CERTIFICATES AND, TO THAT EXTENT,
SUPPLEMENTS AND REPLACES THE MORE GENERAL INFORMATION PROVIDED IN THE
PROSPECTUS.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
CERTIFICATES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
Until 90 days after the date of this Prospectus Supplement, all dealers
effecting transactions in the Offered Certificates, whether or not participating
in this distribution, may be required to deliver this Prospectus Supplement and
the Prospectus. This is in addition to the obligation of dealers to deliver this
Prospectus Supplement and the Prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
REPORTS TO CERTIFICATEHOLDERS
Unless and until definitive certificates are issued (which will occur
only under the limited circumstances described herein), _________________, as
Trustee, will provide to Cede & Co., the nominee of The Depository Trust
Company, as registered holder of the Class A Certificates, monthly and annual
statements concerning the Trust and the Class A Certificates. Such statements
will also be provided to the registered holders of the Class I Certificates.
Such statements will not constitute financial statements prepared in accordance
with generally accepted accounting principles. A copy of the most recent monthly
or annual statement concerning the Trust and the Offered Certificates may be
obtained by contacting the Servicer at Union Acceptance Corporation, 250 North
Shadeland Avenue, Indianapolis, Indiana 46219 (telephone (317) 231-7965).
S-2
<PAGE>
SUMMARY OF TERMS
This Summary is qualified in its entirety by reference to the detailed
information appearing elsewhere in this Prospectus Supplement and the
Prospectus. Certain capitalized terms used in this Summary are defined elsewhere
in this Prospectus Supplement on the pages indicated in the "Index of Principal
Terms" or, to the extent not defined herein, have the meanings assigned to such
terms in the Prospectus.
Issuer ..............................UACSC 199__-__ Auto Trust.
Depositor.............................UAC Securitization Corporation (the
"Depositor").
Servicer .............................Union Acceptance Corporation (in its
capacity as servicer, the "Servicer,"
otherwise "UAC").
Trustee .............................________________________
The Certificates ....................The Trust will be formed and will issue
the Certificates on or about
____________ (the "Closing Date")
pursuant to a pooling and servicing
agreement (the "Pooling and Servicing
Agreement"). The Certificates will
consist of: (i) _____% Class A
Automobile Receivable Pass-Through
Certificates in the aggregate principal
amount of $______________; (ii) the
Class I Interest Only Automobile
Receivable Pass-Through Certificates;
and (iii) the Class IC Automobile
Receivable Pass-Through Certificate. The
Class I Certificates are interest only
certificates and will not receive
distributions of principal. The Class IC
Certificate will be issued to the
Depositor on the Closing Date and is not
being offered hereby. Each of the
Certificates will represent a fractional
undivided interest in the Trust. The
Trust assets will include the
Receivables, certain monies due
thereunder as of and after the Cutoff
Date, security interests in the related
Financed Vehicles, monies on deposit in
the Certificate Account and the proceeds
thereof, any proceeds from claims on
certain insurance policies relating to
the Financed Vehicles or the related
Obligors, any lender's single interest
insurance policy, the Spread Account for
the benefit of the Class A and Class I
Certificateholders and the surety bond
issuer, the Surety Bond for the benefit
of the Class A and Class I
Certificateholders and certain rights
under the Pooling and Servicing
Agreement. Interest paid to the
Certificateholders on the first
Distribution Date will be based upon the
amount of interest accruing from the
Closing Date, and will therefore not
include a full month's interest.
The Class A Certificates ........Interest. Interest will be distributable
on each Distribution Date beginning
___________, 199__, to holders of record
as of the last day of the calendar month
immediately preceding the calendar month
in which such Distribution Date occurs
(the "Record Date") of the Class A
Certificates (the "Class A
Certificateholders") in a maximum amount
equal to the product of 1/12th of
_______% (the "Class A Pass-Through
Rate") and the aggregate outstanding
principal balance of the Class A
Certificates (the "Certificate Balance")
as of the preceding Distribution Date
(after giving effect to all
S-3
<PAGE>
distributions to Certificateholders on
such date) or, in the case of the first
Distribution Date, as of the Closing
Date. Interest on the Class A
Certificates will be calculated on the
basis of a 360-day year consisting of
twelve 30-day months or, in the case of
the first Distribution Date, the number
of days from the Closing Date remaining
in the month of the closing (assuming a
30-day month). See "The Offered
Certificates -- Distributions on the
Offered Certificates". The effective
yield on the Class A Certificates will
be below that otherwise produced by the
applicable Pass-Through Rate because the
distribution of Monthly Principal (as
defined below) and Class A Monthly
Interest in respect of any given month
will not be made until the third
business day after the fifth calendar
day of the following month (the
"Distribution Date"). See "Yield and
Prepayment Considerations" herein.
Principal. On each Distribution Date, the
Trustee will distribute as principal to
the Class A Certificateholders in a
maximum aggregate amount equal to the
aggregate outstanding principal amount
of the Receivables (the "Pool Balance")
on the last day of the second preceding
calendar month (or, in the case of the
first Distribution Date, as of the
Cutoff Date) less the Pool Balance on
the last day of the immediately
preceding calendar month ("Monthly
Principal"). For the purpose of
determining Monthly Principal, the
unpaid principal balance of a Defaulted
Receivable or a Purchased Receivable
will be deemed to be zero on and after
the last day of the calendar month in
which such Receivable became a Defaulted
Receivable or a Purchased Receivable, as
applicable.
The weighted average life of the Offered
Certificates will be reduced by full or
partial prepayments on the Receivables
(except certain prepayments in respect
of Precomputed Receivables). See "The
Offered Certificates-- Distributions on
the Offered Certificates" herein.
The Class I Certificate........Interest. The Class I Certificates are
interest only certificates which will
not be entitled to any principal
distributions. Interest will accrue on
the Notional Principal Amount (defined
below) of the Class I Certificates at
the rate of ____% per annum (the "Class
I Pass-Through Rate"). The Notional
Principal Amount represents a designated
principal component of the Receivables,
originally $__________ (the "Original
Notional Principal Amount").
Interest with respect to the Class I
Certificates will accrue on the basis of
a 360-day year consisting of twelve
30-day months or, in the case of the
first Distribution Date, the number of
days from the Closing Date remaining in
the month of the closing (assuming a
30-day month). On each Distribution
Date, except the first Distribution
Date, the Trustee shall distribute pro
rata to holders of Class I Certificates
(the "Class I Certificateholders") of
S-4
<PAGE>
record as of the preceding Record Date,
Class I Monthly Interest at the Class I
Pass-Through Rate on the Notional
Principal Amount outstanding on the
immediately preceding Distribution Date
(after giving effect to any reduction of
the Notional Principal Amount on such
Distribution Date) or, in the case of
the first Distribution Date, as of the
Closing Date. Holders of the Class I
Certificates will not be entitled to any
distributions after the Notional
Principal Amount thereof has been
reduced to zero.
Planned Amortization Feature; Calculation
of the Class I Notional Principal
Amount. The Class I Certificates
represent an interest-only planned
amortization class. The planned
amortization feature is intended to
reduce the uncertainty to investors in
the Class I Certificates with respect to
prepayments. Because the Class I
Certificates will receive interest based
on their Notional Principal Amount, this
is accomplished by basing the reduction
in the Notional Principal Amount on a
principal paydown schedule rather than
on the reduction in the actual principal
balances of the Receivables, as
described below. The amount which will
be paid to the Class I
Certificateholders will come from the
excess of interest earned on the
Receivables over the Class A Monthly
Interest and the monthly Servicing Fee
payable to the Servicer (the "Monthly
Servicing Fee"). Solely for the purpose
of calculating the amount payable with
respect to the Class I Certificates, the
Certificate Balance will be divided into
two principal components, the "PAC
Component" and the "Companion
Component." The sum of the PAC Component
and the Companion Component will at all
times equal the then aggregate unpaid
Certificate Balance. The "Notional
Principal Amount" of the Class I
Certificates at any time will be equal
to the principal balance of the PAC
Component as calculated based on the
allocations of principal payments
described below, originally
$______________.
The Pooling and Servicing Agreement
establishes a schedule (a "Planned
Notional Principal Amount Schedule")
which is set forth herein under "The
Offered Certificates-Class I
Certificates-Calculation of Notional
Principal Amount." On each Distribution
Date, the Monthly Principal will be
allocated first to the PAC Component in
an amount up to the amount necessary to
reduce the amount thereof to the Planned
Notional Principal Amount for such
Distribution Date, as set forth in the
Planned Notional Principal Amount
Schedule, second, to the Companion
Component until the outstanding amount
thereof is reduced to zero and third, to
the PAC Component, without regard to the
Planned Notional Principal Amount. As
described above, the Notional Principal
Amount of the Class I Certificates will
be equal to the outstanding amount of
the PAC Component and thus will be
reduced as the PAC Component is reduced.
The Planned Notional Principal Amount
Schedule has been prepared on the basis
of the assumption, among other things,
S-5
<PAGE>
that the Receivables prepay at a
constant rate between ____% and _____%
ABS (as defined herein), an assumed
annualized constant rate of prepayments
and the prepayment model used in this
Prospectus. The yield to maturity of the
Class I Certificates will be sensitive
to the rate and timing of principal
payments (including prepayments) on the
Receivables and may fluctuate
significantly from time to time. If the
Receivables prepay at a constant rate
within the range assumed in preparing
the Planned Notional Principal Amount
Schedule, the PAC Component (and the
Notional Principal Amount of the Class I
Certificates) will be reduced in
accordance with the Planned Notional
Principal Amount Schedule. If the
Receivables prepay at a constant rate
higher than ___% ABS, the amount of the
Companion Component will be reduced to
zero more quickly, and the amount of the
PAC Component (and the Notional
Principal Amount of the Class I
Certificates) will be reduced more
quickly than provided in the Planned
Notional Principal Amount Schedule,
thereby reducing the yield to holders of
the Class I Certificates. In general, a
rapid rate of principal prepayments
(including liquidations due to losses,
repurchases and other dispositions) will
have a material negative effect on the
yield to maturity of the Class I
Certificates.
The Planned Notional Principal Amount
Schedule is set forth herein under "The
Certificates -- The Class I Certificates
-- Calculation of Notional Principal
Amount". The Planned Notional Principal
Amount Schedule has been prepared on the
basis of certain assumptions, which are
described herein under "The Certificates
-- Class I Yield Considerations".
Prospective investors in the Class I
Certificates should fully consider the
associated risks, including the risk
that a rapid rate of prepayments could
result in the failure of investors in
the Class I Certificates to recoup their
initial investment. See "Risk Factors --
Prepayment Risks Associated with Class I
Certificates", "Yield and Prepayment
Considerations -- The Class I
Certificates" and "The Certificates --
Termination Upon Insolvency Event of the
Class IC Certificateholder" herein.
Subordination; Spread Account ......The Depositor will establish an account
(the "Spread Account") on the Closing
Date. On each Distribution Date
thereafter, the Servicer will deposit
into the Spread Account any amounts
remaining in the Certificate Account
after the payment on such date of all
amounts owing pursuant to the Pooling
S-6
<PAGE>
and Servicing Agreement to the
Certificateholders (other than the Class
IC Certificateholder), the Surety Bond
Issuer and the Servicer for the Monthly
Servicing Fee. In the event that
Available Funds are insufficient on any
Distribution Date prior to the
termination of the Trust (after payment
of the Monthly Servicing Fee) to pay
Monthly Principal and Class A and Class
I Monthly Interest to the Class A and
Class I Certificateholders, draws will
be made on the Spread Account to the
extent of the balance thereof and, if
necessary, the Surety Bond, in the
manner and to the extent described
herein. The Spread Account is solely for
the benefit of the Class A and Class I
Certificateholders and the Surety Bond
Issuer. In the event the amount on
deposit in the Spread Account is zero
after giving effect to any draws thereon
for the benefit of the Class A and Class
I Certificateholders, and there is a
default under the Surety Bonds, losses
on the Receivables will be borne
directly pro rata by the Class A
Certificateholders and Class I
Certificateholders, as described herein.
Any such reduction of the principal
balance of the Receivables due to losses
on the Receivables will also result in a
reduction of the Class I Notional
Principal Amount. See "The Offered
Certificates-- Distributions on the
Offered Certificates" and "--Accounts"
herein.
<PAGE>
The Class A Certificates and Class I
Certificates will be senior in right and
interest to the Class IC Certificate.
The Class A Certificateholders and the
Class I Certificateholders will have
equal rights with respect to amounts
collected on or with respect to the
Receivables and other assets of the
Trust in the event of a shortfall. The
Trustee will first withdraw funds from
the Spread Account on each Distribution
Date to the extent of any shortfall in
the Class A and Class I Monthly Interest
and the Monthly Principal as described
above. Any amount on deposit in the
Spread Account on any Distribution Date
in excess of the Required Spread Amount
(defined below) after all other required
deposits thereto and withdrawals
therefrom have been made, and after
payment therefrom of all amounts due the
Surety Bond Issuer will be distributed
to the holder of the Class IC
Certificate (the "Class IC
Certificateholder"). Any amount so
distributed to the Class IC
Certificateholder will no longer be an
asset of the Trust. While it is intended
that the amount on deposit in the Spread
Account will grow over time, through the
deposit thereto of the excess
collections, if any, on the Receivables,
to the Required Spread Amount, there can
be no assurance that such growth will
actually occur. The "Required Spread
Amount" with respect to any Distribution
Date will equal ____% of the initial
Pool Balance. If the average aggregate
yield of the Receivables pool in excess
of losses falls below a prescribed level
set forth in the Insurance Agreement,
the Required Spread Amount will be
increased to ___% of the Pool Balance.
Upon and during the continuance of an
Event of Default or upon the occurrence
of certain other events described in the
Insurance Agreement generally involving
a failure of performance by the Servicer
or a material misrepresentation made by
the Servicer under the Pooling and
Servicing Agreement or the Insurance
Agreement, the Required Spread Amount
shall be equal to the Surety Bond
Amount, as further described below. See
"The Offered Certificates -- Accounts"
and -- "The Surety Bond" herein.
Surety Bond ........................The Depositor shall obtain an irrevocable
surety bond (the "Surety Bond") issued
by the Surety Bond Issuer (as specified
below), for the benefit of the Trustee
S-7
<PAGE>
on behalf of the Class A and Class I
Certificateholders. The Trustee shall
draw on the Surety Bond in the event
that sufficient funds are not available
(after payment of the Monthly Servicing
Fee and after withdrawals from the
Spread Account to pay the Class A and
Class I Certificateholders on any
Distribution Date in accordance with the
Pooling and Servicing Agreement) to
distribute Class A and Class I Monthly
Interest and Monthly Principal, up to
the Surety Bond Amount. See "The Offered
Certificates--The Surety Bond."
Surety Bond Amount .................The term "Surety Bond Amount" means with
respect to any Distribution Date: (x)
the sum of (A) the lesser of (i) the
Certificate Balance (after giving effect
to any distribution of Available Funds
and any funds withdrawn from the Spread
Account to pay Monthly Principal on such
Distribution Date) and (ii) the Net
Principal Surety Bond Amount, plus (B)
Class A Monthly Interest, plus (C) Class
I Monthly Interest, plus (D) the Monthly
Servicing Fee; less (y) all amounts on
deposit in the Spread Account on such
Distribution Date. "Net Principal Surety
Bond Amount" means the Certificate
Balance as of the first Distribution
Date minus all amounts previously drawn
on the Surety Bond or from the Spread
Account with respect to Monthly
Principal.
Surety Bond Issuer ................._______________________________________.
Optional Sale.........................The Class IC Certificateholder has the
right to cause the Trustee to sell all
the Receivables (referred to herein as
an "Optional Sale") as of the last day
of any Collection Period, at a purchase
price equal to the fair market value of
the Receivables (but not less than the
sum of (i) their aggregate outstanding
principal balance plus accrued and
unpaid interest thereon and (ii) any
amounts due the Surety Bond Issuer), if
(i) the Certificate Balance as of the
following Distribution Date will equal
10% or less of the initial Certificate
Balance and (ii) the Class I Notional
Principal Amount has been reduced to
zero.
Tax Status............................In the opinion of special tax counsel to
the Depositor, the Trust will not be
treated as an association taxable as a
corporation or as a "publicly traded
partnership" taxable as a corporation.
The Trustee and the Certificateholders
will agree to treat the Trust as a
partnership for federal income tax
purposes, which will not be subject to
federal income tax at the Trust level.
See "Certain Federal Income Tax
Consequences" in the Prospectus.
Ratings .............................As a condition to the issuance of the
Offered Certificates, the Class A and
Class I Certificates must be rated in
the highest category by at least one
nationally recognized rating agency. The
rating of the Class I Certificates does
not address the possibility that rapid
rates of principal prepayments,
S-8
<PAGE>
including prepayments resulting from a
sale of the Receivables upon an
Insolvency Event with respect to the
Class IC Certificateholder, could result
in a failure of the holders of the Class
I Certificates to fully recover their
investment. A security rating is not a
recommendation to buy, sell or hold
securities and may be subject to
revision or withdrawal at any time by
the assigning rating agency. See
"Certificate Rating".
ERISA Considerations..................Subject to the considerations discussed
under "ERISA Considerations" herein and
in the Prospectus, the Class A
Certificates and the Class I
Certificates may be eligible for
purchase by employee benefit plans
subject to the Employee Retirement
Income Security Act of 1974, as amended
("ERISA"). Any benefit plan fiduciary
considering the purchase of an Offered
Certificate should, among other things,
consult with experienced legal counsel
in determining whether all required
conditions for such purchase have been
satisfied. See "ERISA Considerations"
herein and in the Prospectus.
S-9
<PAGE>
RISK FACTORS
Investors should carefully consider the information set forth below as
well as the other investment considerations described in this prospectus.
Limited Liquidity
There is currently no secondary market for the Offered Certificates.
The Underwriters currently intend to make a market in the Offered Certificates,
but are under no obligation to do so. There can be no assurance that a secondary
market will develop or, if one does develop, that it will provide
Certificateholders with liquidity of investment or that it will continue for the
life of the Offered Certificates.
Certificates Solely Obligations of the Trust
The Offered Certificates are interests in the Trust only and do not
represent the obligation of any other person. The Class A and Class I
Certificateholders are senior in right and interest to the Class IC
Certificateholder (as described under "The Offered Certificates -- Distributions
on the Offered Certificates"). The Trustee will withdraw funds from the Spread
Account, up to the full balance of the funds on deposit in such account, only in
the event that Available Funds are insufficient in accordance with the Pooling
and Servicing Agreement to distribute Class A and Class I Monthly Interest and
Monthly Principal (after payment of the Monthly Servicing Fee). The amount on
deposit in the Spread Account is intended to increase over time to an amount
equal to the Required Spread Amount. There is no assurance that such growth will
occur or that the balance in the Spread Account will always be sufficient to
assure payment in full of Monthly Principal and Monthly Interest. If the amount
on deposit in the Spread Account is reduced to zero after giving effect to all
amounts to be deposited to and withdrawn from the Spread Account pursuant to the
Pooling and Servicing Agreement, on any Distribution Date prior to termination
of the Trust, the Trustee will draw on the Surety Bond, in an amount equal to
the shortfall in respect of Class A and Class I Monthly Interest and Monthly
Principal, up to the Surety Bond Amount. If the Spread Account is reduced to
zero and there is a default under the Surety Bond, the Trust will depend solely
on current distributions on the Receivables to make distributions on the
Certificates. See "The Receivables Pool -- Delinquencies, Repossessions and Net
Losses" and "The Offered Certificates -- Accounts" herein.
Prepayment Risks Associated with the Class I Certificates
If the Receivables prepay at a constant rate within the range assumed
in preparing the Planned Notional Principal Amount Schedule, the PAC Component
(and the Class I Notional Principal Amount) will be reduced in accordance with
the Planned Notional Principal Amount Schedule. If the Receivables prepay at a
constant rate higher than ____% ABS, the Class I Notional Principal Amount will
be reduced more quickly than provided in the Planned Notional Principal Amount
Schedule, thereby reducing the yield to holders of the Class I Certificates. In
general, a rapid rate of principal prepayments (including liquidations due to
losses, repurchases and other dispositions and prepayments resulting from any
sale of the Receivables upon an Insolvency Event with respect to the Class IC
Certificateholder) will have a material negative effect on the yield to maturity
of the Class I Certificates. Prospective investors should fully consider the
associated risks, including the risk that a rapid rate of prepayments could
result in the failure of investors in the Class I Certificates to recoup their
initial investment. See "Yield and Prepayment Considerations" herein.
Termination Upon Insolvency Event of the Class IC Certificateholder
The Depositor will be the initial Class IC Certificateholder. If an
Insolvency Event occurs with respect to the Class IC Certificateholder, the
Receivables will be sold and the Trust will be liquidated unless, within the
period specified herein, holders of more than 51% of the Certificate Balance and
holders of more than 51% of the Class I Notional Principal Balance instruct the
Trustee not to sell the Receivables and liquidate the Trust or unless such sale
and liquidation is otherwise prohibited by applicable law. The Surety Bond will
not be available to pay any shortfalls upon sale of the Receivables on
liquidation of the Trust. See "The Offered Certificates -- Termination Upon
Insolvency Event of the Class IC Certificateholder" herein. The Depositor is a
special purpose corporation the activities of which are circumscribed by its
S-10
<PAGE>
charter with a view to reducing any risk of its bankruptcy; however no
representation is made concerning the financial condition of the Class IC
Certificateholder or the likelihood of an Insolvency Event with respect to such
holder. In the event of the sale of the Receivables and liquidation of the Trust
following an Insolvency Event, the proceeds may not be sufficient to pay all
accrued and unpaid amounts owing on the Certificates. The Surety Bond will not
be available to cover any such shortfall. Following such a sale, the Class I
Certificateholders may be entitled to receive a portion of the proceeds of sale
based upon the amount originally paid for the Class I Certificates (as reduced
by prior returns of such amount) as provided in the Pooling and Servicing
Agreement. Furthermore, any distributions of such proceeds will have an effect
similar to a prepayment of the Receivables and could affect the yield on the
Class A Certificates and may significantly affect the yield on the Class I
Certificates. See "Yield and Prepayment Considerations" herein.
Certificate Rating
It is a condition of issuance of the Offered Certificates that the
Class A Certificates and the Class I Certificates be rated in the highest
category by at least one nationally recognized rating agency. Such ratings will
reflect only the views of the relevant rating agency. There is no assurance that
any such rating will continue for any period of time or that it will not be
revised or withdrawn entirely by such rating agency if, in its judgment,
circumstances so warrant. A revision or withdrawal of such rating may have an
adverse effect on the market price of the Offered Certificates. The rating of
the Class I Certificates does not address the possibility that rapid rates of
principal prepayments, including prepayments resulting from a sale of the
Receivables upon an Insolvency Event with respect to the Class IC
Certificateholder, could result in a failure of the holders of the Class I
Certificates to fully recover their investment. A security rating is not a
recommendation to buy, sell or hold securities.
FORMATION OF THE TRUST
The Depositor will establish the Trust by selling and assigning the
Trust property, as described below, to the Trustee in exchange for the Offered
Certificates. The Depositor will retain the Class IC Certificate. UAC will be
responsible for servicing the Receivables pursuant to the Pooling and Servicing
Agreement and will be compensated for acting as the Servicer. See "Description
of the Transfer and Servicing Agreements -- Servicing Compensation and Payment
of Expenses" in the Prospectus. To facilitate servicing and to minimize
administrative burden and expense, the Servicer will be appointed custodian of
the Receivables by the Trustee, but will not stamp the Receivables to reflect
the sale and assignment of the Receivables to the Trust or make any notation of
the Trust's lien on the certificates of title of the Financed Vehicles. In the
absence of such notation on the certificates of title, the Trustee may not have
perfected security interests in the Financed Vehicles securing the Receivables.
See "Certain Legal Aspects of the Receivables" in the Prospectus. Under the
terms of the Pooling and Servicing Agreement, UAC may delegate its duties as
Servicer and custodian; however, any such delegation will not relieve UAC of its
liability and responsibility with respect to such duties.
The Depositor will establish, for the benefit of the Class A and Class
I Certificateholders and the Surety Bond Issuer, the Spread Account and will
obtain the Surety Bond. Withdrawals from the Spread Account and, only after such
withdrawals, draws on the Surety Bond will be made in accordance with the
Pooling and Servicing Agreement in the event that sufficient funds are not
available (after payment of the Monthly Servicing Fee) to distribute, in the
case of Class I Monthly Interest, Class A Monthly Interest and Monthly
Principal, up to the Surety Bond Amount. If the Spread Account is exhausted and
there is a default under the Surety Bond, the Trust will look only to the
Obligors on the Receivables and the proceeds from the repossession and sale of
Financed Vehicles that secure Defaulted Receivables for distributions of
interest and principal on the Certificates. In such event, certain factors, such
as the Trustee's not having perfected security interests in some of the Financed
Vehicles, may affect the Trust's ability to realize on the collateral securing
the Receivables, and thus may reduce the proceeds to be distributed to
Certificateholders. See "The Offered Certificates -- Accounts" herein and
"Certain Legal Aspects of the Receivables" in the Prospectus.
S-11
<PAGE>
THE RECEIVABLES POOL
The Receivables were selected from UAFC's portfolio for purchase by the
Depositor by several criteria, including that each Receivable: (i) has an
original number of payments of not more than ___ payments and not less than ___
payments, (ii) has a remaining maturity of not more than ___ months and not less
than _____ months, (iii) provides for level monthly payments that fully amortize
the amount financed over the original term, and (iv) has a Contract Rate
(exclusive of prepaid finance charges) of not less than _____%. The weighted
average remaining maturity of the Receivables will be approximately ____ months
as of the Cutoff Date.
Approximately ______% of the Receivables as of the cutoff date are
simple interest contracts which provide for equal monthly payments.
Approximately ______% of the aggregate principal balance of the Receivables as
of the Cutoff Date are Precomputed Receivables (as defined in the Prospectus)
originated in California. All of such Precomputed Receivables are Rule of 78's
Receivables (as defined in the Prospectus). Approximately ______% of the
aggregate principal balance of the Receivables as of the Cutoff Date represent
financing of new vehicles; the remainder of the Receivables represent financing
of used vehicles.
Receivables representing more than 10% of the aggregate principal
balance of the Receivables as of the Cutoff Date were originated in metropolitan
areas in each of the States of _________, __________ and ___________. The
performance of the Receivables in the aggregate could be adversely affected in
particular by the development of adverse economic conditions in such
metropolitan areas.
Composition of the Receivables as of the Cutoff Date
<TABLE>
<CAPTION>
Aggregate Original Weighted
Number of Principal Principal Average
Receivables Balance Balance Rate
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
New Automobiles and Light-Duty Trucks............ $ $ %
Used Automobiles and Light-Duty Trucks...........
New Vans (1).....................................
Used Vans (1)....................................
All Receivables.................................. $ $ %
</TABLE>
<TABLE>
<CAPTION>
Weighted Weighted Percent of
Average Average Aggregate
Remaining Original Principal
Term(2) Term(2) Balance(3)
---------- -------- -----------
<S> <C> <C> <C>
New Automobiles and Light-Duty Trucks.......... mos. mos. %
Used Automobiles and Light-Duty Trucks.........
New Vans (1)...................................
Used Vans (1)..................................
All Receivables................................ mos. mos. %
</TABLE>
(1) References to vans include minivans and van conversions.
(2) Based on scheduled maturity and assuming no prepayments of the Receivables.
(3) Sum may not equal 100% due to rounding.
S-12
<PAGE>
Geographic Distribution of the Receivables as of the Cutoff Date
Percent of Aggregate
State (1)(2) Principal Balance (3)
Arizona................................................... %
California................................................
Colorado..................................................
Florida...................................................
Georgia...................................................
Illinois..................................................
Indiana...................................................
Iowa......................................................
Kansas....................................................
Kentucky..................................................
Maryland..................................................
Michigan..................................................
Missouri..................................................
Nebraska..................................................
New Mexico................................................
North Carolina............................................
Ohio......................................................
Oklahoma..................................................
Oregon....................................................
Pennsylvania..............................................
South Carolina............................................
Tennessee.................................................
Texas.....................................................
Virginia..................................................
Washington................................................
Wisconsin.................................................
TOTAL ............................................ %
(1) Based on address of the Dealer selling the related Financed Vehicle.
(2) Receivables originated in Ohio were solicited by Dealers for direct
financing by UAC or the Predecessor. All other Receivables were
originated by Dealers and purchased from such Dealers by UAC or the
Predecessor.
(3) Sum may not equal to 100% due to rounding.
Distribution of Receivables Vehicles by Model Year
<TABLE>
<CAPTION>
Principal
Model Number of Percentage Balance as of Percentage
Year Receivables of Total(1) Cut Off Date of Total(1)
---- ----------- ----------- ------------- -----------
<S> <C> <C> <C> <C>
1983..................................... % $ %
1984.....................................
1985.....................................
1986.....................................
1987.....................................
1988.....................................
1989.....................................
1990.....................................
1991.....................................
1992.....................................
1993.....................................
1994.....................................
1995.....................................
1996.....................................
1997.....................................
Total.................................. % $ %
</TABLE>
- - - - ----------
(1) Sum may not equal 100% due to rounding.
S-13
<PAGE>
Distribution of the Receivables by Note Rate as of the Cutoff Date
<TABLE>
<CAPTION>
Percentage of
Aggregate Average Aggregate
Number of Principal Principal Principal
Note Rate Range Receivables Balance Balance Balance(1)
------------------ ----------- ----------- --------- --------------
<S> <C> <C> <C> <C>
7.000 to 7.999%...................... $
8.000 to 8.999%......................
9.000 to 9.999%......................
10.000 to 10.999%......................
11.000 to 11.999%......................
12.000 to 12.999%......................
13.000 to 13.999%......................
14.000 to 14.999%......................
15.000 to 15.999%......................
16.000 to 16.999%......................
17.000 to 17.999%......................
18.000 to 18.999%......................
19.000 to 19.999%......................
20.000 to 20.999%......................
21.000 to 22.999%......................
23.000 to 23.999%......................
24.000 to 24.999%......................
25.000 to 25.999%......................
Total...................... $ %
</TABLE>
- - - - ----------
(1) Sum may not equal 100% due to rounding.
Distribution of the Receivables by Remaining Term as of the Cutoff Date
<TABLE>
<CAPTION>
Percentage of
Remaining Aggregate Average Aggregate
Scheduled Number of Principal Principal Principal
Term Range Receivables Balance Balance Balance(1)
---------- ----------- ---------- --------- --------------
<S> <C> <C> <C> <C>
0 to 6 months....................... $ $
7 to 12 months.......................
13 to 24 months.......................
25 to 36 months.......................
37 to 48 months.......................
49 to 60 months.......................
61 to 66 months.......................
67 to 84 months.......................
Total....................... $ $ %
</TABLE>
- - - - ----------
(1) Sum may not equal 100% due to rounding.
S-14
<PAGE>
Delinquencies, Repossessions and Net Losses
Set forth below is certain information concerning the experience of UAC and
the Predecessor pertaining to delinquencies, repossessions, and net losses on
its prime fixed rate retail automobile, light truck and van receivables serviced
by UAC and the Predecessor. There can be no assurance that the delinquency,
repossession, and net loss experience on the Receivables will be comparable to
that set forth below.
Delinquency Experience
<TABLE>
<CAPTION>
At June 30,
----------------------------------------------------------------
1994 1995 1996
------------------ ------------------- ------------------
(Dollars in thousands)
Number of Number of Number of
Receivables Amount Receivables Amount Receivables Amount
----------- ------ ----------- ------ ----------- ------
<S> <C> <C> <C> <C> <C> <C>
Servicing portfolio(1)...................... 91,937 $843,245 117,837 $1,159,349 $
Delinquencies
30-59 days............................... 907 8,389 1,169 12,097
60-89 days............................... 213 2,118 377 4,124
90 days or more.......................... 137 1,324 0 0
Total delinquencies......................... 1,257 11,832 1,546 16,221
Total delinquencies as a
percent of servicing
portfolio.............................. 1.37% 1.40% 1.31% 1.40 % % %
</TABLE>
Credit Loss Experience (1)
<TABLE>
<CAPTION>
At June 30,
----------------------------------------------------------------------
1994 1995 1996
--------------------- ---------------------- ----------------------
(Dollars in thousands)
Number of Number of Number of
Receivables Amount Receivables Amount Receivables Amount
----------- -------- ----------- -------- ----------- ------
<S> <C> <C> <C> <C> <C> <C>
Avg. servicing portfolio(2)................. 83,673 $744,149 103,682 $982,836 $
Gross charge-offs........................... 1,404 12,094 3,493 28,628
Recoveries (4).............................. 6,946 15,258
Net Losses.................................. 5,148 13,370
Gross charge-offs as a % of
avg. servicing portfolio(3).............. 1.68% 1.63% 3.37% 2.91% % %
Recoveries as a % of gross
charge-offs.............................. 57.43% 53.28% %
Net Losses as a % of avg.
servicing portfolio(4)................... 0.69% 1.36% %
</TABLE>
- - - - ----------
(1) There is generally no recourse to Dealers under any of the receivables in
the portfolio serviced by UAC or the Predecessor, except to the extent of
representations and warranties made by Dealers in connection with such
receivables.
(2) Equals the monthly arithmetic average, and includes receivables sold in
prior securitization transactions.
(3) Variation in the size of the portfolio serviced by UAC will affect the
percentages in "Gross Charge-Offs as a percentage of average servicing
portfolio" and "Net Losses as a percentage of average servicing portfolio."
(4) In fiscal 1995, the method by which recoveries are stated was changed.
Currently, recoveries include recoveries on receivables previously charged
off, cash recoveries and unsold repossessed assets carried at fair market
value. Under the previous method, reported recoveries excluded unsold
repossessed assets carried at fair market value. Prior period credit loss
experience has been restated to conform to current period classifications.
As indicated in the above tables, delinquency rates based upon
outstanding loan balances of accounts 30 days past due and over increased from
1.40% at June 30, 1995 to 2.34% at March 31, 1996 for the lending portfolio. The
primary reason for the increase in delinquencies is that UAC changed the way
that it measures and reports delinquencies beginning with the quarter ended
September 30, 1995. If UAC had used its historical methods of measuring and
reporting delinquencies, UAC estimates that the March 31, 1996 delinquency
balance would have been approximately 1.73%. While the magnitude of the change
in the reported delinquency measure appears to be significant, UAC does not
believe that it is indicative of a material change in the underlying credit
quality of UAC's portfolio. Furthermore, UAC has implemented a number of policy
and procedural changes which are designed to improve the credit quality of the
portfolio.
S-15
<PAGE>
The primary reason for the increase in delinquencies was that, beginning
with the quarter ended September 30, 1995, UAC began to include in the
delinquency calculations the accounts of customers who had filed for personal
bankruptcy, but whose cases have not been resolved. At March 31, 1996, 517
accounts which were pending bankruptcy resolution were included in delinquent
accounts. Previously, these accounts were not included in the delinquency
figures, since UAC could not take any action to rectify them until the
bankruptcy court resolved each case. UAC believes the risk of loss on these
accounts is low as approximately 76.53% of bankrupt dollars are eventually
collected since the courts generally either reaffirm these loans or allow
repossession of the vehicle.
As indicated in the tables above, credit losses as a percentage of the
average servicing portfolio increased from 1.36% at June 30, 1995 to an
annualized 1.39% at March 31, 1996, which actually represents a significant
decline from 1.73% annualized at September 30, 1995. The primary reason for the
recent rise in credit losses and a contributing factor in the increase in
delinquencies is loans UAC acquired during 1994 and early 1995 which have proven
to be of lower credit quality than loans UAC acquired prior to 1994 and after
the first quarter of 1995. UAC has determined that many of these lower quality
loans resulted from "low side overrides" which are loans made to customers whose
credit scores were below UAC's minimums, but which were made as a result of the
credit analyst's judgement that it the loans were acceptable. These loans have
had higher rates of delinquency and loss than those which met UAC's
requirements. Credit analyst discretion for making low side override loans has
been reduced and low side overrides have dropped from a high of 14.32% of the
UACSC 1995-A securitization pool to 3.31% of the UACSC 1996-A securitization
pool. UAC believes the disparity in the performance of the low side override
loans resulted from continuing the existing override policy despite the
implementation of a new scoring system in December 1993. UAC also believes that
the actual mix of loans purchased during 1994 may have been of somewhat lower
average credit quality as a result of competitive pricing pressures which
permitted higher quality borrowers to obtain lower cost loans from others. Loans
made during 1994 are currently in the peak period for delinquencies and credit
losses which UAC believes to be nine to 16 months from the date of closing. UAC
believes this is demonstrated by the decline in delinquencies and losses in the
quarter ending March 31, 1996 as compared to the quarters ending September 30,
1995 and December 31, 1995.
UAC has taken a number of steps to improve its collection efforts over
the last several months. It has increased the staffing level in its collections
department by more than 115% since June 30, 1995. It has installed an improved
version of its collection system in its new headquarters which will allow its
collectors to be much more productive. For example, the number of outbound
credit collections stations at its headquarters has been increased from 14 to
50. In addition, UAC has revised its repossession policy so that it now
repossesses by 120 days past due, rather than after 60 days. UAC found that when
it switched, in April 1995, to begin repossessions after 60 days, losses
increased because some cars were repossessed from people that otherwise had the
ability to make payments. Other credit quality changes include the reduction in
low side overrides previously mentioned and a recent change to increase cutoff
scores in any individual state where credit losses were running at a rate
greater than 2.50% over the life of the loans.]
[To be updated for current period]
YIELD AND PREPAYMENT CONSIDERATIONS
General
Monthly Interest (as defined herein) on the Receivables will be
distributed to Certificateholders on each Distribution Date to the extent of the
Pass-Through Rate applied to the Certificate Balance or Notional Principal
Amount, as applicable, as of the preceding Distribution Date or the Closing
Date, as applicable (after giving effect to distributions of principal on such
preceding Distribution Date). See "The Offered Certificates -- Distributions on
the Offered Certificates" herein. In the event of a full or partial prepayment
on a Receivable, Certificateholders will receive interest for the full month of
such prepayment either through the distribution of interest paid on other
Receivables or withdrawal from the Spread Account.
S-16
<PAGE>
Although the Receivables will have different Contract Rates, each
Receivable's Contract Rate generally will exceed the sum of (a) the Class A
Pass-Through Rate (b) the per annum rate used to calculate the Surety Bond Fee
(c) the Class I Pass-Through Rate and (d) the per annum rate used to calculate
the Servicing Fee. The Contract Rate on a small percentage of the Receivables,
however, will be less than the foregoing sum. Disproportionate rates of
prepayments between Receivables with higher and lower Contract Rates could
affect the ability of the Trust to distribute Monthly Interest to
Certificateholders.
The effective yield to Certificateholders will be below the yield
otherwise produced by the Pass-Through Rate because the distribution of Monthly
Principal and Monthly Interest in respect of any given month will not be made
until the related Distribution Date, which will not be earlier than the eighth
day of the following month.
The Class I Certificates
The Class I Certificates are interest only certificates. Although the
planned amortization feature of the Class I Certificates is intended to reduce
the uncertainty of prepayments with respect to the Class I Certificates, if the
Receivables prepay sufficiently quickly, the Notional Principal Amount of the
Class I Certificates may be reduced more quickly than provided in the Planned
Notional Principal Amount Schedule, thereby reducing the yield to the holders of
the Class I Certificates. The yield to maturity on the Class I Certificates will
therefore be very sensitive to the rate of prepayments, including voluntary
prepayments, prepayments due to liquidations, repurchases and losses and
prepayments resulting from any sale of the Receivables upon an Insolvency Event
relating to the Class IC Certificateholder. Prospective investors should fully
consider the associated risks, including the risk that a rapid rate of
prepayments could result in the failure of investors in the Class I Certificates
to recoup their initial investment. See "Risk Factors" and "The Offered
Certificates -- The Class I Certificates -- Calculation of Notional Principal
Amount", "-- Termination Upon Insolvency Event of the Class IC
Certificateholder" and "-- Class I Yield Considerations".
THE DEPOSITOR AND UAC
UAC currently acquires loans from over 2,000 manufacturer franchised
automobile dealerships in 44 metropolitan areas in 23 states. UAC is an Indiana
corporation, formed in December 1993 by the Predecessor to succeed to the
indirect automobile finance business of the Predecessor, which the Predecessor
had operated since 1986. UAC began purchasing and originating Receivables in
April 1994. For the fiscal years ended June 30, 1993, 1994, 1995 and 1996 UAC
and/or its Predecessor acquired loans aggregating $435 million, $615 million,
$767 million, and $______ million, respectively, representing annual increases
of 41%, 25%, and ____, respectively. Of the $_____ billion of loans in the
servicing portfolio of UAC and its Predecessor (consisting of the principal
balance of loans held for sale and securitized loans) at June 30, 1996,
approximately _____% represented loans on used cars and approximately _____%
represented loans on new cars.
Additional information regarding UAC and the Depositor is set forth under
"Union Acceptance Corporation and Affiliates" in the Prospectus.
THE SURETY BOND ISSUER
[Information to be provided by Surety Bond Issuer]
S-17
<PAGE>
THE OFFERED CERTIFICATES
The Offered Certificates will be issued pursuant to the Pooling and
Servicing Agreement. Copies of the Pooling and Servicing Agreement (without
exhibits) may be obtained by Certificateholders upon request in writing to the
Servicer at the address set forth herein under "Reports to Certificateholders".
Citations to the relevant sections of the Pooling and Servicing Agreement appear
below in parentheses. The following summary does not purport to be complete and
is subject to and qualified in its entirety by reference to the Pooling and
Servicing Agreement.
Distributions
In general, it is intended that the Trustee distribute to the Class A
Certificateholders on each Distribution Date beginning _________, 199___, the
aggregate principal payments, including full and partial prepayments (except
certain prepayments in respect of Precomputed Receivables as described below
under "-- Accounts") received on the Receivables during the related Collection
Period, plus a full month's interest at the Class A Pass-Through Rate. It is
also intended that the Trustee distribute to the Class I Certificateholders, on
each Distribution Date beginning on _________, 199___ and continuing until the
Distribution Date on which the Class I Notional Principal Amount is reduced to
zero, a full month's interest at the Class I Pass-Through Rate on the Class I
Notional Principal Amount. (Section 9.04.) See "-- Distributions on the Offered
Certificates". Interest to Certificateholders may be provided by a payment made
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by or on behalf of the Obligor, by an Advance made by the Servicer to cover
interest due on a defaulted Receivable or by a withdrawal from the Spread
Account. If such interest represents Class A or Class I Monthly Interest it may
be provided by a draw on the Surety Bond if there are not sufficient funds
(after payment of the Monthly Servicing Fee and after giving effect to any
withdrawals from the Spread Account for the benefit of the Class A and Class I
Certificateholders) to pay Class I Monthly Interest, Class A Monthly Interest
and Monthly Principal. Draws on the Surety Bond to pay Class A and Class I
Monthly Interest and Monthly Principal will be limited to the Surety Bond
Amount. See "-- Sale and Assignment of Receivables" and "-- Accounts" herein.
The Class I Certificates -- Calculation of Notional Principal Amount
The Class I Certificates are interest-only planned amortization
securities. The Class I Certificates are entitled to receive interest at the
Class I Pass-Through Rate on the Notional Principal Amount of the Class I
Certificates, initially $_____________. The planned amortization feature is
intended to reduce the uncertainty to investors in the Class I Certificates with
respect to prepayments because the Class I Certificates will receive interest
based on their Notional Principal Amount on a principal paydown schedule rather
than on the reduction in the actual Certificate Balance as a result of principal
payments and prepayments, as described below. Solely for the purpose of
calculating the amount payable with respect to the Class I Certificates, the
Certificate Balance will be divided into two principal components, the "PAC
Component" and the "Companion Component". The Notional Principal Amount will be
equal to the PAC Component, originally $_____________. The sum of the PAC
Component and the Companion Component will at all times equal the then aggregate
unpaid Certificate Balance.
The Agreement establishes a schedule (the "Planned Notional Principal
Amount Schedule") pursuant to which principal will be allocated to the PAC
Component and the Companion Component, as described below. As the PAC Component
is reduced, the Notional Principal Amount of the Class I Certificates, and so
payments to the holders of the Class I Certificates, will also be reduced.
On each Distribution Date, the Monthly Principal will be allocated first
to the PAC Component up to the amount necessary to reduce the PAC Component to
its Planned Notional Principal Amount for such Distribution Date, as set forth
in the Planned Notional Principal Amount Schedule, second, to the Companion
Component until the balance thereof is reduced to zero and third, to the PAC
Component, without regard to the Planned Notional Principal Amount for such
Distribution Date. The foregoing allocations will be made solely for purposes of
calculating the Notional Principal Amount of the Class I Certificates and
correspondingly, the amount of interest payable with respect to the Class I
Certificates. The Class I Certificates are not entitled to receive any principal
payments. The foregoing calculations will not affect distributions of principal
with respect to the Class A Certificates.
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Planned Notional Principal Amount Schedule
Planned Notional
Distribution Date in Principal Amount
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The Class I Certificates will not be entitled to any distributions after the
Notional Principal Amount of the Class I Certificates has been reduced to zero.
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Class I Yield Considerations
Although the planned amortization feature of the Class I Certificates is
intended to reduce the uncertainty relating to prepayments of the Receivables
with respect to the Class I Certificates, the yield to maturity of the Class I
Certificates will remain extremely sensitive to the prepayment experience of the
Receivables, including voluntary prepayments, prepayments due to liquidations,
repurchases and losses and prepayments resulting from any sale of the
Receivables upon an Insolvency Event relating to the Class IC Certificateholder.
Prospective investors should fully consider the associated risks, including the
risk that such investors may not fully recover their initial investment. In
particular, investors in the Class I Certificates should note that they will not
be entitled to any distributions after the Class I Notional Principal Amount has
been reduced to zero, and that Receivables may be repurchased due to breaches of
representations. See also "--Termination Upon Insolvency Event of the Class IC
Certificateholder" and "Risk Factors" herein.
The following table illustrates the significant effect that prepayments
on the Receivables have upon the yield to maturity of the Class I Certificates.
The table shows the approximate hypothetical pre-tax yields to maturity of the
Class I Certificates, stated on a corporate bond equivalent basis, under ______
different prepayment assumptions based on the assumed purchase price and the ABS
prepayment model described below. The following table also assumes that the
Receivables have been aggregated into _____ hypothetical pools having the
following characteristics and that the level scheduled monthly payment for each
of the four pools (which is based on its principal balance, weighted average
Contract Rate and weighted average remaining term as of the Cut Off Date and its
weighted average original term) will be such that such pool will be fully
amortized by the end of its weighted average remaining term.
<TABLE>
<CAPTION>
Weighted Average Weighted Average
Cut Off Date Weighted Average Remaining Term to Original Term to
Pool Principal Balance Note Rate Maturity (in Months) Maturity (in Months)
---- ----------------- ---------------- -------------------- --------------------
<S> <C> <C> <C> <C>
1 $ %
2
3
4
</TABLE>
For purposes of the table, it is also assumed that (i) the purchase price
of the Class I Certificates is as set forth below, (ii) the Receivables have the
characteristics set forth under "-- The Class I Certificates -- Calculation of
Notional Principal Amount" above, (iii) the Receivables prepay monthly at the
specified percentages of ABS as set forth in the table below, (iv) prepayments
representing prepayments in full of individual Receivables are received on the
last day of the month and include a full month's interest thereon, (v) the
Closing Date for the Offered Certificates is ________, 199__, (vi) distributions
on the Offered Certificates are made, in cash, on the eighth day of each month,
commencing in June, 1996, (vii) no defaults or delinquencies in the payment of
the Receivables are experienced, and (viii) no Receivable is repurchased for
breach of representation and warranty or otherwise.
Sensitivity of the Class I Certificates to Prepayments
1.0% 1.6% 1.8% 2.5% 3.0%
Price(1) ABS ABS ABS ABS ABS
- - - - --------- ------- ------ ------ ------ -------
% % % % % %
- - - - ----------
(l) Expressed as a percentage of the original Notional Principal Amount.
Based on the assumptions described above and assuming a purchase price of
________% at approximately _______% ABS, the pre-tax yield to maturity of the
Class I Certificates would be approximately 0%.
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It is highly unlikely that the Receivables will prepay at a constant rate
until maturity or that all of the Receivables will prepay at the same rate. The
foregoing table assumes that each Receivable bears interest at its specified
Contract Rate, has the same remaining amortization term, and prepays at the same
rate. In fact, receivables will prepay at different rates and have different
terms.
The yields set forth in the preceding table were calculated by
determining the monthly discount rates which, when applied to the assumed stream
of cash flows to be paid on the Class I Certificates, would cause the discounted
present value of such assumed cash flows to equal the assumed purchase price of
such Class I Certificates and by converting such monthly rates to corporate bond
equivalent rates. Such calculations do not take into account variations that may
occur in the interest rates at which investors may be able to reinvest funds
received by them as distributions on the Class I Certificates and consequently
do not purport to reflect the return on any investment in the Class I
Certificates when such reinvestment rates are considered.
The Receivables will not necessarily have the characteristics assumed
above, and there can be no assurance that (i) the Receivables will prepay at any
of the rates shown in the table or at any other particular rate or will prepay
proportionately, (ii) the pre-tax yield on the Class I Certificates will
correspond to any of the pre-tax yields shown above or (iii) the aggregate
purchase price of the Class I Certificates will be equal to the purchase price
assumed. Because the Receivables will include Receivables that have remaining
terms to stated maturity shorter or longer than those assumed and Contract Rates
higher or lower than those assumed, the pre-tax yield on the Class I
Certificates may differ from those set forth above, even if all of the
Receivables prepay at the indicated constant prepayment rates.
As used herein, "ABS" refers to a prepayment model which assumes a
constant percentage of the original number of contracts in a pool prepay each
month. ABS does not purport to be either an historical description of the
prepayment experience of any pool of receivables or a prediction of the
anticipated rate of prepayments of any pool of receivables, including the
Receivables.
Sale and Assignment of Receivables
Certain information with respect to the conveyance of the Receivables (i)
from Union Acceptance Funding Corporation ("UAFC") to the Depositor pursuant to
the Purchase Agreement dated as of ________,199__, among UAFC, UAC and the
Depositor and (ii) from the Depositor to the Trust pursuant to the Pooling and
Servicing Agreement is set forth under "The Transfer and Servicing Agreements --
Sale and Assignment of the Receivables" in the Prospectus.
Accounts
In addition to the Certificate Account, the property of the Trust will
include the Spread Account and the Payahead Account.
Spread Account. On the Closing Date, the Depositor will establish the
Spread Account. Thereafter, the amount held in the Spread Account will be
increased up to the Required Spread Amount by the deposit thereto of payments on
the Receivables not utilized to make payments to the Certificateholders (other
than the Class IC Certificateholder), the Surety Bond Issuer or the Servicer on
any Distribution Date. While it is intended that the Spread Account will grow
over time to equal the Required Spread Amount through monthly deposits of excess
collections on the Receivables, if any, there can be no assurance that such
growth will actually occur. The Spread Account will be established for the
benefit of the Class A and Class I Certificateholders and the Surety Bond
Issuer. On each Distribution Date, any amounts on deposit in the Spread Account
after the payment of any amounts owed to the Surety Bond Issuer in excess of the
Required Spread Amount will be withdrawn from the Spread Account and distributed
to the Class IC Certificateholder.
Under the terms of the Pooling and Servicing Agreement, the Trustee will
withdraw funds from the Spread Account and transfer them to the Certificate
Account for any deficiency of Monthly Interest or Monthly Principal as further
described below under "-- Distributions on the Offered Certificates", to the
extent available, prior to making any draw on the Surety Bond.
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In the event that the balance of the Spread Account is reduced to zero
and there is a default under the Surety Bond on any Distribution Date, the Trust
will depend solely on current distributions on the Receivables to make
distributions of principal and interest on the Certificates. Any reduction in
the principal balance of the Receivables due to losses on the Receivables will
also result in a reduction of the Notional Principal Amount of the Class I
Certificates. In addition, because the market value of motor vehicles generally
declines with age and because of difficulties that may be encountered in
enforcing motor vehicle contracts as described in the Prospectus under "Certain
Legal Aspects of the Receivables," the Servicer may not recover the entire
amount due on such Receivables in the event of a repossession and resale of a
Financed Vehicle securing a Receivable in default. In such event, the
Certificateholders may suffer a corresponding loss. Any such losses would be
borne pro rata by the Class A Certificateholders and Class I Certificateholders.
Payahead Account. The Servicer will establish an additional account (the
"Payahead Account"), in the name of the Trustee and for the benefit of Obligors
on the Receivables, into which, to the extent required by the Agreement, early
payments by or on behalf of Obligors on Precomputed Receivables will be
deposited until such time as the payment becomes due. Until such time as
payments are transferred from the Payahead Account to the Certificate Account,
they will not constitute collected interest or collected principal and will not
be available for distribution to Certificateholders. The Payahead Account will
initially be maintained with the Trustee. Interest earned on the balance in the
Payahead Account will be remitted to the Servicer monthly. Collections on a
Precomputed Receivable made during a Collection Period shall be applied first to
any overdue scheduled payment on such Receivable, then to the scheduled payment
on such Receivable due in such Collection Period. If any collections remaining
after the scheduled payment is made are insufficient to prepay the Precomputed
Receivable in full, then generally such remaining collections shall be
transferred to and kept in the Payahead Account until such later Collection
Period as the collections may be retransferred to the Certificate Account and
applied either to a later scheduled payment or to prepay such Receivable in
full.
Advances
With respect to each Receivable delinquent more than 30 days at the end
of a Collection Period, the Servicer will make an Advance in an amount equal to
30 days of interest, but only to the extent that the Servicer in its sole
discretion, expects to recoup the Advance from subsequent collections on the
Receivable. The Servicer will deposit the Advance in the Certificate Account on
or before the fifth calendar day of the month following the Collection Period.
The Servicer will recoup its Advance from subsequent payments by or on behalf of
the respective Obligor, from insurance proceeds or, upon the Servicer's
determination that reimbursement from the preceding sources is unlikely, will
recoup its Advance from any collections made on other Receivables. (Section
9.05.)
Distributions on the Class IC Certificate
The Class IC Certificate will be initially issued to the Depositor and
will entitle it to receive monthly all funds held in the Spread Account in
excess of the Required Spread Amount after payment of all amounts owed to the
Surety Bond Issuer. Upon termination of the Trust the Class IC Certificateholder
is entitled to receive any amounts remaining in the Spread Account (only after
all required payments to the Surety Bond Issuer are made) after the payment of
expenses and distributions to Certificateholders. See "-- Accounts" above.
Distributions on the Offered Certificates
The Servicer will deposit in the Certificate Account the amount of
payments on all Receivables received with respect to the preceding Collection
Period. All such payments on the Simple Interest Receivables, the scheduled
payments on Precomputed Receivables, plus the net amount to be transferred from
the Payahead Account for the related Distribution Date, all Advances for such
Collection Period, and the Purchase Amount for all Receivables that became
Purchased Receivables during the preceding Collection Period, will be available
for distribution pursuant to the terms of the Pooling and Servicing Agreement on
the next succeeding Distribution Date ("Available Funds") and will determine the
amount of funds necessary to make distributions of Monthly Principal and Monthly
Interest to the Certificateholders and the Monthly Servicing Fee to the
Servicer. If there is a deficiency with respect to Class A or Class I Monthly
Interest or Monthly Principal on any Distribution Date after giving effect to
payments of the Monthly Servicing Fee on such Distribution Date, the Servicer
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will withdraw amounts, to the extent available, from the Spread Account in the
amount of such deficiency and notify the Trustee of any remaining deficiency,
whereupon the Trustee will draw on the Surety Bond to pay Class A and Class I
Monthly Interest and Monthly Principal on any Distribution Date, up to the
Surety Bond Amount. Moreover, if the Available Funds for a Distribution Date are
insufficient to pay current and past due Surety Bond Fees, and other amounts
owed to the Surety Bond Issuer, pursuant to the Insurance Agreement, plus
accrued interest thereon, to the Surety Bond Issuer, the Servicer will notify
the Trustee of such deficiency, and the amount, if any, then on deposit in the
Spread Account (after giving effect to any withdrawal to satisfy a deficiency
described in the two preceding sentences) will be available to cover such
deficiency.
If acceptable to each Rating Agency without a reduction in the rating of
any class of Offered Certificates, the Servicing Fee due to the Servicer in
respect of each Collection Period will be distributed to the Servicer during
such Collection Period from Collections for such Collection Period.
On each such Distribution Date, the Trustee will apply or cause to be
applied the Available Funds (plus, to the extent required for payment of Monthly
Interest or Monthly Principal any amounts withdrawn from the Spread Account or
drawn on the Surety Bond, as applicable) to make the following payments in the
following priority:
(a) the aggregate amount of outstanding Advances on all Receivables (x)
that became Defaulted Receivables during the prior Collection Period
and (y) that the Servicer determines to be unrecoverable, to the
Servicer;
(b) the Servicing Fee, including any overdue Servicing Fee, to the
Servicer, to the extent not previously distributed to the Servicer;
(c) pro rata, (y) Monthly Principal and Class A Monthly Interest,
including any overdue Monthly Principal and Class A Monthly Interest,
to the Class A Certificateholders and (z) Class I Monthly Interest,
including any overdue Class I Monthly Interest, to the Class I
Certificateholders;
(d) the Surety Bond Fee to the Surety Bond Issuer;
(e) the amount of recoveries of Advances (to the extent such recoveries
have not previously been reimbursed to the Servicer pursuant to clause
(a) above), to the Servicer;
(f) the amount of Liquidation Proceeds on Purchased Receivables purchased
by the Servicer, to the Servicer;
(g) the amount of Liquidation Proceeds on Purchased Receivables
repurchased by the Depositor, to the Depositor;
(h) the aggregate amount of any unreimbursed draws on the Surety Bond
payable to the Surety Bond Issuer, under the Insurance Agreement, for
Class A Monthly Interest, Class I Monthly Interest and Monthly
Principal, plus accrued interest thereon and any other amounts owing
to the Surety Bond Issuer under the Insurance Agreement; and
(i) the balance into the Spread Account.
After all distributions pursuant to clauses (a) through (i) above have
been made for each Distribution Date, the amount of funds remaining in the
Spread Account on such date, if any, in excess of the Required Spread Amount,
will be distributed by the Trustee to the Class IC Certificateholder. Any
amounts so distributed to the Class IC Certificateholder will no longer be
property of the Trust and Certificateholders will have no rights with respect
thereto.
If on any Distribution Date there are not sufficient Available Funds to
pay the distribution required by (c) above, the Available Funds distributable
thereunder shall be distributed proportionately on the basis of the ratio of the
required distribution due each of the Class A and Class I Certificateholders,
respectively, to the sum of the distributions required by (c) to the Class A
Certificateholders and the Class I Certificateholders. The amount so distributed
to the Class A Certificateholders hereunder shall be allocated first to Class A
Monthly Interest, and second to Monthly Principal.
S-24
<PAGE>
"Monthly Interest" for any Distribution Date will equal the sum of the
Class A Monthly Interest and the Class I Monthly Interest.
"Class A Monthly Interest" for any Distribution Date will equal (i) for
the first Distribution Date, the product of the following: (one-twelfth of the
Class A Pass-Through Rate) multiplied by (the number of days remaining in the
month of the Closing Date (assuming a 30 day month) from the Closing Date
divided by 30) multiplied by (the Certificate Balance at the Closing Date) and
(ii) with respect to each subsequent Distribution Date, the product of
one-twelfth of the Class A Pass-Through Rate and the Certificate Balance on the
preceding Distribution Date (after giving effect to any distribution of Monthly
Principal required to be made on such preceding Distribution Date).
"Monthly Principal" for any Distribution Date will equal the amount
necessary to reduce the Certificate Balance to the aggregate unpaid principal
balance of the Receivables on the last day of the preceding Collection Period;
provided, however, that Monthly Principal on the Final Scheduled Distribution
Date will equal the Certificate Balance on such date. For the purpose of
determining Monthly Principal, the unpaid principal balance of a Defaulted
Receivable or a Purchased Receivable is deemed to be zero on and after the last
day of the Collection Period in which such Receivable became a Defaulted
Receivable or a Purchased Receivable.
"Class I Monthly Interest" for any Distribution Date will equal (i) for
the first Distribution Date, the product of the following: (one-twelfth of the
Class I Pass-Through Rate) multiplied by (the number of days remaining in the
month of the Closing Date (assuming a 30 day month) from the Closing Date
divided by 30) multiplied by (the Class I Notional Principal Amount at the
Closing Date) and (ii) with respect to each subsequent Distribution Date, the
product of one-twelfth of the Class I Pass-Through Rate and the Notional
Principal Amount on the preceding Distribution Date (after giving effect to any
application of Monthly Principal on such preceding Distribution Date).
"Surety Bond Fee" for any Distribution Date will equal one-twelfth of the
product of the Surety Bond per annum fee rate set forth in the Insurance
Agreement and the Certificate Balance calculated as of the first day of the
Collection Period to which such Distribution Date relates and payable monthly in
arrears.
"Defaulted Receivable" will mean, for any Collection Period, a Receivable
as to which any of the following has occurred: (i) the Receivable is 120 days or
more delinquent as of the last day of such Collection Period; (ii) the Financed
Vehicle that secures the Receivable has been repossessed; or (iii) the
Receivable has been determined to be uncollectable in accordance with the
Servicer's customary practices on or prior to the last day of such Collection
Period; provided, however, that any Receivable which the Depositor or the
Servicer is obligated to repurchase or purchase pursuant to the Pooling and
Servicing Agreement shall be deemed not to be a Defaulted Receivable.
As an administrative convenience, the Servicer will be permitted to make
the deposit of Collections and aggregate Advances and Purchase Amounts for or
with respect to the Collection Period, net of distributions to be made to the
Servicer or Depositor with respect to the Collection Period. The Servicer,
however, will account to the Trustee and to the Certificateholders as if all
deposits and distributions were made individually. (Section 9.06.)
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The following chart sets forth an example of the application of the
foregoing provisions to a monthly distribution:
_________ .........Collection Period. The Servicer receives monthly payments,
prepayments, and other proceeds in respect of the
Receivables and deposits them in the Certificate Account.
The Servicer may deduct the Servicing Fee from such
deposits.
__________..........Record Date. Distributions on the Distribution Date are made
to Certificateholders of record at the close of business on
this date.
_________ ..........On the fifth calendar day after the end of the Collection
Period (the "Determination Date") the Servicer notifies the
Trustee of the amounts to be distributed on the Distribution
Date and of any deficiencies.
_________...........On the third business day after the Determination Date (the
"Distribution Date") the Trustee withdraws funds from the
Spread Account and/or draws on the Surety Bond, if
necessary, to pay Monthly Principal and Monthly Interest to
Certificateholders as described herein. The Trustee
distributes to Certificateholders amounts payable in respect
of the Offered Certificates, and pays the Servicing Fee to
the extent not previously paid, the Surety Bond Fee and any
amounts owing to the Surety Bond Issuer.
The Surety Bond
On or before the Closing Date, the Depositor and UAC, in its individual
capacity and as Servicer, and the Surety Bond Issuer will enter into an
Insurance and Reimbursement Agreement (the "Insurance Agreement") pursuant to
which the Surety Bond Issuer will issue the Surety Bond. Under the terms of the
Pooling and Servicing Agreement, after withdrawal of any amounts in the Spread
Account with respect to a Distribution Date to pay a deficiency in Class A or
Class I Monthly Interest or Monthly Principal, the Trustee will be authorized to
draw on the Surety Bond for the benefit of the Class A and Class I
Certificateholders and credit the Certificate Account for such draws as
described under "Description of the Offered Certificates--Distributions in
Offered Certificates." The maximum amount that may be drawn under the Surety
Bond on any Distribution Date is limited to the Surety Bond Amount for such
Distribution Date. The Surety Bond Amount, with respect to any Distribution
Date, shall equal (x) the sum of (A) the lesser of (i) the Certificate Balance
(after giving effect to any distribution of Available Funds and any funds
withdrawn from the Spread Account to pay Monthly Principal on such Distribution
Date) and (ii) the Net Principal Surety Bond Amount, plus (B) Class A Monthly
Interest, plus (C) Class I Monthly Interest, plus (D) the Monthly Servicing Fee;
less (y) all amounts on deposit in the Spread Account on such Distribution Date.
"Net Principal Surety Bond Amount" means the Certificate Balance as of the first
Distribution Date minus all amounts previously drawn on the Surety Bond or from
the Spread Account with respect to Monthly Principal.
The Surety Bond Issuer will be entitled to receive the Surety Bond Fee
and certain other amounts on each Distribution Date as described under
"Distributions on Certificates" and to receive amounts on deposit in the Spread
Account as described above under "The Spread Account." The Surety Bond Issuer
will not be entitled to reimbursement of any amounts from the
Certificateholders. The Surety Bond Issuer's obligation under the Surety Bond is
irrevocable. The Surety Bond Issuer will have no obligation other than its
obligations under the Surety Bond to the Certificateholders or the Trustee.
In the event that the balance in the Spread Account is reduced to zero
and there has been a default under the Surety Bond, the Trust may depend solely
on current distributions on the Receivables to make distributions of principal
and interest on the Offered Certificates. Any reduction in the principal balance
of the Receivables due to losses on the Receivables may also result in a
reduction of the Notional Principal Amount of the Class I Certificates. In
addition, because the market value of motor vehicles generally declines with age
and because of difficulties that may be encountered in enforcing motor vehicle
contracts as described in the Prospectus under "Certain Legal Aspects of the
Receivables," the Servicer may not recover the entire amount due on such
Receivables in the event of a repossession and resale of a Financed Vehicle
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securing a Receivable in default. In such event, the Certificateholders may
suffer a corresponding loss. Any such losses would be borne pro rata by the
Class A Certificateholders and Class I Certificateholders.
Unlimited Liability of the Class IC Certificateholder
The Class IC Certificateholder has agreed to assume unlimited personal
liability to any creditor of the Trust (other than the Trustee and the
Certificateholders in certain circumstances). Third party creditors may rely on
such agreement as third-party beneficiaries. (Section 7.08.)
Termination Upon Insolvency Event of the Class IC Certificateholder
If an Insolvency Event (as defined below) occurs with respect to the
Class IC Certificateholder, the Class IC Certificateholder will promptly give
notice to the Trustee of such event. Under the terms of the Pooling and
Servicing Agreement, within 15 days of such notice, the Trustee shall (i)
publish a notice of such Insolvency Event stating that the Trustee intends to
sell, dispose of, or otherwise liquidate the Receivables in a commercially
reasonable manner and (ii) send written notice to the Certificateholders
requesting instructions from such holders. Unless instructed otherwise within a
specified period by holders of more than 51% of the Certificate Balance and
holders of more than 51% of the Class I Notional Principal Amount or unless
otherwise prohibited by applicable law, the Trustee will sell, dispose of or
otherwise liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms. The proceeds from the sale, disposition or
liquidation of the Receivables will be distributed to Class A and Class I
Certificateholders each in respect of their remaining capital investment, and
the Trustee will then distribute amounts owing the Surety Bond Issuer and the
Class IC Certificateholder and proceed to wind up and terminate the Trust. If
such proceeds are not sufficient to pay any accrued and unpaid Class A Monthly
Interest, Monthly Principal, the remaining Pool Balance and any accrued but
unpaid Class I Monthly Interest and the Surety Bond Issuer in full, the Spread
Account may not be available to cover such deficiency, and the Offered
Certificateholders could incur a loss. The Surety Bond is not available to pay
such shortfall. Furthermore, any distributions of such proceeds will have the
same effect as a prepayment of the Receivables and would affect the yield on the
Class A Certificates and could significantly affect the yield on the Class I
Certificates. (Section 16.03.)
An "Insolvency Event" means, with respect to the Class IC
Certificateholder, (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 for the Class IC Certificateholder in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or similar
proceedings, or for the winding up or liquidation of the Class IC
Certificateholder's 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 the Class IC Certificateholder to the appointment of a trustee in bankruptcy
in any insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the Class IC Certificateholder or of or
relating to substantially all of its property; or (iii) the Class IC
Certificateholder admits in writing its inability to pay its debts generally as
they become due, files a petition to take advantage of any applicable insolvency
or reorganization statute, makes an assignment for the benefit of its creditors,
or voluntarily suspends payment of its obligations. The Depositor, the initial
Class IC Certificateholder, is a special purpose corporation the activities of
which are circumscribed by its charter with a view to reducing any risk of its
bankruptcy.
In the event of a liquidation of the Trust due to an Insolvency Event
with respect to the Class IC Certificateholder, the Surety Bonds will not be
available to pay a deficiency if the liquidation proceeds are less than the
Certificate Balance of the Receivables at the time of such liquidation.
Rights of the Surety Bond Issuer upon Events of Default, Amendment or Waiver
Upon the occurrence of an Event of Default, the Surety Bond Issuer, or
the Trustee upon the consent of the Surety Bond Issuer, will be entitled to
appoint a successor Servicer. In addition to the events constituting an Event of
Default as described in the Prospectus, the Pooling and Servicing Agreement will
S-27
<PAGE>
also permit the Surety Bond Issuer to appoint a successor Servicer and to
redirect payments made under the Receivables to the Trustee upon the occurrence
of certain additional events involving a failure of performance by the Servicer
or a material misrepresentation made by the Servicer under the Insurance
Agreement.
The Pooling and Servicing Agreement cannot be amended or any provisions
thereof waived without the consent of the Surety Bond Issuer if such amendment
or waiver would have a materially adverse effect upon the rights of the Surety
Bond Issuer.
ERISA CONSIDERATIONS
Subject to the considerations set forth under "ERISA Considerations" in
the Prospectus, the Class A Certificates and the Class I Certificates may be
eligible for purchase by an employee benefit plan or an individual retirement
account (a "Plan") subject to ERISA or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"). A fiduciary of a Plan must determine that the
purchase of a Class A Certificate or of a Class I Certificates is consistent
with its fiduciary duties under ERISA and does not result in a nonexempt
prohibited transaction as defined in Section 406 of ERISA or Section 4975 of the
Code. For additional information regarding treatment of the Class A Certificates
and the Class I Certificates under ERISA, see "ERISA Considerations" in the
Prospectus.
UNDERWRITING
Under the terms and subject to the conditions set forth in the
underwriting agreement for the sale of the Offered Certificates, dated
___________199__, the Depositor has agreed to sell and each of the underwriters
named below (the "Underwriters") severally agreed to purchase the principal
amount of the Offered Certificates set forth opposite its name below:
Notional
Principal
Principal Amount Amount of
of Class A Class I
Underwriters Certificates Certificates
- - - - ------------ ---------------- ------------
.......................... $ $
..........................
.......................... $ $
In the underwriting agreement, the Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase all the Offered
Certificates offered hereby if any of the Offered Certificates are purchased.
The Underwriters propose to offer part of the Offered Certificates
directly to the public at the prices set forth on the cover page hereof, and
part to certain dealers at a price that represents a concession not in excess of
______% of the denominations of the Class A Certificates or ____% of the gross
proceeds of the Class I Certificates. The Underwriters may allow and such
dealers may reallow a concession not in excess of ______% of the denominations
of the Class A Certificates or ______% of the gross proceeds of the Class I
Certificates to certain other dealers.
The Depositor and UAC have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act.
The Depositor has been advised by the Underwriters that the Underwriters
presently intend to make a market in the Offered Certificates, as permitted by
applicable laws and regulations. The Underwriters are not obligated, however, to
make a market in the Offered Certificates and any such market-making may be
S-28
<PAGE>
discontinued at any time at the sole discretion of the Underwriters.
Accordingly, no assurance can be given as to the liquidity of, or trading
markets for, the Offered Certificates.
LEGAL OPINIONS
Certain legal matters relating to the Offered Certificates will be passed
upon for the Depositor by Barnes & Thornburg, Indianapolis, Indiana, and for the
Underwriters by Cadwalader, Wickersham & Taft. Certain federal income tax
consequences with respect to the Offered Certificates will be passed upon for
the Depositor by _________________________.
EXPERTS
[To be completed]
INDEX OF PRINCIPAL TERMS
TERM PAGE
---- ----
ABS ........................................................ S-22
Available Funds ............................................ S-23
Certificates ............................................. S-3
Certificate Balance.......................................... S-3
Class A Certificateholders ............................... S-3
Class A Certificates .................................... S-3
Class A Monthly Interest ................................... S-25
Class A Pass-Through Rate ................................ S-3
Class I Certificateholders .............................. S-4
Class I Certificates ..................................... S-4
Class I Monthly Interest ................................... S-25
Class I Pass-Through Rate ................................ S-4
Class IC Certificate ..................................... S-1
Class IC Certificateholder ............................... S-7
Closing Date ............................................. S-3
Code ...................................................... S-28
Companion Component.......................................... S-5, S-19
Cutoff Date .............................................. S-1
Defaulted Receivable ........................................ S-25
Depositor ................................................ S-1, S-3
Determination Date........................................... S-26
Distribution Date ......................................... S-1, S-4
Duff & Phelps................................................ S-18
ERISA .................................................... S-9
Final Scheduled Distribution Date............................ S-1
Holdings..................................................... S-18
Insolvency Event ........................................... S-27
Insurance Agreement ......................................... S-26
Moody's...................................................... S-18
Monthly Interest ........................................... S-25
S-29
<PAGE>
Monthly Principal .......................................... S-4, S-25
Monthly Servicing Fee........................................ S-5
Net Principal Surety Bond Amount............................. S-7, S-26
Notional Principal Amount.................................... S-5
Offered Certificates ...................................... S-1, S-4
Optional Sale ........................................... S-8
Original Notional Principal Amount........................... S-4
PAC Component................................................ S-5, S-19
Payahead Account ............................................ S-23
Planned Notional Principal Amount Schedule ................. S-5, S-19
Plan ....................................................... S-28
Pool Balance ............................................ S-4
Pooling and Servicing Agreement ......................... S-3
Receivables .............................................. S-1
Record Date .............................................. S-3
Required Spread Amount ................................... S-7
Servicer ................................................. S-3
Spread Account............................................... S-6
Standard & Poor's............................................ S-18
Surety Bond.................................................. S-1, S-7
Surety Bond Amount........................................... S-8
Surety Bond Fee ............................................. S-25
Surety Bond Issuer .......................................... S-8, S-17
Trust .................................................... S-1
Trustee .................................................. S-3
UAC ...................................................... S-3
UAFC ...................................................... S-22
Underwriters ............................................... S-28
S-30
<PAGE>
[LEFT COLUMN]
No dealer, salesman, or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus Supplement and the Prospectus in connection with the offer contained
herein, and, if given or made, such information or representations must not be
relied upon as having been authorized by the Depositor, the Servicer or the
Underwriters. This Prospectus Supplement and the Prospectus do not constitute an
offer to sell or a solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. The delivery of this Prospectus
Supplement and the Prospectus at any time does not imply that the information
herein or therein is correct as of any time subsequent to the date hereof.
TABLE OF CONTENTS
Page
Prospectus Supplement
Reports to Certificateholders............................................. S-2
Summary of Terms.......................................................... S-3
Risk Factors ............................................................. S-10
Formation of the Trust .................................................. S-11
The Receivables Pool...................................................... S-12
Yield and Prepayment Considerations....................................... S-16
The Depositor and UAC ................................................... S-17
The Surety Bond Issuer.................................................... S-17
The Offered Certificates ................................................ S-18
ERISA Considerations...................................................... S-28
Underwriting.............................................................. S-28
Legal Opinions............................................................ S-29
Experts................................................................... S-29
Index of Principal Terms ................................................. S-29
Financial Statements of the
Surety Bond Issuer..................................................... F-1
Prospectus
Available Information .................................................. 2
Incorporation of Certain Documents
by Reference............................................................ 2
Summary of Terms........................................................... 3
Risk Factors............................................................... 10
The Trusts................................................................. 13
The Receivables Pools...................................................... 14
Weighted Average Life of the Certificates.................................. 16
Pool Factors and Other
Certificate Information................................................. 17
Use of Proceeds............................................................ 17
Union Acceptance Corporation and Affiliates............................... 17
Description of the Certificates............................................ 18
Description of the Transfer
and Servicing Agreements................................................ 21
Certain Legal Aspects of the Receivables................................... 29
Certain Federal Income Tax Consequences.................................... 33
ERISA Considerations....................................................... 41
Plan of Distribution....................................................... 43
Legal Matters.............................................................. 43
Index of Principal Terms................................................... 44
<PAGE>
[RIGHT COLUMN]
$_________________
UACSC 199___-___ Auto Trust
$__________________
_____% Class A Automobile
Receivable Pass-Through
Certificates
Class I Interest Only Automobile
Receivable Pass-Through
Certificates
UAC Securitization Corporation
Depositor
Union Acceptance Corporation
Servicer
[Logo Here]
Prospectus Supplement
Dated _________, 199__
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus supplement and the accompanying prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy, nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
Subject to Completion dated June 27, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED JUNE 27, 1996
- - - - --------------------------------------------------------------------------------
UACSC 199 - Auto Trust
$ % Class A Automobile Receivable Pass-Through Certificates
$ % Class B Automobile Receivable Pass-Through Certificates
UAC Securitization Corporation
Depositor
Union Acceptance Corporation
Servicer
- - - - --------------------------------------------------------------------------------
The UACSC 199 - Auto Trust (the "Trust") will be formed and will issue its %
Class A Automobile Receivable Pass-Through Certificates (the "Class A
Certificates") and the % Class B Automobile Receivable Pass-Through Certificates
(the "Class B Certificates" and, with the Class A Certificates, the
"Certificates") pursuant to a pooling and servicing agreement dated as of , 199
(the "Pooling and Servicing Agreement") among UAC Securitization Corporation, as
Depositor, Union Acceptance Corporation, as Servicer, and
, as Trustee.
Principal and interest will be distributed to holders of the Certificates
on the third business day after the fifth day of each month (each, a
"Distribution Date"), in the manner and to the extent described herein. The
Class A Certificates will evidence in the aggregate an undivided ownership
interest in approximately % of the Trust, and the Class B Certificates will
evidence in the aggregate an undivided ownership interest in approximately % of
the Trust. Principal and interest at the applicable Pass-Through Rate generally
will be distributed to Certificateholders on the day of each month, commencing ,
199 . The rights of the Class B Certificateholders to receive distributions are
subordinated to the rights of the Class A Certificateholders to the extent
described herein. The outstanding principal amount, if any, of the Certificates
will be due and payable on (the "Final Scheduled Distribution Date").
Prospective investors should consider, among other things, the information set
forth under "Risk Factors" on page S-10 of this Prospectus Supplement and page
10 of the Prospectus.
THE CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE TRUST ONLY AND DO NOT
REPRESENT INTERESTS IN OR OBLIGATIONS OF UAC SECURITIZATION CORPORATION OR ANY
OF ITS AFFILIATES. NEITHER THE CERTIFICATES NOR THE RECEIVABLES ARE INSURED
OR GUARANTEED BY UAC SECURITIZATION CORPORATION, ANY OF ITS AFFILIATES OR ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Price to Public Underwriting Discounts and Commissions Proceeds to Depositor(1)
<S> <C> <C> <C>
Per Class A Certificate ................ % % %
Per Class B Certificate ................ % % %
Total ........................ $ $ $
</TABLE>
(1) Before deducting expenses, estimated to be $ .
The Certificates are offered, subject to prior sale, when, as and if
accepted by the Underwriters, and subject to approval of certain legal matters
by Cadwalader, Wickersham & Taft, counsel for the Underwriters. It is expected
that delivery of the Certificates in book-entry form will be made on or about ,
199 through the facilities of The Depository Trust Company, against payment
therefor in immediately available funds.
, 199
<PAGE>
The Certificates represent undivided interests in the Trust, the
property of which will include a pool of simple interest and precomputed
interest installment sale and installment loan contracts originated in various
states of the United States (the "Receivables"), security interests in the new
and used automobiles, light trucks and vans financed thereby and certain monies
due thereunder after
, 199 (the "Cutoff Date"). The Trustee will also hold monies on
deposit in a Pre-Funding Account, which will be used to purchase additional
Receivables from the Depositor from time to time on or before , 199 . The Trust
may also draw on funds on deposit in a Yield Supplement Account and a Cash
Collateral Account, to the extent described herein, to meet shortfalls in
amounts due to Certificateholders on any Distribution Date. The Yield Supplement
Account and the Cash Collateral Account will be maintained with the Trustee for
the benefit of the Certificateholders, but will not be part of the Trust.
THIS PROSPECTUS SUPPLEMENT DOES NOT CONTAIN COMPLETE INFORMATION ABOUT
THE OFFERING OF THE CERTIFICATES. ADDITIONAL INFORMATION IS CONTAINED IN THE
PROSPECTUS, AND PROSPECTIVE INVESTORS ARE URGED TO READ BOTH THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS IN FULL. SALES OF THE CERTIFICATES MAY NOT BE
CONSUMMATED UNLESS THE PURCHASER HAS RECEIVED BOTH THIS PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS. THIS PROSPECTUS SUPPLEMENT CONTAINS INFORMATION THAT IS
SPECIFIC TO THE TRUST AND THE CERTIFICATES AND, TO THAT EXTENT, SUPPLEMENTS AND
REPLACES THE MORE GENERAL INFORMATION PROVIDED IN THE PROSPECTUS. INFORMATION
CONTAINED IN THIS PROSPECTUS SUPPLEMENT MAY ALSO REFLECT LEGAL, ECONOMIC AND
OTHER DEVELOPMENTS SINCE THE DATE OF THE PROSPECTUS. TO THE EXTENT INFORMATION
IN THIS PROSPECTUS SUPPLEMENT CONFLICTS WITH INFORMATION IN THE PROSPECTUS, THE
INFORMATION IN THIS PROSPECTUS SUPPLEMENT SHALL CONTROL.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
CERTIFICATES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
Until 90 days after the date of this Prospectus Supplement, all dealers
effecting transactions in the Certificates, whether or not participating in this
distribution, may be required to deliver this Prospectus Supplement and the
Prospectus. This is in addition to the obligation of dealers to deliver this
Prospectus Supplement and the Prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
REPORTS TO CERTIFICATEHOLDERS
Unless and until definitive certificates are issued (which will occur
only under the limited circumstances described herein), , as Trustee, will
provide to Cede & Co., the nominee of The Depository Trust Company, as
registered holder of the Certificates, monthly and annual statements concerning
the Trust and the Certificates. Such statements will not constitute financial
statements prepared in accordance with generally accepted accounting principles.
A copy of the most recent monthly or annual statement concerning the Trust and
the Certificates may be obtained by contacting the Servicer at Union Acceptance
Corporation, 250 North Shadeland Avenue, Indianapolis, Indiana 46219 (telephone
(317) 231-7965).
S-2
<PAGE>
TABLE OF CONTENTS
Page
REPORTS TO CERTIFICATEHOLDERS...............................................S-2
SUMMARY OF TERMS ......................................................... S-4
RISK FACTORS ............................................................ S-10
The Pre-Funding Account ............................................ S-10
Conveyance of Subsequent Receivables to the Trust .................. S-10
Certificates Solely Obligations of the Trust..........................S-11
Limited Obligations of the Depositor,
UAFC and the Servicer...............................................S-11
Ratings of the Certificates...........................................S-11
FORMATION OF THE TRUST ................................................... S-12
General...............................................................S-12
The Trustee...........................................................S-12
THE RECEIVABLES POOL ..................................................... S-12
Delinquencies, Repossessions and Net Losses ......................... S-16
YIELD AND PREPAYMENT CONSIDERATIONS ...................................... S-18
General ............................................................. S-18
Mandatory Repurchase..................................................S-18
THE DEPOSITOR AND UAC .................................................... S-19
THE CERTIFICATES ......................................................... S-19
General...............................................................S-19
Distributions ....................................................... S-19
Sale and Assignment of Receivables;
Subsequent Receivables ............................................ S-19
Accounts ............................................................ S-20
Subordination of the Class B Certificates.............................S-21
Advances ............................................................ S-21
Distributions on the Certificates.................................... S-21
ERISA CONSIDERATIONS ..................................................... S-24
UNDERWRITING ............................................................. S-24
LEGAL OPINIONS ........................................................... S-24
INDEX OF PRINCIPAL TERMS ................................................. S-25
S-3
<PAGE>
SUMMARY OF TERMS
This Summary is qualified in its entirety by reference to the detailed
information appearing elsewhere in this Prospectus Supplement and the
Prospectus. Certain capitalized terms used in this Summary are defined elsewhere
in this Prospectus Supplement on the pages indicated in the "Index of Principal
Terms" or, to the extent not defined herein, have the meanings assigned to such
terms in the Prospectus.
Issuer........................UACSC 199 - Auto Trust.
Depositor.....................UAC Securitization Corporation (the "Depositor").
Servicer......................Union Acceptance Corporation (in its capacity as
servicer, the "Servicer," otherwise "UAC").
Trustee ......................
The Certificates .............The Trust will be formed and will issue the
Certificates on , 199 (the "Closing Date")
pursuant to the Pooling and Servicing Agreement.
The Certificates will consist of the % Class A
Automobile Receivable Pass-Through Certificates in
the aggregate principal amount of $ and the %
Class B Automobile Receivable Pass-Through
Certificates in the aggregate principal amount of
$ . The Class A Certificates will evidence in the
aggregate an undivided ownership interest in
approximately % of the Trust (the "Class A
Percentage"), and the Class B Certificates will
evidence in the aggregate an undivided ownership
interest in approximately % of the Trust (the
"Class B Percentage"). The Class B Certificates
will be subordinated to the Class A Certificates
to the extent described herein. See "The
Certificates" herein.
Each of the Certificates will represent a
fractional undivided interest in the Trust. The
Trust assets will include the Receivables, certain
monies due thereunder after the Cutoff Date,
security interests in the related Financed
Vehicles, monies on deposit in the Yield
Supplement Account, the Certificate Account and
the proceeds thereof, any proceeds from claims on
certain insurance policies relating to the
Financed Vehicles or the related Obligors, any
lender's single interest insurance policy, the
Cash Collateral Account, and certain rights under
the Pooling and Servicing Agreement.
Class A Pass-Through Rate.....______% per annum, payable monthly at one-twelfth
the annual rate.
Class B Pass-Through Rate.....______% per annum, payable monthly at one-twelfth
the annual rate.
Distribution Date.............The third business day after the fifth day of the
month following the Record Date, commencing , 199.
Monthly Interest..............Interest will be distributable on each
Distribution Date beginning , 199 , to holders of
record as of the last day of the calendar month
immediately preceding the calendar month in which
such Distribution Date occurs (the "Record Date")
of (i) the Class A Certificates (the "Class A
Certificateholders") in a maximum amount equal to
the product of 1/12th of % (the "Class A
Pass-Through Rate") and the aggregate outstanding
principal balance of the Class A Certificates (the
"Class A Principal Balance") as of the preceding
Distribution Date (after giving effect to all
distributions to Certificateholders on such date)
and (ii) the Class B Certificates (the "Class B
Certificateholders") in a maximum amount equal to
the product of 1/12th of % (the "Class B
Pass-Through Rate") and the aggregate outstanding
principal balance of the Class B Certificates (the
"Class B Principal Balance") as of the preceding
Distribution Date (after giving effect to all
distributions to Certificateholders on such date).
Interest on the Class A Certificates and the Class
B Certificates will be calculated on the basis of
a 360-day year consisting of twelve 30-day months.
See "The Certificates -- Distributions". The
effective yield on the Class A Certificates and
the Class B Certificates will be below that
otherwise produced by the Class A Pass-Through
Rate and the Class B Pass-Through Rate,
respectively, because the distribution of Monthly
Principal and Monthly Interest in respect of any
given month will not be made until on or about the
day of the following month. See "Yield and
Prepayment Considerations" herein.
Monthly Principal.............On each Distribution Date, the Trustee will
distribute to the Class A Certificateholders and
the Class B Certificateholders (collectively, the
"Certificateholders") all principal payments on
the Receivables, including full and partial
prepayments received by the Trustee during the
preceding calendar month. Monthly Principal will
be passed through to Certificateholders on each
Distribution Date in a maximum amount equal to the
aggregate outstanding principal amount of the
Receivables (the "Pool Balance") on the last day
of the second preceding calendar month (or, in the
case of the first Distribution Date, as of the
Cutoff Date) less the Pool Balance on the last day
of the immediately preceding calendar month. For
the purpose of determining Monthly Principal, the
unpaid principal balance of a Defaulted Receivable
or a Purchased Receivable will be deemed to be
zero on and after the last day of the calendar
month in which such Receivable becomes a Defaulted
Receivable or a Purchased Receivable, as
applicable.
The weighted average life of the Certificates will
be reduced by full or partial prepayments on the
Receivables (except certain prepayments in respect
of Precomputed Receivables). Neither the Servicer
nor the Depositor nor any of their affiliates
maintains specific statistical data regarding the
historical prepayment experience of its automobile
receivable portfolio. See "The Certificates --
Distributions" herein.
The Receivables...............On the Closing Date, the Depositor will convey
Receivables to the Trust (the "Initial
Receivables") having an aggregate principal
balance of approximately $ as of , 199 (the
"Initial Cutoff Date"). The Trust will acquire the
Initial Receivables from the Depositor pursuant to
the Pooling and Servicing Agreement. In addition,
the Depositor will be obligated under the terms of
the Pooling and Servicing Agreement to sell
additional Receivables (the "Subsequent
Receivables") to the Trust (subject only to the
availability thereof) having an aggregate
principal balance equal to approximately $ (the
"Pre-Funded Amount"), and the Trust will be
obligated to purchase the Subsequent Receivables
from the Depositor (subject to the satisfaction of
certain conditions set forth in the Pooling and
Servicing Agreement) prior to the end of the
Funding Period. The Depositor will designate as a
cutoff date (each, a "Subsequent Cutoff Date")
each date as of which particular Subsequent
Receivables are conveyed to the Trust. Each date
during the Funding Period on which Subsequent
Receivables will be conveyed to the Trust is
referred to herein as a "Subsequent Transfer
Date". See "The Certificates -- Sale and
Assignment of Receivables; Subsequent Receivables"
and "The Receivables Pool" herein and "The
Receivables Pools" in the Prospectus.
The Depositor will acquire the Initial Receivables
on or prior to the Closing Date from Union
Acceptance Funding Corporation ("UAFC") pursuant
to a purchase agreement dated as of , 199 (the
"Purchase Agreement") among the Depositor, UAFC
and UAC. UAFC also will be obligated under the
Purchase Agreement to sell the Subsequent
Receivables to the Depositor, for resale by the
Depositor to the Trust. In the Purchase Agreement,
UAC and UAFC will make certain representations and
warranties with respect to the Receivables and UAC
will undertake to repurchase any Receivable with
respect to which an uncured breach of any such
representation or warranty exists if such breach
materially and adversely affects the rights of the
Depositor or its assignee in such Receivable and
if such breach is not cured by UAC or UAFC in a
timely manner. Pursuant to the Pooling and
Servicing Agreement, the Depositor will assign its
rights against UAC and UAFC with respect to any
Receivable of which there exists a breach of any
representation and warranty that materially and
adversely affects the rights of the
Certificateholders. See "The Certificates -- Sale
and Assignment of Receivables; Subsequent
Receivables" herein. None of UAC, UAFC or the
Depositor will have any other obligation with
respect to the Receivables or the Certificates.
The Receivables arise, or will arise, from
Contracts originated or acquired, directly or
indirectly, by UAC from Dealers located in various
states of the United States. The Contracts are
sold in their ordinary course of business by UAC
to UAFC immediately after the origination or
acquisition by UAC. The Initial Receivables have
been selected, and the Subsequent Receivables will
be selected, from the Contracts owned by UAFC
based on the criteria specified in the Pooling and
Servicing Agreement and described herein under
"The Receivables Pool" and in the Prospectus under
"The Receivables Pools". As of the Initial Cutoff
Date, the weighted average Contract Rate of the
Initial Receivables was approximately %, the
weighted average remaining term to maturity of the
Initial Receivables was approximately months, and
the weighted average original term to maturity of
the Initial Receivables was approximately months.
No Initial Receivable has, and no Subsequent
Receivable will have, a scheduled maturity later
than (the "Final Scheduled Maturity Date").
Subsequent Receivables may be originated or
acquired by UAC at a later date using credit
criteria that differ from those that were applied
to the Initial Receivables and may be of a
different credit quality and seasoning. In
addition, following the transfer of Subsequent
Receivables to the Trust, the characteristics of
the entire pool of Receivables included in the
Trust may vary significantly from those of the
Initial Receivables. For a description of
provisions for the transfer of Subsequent
Receivables and verification that Subsequent
Receivables conform to the requirements of the
Pooling and Servicing Agreement, see "Risk Factors
-- The Pre-Funding Account", "-- Conveyance of
Subsequent Receivables to the Trust", "The
Receivables Pool" and "The Certificates -- Sale
and Assignment of Receivables; Subsequent
Receivables" herein. See also "Risk Factors --
Sale of Subsequent Receivables," and "Description
of the Transfer and Servicing Agreements -- Sale
and Assignment of Receivables" in the Prospectus.
Pre-Funding Account ..........During the period (the "Funding Period") from and
including the Closing Date until the earliest to
occur of (a) the date on which the amount on
deposit in the Pre-Funding Account is equal to $
or less, (b) the occurrence of an Event of Default
under the Pooling and Servicing Agreement, (c) the
occurrence of certain events of insolvency with
respect to the Depositor or the Servicer or (d)
the [third] Distribution Date, the Pre-Funded
Amount will be maintained in an account (the
"Pre-Funding Account") in the name of the Trustee.
The Funding Period will not be more than three
calendar months. The Pre- Funded Amount initially
will equal $ and, during the Funding Period, will
be reduced by the amount thereof used to purchase
Subsequent Receivables in accordance with the
Pooling and Servicing Agreement. See "Description
of the Transfer and Servicing Agreements -- Trust
Accounts -- Pre-Funding Account" in the Prospectus
and "The Certificates -- Sale and Assignment of
Receivables; Subsequent Receivables" herein.
Funds on deposit in the Pre-Funding Account during
the Funding Period will be invested by the Trustee
in Eligible Investments, provided, however, that
such funds will not be invested in money market
funds unless the Trustee receives an opinion of
counsel to the effect that such an investment in
money market funds would not require the Trust to
register as an investment company under the
Investment Company Act of 1940. Eligible
Investments held in the Pre-Funding Account will
be required to mature not later than the business
day preceding the next scheduled Distribution Date
or the next Subsequent Transfer Date within the
Funding Period identified by the Depositor. Any
Investment Income with respect to such Eligible
Investments will be transferred from the
Pre-Funding Account to the Certificate Account on
each Distribution Date and will be included in
Available Funds for such Distribution Date. Any
Pre-Funded Amount remaining at the end of the
Funding Period will be payable to the
Certificateholders. The Certificates will be
prepaid, in part, pro rata on the basis of their
initial principal amounts, on the Distribution
Date on or immediately following the last day of
the Funding Period in the event that any amount
remains on deposit in the Pre-Funding Account
after giving effect to the purchase of all
Subsequent Receivables, including any such
purchase on such date. The aggregate principal
amount of Certificates to be prepaid will be an
amount equal to the amount then on deposit in the
Pre-Funding Account. Such pre-payment will reduce
the Certificateholders' outstanding principal
balance and anticipated yield. See "Risk Factors
-- The Pre-Funding Account" and "The Certificates
-- Sale and Assignment of Receivables; Subsequent
Receivables" herein. See also "Description of the
Transfer and Servicing Agreements -- Accounts" in
the Prospectus.
Subordination.................The rights of the Class B Certificateholders to
receive distributions to which they would
otherwise be entitled with respect to the
Receivables are subordinated to the rights of the
Class A Certificateholders, as described more
fully herein. See "The Certificates --
Distributions" and "-- Subordination of the Class
B Certificates; Cash Collateral Account" herein.
Cash Collateral
Account ....................The Depositor will establish the Cash Collateral
Account on the Closing Date and will deposit in
such account an amount equal to % of the sum of
the initial Class A Principal Balance and the
Class B Principal Balance (collectively, the
"Certificate Principal Balance"). On each
Distribution Date thereafter, the Servicer will
deposit into the Cash Collateral Account any
amounts remaining in the Certificate Account after
the payment on such date of every other obligation
of the Trust. The Trustee will withdraw funds from
the Cash Collateral Account on each Distribution
Date to the extent of any shortfall in the Monthly
Interest and Monthly Principal. Any amount on
deposit in the Cash Collateral Account on any
Distribution Date in excess the Required Cash
Collateral Amount after all other required
deposits thereto and withdrawals therefrom have
been made, will be distributed to the Depositor.
Any amount so distributed to the Depositor will no
longer be an asset of the Trust. The "Required
Cash Collateral Amount" with respect to any
Distribution Date will equal % of the Certificate
Principal Balance.
While it is intended that the amount on deposit in
the Cash Collateral Account grow over time,
through the deposit thereto of the excess
collections, if any, on the Receivables, to the
Required Cash Collateral Amount, there can be no
assurance that such growth will actually occur.
See "The Certificates -- Accounts" herein.
The Cash Collateral Account will be maintained
with the Trustee as a segregated trust account for
the benefit of Certificateholders, but will not be
part of the Trust.
Optional Purchase ............The Servicer may purchase all of the Receivables
(referred to herein as an "Optional Purchase") as
of the last day of any Collection Period, at a
purchase price equal to the fair market value of
the Receivables (but not less than their aggregate
outstanding principal balance plus accrued and
unpaid interest thereon), if the Certificate
Principal Balance as of the following Distribution
Date will equal 10% or less of the initial
Certificate Principal Balance.
Tax Status .................. In the opinion of Federal Tax Counsel, the Trust
will be treated as a grantor trust for federal
income tax purposes and will not be subject to
federal income tax. Owners of beneficial interests
in the Certificates will report their pro rata
share of all income earned on the Receivables
(other than amounts, if any, treated as "stripped
coupons") and, subject to certain limitations in
the case of such owners who are individuals,
trusts or estates, may deduct their pro rata share
of reasonable servicing and other fees.
See "Certain Federal Income Tax Consequences" in
the Prospectus for additional information
concerning the application of federal income tax
laws to the Trust and the Certificates.
ERISA Considerations..........Subject to the considerations discussed under
"ERISA Considerations" herein and in the
Prospectus, the Class A Certificates may be
eligible for purchase by employee benefit plans
subject to the Employee Retirement Income Security
Act of 1974, as amended. See "ERISA
Considerations" herein and in the Prospectus.
Because the Class B Certificates are subordinated
to the Class A Certificates, the Class B
Certificates may not be purchased by Plans.
Ratings of the Certificates ..It is a condition to the issuance of the
Certificates that the Class A Certificates be
rated at least and the Class B Certificates be
rated at least by at least nationally recognized
statistical rating agencies. A rating is not a
recommendation to purchase, hold or sell the
Certificates, inasmuch as such rating does not
comment as to market price or suitability for a
particular investor. The ratings address the
likelihood that principal of and interest on the
Certificates will be paid pursuant to their terms.
There can be no assurance that a rating will not
be lowered or withdrawn by a rating agency if
circumstances so warrant. See "Risk Factors --
Ratings of the Certificates" herein.
S-4
<PAGE>
RISK FACTORS
In addition to the other information contained in this Prospectus
Supplement and the Prospectus, prospective investors should carefully consider
the following risk factors and those discussed in the Prospectus under the
heading "Risk Factors" before investing in the Certificates.
The Pre-Funding Account
On the Closing Date, the Depositor will deposit the Pre-Funded Amount
to the Pre-Funding Account. The Pre-Funding Account will be maintained as an
Eligible Deposit Account. The Pre-Funded Amount will be used only to purchase
Subsequent Receivables. Prior to their withdrawal from the Pre-Funding Account
as payment for Subsequent Receivables, funds on deposit in the Pre-Funding
Account will be invested in Eligible Investments, and any investment income
thereon will be included on the following Distribution Date as part of Available
Funds. Any amounts remaining in the Pre-Funding Account at the end of the
Funding Period will be distributed pro rata to Certificateholders as a
prepayment of principal of the Certificates. Such prepayment will reduce the
Certificateholder's outstanding principal balance and anticipated yield. See
"Yield and Prepayment Considerations -- Mandatory Repurchase" herein and
"Description of the Transfer and Servicing Agreements -- Pre-Funding Account" in
the Prospectus. The amounts on deposit may be invested in Eligible Investments,
provided, however, that such funds will not be invested in money market funds
unless the Trustee receives an opinion of counsel to the effect that such an
investment in money market funds would not require the Trust to register as an
investment company under the Investment Company Act of 1940.
Conveyance of Subsequent Receivables to the Trust
On the Closing Date, the Depositor will convey to the Trust
approximately $ of Initial Receivables and the approximately $ Pre-Funded Amount
on deposit in the Pre-Funding Account. If the principal amount of eligible
Receivables originated or acquired by UAC and sold to UAFC prior to the
termination of the Funding Period is less than the Pre-Funded Amount, UAFC will
have insufficient Receivables to sell to the Depositor, and the Depositor will
have insufficient Receivables to sell to the Trust, thereby resulting in a
prepayment of principal to the Certificateholders as described below. In
addition, any conveyance of Subsequent Receivables is subject to the
satisfaction, on or before the related Subsequent Transfer Date, of the
following conditions, among others: (i) each such Subsequent Receivable shall
satisfy the eligibility criteria specified in the Pooling and Servicing
Agreement and shall not have been selected from among such eligible Receivables
in a manner that UAFC or the Depositor deems adverse to the interests of the
Certificateholders; (ii) as of the related Subsequent Cutoff Date, the
Receivables in the Trust at that time, including the Subsequent Receivables to
be conveyed by the Depositor to the Trust as of such Subsequent Cutoff Date,
must satisfy the parameters described under "The Receivables Pool" herein and
under "The Receivables Pools" in the Prospectus; (iii) UAFC shall have executed
and delivered to the Depositor, and the Depositor shall have executed and
delivered to the Trustee, a written assignment (including a schedule identifying
such Subsequent Receivables) conveying such Subsequent Receivables to the
Depositor and the Trust, respectively. In addition, the conveyance of the
Subsequent Receivables to the Trust will also be subject to the satisfaction of
the following requirements within days after the termination of the Funding
Period: (a) the Depositor shall deliver certain opinions of counsel to the
Trustee and the Rating Agencies with respect to the validity of the conveyance
of the Subsequent Receivables to the Trust; (b) the Trustee shall receive
written confirmation from a firm of certified public accountants that the
Receivables, including the Subsequent Receivables, meet the criteria described
herein under "The Receivables Pool" and in the Prospectus under "The Receivables
Pools"; and (c) the Rating Agencies shall have notified the Depositor in writing
that, following the conveyance of the Subsequent Receivables to the Trust, the
Certificates will continue to be rated by such Rating Agencies in the same
rating categories in which they were rated on the Closing Date. Such
confirmation of the ratings of the Certificates may depend on factors other than
the characteristics of the Subsequent Receivables, including the delinquency,
repossession and net loss experience on the automobile, light truck and van
receivables in the portfolio serviced by UAC.
S-5
<PAGE>
UAC will immediately repurchase from the Trust any Subsequent
Receivable that fails to satisfy the conditions listed in the preceding
paragraph, at a purchase price equal to the Purchase Amount therefor.
To the extent that amounts on deposit in the Pre-Funding Account have
not been fully applied to the purchase of Subsequent Receivables by the Trust by
the end of the Funding Period, the Certificateholders will receive a prepayment
of principal in an amount equal to the Pre-Funded Amount remaining in the
Pre-Funding Account following the purchase of all Subsequent Receivables. It is
anticipated that the principal amount of the Subsequent Receivables sold to the
Trust will not be exactly equal to the amount on deposit in the Pre-Funding
Account and, therefore, that there will be at least a nominal amount of
principal prepaid to the Certificateholders. See "Yield and Prepayment
Considerations -- Mandatory Repurchase".
Each Subsequent Receivable, at the time it is conveyed to the Trust,
must satisfy the eligibility criteria specified in the Pooling and Servicing
Agreement. However, Subsequent Receivables may have been originated or acquired
by UAC and sold to UAFC at a later date using credit criteria different from
those that were applied to the Initial Receivables and may be of a different
credit quality and seasoning. Therefore, following the transfer of Subsequent
Receivables to the Trust, the characteristics of the entire Receivables Pool
included in the Trust may vary significantly from those of the Initial
Receivables. See "The Receivables Pool" and "The Certificates -- Sale and
Assignment of Receivables; Subsequent Receivables" herein and "The Receivables
Pools" in the Prospectus.
Certificates Solely Obligations of the Trust
The Certificates are interests in the Trust only and do not represent
the obligation of any other person. The Trustee will withdraw funds from the
Cash Collateral Account, up to the full balance of the funds on deposit in such
account, in the event that sufficient funds are not available in accordance with
the Pooling and Servicing Agreement to distribute Monthly Interest and Monthly
Principal and to pay the Servicing Fee on any Distribution Date. The Cash
Collateral Account is initially % of the Certificate Principal Balance and is
intended to increase over time to % of the Certificate Principal Balance.
There is no assurance that such growth will occur or that the balance in the
Cash Collateral Account will always be sufficient to assure payment in full of
Monthly Principal and Monthly Interest on the Certificates. In the event the
amount on deposit in the Cash Collateral Account is reduced to zero, losses on
the Receivables will be borne directly first by Class B Certificateholders until
the Class B Principal Balance is reduced to zero, and then by Class A
Certificateholders. See "The Receivables Pool -- Delinquencies, Repossession and
Net Losses" and "The Certificates -- Cash Collateral Account".
Limited Obligations of the Depositor, UAFC and the Servicer
None of the Depositor, UAFC or the Servicer is generally obligated to
make any payments in respect of the Certificates or the Receivables; however, if
UAC were to cease acting as Servicer, delays in processing payments on the
Receivables and information in respect thereof could occur and result in delays
in payment to the Certificateholders. In addition, UAC and UAFC make certain
representations and warranties with respect to the Receivables and, in the event
of a breach of any such representation or warranty that materially and adversely
affects the rights of the Certificateholders in a Receivable, UAC is obligated
under the Purchase Agreement and the Pooling and Servicing Agreement to
repurchase such Receivable from the Trust at a repurchase price equal to the
Purchase Amount thereof. See "The Certificates -- Sale and Assignment of
Receivables; Subsequent Receivables" herein and "Description of the Transfer and
Servicing Agreements -- Sale and Assignment of Receivables" in the Prospectus.
Ratings of the Certificates
As a condition to the issuance of the Offered Certificates, the Class A
Certificates must be rated at least , and the Class B Certificates must be rated
at least , by at least nationally recognized rating agency. A rating is not a
recommendation to purchase, hold or sell the Certificates, inasmuch as a rating
does not comment as to market price or suitability for a particular investor.
The ratings of the Certificates address the likelihood of the timely payment of
interest on, and the ultimate repayment of principal of, the Certificates
pursuant to their terms. There can be no assurance that a rating will remain for
any given period of time or that a
S-6
<PAGE>
rating will not be lowered or withdrawn entirely by a Rating Agency if in its
judgment circumstances in the future so warrant. In the event that a rating is
subsequently lowered or withdrawn, no person or entity will be required to
provide any additional credit enhancement. The ratings of the Class A
Certificates are based primarily on the credit quality of the Receivables, the
subordination of the Class B Certificates and the availability of funds in the
Cash Collateral Account, and the ratings of the Class B Certificates are based
primarily on the credit quality of the Receivables and the availability of funds
in the Cash Collateral Account.
FORMATION OF THE TRUST
General
The Depositor will establish the Trust by selling and assigning the
Trust property, as described below, to the Trustee in exchange for the
Certificates. The Servicer will service the Receivables pursuant to the Pooling
and Servicing Agreement and will be compensated for acting as the Servicer. See
"Description of the Transfer and Servicing Agreements -- Servicing Compensation
and Payment of Expenses" in the Prospectus. To facilitate servicing and to
minimize administrative burden and expense, the Servicer will be appointed
custodian of the Receivables and the related documents by the Trustee, but will
not stamp the Receivables to reflect the sale and assignment of the Receivables
to the Trust or amend the certificates of title of the Financed Vehicles. In the
absence of amendments to the certificates of title, the Trustee may not have
perfected security interests in the Financed Vehicles securing the Receivables
in some states. See "Risk Factors -- Certain Legal Aspects -- Security Interests
in Financed Vehicles" and "Certain Legal Aspects of the Receivables" in the
Prospectus. Under the terms of the Pooling and Servicing Agreement, UAC may
delegate its duties as Servicer and custodian; however, any such delegation will
not relieve UAC of its liability and responsibility with respect to such duties.
If the protection provided to Certificateholders by the Cash
Collateral Account and, in the case of the Class A Certificateholders, the
subordination of the Class B Certificates is insufficient, the Trust will look
only to the Obligors on the Receivables and the proceeds from the repossession
and sale of Financed Vehicles that secure defaulted Receivables to fund
distributions of principal and interest on the Certificates. In such event,
certain factors, such as the Trust's not having first priority perfected
security interests in some of the Financed Vehicles, may affect the Trust's
ability to realize on the collateral securing the Receivables and thus may
reduce the proceeds to be distributed to Certificateholders with respect to the
Certificates. See "The Certificates -- Distributions" and "-- Subordination of
the Class B Certificates; Cash Collateral Account" herein and "Certain Legal
Aspects of the Receivables" in the Prospectus.
Each Certificate represents a fractional undivided ownership interest in
the Trust. The Trust property includes the Contracts transferred by the
Depositor to the Trust and certain payments due thereunder after the Cutoff
Date. The Trust property also includes (i) such amounts as from time to time may
be held in the Certificate Account; (ii) the right to draw on funds on deposit
in the Cash Collateral Account, the Payahead Account and the Yield Supplement
Account, to the extent described herein, (iii) security interests in the
Financed Vehicles and any accessions thereto; (iv) the rights to proceeds with
respect to the Receivables from claims on physical damage, credit life and
disability insurance policies covering the Financed Vehicles or the Obligors, as
the case may be, and any lender's single interest insurance policy; (v) any
property that shall have secured a Receivable and that shall have been acquired
by the Trustee; (vi) the Pre-Funding Account; and (vii) any and all proceeds of
the foregoing. The Cash Collateral Account and the Yield Supplement Account will
be maintained by the Trustee for the benefit of the Certificateholders, but will
not be part of the Trust. The assets of the Trust will not include, and the
Certificateholders will have no interest in, any contract between UAC or the
Predecessor and any Dealer establishing "dealer reserves" or any right pursuant
to any such contract to recapture dealer reserves.
S-7
<PAGE>
The Trustee
__________________________ is Trustee under the Pooling and Servicing Agreement.
______________________________ is a ____________________________________ banking
corporation, and its principal offices are located at _________________________.
The Depositor and its affiliates may maintain normal commercial banking
relations with the Trustee and its affiliates.
THE RECEIVABLES POOL
The pool of Receivables conveyed to the Trust (the "Receivables Pool") will
include the Initial Receivables purchased as of the Initial Cutoff Date and any
Subsequent Receivables purchased as of the applicable Subsequent Cutoff Dates.
The Initial Receivables were, and the Subsequent Receivables were or will
be, selected from UAFC's portfolio for purchase by the Depositor by several
criteria, including that each Receivable: (i) had or will have an original
number of payments of not more than payments and not less than payments, (ii)
had or will have a remaining maturity of not more than months and not less than
months, (iii) provided or will provide for level monthly payments that fully
amortize the amount financed over the original term, (iv) had or will have a
Contract Rate (exclusive of prepaid finance charges) of not less than %, and (v)
was not or will not be more than days past due as of the Cutoff Date. The
weighted average remaining maturity of the Initial Receivables will be months as
of the Initial Cutoff Date.
Approximately % of the Initial Receivables are simple interest
contracts which provide for equal monthly payments. Approximately %
of the aggregate principal balance of the Initial Receivables as of the Initial
Cutoff Date are Precomputed Receivables (as defined in the Prospectus)
originated in . All of such Precomputed
Receivables are Rule of 78's Receivables (as defined in the Prospectus).
Approximately % of the aggregate principal balance of the initial
Cutoff Date represent financing of new vehicles; the remainder of the Initial
Receivables represent financing of used vehicles.
Initial Receivables representing more than 10% of the aggregate principaL
balance of the Receivables as of the Cutoff Date were originated in metropolitan
areas in each of the States of , , and
. The performance of the Receivables in the aggregate could be adversely
affected in particular by the development of adverse economic conditions in such
metropolitan areas.
The obligation of the Trust to purchase Subsequent Receivables on a
Subsequent Transfer Date will be subject to the following criteria: [specify
applicable criteria]. In addition, such obligation will be subject to the
Receivables (including the Subsequent Receivables to be transferred to the Trust
on such Subsequent Transfer Date) having a weighted average remaining term not
greater than months. Such criteria will be based on the characteristics of the
Initial Receivables on the Initial Cutoff Date and any Subsequent Receivables on
the related Subsequent Cutoff Date.
The Initial Receivables will represent approximately % of the aggregate
initial principal balance of the Certificates. However, except for the criteria
described in the preceding paragraphs, there will be no required characteristics
of the Subsequent Receivables. Therefore, following the transfer of Subsequent
Receivables to the Trust, the aggregate characteristics of the entire
Receivables Pool, including the composition of the Receivables, the distribution
by Contract Rate and the geographic distribution, may vary significantly from
those of the Initial Receivables. The composition, distribution by Contract Rate
and geographic distribution of the Initial Receivables as of the Initial Cutoff
Date are as set forth in the following tables.
S-8
<PAGE>
Composition of the Initial Receivables as of the Initial Cutoff Date
<TABLE>
<CAPTION>
Aggregate Original Weighted
Number of Principal rincipal Average
Receivables Balance PBalance Rate
------------ ----------- ---------- ------------
<S> <C> <C> <C> <C>
New Automobiles and Light-Duty Trucks..............
Used Automobiles and Light-Duty Trucks.............
New Vans (1).......................................
Used Vans (1)......................................
------------ ----------- ---------- ------------
All Receivables....................................
============ =========== ========== ============
</TABLE>
<TABLE>
<CAPTION>
Weighted Weighted Percent of Scheduled
Average Average Aggregate Weighted
Remaining Original Principal Average
Term (2) Term (2) Balance (3) Life (2)
------------ ----------- ----------- -----------
<S> <C> <C> <C> <C>
New Automobiles and Light-Duty Trucks..............
Used Automobiles and Light-Duty Trucks.............
New Vans (1).......................................
Used Vans (1)......................................
------------ ----------- ----------- -----------
All Receivables....................................
============ =========== =========== ===========
</TABLE>
- - - - -----------------
(1) References to vans include minivans and van conversions.
(2) Based on scheduled maturity and assuming no prepayments of the Receivables.
(3) Sum may not equal 100% due to rounding.
Geographic Distribution of the Initial
Receivables as of the Initial Cutoff Date
Percent of Aggregate
State (1)(2) Principal Balance (3)
- - - - ------------ ---------------------
(1) Based on address of the Dealer selling the related Financed Vehicle.
(2) Receivables originated in Ohio were solicited by Dealers for direct
financing by UAC [or the Predecessor.] All other Receivables were
originated by Dealers and purchased from such Dealers by UAC [or the
Predecessor].
(3) Percentages may not add to 100.0% because of rounding.
S-9
<PAGE>
Distribution of Initial Receivables Vehicles by Model Year
<TABLE>
<CAPTION>
Percentage Principal
Number of of Total (1) Balance as of Percentage
Model Year Receivables Cut Off Date of Total (1)
------------- ------------ -------------- --------------
<S> <C> <C> <C> <C>
....................................
....................................
....................................
....................................
....................................
....................................
....................................
....................................
....................................
....................................
....................................
....................................
....................................
------------- ------------ -------------- --------------
Total...................................
============= ============ ============== ==============
</TABLE>
- - - - ------------------------
(1) Sum may not equal 100% due to rounding.
Distribution of the Initial Receivables by
Contract Rate as of the Initial Cutoff Date
<TABLE>
<CAPTION>
Percentage
Aggregate Average of Aggregate
Number of Principal Principal Principal
Contract Rate Range Receivables Balance Balance Balance(1)
------------- ------------ -------------- --------------
<S> <C> <C> <C> <C>
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
to %.........................
------------- ------------ -------------- --------------
to %.........................
============= ============ ============== ==============
- - - - ------------------------
</TABLE>
(1) Sum may not equal 100% due to rounding.
S-10
<PAGE>
Distribution of the Initial Receivables by
Remaining Term as of the Initial Cutoff Date
<TABLE>
<CAPTION>
Percentage of
Aggregate Average Aggregate
Remaining Scheduled Number of Principal Principal Principal
Term Range Receivables Balance Balance Balance (1)
- - - - --------------------------
------------- ------------ ------------ -----------------
<S> <C> <C> <C> <C>
to months......................
to months......................
to months......................
to months......................
to months......................
to months......................
to months......................
to months......................
to months......................
------------- ------------ ------------ -----------------
Total......................................
============= ============ ============ =================
</TABLE>
- - - - ------------------------
(1) Sum may not equal 100% due to rounding.
Delinquencies, Repossessions and Net Losses
Set forth below is certain information concerning the experience of UAC and
the Predecessor pertaining to delinquencies, repossessions, and net losses on
fixed rate retail automobile, light truck and van receivables serviced by UAC
and the Predecessor. There can be no assurance that the delinquency,
repossession, and net loss experience on the Receivables will be comparable to
that set forth below.
Delinquency Experience
<TABLE>
<CAPTION>
At June 30,
---------------------------------------------------------------------------------------------
1994 1995 1996
----------------------------- ----------------------------- -----------------------------
(Dollars in thousands)
Number of Number of Number of
Receivables Amount Receivables Amount Receivables Amount
------------- -------------- ------------- ------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
Servicing portfolio(1). 91,937 $843,245 117,837 $1,159,349 $
Delinquencies
30-59 days........... 907 8,389 1,169 12,097
60-89 days........... 213 2,118 377 4,124
90 days or more...... 137 1,324 0 0 0
------------- -------------- ------------- ------------- ------------ --------------
Total delinquencies 1,257 11,832 1,546 16,221
============= ============== ============= ============= ============ ==============
Total delinquencies
as a percent of
servicing portfolio 1.37% 1.40% 1.31% 1.40% % %
</TABLE>
S-11
<PAGE>
Credit Loss Experience (1)
<TABLE>
<CAPTION>
Year Ended June 30,
----------------------------------------------------------------------------------------
1994 1995 1996
-------------------------- ---------------------------- ----------------------------
(Dollars in thousands)
Number of Number of Number of
Receivables Amount Receivables Amount Receivables Amount
------------ ----------- ------------- ------------ ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Average servicing
portfolio (2).......... 83,673 $744,149 103,682 $982,836 $
Gross charge-offs......... 1,404 12,094 3,493 28,628
Recoveries (4)............ 6,946 15,258
----- ------
Net Losses................ 5,148 13,370
===== ======
Gross charge-offs as a
percentage of average
servicing portfolio (3) 1.68% 1.63% 3.37% 2.91% % %
Recoveries as a percentage
of gross charge-offs.. 57.43% 53.28% %
Net Losses as a
percentage of average
servicing portfolio (4) 0.69% 1.36% %
</TABLE>
- - - - -------------------------------
(1) There is generally no recourse to Dealers under any of the receivables in
the portfolio serviced by UAC or the Predecessor, except to the extent of
representations and warranties made by Dealers in connection with such
receivables.
(2) Equals the monthly arithmetic average, and includes receivables sold in
prior securitization transactions.
(3) Variation in the size of the portfolio serviced by UAC will affect the
percentages in "Gross Charge-Offs as a percentage of average servicing
portfolio" and "Net Losses as a percentage of average servicing portfolio".
(4) In fiscal 1995, the method by which recoveries are stated was changed.
Currently, recoveries include recoveries on receivables previously charged
off, cash recoveries and unsold repossessed assets carried at fair market
value. Under the previous method, reported recoveries excluded unsold
repossessed assets carried at fair market value. Prior period credit loss
experience has been restated to conform to current period classifications.
As indicated in the above tables, delinquency rates based upon
outstanding loan balances of accounts 30 days past due and over increased from
1.40% at June 30, 1995 to 2.34% at March 31, 1996 for the lending portfolio. The
primary reason for the increase in delinquencies is that UAC changed the way
that it measures and reports delinquencies beginning with the quarter ended
September 30, 1995. If UAC had used its historical methods of measuring and
reporting delinquencies, UAC estimates that the March 31, 1996 delinquency
balance would have been approximately 1.73%. While the magnitude of the change
in the reported delinquency measure appears to be significant, UAC does not
believe that it is indicative of a material change in the underlying credit
quality of UAC's portfolio. Furthermore, UAC has implemented a number of policy
and procedural changes which are designed to improve the credit quality of the
portfolio.
The primary reason for the increase in delinquencies was that,
beginning with the quarter ended September 30, 1995, UAC began to include in the
delinquency calculations the accounts of customers who had filed for personal
bankruptcy, but whose cases have not been resolved. At March 31, 1996, 517
accounts which were pending bankruptcy resolution were included in delinquent
accounts. Previously, these accounts were not included in the delinquency
figures, since UAC could not take any action to rectify them until the
bankruptcy court resolved each case. UAC believes the risk of loss on these
accounts is low as approximately 76.53% of bankrupt dollars are eventually
collected since the courts generally either reaffirm these loans or allow
repossession of the vehicle.
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<PAGE>
As indicated in the tables above, credit losses as a percentage of the
average servicing portfolio increased from 1.36% at June 30, 1995 to an
annualized 1.39% at March 31, 1996, which actually represents a significant
decline from 1.73% annualized at September 30, 1995. The primary reason for the
recent rise in credit losses and a contributing factor in the increase in
delinquencies is loans UAC acquired during 1994 and early 1995 which have proven
to be of lower credit quality than loans UAC acquired prior to 1994 and after
the first quarter of 1995. UAC has determined that many of these lower quality
loans resulted from "low side overrides" which are loans made to customers whose
credit scores were below UAC's minimums, but which were made as a result of the
credit analyst's judgement that it the loans were acceptable. These loans have
had higher rates of delinquency and loss than those which met UAC's
requirements. Credit analyst discretion for making low side override loans has
been reduced and low side overrides have dropped from a high of 14.32% of the
UACSC 1995-A securitization pool to 3.31% of the UACSC 1996-A securitization
pool. UAC believes the disparity in the performance of the low side override
loans resulted from continuing the existing override policy despite the
implementation of a new scoring system in December 1993. UAC also believes that
the actual mix of loans purchased during 1994 may have been of somewhat lower
average credit quality as a result of competitive pricing pressures which
permitted higher quality borrowers to obtain lower cost loans from others. Loans
made during 1994 are currently in the peak period for delinquencies and credit
losses which UAC believes to be nine to 16 months from the date of closing. UAC
believes this is demonstrated by the decline in delinquencies and losses in the
quarter ending March 31, 1996 as compared to the quarters ending September 30,
1995 and December 31, 1995.
UAC has taken a number of steps to improve its collection efforts over
the last several months. It has increased the staffing level in its collections
department by more than 115% since June 30, 1995. It has installed an improved
version of its collection system in its new headquarters which will allow its
collectors to be much more productive. For example, the number of outbound
credit collections stations at its headquarters has been increased from 14 to
50. In addition, UAC has revised its repossession policy so that it now
repossesses by 120 days past due, rather than after 60 days. UAC found that when
it switched, in April 1995, to begin repossessions after 60 days, losses
increased because some cars were repossessed from people that otherwise had the
ability to make payments. Other credit quality changes include the reduction in
low side overrides previously mentioned and a recent change to increase cutoff
scores in any individual state where credit losses were running at a rate
greater than 2.50% over the life of the loans.
[To be updated for current information]
YIELD AND PREPAYMENT CONSIDERATIONS
General
Monthly Interest (as defined herein) on the Receivables will be
distributed to Certificateholders on each Distribution Date to the extent of the
Pass-Through Rate applied to the Class A Certificate Principal Balance or Class
B Certificate Principal Balance, as applicable, as of the preceding Distribution
Date or the Closing Date, as applicable (after giving effect to distributions of
principal on such preceding Distribution Date). See "The Certificates --
Distributions". In the event of a full or partial prepayment on a Receivable,
Certificateholders will receive interest for the full month of such prepayment
either through the distribution of interest paid on other Receivables or
withdrawal from the Cash Collateral Account.
Although the Receivables will have different Contract Rates, each
Receivable's Contract Rate generally will exceed the sum of (a) the initial
weighted average of the Class A Pass-Through Rate and the Class B Pass-Through
Rate and (b) the per annum rate used to calculate the Servicing Fee. The
Contract Rate on certain of the Receivables, however, will be less than the
weighted average of the Class A Pass-Through Rate and the Class B Pass-Through
Rate plus the per annum rate used to calculate the Servicing Fee. For such
Receivables, amounts on deposit in the Yield Supplement Account will be used to
cover resulting shortfalls with respect to Monthly Interest and the Servicing
Fee. See "The Certificates -- Accounts". The availability of amounts on deposit
in the Yield Supplement Account reduces
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the likelihood that disproportionate rates of prepayments between Receivables
with higher and lower Contract Rates will affect the ability of the Trust to
distribute Monthly Interest to Certificateholders.
The effective yield to Certificateholders will be below the yield
otherwise produced by the Pass-Through Rate because the distribution of Monthly
Principal and Monthly Interest in respect of any given month will not be made
until the related Distribution Date, which will not be earlier than the day of
the following month.
Mandatory Repurchase
Cash distributions to Certificateholders will be made, on a pro rata
basis, on the Distribution Date on or immediately following the last day of the
Funding Period in the event that funds remain on deposit in the Pre-Funding
Account after giving effect to the purchase of all Subsequent Receivables,
including any such purchase on such date.
THE DEPOSITOR AND UAC
UAC currently acquires loans from over 2,000 manufacturer franchised
automobile dealerships in 44 metropolitan areas in 23 states. UAC is an Indiana
corporation, formed in December 1993 by the Predecessor to succeed to the
indirect automobile finance business of the Predecessor, which the Predecessor
had operated since 1986. UAC began purchasing and originating Receivables in
April 1994. For the fiscal years ended June 30, 1993, 1994, 1995 and 1996 UAC
and/or its Predecessor acquired loans aggregating $435 million, $615 million,
$767 million and $____ million, respectively, representing annual increases of
41%, 25%, and ____% respectively. Of the $___ billion of loans in the servicing
portfolio of UAC and its Predecessor (consisting of the principal balance of
loans held for sale and securitized loans) at June 30, 1996, approximately ____%
represented loans on used cars and approximately ____% represented loans on new
cars.
Additional information regarding UAC and the Depositor is set forth
under "Union Acceptance Corporation and Affiliates" in the Prospectus.
THE CERTIFICATES
General
The Certificates will be issued pursuant to the Pooling and Servicing
Agreement. Copies of the Pooling and Servicing Agreement (without exhibits) may
be obtained by Certificateholders upon request in writing to the Servicer at the
address set forth herein under "Reports to Certificateholders". Citations to the
relevant sections of the Pooling and Servicing Agreement appear below in
parentheses. The following summary does not purport to be complete and is
subject to and qualified in its entirety by reference to the Pooling and
Servicing Agreement.
Distributions
In general, it is intended that the Trustee distribute to the Class A
Certificateholders and the Class B Certificateholders on each Distribution Date
the aggregate principal payments, including full and partial prepayments (except
certain prepayments in respect of Precomputed Receivables as described below
under "-- Accounts") received on the Receivables during the related Collection
Period, plus a full month's interest at the Class A Pass-Through Rate or the
Class B Pass-Through Rate, as applicable, payable monthly at one-twelfth the
annual rate, calculated on the basis of a 360-day year consisting of twelve
30-day months. (Section .) The Class A Certificates are entitled to a certain
priority, relative to the Class B Certificates, in right of distributions on the
Receivables. See "-- Distributions on the Certificates". Interest to
Certificateholders may be provided by a payment made by or on behalf of the
Obligor, by an Advance made by the Servicer to cover an Interest Shortfall, by a
withdrawal from the Cash Collateral Account to cover an Interest Shortfall, and,
in respect of certain Receivables, by the withdrawal of the Yield Supplement
Amount from the Yield Supplement Account. See "-- Sale and Assignment of
Receivables; Subsequent Receivables" and "-- Accounts" herein.
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<PAGE>
Sale and Assignment of Receivables; Subsequent Receivables
Certain information with respect to the conveyance of the Initial
Receivables from UAFC to the Depositor, and from the Depositor to the Trust, on
the Closing Date pursuant to the Purchase Agreement and the Pooling and
Servicing Agreement, respectively, is set forth under "The Transfer and
Servicing Agreements -- Sale and Assignment of the Receivables" in the
Prospectus. In addition, during the Funding Period, pursuant to the Pooling and
Servicing Agreement, UAFC will be obligated to sell to the Depositor and the
Depositor will be obligated to sell to the Trust, Subsequent Receivables having
an aggregate principal balance equal to approximately $ (such amount being equal
to the initial Pre-Funded Amount) to the extent that such Subsequent Receivables
are available.
During the Funding Period on each Subsequent Transfer Date, subject to
the conditions described below, UAFC will sell and assign to the Depositor, and
the Depositor will sell and assign to the Trust, without recourse, their
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respective interests in the Subsequent Receivables. The Subsequent Receivables
will be designated by UAFC as of the related Subsequent Cutoff Date and
identified in a schedule attached to a subsequent transfer assignment relating
to such Subsequent Receivables, which will be executed and delivered on such
date by the Depositor for delivery to the Trustee pursuant to the Pooling and
Servicing Agreement.
Any conveyance of Subsequent Receivables is subject to the
satisfaction, on or before the related Subsequent Transfer Date, of the
following conditions precedent, among others: (i) each such Subsequent
Receivable must satisfy the eligibility criteria specified in the Pooling and
Servicing Agreement and shall not have been selected from among such eligible
Receivables in a manner that UAFC or the Depositor deems adverse to the
interests of the Certificateholders; (ii) as of the related Subsequent Cutoff
Date, the Receivables in the Trust at that time, including the Subsequent
Receivables to be conveyed by the Depositor as of such Subsequent Cutoff Date,
will satisfy the parameters described under "The Receivables Pool" herein and
under "The Receivables Pools" in the Prospectus; and (iii) UAFC shall have
executed and delivered to the Depositor, and the Depositor shall have executed
and delivered to the Trustee, a written assignment conveying such Subsequent
Receivables to the Depositor and the Trust, respectively (including a schedule
identifying such Subsequent Receivables). Moreover, any such conveyance of
Subsequent Receivables will also be subject to the satisfaction of the following
requirements within days after the termination of the Funding Period: (a) the
Depositor must deliver certain opinions of counsel to the Trustee and the Rating
Agencies with respect to the validity of the conveyance of the Subsequent
Receivables to the Trust; (b) the Trustee shall have received written
confirmation from a firm of certified independent public accountants that the
Receivables, including the Subsequent Receivables, satisfy the parameters
described under "The Receivables Pool" herein and under "The Receivables Pools"
in the Prospectus; and (c) the Rating Agencies shall have notified the Depositor
in writing that, following the addition of the Subsequent Receivables to the
Trust, the Certificates will continue to be rated by such Rating Agencies in the
same rating categories in which they were rated on the Closing Date. Such
confirmation of the ratings of the Certificates may depend on factors other than
the characteristics of the Subsequent Receivables, including the delinquency,
repossession and net loss experience on the automobile, light duty truck and
minivan receivables in the portfolio serviced by the Servicer. UAC will
immediately repurchase from the Trustee, at a price equal to the Purchase Amount
thereof, any Subsequent Receivable that fails to satisfy any of the foregoing
conditions subsequent.
Subsequent Receivables may have been originated or acquired by UAC at a
later date using credit criteria different from those that were applied to the
Initial Receivables. See "Risk Factors -- Conveyance of Subsequent Receivables
to the Trust" and "The Receivables Pool" herein.
Accounts
In addition to the Certificate Account (as described in the
Prospectus), the Servicer will establish with the Trustee for the benefit of the
Certificateholders [the Yield Supplement Account,] the Cash Collateral Account
[and the Payahead Account].
Yield Supplement Account. For each Receivable on which the Contract
Rate is less than the sum of (a) the initial weighted average of the Class A
Pass-Through Rate and the Class B Pass-Through Rate and (b) the annual
percentage rate at which the Servicing Fee is calculated with respect to the
Certificate Principal Balance for such Receivable, on the Closing Date the
Depositor will deposit into the Yield Supplement Account an amount equal to the
aggregate of such shortfall over the term of such Receivables (the "Total Yield
Supplement Deposit") based on the scheduled payments of the Receivables. On each
Determination Date, the Servicer shall withdraw an amount to apply to
distributions on the Certificates on the related Distribution Date equal to the
scheduled shortfall for the previous Collection Period (the "Yield Supplement
Amount"). The Yield Supplement Account will be maintained by the Trustee for the
benefit of the Certificateholders, but will not form part of the Trust. (Section
.)
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<PAGE>
Cash Collateral Account. On the Closing Date, the Depositor will
deposit an amount equal to % of the initial Certificate Principal Balance into
the Cash Collateral Account. Thereafter, the amount held in the Cash Collateral
Account will be increased up to the Required Cash Collateral Amount by the
deposit thereto of payments on the Receivables not utilized to make payments to
the Certificateholders or the Servicer on any Distribution Date. While it is
intended that the Cash Collateral Account will grow over time to equal the
Required Cash Collateral Amount through monthly deposits of excess collections
on the Receivables, if any, there can be no assurance that such growth will
actually occur.
Under the terms of the Pooling and Servicing Agreement, the Trustee
will withdraw funds from the Cash Collateral Account and transfer them to the
Certificate Account for any deficiency as described above under "--
Distributions on the Certificates", to the extent available. Amounts available
for deficiencies on any Distribution Date will be limited to the sum of amounts
on deposit in the Cash Collateral Account on such Distribution Date.
In the event that the balance of the Cash Collateral Account is reduced
to zero on any Distribution Date, the Trust will depend solely on current
distributions on the Receivables to make distributions of principal and interest
on the Certificates. In addition, because the market value of motor vehicles
generally declines with age and because of difficulties that may be encountered
in enforcing motor vehicle contracts as described in the Prospectus under
"Certain Legal Aspects of the Receivables," the Servicer may not recover the
entire amount due on such Receivables in the event of a repossession and resale
of a Financed Vehicle securing a Receivable in default. In such event, the
Certificateholders may suffer a corresponding loss. Any such losses would also
be borne first by the Class B Certificateholders, up to the Class B Principal
Balance, and then by the Class A Certificateholders.
[Payahead Account. On the Closing Date, the Depositor will establish the
Payahead Account, into which payments on Precomputed Receivables will be
deposited and held until they are withdrawn and applied as payments on the
Certificates. [Describe mechanism for determining the precomputed payment
schedule.]
Subordination of the Class B Certificates
The rights of the Class B Certificateholders to receive distributions
with respect to the Receivables will be subordinated to such rights of the Class
A Certificateholders to the extent described herein. This subordination is
intended to enhance the likelihood of timely receipt by the Class A
Certificateholders of the full amount of interest and principal distributable to
them on each Distribution Date, and to afford the Class A Certificateholders
limited protection against losses in respect of the Receivables.
No distribution of interest will be made to the Class B
Certificateholders on any Distribution Date until the full amount of interest
payable on the Class A Certificates on such Distribution Date has been
distributed to the Class A Certificateholders and no distribution of principal
will be made to the Class B Certificateholders on any Distribution Date until
the full amount of interest on and principal of the Class A Certificates payable
on such Distribution Date has been distributed to the Class A
Certificateholders. Distributions of interest on the Class B Certificates will
not be subordinated to distributions of principal of the Class A Certificates.
Because the rights of the Class B Certificateholders to receive distributions of
principal will be subordinated to the rights of the Class A Certificateholders
to receive distributions of interest and principal, the Class B Certificates
will be more sensitive than the Class A Certificates to losses on the
Receivables. If the aggregate amount of losses on the Receivables exceeds the
amount on deposit in the Cash Collateral Account, Class B Certificateholders may
not recover their initial investment in the Class B Certificates.
In the event of delinquencies or losses on the Receivables, the
protection afforded to the Class A Certificateholders will be effected both by
the preferential right of the Class A Certificateholders to receive
distributions on the Receivables in the manner and to the extent described above
and by the establishment of the Cash Collateral Account.
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<PAGE>
Advances
To the extent that interest collected on a Receivable during a
Collection Period falls short of the scheduled interest payment, the Servicer
will make an Advance of the resulting Interest Shortfall, but only to the extent
that the Servicer in its sole discretion, expects to recoup the Advance from
subsequent collections on the Receivable, or withdrawals from the Cash
Collateral Account. The Servicer will deposit the Advance in the Certificate
Account on or before the calendar day of the month following the Collection
Period. The Servicer will recoup its Advance from subsequent payments by or on
behalf of the respective Obligor, from insurance proceeds or, upon the
Servicer's determination that reimbursement from the preceding sources is
unlikely, will recoup its Advance from any collections made on other
Receivables. (Section 14.05.)
Distributions on the Certificates
The Servicer will deposit in the Certificate Account the amount of
payments on all Receivables received with respect to the preceding Collection
Period, the Yield Supplement Amount for the related Distribution Date, all
Advances for such Collection Period, and the Purchase Amount for all Receivables
that became Purchased Receivables during the preceding Collection Period, all of
which amounts will be available for distribution pursuant to the terms of the
Pooling and Servicing Agreement on the next succeeding Distribution Date
("Available Funds") and will determine the amount of funds necessary to make
distributions of Monthly Principal and Monthly Interest to the
Certificateholders and the Servicing Fee to the Servicer. If there is a
deficiency with respect to the foregoing, the Servicer will withdraw amounts, to
the extent available, from the Cash Collateral Account in the amount of such
deficiency and notify the Trustee of any remaining deficiency.
If acceptable to each Rating Agency without a reduction in the rating
of any class of Certificates, the Servicing Fee due to the Servicer in respect
of each Collection Period will be distributed to the Servicer at the beginning
of such Collection Period from collections during such Collection Period.
On each such Distribution Date, the Trustee will apply or cause to be
applied the Available Funds plus any amounts withdrawn from the Cash Collateral
Account to make the following payments in the following priority:
(a) the aggregate amount of outstanding Advances on all Receivables
(x) that became Defaulted Receivables during the prior Collection Period,
and (y) that the servicer determines to be unrecoverable, to the Servicer;
(b) the Servicing Fee, including any overdue Servicing Fee, to the
Servicer, to the extent not previously distributed to the Servicer;
(c) pro rata, Class A Monthly Interest, including any overdue Class A
Monthly Interest, to the Class A Certificateholders;
(d) Class B Monthly Interest, including any overdue Class B Monthly
Interest, to the Class B Certificateholders;
(e) Class A Monthly Principal, to the Class A Certificateholders;
(f) Class B Monthly Principal, to the Class B Certificateholders;
(g) the amount of recoveries of Advances (to the extent such
recoveries have not previously been reimbursed to the Servicer pursuant to
clause (a) above), to the Servicer;
(h) the amount of Liquidation Proceeds on Purchased Receivables
purchased by the Servicer, to the Servicer;
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(i) the amount of Liquidation Proceeds on Purchased Receivables
repurchased by the Depositor, to the Depositor; and
(j) the balance into the Cash Collateral Account.
After all distributions pursuant to clauses (a) through (j) above have
been made on each Distribution Date, the amount of funds remaining in the Cash
Collateral Account on such date, if any, in excess of the Required Cash
Collateral Amount, will be distributed by the Trustee to UAC. Any amounts so
distributed to UAC will no longer be available for distribution to
Certificateholders, and the Certificateholders will have no rights with respect
thereto.
"Monthly Interest" for any Distribution Date will equal the sum of the
Class A Monthly Interest and the Class B Monthly Interest.
"Monthly Principal" for any Distribution Date will equal the sum of the
Class A Monthly Principal and the Class B Monthly Principal.
"Class A Monthly Interest" for any Distribution Date will equal (i) for
the first Distribution Date, the product of the following: (one-twelfth of the
Class A Pass-Through Rate) multiplied by (the number of days remaining in the
month of the Closing Date from the Closing Date divided by 30) multiplied by
(the Class A Principal Balance at the Closing Date) and (ii) with respect to
each subsequent Distribution Date, the product of one-twelfth of the Class A
Pass-Through Rate and the Class A Principal Balance on the preceding
Distribution Date (after giving effect to any distribution of Monthly Principal
required to be made on such preceding Distribution Date).
"Class A Monthly Principal" for any Distribution Date will equal the
amount necessary to reduce the Class A Principal Balance to % of the aggregate
unpaid principal balances of the Receivables on the last day of the preceding
Collection Period; provided, however, that Class A Monthly Principal on the
final scheduled Distribution Date will equal the Class A Principal Balance on
such date. For the purpose of determining Class A Monthly Principal, the unpaid
principal balance of a Defaulted Receivable or a Purchased Receivable is deemed
to be zero on and after the last day of the Collection Period in which such
Receivable became a Defaulted Receivable or a Purchased Receivable.
"Class B Monthly Interest" for any Distribution Date will equal (i) for
the first Distribution Date, the product of the following: (one-twelfth of the
Class B Pass-Through Rate) multiplied by (the number of days remaining in the
month of the Closing Date from the Closing Date divided by 30) multiplied by
(the Class B Principal Balance at the Closing Date) and (ii) with respect to
each subsequent Distribution Date, the product of one-twelfth of the Class B
Pass-Through Rate and the Class B Principal Balance on the preceding
Distribution Date (after giving effect to any distribution of Monthly Principal
required to be made on such preceding Distribution Date).
"Class B Monthly Principal" for any Distribution Date will equal the
amount necessary to reduce the Class B Principal Balance to % of the sum of the
aggregate unpaid principal balances of the Receivables on the last day of the
preceding Collection Period; provided, however, that Class B Monthly Principal
on the final scheduled Distribution Date will equal the Class B Principal
Balance on such date. For the purpose of determining Class B Monthly Principal,
the unpaid principal balance of a Defaulted Receivable or a Purchased Receivable
is deemed to be zero on and after the last day of the Collection Period in which
such Receivable became a Defaulted Receivable or a Purchased Receivable.
"Defaulted Receivable" will mean, for any Collection Period, a
Receivable as to which any of the following has occurred: (i) the Receivable is
90 days or more delinquent as of the last day of such Collection Period; (ii)
the Financed Vehicle that secures the Receivable has been repossessed; or (iii)
the Receivable has been determined to be uncollectible in accordance with the
Servicer's customary practices on or prior to the last day of such Collection
Period; provided, however, that any Receivable which the Depositor or the
Servicer is obligated to repurchase or purchase pursuant to the Pooling and
Servicing Agreement shall be deemed not to be a Defaulted Receivable.
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As an administrative convenience, the Servicer will be permitted to
make the deposit of collections and aggregate Advances and Purchase Amounts for
or with respect to the Collection Period, net of distributions to be made to the
Servicer or Depositor with respect to the Collection Period. The Servicer,
however, will account to the Trustee and to the Certificateholders as if all
deposits and distributions were made individually. (Section .)
The following chart sets forth an example of the application of the
foregoing provisions to a monthly distribution:
...................Collection Period. The Servicer receives monthly
payments, prepayments, and other proceeds in
respect of the Receivables and deposits them in
the Certificate Account. [The Servicer may deduct
Servicing Fees from such deposits.]
.....................Record Date. Distributions on the Distribution
Date are made to Certificateholders of record at
the close of business on this date.
.....................Fifth calendar day. On or before this date, the
Servicer notifies the Trustee of the amounts to be
distributed on the Distribution Date.
.....................The Trustee withdraws funds from the Cash
Collateral Account, if necessary.
.....................Distribution Date. The Trustee distributes to
Certificateholders amounts payable in respect of
the Certificates[, and pays the Servicing Fee].
ERISA CONSIDERATIONS
Subject to the considerations set forth under "ERISA Considerations --
Senior Certificates Issued By Grantor Trusts" in the Prospectus, the Class A
Certificates may be eligible for purchase by an employee benefit plan or an
individual retirement account (a "Plan") subject to ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"). A fiduciary of a Plan
must determine that the purchase of a Class A Certificate is consistent with its
fiduciary duties under ERISA and does not result in a nonexempt prohibited
transaction as defined in Section 406 of ERISA or Section 4975 of the Code. For
additional information regarding treatment of the Class A Certificates under
ERISA, see "ERISA Considerations" in the Prospectus.
Because the Class B Certificates are subordinated to the Class A
Certificates, the Class B Certificates may not be purchased by Plans.
UNDERWRITING
Under the terms and subject to the conditions set forth in the
underwriting agreement for the sale of the Certificates, dated , 199 , the
Depositor has agreed to sell and each of the underwriters named below (the
"Underwriters") severally agreed to purchase the principal amount of the
Certificates set forth opposite its name below:
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<PAGE>
Principal Amount of Principal Amount of
Underwriters Class A Certificates Class B Certificates
--------------------- -------------------
.................... $ $
....................
--------------------- -------------------
Total.................... $ $
===================== ===================
In the underwriting agreement, the Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase all the Certificates
offered hereby if any of the Certificates are purchased.
The Underwriters propose to offer part of the Certificates directly to the
public at the prices set forth on the cover page hereof, and part to certain
dealers at a price that represents a concession not in excess of ___% of the
denominations of the Class A Certificates or ______% of the denominations of the
Class B Certificates. The Underwriters may allow and such dealers may reallow a
concession not in excess of _____% of the denominations of the Class A
Certificates or ____% of the denominations of the Class B Certificates.
The Depositor and UAC have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act.
The Depositor has been advised by the Underwriters that the
Underwriters presently intend to make a market in the Certificates, as permitted
by applicable laws and regulations. The Underwriters are not obligated, however,
to make a market in the Certificates and any such market-making may be
discontinued at any time at the sole discretion of the Underwriters.
Accordingly, no assurance can be given as to the liquidity of, or trading
markets for, the Certificates.
LEGAL OPINIONS
Certain legal matters relating to the Certificates will be passed upon for
the Depositor by Barnes & Thornburg, Indianapolis, Indiana, and for the
Underwriters by Cadwalader, Wickersham & Taft. Certain federal income tax
consequences with respect to the Certificates will be passed upon for the
Depositor by .
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<PAGE>
INDEX OF PRINCIPAL TERMS
TERM PAGE
Available Funds............................................................S-21
Certificate Principal Balance...............................................S-7
Certificateholders..........................................................S-5
Certificates................................................................S-1
Class A Principal Balance...................................................S-4
Class A Certificateholders..................................................S-4
Class A Certificates........................................................S-1
Class A Monthly Interest...................................................S-22
Class A Monthly Principal..................................................S-22
Class A Pass-Through Rate...................................................S-4
Class A Percentage..........................................................S-4
Class B Principal Balance...................................................S-4
Class B Certificateholders..................................................S-4
Class B Certificates........................................................S-1
Class B Monthly Interest...................................................S-23
Class B Monthly Principal..................................................S-23
Class B Pass-Through Rate...................................................S-4
Class B Percentage..........................................................S-4
Closing Date................................................................S-4
Code.......................................................................S-24
Cutoff Date.................................................................S-2
Defaulted Receivable.......................................................S-23
Depositor...................................................................S-4
Distribution Date...........................................................S-1
Final Scheduled Distribution Date...........................................S-1
Final Scheduled Maturity Date...............................................S-6
Funding Period..............................................................S-6
Initial Cutoff Date.........................................................S-5
Initial Receivables.........................................................S-5
Monthly Interest...........................................................S-22
Monthly Principal..........................................................S-22
Optional Purchase...........................................................S-8
Plan.......................................................................S-24
Pooling and Servicing Agreement.............................................S-1
Pre-Funded Amount...........................................................S-5
Pre-Funding Account.........................................................S-7
Purchase Agreement..........................................................S-6
Receivables.................................................................S-2
Receivables Pool...........................................................S-12
Record Date.................................................................S-4
Required Cash Collateral Amount.............................................S-7
Servicer....................................................................S-4
Subsequent Cutoff Date......................................................S-5
Subsequent Receivables......................................................S-5
Subsequent Transfer Date....................................................S-5
Total Yield Supplement Deposit.............................................S-20
Trust.......................................................................S-1
UAC.........................................................................S-4
UAFC........................................................................S-6
Underwriters...............................................................S-24
Yield Supplement Amount....................................................S-20
S-22
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL
THERE BY ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion dated June 27, 1996
PROSPECTUS
================================================================================
UACSC Auto Trusts
Asset Backed Certificates
UAC Securitization Corporation
Depositor
Union Acceptance Corporation
Servicer
================================================================================
The asset backed certificates described herein (the "Certificates") may be sold
from time to time in one or more series (each, a "Series"), in amounts, at
prices and on terms to be determined at the time of sale and to be set forth in
a supplement to this Prospectus (a "Prospectus Supplement"). Each Series of
Certificates will be issued by a trust (each, a "Trust") to be formed with
respect to such Series and will include one or more classes of Certificates. The
property of each Trust will include a pool of motor vehicle installment sale
and/or installment loan contracts secured by new and used automobiles, light
trucks and vans (the "Receivables"), certain monies received thereunder after
the applicable cutoff date, security interests in the vehicles financed thereby
and certain other property, as more fully described herein and in the related
Prospectus Supplement. If so specified in the related Prospectus Supplement, the
property of a Trust will include monies on deposit in a trust account, which
will be used to purchase additional Receivables after the related closing date.
Union Acceptance Corporation will act as servicer of the Receivables for each
Trust. Except as otherwise specified in the related Prospectus Supplement, each
class of Certificates of any Series will represent the right to receive a
specified amount of payments of principal and interest on the related
Receivables, at the rates, on the dates and in the manner described herein and
in the related Prospectus Supplement. If so provided in the related Prospectus
Supplement, a Series of Certificates may include one or more classes of
Certificates entitled to interest distributions with disproportionate, nominal
or no distributions in respect of principal, or to principal distributions with
disproportionate, nominal or no distributions in respect of interest. As more
fully described herein and in the related Prospectus Supplement, distributions
on any class of Certificates may be senior or subordinate to distributions on
one or more other classes of Certificates of the same Series. Prospective
investors should consider the factors set forth under "Risk Factors" on page 10
of this Prospectus and in the related Prospectus Supplement.
----------
EXCEPT AS OTHERWISE SPECIFIED IN THE RELATED PROSPECTUS SUPPLEMENT, THE
CERTIFICATES OF A SERIES WILL REPRESENT BENEFICIAL INTERESTS IN THE
RELATED TRUST ONLY, AND WILL NOT REPRESENT OBLIGATIONS OF OR
INTERESTS IN, AND ARE NOT GUARANTEED OR INSURED BY, UAC
SECURITIZATION CORPORATION, ANY AFFILIATE THEREOF OR
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THESE CERTIFICATES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------
Retain this Prospectus for future reference. This Prospectus may not be
used to consummate sales of Certificates of any Series unless accompanied by the
related Prospectus Supplement.
----------
June ___, 199___
<PAGE>
AVAILABLE INFORMATION
The Depositor, as originator of the Trusts, has filed with the Securities
and Exchange Commission (the "Commission") a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended, with respect to the
Certificates being offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which have
been omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement, which is
available for inspection without charge at the public reference facilities of
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and the regional offices of the Commission at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such information can be
obtained from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Upon receipt of a request by an investor who has received an electronic
Prospectus Supplement and Prospectus from an Underwriter or a request by such
investor's representative within the period during which there is an obligation
to deliver a Prospectus Supplement and Prospectus, the Depositor or such
Underwriter will promptly deliver, or cause to be delivered, without charge, to
such investor a paper copy of the Prospectus Supplement and Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed by the Servicer or the Depositor on behalf of the Trust
referred to in the accompanying Prospectus Supplement with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of this Prospectus and
prior to the termination of the offering of the Certificates offered by such
Trust shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the dates of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein (or in the
accompanying Prospectus Supplement) or in any subsequently filed document that
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Servicer on behalf of any Trust will provide without charge to each
person to whom a copy of this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference, except the exhibits to such documents. Requests to the
Servicer for such copies should be addressed to Union Acceptance Corporation,
250 North Shadeland Avenue, Indianapolis, Indiana 46219, (317) 231-7965.
2
<PAGE>
SUMMARY OF TERMS
This Summary is qualified in its entirety by reference to the detailed
information appearing elsewhere in this Prospectus and by reference to the
information with respect to each Series of Certificates contained in the related
Prospectus Supplement to be prepared and delivered in connection with the
offering of such Certificates. Certain capitalized terms used in this summary
are defined elsewhere in this Prospectus on the pages indicated in the "Index of
Terms".
Issuer ................................With respect to any Series of
Certificates, a Trust formed pursuant to
a pooling and servicing agreement (each,
a "Pooling and Servicing Agreement")
among the Depositor, the Servicer and
the Trustee for such Trust.
Depositor .............................UAC Securitization Corporation, a
Delaware corporation having its
principal office and place of business
in Indianapolis, Indiana (the
"Depositor"). The Depositor's principal
executive offices are located at 250
North Shadeland Avenue, Indianapolis,
Indiana 46219, and its telephone number
is (317) 231-6466.
Servicer ..............................Union Acceptance Corporation, an Indiana
corporation having its principal office
and place of business in Indianapolis,
Indiana (in its capacity as servicer the
"Servicer", otherwise "UAC"). The
Servicer's principal offices are located
at 250 North Shadeland Avenue,
Indianapolis, Indiana 46219, and its
telephone number is (317) 231-6400.
Trustee ..............................With respect to each Trust, the trustee
specified in the related Prospectus
Supplement (the "Trustee").
Securities Offered ...................Each Series of asset backed securities
issued by a Trust will consist of one or
more classes of Certificates. Each class
of Certificates of a Series will be
issued pursuant to the related Pooling
and Servicing Agreement. The related
Prospectus Supplement will specify which
class or classes of Certificates of the
related Series are being offered
thereby.
Unless otherwise specified in the
related Prospectus Supplement, each
class of Certificates will have a stated
certificate balance (the "Class
Certificate Balance") and will accrue
interest on such Class Certificate
Balance at a specified rate (with
respect to each class of Certificates,
the "Pass-Through Rate"). If so
specified in the related Prospectus
Supplement, one or more classes of
Certificates ("Strip Certificates") may
be entitled to (i) interest
distributions with disproportionate,
nominal or no principal distributions or
(ii) principal distributions with
disproportionate, nominal or no interest
distributions. See "Description of the
Certificates -- Distributions of
Principal and Interest".
Each class of Certificates may have a
different Pass-Through Rate, which may
be a fixed, variable or adjustable
Pass-Through Rate, or any combination
of the foregoing. The related
Prospectus Supplement will specify the
Pass-Through Rate, or the method for
determining the applicable
Pass-Through Rate, for each class of
Certificates.
3
<PAGE>
A Series of Certificates may include two
or more classes of Certificates that
differ as to timing and/or priority of
distributions, seniority, allocations
of losses, Pass-Through Rate, amount of
distributions in respect of principal
or interest, or any combination of the
foregoing. Additionally, distributions
in respect of principal or interest in
respect of any such class or classes
may or may not be made upon the
occurrence of specified events or on
the basis of collections from
designated portions of the related
Receivables Pool.
Unless otherwise specified in the
related Prospectus Supplement,
Certificates will be available in
book-entry form only and will be
available for purchase in minimum
denominations of $1,000 and integral
multiples thereof, except that one
Certificate of each class may be issued
in such denomination as is required to
include any residual amount. Unless
otherwise specified in the related
Prospectus Supplement,
Certificateholders will be able to
receive Definitive Certificates only in
the limited circumstances described
herein or in the related Prospectus
Supplement. See "Description of the
Certificates -- Definitive
Certificates".
If so provided in the related Prospectus
Supplement, the Servicer or one or more
other entities may be entitled to
purchase the Receivables of a Trust or
to cause such Receivables to be
purchased by another entity, in the
manner and subject to the conditions
described in such Prospectus
Supplement. If the Servicer or any such
other entity exercises any such option
to purchase the Receivables or to cause
the Receivables to be purchased, the
Certificates will be prepaid as set
forth in the related Prospectus
Supplement. See "Description of the
Transfer and Servicing Agreements --
Termination" herein. In addition, if
the related Prospectus Supplement
provides that the property of a Trust
will include a Pre-Funding Account, one
or more classes of Certificates may be
subject to a partial prepayment of
principal following the end of the
Funding Period, in the manner and to
the extent specified in the related
Prospectus Supplement. See "Description
of the Transfer and Servicing
Agreements -- Accounts -- Pre-Funding
Account" herein.
The Trust Property .................The property of each Trust will include
a pool of simple interest and
precomputed interest installment sale
and installment loan contracts secured
by new and used automobiles, light
trucks and vans (the "Receivables"),
certain monies due or received
thereunder after the date specified in
the related Prospectus Supplement
(each, a "Cutoff Date"), security
interests in the vehicles financed
thereby (the "Financed Vehicles"), any
right to recourse of UAC against the
dealers who
4
<PAGE>
sold the Financed Vehicles (the
"Dealers"), proceeds from claims on
certain insurance policies, and certain
rights under the purchase agreement
(each, a "Purchase Agreement") among
UAC, the Depositor and Union Acceptance
Funding Corporation ("UAFC") pursuant to
which the Depositor will purchase the
related Receivables from UAFC. The
property of each Trust also will include
amounts on deposit in, or certain rights
with respect to, certain accounts,
including the related Certificate
Account and any Pre-Funding Account,
Cash Collateral Account, yield
supplement account or any other account
identified in the applicable Prospectus
Supplement. See "Description of the
Transfer and Servicing Agreements--
Accounts".
The Receivables arise, or will arise,
from motor vehicle installment sale
contracts that were originated by
dealers for assignment to UAC (directly
or through Union Federal Savings Bank
of Indianapolis (the "Predecessor"),
UAC's parent corporation before the
completion on August 7, 1995 of a
spin-off) or motor vehicle loan
contracts that were solicited by
dealers for origination by UAC or the
Predecessor (collectively, the
"Contracts"). In the ordinary course of
its business, immediately after UAC
originates or otherwise acquires the
Contracts, UAC sells the Contracts to
UAFC. Payment of the amount due under
each Contract is secured by a first
perfected security interest in the
related Financed Vehicle. UAFC, UAC or
the Predecessor is or will be the
registered lienholder on the
certificate of title of each of the
Financed Vehicles. The Receivables for
each Receivables Pool will be selected
from the Contracts owned by UAFC based
on the criteria specified in the
related Pooling and Servicing Agreement
and described herein under "The
Receivables Pools" and "Description of
the Transfer and Servicing Agreement --
Sale and Assignment of Receivables" and
in the related Prospectus Supplement
under "The Receivables Pool".
On the date of issuance of a Series of
Certificates (each, a "Closing Date"),
the Depositor will convey Receivables
to the related Trust in the aggregate
principal amount provided in the
related Prospectus Supplement and, if
so provided in such Prospectus
Supplement, will deposit the amount
specified in such Prospectus Supplement
(the "Pre-Funded Amount") into a trust
account established in the name of the
Trustee for the benefit of the
Certificateholders (the "Pre-Funding
Account"). The Pre-Funded Amount with
respect to any Trust will not exceed
25% of the initial aggregate Class
Certificate Balances for the related
Series (the "Certificate Balance").
If the property of a Trust includes a
Pre-Funding Account, UAFC will be
obligated under the related Purchase
Agreement to sell additional
Receivables (the "Subsequent
Receivables") to the Depositor from
time to time during the period provided
in the related Prospectus Supplement
(the "Funding Period") having an
aggregate principal balance
approximately equal to the Pre-Funded
Amount. The Depositor, in turn, will be
obligated under the Pooling and
Servicing Agreement to sell such
Subsequent Receivables to the related
Trust, and the Trust will be obligated
to purchase the Subsequent Receivables,
subject to the satisfaction of certain
conditions set forth in the Pooling and
Servicing Agreement and described
herein under "Description of the
Transfer and Servicing Agreements --
Sale and Assignment of Receivables". As
used in this Prospectus, the term
Receivables will include the
Receivables transferred to a Trust on
the related Closing Date as well as any
Subsequent Receivables transferred to
such Trust during the related Funding
Period.
5
<PAGE>
Amounts on deposit in any Pre-Funding
Account during the Funding Period will
be invested by the Trustee (as directed
by the Servicer) in Eligible
Investments, and any resultant
investment income (less any related
investment expenses) will be included,
on the Distribution Date immediately
following the date on which such
investment income is paid to the Trust,
in the Available Funds for such
Distribution Date. Any funds remaining
in a Pre-Funding Account at the end of
the related Funding Period will be
distributed to holders of the related
Series of Certificates (the
"Certificateholders") as a prepayment
of principal of the Certificates, in
the amounts and priority described in
the related Prospectus Supplement. No
Funding Period will continue for more
than three calendar months after the
related Closing Date. See "Description
of the Transfer and Servicing
Agreements -- Accounts -- Pre-Funding
Account".
In each Purchase Agreement, UAC and UAFC
will make certain representations and
warranties with respect to the related
Receivables and will undertake to
repurchase from the Depositor any
Receivable with respect to which there
exists an uncured breach of any of its
representations or warranties, if such
breach materially and adversely affects
the rights of the Depositor, or the
Depositor's assignee, in such
Receivable. In each Pooling and
Servicing Agreement, the Depositor will
assign to the related Trust certain
rights under the related Purchase
Agreement, including the right to cause
UAC to repurchase any Receivable in
respect of which it is in breach of a
breach or warranty that materially and
adversely affects the interest of the
Trust in such Receivable. None of UAC,
UAFC or the Depositor will have any
other obligation with respect to the
Receivables or the Certificates. See
"Description of the Transfer and
Servicing Agreements -- Sale and
Assignment of Receivables".
Credit and Cash
Flow Enhancement ................. If and to the extent specified in the
related Prospectus Supplement, credit
enhancement with respect to a Trust or
any class or classes of Certificates
may include any one or more of the
following: subordination of one or more
other classes of Certificates of the
same Series, Cash Collateral Accounts,
yield supplement accounts, spread
accounts, surety bonds, insurance
policies, letters of credit, credit or
liquidity facilities,
over-collateralization, guaranteed
investment contracts, swaps or other
interest rate protection agreements,
repurchase obligations, other
agreements with respect to third-party
payments or other support, cash
deposits, or other arrangements. To the
extent specified in the related
Prospectus Supplement, a form of credit
enhancement with respect to a Trust or
class or classes of Certificates may be
subject to certain limitations and
exclusions from coverage thereunder.
Transfer and Servicing
Agreements .......................Pursuant to each Purchase Agreement, UAFC
will sell the related Receivables to the
Depositor without recourse and, if so
stated in the related Prospectus
6
<PAGE>
Supplement, will undertake to sell
Subsequent Receivables, in the aggregate
amount specified therein, to the
Depositor during the related Funding
Period. The Depositor, in turn, will
sell such Receivables to the related
Trust, without recourse, and will
undertake to sell any such Subsequent
Receivables to the related Trust during
the related Funding Period. In addition,
the Servicer will agree in each Pooling
and Servicing Agreement to be
responsible for servicing, managing,
maintaining custody of and making
collections on the related Receivables.
Unless otherwise provided in the related
Prospectus Supplement, the Servicer
will advance funds (each, an "Advance")
on the Receivables made during the
preceding calendar month (the
"Collection Period") to cover 30 days
of interest due on a Receivable that is
more than 30 days delinquent (each, an
"Interest Shortfall"), but only to the
extent that the Servicer, in its sole
discretion, expects to be able to
recoup such Advance from subsequent
payments on the Receivable. Advances by
the Servicer will add to the funds
available for distributions to
Certificateholders on a Distribution
Date, but the Servicer will be entitled
to reimbursement for such Advances from
subsequent payments of the Receivables
or, to the extent set forth in the
related Prospectus Supplement, from
insurance proceeds or withdrawals from
any Cash Collateral Account or similar
form of credit enhancement. See
"Description of the Transfer and
Servicing Agreements -- Advances".
Unless otherwise provided in the related
Prospectus Supplement, UAC will be
obligated to repurchase from the Trust
any Receivable in which the interest of
such Trust is materially and adversely
affected as a result of a breach of any
representation or warranty made by UAC
and/or UAFC in the related Purchase
7
<PAGE>
Agreement if such breach is not cured in
a timely manner following the discovery
by or notice to UAC. In addition, unless
otherwise provided in the related
Prospectus Supplement, the Servicer will
be obligated under each Pooling and
Servicing Agreement to purchase any
Receivable if (i) among other things,
the Servicer reduces the rate of
interest under the related Contract (the
"Contract Rate"), changes the amount of
the scheduled monthly payments or the
amount financed or fails to maintain a
perfected security interest in the
related Financed Vehicle and (ii) the
interest of the Certificateholders in
such Receivable is materially and
adversely affected by such action or
failure to act of the Servicer. If the
Servicer extends the date for final
payment by the obligor on the related
Contract (each, an "Obligor") beyond the
final scheduled maturity date specified
in the related Prospectus Supplement
(the "Final Scheduled Maturity Date"),
the Servicer will be obligated to
purchase the Receivable on such Final
Scheduled Maturity Date.
Unless otherwise specified in the
related Prospectus Supplement, the
Servicer will receive a fee for
servicing the Receivables of each Trust
equal to the Servicing Fee Rate times
the aggregate outstanding principal
balance of the related Receivables (the
"Pool Balance"), plus certain late
fees, prepayment charges and other
administrative fees or similar charges.
UAC may also receive investment
earnings from certain accounts and
other cash flows with respect to a
Trust. See "Description of the Transfer
and Servicing Agreements -- Servicing
Compensation and Payment of Expenses"
herein.
Certain Legal Aspects
of the Receivables;
Repurchase Obligations ............ In connection with each sale of
Receivables by UAFC to the Depositor
and by the Depositor to a Trust,
security interests in the related
Financed Vehicles will be assigned by
UAFC to the Depositor and by the
Depositor to the Trust; due to
administrative burden and expense,
however, the certificates of title to
such Financed Vehicles will not be
amended to reflect the assignment
either to the Depositor or to the
Trust. In the absence of such an
amendment, the Trust may not have a
perfected security interest in the
Financed Vehicles securing the
Receivables in some states. Unless
otherwise specified in the related
Prospectus Supplement, UAC will be
obligated to repurchase from a Trust
any Receivable sold to such Trust as to
which all action necessary to secure a
first perfected security interest in
the name of UAFC, UAC or the
Predecessor in the Financed Vehicle
securing such Receivable shall not have
been taken as of the date such
Receivable is purchased by such Trust,
if such breach materially and adversely
affects the interest of the related
Certificateholders in such Receivable
and if such failure or breach is not
cured by the last day of the second
month following the discovery by or
notice to UAC of such breach. If a
Trust does not have a perfected
security interest in a Financed
Vehicle, its ability to realize on such
Financed Vehicle in the event of a
default may be adversely affected. To
the extent the security interest is
perfected, a Trust will have a prior
claim over subsequent purchasers of the
Financed Vehicle and holders of
subsequently perfected security
interests. However, as against liens
for repairs of Financed Vehicles or for
taxes unpaid by the related Obligor, or
through fraud or negligence, a Trust
could lose its security interest or the
priority of its security interest in a
Financed Vehicle. None of the
Depositor, UAC or UAFC will be
obligated to repurchase a Receivable
with respect to which a Trust loses its
security interest or the priority of
its security interest in the related
Financed Vehicle after the Closing Date
as the result of any such tax lien or
mechanic's lien or the fraud or
negligence of a third party.
Federal and state consumer protection laws
impose requirements on creditors in
connection with extensions of credit and
collections of retail installment loans,
and certain of these laws make an
assignee of such a loan liable to the
obligor thereon for any violation by the
lender. Unless otherwise specified in
the related Prospectus Supplement, UAC
will be required to repurchase from the
Trust any Receivable that fails to
comply with the requirements of such
consumer protection laws on or before
the last day of the month following
discovery by or notice to UAC of such
failure, if such failure materially and
adversely affects the interests of the
related Certificateholders in such
Receivable. See "Certain Legal Aspects
of the Receivables".
Tax Considerations ..................If a Prospectus Supplement specifies that
the related Trust is a grantor trust and
except as otherwise provided in such
Prospectus Supplement, upon the issuance
8
<PAGE>
of the related Series of Certificates,
special federal tax counsel to the Trust
identified in the related Prospectus
Supplement (the "Federal Tax Counsel")
will deliver an opinion to the effect
that such Trust will be treated as a
grantor trust for federal income tax
purposes and will not be subject to
federal income tax.
If a Prospectus Supplement does not
specify that the related Trust is a
grantor trust, upon the issuance of the
related Series of Certificates Federal
Tax Counsel will deliver an opinion to
the effect that such Trust will not be
treated as an association taxable as a
corporation or as a "publicly traded
partnership" taxable as a corporation.
See "Certain Federal Income Tax
Consequences" for additional information
regarding the application of federal tax
laws to a Trust and the related Series
of Certificates.
ERISA Considerations .............Subject to the considerations discussed
under "ERISA Considerations" herein and
in the related Prospectus Supplement and
unless otherwise provided therein, any
Certificates that meet certain
Department of Labor requirements are
eligible for purchase by employee
benefit plans and plans subject to the
Employee Retirement Income Security Act
of 1974, as amended ("ERISA"). Unless
otherwise specified in the related
Prospectus Supplement, any class of
Certificates that is subordinated to any
other class of Certificates of the same
Series may not be acquired by any such
employee benefit plan, plan subject to
ERISA or an individual retirement
account. See "ERISA Considerations"
herein and in the related Prospectus
Supplement.
Ratings .............................It is a condition to the issuance of the
Certificates to be offered hereunder
that they be rated in one of the four
highest rating categories by at least
one nationally recognized statistical
rating organization (each, a "Rating
Agency"). A rating is not a
recommendation to purchase, hold or sell
Certificates inasmuch as a rating does
not comment as to market price or
suitability for a particular investor.
Ratings of Certificates will address the
likelihood of the payment of principal
of and interest on the Certificates
pursuant to their terms. There can be no
assurance that a rating will remain for
a given period of time or that a rating
will not be lowered or withdrawn
entirely by a Rating Agency if in its
judgment circumstances in the future so
warrant. See "Risk Factors-- Ratings of
the Certificates" herein. For more
detailed information regarding the
ratings assigned to any class of
Certificates of a particular Series, see
"Summary of Terms-- Rating of the
Certificates" and "Risk Factors--
Ratings of the Certificates" in the
related Prospectus Supplement.
9
<PAGE>
RISK FACTORS
In addition to the other information contained in this Prospectus and in
the related Prospectus Supplement to be prepared and delivered in connection
with the offering of any Series of Certificates, prospective investors should
carefully consider the following risk factors before investing in any class or
classes of Certificates of any such Series.
Pre-Funding Accounts. If so provided in the related Prospectus Supplement,
on the Closing Date the Depositor will deposit the Pre-Funded Amount specified
in such Prospectus Supplement into the Pre-Funding Account. In no event will the
Pre-Funded Amount exceed 25% of the initial Certificate Balance of the related
Series of Certificates. The Pre-Funded Amount will be used to purchase
Subsequent Receivables from the Depositor (which, in turn, will acquire such
Subsequent Receivables from UAFC) from time to time during the Funding Period.
During the Funding Period and until such amounts are applied by the Trustee to
purchase Subsequent Receivables, amounts on deposit in the Pre-Funding Account
will be invested by the Trustee (as instructed by the Servicer) in Eligible
Investments, and any investment income with respect thereto (net of any related
investment expenses) will be distributed on each Distribution Date during the
Funding Period as part of the Available Funds for the related Collection Period.
No Funding Period will end more than three calendar months after the related
Closing Date.
To the extent that the entire Pre-Funded Amount has not been applied to the
purchase of Subsequent Receivables by the end of the related Funding Period, any
amounts remaining in the Pre-Funded Account will be distributed as a prepayment
of principal to Certificateholders following the end of the Funding Period, in
the amounts and pursuant to the priorities set forth in the related Prospectus
Supplement. Such prepayment will reduce the Certificateholder's outstanding
principal balance and anticipated yield.
Sales of Subsequent Receivables. If so provided in the related Prospectus
Supplement, (i) UAFC will be obligated pursuant to the Purchase Agreement to
sell Subsequent Receivables (subject only to the availability thereof) to the
Depositor from time to time during the Funding Period in an aggregate principal
amount approximately equal to the Pre-Funded Amount, (ii) the Depositor, in
turn, will be obligated pursuant to the Pooling and Servicing Agreement to sell
such Subsequent Receivables to the Trust and (iii) the Trust will be obligated
to purchase such Subsequent Receivables, subject only to the satisfaction of
certain conditions set forth in the Pooling and Servicing Agreement and
described in the related Prospectus Supplement. If the principal amount of
eligible Subsequent Receivables originated or acquired by UAC during a Funding
Period is less than the Pre-Funded Amount, UAFC and the Depositor may have
insufficient Subsequent Receivables to transfer to a Trust, and holders of one
or more classes of the related Series of Certificates may receive a full or
partial prepayment of principal at the end of the Funding Period as described
above under "-- Pre-Funding Accounts".
Any conveyance of Subsequent Receivables to a Trust is subject to the
satisfaction, on or before the related transfer date (each, a "Subsequent
Transfer Date"), of the following conditions precedent, among others: (i) each
such Subsequent Receivable must satisfy the eligibility criteria specified in
the related Pooling and Servicing Agreement; (ii) the Subsequent Receivables
shall have been selected based on the criteria specified in the applicable
Prospective Supplement and neither UAFC nor the Depositor shall have selected
such Subsequent Receivables in a manner that it deems is adverse to the
interests of holders of the related Certificates; (iii) as of the respective
Cutoff Date for such Subsequent Receivables, all of the Receivables in the
Trust, including the Subsequent Receivables to be conveyed to the Trust as of
such date, must satisfy the parameters described under "The Receivables Pools"
herein and "The Receivables Pool" in the related Prospectus Supplement; (iv) any
required deposit to any Cash Collateral Account or other similar account shall
have been made; and (v) UAFC must execute and deliver to the Depositor, and the
Depositor must execute and deliver to such Trust, a written assignment conveying
such Subsequent Receivables to the Depositor or such Trust, as applicable. In
addition, the conveyance of Subsequent Receivables to a Trust is subject to the
satisfaction of the following conditions subsequent, among others, each of which
must be satisfied within the applicable time period specified in the related
Prospectus Supplement: (a) the Depositor must deliver certain opinions of
counsel to the related Trustee with respect to the validity of the conveyance of
the Subsequent Receivables to the Trust; (b) the Trustee must receive written
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confirmation from a firm of certified independent public accountants that, as of
the end of the period specified therein, the Receivables in the Trust, including
the Subsequent Receivables, satisfied the parameters described under "The
Receivables Pools" herein and "The Receivables Pool" in the related Prospectus
Supplement; and (c) each of the Rating Agencies must notify the Depositor in
writing that, following the conveyance of the Subsequent Receivables to the
Trust, each class of Certificates will have the same rating assigned to it by
such Rating Agency that it had on the Closing Date. Such confirmation of the
ratings of the Certificates may depend on factors other than the characteristics
of the Subsequent Receivables, including the delinquency, repossession and net
loss experience on the automobile, light truck and van receivables in the
portfolio serviced by UAC. UAC will be required pursuant to each Purchase
Agreement and Pooling and Servicing Agreement to repurchase immediately from a
Trust any Subsequent Receivable, at a price equal to the Purchase Amount
thereof, with respect to which any of the foregoing conditions is not satisfied.
Certain Legal Aspects -- Security Interests in Financed Vehicles.
Simultaneously with each sale of Receivables, UAFC will assign to the Depositor,
and the Depositor will assign to the related Trust, security interests in the
related Financed Vehicles; due to administrative burden and expense, however,
the certificates of title to such Financed Vehicles will not be amended to
reflect the assignment to either the Depositor or the Trust. In the absence of
such amendments, a Trust may not have a perfected security interest in such
Financed Vehicles in some states. Except as otherwise provided in the related
Prospectus Supplement, UAC will be obligated to repurchase from the related
Trust any Receivable sold to a Trust as to which all actions necessary to secure
a first perfected security interest in the name of UAFC (or, in certain cases,
UAC or the Predecessor) in the Financed Vehicle securing such Receivable shall
not have been taken as of the date such Receivable is transferred to such Trust,
if such breach materially and adversely affects the interest of the
Certificateholders in such Receivable and if such failure or breach is not
timely cured following discovery by or notice thereof to the Depositor or UAC.
If a Trust does not have a perfected security interest in a Financed
Vehicle, its ability to realize on such Financed Vehicle in the event of a
default may be adversely affected. To the extent the security interest is
perfected, the Trust will have a prior claim over subsequent purchasers of such
Financed Vehicle and holders of subsequently perfected security interests;
however, the Trust could lose its security interest or the priority of its
security interest in a Financed Vehicle as against liens for repairs of such
Financed Vehicle or for taxes unpaid by the related Obligor or through fraud or
negligence. None of the Depositor, UAFC or UAC will have any obligation to
repurchase a Receivable in respect of which a Trust loses its security interest
or the priority of its security interest in the related Financed Vehicle as the
result of any such mechanic's or tax lien or the fraud or negligence of a third
party occurring after the date such security interest was conveyed to the Trust.
See "Certain Legal Aspects of the Receivables -- Security Interests in
Vehicles".
Certain Legal Aspects -- Consumer Protection Laws. Federal and state
consumer protection laws impose requirements on creditors in connection with
extensions of credit and collections of retail installment loans, and certain of
these laws make an assignee of such a loan (such as a Trust) liable to the
obligor thereon for any violation by the lender. To the extent specified herein
and in the related Prospectus Supplement, UAC will be obligated to repurchase
from the related Trust any Receivable that fails to comply with such
requirements. See "Certain Legal Aspects of the Receivables -- Consumer
Protection Laws".
Certain Legal Aspects -- Insolvency Considerations. UAC and UAFC will
warrant to the Depositor in each Purchase Agreement (the benefit of which
warranty will be assigned by the Depositor to each Trust in the related Pooling
and Servicing Agreement) that the sale of the Receivables by UAFC to the
Depositor, and by the Depositor to such Trust, respectively, is a valid sale of
the Receivables to the Depositor and to such Trust. Notwithstanding the
foregoing, if UAC, UAFC or the Depositor were to become a debtor in a bankruptcy
case and a creditor or trustee-in-bankruptcy of such debtor or such debtor
itself were to take the position that the sale of Receivables to the Depositor
or such Trust, as applicable, should be treated as a pledge of such Receivables
to secure a borrowing of such debtor, then delays in payments of collections of
Receivables to Certificateholders could occur or (should the court rule in favor
of any such trustee, creditor or debtor) reductions in the amounts of such
payments could result. If the transfer of Receivables to the Depositor or any
Trust is treated as a pledge instead of a sale, a tax or government lien on the
property of UAFC or the Depositor, as applicable, arising before the transfer of
such Receivables to such Trust may have priority over such Trust's interest in
such Receivables. If the transactions contemplated herein are treated as a sale,
the Receivables would not be part of UAFC's or the Depositor's bankruptcy estate
and would not be available to creditors of UAFC or the Depositor. See "Certain
Legal Aspects of the Receivables -- Bankruptcy Matters".
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The decision of the U.S. Court of Appeals for the Tenth Circuit, Octagon
Gas Systems, Inc. v. Rimmer (In re Meridian Reserve, Inc.) (decided May 27,
1993), contains language to the effect that under the UCC accounts sold by a
debtor would remain property of the debtor's bankruptcy estate, whether or not
the sale of the accounts was perfected. Although the Receivables constitute
chattel paper under the UCC, rather than accounts, Article 9 of the UCC applies
to the sale of chattel paper as well as the sale of accounts, and perfection of
a security interest in both chattel paper and accounts may be accomplished by
the filing of a UCC-1 financing statement. If, following a bankruptcy of UAC,
UAFC or the Depositor, a court were to follow the reasoning of the Tenth Circuit
reflected in the above case, then the Receivables could be included in the
bankruptcy estate of UAC, UAFC or the Depositor, as applicable, and delays in
payments of collections on or in respect of the Receivables could occur. UAC and
UAFC will warrant to the Depositor in each Purchase Agreement, and the Depositor
will warrant to the Trust in each Pooling and Servicing Agreement, that the sale
of the related Receivables to the Depositor or the related Trust is a sale of
such Receivables to the Depositor and to the Trust, respectively.
Limited Obligations of UAC, UAFC and the Depositor. None of UAC, UAFC or
the Depositor will be generally obligated to make any payments to a Trust in
respect of the related Certificates or Receivables. However, in connection with
the sale of the Receivables, UAC and UAFC will make representations and
warranties regarding the characteristics of such Receivables and, in certain
circumstances, UAC will be required to repurchase from the Trust any Receivables
with respect to which such representations and warranties have been breached.
See "Description of the Transfer and Servicing Agreements -- Sale and Assignment
of Receivables". In addition, UAC, as Servicer, may be required to purchase
Receivables from a Trust under certain circumstances set forth in the Pooling
and Servicing Agreement. See "Description of the Transfer and Servicing
Agreements -- Servicing Procedures".
Subordination of Certain Classes of Certificates. To the extent specified
in the related Prospectus Supplement, distributions of interest and principal on
one or more classes of Certificates may be subordinated in priority of payment
to interest and principal due on one or more other classes of Certificates of
the same Series.
Limited Assets of each Trust. None of the Trusts will have, nor will any
such Trust be permitted or expected to have, any significant assets or sources
of funds other than the related Receivables and, to the extent provided in the
related Prospectus Supplement, a Pre-Funding Account or Cash Collateral Account,
yield supplement account or other form of credit enhancement. The Certificates
of each Series will represent interests solely in the related Trust and will not
represent obligations of or interests in, or be insured or guaranteed by, UAC,
UAFC, the Depositor, the Trustee or any other entity. Consequently, holders of
the Certificates of any Series must rely for repayment upon payments on the
related Receivables and, if and to the extent available, amounts available under
any available form of credit enhancement, all as specified in the related
Prospectus Supplement.
Maturity and Prepayment Considerations. All of the Receivables are
prepayable at any time by the related Obligor. As used herein with respect to
any Receivable, the term prepayment includes prepayments in full, partial
prepayments (including those related to rebates of extended warranty contract
costs and insurance premiums) and liquidations due to defaults, as well as
receipts of proceeds from physical damage, credit life and disability insurance
policies and any lender's single insurance policy, and Purchase Amounts with
respect to certain other Receivables repurchased by UAC as a result of a breach
of a representation or warranty or purchased by the Servicer for administrative
reasons. The rate of prepayments on the Receivables may be influenced by a
variety of economic, social and other factors, including the fact that an
Obligor generally may not sell or transfer the Financed Vehicle securing a
Receivable without the consent of UAFC. The rate of prepayment on the
Receivables may also be influenced by the structure of the underlying loans. To
the extent prepayments on the Receivables are more rapid than expected,
Certificateholders' anticipated yield will be reduced. See "Weighted Average
Life of the Certificates". In addition, if so provided in the related Prospectus
Supplement, the Servicer or one or more other entities may be entitled to
purchase, or to cause another person or entity to purchase, the Receivables of a
given Receivables Pool under the circumstances described in such Prospectus
Supplement. See "Description of the Transfer and Servicing Agreements
Termination".
In addition, a Series of Certificates may include one or more classes of
interest-only or other Strip Certificates that may be more sensitive than other
classes of Certificates of such Series to the rate of payment on the related
Receivables. Prospective investors in any such class of Certificates should
carefully consider the information provided with respect to such Certificates
under "Risk Factors" and elsewhere in the related Prospectus Supplement.
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Ratings of the Certificates. It is a condition of the issuance of the
Certificates to be offered hereunder that they be rated in one of the four
highest rating categories by at least one nationally recognized statistical
rating organization. A rating is not a recommendation to purchase, hold or sell
Certificates inasmuch as a rating does not comment as to market price or
suitability for a particular investor. The ratings of the Certificates will
address the likelihood of the payment of principal and interest thereon pursuant
to their terms. There can be no assurance that a rating will remain in effect
for any given period of time or that a rating will not be lowered or withdrawn
entirely by a Rating Agency if in its judgment circumstances in the future so
warrant. For more detailed information regarding the ratings assigned to any
class of a particular Series of Certificates, see "Summary of Terms -- Rating of
the Certificates" and "Risk Factors -- Ratings of the Certificates" in the
related Prospectus Supplement.
Book-Entry Registration. Unless otherwise specified in the related
Prospectus Supplement, each class of the Certificates of a given Series
initially will be represented by one or more certificates registered in the name
of Cede & Co. ("Cede"), or any other nominee of The Depository Trust Company
("DTC") set forth in the related Prospectus Supplement, and will not be
registered in the names of the holders of such Certificates or their nominees.
Because of this, unless and until Definitive Certificates for such Series are
issued, the beneficial owners of such Certificates will not be recognized by the
Trustee as "Certificateholders" (as such term is used herein or in the related
Pooling and Servicing Agreement). Hence, until Definitive Certificates are
issued, beneficial owners of the Certificates will be able to exercise the
rights of Certificateholders only indirectly through DTC and its participating
organizations. See "Description of the Certificates -- Book-Entry Registration"
and " -- Definitive Certificates".
THE TRUSTS
Each Series of Certificates will be issued by a separate Trust established
by the Depositor pursuant to a Pooling and Servicing Agreement for the
transactions described herein and in the related Prospectus Supplement. The
property of each Trust will include a pool (a "Receivables Pool") of simple
interest or precomputed interest retail installment sale or installment loan
contracts secured by new or used automobiles, light trucks or vans and certain
payments due or received thereunder after the applicable Cutoff Date. The
Receivables in each Receivables Pool were or will be either (a) originated by
Dealers for assignment to UAC (either directly or indirectly through the
Predecessor) or (b) solicited by Dealers for origination by UAC or the
Predecessor. Immediately after the origination or other acquisition of the
Contracts by UAC, UAC sells the Contracts to UAFC in the ordinary course of
business. UAFC, UAC or the Predecessor will be the registered lienholder listed
on the certificates of title of the Financed Vehicles. The Receivables will
continue to be serviced by UAC as the initial Servicer under each Pooling and
Servicing Agreement.
On or prior to the applicable Closing Date, UAFC will sell to the
Depositor, pursuant to the Purchase Agreement, Receivables in the aggregate
principal amount specified in the related Prospectus Supplement. Thereafter, on
such Closing Date, the Depositor will convey such Receivables and, if so
provided in the related Prospectus Supplement, the Pre-Funded Amount to the
related Trust in exchange for the delivery to the Depositor of the Series of
Certificates issued on such date by such Trust. If the Prospectus Supplement
provides for the conveyance of a Pre-Funded Amount to the related Trust, UAFC
will also be required under the Purchase Agreement, and the Depositor will be
required under the related Pooling and Servicing Agreement, to convey to the
Depositor and the Trust, respectively, Subsequent Receivables from time to time
during the Funding Period in an aggregate principal amount approximately equal
to such Pre-Funded Amount. Any Subsequent Receivables so conveyed to a Trust
will also be assets of such Trust. Except as otherwise provided in the related
Prospectus Supplement, the property of each Trust will also include (i)
interests in certain amounts that may from time to time be held in separate
trust accounts established and maintained pursuant to the related Pooling and
Servicing Agreement and, if so provided in the related Prospectus Supplement,
the proceeds of such accounts; (ii) security interests in the Financed Vehicles
and any other interest of UAC, the Predecessor, UAFC and the Depositor in such
Financed Vehicles; (iii) any recourse rights of UAC or the Predecessor against
Dealers; (iv) any rights of UAC or the Predecessor to proceeds from claims on or
refunds of premiums with respect to certain physical damage, credit life and
disability insurance policies covering the Financed Vehicles or the Obligors, as
the case may be, including any lender's single interest insurance policy; (v)
any property that secures a Receivable and that has been acquired by the Trust;
(vi) certain rights under the related Purchase Agreement; and (vii) any and all
proceeds of the foregoing. UAFC will not convey to the Depositor, and the
Depositor will not convey to a Trust, and the related Certificateholders will
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have no interest in, any contract with a Dealer establishing "dealer reserves"
or any rights to recapture dealer reserves pursuant to such a contract. To the
extent specified in the related Prospectus Supplement, a Pre-Funding Account or
a Cash Collateral Account, a yield supplement account, surety bond, swap or
other interest rate protection, or any other form of credit enhancement may be a
part of the property of a Trust or may be held by the Trustee for the benefit of
holders of the related Certificates.
UAC, as initial Servicer under each Pooling and Servicing Agreement, will
continue to service the Receivables held by each Trust and will receive fees for
such services. See "Description of the Transfer and Servicing Agreements --
Servicing Compensation and Payment of Expenses" herein. To facilitate the
servicing of the Receivables, the Depositor and each Trustee will designate the
Servicer as custodian of the Receivables and the related documents for the
related Trust; due to the administrative burden and expense, however, the
certificates of title to the Financed Vehicles will not be amended to reflect
the sale and assignment of the security interest in the Financed Vehicles to
either the Depositor or the Trust. In the absence of such an amendment, a Trust
may not have a perfected security interest in certain of the Financed Vehicles
in some states. See "Certain Legal Aspects of the Receivables" and "Description
of the Transfer and Servicing Agreements -- Sale and Assignment of Receivables".
If the protection provided to the holders of the Certificates of any Series
(the "Certificateholders") by the subordination, if any, of one or more classes
of Certificates of such Series and by any Cash Collateral Account, yield
supplement account or other available form of credit enhancement for such Series
is insufficient, such Certificateholders will have to look to payments by or on
behalf of Obligors on the related Receivables and the proceeds from the
repossession and sale of Financed Vehicles that secure defaulted Receivables for
distributions of principal of and interest on the related Certificates. In such
event, certain factors, such as the Trust's not having perfected security
interests in all of the Financed Vehicles, may limit the ability of a Trust to
realize on the collateral securing the related Receivables or may limit the
amount realized to less than the amount due thereunder. Certificateholders may
thus be subject to delays in payment on, or may incur losses on their investment
in, such Certificates as a result of defaults or delinquencies by Obligors and
depreciation in the value of the related Financed Vehicles. See "Description of
the Transfer and Servicing Agreements -- Credit and Cash Flow Enhancement" and
"Certain Legal Aspects of the Receivables".
The Trustee
The Trustee for each Trust will be specified in the related Prospectus
Supplement. The Trustee's liability in connection with the issuance and sale of
the related Certificates is limited solely to the express obligations of such
Trustee set forth in the related Pooling and Servicing Agreement. A Trustee may
resign at any time, in which event the Servicer will be obligated to appoint a
successor Trustee. The Servicer may also remove a Trustee if such Trustee ceases
to be eligible to continue as Trustee under the related Pooling and Servicing
Agreement or if such Trustee becomes insolvent. If the Servicer so removes a
Trustee, the Servicer will be obligated to appoint a successor to such Trustee.
Any resignation or removal of a Trustee and appointment of a successor Trustee
will not become effective until acceptance of the appointment by the successor
Trustee.
THE RECEIVABLES POOLS
General
The Receivables in each Receivables Pool were or will be acquired by UAC or
the Predecessor from Dealers or originated by UAC or the Predecessor through
Dealers in the ordinary course of business. Immediately after their origination
or acquisition by UAC, the Receivables were or will be conveyed to UAFC. UAFC,
UAC or the Predecessor will be the registered lienholder on the certificates of
title to each of the Financed Vehicles.
The Receivables to be sold to each Trust will be selected from UAFC's
portfolio for inclusion in a Receivables Pool based on several criteria,
including that, unless otherwise provided in the related Prospectus Supplement,
each Receivable (i) is secured by a new or used vehicle, (ii) provides for level
monthly payments (except for the last payment, which may be different from the
level payments) that fully amortize the amount financed over the original term
to maturity of the Receivable, (iii) is a Precomputed Receivable or a Simple
Interest Receivable and (iv) satisfies the other criteria, if any, set forth in
the related Prospectus Supplement. No selection procedures believed by UAFC or
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the Depositor to be adverse to Certificateholders were or will be used in
selecting the Receivables.
Underwriting Procedures
UAC uses the degree of the applicant's creditworthiness as the basic
criterion when originating an installment sale contract or purchasing such a
contract from a Dealer. Each credit application requires that the applicant
provide current information regarding the applicant's employment history, bank
accounts, debts, credit references, and other factors that bear on
creditworthiness. UAC applies uniform underwriting standards when originating
loans on new and used vehicles. UAC also typically obtains credit reports from
major credit reporting agencies summarizing the applicant's credit history and
paying habits, including such items as open accounts, delinquent payments,
bankruptcies, repossessions, lawsuits, and judgments. UAC's credit analysts may
verify an applicant's employment or, where appropriate, check directly with the
applicant's creditors. On the basis of such information, extensive historical
data and the experience of its senior management, UAC is in a position to assess
an applicant's ability to repay a loan. Since December 1988, the criteria
applied by UAC to evaluate applicants have included credit scoring using models
developed by independent firms experienced in developing credit scoring models.
Credit scoring evaluates an applicant's credit profile to arrive at an estimate
of the associated credit risk. Credit scoring models are developed by
statistically evaluating common characteristics of applicants and their
correlation with credit risk.
While UAC adheres to no specific loan-to-value ratios, the amount financed
by UAC under an installment contract generally will not exceed, in the case of
new vehicles, the manufacturer's suggested retail price of the financed vehicle,
including sales tax, license fees and title fees, plus the cost of service and
warranty contracts and premiums for physical damage, credit life and disability
insurance obtained in connection with the vehicle or the financing. In the case
of used vehicles, if the applicant meets UAC's creditworthiness criteria, the
amount financed may exceed the "average black book value" (as published by
National Auto Research, a standard reference source for dealers in used cars) of
the financed vehicle, including sales tax, license fees and title fees, plus the
cost of service and warranty contracts and premiums for physical damage, credit
life and disability insurance obtained in connection with the vehicle or
financing. UAC believes that the resale value of a new vehicle purchased by an
obligor will generally decline below the manufacturer's suggested retail price
and, in some cases, may decline for a period of time below the principal balance
outstanding on the related installment contract. UAC also believes that the
resale value of a used vehicle purchased by an obligor will generally decline,
but believes that the percentage of such decline generally will be less than the
percentage of decline in the resale value of a new vehicle. UAC regularly
reviews the quality of the Contracts purchased from Dealers and periodically
conducts quality audits to ensure compliance with its established policies and
procedures.
The underwriting procedures and standards employed by the Predecessor are
substantially similar to those used by UAC and, accordingly, references to UAC
in the foregoing discussion of UAC's underwriting procedures apply also to any
Receivables included in a Receivables Pool that was acquired by UAC from the
Predecessor or Receivables that are otherwise originated by the Predecessor. See
also "Union Acceptance Corporation and Affiliates" herein.
Allocation of Payments
The Receivables will be either Simple Interest Receivables or Precomputed
Receivables. "Simple Interest Receivables" provide for equal monthly payments
that are applied, first, to interest accrued to the date of such payment, then
to principal due on such date, then to pay any applicable late charges, and then
to further reduce the outstanding principal balance. Accordingly, if an Obligor
pays a fixed monthly installment before its due date under a Simple Interest
Receivable, the portion of the payment allocable to interest for the period
since the preceding payment will be less than it would have been had the payment
been made on the contractual due date, and the portion of the payment applied to
reduce the principal balance of the Receivable will be correspondingly greater.
Conversely, if an Obligor pays a fixed monthly installment under a Simple
Interest Receivable after its contractual due date, the portion of such payment
allocable to interest for the period since the preceding payment will be greater
than it would have been had the payment been made when due, and the portion of
such payment applied to reduce the principal balance of the Receivable will be
correspondingly less, in which case a larger portion of the principal balance
may be due on the final scheduled payment date.
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"Precomputed Receivables" consist of either (i) monthly actuarial
receivables ("Actuarial Receivables") or (ii) receivables that provide for
allocation of payments according to the "sum of periodic balances" method,
similar to the Rule of 78's ("Rule of 78's Receivables"). An Actuarial
Receivable provides for amortization of the loan over a series of fixed level
payment monthly installments. Each monthly installment, including the monthly
installment representing the final payment of the receivable, consists of an
amount of interest equal to 1/12 of the annual percentage rate of the loan
multiplied by the unpaid principal balance of the loan, and an amount of
principal equal to the remainder of the monthly payment. A Rule of 78's
Receivable provides for the payment by the Obligor of a specified total amount
of payments, payable in equal monthly installments on each due date, which total
represents the principal amount financed and add-on interest for the term of the
receivable. The rate at which the amount of add-on interest is earned and,
correspondingly, the amount of each fixed monthly payment allocated to reduction
of the outstanding principal amount of the Receivable are calculated in
accordance with the sum of the periodic time balances or the "Rule of 78's". If
a Precomputed Receivable is prepaid in full (voluntarily or by liquidation,
acceleration or otherwise), under the terms of the Contract a "refund" or
"rebate" will be made to the Obligor of the portion of the total amount of
payments then due and payable under the Contract allocable to "unearned"
interest. Unearned interest is calculated in accordance with the sum of the
periodic time balances method or a method equivalent to the "Rule of 78's". The
amount of any such rebate under a Precomputed Receivable generally will be less
than or equal to the remaining scheduled payments of interest that would have
been due under a Simple Interest Receivable for which all payments were made on
schedule and generally will be significantly less than such amount.
Unless otherwise stated in the related Prospectus Supplement, all of the
Receivables that are Precomputed Receivables will be Rule of 78's Receivables;
however, the Trust will account for all Rule of 78's Receivables as if such
Receivables were Actuarial Receivables. Except as otherwise indicated in the
related Prospectus Supplement, early payments on Precomputed Receivables
("Payaheads") will be deposited to the Payahead Account as described under
"Description of the Transfer and Servicing Agreements -- Accounts". Amounts
received upon prepayment in full of a Rule of 78's Receivable in excess of the
then outstanding principal balance of such Receivable (computed on an actuarial
basis) will not be passed through to Certificateholders, except to the extent
necessary to pay interest and principal on the Certificates.
In the event of the liquidation of a Receivable or the repossession of a
Financed Vehicle, amounts recovered are applied first to the expenses of
repossession, and then to unpaid interest and principal and any related payment
or other fee.
Delinquencies, Repossessions and Net Losses
Certain information concerning the experience of UAC pertaining to
delinquencies, repossessions and net losses with respect to new and used retail
automobile, light truck and van receivables (including receivables previously
sold by UAC or the Predecessor but which UAC continues to service) will be set
forth in each Prospectus Supplement. There can be no assurance that the
delinquency, repossession and net loss experience with respect to any
Receivables Pool will be comparable to prior experience or to such information.
WEIGHTED AVERAGE LIFE OF THE CERTIFICATES
The weighted average life of the Certificates of any Series generally will
be influenced by the rate at which the principal balances of the related
Receivables are paid, which payment may be in the form of scheduled amortization
or prepayments. For this purpose, the term prepayments includes prepayments in
full, partial prepayments (including those related to rebates of extended
warranty contract costs and insurance premiums), liquidations due to defaults,
as well as receipts of proceeds, if any, from physical damage, credit life and
disability and/or any lender's single interest insurance policies, and the
Purchase Amount of Receivables repurchased by UAC due to a breach of a
representation or warranty or purchased by the Servicer for administrative
purposes. All of the Receivables are prepayable at any time without penalty to
the Obligor. The rate of prepayment of automotive receivables is influenced by a
variety of economic, social and other factors, including the fact that an
Obligor generally may not sell or transfer the Financed Vehicle securing a
Receivable without the consent of UAFC, UAC or the Predecessor, as the
registered lienholder (or the Servicer on behalf of such lienholder). The rate
of prepayment on the Receivables may also be influenced by the structure of the
loan. In addition, under certain circumstances, UAC will be obligated to
repurchase Receivables from a Trust pursuant to the related Purchase Agreement
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and Pooling and Servicing Agreement as a result of breaches of representations
and warranties, and the Servicer will be obligated to purchase Receivables from
a Trust pursuant to the related Pooling and Servicing Agreement as a result of
breaches of certain covenants. See "Description of the Transfer and Servicing
Agreements -- Sale and Assignment of Receivables" and " -- Servicing
Procedures". See also "Description of the Transfer and Servicing Agreements --
Termination" regarding the option of the Servicer or any other entity to
purchase or cause the Receivables to be purchased from a Trust.
A Series of Certificates may include one or more classes of Strip
Certificates that are more sensitive than certain other classes of Certificates
of the same Series to the rate of payment of the related Receivables.
Prospective investors in any such Strip Certificates should consider carefully
the information regarding such Certificates in the related Prospectus
Supplement.
In light of the above considerations, there can be no assurance as to the
amount of principal payments to be made on the Certificates of a Series on any
Distribution Date since such amount will depend, in part, on the amount of
principal collected on the related Receivables Pool during the applicable
Collection Period. Any reinvestment risks resulting from a faster or slower
incidence of prepayment of Receivables will be borne entirely by the
Certificateholders. The related Prospectus Supplement may set forth certain
additional information with respect to the maturity and prepayment
considerations applicable to the particular Receivables Pool and the related
Series of Certificates or particular classes of Certificates.
POOL FACTORS AND OTHER CERTIFICATE INFORMATION
The "Certificate Pool Factor" for each class of Certificates will be a
seven-digit decimal which the Servicer will compute prior to each distribution
with respect to such class of Certificates and which will indicate the remaining
Certificate Balance of such class of Certificates, as of the applicable
Distribution Date (after giving effect to distributions to be made on such
Distribution Date), as a fraction of the initial Certificate Balance of such
class of Certificates. Each Certificate Pool Factor will be 1.0000000 as of the
related Closing Date and thereafter will decline to reflect reductions in the
applicable Class Certificate Balance. A Certificateholder's portion of the
aggregate outstanding Class Certificate Balance will equal the product of (a)
the original denomination of such Certificateholder's Certificate and (b) the
applicable Certificate Pool Factor at the time of determination.
Unless otherwise provided in the related Prospectus Supplement, the
Certificateholders will receive reports on or about each Distribution Date
concerning payments received on the Receivables, the Pool Balance and each
Certificate Pool Factor. In addition, Certificateholders of record during any
calendar year will be furnished information for tax reporting purposes not later
than the latest date permitted by law. See "Description of the Certificates --
Statements to Certificateholders".
USE OF PROCEEDS
On each Closing Date, the Depositor will convey the Receivables and, if so
provided in the related Prospectus Supplement, the applicable Pre-Funded Amount
to the related Trust in exchange for the related Series of Certificates. Unless
otherwise provided in the related Prospectus Supplement, the Depositor will
apply the net proceeds from the sale of the Certificates to the purchase of the
Receivables from UAFC and, if so provided in the related Prospectus Supplement,
to fund the Pre-Funding Account. UAFC will use the portion of such proceeds paid
to it to repay short-term borrowings and/or to purchase Contracts from UAC and
for general corporate purposes, and UAC will use such proceeds for general
corporate purposes.
UNION ACCEPTANCE CORPORATION AND AFFILIATES
UAC is an automotive finance company engaged primarily in the indirect
financing (the purchase of loan contracts from Dealers) of automobile purchases
by individuals.
UAC consummated its initial public offering of its Class A Common Stock
on August 7, 1995. In conjunction with such offering, the Predecessor effected a
spin-off of UAC. UAC is no longer a subsidiary of the Predecessor.
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UAFC is a wholly-owned subsidiary of UAC, formed in April 1994 as a
Delaware corporation, and is organized for the limited purpose of acquiring from
UAC and holding automobile installment sale and installment loan contracts,
reselling such receivables and conducting activities incidental thereto.
Immediately upon its acquisition of receivables, UAC sells such receivables to
UAFC, together with its security interest in the related Financed Vehicle and
other collateral. UAFC (or, with respect to certain Receivables, UAC or the
Predecessor) is registered as lienholder on the certificates of title for the
Financed Vehicles.
The Depositor is a wholly-owned subsidiary of UAC, formed in October 1994
as a Delaware corporation and is organized for the limited purpose of acquiring
automobile installment sale and installment loan contracts from UAC or UAFC,
reselling such receivables and conducting activities incidental thereto.
The Depositor has taken steps in structuring the transactions contemplated
hereby that are intended to ensure that the voluntary or involuntary application
for relief by UAC or UAFC under the United States Bankruptcy Code or similar
applicable state laws ("Insolvency Laws") will not result in the consolidation
of the assets and liabilities of the Depositor with those of UAC or UAFC. These
steps include the creation of the Depositor as a separate, limited-purpose
subsidiary pursuant to a certificate of incorporation containing certain
limitations (including restrictions on the nature of the Depositor's business,
as described above, and restrictions on the Depositor's ability to commence a
voluntary case or proceeding under any Insolvency Law without the unanimous
affirmative vote of all its directors). However, there can be no assurance that
the activities of the Depositor would not result in a court concluding that the
assets and liabilities of the Depositor should be consolidated with those of UAC
or UAFC in a proceeding under an Insolvency Law. See "Certain Legal Aspects of
the Receivables -- Bankruptcy Matters".
In addition, tax and certain other statutory liabilities, such as
liabilities to the Pension Benefit Guaranty Corporation, if any, relating to the
underfunding of pension plans of UAC or its affiliates can by asserted against
the Depositor. To the extent that any such liabilities arise after the transfer
of Receivables to a Trust, the Trust's interest in the Receivables would be
prior to the interest of the claimant with respect to any such liabilities.
However, the existence of a claim against the Depositor could permit the
claimant to subject the Depositor to an involuntary proceeding under the
Bankruptcy Code or other Insolvency Laws. See "Certain Legal Aspects of the
Receivables -- Bankruptcy Matters".
DESCRIPTION OF THE CERTIFICATES
General
Each Trust will issue a Series of Certificates pursuant to a Pooling and
Servicing Agreement. A form of the Pooling and Servicing Agreement has been
filed as an exhibit to the Registration Statement of which this Prospectus forms
a part. The following summary does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, the provisions of the related
Certificates and Pooling and Servicing Agreement.
Unless otherwise specified in the related Prospectus Supplement, the
Certificates will be available for purchase in minimum denominations of $1,000
and integral multiples in excess thereof in book-entry form only.
Distributions of Principal and Interest
The timing and priority of distributions, seniority, allocations of losses,
Pass-Through Rate and amount of or method of determining distributions with
respect to principal and interest on each class of Certificates of a Series will
be described in the related Prospectus Supplement. Distributions on such
Certificates will be made on the dates specified in the related Prospectus
Supplement (the "Distribution Date") and may be made prior to distributions with
respect to principal of such Certificates. To the extent provided in the related
Prospectus Supplement, a Series of Certificates may include one or more classes
of Strip Certificates entitled to (i) interest distributions with
disproportionate, nominal or no principal distributions or (ii) principal
distributions with disproportionate, nominal or no interest distributions. Each
class of Certificates may have a different Pass-Through Rate, which may be a
fixed, variable or adjustable Pass-Through Rate (and which may be zero for
certain classes of Strip Certificates) or any combination of the foregoing. The
related Prospectus Supplement will specify the Pass-Through Rate for each class
of Certificates of a Series or the method for determining such Pass-Through
Rate.
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To the extent specified in any Prospectus Supplement, one or more classes
of Certificates of a given Series may have fixed principal and/or interest
distribution schedules, as set forth in such Prospectus Supplement.
In the case of a Series of Certificates that includes two or more classes
of Certificates, the timing, sequential order, priority of payment or amount of
distributions in respect of interest and principal, and any schedule or formula
or other provisions applicable to the determination thereof, of each such class
shall be as set forth in the related Prospectus Supplement. Unless otherwise
specified in the related Prospectus Supplement, distributions in respect of
interest on and principal of any class of Certificates will be made on a pro
rata basis among all holders of Certificates of such class.
Book-Entry Registration
Unless otherwise specified in the related Prospectus Supplement, each class
of Certificates initially will be represented by one or more certificates, in
each case registered in the name of the nominee of DTC. Unless another nominee
is specified in the related Prospectus Supplement, the nominee of DTC will be
Cede. Accordingly, such nominee is expected to be the holder of record of the
Certificates of each Series, except for Certificates, if any, retained by the
Depositor or UAC. Unless and until Definitive Certificates are issued under the
limited circumstances described herein or in the related Prospectus Supplement,
no Certificateholder will be entitled to receive a physical certificate
representing a Certificate, all references herein and in the related Prospectus
Supplement to actions by Certificateholders will refer to actions taken by DTC
upon instructions from the Participants, and all references herein and in the
related Prospectus Supplement to distributions, notices, reports and statements
to Certificateholders will refer to distributions, notices, reports and
statements to DTC or its nominee, as the case may be, as the registered holder
of the Certificates, for distribution to Certificateholders in accordance with
DTC's procedures with respect thereto. Beneficial owners of the Certificates
("Certificate Owners") will not be recognized as "Certificateholders" by the
related Trustee, as such term is used in each Pooling and Servicing Agreement,
and Security Owners will be permitted to exercise the rights of
Certificateholders only indirectly through DTC and its participating members
("Participants").
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the Uniform Commercial Code (the "UCC") in effect in the
State of New York, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC was created to hold securities for the
Participants and to facilitate the clearance and settlement of securities
transactions between Participants through electronic book-entries, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing
corporations. Indirect access to the DTC system also is available to banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (the "Indirect
Participants").
Unless otherwise specified in the related Prospectus Supplement,
Certificate Owners that are not Participants or Indirect Participants but desire
to purchase, sell or otherwise transfer ownership of, or an interest in, the
Certificates may do so only through Participants and Indirect Participants. In
addition, all Certificate Owners will receive all distributions of principal and
interest from the related Trustee through Participants. Under a book-entry
format, Certificate Owners may experience some delay in their receipt of
payments, since such payments will be forwarded by the Trustee to DTC's nominee.
DTC will then forward such payments to the Participants, which thereafter will
forward them to Indirect Participants or Certificate Owners.
Under the rules, regulations and procedures creating and affecting DTC and
its operations (the "Rules"), DTC is required to make book-entry transfers among
Participants on whose behalf it acts with respect to the Certificates and to
receive and transmit distributions of principal of and interest on the
Certificates. Participants and Indirect Participants with which Certificate
Owners have accounts with respect to the Certificates similarly are required to
make book-entry transfers and to receive and transmit such payments on behalf of
their respective Certificate Owners. Accordingly, although Certificate Owners
will not possess physical certificates representing the Certificates, the Rules
provide a mechanism by which Participants and Indirect Participants will receive
payments and transfer interests, directly or indirectly, on behalf of
Certificate Owners.
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Because DTC can act only on behalf of Participants, who in turn act on
behalf of Indirect Participants and certain banks, the ability of a Certificate
Owner to pledge Certificates to persons or entities that do not participate in
the DTC system, or otherwise take actions with respect to such Certificates, may
be limited due to the lack of a physical certificate representing such
Certificates.
DTC has advised the Depositor that it will take any action permitted to be
taken by a Certificate Owner under the Pooling and Servicing Agreement only at
the direction of one or more Participants to whose account with DTC the
Certificates are credited. DTC may take conflicting actions with respect to
other undivided interests to the extent that such actions are taken on behalf of
Participants whose holdings include such undivided interests.
Except as required by law, the related Trustee will not have any liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of Certificates of any Series held by DTC's
nominee, or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Definitive Certificates
Unless otherwise stated in the related Prospectus Supplement, the
Certificates of a given Series will be issued in fully registered, certificated
form ("Definitive Certificates") to Certificateholders or their respective
nominees, rather than to DTC or its nominee, only if (i) the related Trustee
determines that DTC is no longer willing or able to discharge properly its
responsibilities as depository with respect to the related Certificates and such
Trustee is unable to locate a qualified successor, (ii) the Trustee elects, at
its option, to terminate the book-entry system through DTC or (iii) after the
occurrence of an Event of Default or Servicer Default, Certificate Owners
representing at least a majority of the outstanding principal amount of the
Certificates of such Series, advise the related Trustee through DTC that the
continuation of a book-entry system through DTC (or a successor thereto) is no
longer in the best interests of the related Certificate Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the related Trustee will be required to notify the related
Certificate Owners, through Participants, of the availability of Definitive
Certificates. Upon surrender by DTC of the certificates representing all
Certificates of any affected class and the receipt of instructions for
re-registration, the Trustee will issue Definitive Certificates to the related
Certificate Owners. Distributions on the related Definitive Certificates will be
made thereafter by the related Trustee directly to the holders in whose name the
related Definitive Certificates are registered at the close of business on the
applicable record date, in accordance with the procedures set forth herein and
in the related Pooling and Servicing Agreement. Distributions will be made by
check mailed to the address of such holders as they appear on the register
specified in the related Pooling and Servicing Agreement; however, the final
payment on any Certificates (whether Definitive Certificates or Certificates
registered in the name of a depository or its nominee) will be made only upon
presentation and surrender of such Certificates at the office or agency
specified in the notice of final distribution to Certificateholders.
Definitive Certificates will be transferable and exchangeable at the
offices of the related Trustee (or any security registrar appointed thereby). No
service charge will be imposed for any registration of transfer or exchange, but
such Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
Statements to Certificateholders
With respect to each Series of Certificates, on or prior to each
Distribution Date, the Servicer (to the extent applicable to such
Certificateholder) will prepare and forward to the related Trustee to be
included with the distribution to each Certificateholder of record a statement
setting forth for the related Collection Period the following information (and
any other information specified in the related Prospectus Supplement):
(i) the amount of the distribution allocable to principal of each class of
Certificates of such Series;
(ii) the amount of the distribution allocable to interest on each class of
Certificates of such Series;
(iii)the amount of the Servicing Fee paid to the Servicer with respect to
the related Collection Period;
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(iv) the Class Certificate Balance and Certificate Pool Factor for each
class of Certificates of such Series as of the related record date;
(v) the balance of any Cash Collateral Account or other form of credit
enhancement, after giving effect to any additions thereto or
withdrawals therefrom or reductions thereto to be made on the
following Distribution Date;
(vi) with respect to any Series of Certificates as to which a Pre-Funding
Account has been established, for Distribution Dates during the
Funding Period, the remaining Pre-Funded Amount; and
(vii)for the Distribution Date that falls on or immediately after the end
of the Funding Period, if any, the amount of the Pre-Funded Amount
that has not been used to purchase Subsequent Receivables.
Dollar amounts described in items (i), (ii) and (iv) above will be
expressed as a dollar amount per $1,000 of initial Class Certificate Balance of
such Certificates.
In addition, within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of each Trust, the
related Trustee or Indenture Trustee, as applicable, will mail to each person
who at any time during such calendar year shall have been a registered
Certificateholder a statement containing certain information for the purposes of
such Certificateholder's preparation of federal income tax returns. See "Certain
Federal Income Tax Consequences".
List of Certificateholders
Unless otherwise specified in the related Prospectus Supplement, each
Trustee, within 15 days after receipt of written request of the Servicer, will
provide the Servicer with a list of the names and addresses of all holders of
record as of the most recent record date of the related Series of Certificates.
In addition, three or more holders of the Certificates of any Series or one or
more holders of such Certificates evidencing not less than 25% of the applicable
Certificate Balance may, by written request to the related Trustee, obtain
access to the list of all Certificateholders maintained by such Trustee for the
purpose of communicating with other Certificateholders with respect to their
rights under the related Pooling and Servicing Agreement or under such
Certificates.
DESCRIPTION OF THE TRANSFER AND SERVICING AGREEMENTS
The following summary describes certain terms of each Purchase
Agreement and Pooling and Servicing Agreement (collectively, the "Transfer and
Servicing Agreements") pursuant to which the Depositor will purchase Receivables
from UAFC, a Trust will purchase Receivables from the Depositor, and the
Servicer will agree to service such Receivables. Forms of the Purchase Agreement
and Pooling and Servicing Agreement have been filed as exhibits to the
Registration Statement of which this Prospectus forms a part. The following
summary does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the provisions of the related Transfer and
Servicing Agreements.
Sale and Assignment of Receivables
On the related Closing Date, (i) UAFC will sell and assign to the
Depositor pursuant to the related Purchase Agreement, without recourse, its
entire right in the related Receivables, including its security interests in the
related Financed Vehicles and (ii) the Depositor will sell and assign to the
related Trust pursuant to the related Pooling and Servicing Agreement, without
recourse, (a) its entire right in such Receivables, including the security
interests in the Financed Vehicles, and (b) if so provided in the related
Prospectus Supplement, the applicable Pre-Funded Amount. Each Receivable will be
identified in a schedule appearing as an exhibit to the related Purchase
Agreement and Pooling and Servicing Agreement. The Trustee will, concurrently
with such sale and assignment of the Receivables and, if applicable, the
Pre-Funded Amount, to the related Trust, execute, authenticate and deliver the
related Series of Certificates to the Depositor in exchange for such Receivables
and such Pre-Funded Amount, if any. The related Prospectus Supplement will
specify whether the property of a Trust will include the Pre-Funded Amount and,
if so, the terms, conditions and manner under which Subsequent Receivables will
be sold and assigned by the Depositor to the related Trust.
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In each Purchase Agreement, UAFC and UAC will represent and warrant to the
Depositor, among other things, that (i) the information provided with respect to
the related Receivables is correct in all material respects; (ii) the Obligor on
each such Receivable has obtained or agreed to obtain and maintain physical
damage insurance covering the Financed Vehicle in accordance with UAC's normal
requirements; (iii) at the Closing Date, with respect to Receivables conveyed to
a Trust on the Closing Date, and on the applicable Subsequent Transfer Date with
respect to any Subsequent Receivables, the Receivables are free and clear of all
security interests, liens, charges and encumbrances, other than the lien of the
Depositor, and no offsets, defenses or counterclaims against the Depositor, UAFC
or UAC have been asserted or threatened with respect to the related Receivables;
(iv) at the Closing Date or Subsequent Transfer Date, as applicable, each of the
related Receivables is secured by a first perfected security interest in the
related Financed Vehicle in favor of UAFC (or UAC or the Predecessor) or all
necessary action has been taken by UAC or the Predecessor to secure such a first
perfected security interest; and (v) each of the related Receivables, at the
time it was originated, complied and, at the Closing Date or Subsequent Transfer
Date, as applicable, complies, in all material respects with applicable federal
and state laws, including, without limitation, consumer credit, truth in
lending, equal credit opportunity and disclosure laws. As of the last day of any
Collection Period following the discovery by or notice to UAC of a breach of any
such representation or warranty that materially and adversely affects the
interests of the Depositor or its assignee in a Receivable (or as of the last
day of the preceding Collection Period, if UAC so elects), UAC, unless it has
cured such breach, will repurchase the Receivable at a price equal to the unpaid
principal balance owed by the Obligor thereon plus, if the nonpayment of
interest on such Receivable would require a withdrawal from or on any Cash
Collateral Account or other form of credit enhancement in connection with the
purchase of such Receivable on such date, accrued interest thereon at the
applicable Contract Rate to the date of purchase (the "Purchase Amount"), and
such Receivable will be considered a "Purchased Receivable" as of such date. In
each Pooling and Servicing Agreement, the Depositor will assign certain rights
under the related Purchase Agreement to the related Trust, including the right
to cause UAC to repurchase Receivables with respect to which it is in breach of
any such representation and warranty. The repurchase obligation of UAC pursuant
to each Purchase Agreement and Pooling and Servicing Agreement will constitute
the sole remedy available to the related Certificateholders or Trustee for any
uncured breach of a representation or warranty.
If the related Prospectus Supplement provides that the property of a Trust
will include a Pre-Funding Account, UAFC will be obligated to sell and assign to
the Depositor pursuant to the related Purchase Agreement, and the Depositor will
be obligated to sell and assign to the related Trust pursuant to the related
Pooling and Servicing Agreement, Subsequent Receivables from time to time during
the Funding Period in an aggregate outstanding principal amount approximately
equal to the Pre-Funded Amount. The related Trust will be obligated pursuant to
the related Pooling and Servicing Agreement to purchase all such Subsequent
Receivables from the Depositor subject to the satisfaction, on or before the
related Subsequent Transfer Date, of the following conditions precedent, among
others: (i) each such Subsequent Receivable shall satisfy the eligibility
criteria specified in the related Pooling and Servicing Agreement and shall not
have been selected from among the eligible Receivables in a manner that UAFC or
the Depositor deems adverse to the interests the related Certificateholders;
(ii) as of the applicable Cutoff Date for such Subsequent Receivables, all of
the Receivables in the related Trust, including the Subsequent Receivables to be
conveyed to the Trust as of such date, must satisfy the parameters described
under "The Receivables Pools" herein and "The Receivables Pool" in the related
Prospectus Supplement; (iii) any required deposit to any Cash Collateral Account
or other similar account must have been made; and (iv) UAFC must execute and
deliver to the Depositor, and the Depositor must execute and deliver to such
Trust, a written assignment conveying such Subsequent Receivables to the
Depositor and the related Trust, respectively. In addition, the conveyance of
Subsequent Receivables to a Trust is subject to the satisfaction of the
following conditions subsequent, among others, each of which must be satisfied
within the applicable within the time period specified in the related Prospectus
Supplement: (a) the Depositor must deliver certain opinions of counsel to the
related Trustee with respect to the validity of the conveyance of such
Subsequent Receivables to the Trust; (b) the Trustee must receive written
confirmation from a firm of certified independent public accountants that, as of
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the end of the period specified therein, the Receivables in the related
Receivables Pool, including all such Subsequent Receivables, satisfied the
parameters described under "The Receivables Pools" herein and "The Receivables
Pool" in the related Prospectus Supplement; and (c) each of the Rating Agencies
must have notified the Depositor in writing that, following the conveyance of
the Subsequent Receivables to the Trust, each class of Certificates of the
related Series will have the same rating assigned to it by such Rating Agency
that it had on the related Closing Date. If any such conditions precedent or
conditions subsequent are not met with respect to any Subsequent Receivables
within the time period specified in the related Prospectus Supplement, UAC will
be required under the related Purchase Agreement and Pooling and Servicing
Agreement to repurchase such Subsequent Receivables from the related Trust, at a
purchase price equal to the related Purchase Amounts therefor.
Accounts
Certificate Account. With respect to each Trust, the Servicer will
establish and maintain with the related Trustee one or more accounts, in the
name of the Trustee on behalf of the related Certificateholders, into which all
payments made on or in respect of the related Receivables will be deposited and
from which all distributions with respect to the related Certificates will be
made (the "Certificate Account"). The amounts on deposit in the Certificate
Account will be invested by the Trustee in Eligible Investments.
Payahead Account. If so provided in the related Prospectus Supplement,
the Servicer will establish an additional account (the "Payahead Account"), in
the name of the Trustee and for the benefit of Obligors on the Receivables, into
which, to the extent required by the Agreement, Payaheads on Precomputed
Receivables will be deposited until such time as the payment becomes due. Until
such time as payments are transferred from the Payahead Account to the
Certificate Account, they will not constitute collected interest or collected
principal and will not be available for distribution to Certificateholders. The
Payahead Account will initially be maintained with the Trustee. Interest earned
on the balance in the Payahead Account will be remitted to the Servicer monthly.
Collections on a Precomputed Receivable made during a Collection Period shall be
applied first to any overdue scheduled payment on such Receivable, then to the
scheduled payment on such Receivable due in such Collection Period. If any
collections remaining after the scheduled payment is made are insufficient to
prepay the Precomputed Receivable in full, then generally such remaining
collections shall be transferred to and kept in the Payahead Account until such
later Collection Period as the collections may be retransferred to the
Certificate Account and applied either to a later scheduled payment or to prepay
such Receivable in full.
Pre-Funding Account. If so provided in the related Prospectus
Supplement, the Servicer will establish and maintain an account, in the name of
the related Trustee on behalf of the related Certificateholders, into which the
Depositor will deposit the Pre-Funded Amount on the related Closing Date (the
"Pre-Funding Account"). In no event will the Pre-Funded Amount exceed 25% of the
aggregate Certificate Balance of the related Series of Certificates. The
Pre-Funded Amount will be used by the related Trustee to purchase Subsequent
Receivables from the Depositor from time to time during the Funding Period. The
amounts on deposit in the Pre-Funding Account during the Funding Period will be
invested by the Trustee in Eligible Investments. Any investment income received
on the Eligible Investments during a Collection Period (such amounts, net of any
related investment expenses, "Investment Income") will be included in the
interest distribution amount on the following Distribution Date. The Funding
Period, if any, for a Trust will begin on the related Closing Date and will end
on the date specified in the related Prospectus Supplement, which in no event
will be later than the date that is three calendar months after the related
Closing Date. Any amounts remaining in the Pre-Funding Account at the end of the
Funding Period will be distributed to the related Certificateholders, in the
manner and priority specified in the related Prospectus Supplement, as a
prepayment of principal of the related Certificates.
Any other accounts to be established with respect to a Trust, including
any Cash Collateral Account or yield supplement account, will be described in
the related Prospectus Supplement.
For each Series of Certificates, funds in the Certificate Account,
Pre-Funding Account and any other account identified as such in the related
Prospectus Supplement (collectively, the "Trust Accounts") will be invested as
provided in the related Pooling and Servicing Agreement in Eligible Investments
and any related Investment Income will be distributed as described herein and in
the related Prospectus Supplement. "Eligible Investments" generally will be
limited to investments acceptable to the Rating Agencies as being consistent
with the rating of the related Certificates. Except as may be otherwise
indicated in the applicable Prospectus Supplement, Eligible Investments will
include (i) direct obligations of, and obligations guaranteed by, the United
States of America, the Federal National Mortgage Association, or any
instrumentality of the United States of America; (ii) demand and time deposits
in or similar obligations of any depository institution or trust company
(including the Trustee or any agent of the Trustee, acting in their respective
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commercial capacities) rated P-1 by Moody's or A-1+ by Standard & Poor's (an
"Approved Rating") or any other deposit which is fully insured by the Federal
Deposit Insurance Corporation; (iii) repurchase obligations with respect to any
security issued or guaranteed by an instrumentality of the United States of
America entered into with a depository institution or trust company having an
Approved Rating (acting as principal); (iv) short-term corporate 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, or higher, at the time
of such investment; (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; (vii)
interests in any money market fund having a rating of Aaa by Moody's or AAAm by
Standard & Poor's; and (viii) any other investment approved in advance in
writing by the Rating Agencies.
Except as described herein or in the related Prospectus Supplement,
Eligible Investments will be limited to obligations or securities that mature on
or before the date of the next scheduled distribution to Certificateholders of
such Series; provided, however, that, unless the related Prospectus Supplement
requires otherwise, each Pooling and Servicing Agreement will generally permit
the investment of funds in any Cash Collateral Account or similar type of credit
enhancement account to be invested in Eligible Investments without the
limitation that such Eligible Investments mature not later than the business day
prior to the next succeeding Distribution Date if (i) the Servicer obtains a
liquidity facility or similar arrangement with respect to such Cash Collateral
Account or other account and (ii) each rating agency that initially rated the
related Certificates confirms in writing that the ratings of such Certificates
will not be lowered or withdrawn as a result of eliminating or modifying such
limitation.
The Accounts will be maintained as Eligible Deposit Accounts. "Eligible
Deposit Account" means either (a) a segregated account with an Eligible
Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories that signifies investment grade.
"Eligible Institution" means, with respect to a Trust, (a) the corporate trust
department of the related Trustee or (b) a depository institution organized
under the laws of the United States of America or any one of the states thereof
or the District of Columbia (or any domestic branch of a foreign bank) (i) that
has either (A) a long-term unsecured debt rating of at least Baa3 from Moody's
Investor's Service, Inc. or (B) a long-term unsecured debt rating, a short-term
unsecured debt rating or a certificate of deposit rating acceptable to the
Rating Agencies and (ii) whose deposits are insured by the FDIC.
Servicing Procedures
The Servicer will make reasonable efforts to collect all payments due with
respect to the Receivables and will, consistent with the related Pooling and
Servicing Agreement, follow such collection procedures as it follows with
respect to comparable automotive installment contracts that it owns or services
for others. The Servicer will continue to follow such normal collection
practices and procedures as it deems necessary or advisable to realize upon any
Receivables with respect to which the Servicer determines that eventual payment
in full is unlikely. The Servicer may sell the Financed Vehicle securing such
Receivables at a public or private sale, or take any other action permitted by
applicable law.
Consistent with its normal procedures, the Servicer may, in its discretion,
arrange with the Obligor on a Receivable to extend or modify the payment
schedule; if, however, the extension of a payment schedule causes a Receivable
to remain outstanding on the final scheduled Distribution Date with respect to a
Series of Certificates specified in the related Prospectus Supplement (the
"Final Scheduled Distribution Date"), the Servicer will purchase such Receivable
as of the last day of the Collection Period preceding such Final Scheduled
Distribution Date. The Servicer's purchase obligation will constitute the sole
remedy available to the related Certificateholders or Trustee for any such
modification of a Contract.
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Collections
With respect to each Trust, the Servicer will deposit all payments (from
whatever source) on and all proceeds of the related Receivables collected during
a Collection Period into the related Certificate Account not later than two
business days after receipt thereof. However, at any time that and for so long
as (i) UAC is the Servicer, (ii) no Event of Default shall have occurred and be
continuing with respect to the Servicer and (iii) each other condition to making
deposits less frequently than daily as may be specified by the Rating Agencies
or set forth in the related Prospectus Supplement is satisfied, the Servicer
will not be required to deposit such amounts into the Certificate Account until
on or before the applicable Distribution Date. Pending deposit into the
Certificate Account, collections may be invested by the Servicer at its own risk
and for its own benefit and will not be segregated from its own funds. If the
Servicer were unable to remit such funds, Certificateholders might incur a loss.
To the extent set forth in the related Prospectus Supplement, the Servicer may,
in order to satisfy the requirements described above, obtain a letter of credit
or other security for the benefit of the related Trust to secure timely
remittances of collections on the related Receivables and payment of the
aggregate Purchase Amounts with respect to Receivables purchased by the
Servicer.
Unless otherwise provided in the applicable Prospectus Supplement,
Payaheads on Precomputed Receivables will be transferred from the Certificate
Acount and deposited into the Payahead Account for subsequent transfer to the
Certificate Account, as described above under "-- Accounts"
Advances
Unless otherwise provided in the related Prospectus Supplement, if a
Receivable is delinquent more than 30 days at the end of a Collection Period,
the Servicer will make an Advance in the amount of 30 days of interest due on
such Receivable, but only to the extent that the Servicer, in its sole
discretion, expects to recoup the Advance from subsequent collections on the
Receivable or from withdrawals from any Cash Collateral Account or other form of
credit enhancement. The Servicer will deposit Advances in the Certificate
Account on or prior to the date specified therefor in the related Prospectus
Supplement. If the Servicer determines that reimbursement of an Advance from
subsequent payments on or with respect to the related Receivable is unlikely,
the Servicer may recoup such Advance from insurance proceeds, collections made
on other Receivables from any other source specified in the related Prospectus
Supplement.
Servicing Compensation and Payment of Expenses
Unless otherwise specified in the related Prospectus Supplement, the
Servicer will be entitled to receive a fee with respect to each Trust (the
"Servicing Fee"), equal to one percent (1.00%) per annum (the "Servicing Fee
Rate"), payable monthly at one-twelfth the annual rate, of the related aggregate
Certificate Balance as of the preceding Distribution Date (after giving effect
to distributions to be made on such preceding Distribution Date). Unless
otherwise provided in the related Prospectus Supplement, the Servicer also will
collect and retain any late fees, prepayment charges, other administrative fees
or similar charges allowed by applicable law with respect to the Receivables and
will be entitled to reimbursement from each Trust for certain liabilities.
The Servicing Fee will compensate the Servicer for performing the
functions of a third-party servicer of automotive receivables as an agent for
the related Trust, including collecting and posting all payments, making
Advances, responding to inquiries of Obligors on the Receivables, investigating
delinquencies, sending payment coupons to Obligors, and overseeing the
collateral in cases of Obligor default. The Servicing Fee will also compensate
the Servicer for administering the related Receivables Pool, including
accounting for collections and furnishing monthly and annual statements to the
related Trustee with respect to distributions, and generating federal income tax
information for such Trust and for the related Certificateholders. The Servicing
Fee also will reimburse the Servicer for certain taxes, accounting fees, outside
auditor fees, data processing costs, and other costs incurred in connection with
administering the applicable Receivables Pool.
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Distributions
With respect to each Series of Certificates, beginning on the
Distribution Date specified in the related Prospectus Supplement, distributions
of principal and interest (or, where applicable, of interest only or principal
only) on each class of Certificates entitled thereto will be made by the related
Trustee to the related Certificateholders. The timing, calculation, allocation,
order, source and priorities of, and requirements for, all distributions to the
holders of each class of Certificates will be set forth in the related
Prospectus Supplement.
With respect to each Trust, collections on or with respect to the related
Receivables will be deposited into the related Certificate Account for
distribution to the related Certificateholders on each Distribution Date to the
extent and in the priority provided in the related Prospectus Supplement. Credit
enhancement, such as a Cash Collateral Account or yield supplement account or
other arrangement, may be available to cover shortfalls in the amount available
for distribution on such date to the extent specified in the related Prospectus
Supplement. As more fully described in the related Prospectus Supplement, and
unless otherwise specified therein, distributions in respect of principal of a
class of Certificates of a Series will be subordinate to distributions in
respect of interest on such class, and distributions in respect of one or more
classes of Certificates of a Series may be subordinate to payments in respect of
other classes of Certificates. Distributions of principal on the Certificates of
a Series may be based on the amount of principal collected or due, or the amount
of realized losses incurred, in a Collection Period.
Credit and Cash Flow Enhancement
The amounts and types of any credit and cash flow enhancement arrangements
and the provider thereof, if applicable, with respect to each class of
Certificates of a Series will be set forth in the related Prospectus Supplement.
To the extent provided in the related Prospectus Supplement, credit or cash flow
enhancement may be in the form of subordination of one or more classes of
Certificates, Cash Collateral Accounts, reserve accounts, yield supplement
accounts, spread accounts, letters of credit, surety bonds, insurance policies,
over-collateralization, credit or liquidity facilities, guaranteed investment
contracts, swaps or other interest rate protection agreements, repurchase
obligations, other agreements with respect to third-party payments or other
support, cash deposits, or such other arrangements as may be described in the
related Prospectus Supplement, or any combination of the foregoing. If specified
in the applicable Prospectus Supplement, credit or cash flow enhancement for a
class of Certificates may cover one or more other classes of Certificates of the
same Series, and credit enhancement for a Series of Certificates may cover one
or more other Series of Certificates.
The existence of a Cash Collateral Account or other form of credit
enhancement for the benefit of any class or Series of Certificates is intended
to enhance the likelihood of receipt by the Certificateholders of such class or
Series of the full amount of principal and interest due thereon and to decrease
the likelihood that such Certificateholders will experience losses. Unless
otherwise specified in the related Prospectus Supplement, the credit enhancement
for a class or Series of Certificates will not provide protection against all
risks of loss and will not guarantee repayment of all principal and interest
thereon. If losses occur which exceed the amount covered by such credit
enhancement or which are not covered by such credit enhancement,
Certificateholders will bear their allocable share of such losses, as described
in the related Prospectus Supplement. In addition, if a form of credit
enhancement covers more than one Series of Certificates, Certificateholders of
any such Series will be subject to the risk that such credit enhancement may be
exhausted by the claims of Certificateholders of other Series.
Cash Collateral Account. If so provided in the related Prospectus
Supplement, pursuant to the related Pooling and Servicing Agreement the
Depositor will establish an account (a "Cash Collateral Account") for a Series
or class or classes of Certificates, which will be maintained with the related
Trustee. Unless otherwise provided in the related Prospectus Supplement, a Cash
Collateral Account will be funded by an initial deposit by the Depositor on the
Closing Date in the amount set forth in the related Prospectus Supplement and,
if the related Series has a Funding Period, may also be funded on each
Subsequent Transfer Date to the extent described in the related Prospectus
Supplement. As further described in the related Prospectus Supplement, the
amount on deposit in the Cash Collateral Account may be increased or reinstated
on each Distribution Date, to the extent described in the related Prospectus
Supplement, by the deposit thereto of the amount of collections on the related
Receivables remaining on such Distribution Date after the payment of all other
required payments and distributions on such date. The related Prospectus
Supplement will describe the circumstances under which and the manner in which
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distributions may be made out of any such Cash Collateral Account, either to
holders of the Certificates covered thereby or to the Depositor or to any other
entity.
Evidence as to Compliance
Each Pooling and Servicing Agreement will provide that a firm of
independent public accountants will furnish annually to the related Trustee a
statement as to compliance by the Servicer during the preceding twelve months
with certain standards relating to the servicing of the Receivables.
Each Pooling and Servicing Agreement will also provide for delivery to the
related Trustee each year of a certificate signed by an officer of the Servicer
stating that the Servicer has fulfilled its obligations under the related
Pooling and Servicing Agreement throughout the preceding twelve months or, if
there has been a default in the fulfillment of any such obligation, describing
each such default. The Servicer has agreed or will agree to give each Trustee
notice of certain Servicer Defaults under the related Pooling and Servicing
Agreement.
Copies of the foregoing statements and certificates may be obtained by
Certificateholders by a request in writing addressed to the related Trustee at
the Corporate Trust Office for such Trustee specified in the related Prospectus
Supplement.
Certain Matters Regarding the Servicer
Each Pooling and Servicing Agreement will provide that UAC may not resign
from its obligations and duties as Servicer thereunder, except upon
determination that UAC's performance of such duties is no longer permissible
under applicable law. No such resignation will become effective until the
related Trustee or a successor servicer has assumed UAC's servicing obligations
and duties under the related Pooling and Servicing Agreement.
Each Pooling and Servicing Agreement will further provide that neither the
Servicer nor any of its directors, officers, employees and agents will be under
any liability to the related Trust or Certificateholders for taking any action
or for refraining from taking any action pursuant to the related Pooling and
Servicing Agreement or for errors in judgment; provided, however, that neither
the Servicer nor any such person will be protected against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of the Servicer's duties or by reason of reckless
disregard of its obligations and duties thereunder. In addition, each Pooling
and Servicing Agreement will provide that the Servicer is under no obligation to
appear in, prosecute or defend any legal action that is not incidental to its
servicing responsibilities under such Pooling and Servicing Agreement and that,
in its opinion, may cause it to incur any expense or liability.
Under the circumstances specified in each Pooling and Servicing Agreement,
any entity into which UAC may be merged or consolidated, or any entity resulting
from any merger or consolidation to which UAC is a party, or any entity
succeeding to the indirect automobile financing and receivable servicing
business of UAC, which corporation or other entity assumes the obligations of
the Servicer, will be the successor to the Servicer under the related Pooling
and Servicing Agreement.
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Events of Default
Unless otherwise provided in the related Prospectus Supplement, "Events of
Default" under each Pooling and Servicing Agreement will consist of: (i) any
failure by the Servicer or UAC to deliver to the related Trustee for
distribution to the related Certificateholders any required payment, which
failure continues unremedied for five business days after written notice to the
Servicer of such failure from the Trustee or holders of the related Certificates
evidencing not less than 25% of the aggregate Certificate Balance (or notional
principal amount, if applicable); (ii) any failure by the Servicer, UAC or the
Depositor duly to observe or perform in any material respect any covenant or
agreement in the related Pooling and Servicing Agreement, which failure
materially and adversely affects the rights of the related Certificateholders
and which continues unremedied for 60 days after written notice of such failure
is given (1) to the Servicer, UAC or the Depositor, as the case may be, by the
related Trustee or (2) to the Servicer, UAC or the Depositor, as the case may
be, and to the related Trustee by holders of the related Certificates evidencing
not less than 25% of the related Certificate Balance (or notional principal
amount, if applicable); and (iii) certain events of insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings with respect
to the Servicer and certain actions by the Servicer indicating its insolvency,
reorganization pursuant to bankruptcy proceedings or inability to pay its
obligations.
Rights Upon Event of Default
Unless otherwise provided in the related Prospectus Supplement, as long as
an Event of Default under the related Pooling and Servicing Agreement remains
unremedied, the related Trustee or holders of Certificates of the related Series
evidencing not less than 25% of the Certificate Balance (or notional principal
amount, if applicable) may terminate all the rights and obligations of the
Servicer under such Pooling and Servicing Agreement, whereupon a successor
Servicer appointed by the related Trustee or such Trustee will succeed to all
the responsibilities, duties and liabilities of the Servicer under such Pooling
and Servicing Agreement and will be entitled to similar compensation
arrangements, provided, however, that if the Trustee becomes the successor
Servicer it will not be subject to all of the indemnification obligations of the
Servicer. If, however, a bankruptcy trustee or similar official has been
appointed for the Servicer, and no Event of Default other than such appointment
has occurred, such trustee or official may have the power to prevent the related
Trustee or the related Certificateholders from effecting a transfer of
servicing. In the event that the related Trustee is unwilling or unable to act
as successor to the Servicer, such Trustee may appoint, or may petition a court
of competent jurisdiction to appoint, a successor with assets of at least
$50,000,000 and whose regular business includes the servicing of automotive
receivables. The related Trustee may arrange for compensation to be paid to such
successor Servicer, which in no event may be greater than the servicing
compensation paid to the Servicer under the related Pooling and Servicing
Agreement.
Waiver of Past Defaults
Unless otherwise provided in the related Prospectus Supplement, holders of
Certificates evidencing not less than a majority of the related aggregate
Certificate Balance (or notional principal amount, if applicable) may, on behalf
of all such Certificateholders, waive any default by the Servicer in the
performance of its obligations under the related Pooling and Servicing Agreement
and its consequences, except a default in making any required deposits to or
payments from any Account in accordance with the Pooling and Servicing
Agreement. No such waiver will impair the Certificateholders' rights with
respect to subsequent Events of Default.
Amendment
Unless otherwise specified in the related Prospectus Supplement, each
Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicer and the related Trustee, without the consent of the
related Certificateholders, to cure any ambiguity, correct or supplement any
provision therein that may be inconsistent with other provisions therein, or to
make any other provisions with respect to matters or questions arising under
such Pooling and Servicing Agreement that are not inconsistent with the
provisions of the Pooling and Servicing Agreement; provided that such action
shall not, in the opinion of counsel satisfactory to the related Trustee,
materially and adversely affect the interests of any related Certificateholder.
Each Pooling and Servicing Agreement may also be amended by the Depositor, the
Servicer and the related Trustee with the consent of the holders of the related
Certificates evidencing not less than 51% of the related aggregate Certificate
Balance (and notional principal amount, if applicable) for the purpose of adding
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any provisions to or changing in any manner or eliminating any of the provisions
of such Pooling and Servicing Agreement or of modifying in any manner the rights
of such Certificateholders; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on or in respect of the related Receivables
or distributions that are required to be made for the benefit of such
Certificateholders or (ii) reduce the aforesaid percentage of the Certificate
Balance of such Series that is required to consent to any such amendment,
without the consent of the holders of all of the outstanding Certificates of
such Series. Unless otherwise provided in the related Prospectus Supplement, any
provision in a Pooling and Servicing Agreement that imposes unlimited liability
on the holder of a Class IC Certificate and provides for the termination of the
related Trust upon the occurrence of an "Insolvency Event" (as described in the
related Prospectus Supplement) with respect to such holder of the Class IC
Certificate, shall not be amended without the unanimous consent of the Trustee
and all holders of outstanding Certificates of such Series. No amendment of a
Pooling and Servicing Agreement shall be permitted unless an opinion of counsel
is delivered to the Trustee to the effect that such amendment will not adversely
affect the tax status of the Trust.
Termination
Unless otherwise specified in the related Prospectus Supplement, the
obligations of the Servicer, the Depositor and the related Trustee pursuant to
the related Pooling and Servicing Agreement will terminate upon the earliest to
occur of (i) the maturity or other liquidation of the last Receivable in the
related Receivables Pool and the disposition of any amounts received upon
liquidation of any such remaining Receivables and (ii) the payment to the
related Certificateholders of all amounts required to be paid to them pursuant
to the Pooling and Servicing Agreement and (iii) the occurrence of certain
Insolvency Events, to the extent set forth in the related Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, in order
to avoid excessive administrative expenses, the Servicer or one or more other
entities identified in the related Prospectus Supplement, will be permitted, at
its option, to purchase from each Trust or to cause such Trust to sell all
remaining Receivables in the related Receivables Pool as of the end of any
Collection Period, if the Certificate Balance as of the Distribution Date
following such Collection Period would be less than or equal to 10% of the
initial aggregate Certificate Balance, at a purchase price equal to the fair
market value of such Receivables, but not less than the sum of (x) the
outstanding Pool Balance and (y) accrued and unpaid interest on such amount
computed at a rate equal to the weighted average Contract Rate, minus any amount
representing payments received on the Receivables and not yet applied to reduce
the principal balance thereof or interest related thereto.
If and to the extent provided in the related Prospectus Supplement, the
related Trustee will, within ten days following a Distribution Date as of which
the Pool Balance is equal to or less than 10% of the original Pool Balance,
solicit bids for the purchase of the Receivables remaining in such Trust, in the
manner and subject to the terms and conditions set forth in such Prospectus
Supplement. If such Trustee receives satisfactory bids as described in such
Prospectus Supplement, then the Receivables remaining in such Trust will be sold
to the highest bidder.
CERTAIN LEGAL ASPECTS OF THE RECEIVABLES
Security Interest in Vehicles
Installment sale contracts such as those included in the Receivables
evidence the credit sale of automobiles, light trucks and vans by dealers to
obligors; the contracts and the installment loan and security agreements also
constitute personal property security agreements and include grants of security
interests in the vehicles under the UCC. Perfection of security interests in the
vehicles is generally governed by the motor vehicle registration laws of the
state in which the vehicle is located. In all of the States where UAC currently
acquires or originates Receivables, a security interest in a vehicle is
perfected by notation of the secured party's lien on the vehicle's certificate
of title. With respect to the Receivables, the lien is or will be perfected in
the name of UAC, UAFC or, in certain cases, the Predecessor. Each Receivable
prohibits the sale or transfer of the Financed Vehicle without the lienholder's
consent.
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Pursuant to each Purchase Agreement, UAFC will assign its security
interests in the Financed Vehicles to the Depositor along with the Receivables.
Pursuant to each Pooling and Servicing Agreement, the Depositor will assign its
security interests in the Financed Vehicles to the related Trustee along with
the Receivables. Because of the administrative burden and expense, neither the
Depositor nor the related Trustee will amend any certificate of title to
identify itself as the secured party.
In most states, an assignment such as that under a Pooling and Servicing
Agreement is an effective conveyance of a security interest without amendment of
any lien noted on a vehicle's certificate of title, and the assignee succeeds
thereby to the assignor's rights as secured party. In many states in which the
Receivables were originated, the laws governing certificates of title are silent
on the question of the effect of an assignment on the continued validity and
perfection of a security interest in vehicles. However, with respect to security
interests perfected by a central filing, the UCC in these states provides that a
security interest continues to be valid and perfected even though the security
interest has been assigned to a third party and no amendments or other filings
are made to reflect the assignment. An official comment to the UCC states that
this rule should control a security interest in a vehicle which is perfected by
the notation of the lien on the certificate of title. Although the comment does
not have the force of law, official comments are typically given substantial
weight by the courts.
The other states in which the Receivables were originated have statutory
provisions that address or could be interpreted as addressing assignments.
However, nearly all of these statutory provisions either do not require
compliance with the procedure outlined to insure the continued validity and
perfection of the lien or are ambiguous on the issue of whether the procedure
must be followed. Under the official comment noted above, if these procedures
for noting an assignee's name on a certificate of title are determined to be
merely permissive in nature, the procedures would not have to be followed as a
condition to the continued validity and perfection of the security interest.
By not identifying the Trust as the secured party on the certificate of
title, the security interest of the Trust in the vehicle could be defeated
through fraud or negligence. In the absence of fraud or forgery by the vehicle
owner, UAC, UAFC or the Predecessor or administrative error by state or local
agencies, the notation of the UAFC's or the Predecessor's lien on the
certificates should be sufficient to protect the Trust against the right of
subsequent purchasers of a vehicle or subsequent lenders who take a security
interest in a vehicle securing a Receivable. If there are any vehicles as to
which UAC, UAFC or the Predecessor failed to obtain a perfected security
interest, its security interest would be subordinate to, among others,
subsequent purchasers of the vehicles and holders of perfected security
interests. Such a failure, however, would constitute a breach of warranties
under the related Pooling and Servicing Agreement and Purchase Agreement and
would create an obligation of UAC to repurchase the related Receivable, unless
such breach were cured in a timely manner. See "Description of the Transfer and
Servicing Agreements -- Sale and Assignment of Receivables."
Under the laws of most states, including most of the states in which the
Receivables have been or will be originated, the perfected security interest in
a vehicle continues for four months after a vehicle is moved to a state other
than the state which issued the certificate of title and thereafter until the
vehicle owner re-registers the vehicle in the new state. A majority of states
require surrender of a certificate of title to re-register a vehicle. Since UAFC
(or UAC or the Predecessor) will have its lien noted on the certificates of
title and the Servicer will retain possession of the certificates issued by most
states in which Receivables were or will be originated, the Servicer would
ordinarily learn of an attempt at re-registration through the request from the
obligor to surrender possession of the certificate of title or would receive
notice of surrender from the state of re-registration since the security
interest would be noted on the certificate of title. Thus, the secured party
would have the opportunity to re-perfect its security interest in the vehicle in
the state of relocation. In states that do not require a certificate of title
for registration of a motor vehicle, re-registration could defeat perfection.
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In the ordinary course of servicing receivables, the Servicer takes steps
to effect re-perfection upon receipt of notice of re-registration or information
from the obligor as to relocation. Similarly, when an obligor sells a vehicle,
the Servicer must surrender possession of the certificate of title or will
receive notice as a result of UAFC's (or UAC's or the Predecessor's) lien noted
thereon and accordingly will have an opportunity to require satisfaction of the
related Receivable before release of the lien. Under each Pooling and Servicing
Agreement, the Servicer is obligated to take appropriate steps, at its own
expense, to maintain perfection of security interests in the Financed Vehicles.
Under the laws of most states, liens for repairs performed on a motor
vehicle and liens for unpaid taxes would take priority over even a perfected
security interest in a Financed Vehicle. In some states, a perfected security
interest in a Financed Vehicle may take priority over liens for repairs.
UAC and UAFC will represent and warrant in each Purchase Agreement and
Pooling and Servicing Agreement that, as of the date of issuance of the
Certificates, each security interest in a Financed Vehicle is or will be prior
to all other present liens (other than tax liens and liens that arise by
operation of law) upon and security interests in such Financed Vehicle. However,
liens for repairs or taxes could arise at any time during the term of a
Receivable. No notice will be given to the Trustee or Certificateholders in the
event such a lien arises.
Repossession
In the event of a default by vehicle purchasers, the holder of a retail
installment sale contract or an installment loan and security agreement has all
of the remedies of a secured party under the UCC, except where specifically
limited by other state laws. The remedy employed by the Servicer in most cases
of default is self-help repossession and is accomplished simply by taking
possession of the Financed Vehicle. The self-help repossession remedy is
available under the UCC in most of the states in which Receivables have been or
will be originated as long as the repossession can be accomplished without a
breach of the peace.
In cases where the obligor objects or raises a defense to repossession, or
if otherwise required by applicable state law, a court order must be obtained
from the appropriate state court. The vehicle must then be repossessed in
accordance with that order.
Notice of Sale; Redemption Rights
In the event of default by an obligor, some jurisdictions require that the
obligor be notified of the default and be given a time period within which the
obligor may cure the default prior to repossession. Generally, this right of
reinstatement may be exercised on a limited number of occasions in any one-year
period.
The UCC and other state laws require the secured party to provide an
obligor with reasonable notice of the date, time and place of any public sale
and/or the date after which any private sale of the collateral may be held. The
obligor generally has the right to redeem the collateral prior to actual sale by
paying the secured party the unpaid principal balance of the obligation plus
reasonable expenses for repossessing, holding, and preparing the collateral for
disposition and arranging for its sale, and, to the extent provided in the
related retail installment sale contract, and, as permitted by law, reasonable
attorneys' fees.
Deficiency Judgments and Excess Proceeds
The proceeds of resale of the vehicles generally will be applied first to
the expenses of resale and repossession and then to the satisfaction of the
indebtedness. If the net proceeds from resale do not cover the full amount of
the indebtedness, a deficiency judgment may be sought. However, the deficiency
judgment would be a personal judgment against the obligor for the shortfall, and
a defaulting obligor can be expected to have very little capital or sources of
income available following repossession. Therefore, in many cases, it may not be
useful to seek a deficiency judgment or, if one is obtained, it may be settled
at a significant discount.
Occasionally, after resale of a vehicle and payment of all expenses and all
indebtedness, there is a surplus of funds. In that case, the UCC requires the
lender to remit the surplus to any holder of a lien with respect to the vehicle
or if no such lienholder exists, the UCC requires the lender to remit the
surplus to the former owner of the vehicle.
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Consumer Protection Laws
Numerous federal and state consumer protection laws and related regulations
impose substantial requirements upon lenders and servicers involved in consumer
finance. These laws include the Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Federal Trade Commission Act, the Fair Credit Billing Act,
the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and state motor vehicle retail installment sales acts, and other
similar laws. Also, state laws impose finance charge ceilings and other
restrictions on consumer transactions and require contract disclosures in
addition to those required under federal law. Those requirements impose specific
statutory liabilities upon creditors who fail to comply with their provisions.
In some cases, this liability could affect an assignee's ability to enforce
consumer finance contracts such as the Receivables.
The so-called "Holder-in-Due-Course" Rule of the Federal Trade Commission
(the "FTC Rule"), the provisions of which are generally duplicated by the
Uniform Consumer Credit Code, other state statutes, or the common laws in
certain states, has the effect of subjecting a seller (and certain related
lenders and their assignees) in a consumer credit transaction and any assignee
of the seller to all claims and defenses that the obligor in the transaction
could assert against the seller of the goods. Liability under the FTC Rule is
limited to the amounts paid by the obligor under the contract, and the holder of
the contract may also be unable to collect any balance remaining due thereunder
from the obligor. Most of the Receivables will be subject to the requirements of
the FTC Rule. Accordingly, the Trustee, as holder of the Receivables, will be
subject to any claims or defenses that the purchaser of the related financed
vehicle may assert against the seller of the vehicle. Such claims are limited to
a maximum liability equal to the amounts paid by the Obligor on the Receivable.
Under most state motor vehicle dealer licensing laws, dealers of motor
vehicles are required to be licensed to sell motor vehicles at retail sale. In
addition, with respect to used vehicles, the Federal Trade Commission's Rule on
Sale of Used Vehicles requires that all sellers of used vehicles prepare,
complete and display a "Buyer's Guide" which explains the warranty coverage for
such vehicles. Furthermore, Federal Odometer Regulations promulgated under the
Motor Vehicle Information and Cost Savings Act requires that all sellers of used
vehicles furnish a written statement signed by the seller certifying the
accuracy of the odometer reading. If a seller is not properly licensed or if
either a Buyer's Guide or Odometer Disclosure Statement was not provided to the
purchaser of the related financed vehicle, the obligor may be able to assert a
defense against the seller of the vehicle. If an Obligor were successful in
asserting any such claim or defense, such claim or defense would constitute a
breach of UAC's representations and warranties under each Purchase Agreement and
Pooling and Servicing Agreement and would create an obligation of UAC to
repurchase the Receivable unless such breach were cured in a timely manner. See
"Description of the Transfer and Servicing Agreements -- Sale and Assignment of
Receivables."
Courts have applied general equitable principles to secured parties
pursuing repossession or litigation involving deficiency balances. These
equitable principles may have the effect of relieving an obligor from some or
all of the legal consequences of a default.
In several cases, consumers have asserted that the self-help remedies of
secured parties under the UCC and related laws violate the due process
protections provided under the 14th Amendment to the Constitution of the United
States. Courts have generally upheld the notice provisions of the UCC and
related laws as reasonable or have found that the repossession and resale by the
creditor do not involve sufficient state action to afford constitutional
protection to consumers.
UAC will represent and warrant in each Purchase Agreement that each
Receivable complies with all requirements of law in all material respects.
Accordingly, if an Obligor has a claim against a Trust for violation of any law
and such claim materially and adversely affects the Trust's interest in a
Receivable, such violation would constitute a breach of UAC's representations
and warranties under the Purchase Agreement and would create an obligation of
UAC to repurchase such Receivable unless the breach were cured. See "Description
of the Transfer and Servicing Agreements -- Sale and Assignment of Receivables."
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Other Limitations
In addition to the laws limiting or prohibiting deficiency judgments,
numerous other statutory provisions, including federal bankruptcy laws and
related state laws, may interfere with or affect the ability of a lender to
realize upon collateral or enforce a deficiency judgment. For example, in a
Chapter 13 proceeding under the federal bankruptcy law, a court may prevent a
lender from repossessing an automobile, and, as part of the rehabilitation plan,
reduce the amount of the secured indebtedness to the market value of the
automobile at the time of bankruptcy (as determined by the court), leaving the
party providing financing as a general unsecured creditor for the remainder of
the indebtedness. A bankruptcy court may also reduce the monthly payments due
under a contract or change the rate of interest and time of repayment of the
indebtedness.
Bankruptcy Matters
UAC and UAFC will represent and warrant to the Depositor in each Purchase
Agreement, and the Depositor will warrant to the related Trust in each Pooling
and Servicing Agreement, that the sales of the Receivables by UAC to UAFC, by
UAFC to the Depositor and by the Depositor to the Trust are valid sales of the
Receivables to UAFC, the Depositor and such Trust, respectively. Notwithstanding
the foregoing, if UAC, UAFC or the Depositor were to become a debtor in a
bankruptcy case and a creditor or trustee-in-bankruptcy of such debtor or such
debtor itself were to take the position that the sale of Receivables to UAFC,
the Depositor or the Trust should instead be treated as a pledge of such
Receivables to secure a borrowing of such debtor, delays in payments of
collections of Receivables to Certificateholders could occur or (should the
court rule in favor of any such trustee, debtor or creditor) reductions in the
amounts of such payments could result. If the transfer of Receivables to the
Trust is treated as a pledge instead of a sale, a tax or government lien on the
property of UAC, UAFC or the Depositor arising before the transfer of the
related Receivables to such Trust may have priority over such Trust's interest
in such Receivables. If the transactions contemplated herein are treated as a
sale, the Receivables would not be part of the UAC's, UAFC's or the Depositor's
bankruptcy estate and would not be available to the bankrupt entity's creditors.
The decision of the U.S. Court of Appeals for the Tenth Circuit, Octagon
Gas System, Inc. v. Rimmer (In re Meridian Reserve, Inc.) (decided May 27,1993),
contains language to the effect that under the UCC accounts sold by a debtor
would remain property of the debtor's bankruptcy estate, whether or not the sale
of the accounts was perfected. Although the Receivables constitute chattel paper
under the UCC, rather than accounts, Article 9 of the UCC applies to the sale of
chattel paper as well as the sale of accounts, and perfection of a security
interest in both chattel paper and accounts may be accomplished by the filing of
a UCC-1 financing statement. If, following a bankruptcy of UAC, UAFC or the
Depositor, a court were to follow the reasoning of the Tenth Circuit reflected
in the above case, then the Receivables could be included in the bankruptcy
estate of UAC, UAFC or the Depositor, as applicable, and delays in payments of
collections on or in respect of the Receivables could occur. UAC and UAFC will
warrant to the Depositor in each Purchase Agreement, and the Depositor will
warrant to the Trust in each Pooling and Servicing Agreement, that the sale of
the related Receivables to the Depositor or the related Trust is a sale of such
Receivables to the Depositor and to the Trust, respectively.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a general summary of certain federal income tax
consequences of the purchase, ownership and disposition of Certificates. The
summary does not purport to deal with federal income tax consequences applicable
to all categories of holders, some of which may be subject to special rules. For
example, its does not discuss the tax treatment of Certificateholders that are
insurance companies, regulated investment companies or dealers in securities.
Prospective investors are urged to consult their own tax advisors in determining
the federal, state, local, foreign and any other tax consequences to them of the
purchase, ownership and disposition of the Certificates.
The following summary is based upon current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), the Treasury regulations
promulgated thereunder and judicial or ruling authority, all of which are
subject to change, which change may be retroactive. Each Trust will be provided
with an opinion of federal tax counsel regarding certain federal income tax
matters discussed below. Such opinions, however, are not binding on the IRS or
the courts. No ruling on any of the issues discussed below will be sought from
the IRS. For purposes of the following summary, references to the Trust, the
Certificates and related terms, parties and documents shall be deemed to refer,
unless otherwise specified herein, to each Trust and the Certificates and the
related terms, parties and documents applicable to such Trust.
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The federal income tax consequences to Certificateholders will vary
depending on whether an election is made to treat the Trust as a partnership
under the Code or whether the Trust will be treated as a grantor trust. The
Prospectus Supplement for each Series of Certificates will specify whether a
partnership election will be made or whether the Trust will be treated as a
grantor trust.
TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE
Tax Characterization of the Trust as a Partnership
Federal Tax Counsel will deliver its opinion that a Trust for which a
partnership election is made will not be an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes. This
opinion will be based on the assumption that the terms of the Pooling and
Servicing Agreement and related documents will be complied with, and on such
counsel's conclusions that (i) the Trust will not have certain characteristics
necessary for a business trust to be classified as an association taxable as a
corporation and (ii) the nature of the income of the Trust will exempt it from
the rule that certain publicly traded partnerships are taxable as corporations.
If a Trust were taxable as a corporation for federal income tax purposes,
it would be subject to corporate income tax on its taxable income. The Trust's
taxable income would include all of its income on the related Receivables, less
servicing fees and other deductible expenses. Any such corporate income tax
could materially reduce cash available to make distributions on the
Certificates, and beneficial owners of Certificates (the "Certificate Owners")
could be liable for any such tax that is unpaid by the Trust.
On May 9, 1996, the Department of Treasury issued proposed regulations
regarding entity classification that contain an elective "check-the-box"
procedure under which partnership (as opposed to association) status may be
elected by an unincorporated entity for federal income tax purposes without
lacking some or all of the characteristics distinguishing such entities
described in clause (i) of the second preceding paragraph. The application of
these proposed regulations to any particular Trust, particularly those formed
prior to the issuance of applicable temporary or final regulations is uncertain.
If applicable temporary or final regulations are issued, the related Pooling and
Servicing Agreement will require that any eligible Trust must make a partnership
election thereunder. Moreover, any such Trust may be amended to remove one or
more of the distinguishing characteristics described in this paragraph if
permitted by such applicable temporary or final regulations. In such event, it
is not expected that there would be any material adverse effect on Certificate
Owners.
Tax Consequences to Holders of the Certificates
Treatment of the Trust as a Partnership. The Depositor and the Servicer
will agree, and the related Certificate Owners will agree by their purchase of
Certificates, to treat the Trust as a partnership for purposes of federal and
state income tax, franchise tax and any other tax measured in whole or in part
by income, with the assets of the partnership being the assets held by the
Trust, the partners of the partnership being the Certificate Owners (including
the holder of the Class IC Certificate). However, the proper characterization of
the arrangement involving the Trust, the Certificates, the Depositor and the
Servicer is not certain because there is no authority on transactions closely
comparable to that contemplated herein.
If the proposed regulations containing the "check-the-box" procedure
described above under "Tax Characterization of the Trust as a Partnership"
become applicable as temporary or final regulations, the related Pooling and
Servicing Agreement will provide that an election to treat the Trust as a
partnership shall be made thereunder.
Partnership Taxation. As a partnership, the Trust will not be subject to
federal income tax. Rather, each Certificate Owner will be required to
separately take into account such holder's allocated share of income, gains,
losses, deductions and credits of the Trust. The Trust's income will consist
primarily of interest and finance charges earned on the related Receivables
(including appropriate adjustments for market discount, original issue discount
("OID") and bond premium) and any gain upon collection or disposition of such
Receivables. The Trust's deductions will consist primarily of servicing and
other fees, and losses or deductions upon collection or disposition of
Receivables.
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The tax items of a partnership are allocable to the partners in accordance
with the Code, Treasury regulations and the partnership agreement (i.e., the
Pooling and Servicing Agreement and related documents). The Pooling and
Servicing Agreement will provide, in general, that the Certificate Owners will
be allocated taxable income of the Trust for each month equal to the sum of: (i)
the interest that accrues on the Certificates in accordance with their terms for
such month, including interest accruing at the related Pass-Through Rate for
such month and interest, if any, on amounts previously due on the Certificates
but not yet distributed; (ii) any Trust income attributable to discount on the
related Receivables that corresponds to any excess of the principal amount of
the Certificates over their initial issue price; (iii) any other amounts of
income payable to the Certificate Owners for such month; and (iv) in the case of
an individual, such Certificate Owner's share of income corresponding to the
miscellaneous itemized deductions described in the next paragraph. Such
allocation will be reduced by any amortization by the Trust of premium on
Receivables that corresponds to any excess of the issue price of Certificates
over their principal amount. Unless otherwise provided in the related Prospectus
Supplement, all remaining taxable income of the Trust will be allocated to the
Class IC Certificateholder. In the event the Trust issues interest-only Class I
Certificates, the amount allocated to such Certificate Owners will equal the
excess of (i) the Class I Pass-Through Rate times the Notional Principal Amount
for such month over (ii) the portion of the amount distributed with respect to
the Class I Certificates for such month that would constitute a return of basis
if the Class I Certificates constituted an instrument described in Section
860G(a)(1)(B)(ii) of the Code, applying the principles of Section 1272(a)(6) of
the Code and employing the constant yield method of accrual (utilizing the
appropriate prepayment assumption); provided, that no negative accruals shall be
permitted, and, provided further, that other deductions derived by the Trust
equal to the aggregate remaining capital account balances of the Class I
Certificate Owners will be allocated to the Class I Certificates in proportion
to the respective capital account balances immediately before the final
redemption.
An individual taxpayer's share of expenses of the Trust (including fees to
the Servicer, but not interest expense) would be miscellaneous itemized
deductions. Such deductions might be disallowed to the individual in whole or in
part and might result in such holder being taxed on an amount of income that
exceeds the amount of cash actually distributed to such holder over the life of
the Trust. Any net loss of the Trust will be allocated first to the Class IC
Certificateholder to the extent of its adjusted capital account then to the
other Certificate Owners in the priorities set forth in the Pooling and
Servicing Agreement to the extent of their respective adjusted capital accounts,
and thereafter to the Class IC Certificateholder.
The Trust intends to make all calculations relating to market discount
income and amortization of premium with respect to both Simple Interest
Receivables and Precomputed Receivables on an aggregate basis rather than a
Receivable-by-Receivable basis. If the IRS were to require that such
calculations be made separately for each Receivable, the Trust might be required
to incur additional expense, but it is believed that there would not be a
material adverse effect on Certificate Owners.
Discount and Premium. Except as otherwise provided in the related
Prospectus Supplement, it is believed that the Receivables were not issued with
OID, and, therefore, the Trust should not have OID income. However, the purchase
price paid by the Trust for the related Receivables may be greater or less than
the remaining principal balance of the Receivables at the time of purchase. If
so, the Receivables will have been acquired at a premium or discount, as the
case may be. (As indicated above, the Trust will make this calculation on an
aggregate basis, but might be required to recompute it on a
Receivable-by-Receivable basis.)
If the Trust acquires the related Receivables at a market discount or
premium, it will elect to include any such discount in income currently as it
accrues over the life of such Receivables or to offset any such premium against
interest income on such Receivables. As indicated above, a portion of such
market discount income or premium deduction may be allocated to Certificate
Owners.
Section 708 Termination. Under Section 708 of the Code, the Trust will be
deemed to terminate for federal income tax purposes if 50% or more of the
capital and profits interests in the Trust are sold or exchanged within a
12-month period. If such a termination occurs, the Trust will be considered to
distribute its assets to the partners, who would then be treated as
recontributing those assets to the Trust, as a new partnership. The Trust will
not comply with certain technical requirements that might apply when such a
constructive termination occurs. As a result, the Trust may be subject to
certain tax penalties and may incur additional expenses if it is required to
comply with those requirements. Furthermore, the Trust might not be able to
comply due to lack of data. Under proposed Treasury regulations, the foregoing
treatment would be replaced by new rules under which a 50% or greater transfer,
as described above, would cause a deemed contribution of the assets of the Trust
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to a new partnership in exchange for interests in the Trust. Such interests in a
new partnership would be deemed distributed to the partners of the Trust in
liquidation thereof, which would not constitute a sale or exchange. It is not
known when or whether such proposed Treasury regulations will become effective.
Disposition of Certificates. Generally, capital gain or loss will be
recognized on a sale of Certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the Certificates sold.
A Certificate Owner's tax basis in a Certificate will generally equal the
holder's cost increased by the holder's share of Trust income (includible in
income) and decreased by any distributions received with respect to such
Certificate. In addition, both the tax basis in the Certificates and the amount
realized on a sale of a Certificate would include the holder's share of the
liabilities of the Trust. A holder acquiring Certificates at different prices
may be required to maintain a single aggregate adjusted tax basis in such
Certificates and, upon sale or other disposition of some of the Certificates, to
allocate a portion of such aggregate tax basis to the Certificates sold (rather
than maintaining a separate tax basis in each Certificate for purposes of
computing gain or loss on a sale of that Certificate).
Any gain on the sale of a Certificate attributable to the holder's share of
unrecognized accrued market discount on the related Receivables would generally
be treated as ordinary income to the holder and would give rise to special tax
reporting requirements. The Trust does not expect to have any other assets that
would give rise to such special reporting requirements. Thus, to avoid those
special reporting requirements, the Trust will elect to include market discount
in income as it accrues.
If a Certificate Owner is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Certificates that exceeds the aggregate
cash distributions with respect thereto, such excess will generally give rise to
a capital loss upon the retirement of the Certificates.
Allocations Between Transferors and Transferees. In general, the Trust's
taxable income and losses will be determined monthly and the tax items for a
particular calendar month will be apportioned among the Certificate Owners in
proportion to the principal amount of Certificates (or notional principal
amount, in the case of any interest only Certificates) owned by them as of the
close of the last day of such month. As a result, a holder purchasing
Certificates may be allocated tax items (which will affect its tax liability and
tax basis) attributable to periods before the actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations. If a monthly convention is not allowed (or only applies to
transfers of less than all of the partner's interest), taxable income or losses
of the Trust might be reallocated among the Certificate Owners. The Class IC
Certificateholder, acting as tax matters partner for the Trust, will be
authorized to revise the Trust's method of allocation between transferors and
transferees to conform to a method permitted by future regulations.
Section 754 Election. In the event that a Certificate Owner sells its
Certificates at a profit (loss), the purchasing Certificate Owner will have a
higher (lower) basis in the Certificates than the selling Certificate Owner had.
The tax basis of the Trust's assets will not be adjusted to reflect that higher
(or lower) basis unless the Trust were to file an election under Section 754 of
the Code. In order to avoid the administrative complexities that would be
involved in keeping accurate accounting records, as well as potentially onerous
information reporting requirements, the Trust will not make such election. As a
result, Certificate Owners might be allocated a greater or lesser amount of
Trust income than would be appropriate based on their own purchase price for
Certificates.
Administrative Matters. The Trustee is required to keep or have kept
complete and accurate books of the Trust. Such books will be maintained for
financial reporting and tax purposes on an accrual basis, and the fiscal year of
the Trust is expected to be the calendar year. The Trustee will file a
partnership information return (IRS Form 1065) with the IRS for each taxable
year of the Trust and will report each Certificate Owner's allocable share of
items of Trust income and expense to holders and the IRS on Schedule K-1. The
Trust will provide the Schedule K-l information to nominees that fail to provide
the Trust with the information statement described below and such nominees will
be required to forward such information to the beneficial owners of the
Certificates. Generally, holders must file tax returns that are consistent with
the information return filed by the Trust or be subject to penalties unless the
holder notifies the IRS of all such inconsistencies.
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Under Section 6031 of the Code, any person that holds Certificates as a
nominee at any time during a calendar year is required to furnish the Trust with
a statement containing certain information on the nominee, the beneficial owners
and the Certificates so held. Such information includes (i) the name, address
and taxpayer identification number of the nominee and (ii) as to each beneficial
owner (a) the name, address and identification number of such person, (b)
whether such person is a United States person, a tax-exempt entity or a foreign
government, an international organization, or any wholly owned agency or
instrumentality of either of the foregoing, and (c) certain information on
Certificates that were held, bought or sold on behalf of such person throughout
the year. In addition, brokers and financial institutions that hold Certificates
through a nominee are required to furnish directly to the Trust information as
to themselves and their ownership of Certificates. A clearing agency registered
under Section 17A of the Exchange Act is not required to furnish any such
information statement to the Trust. The information referred to above for any
calendar year must be furnished to the Trust on or before the following January
31. Nominees, brokers and financial institutions that fail to provide the Trust
with the information described above may be subject to penalties.
Unless otherwise specified in the related Prospectus Supplement, the Class
IC Certificateholder will be designated as the tax matters partner for each
Trust in the related Pooling and Servicing Agreement and, as such, will be
responsible for representing the Certificate Owners in any dispute with the IRS.
The Code provides for administrative examination of a partnership as if the
partnership were a separate and distinct taxpayer. Generally, the statute of
limitations for partnership items does not expire before three years after the
date on which the partnership information return is filed. Any adverse
determination following an audit of the return of the Trust by the appropriate
taxing authorities could result in an adjustment of the returns of the
Certificate Owners, and, under certain circumstances, a Certificate Owner may be
precluded from separately litigating a proposed adjustment to the items of the
Trust. An adjustment could also result in an audit of a Certificate Owner's
returns and adjustments of items not related to the income and losses of the
Trust.
Tax Consequences to Foreign Certificate Owners. It is not clear whether the
Trust would be considered to be engaged in a trade or business in the United
States for purposes of federal withholding taxes with respect to non-U.S.
persons because there is no clear authority dealing with that issue under facts
substantially similar to those described herein. Although it is not expected
that the Trust would be engaged in a trade or business in the United States for
such purposes, the Trust will withhold as if it were so engaged in order to
protect the Trust from possible adverse consequences of a failure to withhold.
The Trust expects to withhold on the portion of its taxable income that is
allocable to foreign Certificate Owners pursuant to Section 1446 of the Code, as
if such income were effectively connected to a U.S. trade or business, at a rate
of 35% for foreign holders that are taxable as corporations and 39.6% for all
other foreign holders. Subsequent adoption of Treasury regulations or the
issuance of other administrative pronouncements may require the Trust to change
its withholding procedures. In determining a holder's withholding status, the
Trust may rely on IRS Form W-8, IRS Form W-9 or the holder's certification of
nonforeign status signed under penalties of perjury.
Each foreign holder might be required to file a U.S. individual or
corporate income tax return (including, in the case of a corporation, the branch
profits tax) on its share of the Trust's income. Each foreign holder must obtain
a taxpayer identification number from the IRS and submit that number to the
Trust on Form W-8 in order to assure appropriate crediting of the taxes
withheld. A foreign holder generally would be entitled to file with the IRS a
claim for refund with respect to taxes withheld by the Trust, taking the
position that no taxes were due because the Trust was not engaged in a U.S.
trade or business. However, interest payments made (or accrued) to a Certificate
Owner who is a foreign person generally will be considered guaranteed payments
to the extent such payments are determined without regard to the income of the
Trust. If these interest payments are properly characterized as guaranteed
payments, then the interest will not be considered "portfolio interest". As a
result, Certificate Owners will be subject to United States federal income tax
and withholding tax at a rate of 30 percent, unless reduced or eliminated
pursuant to an applicable treaty. In such case, a foreign holder would only be
entitled to claim a refund for that portion of the taxes in excess of the taxes
that should be withheld with respect to the guaranteed payments.
Backup Withholding. Distributions made on the Certificates and proceeds
from the sale of the Certificates will be subject to a "backup" withholding tax
of 31% if, in general, the Certificate Owner fails to comply with certain
identification procedures, unless the holder is an exempt recipient under
applicable provisions of the Code.
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TRUSTS TREATED AS GRANTOR TRUSTS
Tax Characterization of Grantor Trusts
If specified in the related Prospectus Supplement, Federal Tax Counsel
will deliver its opinion that the Trust will not be classified as an association
taxable as a corporation and that such Trust will be classified as a grantor
trust under subpart E, Part I of subchapter J of the Code. In this case,
beneficial owners of Certificates (referred to herein as "Grantor Trust
Certificateholders") will be treated for federal income tax purposes as owners
of a portion of the Trust's assets as described below. The Certificates issued
by a Trust that is treated as a grantor trust are referred to herein as "Grantor
Trust Certificates".
Characterization. Each Grantor Trust Certificateholder will be treated as
the owner of a pro rata undivided interest in the interest and principal
portions of the Trust represented by the Grantor Trust Certificates and will be
considered the equitable owner of a pro rata undivided interest in each of the
Receivables in the Trust. Any amounts received by a Grantor Trust
Certificateholder in lieu of amounts due with respect to any Receivable because
of a default or delinquency in payment will be treated for federal income tax
purposes as having the same character as the payments they replace.
Each Grantor Trust Certificateholder will be required to report on its
federal income tax return in accordance with such Grantor Trust
Certificateholder's method of accounting its pro rata share of the entire income
from the Receivables in the Trust represented by Grantor Trust Certificates,
including interest, OID, if any, prepayment fees, assumption fees, any gain
recognized upon an assumption and late payment charges received by the Servicer.
Under Code Sections 162 or 212, each Grantor Trust Certificateholder will be
entitled to deduct its pro rata share of servicing fees, prepayment fees,
assumption fees and late payment charges retained by the Servicer, provided that
such amounts are reasonable compensation for services rendered to the Trust.
Grantor Trust Certificateholders that are individuals, estates or trusts will be
entitled to deduct their share of expenses only to the extent such expenses plus
all other Section 212 expenses exceed two percent of their respective adjusted
gross incomes. A Grantor Trust Certificateholder using the cash method of
accounting must take into account its pro rata share of income and deductions as
and when collected by or paid to the Servicer. A Grantor Trust Certificateholder
using an accrual method of accounting must take into account its pro rata share
of income and deductions as they become due or are paid to the Servicer,
whichever is earlier. If the servicing fees paid to the Servicer are deemed to
exceed reasonable servicing compensation, the amount of such excess could be
considered as an ownership interest retained by the Servicer (or any person to
whom the Servicer assigned for value all or a portion of the servicing fees) in
a portion of the interest payments on the Receivables. The Receivables would
then be subject to the "coupon stripping" rules of the Code discussed below.
Stripped Bonds and Stripped Coupons
Although the tax treatment of stripped bonds is not entirely clear, based
on recent guidance by the IRS, it appears that each purchaser of a Grantor Trust
Certificate will be treated as the purchaser of a stripped bond which generally
should be treated as a single debt instrument issued on the day it is purchased
for purposes of calculating any original issue discount. Generally, under
recently issued Treasury regulations (the "Section 1286 Treasury Regulations"),
if the discount on a stripped bond is larger than a de minimis amount (as
calculated for purposes of the OID rules of the Code) such stripped bond will be
considered to have been issued with OID. For these purposes, OID is the excess
of the "stated redemption price at maturity" (generally, principal and any
interest which is not "qualified stated interest") of a debt instrument over its
issue price. See "-- Original Issue Discount" below. Based on the preamble to
the Section 1286 Treasury Regulations, Federal Tax Counsel is of the opinion
that, although the matter is not entirely clear, the interest income on the
Certificates at the sum of the Pass-Through Rate and the portion of the
Servicing Fee Rate that does not constitute excess servicing will be treated as
"qualified stated interest" within the meaning of the Section 1286 Treasury
Regulations and such income will be so treated in the Trustee's tax information
reporting. It is possible that the treatment described in this paragraph will
apply only to that portion of the Receivables in a particular trust as to which
there is "excess servicing" and that the remainder of such Receivables will not
be treated as stripped bonds, but as undivided interests as described above.
Unless indicated otherwise in the applicable Prospectus Supplement, it is not
anticipated that Grantor Trust Certificates will be issued with greater than de
minimis OID.
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Original Issue Discount. The rules of the Code relating to OID (currently
Sections 1271 though 1273 and 1275) will be applicable to a person comparable to
a Grantor Trust Certificateholder that acquires an undivided interest in a
stripped bond issued or acquired with OID, and such person must include in gross
income the sum of the "daily portions," as defined below, of the OID on such
stripped bond for each day on which it owns a Certificate, including the date of
purchase but excluding the date of disposition. It is not clear whether such OID
will be determined under Code Section 1272(a)(6), applicable to debt instruments
whose payments may be accelerated by prepayments on underlying obligations.
Unless indicated otherwise in the applicable Prospectus Supplement, it is
anticipated that such approach will be used, with OID accruals based on a
constant interest method and a prepayment assumption indicated in such
Prospectus Supplement. In the case of an original Grantor Trust
Certificateholder, the daily portions of OID generally would be determined as
follows. A calculation will be made of the portion of OID that accrues on the
stripped bond during each successive monthly accrual period (or shorter period
in respect of the date of original issue or the final Distribution Date). This
will be done, in the case of each full monthly accrual period, by adding (i) the
present value of all remaining payments to be received on the stripped bond
under the prepayment assumption used in respect of the Grantor Trust
Certificates and (ii) any payments received during such accrual period, and
subtracting from the total the "adjusted issue price" of the stripped bond at
the beginning of such accrual period. No representation is made that the Grantor
Trust Certificates will prepay at any prepayment assumption. The "adjusted issue
price" of a stripped bond at the beginning of the first accrual period is its
issue price (as determined for purposes of the OID rules of the Code) and the
"adjusted issue price" of a stripped bond at the beginning of a subsequent
accrual period is the "adjusted issue price" at the beginning of the immediately
preceding accrual period plus the amount of OID allocable to that accrual period
and reduced by the amount of any payment (other than "qualified stated
interest") made at the end of or during that accrual period. The OID accruing
during such accrual period will then be divided by the number of days in the
period to determine the daily portion of OID for each day in the period. A
subsequent Grantor Trust Certificateholder will be required to adjust its OID
accrual to reflect its purchase price, the remaining period to maturity and,
possibly, a new prepayment assumption. The Servicer will report to all Grantor
Trust Certificateholders as if they were original holders.
With respect to the Receivables, the method of calculating OID as described
above will cause the accrual of OID to either increase or decrease (but never
below zero) in any given accrual period to reflect the fact that prepayments are
occurring at a faster or slower rate than the prepayment assumption used in
respect of the Receivables. Subsequent purchasers that purchase Grantor Trust
Certificates at more than a de minimis discount should consult their tax
advisors with respect to the proper method to accrue such OID.
Market Discount. A Grantor Trust Certificateholder that acquires an
undivided interest in Receivables may be subject to the market discount rules of
Sections 1276 though 1278 to the extent an undivided interest in a Receivable or
stripped bond is considered to have been purchased at a "market discount".
Generally, the amount of market discount is equal to the excess of the portion
of the principal amount of such Receivable or stripped bond allocable to such
holder's undivided interest over such holder's tax basis in such interest.
Market discount with respect to a Grantor Trust Certificate will be considered
to be zero if the amount allocable to the Grantor Trust Certificate is less than
0.25% of the Grantor Trust Certificate's stated redemption price at maturity
multiplied by the weighted average maturity remaining after the date of
purchase. Treasury regulations implementing the market discount rules have not
yet been issued; therefore, investors should consult their own tax advisors
regarding the application of these rules and the advisability of making any of
the elections allowed under Code Section 1276 and 1278.
The Code provides that any principal payment (whether a scheduled payment
or a prepayment) or any gain or disposition of a market discount bond shall be
treated as ordinary income to the extent that it does not exceed the accrued
market discount at the time of such payment. The amount of accrued market
discount for purposes of determining the tax treatment of subsequent principal
payments or dispositions of the market discount bond is to be reduced by the
amount so treated as ordinary income.
The Code also grants the Treasury Department authority to issue regulations
providing for the computation of accrued market discount on debt instruments,
the principal of which is payable in more than one installment. While the
Treasury Department has not yet issued regulations, rules described in the
relevant legislative history will apply. Under those rules, the holder of a
market discount bond may elect to accrue market discount either on the basis of
a constant interest rate or according to one of the following methods. If a
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Grantor Trust Certificate is issued with OID, the amount of market discount that
accrues during any accrual period would be equal to the product of (i) the total
remaining market discount and (ii) a fraction, the numerator of which is the OID
accruing during the period and the denominator of which is the total remaining
OID at the beginning of the accrual period. For Grantor Trust Certificates
issued without OID, the amount of market discount that accrues during a period
is equal to the product of (i) the total remaining market discount and (ii) a
fraction, the numerator of which is the amount of stated interest paid during
the accrual period and the denominator of which is the total amount of stated
interest remaining to be paid at the beginning of the accrual period. For
purposes of calculating market discount under any of the above methods in the
case of instruments (such as the Grantor Trust Certificates) that provide for
payments that may be accelerated by reason of prepayments of other obligations
securing such instruments, the same prepayment assumption applicable to
calculating the accrual of OID will apply. Because the regulations described
above have not been issued, it is impossible to predict what effect those
regulations might have on the tax treatment of a Grantor Trust Certificate
purchased at a discount or premium in the secondary market.
A holder who acquired a Grantor Trust Certificate at a market discount also
may be required to defer a portion of its interest deductions for the taxable
year attributable to any indebtedness incurred or continued to purchase or carry
such Grantor Trust Certificate purchased with market discount. For these
purposes, the de minimis rule referred to above applies. Any such deferred
interest expense would not exceed the market discount that accrues during such
taxable year and is, in general, allowed as a deduction not later than the year
in which such market discount is includible in income. If such holder elects to
include market discount in income currently as it accrues on all market discount
instruments acquired by such holder in that taxable year or thereafter, the
interest deferral rule described above will not apply.
Premium. To the extent a Grantor Trust Certificateholder is considered to
have purchased an undivided interest in a Receivable or stripped bond for an
amount that is greater than its stated redemption price at maturity of such
Receivable or stripped bond, such Grantor Trust Certificateholder will be
considered to have purchased the Receivable with "amortizable bond premium"
equal in amount to such excess. A Grantor Trust Certificateholder (who does not
hold the Certificate for sale to customers or in inventory) may elect under
Section 171 of the Code to amortize such premium. Under the Code, premium is
allocated among the interest payments on the Receivables or stripped bonds to
which it relates and is considered as an offset against (and thus a reduction
of) such interest payments. With certain exceptions, such an election would
apply to all debt instruments held or subsequently acquired by the electing
holder. Absent such an election, the premium will be deductible as an ordinary
loss only upon disposition of the Certificate or pro rata as principal is paid
on the Receivables or stripped bonds.
Election to Treat All Interest as OID. The OID regulations permit a Grantor
Trust Certificateholder to elect to accrue all interest, discount (including de
minimis market discount or original issue discount) and premium in income as
interest, based on a constant yield method. If such an election were to be made
with respect to a Grantor Trust Certificate with market discount, the
Certificate Owner would be deemed to have made an election to include in income
currently market discount with respect to all other debt instruments having
market discount that such Grantor Trust Certificateholder acquires during the
year of the election or thereafter. Similarly, a Grantor Trust Certificateholder
that makes this election for a Grantor Trust Certificate that is acquired at a
premium will be deemed to have made an election to amortize bond premium with
respect to all debt instruments having amortizable bond premium that such
Grantor Trust Certificateholder owns or acquires. See "-- Premium" herein. The
election to accrue interest, discount and premium on a constant yield method
with respect to a Grantor Trust Certificate is irrevocable.
Sale or Exchange of a Grantor Trust Certificate. Sale or exchange of a
Grantor Trust Certificate prior to its maturity will result in gain or loss
equal to the difference, if any, between the amount received and the owner's
adjusted basis in the Grantor Trust Certificate. Such adjusted basis generally
will equal the seller's purchase price for the Grantor Trust Certificate,
increased by the OID and any market discount included in the seller's gross
income with respect to the Grantor Trust Certificate, and reduced by any market
premium amortized by the Depositor and by principal payments on the Grantor
Trust Certificate previously received by the seller. Such gain or loss will be
capital gain or loss to an owner for which a Grantor Trust Certificate is a
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"capital asset" within the meaning of Section 1221 (except in the case of gain
attributable to accrued market discount, as noted above under "--Market
Discount"), and will be long-term or short-term depending on whether the Grantor
Trust Certificate has been owned for the long-term capital gain holding period
(currently more than one year).
Grantor Trust Certificates will be "evidences of indebtedness" within
the meaning of Section 582(c)(1), so that gain or loss recognized from the sale
of a Grantor Trust Certificate by a bank or a thrift institution to which such
section applies will be treated as ordinary income or loss.
Non-U.S. Persons. Interest or OID paid to non-U.S. Owners of Grantor
Trust Certificates will be treated as "portfolio interest" for purposes of
United States withholding tax. Such interest (including OID, if any)
attributable to the underlying Receivables will not be subject to the normal 30%
(or such lower rate provided for by an applicable tax treaty) withholding tax
imposed on such amounts provided that (i) the Non-U.S. Certificate Owner is not
a "10% shareholder" (within the definition of Section 871(h)(3)) of any obligor
on the Receivables; and is not a controlled foreign corporation (within the
definition of Section 957) related to any Obligor on the Receivables and (ii)
such Certificate Owner fulfills certain certification requirements. Under these
requirements, the Certificate Owner must certify, under penalty of perjury, that
it is not a "United States person" and must provide its name and address. For
this purpose "United States person" means a citizen or resident of the United
States, a corporation, partnership other entity created or organized in or under
the laws of the United States or any political subdivision thereof, or an estate
or trust the income of which is includible in gross income for United States
federal income tax purposes, without regard to its source. If, however, such
interest or gain is effectively connected to the conduct of a trade or business
within the United States by such Certificate Owner, such owner will be subject
to United States federal income tax thereon at graduated rates. Potential
investors who are not United States persons should consult their own tax
advisors regarding the specific tax consequences of owning a Certificate.
Information Reporting and Backup Withholding. The Servicer will furnish
or make available, within a reasonable time after the end of each calendar year,
to each person who was a Grantor Trust Certificateholder at any time during such
year, such information as may be deemed necessary or desirable to assist Grantor
Trust Certificateholders in preparing their federal income tax returns, or to
enable holders to make such information available to beneficial owners or
financial intermediaries that hold Grantor Trust Certificates as nominees on
behalf of beneficial owners. If a holder, beneficial owner, financial
intermediary or other recipient of a payment on behalf of a beneficial owner
fails to supply a certified taxpayer identification number or if the Secretary
of the Treasury determines that such person has not reported all interest and
dividend income required to be shown on its federal income tax return, 31%
backup withholding may be required with respect to any payments. Any amounts
deducted and withheld from a distribution to a recipient would be allowed as a
credit against such recipient's federal income tax liability.
* * *
THE FEDERAL TAX DISCUSSIONS SET FORTH ABOVE ARE INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A CERTIFICATEHOLDER'S
PARTICULAR TAX SITUATION. PROSPECTIVE PURCHASERS OF CERTIFICATES SHOULD CONSULT
THEIR TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF CERTIFICATES, INCLUDING THE TAX CONSEQUENCES UNDER
STATE, LOCAL AND FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES
IN FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Section 406 of ERISA, and Section 4975 of the Code prohibit a pension,
profit sharing or other employee benefit plan, as well as individual retirement
accounts and certain types of Keogh Plans (each, a "Plan"), from engaging in
certain transactions involving "plan assets" with persons that are "parties in
interest" under ERISA or "disqualified persons" under the Code with respect to
the Plan. ERISA also imposes certain duties on persons who are fiduciaries of
Plans subject to ERISA and prohibits certain transactions between a Plan and
parties in interest with respect to such Plans. Under ERISA, any person who
exercises any authority or control with respect to the management or disposition
of the assets of a Plan is considered to be a fiduciary of such Plan (subject to
certain exceptions not here relevant). A violation of these "prohibited
transaction" rules may generate excise tax and other liabilities under ERISA and
the Code for such persons.
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Certain transactions involving a Trust might be deemed to constitute
prohibited transactions under ERISA and the Code with respect to a Benefit Plan
that purchased Certificates if assets of the Trust were deemed to be assets of
the Benefit Plan. Under a regulation issued by the United Sates Department of
Labor (the "Plan Assets Regulations"), the assets of a Trust would be treated as
plan assets of a Benefit Plan for the purposes of ERISA and the Code only if the
Benefit Plan acquired an "equity interest" in the Trust and none of the
exceptions contained in the Plan Assets Regulation was applicable. An equity
interest is defined under the Plan Assets Regulation as an interest other than
an instrument that is treated as indebtedness under applicable local law and
which has no substantial equity features. The likely treatment in this context
of Certificates of a given Series will be discussed in the related Prospectus
Supplement.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to ERISA requirements.
A plan fiduciary considering the purchase of Certificates of a given Series
should consult its tax and/or legal advisors regarding whether the assets of the
related Trust would be considered plan assets, the possibility of exemptive
relief from the prohibited transaction rules and other issues and their
potential consequences.
The U.S. Department of Labor has granted to the underwriter (or in the case
of series offered by more than one underwriter, the lead underwriter) named in
each Prospectus Supplement an exemption (the "Exemption") from certain of the
prohibited transaction rules of ERISA with respect to the initial purchase, the
holding and the subsequent resale by Benefit Plans of certificates representing
interests in asset-backed pass-through trusts that consist of certain
receivables, loans and other obligations that meet the conditions and
requirements of the Exemption. The receivables covered by the Exemption include
motor vehicle installment sales contracts such as the Receivables. The Exemption
will apply to the acquisition, holding and resale of nonsubordinated
Certificates (referred to herein as "Senior Certificates") by a Plan, provided
that certain conditions (certain of which are described below) are met.
Among the conditions that must be satisfied for the Exemption to apply to
the Senior Certificates are the following:
(1) The Trust is considered to consist solely of obligations which
bear interest or are purchased at a discount and which are secured by motor
vehicles or equipment, or "qualified motor vehicle leases" (as defined in
the Exemption), property that had secured such obligations or qualified
motor vehicle leases, cash or temporary investments maturing no later than
the next date on which distributions are to be made to the Senior
Certificate Owners, and rights of the Trustee under the Pooling and
Servicing Agreement and under credit support arrangements with respect to
such obligations or qualified motor vehicle leases.
(2) The acquisition of the Senior Certificates by a Plan is on terms
(including the price for the Senior Certificates) that are at least as
favorable to the Plan as they would be in an arm's length transaction with
an unrelated party;
(3) The rights and interests evidenced by the Senior Certificates
acquired by the Plan are not subordinated to the rights and interests
evidenced by other certificates of the Trust;
(4) The Senior Certificates acquired by the Plan have received a
rating at the time of such acquisition that is in one of the three highest
generic rating categories from either Standard & Poor's Ratings Group,
Moody's Investors Service, Inc., Duff & Phelps Credit Rating Co. or Fitch
Investors Service, L.P.;
(5) The related Trustee is not an affiliate of any other member of the
Restricted Group (as defined below);
(6) The sum of all payments made to the underwriters in connection
with the distribution of the Senior Certificates represents not more than
reasonable compensation for underwriting the Senior Certificates; the sum
of all payments made to and retained by the Depositor pursuant to the sale
of the Contracts to the related Trust represents not more than the fair
market value of such Contracts; and the sum of all payments made to and
retained by the Servicer represents not more than reasonable compensation
for the Servicer's services under the related Pooling and Servicing
Agreement and reimbursement of the Servicer's reasonable expenses in
connection therewith; and
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(7) The Plan investing in the Senior Certificates is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D of the Commission
under the Securities Act of 1933, as amended.
Moreover, the Exemption would provide relief from certain
self-dealing/conflict of interest or prohibited transactions only if, among
other requirements, (i) in the case of the acquisition of Senior Certificates in
connection with the initial issuance, at least fifty percent of the Senior
Certificates are acquired by persons independent of the Restricted Group (as
defined below), (ii) the Benefit Plan's investment in Senior Certificates does
not exceed twenty-five percent of all of the Senior Certificates outstanding at
the time of the acquisition and (ii) immediately after the acquisition, no more
than twenty-five percent of the assets of the benefit Plan are invested in
certificates representing an interest in one or more trusts containing assets
sold or serviced by the same entity. The Exemption does not apply to Plans
sponsored by the Depositor, any underwriter, the related Trustee, the Servicer,
any obligor with respect to Contracts included in the related Trust constituting
more than five percent of the aggregate unamortized principal balance of the
assets in the Trust, or any affiliate of such parties (the "Restricted Group").
As mentioned above, whether or not the Exemption will apply to the purchase
and holding of Senior Certificates by Plans will depend on, among other things,
whether the Trust consists solely of permitted assets. The Exemption provides
that a Trust may include, among other assets, undistributed cash or temporary
investments made therewith maturing no later than the next date on which
distributions are to be made to Certificateholders. There can be no assurance
that the cash or Eligible Investments in the Cash Collateral Account and the
Yield Supplement Account or the cash or Eligible Investments in the Pre-Funding
Account or Pre-Funding Reserve Account held by the Trust would meet this
definition, and not render the Exemption inapplicable. In view of the foregoing,
any Plan fiduciary who proposes to cause a Plan to purchase Senior Certificates
should consult with its own counsel with respect to the applicability of the
Exemption and should determine whether all of the conditions of the Exemption
have been satisfied.
PLAN OF DISTRIBUTION
On the terms and conditions set forth in an underwriting agreement with
respect to a given Series (the "Underwriting Agreement"), the Depositor will
agree to cause the related Trust to sell to the underwriters named therein and
in the related Prospectus Supplement, and each of such underwriters will
severally agree to purchase, the principal amount of each class of Certificates
of the related Series set forth therein and in the related Prospectus
Supplement.
In each Underwriting Agreement, the several underwriters will agree,
subject to the terms and conditions set forth therein, to purchase all of the
Certificates described therein that are offered hereby and by the related
Prospectus Supplement if any of such Certificates are purchased.
Each Prospectus Supplement will either (i) set forth the price at which
each class of Certificates being offered thereby will be offered to the public
and any concessions that may be offered to certain dealers participating in the
offering of such Certificates or (ii) specify that the related Certificates are
to be resold by the underwriters in negotiated transactions at varying prices to
be determined at the time of such sale. After the initial public offering of any
such Certificates, such public offering prices and such concessions may be
changed.
Each Underwriting Agreement will provide that UAC and the Depositor will
indemnify the related underwriters against certain civil liabilities, including
liabilities under the Securities Act, or contribute to payments the several
underwriters may be required to make in respect thereof.
Each Trust may, from time to time, invest the funds in the related Accounts
in Eligible Investments acquired from such underwriters.
Pursuant to each Underwriting Agreement, the closing of the sale of any
class of Certificates subject thereto will be conditioned on the closing of the
sale of all other classes of Certificates of such Series.
The place and time of delivery for the Certificates in respect of which
this Prospectus is delivered will be set forth in the related Prospectus
Supplement.
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LEGAL MATTERS
Certain legal matters relating to the Certificates of any Series will be
passed upon for the related Trust, the Depositor and the Servicer by Barnes &
Thornburg, Indianapolis, Indiana, and for the underwriters by Cadwalader,
Wickersham & Taft, New York, New York or such other firm as shall be identified
in the related Prospectus Supplement. Certain federal income tax and other
matters will be passed upon for each Trust by Cadwalader, Wickersham & Taft,
Barnes & Thornburg or such other firm as shall be identified in the related
Prospectus Supplement.
INDEX OF PRINCIPAL TERMS
Set forth below is a list of certain of the more significant terms used in
this Prospectus and the pages on which the definitions of such terms may be
found herein.
TERM PAGE
Actuarial Receivables............................................. 17
Advance ........................................................ 7
Approved Rating................................................... 24
Cash Collateral Account........................................... 26
Cede ............................................................ 13
Certificate Account ............................................. 23
Certificate Balance ............................................ 5
Certificate Owners ..............................................19, 34
Certificate Pool Factor ......................................... 17
Certificateholders ............................................ 14
Certificates ................................................... 1
Class Certificate Balance ...................................... 3
Closing Date .................................................... 5
Code ............................................................ 34
Collection Period ............................................... 7
Commission ..................................................... 2
Contracts......................................................... 5
Contract Rate..................................................... 8
Cutoff Date .................................................... 4
Dealers ........................................................ 5
Definitive Certificates ......................................... 20
Depositor......................................................... 3
Distribution Date ............................................... 18
DTC ............................................................. 13
Eligible Deposit Account ....................................... 24
Eligible Institution ........................................... 24
Eligible Investments ............................................ 23
ERISA ........................................................... 10
Events of Default ............................................... 28
Exchange Act...................................................... 2
Exemption......................................................... 42
Federal Tax Counsel............................................... 9
Final Scheduled Distribution Date................................. 24
Final Scheduled Maturity Date .................................. 8
Financed Vehicles ............................................... 4
FTC Rule ........................................................ 32
Funding Period ................................................. 6
Grantor Trust Certificates ...................................... 38
Grantor Trust Certificateholder................................... 38
Indirect Participants .......................................... 19
Insolvency Event ................................................ 29
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Insolvency Laws................................................... 18
Investment Earnings ............................................. 28
Investment Income................................................. 23
Investment Shortfall.............................................. 7
IRS ............................................................. 38
Obligor ........................................................ 8
OID ............................................................ 34
Participants ................................................... 19
Pass-Through Rate ............................................. 3
Payaheads......................................................... 16
Payahead Account ............................................... 23
Plan ............................................................ 41
Plan Asset Regulation............................................. 42
Pooling and Servicing Agreement ................................ 3
Pool Balance...................................................... 8
Precomputed Receivables ........................................ 16
Predecessor....................................................... 5
Pre-Funded Amount ............................................. 5
Pre-Funding Account ........................................... 5,23
Prospectus Supplement .......................................... 1
Purchase Agreement................................................ 5
Purchase Amount ................................................. 22
Rating Agencies ................................................ 9
Receivables ................................................... 1, 4
Receivables Pool ................................................ 13
Registration Statement ......................................... 2
Restricted Group.................................................. 43
Rules .......................................................... 19
Rule of 78's Receivables.......................................... 16
Senior Certificates .............................................. 42
Series ......................................................... 1
Servicer ....................................................... 3
Servicer Default ................................................ 32
Servicing Fee .................................................. 25
Servicing Fee Rate .............................................. 25
Short-Term Note ................................................. 40
Simple Interest Receivables ..................................... 15
Strip Certificates ............................................. 3
Subsequent Receivables ........................................ 6
Subsequent Transfer Date ......................................... 10
Transfer and Servicing Agreements ................................ 21
Trust ......................................................... 1
Trust Accounts ................................................. 23
Trustee ....................................................... 3
UAFC.............................................................. 5
UCC ............................................................ 19
Underwriting Agreement .......................................... 43
45
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses in connection with the offering of the Certificates being
registered herein are estimated as follows:
(1) SEC registration fee ..................................... $
------------
Legal fees and expenses .................................. 480,000.00
Accounting fees and expenses ............................. 64,000.00
Blue sky fees and expenses ............................... 6,000.00
Rating agency fees ....................................... 560,000.00
Trustees' fees and expenses .............................. 34,000.00
Printing ................................................. 60,000.00
Miscellaneous ............................................ 800,000.00
----------
Total................................................. $
------------
- - - - ------------
(1) To be provided by amendment.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation may indemnify any persons, including officers and
directors, who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such claim, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe that his or her conduct was
illegal. A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify such officer or director
against the expenses that such officer or director actually and reasonably
incurred.
The Bylaws of UAC Securitization Corporation provide for indemnification of
officers and directors to the full extent permitted by the Delaware General
Corporation Law.
The Pooling and Servicing Agreement provides that the Servicer, any
subservicer and the partners, directors, officers, employees or agents of any of
them will be entitled to indemnification by the Trust and will be held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to the Pooling and Servicing Agreement or the Certificates,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of such persons
duties thereunder or by reason of reckless disregard of such persons obligations
and duties thereunder.
II-1
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Item 16. Exhibits.
1 Underwriting Agreement Standard Provisions for UACSC
Trusts
3 Certificate of Incorporation and Bylaws of UAC
Securitization Corporation (incorporated by reference to
Exhibit 3 to Form S-3 of UACSC 1995-A Grantor Trust, Reg.
No. 33- 88352)
4.1(a) Form of Pooling and Servicing Agreement for Grantor
Trusts including form of Certificates (incorporated by
reference to Exhibit 4.1(a) to Form S-3 Amendment No. 1
of UACSC Auto Trusts, Reg. No. 33-97320)
4.1(b) Form of Standard Terms and Conditions of UACSC Grantor
Trusts (incorporated by reference to Exhibit 4.1(b) to
Form S-3 Amendment No. 1 of UACSC Auto Trusts, Reg. No.
33- 97320)
4.2 Form of Pooling and Servicing Agreement for trusts other
than Grantor Trusts, including form of Certificates
* 5(a) Opinion of Barnes & Thornburg with respect to
legality of the Certificates, dated _____________, 199___
* 5(b) Opinion of Cadwalader, Wickersham & Taft with respect
to legality of the Certificates, dated _________________,
199___
* 8 Opinion of Cadwalader, Wickersham & Taft with respect
to tax matters, dated ___________, 199___
10 Form of Purchase Agreement
* 23(a) Consent of Barnes & Thornburg (included in Exhibit 5.(a))
* 23(b) Consent of Cadwalader, Wickersham & Taft (included in
Exhibit 5(b))
* 23(c) Consent of Cadwalader, Wickersham & Taft (included in
Exhibit 8)
24 Power of Attorney (included on page II-4)
- - - - ----------------------
* To be provided by amendment.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes as follows:
(a) To file during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(d) For purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual reports pursuant to Section 13(a) or
Section 15(d) of the Certificates Exchange Act of 1934 that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE>
(e) To provide to the Underwriters at the closing specified in the
Underwriting Agreements certificates in such denominations and registered
in such names as required by the Underwriters to provide prompt delivery to
each purchaser.
(f) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission (the "Commission") such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
(g) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(h) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Indianapolis, State of Indiana, on June 27, 1996.
UAC SECURITIZATION CORPORATION
as Depositor
(Registrant)
By /s/ John M. Stainbrook
-------------------------------
John M. Stainbrook
President
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes John M.
Stainbrook and Cynthia F. Whitaker, and each of them, to file one or more
amendments (including post-effective amendments) to be the registration
statement, which amendments may make such changes in the registration statement
as either of them deem appropriate, and each such person hereby appoints John M.
Stainbrook and Cynthia F. Whitaker, and each of them, as attorney-in-fact to
execute in the name and on the behalf of each person individually, and in each
capacity stated below, and such amendments to the registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
UAC SECURITIZATION CORPORATION Date: June 27, 1996
Signature Title
---------------------- ------------------------
/s/ John M. Stainbrook President and Director
----------------------------- (Principal Executive Officer)
John M. Stainbrook
/s/ Rick A. Brown
----------------------------- Treasurer (Principal Financial
Rick A. Brown and Accounting Officer)
/s/ Jerry D. Von Deylen
----------------------------- Director
Jerry D. Von Deylen
/s/ Cynthia F. Whitaker
----------------------------- Director
Cynthia F. Whitaker
/s/ Amanda D. Foster
----------------------------- Director
Amanda D. Foster
/s/ Thomas J. Kelleher, III
----------------------------- Director
Thomas J. Kelleher, III
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Page
- - - - ----------- ----
1 Underwriting Agreement Standard Provisions
for UACSC Trusts
3 Certificate of Incorporation and Bylaws of
UAC Securitization Corporation (incorporated
by reference to Exhibit 3 to Form S-3 of
UACSC 1995-A Grantor Trust, Reg. No.
33-88352)
4.1(a) Form of Pooling and Servicing Agreement for
Grantor Trusts including form of Certificates
(incorporated by reference to Exhibit 4.1(a)
to Form S-3 Amendment No. 1 of UACSC Auto
Trusts, Reg. No. 33-97320)
4.1(b) Form of Standard Terms and Conditions of
UACSC Grantor Trusts (incorporated by
reference to Exhibit 4.1(b) to Form S-3
Amendment No. 1 of UACSC Auto Trusts, Reg.
No. 33-97320)
4.2 Form of Pooling and Servicing Agreement for
trusts other than grantor trusts
(including form of Certificates)
* 5(a) Opinion of Barnes & Thornburg with respect to
legality of the Certificates, dated
_______________, 199__
* 5(b) Opinion of Cadwalader, Wickersham & Taft with
respect to legality of the Certificates,
dated ____________, 199__
* 8 Opinion of Cadwalader, Wickersham & Taft
with respect to tax matters, ____ dated
November 13, 1995
10 Form of Purchase Agreement
* 23(a) Consent of Barnes & Thornburg (included in
Exhibit 5(a))
* 23(b) Consent of Cadwalader, Wickersham & Taft
(included in Exhibit 5(b))
* 23(c) Consent of Cadwalader, Wickersham & Taft
(included in Exhibit 8)
24 Power of Attorney (included on page II-4)
- - - - -------
* To be provided by Amendment.
UAC SECURITIZATION CORPORATION
UNION ACCEPTANCE CORPORATION
AND
[ ]
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FOR
UACSC TRUSTS
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES
________________, 199___
<PAGE>
[ ], as
representative of the several
Underwriters named in the
respective Underwriting
Agreements hereinafter described
______________, 199__
Dear Sirs:
From time to time, UAC Securitization Corporation ("UACSC"), and Union
Acceptance Corporation ("UAC") may enter into one or more underwriting
agreements that provide for the sale of Securities (as defined herein) to you
and to such other underwriters as may be named therein. The standard provisions
set forth herein may be incorporated by reference in any such underwriting
agreement (each, an "Underwriting Agreement"). Any such Underwriting Agreement
shall be in the form of Annex I hereto, with such additions and deletions as the
parties thereto may determine. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined, and terms not
otherwise defined in this Agreement are used herein as defined in the Pooling
and Servicing Agreement referred to below.
I.
UACSC proposes to sell to the several underwriters named in the
Underwriting Agreement automobile receivable pass-through certificates (the
"Securities") representing undivided interests in a trust fund including a pool
of automotive retail installment sale contracts, or other similar evidences of
installment indebtedness, secured by new and used automobiles and light trucks
(the "Receivables"). The Securities will be issued by a trust (the "Trust")
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement") between UACSC and the bank or trust company or other financial
institution identified as trustee therein (the "Trustee"). The terms and rights
of any particular issuance of Securities shall be as specified in the
Underwriting Agreement relating thereto and in or pursuant to the Pooling and
Servicing Agreement identified in such Underwriting Agreement. The Securities
which are the subject of any particular Underwriting Agreement into which these
Standard Provisions are incorporated are herein referred to as the "Offered
Securities." The Securities will represent undivided interests in a trust fund
consisting of a pool of the Receivables, all monies due thereunder after a
specified date, security interests in the vehicles financed thereunder, and
other instruments, funds, and accounts as may be specified in the Pooling and
Servicing Agreement (collectively, the "Trust Fund"). The Securities with
respect to each Underwriting Agreement and the related Pooling and Servicing
Agreement shall be issued with the title and in the amount set forth in such
Underwriting Agreement.
<PAGE>
Particular sales of Securities may be made from time to time to you, or
to the Underwriters named in the Underwriting Agreement, for whom you, or you
together with such other firm or firms specified in the Underwriting Agreement,
will act as representatives (the "Representatives"). The terms "Representatives"
and "Underwriters" shall mean you in such instances where you act as sole
Underwriters. The standard provisions set forth herein shall not be construed as
an obligation of UACSC to sell any of the Securities or as an obligation of any
of the Underwriters to purchase the Securities. The obligation of UACSC to sell
any of the Securities and the obligation of any of the Underwriters to purchase
any of the Securities shall be evidenced by the Underwriting Agreement with
respect to the Securities specified therein. Each Underwriting Agreement shall
specify the aggregate original principal amount of such Securities or, if
applicable, an indication that the offering will be an at-the-market offering,
the purchase by the Underwriters of such Securities, the names of the
Representatives of such Underwriters (if applicable), and the aggregate original
principal amount of such Securities to be purchased by each Underwriter and
shall set forth the date, time, and delivery of such Securities and the manner
of payment therefor. The Underwriting Agreement shall also specify (to the
extent not set forth in the Pooling and Servicing Agreement and the registration
statement and prospectus with respect thereto) the terms of such Securities. An
Underwriting Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communication or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligation of the Underwriters
under an Underwriting Agreement shall be several and not joint.
II.
Representations and Warranties. UACSC represents and warrants to, and
agrees with, each Underwriter of any Offered Securities as of the date hereof
and as of the date of any Underwriting Agreement that:
(a) A registration statement on Form S-1 or S-3, including a
prospectus, relating to the Certificates has been filed with the
Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Act of 1933, as amended (the "Act"), and such registration
statement may have been amended. If the registration statement has been
filed on form S-3, UACSC is eligible to use Form S-3 in connection with
the offer and sale of the Offered Securities. UACSC, as registrant,
will file with the Commission either, prior to effectiveness of such
registration statement, an amendment thereto (including the form of
final prospectus and prospectus supplement) or, after effectiveness of
such registration statement, a final prospectus and/or prospectus
supplement in accordance with Rules 430A and 424(b)(1) or (4). As
filed, such amendment and form of final prospectus and prospectus
supplement, or such final prospectus and/or prospectus supplement,
shall include all Rule 430A Information and, except to the extent that
the Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the
-2-
<PAGE>
form furnished to the Underwriters prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as UACSC has advised
the Underwriters, prior to the Execution Time, will be included or made
therein.
As used herein, the term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. "Execution Time"
shall mean the date and time that the Underwriting Agreement is
executed and delivered by the parties thereto. "Preliminary Prospectus"
shall mean any preliminary prospectus and prospectus supplement
referred to in the preceding paragraph and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information. "Prospectus" shall mean the prospectus and/or
prospectus supplement relating to the Certificates that is filed
pursuant to Rule 424(b) in respect of the Offered Securities or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus and prospectus supplement included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean
the registration statement referred to in the preceding paragraph,
including incorporated documents, exhibits and financial statements, in
the form in which it has or shall become effective and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended; such term shall include Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 424" and "Rule 430A" refer to such rules
under the Act. "Rule 430A Information" means information with respect
to the Offered Securities and the offering thereof permitted to be
omitted from the Registration Statement, at the Effective Date,
pursuant to Rule 430A.
(b) On the Effective Date, the Registration Statement did or
will, and, when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations"); on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that UACSC makes no representations
or warranties as to the information contained in or omitted from the
-3-
<PAGE>
Registration Statement, or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with written information furnished
to UACSC by or on behalf of the Underwriters specifically for use in
connection with preparation of the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The computer tape of the Receivables underlying the
Offered Securities made available to the Representatives by UACSC was
complete and accurate as of the date that it was delivered to the
Representatives and includes a description of the Receivables that are
described in the "Schedule of Receivables" that will be an exhibit to
the Pooling and Servicing Agreement.
(d) UACSC has been duly incorporated and is validly existing
as a corporation under the laws of the State of Delaware and has
corporate and other power and authority to own its properties and
conduct its business, as now conducted by it, and to enter into and
perform its obligations under this Agreement, the Underwriting
Agreement, and the Pooling and Servicing Agreement. UAC has been duly
incorporated and is validly existing under the laws of the State of
Indiana, UAFC has been duly incorporated and is validly existing under
the laws of the State of Delaware, and each of UAC and UAFC has
corporate and other power and authority to own its properties and
conduct its business, as now conducted by it. All other subsidiaries of
UAC have been duly incorporated and are validly existing under the laws
of the State of their incorporation and have corporate and other power
and authority to own their properties and conduct their businesses, as
now conducted by them.
(e) UACSC is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose or (iii) any notification with respect to
the suspension of the qualification of the Offered Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(f) This Agreement has been duly authorized, executed, and
delivered by UACSC, the Underwriting Agreement, the Purchase Agreement
and the Pooling and Servicing Agreement, when delivered by UACSC, will
each have been duly authorized, executed, and delivered by UACSC, and
these agreements will each constitute a legal, valid, and binding
agreement of UACSC, enforceable against UACSC in accordance with its
terms, subject, as to the enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium, receivership, and
other similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
-4-
<PAGE>
(g) The Offered Securities will conform in all material
respects to the description thereof contained in the Prospectus and,
assuming that the Offered Securities have been duly and validly
authorized, executed, and issued by the Trustee in accordance with the
Pooling and Servicing Agreement, will, when duly and validly
authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Underwriting
Agreement, be entitled to the benefits of the Pooling and Servicing
Agreement.
(h) As of the Closing Date, each of the Receivables will meet
the criteria for selection described in the Prospectus, and on such
Closing Date the representations and warranties of UACSC with respect
to the Receivables contained in the Pooling and Servicing Agreement
will be true and correct.
(i) Neither the sale of the Offered Securities, nor the
consummation of any other of the transactions herein contemplated, nor
the fulfillment of the terms of the Pooling and Servicing Agreement, or
this Agreement, or the Underwriting Agreement, will constitute a breach
of any term or provision of the certificate of incorporation or by-laws
of UACSC, or conflict with or constitute a breach, violation, or
acceleration of or a default under the terms of any indenture or other
material agreement or instrument to which UACSC is a party or by which
it is bound, or any statute, regulation, or order applicable to UACSC
of any governmental body, administrative agency, regulatory body, or
court having jurisdiction over UACSC or UACSC's material properties.
UACSC is not a party to, bound by or in breach or violation of any
indenture or other material agreement or instrument, or subject to or
in violation of any statute, regulation, or order of any governmental
body, administrative agency, regulatory body, or court having
jurisdiction over it, that materially and adversely affects or would in
the future materially and adversely affect (i) the ability of UACSC to
perform its obligations under this Agreement, the Underwriting
Agreement, the Purchase Agreement or the Pooling and Servicing
Agreement or (ii) the business, operations, or financial condition, or
the material properties or assets of UACSC.
(j) There are no actions or proceedings against, or
investigations of, UACSC pending or, to the knowledge of UACSC,
threatened before any court, administrative agency, or other tribunal
(i) asserting the invalidity of this Agreement, the Underwriting
Agreement, the Purchase Agreement, the Pooling and Servicing Agreement,
or the Offered Securities, (ii) seeking to prevent the issuance of the
Offered Securities or the consummation of any of the transactions
contemplated by this Agreement, the Underwriting Agreement, or the
Pooling and Servicing Agreement, (iii) that might materially and
adversely affect the performance by UACSC of its obligations under, or
the validity or enforceability of, this Agreement, the Underwriting
Agreement, the Pooling and Servicing Agreement, or the Offered
Securities, (iv) seeking to affect adversely the federal income tax
attributes of the Offered Securities described in the Prospectus, or
(v) that if determined adversely as
-5-
<PAGE>
to UACSC would have a material adverse effect on the business,
operations, or financial condition or the material properties or assets
of UACSC.
(k) There has not been any material adverse change, or
development involving a material adverse prospective change, in the
business, operations, or financial condition or the material properties
or assets of UACSC and UAC, taken as a whole, since the end of the most
recent fiscal quarter for which publicly available earnings statements
were delivered to the Representatives prior to the date of the related
Underwriting Agreement.
(l) Any taxes, fees, and other governmental charges in
connection with the execution and delivery of this Agreement, the
Underwriting Agreement, and the Pooling and Servicing Agreement and the
execution, delivery, and sale of the Offered Securities have been or
will be paid at or before the Closing Date.
III.
Purchase By the Underwriters. The Offered Securities to be purchased by
the Underwriters pursuant to the Underwriting Agreement relating thereto, in
definitive form to the extent practicable, and in such authorized denominations
and registered in such names as the Underwriters may request upon three full
Business Days prior notice to UACSC, shall be delivered by or on behalf of UACSC
to the Representatives for the account of such Underwriters, against payment by
such Underwriters or on such Underwriters' behalf of the purchase price therefor
(i) by wire transfer or by certified or official bank check or checks, payable
to the order of UACSC in immediately available funds, or (ii) by such other
means and in such other form as is specified in the Underwriting Agreement, all
at the place, time, and date specified in the Underwriting Agreement or at such
other place, time, and date as the Underwriters and UACSC may agree upon in
writing, such time and date being herein called the "Closing Date" for such
Offered Securities.
UACSC agrees to have the Offered Securities available for inspection,
checking, and packaging by the Representatives in New York, New York (or such
other location as may be specified by the Representatives) not later than 10:00
A.M. on the Business Day prior to the Closing Date.
IV.
Offering by the Underwriters. UACSC is advised by the Representatives
that upon the execution of the Underwriting Agreement and authorization by the
Representatives of the release of such Offered Securities, the Underwriters
propose to offer such Offered Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented. The Underwriters intend
to make a market in the Offered Securities, as permitted by the applicable laws
and regulations. The Underwriters are not obligated to
-6-
<PAGE>
make a market in the Offered Securities and any such market-making may be
discontinued at any time in the Underwriters' sole discretion.
V.
Agreements. UACSC agrees with each of the Underwriters of any Offered
Securities that:
(a) UACSC will promptly advise each such Underwriter (i) when
any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv)
of the receipt by UACSC of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. UACSC will not file any amendment to the Registration
Statement or supplement to the Prospectus after the date of the
Underwriting Agreement and prior to the Closing Date for such Offered
Securities unless UACSC has furnished each such Underwriter a copy for
its review prior to filing and will not file any such proposed
amendment or supplement to which any such Underwriter reasonably
objects. Subject to the foregoing sentence, UACSC will cause the
Prospectus, as supplemented or amended, to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in timely filing with the Commission
pursuant to said rule. UACSC will use its best efforts to prevent the
issuance of any stop order suspending the effectiveness of the
Registration Statement and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the rules under the Act, UACSC
will promptly prepare and file with the Commission, subject to
paragraph (a) of this Article V, an amendment or supplement that will
correct such statement or omission or an amendment that will effect
such compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment to the Registration Statement,
will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible.
-7-
<PAGE>
(c) UACSC will furnish to the Underwriters, without charge,
executed copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by the Underwriters
or a dealer may be required by the Act, as many copies of the
Prospectus, as amended or supplemented, and any amendments and
supplements thereto as the Underwriters may reasonably request. UACSC
will pay the expenses of printing all offering documents relating to
the offering of the Offered Securities.
(d) UACSC agrees that, so long as the Offered Securities shall
be outstanding, it will deliver or cause to be delivered to the
Representatives the annual statement as to compliance delivered to the
Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the
Trustee pursuant to the Pooling and Servicing Agreement, as soon as
such statements are furnished to UACSC.
(e) As soon as practicable, but not later than sixteen months
after the effective date of the Registration Statement, UACSC will
cause the Trust to make generally available to securityholders of the
Trust an earnings statement of the Trust covering a period of at least
12 months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the Act
and, at the option of UACSC, will satisfy the requirements of Rule 158
under the Act.
(f) UACSC will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify
the Offered Securities for sale (including, but not limited to, such
action as may be required for the qualification or exemption of the
sale of the Offered Securities under state securities or Blue Sky laws)
and to determine their eligibility for investment under the laws of
such jurisdictions as the Underwriters may designate and will maintain
such qualification in effect so long as required for the distribution
of the Offered Securities. UACSC will furnish such information, execute
such instruments and take such action, if any, as the Underwriters may
reasonably request in connection with any filing with the National
Association of Securities Dealers, Inc. relating to the Offered
Securities should the Underwriters determine that such filing is
required or appropriate.
(g) UACSC will pay all costs and expenses in connection with
the transactions herein contemplated, including, but not limited to,
the fees and disbursements of its counsel; the costs and expenses of
printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement, and the Underwriting Agreement, and printing or
engraving and distributing the Offered Securities; any transfer taxes
relating to the transfer of the Offered Securities to the Underwriters;
accounting fees and disbursements; the costs and expenses in connection
with the qualification or exemption of the sale of the Offered
Securities under state securities or Blue Sky laws and the
determination of their eligibility for
-8-
<PAGE>
investment under state and federal laws, including filing fees and
reasonable fees and disbursements of counsel in connection therewith
and the costs and expenses of preparing and distributing any memoranda
concerning the Offered Securities' eligibility for investment; the cost
and expenses in connection with the preparation, printing, and filing
of the Registration Statement (including exhibits thereto) and the
Prospectus and amendments and supplements thereto, the preparation and
printing of this Agreement and any Underwriting Agreement and the
furnishing to the Underwriters of such copies of each Preliminary
Prospectus, Prospectus, and any amendments and supplements thereto as
the Underwriters may reasonably request, the fees of the rating agency
that initially rates the Offered Securities, and any filing fees of the
National Association of Securities Dealers, Inc. relating to the
Offered Securities should the Underwriters determine that such filing
is required or appropriate. Except as expressly provided in the
Underwriting Agreement, UACSC shall not be obligated to pay the fees or
disbursements of the Underwriters' counsel.
(h) During a period of 20 calendar days from the date as of
which the respective Underwriting Agreement is executed, neither UACSC
nor any affiliate of UACSC will, without the Underwriters' prior
written consent (which consent shall not be unreasonably withheld),
enter into any agreement to offer or sell receivables or securities as
identified in such Underwriting Agreement.
(i) So long as any of the Offered Securities are outstanding,
UACSC will furnish to the Underwriters as soon as practicable after the
end of the fiscal year, (i) all documents required to be distributed to
securityholders of the Trust or filed with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any order of the Commission thereunder and (ii) from time to time,
any other information concerning UACSC filed with any government or
regulatory authority that is otherwise publicly available, as the
Underwriters may reasonably request.
(j) On or before the Closing Date UACSC shall cause its
computer records relating to the Receivables to be marked in such a
manner as shall clearly indicate the Trust's absolute ownership of the
Receivables, and from and after the Closing Date UACSC shall not take
any action inconsistent with the Trust's ownership of such Receivables,
other than as permitted by the Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Offered Securities by the rating agency that initially
rates the Offered Securities is conditional upon the furnishing of
documents or the taking of any other actions by UACSC, UACSC shall, as
soon as practicable, furnish such documents and take any such other
actions.
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<PAGE>
VI.
Conditions to the Obligations of the Underwriters. The obligation of
the Underwriters of any Offered Securities under the Underwriting Agreement to
purchase the Offered Securities shall be subject to the accuracy of the
representations and warranties on the part of UACSC contained herein as of the
date hereof and the Closing Date, to the accuracy of the statements of UACSC
made in any certificates pursuant to the provisions hereof, to the performance
by UACSC of its obligations hereunder and to the following additional conditions
with respect to the Offered Securities:
(a) The Registration Statement shall have become effective not
later than 4:00 p.m., New York City time, on the day following the date
of the Underwriting Agreement; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened; and the Prospectus shall have been timely filed with the
Commission pursuant to Rule 424(b) under the Act.
(b) The Underwriters shall have received from Barnes &
Thornburg and Barrett & McNagny, counsel for UACSC, favorable opinions,
dated the Closing Date and satisfactory in form and substance to
counsel for the Underwriters, to the effect set forth in Exhibit A.
Such opinions (a) may express reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by, officers of the parties to this Agreement, the
Underwriting Agreement, and the Pooling and Servicing Agreement, (b)
may assume the due authorization, execution, and delivery of the
instruments and documents referred to therein by the parties thereto
other than UACSC, and (c) to the extent such opinion relates to law
other than the laws of the State of Indiana and the federal laws of the
United States, may rely on a favorable opinion of local counsel
satisfactory to the Representatives, dated the Closing Date, and
satisfactory in form and substance to counsel for the Underwriters. The
counsel for UACSC will also deliver an opinion to the Underwriters,
dated the Closing Date and satisfactory in form and substance to
counsel for the Underwriters with respect to the characterization of
the transfer of the Receivables from UACSC to the Trust as a sale.
(c) The Underwriters shall have received from counsel for the
Underwriters, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters.
(d) The Underwriters shall have received on the Closing Date,
addressed to the Underwriters and dated the Closing Date, any opinion
delivered to the rating agency in connection with its rating of the
Offered Securities.
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<PAGE>
(e) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion dated the Closing Date and satisfactory in
form and substance to counsel for the Underwriters, to the effect set
forth in Exhibit B.
(f) The Underwriters shall have received a favorable opinion
addressed to the Underwriters and UACSC from counsel for the third
party credit enhancer, if any, dated the Closing Date and satisfactory
in form and substance to counsel for the Underwriters and UACSC, to the
effect set forth in Exhibit C.
(g) The Offered Securities shall be rated in the highest
category by a nationally recognized rating agency or such other
category as shall be designated in the Underwriting Agreement. Further,
subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not
indicate the direction of a possible change, in the rating accorded (i)
the Offered Securities by any nationally recognized rating agency which
rates the Offered Securities, (ii) any rated debt instrument issued by
UACSC or (iii) any rated debt instrument issued by the third party
credit enhancer, if any.
(h) UACSC and UAC will enter into the Pooling and Servicing
Agreement at or before the Closing Date and, when delivered by UACSC
and UAC, the Pooling and Servicing Agreement will have been duly
authorized, executed, and delivered by UACSC and UAC and will
constitute the legal, valid, and binding agreement of UACSC and UAC.
(i) UACSC shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President or a Vice
President of UACSC to the effect that the signer of such certificate
has carefully examined this Agreement, the Underwriting Agreement, and
the Pooling and Servicing Agreement and to the effect that: (i) the
representations and warranties of UACSC contained in such agreements
are true and current in all material respects at and as of the Closing
Date with the same effect as if made at the Closing Date, (ii) UACSC
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date, (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to UACSC's knowledge threatened, (iv)
there shall have been no material adverse change in the condition of
UACSC and any of its subsidiaries, taken as a whole, from that set
forth in the Registration Statement, (v) nothing has come to his
attention that would lead him to believe that the Prospectus contains
any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (vi)
UACSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
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<PAGE>
Delaware with corporate and other power and authority to own its
properties and conduct its business, as now conducted by it, and to
enter into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement, (vii) each of UAC and UAFC has been
duly incorporated and is validly existing under the laws of the State
of its incorporation and has corporate and other power and authority to
own its properties and conduct its business, as now conducted by it,
(viii) all other subsidiaries of UAC that have engaged in any business
activity have been duly incorporated and are validly existing under the
laws of the State of their incorporation and have corporate and other
power and authority to own their properties and conduct their
businesses, as now conducted by them, (ix) this Agreement and the
Pooling and Servicing Agreement have been duly authorized, executed,
and delivered by UACSC, (x) the fulfillment of the terms of this
Agreement and the Pooling and Servicing Agreement will not constitute a
breach of any term or provision of the charter or by-laws of UACSC, or
conflict with or constitute a breach, violation, or acceleration of or
a default under, the terms of any indenture or other material agreement
or instrument to which UACSC is a party, and (xi) UACSC is not a party
to, bound by, or in breach or violation of any indenture or other
material agreement or instrument, or subject to or in violation of any
statute, regulation, or order of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over UACSC, that
materially and adversely affects or would in the future materially and
adversely affect the business, operations, or financial condition or
the material properties or assets of UACSC.
(j) The Underwriters shall have received from independent
accountants of UACSC, one or two letters, one such letter dated the
date of the Prospectus relating to such Offered Securities and
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, and a second letter, if necessary, dated the Closing
Date, as to such matters as the Underwriters may reasonably request in
form and substance satisfactory to the Underwriter and counsel to the
Underwriters, provided by UACSC.
(k) All proceedings in connection with the transactions
contemplated by this Agreement and the Underwriting Agreement and all
documents incident hereto or thereto shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates, opinions, and documents as the Underwriters
may reasonably request.
VII.
Reimbursement of Underwriters' Expenses. If the sale of any Offered
Securities provided for in the Underwriting Agreement relating thereto is not
consummated because any condition to the obligations of the Underwriters set
forth in Article VI hereof is not satisfied or because of any refusal,
inability, or failure on the part of UACSC to perform any
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<PAGE>
agreement herein or therein or comply with any provision hereof, other than by
reason of a default by the Underwriters, UACSC will reimburse the Underwriters
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of such Offered Securities.
VIII.
Indemnification and Contribution. (a) UACSC and UAC agree to indemnify
and hold harmless the Underwriters and each person who controls any Underwriter
within the meaning of the Act or the Exchange Act from and against any and all
losses, claims, damages, or liabilities, joint or several, to which the
Underwriters may become subject under the Act, the Exchange Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) arise out of or are based upon any untrue statement of a material fact or
omission or alleged omission to state a material fact contained in the
Prospectus (together with any supplement thereto) necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, on the Effective Date, if not filed pursuant to Rule
424(b), and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date; and agree to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action, as such expenses
are incurred; provided, however, that UACSC and UAC will not be liable in any
such case to the extent that any such loss, claim, damage, or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to UACSC and/or UAC as herein stated by or on
behalf of the Underwriters specifically for use in connection with the
preparation thereof. This indemnity agreement will be in addition to any
liability that UACSC and UAC may otherwise have.
(b) The Underwriters agree, severally and not jointly, to indemnify and
hold harmless UACSC and UAC, its directors, each of UACSC and UAC's officers who
sign the Registration Statement, and each person, if any, who controls UACSC and
UAC within the meaning of the Act, to the same extent as the foregoing indemnity
from UACSC and UAC to the Underwriters, but only insofar as such losses, claims,
damages, or liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission that was made in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as amended
or supplemented, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to UACSC and/or UAC as herein
stated by or on behalf of the Underwriters specifically for use in the
preparation
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<PAGE>
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraphs (a) or (b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
in addition to any local counsel for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by [ ] in the case of parties
indemnified pursuant to paragraph (a) of this Article VIII and by UACSC in the
case of parties indemnified pursuant to paragraph (b) of this Article VIII. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 calendar
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under paragraphs (a) or (b) of this Article
VIII or is insufficient in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying
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<PAGE>
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by UACSC and/or UAC on the one hand, and
the Underwriters on the other, from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of UACSC
or UAC on the one hand, and the Underwriters on the other, in connection with
the statements or omissions which resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by UACSC or UAC on the one hand, and the Underwriters
on the other, in connection with the offering of the Offered Securities shall be
deemed to be in the same proportion as the total net proceeds from the offering
of such Offered Securities (before deducting expenses) received by UACSC or UAC
bear to the total underwriting discounts and commissions received by the
Underwriters in respect thereof. The relative fault of UACSC and/or UAC on the
one hand, and the Underwriters on the other, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by UACSC and/or UAC or the Underwriters and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission.
(e) UACSC, UAC and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VIII are several, in proportion to the respective
principal amounts of Offered Securities purchased by each of such Underwriters
(as defined in the Agreement Among Underwriters), and not joint.
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<PAGE>
IX.
Termination. This Agreement and each Underwriting Agreement shall be
subject to termination in your absolute discretion, by notice given to UACSC, if
(a) after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iii), such event singly or together with any other such
event makes it, in your judgment, impracticable to market the Offered Securities
on the terms and in the manner contemplated in the Prospectus.
X.
Substitution Of and Default By An Underwriter. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase the Offered
Securities which it or they have agreed to purchase under the Underwriting
Agreement relating thereto, and the aggregate principal amount of the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Offered Securities to which such Underwriting Agreement relates,
the other Underwriters shall be obligated severally in the proportions which the
amounts of such Offered Securities set forth opposite their names in such
Underwriting Agreement bear to the aggregate principal amount of such Offered
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase; provided that in no event shall the principal
amount of the Offered Securities which any Underwriter has agreed to purchase
hereunder be increased pursuant to this Article X by an amount in excess of
one-ninth of such principal amount of such Offered Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase the Offered Securities which it or
they agreed to purchase hereunder and the aggregate principal amount of the
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is more than one-tenth of the aggregate principal
amount of the Offered Securities to which such Underwriting Agreement relates
and arrangements satisfactory to the Representatives and UACSC for the purchase
of such Offered Securities are not made within 36 hours after such default, such
Underwriting Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or of UAC or UACSC. In any such case either the
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<PAGE>
Representatives or UACSC shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be affected. Any action taken under this Article X
or any such termination shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement or
such Underwriting Agreement.
XI.
Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities, and other statements of UACSC or UAC
or on their behalf by its officers and the Underwriters set forth in or made
pursuant to this Agreement and each Underwriting Agreement will remain in full
force and effect, regardless of any investigation made by the Underwriters or on
the Underwriters' behalf, UACSC or UAC or any of the officers, directors, or
controlling persons referred to in Article VIII hereof, and will survive
delivery of and payment for the Offered Securities. The provisions of Sections
V(g), VII, and VIII hereof shall survive the termination or cancellation of this
Agreement or any Underwriting Agreement.
XII.
Notices. All communications hereunder or under any Underwriting
Agreement will be in writing and effective only on receipt, and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to [
], Attention:
[ ] or, if sent to UACSC, will be mailed, delivered or telegraphed and
confirmed to UACSC at UAC Securitization Corporation, 250 North Shadeland
Avenue, Suite 210A, Indianapolis, Indiana 46219, Attention: Cynthia F. Whitaker
and if sent to UAC to Union Acceptance Corporation, 250 North Shadeland Avenue,
Indianapolis, Indiana 46219, Attention: John M. Stainbrook.
XIII.
Successors. This Agreement and each Underwriting Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Article VIII hereof, and their successors and assigns, and no other person will
have any right or obligation hereunder.
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<PAGE>
XIV.
Applicable Law. This Agreement and each Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed therein. This Agreement and
any Underwriting Agreement may be executed in any number of counterparts, each
of which shall for all purposes be deemed to be an original and all of which
shall together constitute but one and the same instrument.
XV.
Headings. The headings used in this Agreement are for convenience
of reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between UACSC and
you.
Very truly yours,
UAC SECURITIZATION CORPORATION
By:
--------------------------
Name: Cynthia F. Whitaker
Title: Vice President
UNION ACCEPTANCE CORPORATION
By:
--------------------------
Name: John Stainbrook
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[ ]
By:
----------------------
Name:
Title:
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<PAGE>
EXHIBIT A
OPINION OF COUNSEL FOR UAC SECURITIZATION CORPORATION
The Opinion of Counsel for UAC Securitization Corporation ("UACSC") and
the Trust Fund, to be delivered pursuant to Article VI, paragraph (b) of the
document entitled the UAC Securitization Corporation and [ ]
Underwriting Agreement Standard Provisions for UACSC Grantor Trusts, Automobile
Receivable Pass-Through Certificates (the "Agreement") shall be to the effect
that:
(i) UACSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Agreement, the
Underwriting Agreement, the Pooling and Servicing Agreement, and the Offered
Securities and had at all times relevant to such agreement and now has requisite
power, authority and legal right to acquire, own, sell, and service the
Receivables.
(ii) UAFC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Purchase Agreement, and
had at all times relevant to such agreement and now has the power, authority and
legal right to acquire, own, and sell the Receivables.
(iii) To such counsel's knowledge, each of UACSC and UAFC is duly
qualified to do business and in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would have a material adverse effect on the
transactions contemplated in the Agreement, the Underwriting Agreement, the
Purchase Agreement or the Pooling and Servicing Agreement or would render any
receivable unenforceable by UACSC or the Trustee on behalf of any holder of the
Offered Securities.
(iv) The Registration Statement (which for purposes of such opinion
shall not be deemed to include any exhibits filed therewith) has become
effective under the Act and, to such counsel's knowledge, no proceedings for a
stop order have been instituted or are threatened under Article 8(d) of the Act.
(v) The Registration Statement, as of its effective date, and the
Prospectus, as amended or supplemented, for the Offered Securities, as of its
date, complied as to form in all material respects with the requirements of the
Act and the rules thereunder.
(vi) The Agreement, the Underwriting Agreement, the Purchase Agreement
and the Pooling and Servicing Agreement have been duly authorized, executed, and
delivered by UACSC and each constitute a legal, valid, and binding agreement of
UACSC, enforceable against UACSC in accordance with its respective terms, except
(i) as
<PAGE>
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, receivership, or other similar laws affecting the enforcement of
creditors' rights in general and may be further limited by the exercise of
judicial discretion in applying principles of equity, including (but not limited
to) the availability or effects of a preliminary injunction, a restraining
order, or specific performance (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and (ii) the enforcement of
certain provisions respecting indemnification and contribution may be limited by
applicable law or public policy.
(vii) The Purchase Agreement has been duly authorized, executed, and
delivered by UAFC and constitutes a legal, valid, and binding agreement of UAFC
enforceable against UAFC in accordance with its terms, except (i) as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, receivership, or other similar laws affecting the enforcement of
creditors' rights in general and may be further limited by the exercise of
judicial discretion in applying principles of equity, including (but not limited
to) the availability or effects of a preliminary injunction, a restraining
order, or specific performance (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(viii) Neither UACSC nor the Trust Fund is an "investment company" or
under the "control" of an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund
is not required to be registered under the Investment Company Act of 1940, as
amended.
(x) No registration with or consent, approval, authorization or order
of any Federal court or governmental agency or body is required for the
consummation by UACSC of the transactions contemplated by the Agreement or the
Underwriting Agreement, except such as may be required under the Blue Sky laws
of any jurisdiction in connection with the offer and sale of the Offered
Securities.
(xi) The execution and delivery of the Agreement, the Underwriting
Agreement, the Purchase Agreement and the Pooling and Servicing Agreement, sale
of the Offered Securities to the Underwriters pursuant to the Agreement and the
Underwriting Agreement, the transfer of the Receivables, the assignment of the
security interest in the vehicles financed under any of the Receivables (the
"Financed Vehicles"), to UACSC and by UACSC to the Trustee acting on behalf of
the Trust, the consummation of the other transactions contemplated by the
Agreement, Underwriting Agreement or the Purchase Agreement, and the fulfillment
of the terms of the Pooling and Servicing Agreement, the Purchase Agreement, the
Agreement and the Underwriting Agreement do not constitute a breach or violation
of any term or provision of, or a default under, the Charter or Certificate of
Incorporation or By-laws of UACSC or UAFC, or, to the knowledge of such counsel,
any
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<PAGE>
indenture or other material agreement or instrument to which UACSC or UAFC is a
party or by which either of them is bound, or any Federal statute or regulation
known to such counsel to be applicable to UACSC or UAFC or, to the knowledge of
such counsel, any order of any Federal court, regulatory body, administrative
agency or governmental body having jurisdiction over UACSC or UAFC.
(xii) No filing or other action other than the filing of the Uniform
Commercial Code financing statements (i) naming UAFC as Seller and UACSC as
buyer and (ii) naming UACSC as seller and the Trustee as buyer, which has been
completed, is necessary to perfect the sale and transfer of the Receivables by
UAFC to UACSC acting on behalf of the Trust; provided, however, that any such
transfer may be subject to the rights of purchasers who take possession of any
of the Receivables for value in the ordinary course of business without
knowledge of the transfer to the Trustee.
(xiii) Such counsel is familiar with UAC's and the Predecessor's
standard operating procedures relating to the acquisition of a perfected first
priority security interest in the vehicles financed by the retail installment
sale contracts purchased by UAC or the Predecessor in the ordinary course of
business. Assuming that UAC's and the Predecessor's standard procedures are
followed with respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that UAC or the Predecessor
has not or will not continue to follow their standard procedures in connection
with the perfection of security interests in the Financed Vehicles), either UAFC
or the Predecessor has acquired or will acquire a perfected first priority
security interest in the Financed Vehicles.
(xiv) The Offered Securities have been duly authorized and assuming
that the Offered Securities are duly executed, authenticated, and delivered by
the Trustee as specified in the Pooling and Servicing Agreement and are issued
and delivered to, and paid for by, the Underwriters pursuant to the Agreement
and the Underwriting Agreement, will be validly issued and outstanding, will
evidence valid ownership interests in the Trust Fund, and will be entitled to
the benefits of the Pooling and Servicing Agreement.
(xv) UACSC has the corporate power and authority to assign and deliver
the Trust Fund to the Trustee under the Pooling and Servicing Agreement in
exchange for the Offered Securities, has duly authorized such assignment and
delivery to the Trustee by all necessary action on the part of UACSC, and the
Trust Fund has been duly and validly assigned and delivered by UACSC to the
Trustee under the Pooling and Servicing Agreement.
(xvi) The statements in the Prospectus under the captions "Prospectus
Summary," "Formation of the Trust," "The Trust Property," "The Receivables
Pool," "Yield Considerations," "Certificate Factors and Other Certificate
Information," "Use of Proceeds," "Union Acceptance Corporation and Affiliates,"
"The Certificates," and "Certain Legal Aspects of the Receivables," insofar as
such statements constitute a summary of the Offered
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<PAGE>
Securities, the Pooling and Servicing Agreement, the Purchase Agreement or other
documents and other matters of law or legal conclusions referred to therein,
have been reviewed by such counsel and are accurate in all material respects.
(xvii) The statements in the Prospectus under the captions "Certain
Federal Income Tax Consequences" (including the description of such counsel's
opinion expressed therein) and "ERISA Considerations", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are accurate in all material respects.
(xviii) To such counsel's knowledge and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental proceedings
pending, threatened, or contemplated to which UACSC or UAFC is a party or by
which any property of UACSC or UAFC is the subject (A) asserting the invalidity
of the Agreement, the Underwriting Agreement, the Offered Securities, the
Purchase Agreement or the Pooling and Servicing Agreement, (B) seeking to
prevent the issuance of the Offered Securities or the consummation of any of the
transactions contemplated by the Agreement, the Underwriting Agreement, the
Purchase Agreement or the Pooling and Servicing Agreement, or (C) which, if
determined adversely to UACSC or UAFC, would individually or in the aggregate
have a material adverse effect on (1) the ability of UACSC or UAFC to perform
its obligations under the Agreement, the Underwriting Agreement, the Purchase
Agreement or the Pooling and Servicing Agreement, or (2) the business,
operations, financial condition, properties or assets of UACSC.
Such counsel shall also state that, during the preparation of the
Registration Statement and the Prospectus, including amendments and supplements
thereto, such counsel participated in conferences with officers and other
representatives of UACSC, its accountants, the Underwriters and counsel for the
Underwriters and that, while such counsel has not undertaken to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (and amendments and supplements thereto) on the
basis of such conferences and such counsel's review of the documents referenced
in such counsel's opinion, no facts have come to the attention of such counsel
that have caused such counsel to believe that (1) the Registration Statement
contained, at the time that the Registration Statement became effective, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(2) the Prospectus contained on the date of the Underwriting Agreement or
contains, as amended or supplemented, if applicable, on the Closing Date, an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (3) there are any
material contracts, indentures, or other documents of a character required to be
described in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement other than those described therein or so filed.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Agreement.
-4-
<PAGE>
EXHIBIT B
OPINION OF COUNSEL FOR THE TRUSTEE
The Opinion of counsel for the Trustee, to be delivered pursuant to
Article VI, paragraph (e) of the document entitled the UAC Securitization
Corporation and [ ] Underwriting Agreement Standard Provisions
for UACSC Grantor Trusts, Automobile Receivable Pass-Through Certificates (the
"Agreement") shall be to the effect that:
(i) the Trustee has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate or other) and to enter
into, and to take all action required of it under, the Pooling and Servicing
Agreement;
(ii) the Pooling and Servicing Agreement has been duly authorized,
executed, and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee in accordance
with its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, and other similar laws affecting the
enforcement of creditors' rights generally, as such laws would apply in the
event of a bankruptcy, insolvency or reorganization or similar occurrence
affecting the Trustee, and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Trustee has duly executed the Offered Securities on behalf of
the Trust;
(iv) the Trustee has duly authenticated and delivered the Offered
Securities;
(v) the execution and delivery of the Pooling and Servicing Agreement
by the Trustee and the performance by the Trustee of its terms do not conflict
with or result in a violation of (A) any law or regulation of the United States
of America or the State of New York governing the banking or trust powers of the
Trustee, or (B) the Charter or By-laws of the Trustee; and
(vi) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the banking or trust powers of the Trustee is required
in connection with the execution and delivery by the Trustee of the Pooling and
Servicing Agreement or the performance by the Trustee of the terms of the
Pooling and Servicing Agreement.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
<PAGE>
EXHIBIT C
OPINION OF COUNSEL FOR THE CREDIT ENHANCER
The Opinion of Counsel for the Credit Enhancer to be delivered pursuant
to Article VI, paragraph (f) of the document entitled the UAC Securitization
Corporation and [ ] Underwriting Agreement Standard Provisions
for UACSC Trusts, Automobile Receivable Pass-Through Certificates (the
"Agreement") shall be substantially to the effect that:
(i) the Credit Enhancer is duly incorporated, validly existing
and in good standing under the laws of the _______________________;
(ii) the Credit Enhancer of Credit Bank has the corporate power
to execute and deliver, and to take all action required of it under,
the [credit enhancement instrument(s)];
(iii) the [credit enhancement instrument(s)] has been duly
authorized by the Credit Enhancer and, when duly executed and
delivered by the Credit Enhancer, will constitute the legal, valid and
binding obligation of Credit Enhancer, enforceable against it in
accordance with its terms subject, as to enforcement, to bankruptcy,
insolvency, liquidation, reorganization, adjustment of debt,
moratorium and other laws relating to, or affecting generally the
enforcement of, creditor's rights and remedies; and
(iv) the [Credit Enhancement instrument] is not required to be
registered under the Securities Act of 1933, as amended.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Agreement.
<PAGE>
ANNEX I
Form of Underwriting Agreement
UAC SECURITIZATION CORPORATION
UNION ACCEPTANCE CORPORATION
AND
[ ]
UNDERWRITING AGREEMENT
FOR
UACSC 199_-_ TRUST
[ ] AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES
_________, 199_
<PAGE>
___________ ___, 199__
UAC Securitization Corporation
45 North Pennsylvania Street, Suite 400
Indianapolis, Indiana 46204
Union Acceptance Corporation
45 North Pennsylvania Street, Suite 500
Indianapolis, Indiana 46204
Dear Sirs:
We understand that UAC Securitization Corporation, a Delaware
corporation ("UACSC"), proposes to sell $______ aggregate amount of Certificates
designated "[ ] Automobile Receivable Pass-Through Certificates" (the "Offered
Securities"), issued by UACSC 199_-_ Grantor [or Auto] Trust. Subject to the
terms and conditions set forth in or incorporated by reference in this Agreement
(this "Agreement"), [we] [the Underwriters named on page __ of the copy of the
Prospectus attached hereto as Annex A (such Underwriters being herein called the
"Underwriters")] hereby agree severally and not jointly to purchase all of the
Offered Securities. The purchase price at which [we] [the Underwriters] will
purchase the Offered Securities is _____% of the original principal amount
thereof, plus, accrued interest from _______________ to the date of payment and
delivery of the Offered Securities pursuant to the following paragraph.
We [the Underwriters] will pay for the Offered Securities in
immediately available funds upon delivery thereof at the offices of
__________________, or at such other location as shall be designated by [us]
[the Underwriters], at _____ A.M. (New York time) on ____________, 199_, or at
such other time, not later than ____________, 199_, as shall be designated by
[us] [the Underwriters].
The Offered Securities shall have the terms set forth in the copy of
the Prospectus attached hereto as Annex A and shall conform in all material
respects to the description thereof contained in such Prospectus.
All the provisions contained in the document entitled UAC
Securitization Corporation and [ ] Underwriting Agreement
Standard Provisions for UACSC Grantor [or Auto] Trusts, Automobile Receivable
Pass-Through Certificates, dated ____________, 199_ (the "Standard Provisions"),
a copy of which you have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein. [All
references to the "Underwriters," the "several Underwriters" or the
<PAGE>
UAC Securitization Corporation
____________ ___, 199__
Page 4
"Representative" in the Standard Provisions shall be deemed to refer to [
], the sole Underwriter hereunder.]
In connection with paragraph (h) of Article V of the Standard
Provisions, during the period specified in the Standard Provisions, neither
UACSC nor any affiliate of UACSC will, without our prior written consent, enter
into any agreement to offer or sell any automotive receivables or any securities
issued by UACSC or any affiliate of UACSC secured by, evidencing interests in,
or otherwise backed by automotive receivables, in any single transaction
involving a principal amount of automotive receivables in excess of
$-----------.
Please confirm your agreement by having authorized officers sign a copy
of this Agreement in the spaces set forth below and returning the signed copy to
us.
Very truly yours,
[ ]
[as Underwriter]
By:___________________________
Title:_______________________
Accepted:____________, 199__
UAC SECURITIZATION CORPORATION
By:___________________________
Title:_______________________
UNION ACCEPTANCE CORPORATION
By:___________________________
Title:_______________________
<PAGE>
ANNEX A
[Copy of Prospectus]
UAC SECURITIZATION CORPORATION
Depositor
UNION ACCEPTANCE CORPORATION
Servicer
and
BANKERS TRUST COMPANY,
Trustee
POOLING AND SERVICING AGREEMENT,
Dated as of ________, 199_
$-------------
UACSC 199_-_ Auto Trust
$-------------
_____% Class A Automobile Receivable Pass-Through Certificates
Class I Interest Only Automobile Receivable Pass-Through Certificates
and
Class IC Automobile Receivable Pass-Through Certificate
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I Creation of Trust.......................................... 1
ARTICLE II Definitions................................................ 1
SECTION 2.01. Definitions................................................ 1
SECTION 2.02. Usage of Terms............................................. 14
SECTION 2.03. Cutoff Date and Record Date................................ 15
SECTION 2.04. Section References......................................... 15
ARTICLE III Conveyance of Receivables.................................. 15
ARTICLE IV Acceptance by Trustee...................................... 16
ARTICLE V Information Delivered to the Rating Agency................. 16
ARTICLE VI Agent for Service.......................................... 17
ARTICLE VII The Receivables............................................ 17
SECTION 7.01. Representations and Warranties of Depositor................ 17
SECTION 7.02. Repurchase Upon Breach..................................... 18
SECTION 7.03. Custody of Receivable Files................................ 18
SECTION 7.04. Duties of Servicer as Custodian............................ 19
SECTION 7.05. Instructions; Authority to Act............................. 19
SECTION 7.06. Custodian's Indemnification................................ 20
SECTION 7.07. Effective Period and Termination........................... 20
SECTION 7.08. Liability of the holder of the Class
IC Certificate and the Certificateholders.................. 20
ARTICLE VIII Administration and Servicing of Receivables................ 21
SECTION 8.01. Duties of Servicer......................................... 21
SECTION 8.02. Collection of Receivable Payments.......................... 21
SECTION 8.03. Realization Upon Receivables............................... 22
SECTION 8.04. Physical Damage Insurance.................................. 23
SECTION 8.05. Maintenance of Security Interests
in Financed Vehicles....................................... 23
SECTION 8.06. Covenants of Servicer...................................... 23
SECTION 8.07. Purchase of Receivables Upon Breach........................ 23
SECTION 8.08. Servicing Fee.............................................. 23
SECTION 8.09. Servicer's Certificate..................................... 24
SECTION 8.10. Annual Statement as to Compliance;
Notice of Default.......................................... 24
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<PAGE>
SECTION 8.11. Annual Independent Certified Public
Accountant's Report......................................... 25
SECTION 8.12. Access to Certain Documentation and Information
Regarding Receivables....................................... 25
SECTION 8.13. Servicer Expenses........................................... 25
SECTION 8.14. Reports to Certificateholders............................... 26
ARTICLE IX Distributions; Statements to Certificateholders............. 26
SECTION 9.01. Certificate Account......................................... 26
SECTION 9.02. Collections................................................. 26
SECTION 9.03. Purchase Amounts............................................ 28
SECTION 9.04. Distributions to Parties.................................... 28
SECTION 9.05. Advances.................................................... 30
SECTION 9.06. Net Deposits................................................ 30
SECTION 9.07. Statements to Certificateholders............................ 30
SECTION 9.08. Intentionally Blank......................................... 31
SECTION 9.09. Payahead Account. ......................................... 32
SECTION 9.10. Calculation of Notional Principal Amount.................... 32
ARTICLE X Credit Enhancement......................................... 32
SECTION 10.01. Subordination.............................................. 32
SECTION 10.02. Spread Account............................................. 33
ARTICLE XI The Certificates........................................... 34
SECTION 11.01. The Certificates........................................... 34
SECTION 11.02. Authentication of Certificates............................. 34
SECTION 11.03. Registration of Transfer and Exchange of Certificates...... 35
SECTION 11.04. Mutilated, Destroyed, Lost, or Stolen Certificates......... 35
SECTION 11.05. Persons Deemed Owners...................................... 36
SECTION 11.06. Access to Agreement and List of Certificateholders'
Names and Addresses........................................ 36
SECTION 11.07. Maintenance of Office or Agency............................ 36
SECTION 11.08. Book-Entry Certificates.................................... 37
SECTION 11.09. Notices to Clearing Agency................................. 37
SECTION 11.10. Definitive Certificates.................................... 37
SECTION 11.11. The Tax Partnership Agreement.............................. 38
ARTICLE XII The Depositor.............................................. 38
SECTION 12.01. Representations and Undertakings of Depositor.............. 38
SECTION 12.02. Liability of Depositor; Indemnities........................ 40
SECTION 12.03. Merger or Consolidation of, or Assumption of the
Obligations of Depositor................................... 41
SECTION 12.04. Limitation on Liability of Depositor and Others............ 41
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<PAGE>
SECTION 12.05. Depositor May Own Certificates............................. 41
ARTICLE XIII The Servicer............................................... 42
SECTION 13.01. Representations of Servicer................................ 42
SECTION 13.02. Indemnities of Servicer.................................... 43
SECTION 13.03. Merger or Consolidation of, or Assumption of the
Obligations of. Servicer................................... 44
SECTION 13.04. Limitation on Liability of Servicer and Others............. 45
SECTION 13.05. Servicer Not to Resign..................................... 45
SECTION 13.06. Delegation of Duties....................................... 45
ARTICLE XIV Default.................................................... 46
SECTION 14.01. Events of Default.......................................... 46
SECTION 14.02. Appointment of Successor................................... 47
SECTION 14.03. Notification to Certificateholders......................... 48
SECTION 14.04. Waiver of Past Defaults.................................... 48
ARTICLE XV The Trustee................................................ 49
SECTION 15.01. Duties of Trustee.......................................... 49
SECTION 15.02. Trustee's Certificate...................................... 50
SECTION 15.03. Trustee's Assignment of Purchased Receivables.............. 51
SECTION 15.04. Certain Matters Affecting the Trustee...................... 51
SECTION 15.05. Trustee Not Liable for Certificates or Receivables......... 52
SECTION 15.06. Trustee May Own Certificates............................... 53
SECTION 15.07. Trustee's Fees and Expenses................................ 53
SECTION 15.08. Eligibility Requirements for Trustee....................... 54
SECTION 15.09. Resignation or Removal of Trustee.......................... 54
SECTION 15.10. Successor Trustee.......................................... 55
SECTION 15.11. Merger or Consolidation of Trustee......................... 55
SECTION 15.12. Appointment of Co-Trustee or Separate Trustee.............. 55
SECTION 15.13. Representations and Warranties of Trustee.................. 57
ARTICLE XVI Termination................................................ 57
SECTION 16.01. Termination of the Trust................................... 57
SECTION 16.02. Optional Disposition of All Receivables.................... 58
SECTION 16.03. Termination upon the Bankruptcy of the Class IC
Certificateholder.......................................... 59
ARTICLE XVII Miscellaneous Provisions................................... 60
SECTION 17.01. Amendment.................................................. 60
SECTION 17.02. Protection of Title to Trust............................... 61
SECTION 17.03. Limitation on Rights of Certificateholders................. 63
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<PAGE>
SECTION 17.04. Governing Law.............................................. 64
SECTION 17.05. Notices.................................................... 64
SECTION 17.06. Severability of Provisions................................. 64
SECTION 17.07. Assignment................................................. 64
SECTION 17.08. Certificates Nonassessable and Fully Paid.................. 65
SECTION 17.09. Nonpetition Covenant....................................... 65
SECTION 17.10. Counterparts............................................... 65
SECTION 17.11. Third Party Beneficiary. ................................. 65
EXHIBIT 1 - Trustee's Certificate Pursuant to Section 15.02
EXHIBIT 2 - Trustee's Certificate Pursuant to Section 15.02
EXHIBIT 3 - Servicer's Certificate
EXHIBIT A - Form of Class A Automobile Receivable Pass-Through Certificate
EXHIBIT B - Form of Class I Automobile Receivable Pass-Through Certificate
EXHIBIT C - Form of Class IC Automobile Receivable Pass-Through Certificate
EXHIBIT D - Form of Depository Trust Co. Letter of Representations
SCHEDULE A - Schedule of Receivables
SCHEDULE B - Location of Receivables
SCHEDULE C - Planned Notional Principal Amount Schedule
ANNEX A - Tax Partnership Agreement
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<PAGE>
This POOLING AND SERVICING AGREEMENT, dated as of ________, 199_, is
made with respect to the formation of the UACSC 199_-_ Auto Trust, among UAC
SECURITIZATION CORPORATION, a Delaware corporation as depositor (the
"Depositor"), UNION ACCEPTANCE CORPORATION, an Indiana corporation as servicer
(the "Servicer"), and BANKERS TRUST COMPANY, a New York banking corporation, as
trustee (the "Trustee").
WITNESSETH THAT: 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, there is
hereby created the UACSC 199_-_ Auto Trust.
The parties hereto intend that this Agreement be construed so as to
create a partnership formed to facilitate the direct investment by
Certificateholders in the assets of the Trust.
ARTICLE II
Definitions
SECTION 2.01. Definitions. 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.
"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 Pooling and Servicing Agreement executed by the
Depositor, the Servicer and the Trustee, and all amendments and supplements
thereto.
"Amount Financed", with respect to a Receivable, means the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and any related costs.
"Approved Rating" means a rating of P-1 by Moody's or A-l+ by Standard
& Poor's.
<PAGE>
"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 Spread Amount" means, on any Distribution 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 pursuant to Article IX.
"Available Funds" means the amount defined as such in Section 9.02.
"Book-Entry Certificates" means certificates evidencing a beneficial
interest in the Certificates, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 11.08;
provided, however, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Certificates
are to be issued to the Certificate Owners, such Certificates shall no longer be
"Book-Entry Certificates".
"Business Day" means, unless otherwise specified, any day other than a
Saturday, a Sunday or a day on which banking institutions in New York, New York,
(or, if the Servicer has previously provided notice to the Trustee that such day
is not a Business Day, Little Rock, Arkansas, Indianapolis, Indiana or Chicago,
Illinois), shall be authorized or obligated by law, executive order, or
governmental decree to be closed.
"Certificate" means a Class A Certificate, a Class I Certificate or a
Class IC Certificate.
"Certificateholder" or "Holder" means the Person in whose name the
respective Certificate shall be registered in the Certificate Register, except
that, solely for the purposes of giving any consent, waiver, request, or demand
pursuant to the Agreement, the interest evidenced by any Certificate registered
in the name of the Depositor, the Servicer or UAC, or any Person controlling,
controlled by, or under common control with the Depositor or the Servicer, shall
not be taken into account in determining whether the requisite percentage of
Certificates (except the Class IC Certificate) necessary to effect any such
consent, waiver, request, or demand shall have been obtained.
"Certificate Account" means the account designated as such, established
and maintained pursuant to Section 9.01.
"Certificate Balance" means, at any time, the Initial Certificate
Balance minus all distributions of Monthly Principal made up to such time.
2
<PAGE>
"Certificate Factor" means a seven digit decimal number computed by the
Servicer and stated in the Servicer's Certificate which is computed by dividing
the Certificate Balance (after giving effect to any prior distribution of
Monthly Principal) by the Initial Certificate Balance.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
"Certificate Register" and "Certificate Registrar" mean, respectively,
the register maintained and the registrar appointed pursuant to Section 11.03.
"Class A Certificate" means a certificate executed on behalf of the
Trust and authenticated by the Trustee substantially in the form attached hereto
as Exhibit A-1.
"Class A Certificateholder" means the Person in whose name the
respective Class A Certificate shall be registered in the Certificate Register,
except that, solely for the purposes of giving any consent, waiver, request, or
demand pursuant to this Agreement, the interest evidenced by any Class A
Certificate registered in the name of the Depositor, the Servicer or UAC, or any
Person controlling, controlled by, or under common control with the Depositor or
the Servicer, shall not be taken into account in determining whether the
requisite percentage necessary to effect any such consent, waiver, request, or
demand shall have been obtained.
"Class A Monthly Interest" means, (i) for the first Distribution Date,
the product of the following: (one twelfth of the Class A Pass-Through Rate)
multiplied by (the number of days remaining in the month of the Closing Date
assuming a 30-day month from and including the Closing Date divided by 30)
multiplied by the Certificate Balance at the Closing Date and (ii) for any
subsequent Distribution Date, one-twelfth of the product of the Class A
Pass-Through Rate and the Certificate Balance as of the immediately preceding
Distribution Date (after giving effect to any distribution of Monthly Principal
made on such immediately preceding Distribution Date).
"Class A Pass-Through Rate" means _____% per annum, payable monthly at
one-twelfth of the annual rate.
"Class I Certificate" means a certificate executed on behalf of the
Trust and authenticated by the Trustee substantially in the form attached hereto
as Exhibit B.
"Class I Certificateholder" means the Person in whose name the
respective Class I Certificate shall be registered in the Certificate Register,
except that solely for the purposes
3
<PAGE>
of giving any consent, waiver, request, or demand pursuant to the Agreement, the
interest evidenced by any Class I Certificate registered in the name of the
Depositor, the Servicer or UAC, or any Person controlling, controlled by, or
under common control with the Depositor or the Servicer, shall not be taken into
account in determining whether the requisite percentage necessary to effect any
such consent, waiver, request, or demand shall have been obtained.
"Class I Monthly Interest" means (i) for the first Distribution Date,
the product of the following: (one-twelfth of the Class I Pass-Through Rate)
multiplied by (the number of days remaining in the month of the Closing Date
assuming a 30-day month from and including the Closing Date divided by 30)
multiplied by the Notional Principal Amount of the Class I Certificates at the
Closing Date, and (ii) for any subsequent Distribution Date, one-twelfth of the
product of the Class I Pass-Through Rate and the Notional Principal Amount as of
the immediately preceding Distribution Date (after giving effect to any
application of Monthly Principal on such preceding Distribution Date); provided,
however, that after the Stated Final Class I Distribution Date, the Class I
Monthly Interest shall be zero.
"Class I Pass-Through Rate" means _____% per annum, payable monthly at
one-twelfth of the annual rate.
"Class IC Certificate" means a certificate executed on behalf of the
Trust and authenticated by the Trustee substantially in the form attached hereto
as Exhibit C.
"Class IC Certificateholder" means the Depositor or any Person in whose
name the Class IC Certificate shall be registered in the Certificate Register.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means __________, 199_.
"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.
4
<PAGE>
"Collection Period" means (i) initially, the period from the day after
the Cutoff Date to the end of the calendar month of _______, 199_ and (ii)
thereafter, each calendar month, until the Trust shall terminate pursuant to
Article 16.
"Companion Component" means, for each respective Distribution Date, the
difference between the Certificate Balance and the PAC Component.
"Corporate Trust Office" means the office of the 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 Four Albany
Street, New York, NY 10006; Attention: Corporate Trust and Agency Group;
Telecopy (212) 250-6439 or at such other address as the Trustee may designate
from time to time by notice to the Certificateholders, the Depositor and the
Servicer.
"Cutoff Date" means _________, 199_.
"Dealer" means the seller of a Financed Vehicle, who originated and
assigned the related Receivable to UAC or the Predecessor under an existing
agreement with UAC or the Predecessor or who arranged for a loan from UAC or the
Predecessor to the purchaser of a Financed Vehicle under an existing agreement
with UAC or the Predecessor.
"Defaulted Receivable" means, for any Collection Period, a Receivable
as to which any of the following has occurred: (i) any payment 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.
"Definitive Certificate" means a Certificate defined as such in Section
11.08.
"Depositor" means UAC Securitization Corporation, a Delaware
corporation, in its capacity as the depositor of the Receivables under this
Agreement, and each successor to UAC Securitization Corporation (in the same
capacity) pursuant to Section 12.03.
"Depository Agreement" means the agreement among the Depositor, the
Trustee and the initial Clearing Agency in the form attached hereto as Exhibit
D.
"Determination Date" means, for each Collection Period, the fifth day
of the following month.
"Dissolution Distribution Date" means the Distribution Date following
the liquidation of the trust corpus pursuant to Section 16.02 or Section 16.03.
"Distribution Date" means, for each Collection Period, the third
Business Day after the Determination Date. The first Distribution Date shall be
___________, 199_.
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"Eligible Bank" means any depository institution with trust powers
(including the 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 Baa3
from Moody's 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 Trustee or any
agent of the Trustee, 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 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, or higher, 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 Certificate
Account;
(v) commercial paper having an Approved Rating at the time of
such investment;
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(vi) a guaranteed investment contract issued by any insurance
company or other corporation acceptable to the Rating Agency, provided
that the Trustee shall have received written notice from the Rating
Agency 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
Certificates;
(vii) interests in any money market fund having a rating of
Aaa by Moody's or AAAm by Standard & Poor's; and
(viii) any other investment approved in advance in writing by
the Rating Agencies and the Surety Bond Issuer.
"Event of Default" means an event specified in Section 14.01.
"Excess Yield Requirement" has the meaning specified in Section 1.01 of
the Insurance Agreement.
"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.
"Holder" -- see "Certificateholder."
"Initial Certificate Balance" means $_____________.
"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.
"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; and, with respect to a Precomputed
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 that portion of the earliest
delinquent Scheduled Payment allocable to interest (using the actuarial or
constant yield method).
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"Insurance Agreement" means the Insurance and Reimbursement Agreement,
dated as of ________, 199_, among the Depositor, UAC individually and as
Servicer, UAFC and the Surety Bond Issuer pursuant to which the Surety Bond
Issuer issued the Surety Bond.
"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.
"Interest Shortfall" with respect to a Precomputed Receivable as of the last day
of any Collection Period means the amount, if any, by which the portion of the
Scheduled Payment due during such Collection Period allocable to interest (using
the actuarial or constant yield method) exceeds the Collected Interest on such
Receivable (computed using the same method and after giving effect to the
withdrawal of any previously received Scheduled Payments in respect of such
Receivable from the Payahead Account in accordance with Sections 8.02(b) and
9.09 hereof).
"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 Distribution Date means such monies collected during the preceding
Collection Period.
"Monthly Interest" means the sum of Class A Monthly Interest and Class
I Monthly Interest.
"Monthly Principal" means, for any Distribution Date, an amount equal
to (i) the Pool Balance at the close of business on the last day of the second
preceding Collection Period (or, in the case of the First Distribution Date, the
Original Pool Balance), less (ii) the Pool Balance at the close of business on
the last day of the preceding Collection Period; provided, however, that for the
Stated Final Distribution Date, Monthly Principal will be equal to the remaining
outstanding principal balance of the Class A Certificates. Monthly Principal
will not exceed the Certificate Balance.
"Monthly Servicing Fee" means, (i) for the first Distribution Date, the
product of the following: (one-twelfth of the Servicing Rate) multiplied by (the
number of days remaining in the month of the Closing Date from and including the
Closing Date, assuming a 30-day month, divided by 30) multiplied by the Initial
Certificate Balance and (ii) for any subsequent Distribution Date, one-twelfth
of the product of (a) the Certificate Balance on the preceding Distribution Date
(after giving effect to any distribution of Monthly Principal made on that such
Distribution Date) and (b) the Servicing Rate.
"Moody's" means Moody's Investors Service, Inc.
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"Net Principal Surety Bond Amount" means the Certificate Balance as of
the first Distribution Date minus all amounts previously drawn on the Surety
Bond or from the Spread Account with respect to Monthly Principal.
"Note Rate" means, with respect to a Receivable, the contract rate of
interest on such Receivable, exclusive of prepaid finance charges.
"Notional Principal Amount" or "PAC Component" means, for the purpose
of calculating the Class I Monthly Interest at any time, the Original Notional
Principal Amount minus all allocations of Monthly Principal to the PAC Component
made up to such time pursuant to Section 9.10 of this Agreement.
"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 of an Obligor" shall mean all payments made
with respect to a Receivable except payments made by UAC, the Depositor 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 UAC, the Depositor 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 Depositor and/or Servicer, which counsel shall be acceptable to
the Trustee.
"Optional Disposition Price" means the amount specified as such in
Section 16.02.
"Original Notional Principal Amount" shall be $_____________.
"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.
"PAC Component" has the meaning set forth in Section 9.10.
"Payahead" on a Precomputed Receivable means the amount, as of the
close of business on the last day of a Collection Period, computed in accordance
with Section 8.02(b) with respect to such Receivable.
"Payahead Account" means the account designated as such, established
and maintained pursuant to Section 9.09.
"Payahead Balance" on a Precomputed Receivable means the sum, as of the
close of business on the last day of a Collection Period, of all Payaheads made
by or on behalf of
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the Obligor with respect to such Precomputed Receivable, as reduced by
applications of previous Payaheads with respect to such Precomputed Receivable,
pursuant to Sections 8.02(b) and 9.09.
"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.
"Planned Notional Principal Amount" means, for each respective
Distribution Date, the corresponding amount specified in the Planned Notional
Principal Amount Schedule.
"Planned Notional Principal Amount Schedule" means, the amortization
Schedule of Planned Notional Principal Amount for each respective Distribution
Date, attached hereto as Schedule C.
"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 Balance of a Defaulted Receivable
or a Purchased Receivable (if actually purchased by the Servicer or repurchased
by UAC) 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 repurchased.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related contract as an add-on finance charge) and the portion allocable to the
Amount Financed is determined according to the sum of periodic balances, the sum
of monthly balances, the rule of 78's or any equivalent method.
"Predecessor" means Union Federal Savings Bank of Indianapolis, a
federally chartered stock savings bank.
"Premium Side Letter Agreement" means the letter dated the Closing Date
as defined in the Insurance Agreement.
"Prepayment Charges," as used in the Agreement, shall be interpreted to
include, without limitation, in the case of a Precomputed Receivable that is
prepaid in full, the difference between the Principal Balance of such Receivable
(plus accrued interest to the date of prepayment) and the Principal Balance of
such Receivable computed in accordance with the method provided for in the
contract governing such Receivable, such as the rule of 78's.
"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. "Principal Balance" with
respect to a Precomputed Receivable, as of
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the close of business on the Cutoff Date, means the gross principal balance of
such Receivable on the records of the Servicer, net of unearned or accrued
interest reflected therein, and as of the close of business on the last day of a
Collection Period, means the Principal Balance as of the Cutoff Date minus that
portion of all Scheduled Payments received with respect to such Receivable in
respect of such Collection Period and all prior Collection Periods allocable to
principal of such Receivable using the actuarial or constant yield method.
"Purchase Agreement" means the Purchase Agreement, dated as of
________, 199_, by and between the Depositor, UAC and UAFC, as amended,
supplemented or modified from time to time.
"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 not later than the
Determination Date of the month immediately following the respective Collection
Period by the Servicer pursuant to Section 8.07 or repurchased not later than
the Determination Date of the month immediately following the respective
Collection Period by UAC pursuant to Section 7.02.
"Rating Agency" means each of Moody's and Standard & Poor's and their
successors and assigns.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' (or such shorter period as shall be
acceptable to each Rating Agency) prior notice thereof and that, within 7 days
of receipt of such notice, none of the Rating Agencies shall have notified the
Depositor, the Servicer or the Trustee in writing that such action will result
in a reduction or withdrawal of the then current ratings of the Certificates.
"Receivable" means any simple interest or pre-computed (add-on)
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 Depositor listed as of the Cutoff Date in Schedule A.
"Record Date" means, for any Distribution Date, the last day of the
preceding Collection Period.
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"Recoveries" means Liquidation Proceeds received by the Servicer during
the preceding calendar month on Defaulted Receivables.
"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 Sections 9.04(a) (i) and 9.05)
during such Collection Period representing recoveries of Interest Shortfalls for
which Advances were made for prior Collection Periods.
"Required Spread Amount" means on each Distribution Date, ____% of the
Initial Certificate Balance (after giving effect to any payment of Monthly
Principal on such Distribution Date); provided, that on any Distribution Date on
which (or after the first Distribution Date on which) the Excess Yield
Requirement is not met, the Required Spread Amount shall be equal to ____% of
the Certificate Balance (after giving effect to any payment of Monthly Principal
on such Distribution Date); and provided further that upon and during the
continuance of an Event of Default or a Trigger Event, the Required Spread
Amount shall be equal to the Surety Bond Amount as of such Distribution Date
after giving effect to any draws on the Surety Bonds, draws on the Spread
Account and other distributions pursuant to Section 9.04 on such Distribution
Date.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Office (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the 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 Note
Rate.
"Servicer" means Union Acceptance Corporation, an Indiana corporation,
in its capacity as the servicer of the Receivables and each successor to Union
Acceptance Corporation (in the same capacity) pursuant to Section 13.03 or
14.02.
"Servicer's Certificate" means a certificate completed and executed by
the Servicer by its chairman of the board, its president, any vice chairman of
its board, any vice president, the treasurer, or the controller of the Servicer
pursuant to Section 8.09.
"Servicing Rate" means 1.00% per annum, payable monthly at one-twelfth
of the annual rate, subject to adjustment with respect to a successor Servicer
pursuant to Section 14.02.
"Spread Account" means, the account designated as such, established and
maintained pursuant to Section 10.02.
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"Spread Account Facility" means any liquidity facility or similar
arrangement established pursuant to Section 10.02.
"Spread Account Surplus" means, on any Distribution Date, the excess,
if any, of the Available Spread Amount on such Distribution Date, after giving
effect to deposits into and withdrawals from the Spread Account pursuant to
Article 9 on such Distribution Date, over the Required Spread Amount on such
Distribution Date (after giving effect to any payments of Monthly Principal and
Monthly Interest and all amounts owing to the Surety Bond Issuer on such
Distribution Date).
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of McGraw-Hill Companies, Inc.
"State" means (i) any state of the United States of America or (ii) the
District of Columbia.
"Stated Final Distribution Date" means ____________, _____.
"Stated Final Class I Distribution Date" means __________, ____.
"Surety Bond" means the irrevocable Principal/Interest Surety Bond
dated __________, 199_ issued by the Surety Bond Issuer to the Trustee for the
benefit of the Class A and Class I Certificateholders and having a maximum
amount available to be drawn in respect of Class A Monthly Interest, Class I
Monthly Interest and Monthly Principal equal to the Surety Bond Amount.
"Surety Bond Amount" means with respect to any Distribution Date:
(x) the sum of (A) the lesser of (i) the Certificate Balance
(after giving effect to any distribution of Available Funds and any
funds withdrawn from the Spread Account to pay Monthly Principal on
such Distribution Date) and (ii) the Net Principal Surety Bond Amount,
plus (B) Class A Monthly Interest, plus (C) Class I Monthly Interest,
plus (D) the Monthly Servicing Fee; less
(y) all amounts on deposit in the Spread Account on such
Distribution Date.
"Surety Bond Fee" means for any Distribution Date, an amount equal to
the product of (i) the Surety Bond per annum fee rate set forth in the Premium
Side Letter Agreement calculated for the actual number of days elapsed during
the Collection Period on the basis of a 360 day year and (ii) the Certificate
Balance calculated as of the Record Date to which such Distribution Date
relates, payable monthly in arrears.
"Surety Bond Issuer" means Capital Markets Assurance Corporation, a New
York domiciled monoline stock insurance company.
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"Trigger Event" means any of the events identified as such in Section
6.02 of the Insurance Agreement.
"Trust" means the 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 Certificate Account; all documents contained in the Receivable
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 Depositor 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 Depositor 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; and certain rights of the Depositor under the Purchase
Agreement, including, without limitation, Section 3.04 thereof.
"Trustee" means Bankers Trust Company, a banking corporation organized
under the laws of the State of New York 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.
"Trustee's Certificate" means a certificate completed and executed by
the Trustee by a Responsible Officer pursuant to Section 15.02, substantially in
the form of, in the case of an assignment to UAC, Exhibit 1, and in the case of
an assignment to the Servicer, Exhibit 2.
"UAC" means Union Acceptance Corporation, an Indiana corporation, and
its successors and assigns, other than in its capacity as Servicer.
"UAFC" means Union Acceptance Funding Corporation, a Delaware
corporation, and its successors and assigns.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
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."
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SECTION 2.03. Cutoff 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
Cutoff 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 Trustee's delivery to or upon the order of the
Depositor of Class A Certificates with a Certificate Balance equal to the
Original Pool Balance, Class I Certificates representing in the aggregate the
Original Notional Principal Amount and the Class IC Certificate the Depositor
does hereby sell, transfer, assign, and otherwise convey to the Trustee, in
trust for the benefit of the Certificateholders and the Surety Bond Issuer,
without recourse (subject to the obligations herein):
(i) all right, title, and interest of the Depositor 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;
(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 Certificate Account;
(v) the interest of the Depositor 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, after the Cutoff Date, with respect to the Receivables held
by the Servicer or Depositor (but excluding Accrued Interest paid prior
to the Closing Date);
(viii) the rights of the Depositor pursuant to the Purchase
Agreement to require UAC to repurchase any Receivables as to which
there has been a breach of the representations and warranties contained
therein;
(ix) the benefits of the Surety Bond; and
(x) all proceeds of the foregoing.
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The Depositor does hereby further assign, convey, pledge and grant a
security interest in (i) the funds on deposit from time to time in the Spread
Account; (ii) all Eligible Investments purchased with funds deposited in the
Spread Account; (iii) any and all other right, title and interest, including any
beneficial interest the Depositor may have in the Certificate Account, the
Spread Account and the funds deposited therein, and (iv) any proceeds of any of
the foregoing, to the Trustee and for the benefit of the Certificateholders to
secure amounts payable to Certificateholders as provided under this Agreement.
The Depositor does not convey to the Trustee 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 Trustee does hereby accept all consideration conveyed by the
Depositor pursuant to Article III, and declares that the Trustee shall hold such
consideration upon the trusts herein set forth for the benefit of all present
and future Certificateholders and the Surety Bond Issuer, subject to the terms
and provisions of this Agreement.
ARTICLE V
Information Delivered to the Rating Agency
(a) The Servicer hereby expresses its intention to deliver
promptly to the Rating Agency (i) a copy of each Servicer's Certificate that it
delivers to the Trustee and the Surety Bond Issuer 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 Trustee pursuant to Section 8.10, (iii) a
statement for each Collection Period including delinquency and loss information
for the Receivables, the amount of any draws on the Surety Bond, (iv) written
notice of any merger, consolidation, or other succession of the Servicer,
pursuant to Section 13.03, or the Depositor, pursuant to Section 12.03, (v) a
copy of each amendment to this Agreement and (vi) any Opinion of Counsel
delivered to the Trustee pursuant to Section 17.02(i).
(b) The Trustee hereby expresses its intention to deliver
promptly to the Rating Agency (i) a copy of each statement or notification to
Certificateholders delivered pursuant to Section 9.07, 14.03 or 15.10, (ii) a
copy of each annual certified public accountant's report received by the Trustee
pursuant to Section 8.11, (iii) a copy of each amendment to this Agreement and
(iv) a copy of the notice of termination of the Trust provided to
Certificateholders pursuant to Section 16.01.
(c) For purposes of delivery pursuant to paragraphs (a) and
(b) of this Article VIII, the addresses for the Rating Agencies are:
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Structured Finance/Asset Backed Surveillance Group
Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
26 Broadway, 15th Floor
New York, New York 10004
Moody's Investors Service, Inc.
Attention: ABS Monitoring Department
4th Floor
99 Church Street
New York, New York 10007
(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 Trustee to
comply with any or all of the provisions of this Article V shall not constitute
an Event of 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 Depositor shall be Cynthia F. Whitaker,
Vice President of the Depositor. Any and all service on the agent for service of
the Depositor shall be sent to UAC Securitization Corporation, 250 North
Shadeland Avenue, Suite 210A, Indianapolis, Indiana 46219.
The agent for service for the Servicer shall be John M. Stainbrook,
President of the Servicer. Any and all service on the agent for service of the
Servicer shall be sent to Union Acceptance Corporation, 250 North Shadeland
Avenue, Indianapolis, Indiana 46204.
ARTICLE VII
The Receivables
SECTION 7.01. Representations and Warranties of Depositor. Pursuant to
Article III, the Depositor has assigned to the Trust the benefit of, and its
rights respecting, the representations and warranties made to the Depositor in
the Purchase Agreement as to the Receivables on which the Trustee relies in
accepting the Receivables in trust and executing and authenticating the
Certificates. 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 Trustee.
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(a) The Depositor hereby represents and warrants to the Trustee that it
has entered into the Purchase Agreement with UAC and UAFC, that UAC and UAFC
have made the representations and warranties set forth therein, that such
representations and warranties run to and are for the benefit of the Depositor,
and that pursuant to Article III of this Agreement the Depositor has transferred
and assigned to the Trustee all rights of the Depositor to cause UAC 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 Depositor that the transfer and
assignment herein contemplated, taken as a whole, constitute a sale of the
Receivables from the Depositor 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 Depositor. No Receivable has been sold,
transferred, assigned, or pledged by the Depositor to any Person other than the
Trustee. Immediately prior to the transfer and assignment herein contemplated,
the Depositor had good and marketable title to each Receivable free and clear of
all liens, and, immediately upon the transfer thereof, the Trustee (for the
benefit of the Certificateholders and the Surety Bond Issuer) 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 Certificateholders and the Surety Bond
Issuer; 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 Trustee a first perfected ownership interest in
the Receivables shall have been made.
SECTION 7.02. Repurchase Upon Breach. The Depositor, UAC, the Servicer,
or the Trustee, as the case may be, shall inform the Surety Bond Issuer and the
other parties promptly, in writing, upon the discovery of any breach of the
representations and warranties contained in the Purchase Agreement. Unless the
breach shall have been cured by the second Record Date following the discovery,
UAC, 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 UAC's option, the first Record Date following the discovery). In
consideration of the purchase of the Receivable, UAC shall remit the Purchase
Amount, in the manner specified in Section 9.03. The sole remedy of the Trustee,
the Trust, or the Certificateholders with respect to a breach of the
representations and warranties referred to in Section 7.01 shall be to require
UAC 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 Trustee, 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 Certificateholders, to act as the agent of the Trustee as
custodian of the following documents or instruments which are hereby
constructively delivered to the Trustee with respect to each Receivable:
(i) The original of the Receivable.
(ii) The original credit application fully executed by the
Obligor.
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(iii) The original certificate of title or such documents that
the Depositor or Servicer shall keep on file, in accordance with its
customary procedures, evidencing the security interest of the Depositor
in the Financed Vehicle.
(iv) Any and all other documents that the Servicer or the
Depositor 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 Trustee for the use and benefit of all
present and future Certificateholders, and maintain such accurate and complete
accounts, records, and computer systems pertaining to each Receivable File as
shall enable the Trustee to comply with this Agreement. 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 Trustee to verify the accuracy of the Servicer's record keeping. The
Servicer shall promptly report to the 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 Trustee by prior
written notice. The Servicer shall make available to the Trustee or its 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 Trustee shall
instruct.
(c) Release of Documents. Upon instruction from the Trustee, the
Servicer shall release any document in a Receivable File to the Trustee, the
Trustee's agent, or the Trustee's designee, as the case may be, at such place or
places as the 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
Trustee.
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SECTION 7.06. Custodian's Indemnification. The Servicer, in its
capacity as custodian, shall indemnify the Trust and the Trustee (which shall
include, for purposes of this Section 7.06, its directors, officers, employees
and agents) for 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 or the 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 Trustee. This indemnity shall
survive the termination of this Agreement and the resignation or removal of the
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 14.01, the appointment of the Servicer as
custodian may be terminated (i) by the Trustee with the consent of the Surety
Bond Issuer, which consent shall not be unreasonably withheld, (ii) by the
Holders of Certificates evidencing not less than 25% of the Certificate Balance
and 25% of the Notional Principal Amount of the Class I Certificates with the
consent of the Surety Bond Issuer, which consent shall not be unreasonably
withheld, or (iii) by the Surety Bond Issuer, without the consent of the Holders
of the Certificates (and, as to the rights of the Surety Bond Issuer under (i),
(ii) or (iii), so long as the Surety Bond Issuer is not in default of its
obligations under the Surety Bond). The Trustee may terminate the Servicer's
appointment as custodian with cause at any time upon written notification to the
Servicer. As soon as practicable after any termination of such appointment, the
Servicer shall deliver the Receivable Files to the Trustee or the Trustee's
agent at such place or places as the Trustee, with the consent of the Surety
Bond Issuer, may reasonably designate.
SECTION 7.08. Liability of the holder of the Class IC Certificate and
the Certificateholders.
(a) The holder of the Class IC Certificate shall be liable directly to
and shall indemnify any creditor of the Trust, including any injured party, for
all losses, claims, damages, liabilities and expenses of the Trust, to the
extent not paid out of the assets of the Trust, to the extent that the holder of
the IC Certificate would be liable if the Trust were a partnership under the
Uniform Limited Partnership Act in which the holder of the IC Certificate was a
general partner; provided, however, that the holder of the IC Certificate shall
not be liable for (i) any losses incurred by a Certificateholder or a
Certificate Owner in its capacity as an investor in the Certificates or (ii) any
losses, claims, damages, liabilities and expenses arising out of the imposition
by any taxing authority of any federal, state or local income or franchise taxes
or any other taxes imposed on or measured by gross or net income, gross or net
receipts, capital, net worth and similar items (including any interest,
penalties or additions with respect thereto) upon the Certificateholders, the
Certificate Owners, or the Trustee (including any liabilities, costs or expenses
with respect thereto) with respect to the Receivables not specifically
indemnified against or represented to hereunder.
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In addition, any third party creditors of the Trust (other than in connection
with the obligations described in the preceding sentence for which the holder of
the IC Certificate shall not be liable) shall be deemed third party
beneficiaries of this section 7.08(a). The obligations of the holder of the
Class IC Certificate under this Section 7.08(a) shall be evidenced by the Class
IC Certificate.
(b) No Certificate Owner or Certificateholder, other than to the extent
set forth in Section 7.08(a) with respect to the Class IC Certificateholder,
shall have any personal liability for any liability or obligation of the Trust.
(c) The Depositor shall not, without the consent of the Surety Bond
Issuer (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 IC Certificate.
ARTICLE VIII
Administration and Servicing of Receivables
SECTION 8.01. Duties of Servicer. The Servicer, for the benefit of the
Trust and the Certificateholders, 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 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
Trustee to execute and deliver, on behalf of itself, the Trust, the
Certificateholders, or the 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 Trustee
shall thereupon be deemed to have automatically assigned, solely for the purpose
of collection, such Receivable to the Servicer. The Trustee shall execute any
documents prepared by the Servicer and delivered to the Trustee 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
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collection procedures, and, as a result, any Receivable would be outstanding at
the Stated Final Distribution 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 16.02) as of the last day of the
Collection Period immediately preceding the Stated Final Distribution 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.
(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. Payments made by or on behalf of an Obligor with
respect to a Precomputed Receivable shall be applied first to overdue Scheduled
Payments (including reduction of Outstanding Advances as provided in Section
9.04). Next any excess shall be applied to the Scheduled Payment and any
remaining excess shall be added to the Payahead Balance, and shall be applied to
prepay the Precomputed Receivable, but only if the sum of such excess and the
previous Payahead Balance shall be sufficient to prepay the Receivable in full.
Otherwise, any such remaining excess payments shall constitute a Payahead and
shall increase the Payahead Balance.
SECTION 8.03. Realization Upon Receivables. (a) On behalf of the Trust
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 of the related Receivable by an amount equal to or greater
than the amount of such expenses.
(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 final scheduled
Distribution Date during the life of the Trust or (ii) if earlier, by the end of
the ninth Collection Period following the Collection Period during which such
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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 Trustee hereby authorizes the
Servicer to take such steps as are necessary to re-perfect such security
interest on behalf of the Trust in the event of the relocation of a Financed
Vehicle or for any other reason.
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 Certificateholders 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 Note Rate of a Receivable (except if so ordered
by a bankruptcy court in a proceeding concerning the Obligor).
SECTION 8.07. Purchase of Receivables Upon Breach. The Servicer or the
Trustee shall inform the other party and the Surety Bond Issuer promptly, in
writing, upon the discovery of any breach by the Servicer of its obligations
under Section 8.06. Unless the breach shall have been cured by the last day of
the Collection Period following the Collection Period during which such breach
was discovered, 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 last day of the Collection Period during which such breach
was discovered). 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 Trustee, the Trust, or
the Certificateholders with respect to a breach pursuant to Section 8.06 shall
be to require the Servicer to purchase Receivables pursuant to this Section
8.07, except as provided in Section 13.02.
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 14.02). 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 Certificate Account. The Servicer
shall also be entitled to retain, and need not deposit in the Certificate
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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 Trustee's own funds. So
long as Union Acceptance Corporation is the Servicer, if the Servicer fails to
pay the Trustee's fees and expenses pursuant to Section 15.07, the 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
Trustee that are due and payable and any unpaid amount that the Servicer has
received notice is due the 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 Trustee
and the Surety Bond Issuer a Servicer's Certificate in substantially the form of
Exhibit 3 attached hereto containing all information necessary to make the
distributions pursuant to Section 9.04 for the Collection Period preceding the
date of such Servicer's Certificate and all information necessary for the
Trustee to send statements to Certificateholders pursuant to Section 9.07,
including (A) the amount of aggregate collections on the Receivables, (B) the
aggregate Purchase Amount of the Receivables repurchased by UAC and purchased by
the Servicer, (C) with respect to Precomputed Receivables the net deposit from
the Certificate Account to the Payahead Account or the net withdrawal from the
Payahead Account to the Certificate Account required for the Collection Period
in accordance with Section 9.09, and in the case of a net withdrawal, the
Monthly Interest and Monthly Principal reported on such Servicer's Certificate
shall reflect the portions of such withdrawal allocable to interest and
principal, respectively, in accordance with this Agreement, (D) current and
cumulative information respecting (i) delinquent Receivables that are 30, 60 and
90 days past due, and (ii) charge-offs, 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
9.04 hereof reasonably requested by the Rating Agency or the Surety Bond Issuer
in order to monitor the performance of the Receivables. Receivables purchased by
UAC as of the last day of such Collection Period shall be identified by the UAC
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 Trustee and the Surety Bond Issuer, 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 such 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
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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 Trustee
addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to a Responsible Officer of the Trustee
and the Surety Bond Issuer, 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 Default under Section 14.01. The
Depositor or UAC shall deliver to a Responsible Officer of the Trustee and the
Surety Bond Issuer, 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 Default under clause (ii) of Section 14.01.
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 Trustee and
the Surety Bond Issuer on or before September 30 of each year concerning the
12-month period ended June 30 of such year (or shorter period since the date of
this Agreement), beginning on the first September 30 following the first June 30
after the Closing Date, a report addressed to the Board of Directors of the
Servicer and to the Trustee, to the effect that such firm has reviewed the
servicing of the Receivables by the Servicer and that such review (1) 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 (2)
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 Certificateholders access to the
Receivables Files in such cases where the Certificateholder 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
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disbursements of independent accountants, taxes imposed on the Servicer, and
expenses incurred in connection with distributions and reports to
Certificateholders.
SECTION 8.14. Reports to Certificateholders. The Trustee shall provide
to any Certificateholder who so requests in writing (addressed to the Corporate
Trust Office) a copy of any certificate described in Section 8.09, or the annual
statement described in Section 8.10, or the annual report described in Section
8.11. The Trustee may require the Certificateholder to pay a reasonable sum to
cover the cost of the Trustee's complying with such request.
ARTICLE IX
Distributions; Statements to Certificateholders
SECTION 9.01. Certificate Account. The Servicer, on behalf of the
Trust, shall establish the Certificate Account with an Eligible Bank as a
segregated trust account in the name of the Trust for the benefit of
Certificateholders with the Corporate Trust Office of the Trustee. The Servicer
shall direct the Trustee to invest the amounts in the Certificate Account in
Eligible Investments that mature not later than the Business Day prior to the
next succeeding Distribution Date and to hold such Eligible Investments to
maturity. The Trustee (or its custodian) shall (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 Trustee
or registered in the name of the Trustee and (ii) cause any Eligible Investment
represented by an uncertificated security to be registered in the name of the
Trustee.
SECTION 9.02. Collections. The Servicer shall remit to the Certificate
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) UAC remains the
Servicer, (b) no Event of Default shall have occurred and be continuing and
(c)(1) UAC maintains a short-term rating of at least A-1 by Standard & Poor's
and P-l by Moody's (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 Surety Bond Issuer (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 Certificate
Account on a less frequent basis, but in no event later than the Determination
Date immediately preceding each Distribution
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Date. The Servicer shall remit any Advances with respect to a Collection Period
to the Certificate Account on or before the Determination Date.
On each Determination Date, the Servicer shall determine (a) 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 Certificate Account (net
of amounts required to be paid pursuant to Section 9.04(d), excluding investment
income on all such amounts, and not including amounts required to be paid
pursuant to Sections 7.02, 8.07, and 9.05 but not so paid) after giving effect
to the net transfer from the Certificate Account to the Payahead Account or from
the Payahead Account to the Certificate Account as provided in Section 9.09,
(the "Available Funds"), and (b) the amount of funds necessary to make the
distributions required pursuant to Sections 9.04(a) (i) through (vii),
inclusive, on the next Distribution Date. The Servicer shall by a Servicer's
Certificate notify the Trustee of such amounts by telecopy to the Corporate
Trust Office at the number specified in the Agreement (or such other number as
the Trustee may from time to time provide), followed promptly by mailing such
notice to the Trustee at the Corporate Trust Office and to the Surety Bond
Issuer. On each Distribution Date, the Trustee, or the Servicer on its behalf,
shall effect the net transfer between the Certificate Account and the Payahead
Account as required by Section 9.09 for such Distribution Date.
On any Distribution Date on which there are not sufficient Available
Funds to make the distributions required pursuant to Sections 9.04(a)(i) through
(iii) the Trustee, 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 Certificate Account. If such
deficiency exceeds the Available Spread Amount, the Servicer shall
simultaneously and in the same manner also notify the Trustee and the Surety
Bond Issuer of the amount of such excess deficiency. The Trustee shall promptly
(and in any event not later than 1:00 p.m. New York City time on the Business
Day preceding the Distribution Date) deliver a Notice for Payment as defined in
the Surety Bond (appropriately completed) to the Surety Bond Issuer with respect
to the Surety Bond. The Surety Bond Issuer is required pursuant to Section 10.03
and the terms of the Surety Bond to pay the amount of such excess deficiency of
Class I Monthly Interest, Class A Monthly Interest and Monthly Principal, up to
the Surety Bond Amount.
The Trustee shall deposit in the Certificate Account any funds received
by the Trustee in respect of funds drawn under the Surety Bond from the Surety
Bond Issuer.
If the Available Funds for a Distribution Date are insufficient to pay
current and past due Surety Bond Fees, or any amounts owing to the Surety Bond
Issuer pursuant to the Insurance Agreement including, without limitation,
reimbursements, indemnities, fees and expenses, plus accrued interest thereon,
to the Surety Bond Issuer, the Servicer shall notify the 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.
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SECTION 9.03. Purchase Amounts. Not later than the Determination Date,
the Servicer or UAC shall remit to the Certificate Account the aggregate
Purchase Amount for such Collection Period pursuant to Sections 7.02 and 8.07.
SECTION 9.04. Distributions to Parties.
(a) On each Distribution Date, the Trustee shall apply or cause to be
applied the Available Funds in the Certificate Account for the prior Collection
Period, (plus any amounts withdrawn from the Spread Account or drawn on the
Surety Bond pursuant to Section 9.02), to make the following distributions in
the listed order of priority:
(i) The aggregate amount of (y) Outstanding Advances on
all Receivables that became Defaulted Receivables during the prior
Collection Period, and (z) Outstanding Advances which the Servicer
determines to be unrecoverable pursuant to Section 9.05, to the
Servicer;
(ii) To the extent not previously distributed to the
Servicer, the Monthly Servicing Fee, including any overdue Monthly
Servicing Fee, to the Servicer;
(iii) Pro rata, (in accordance with Section 9.04(b)(i)),
(y) the Monthly Principal and Class A Monthly Interest, including any
overdue Monthly Principal and Class A Monthly Interest, to the Class A
Certificateholders, and (z) Class I Monthly Interest, including any
overdue Class I Monthly Interest, to the Class I Certificateholders;
(iv) The Surety Bond Fee, including any overdue Surety
Bond Fee, plus accrued interest thereon at the rate provided in the
Insurance Agreement, to the Surety Bond Issuer;
(v) The amount of Recoveries of Advances, to the Servicer
(to the extent not applied pursuant to (i) above on or prior to
such Distribution Date);
(vi) The aggregate amount of all unreimbursed draws made
on the Surety Bond in respect of Class A Monthly Interest, Class I
Monthly Interest and Monthly Principal and any other amounts payable to
the Surety Bond Issuer under the Insurance Agreement, plus accrued
interest thereon at the rate provided in the Insurance Agreement, to
the Surety Bond Issuer;
(vii) The balance for deposit in the Spread Account. The
rights of the Class IC Certificateholder to receive distributions from
the Spread Account are described in Sections 10.02(e) and (f).
(b)(i) If on any Distribution Date there are not sufficient Available
Funds to pay the distribution required by Section 9.04(a)(iii), the Available
Funds distributable under Section 9.04(a)(iii) shall be distributed
proportionately on the basis of the ratio of the required distribution due each
of the Class A and Class I Certificateholders, respectively, to the sum
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of the distributions required by Section 9.04(a)(iii) to the Class A
Certificateholders and the Class I Certificateholders. The amount so distributed
to the Class A Certificateholders hereunder shall be allocated first to Class A
Monthly Interest, and second to Monthly Principal.
(ii) Notwithstanding the foregoing, the Class I Certificateholders will
not be entitled to any distributions after the Notional Principal Amount of the
Class I Certificates has been reduced to zero.
(iii) Notwithstanding the foregoing, if either (A) the Class IC
Certificateholder exercises its option to cause a disposition of the remaining
corpus of the Trust on any Distribution Date pursuant to Section 16.02, or (B)
the Receivables are liquidated in any Collection Period after the occurrence of
an Insolvency Event with respect to the Class IC Certificateholder which causes
a termination of the Trust pursuant to Section 16.03, the following shall apply:
(a) the Available Funds and amounts withdrawn from the Spread Account or drawn
on the Surety Bond in respect only of Monthly Interest and Monthly Principal
with respect to the immediately preceding Distribution Date as determined in
accordance with Section 9.02 and 9.04 shall be distributed to Certificateholders
on such Distribution Date; (b) the Surety Bond will not be available to pay any
shortfall of Monthly Interest or Monthly Principal after a disposition of the
Receivables pursuant to Section 16.02 or after liquidation of the trust assets
pursuant to Section 16.03; and (c) the Optional Disposition Price (in the case
of clause (A) of this paragraph) and the proceeds of any liquidation of
Receivables (in the case of clause (B) of this paragraph) and any remaining
assets of the Trust (including the remaining Available Spread Amount) shall be
distributed to Certificateholders on such Distribution Date based on their
Adjusted Capital Accounts (as defined in Section 6(c)(iv) of Annex A attached
hereto) in accordance with Section 6(b)(iii) and Section 9 of Annex A attached
hereto.
(iv) In making such distributions the Trustee shall be entitled to rely
upon (without investigation, confirmation or recalculation) all information and
calculations contained in the Servicer's Certificate delivered to the Trustee
pursuant to Section 8.09 hereof.
(v) All monthly distributions shall be made by wire transfer of
immediately available funds to each Certificateholder of record on the preceding
Record Date. Notwithstanding the foregoing, the final payment on each
Certificate shall be made only against presentation and surrender of the
Certificate at the office or agency then maintained by the Trustee in accordance
with Section 11.07.
(c) On each Distribution Date, the Trustee shall remit to the Servicer
all investment income earned through the last day of the preceding Collection
Period on amounts held from time to time in the Certificate Account.
(d) On each Distribution Date, if the Servicer has reported to the
Trustee in the Servicer's Certificate for any Collection Period that an Obligor
or an Obligor's representative or successor successfully shall have asserted a
claim or defense under bankruptcy law or similar laws for the protection of
creditors generally (including the
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avoidance of a preferential transfer under bankruptcy law) that results in a
liability of the Trust to such Obligor for monies previously collected and
remitted to the Trustee and not otherwise netted against collections pursuant to
Section 9.02, the Trustee shall make all payments in respect of such claims or
defenses out of the amounts on deposit in the Certificate Account with respect
to such Collection Period before making the distributions required by paragraph
(a) of this Section 9.04.
(e) If the Servicer has failed to provide the Trustee with the notice
required pursuant to Section 9.02, the Trustee may calculate Monthly Interest
and Monthly Principal and apply funds, if any, in the Certificate Account as of
the last day of the Collection Period, to make a distribution of Monthly
Interest and Monthly Principal to the Certificateholders.
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 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
Certificate 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.
SECTION 9.06. Net Deposits. For so long as Union Acceptance Corporation
is the Servicer, Union Acceptance Corporation (in whatever capacity) may make
the remittances with respect to any Distribution Date pursuant to Section 9.02
above, net of amounts to be distributed to itself or its delegee under Section
13.06 (also in whatever capacity) pursuant to Section 9.04, if it determines
pursuant to Section 9.02 that there is no deficiency in Available Funds for such
Distribution Date. Nonetheless, the Servicer shall account for all of the above
described amounts as if such amounts were deposited and distributed.
SECTION 9.07. Statements to Certificateholders. On each Distribution
Date, the Trustee shall include with each distribution to the Certificateholders
and shall mail to the Rating Agency a statement, based on information in the
Servicer's Certificate furnished to the Trustee by the Servicer pursuant to
Section 8.09, setting forth for the Collection Period relating to such
Distribution Date the following information (which in the case of
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items (i) through (v), inclusive, shall be based on a Certificate in a principal
amount of $1,000):
(i) the amount of the aggregate distribution that constitutes
Class A Monthly Interest;
(ii) the amount of the aggregate distribution that constitutes
Class I Monthly Interest and the Notional Principal Amount (after
giving effect to any application of Monthly Principal required to be
made on such date) on which Class I Monthly Interest will be calculated
on that next succeeding Distribution Date;
(iii) the amount of the aggregate distribution that
constitutes Monthly Principal
(iv) the Certificate Balance (after giving effect to any
distribution of Monthly Principal made on such Distribution Date) on
which Class A Monthly Interest will be calculated on the next
succeeding Distribution Date;
(v) the Certificate Factor (after giving effect to any
distribution of Monthly Principal made on such Distribution Date);
(vi) the amount on deposit in the Spread Account after giving
effect to distributions made on such Distribution Date;
(vi) the Monthly Servicing Fee for such Distribution Date.
(vii) the Surety Bond Fee for such Distribution Date;
(viii) the Surety Bond Amount (after giving effect to any draw
on the Surety Bond or the Spread Account on such Distribution Date).
Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of the Agreement, the Trustee
shall mail, to each Person who at any time during such calendar year shall have
been a Certificateholder, a statement containing the annual sum of the
respective amounts determined in clauses (i) through (v) for such calendar year,
as applicable to such Person, or, in the event such Person shall have been a
Certificateholder during a portion of such calendar year, for the applicable
portion of such year, unless substantially comparable information has been
provided to such Certificateholder, for the purposes of such Certificateholder's
preparation of federal income tax returns pursuant to Section 5(b) of Annex A
hereto. To the extent required by applicable law, the Servicer shall prepare or
cause to be prepared and the Class IC Certificateholder or the Trustee shall
sign the tax returns of the Trust and shall file such returns and such of the
above information with the Internal Revenue Service.
SECTION 9.08. Intentionally Blank.
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SECTION 9.09. Payahead Account. The Servicer shall establish the
Payahead Account in the name of the Trustee on behalf of the Obligors and the
Certificateholders as their interests may appear. The Payahead Account shall be
a segregated interest bearing trust account established with the Trustee or an
Eligible Bank. Amounts in the Payahead Account shall be invested in Eligible
Investments that mature not later than the Distribution Date next succeeding
such investment. The Payahead Account is not property of the Trust. Investment
income or interest earned on the Payahead Account shall be remitted to the
Servicer at least monthly, or as frequently as the Servicer may reasonably
request. On or prior to each Distribution Date, the Servicer shall transfer or
the Trustee (as instructed in the Servicer's Certificate) shall transfer (a)
from the Certificate Account to the Payahead Account, in immediately available
funds, all Payaheads received by the Servicer and previously deposited to the
Certificate Account during the Collection Period as described in Section
8.02(b); and (b) from the Payahead Account to the Certificate Account, in
immediately available funds, the aggregate amount of previously deposited
Payaheads to be applied to Scheduled Payments on Precomputed Receivables for the
related Collection Period or prepayments for the related Collection Period,
pursuant to Section 8.02(b), each in the amounts set forth in the Servicer's
Certificate delivered on the related Determination Date. A single, net transfer
between the Payahead Account and the Certificate Account may be made. Any amount
deposited in the Payahead Account shall not constitute Available Funds under
Section 9.02. Any amount deposited to the Certificate Account from the Payahead
Account pursuant to Section 9.09(b) shall be included in Available Funds under
Section 9.02.
SECTION 9.10. Calculation of Notional Principal Amount.
(a) Solely for the purpose of calculating the Class I Monthly Interest,
the Certificate Balance will be divided into, and equal the sum of, two
principal components: (i) the "PAC Component" and (ii) the "Companion
Component." The PAC Component shall initially equal the Original Notional
Principal Amount.
(b) On each Distribution Date, solely for the purposes of calculating
the Notional Principal Amount, the Monthly Principal will be allocated (i)
first, to the PAC Component up to the amount necessary to reduce the PAC
Component to its Planned Notional Principal Amount for such Distribution Date,
(ii) second, to the Companion Component until the balance thereof is reduced to
zero, and (iii) third, to the PAC Component without regard to the Planned
Notional Principal Amount for such Distribution Date.
ARTICLE X
Credit Enhancement
SECTION 10.01. Subordination. The rights of the Class IC
Certificateholder shall be subordinated to the rights of the Class A and Class I
Certificateholders to the extent described in Section 9.04.
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SECTION 10.02. Spread Account.
(a) On or prior to the Closing Date, the Trustee shall establish and
maintain a segregated trust account in the corporate trust department of an
Eligible Bank referred to herein as the "Spread Account." The Spread Account
shall be maintained in the name of the Trustee. The Spread Account and any
amounts on deposit therein shall be part of the Trust and shall be for the
benefit of the Certificateholders and the Surety Bond Issuer, as their
respective interests may appear herein; provided, however, that the interest of
the Surety Bond Issuer and the Class IC Certificateholder shall be subordinated
to the interests of the other Certificateholders as provided herein.
(b) Funds on deposit in the Spread Account shall be invested in
Eligible Investments in the same manner and subject to the same requirements and
limitations as the investment of funds in the Certificate Account pursuant to
Section 9.01, including the limitation that Eligible Investments mature not
later than the Business Day prior to the next succeeding Distribution Date;
provided, however, no such limitation on the maturity of Eligible Investments
shall apply if the Trust obtains the benefit of a liquidity facility or similar
arrangement from a commercial bank with an Approved Rating or other provider
approved in advance in writing by the Surety Bond Issuer, with respect to funds
in the Spread Account (a "Spread Account Facility") and Standard & Poor's and
Moody's confirm in writing that the rating of the Certificates will not be
lowered or withdrawn as a result of eliminating or modifying the limitation on
the maturity of Permitted Investments in respect of the Spread Account. For
purposes of determining the availability of funds or the balance in the Spread
Account for any reason under this Agreement, investment earnings on such funds
shall be deemed to be available or on deposit only to the extent that the
aggregate of such amounts, plus the funds on deposit in the Spread Account, do
not exceed the Required Spread Amount.
(c) If on any Distribution Date the amount of Available Funds is
insufficient to make the distributions required by Section 9.04(a)(iii) the
Trustee shall withdraw or cause to be withdrawn from the Spread Account and
deposited in the Certificate Account the lesser of (i) the entire Available
Spread Amount and (ii) the amount necessary to make up such deficiency to pay
any deficiency in Class I Monthly Interest, Class A Monthly Interest and Class A
Monthly Principal (prior to making any draw on the Surety Bond), all as provided
in Sections 9.02 and 9.04 and the Surety Bond.
(d) On each Distribution Date, all distributions made pursuant to
Section 9.04(a) (vii) shall be deposited into the Spread Account.
(e) If the amount on deposit in the Spread Account, after giving effect
to the distributions set forth in Section 9.04 (including, without limitation,
payment of amounts due and owing to the Surety Bond Issuer) is greater than the
Required Spread Amount on such Distribution Date, the amount of such excess
shall be distributed to the Class IC Certificateholder. Amounts properly
distributed to the Class IC Certificateholder pursuant to this Section, either
directly without deposit in the Spread Account or from excess amounts
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in the Spread Account shall be deemed released from the Trust and from any
security interest of the Trustee or the Surety Bond Issuer.
(f) Upon the termination of this Agreement, amounts remaining in the
Spread Account, after payment of any amounts due and owing to the Class A and
Class I Certificates and to the Surety Bond Issuer, shall be distributed to the
Class IC Certificateholder and such amounts shall not be subject to any claims
or rights of the other Certificateholders to the extent that such action is not
inconsistent with Section 6(b)(ii) and Section 9 of Annex A hereto.
SECTION 10.03. Surety Bond. The Surety Bond Issuer is required under
the terms of the Surety Bond to pay Class I Monthly Interest, Class A Monthly
Interest and Monthly Principal up to the Surety Bond Amount in the event of any
deficiency of Available Funds to pay such amounts (after payment of the Monthly
Servicing Fee) not covered by amounts withdrawn from the Spread Account, as
determined pursuant to Section 9.02 to the Trustee for credit to the Certificate
Account on the later of (a) 11:00 a.m., New York City time, on the Business Day
immediately preceding a Distribution Date and (b) 11:00 a.m., New York City
time, on the Business Day immediately succeeding presentation to the Surety Bond
Issuer of the Trustee's demand therefor. Any demand for payment pursuant to
Section 9.02 to the Surety Bond Issuer received by the Surety Bond Issuer on a
Business Day after 1:00 p.m., New York City time, or on any day that is not a
Business Day, will be deemed to be received by the Surety Bond Issuer at 9:00
a.m., New York City time, on the next Business Day. Notwithstanding the
forgoing, on a Dissolution Distribution Date, the obligations of the Surety Bond
Issuer under the Surety Bond shall be limited in accordance with Section
9.04(b)(iii).
ARTICLE XI
The Certificates
SECTION 11.01. The Certificates. The Class A and Class I Certificates
shall be issued in denominations of $1,000 ($1,000 Notional Principal Amount in
the case of the Class I Certificates) and integral multiples thereof; provided,
however, that one Class A Certificate may be issued in a denomination that
represents any residual amount and that such Certificate shall be retained by
the Depositor. The Class IC Certificate shall be issued in the form of a single
Certificate and shall initially be issued to the Depositor. The Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the Trustee. Certificates 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 valid and
binding obligations 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 Certificates or did not hold such offices at the date of such
Certificates.
SECTION 11.02. Authentication of Certificates. The Trustee shall cause
the Certificates to be executed on behalf of the Trust, authenticated, and
delivered to or upon
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the written order of the Depositor, signed by its chairman of the board, its
president, or any vice president, without further corporate action by the
Depositor, 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 forms of
Certificate attached as Exhibits to this Agreement, executed by a Responsible
Officer of the Trustee by manual signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 11.03. Registration of Transfer and Exchange of Certificates.
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 11.07, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall be the initial Certificate
Registrar.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the 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 Trustee, provided, however, that registration of
transfer of the Class IC Certificate may not be effected unless (A) the 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 Certificates;
and (B) the Surety Bond Issuer has consented to such transfer. At the option of
a Holder, Certificates may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender of the Certificates to
be exchanged at the Corporate Trust Office.
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 Trustee and the Certificate Registrar duly executed by the
Holder or his attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer and exchange shall be cancelled and subsequently
destroyed by the Trustee.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the 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 Certificates.
SECTION 11.04. Mutilated, Destroyed, Lost, or Stolen Certificates. If
(a) any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss, or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar or the Trustee such security or indemnity
as may be required by them to save each of them harmless, then in
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the absence of notice that such Certificate shall have been acquired by a bona
fide purchaser, the Trustee on behalf of the Trust shall execute and the 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 11.04, the Trustee and the Certificate Registrar 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 11.04 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.
SECTION 11.05. Persons Deemed Owners. Prior to registration of
transfer, the Trustee or the Certificate Registrar may treat the Person in whose
name any Certificate shall be registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 9.04 and for all
other purposes whatsoever, and neither the Trustee nor the Certificate Registrar
shall be bound by any notice to the contrary.
SECTION 11.06. Access to Agreement and List of Certificateholders'
Names and Addresses. The Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Trustee of a request therefor from
the Servicer in writing, a list, in such form as the Servicer may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date. If three or more Certificateholders, or one or more Holders
of Certificates aggregating not less than 25% of the Certificate Balance or not
less than 25% of the Notional Principal Amount of the Class I Certificates,
apply in writing to the Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application shall be
accompanied by a copy of the communication that such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Certificateholders. The Trustee shall also allow any
Certificateholder, upon request, to examine a copy of this Agreement at its
Corporate Trust Office during regular business hours. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed to hold neither the
Servicer nor the Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 11.07. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Certificates and this Agreement may be served. The Trustee
initially designates the Corporate Trust Office as specified in this Agreement
as its office for such purposes. The Trustee shall give prompt written notice to
the Servicer and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
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SECTION 11.08. Book-Entry Certificates. The Class A Certificates and
Class I Certificates, upon original issuance, shall be issued in the form of one
or more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Class A Certificates and Class I Certificates
shall initially be registered on the Certificate Register in the name of CEDE &
Co., the nominee of the Clearing Agency, and no Certificate Owner will receive a
definitive Certificate representing such Certificate Owner's interest in the
Certificates, except as provided in Section 16.10. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
Certificate Owners pursuant to Section 11.10:
(i) the provisions of this Section 11.08 shall be in full
force and effect;
(ii) the Depositor, the Servicer and the Trustee may deal with
the Clearing Agency and the Clearing Agency Participants for all
purposes (including the making of distributions on the Certificates) as
the authorized representatives of the Certificate Owners (requests and
directions from, and votes of, such representatives shall not be
considered inconsistent if they are made with respect to different
Certificate Owners);
(iii) to the extent that the provisions of this Section 11.08
conflict with any other provisions of this Agreement, the provisions of
this Section 11.08 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Depository Agreement, unless and
until Definitive Certificates are issued pursuant to Section 11.10, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to such Clearing Agency
Participants.
SECTION 11.09. Notices to Clearing Agency. Whenever notice or other
communication to the Class A Certificateholders or Class I Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 11.10, the Trustee
shall give all such notices and communications specified herein to be given to
such Certificateholders to the Clearing Agency.
SECTION 11.10. Definitive Certificates. The Class IC Certificate will
be issued initially in fully registered, certificated form. If (i)(A) the
Depositor advises the Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities under the Depository
Agreement, and (B) the Trustee or the Depositor is unable to locate a qualified
successor, (ii) the Depositor, at its option, advises the Trustee
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in writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default,
Certificate Owners representing beneficial interests aggregating not less than
50% of the Certificate Balance advise the Trustee and the Clearing Agency in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interests of the Certificate Owners, the Trustee shall
notify the Clearing Agency of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed on or to be performed by the Clearing Agency shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
SECTION 11.11. The Tax Partnership Agreement. Each of the Class A and
Class I Certificateholders and the Class IC Certificateholder agrees to be bound
by the terms of the Tax Partnership Agreement attached hereto as Annex A.
ARTICLE XII
The Depositor
SECTION 12.01. Representations and Undertakings of Depositor. (a) The
Depositor makes the following representations on which the Trustee relies in
accepting the Receivables in trust and executing and authenticating the
Certificates. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Depositor shall have
been duly organized and shall be validly existing as a corporation in
good standing 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 shall have, power,
authority, and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Depositor shall be duly qualified
to do business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and approvals in all jurisdictions
in which the ownership or lease of property or the conduct of its
business shall require such qualifications.
(iii) Power and Authority. The Depositor shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms, the
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Depositor shall have full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trustee as
part of the Trust and shall have duly authorized such sale and
assignment to the Trustee by all necessary corporate action; and the
execution, delivery, and performance of the Agreement shall have been
duly authorized by the Depositor by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement shall
evidence a valid sale, transfer, and assignment of the Receivables,
enforceable against creditors of and purchasers from the Depositor; and
shall evidence a legal, valid, and binding obligation of the Depositor
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
shall 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 Depositor, or any
indenture, agreement, or other instrument to which the Depositor 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 indenture, agreement, or other instrument (other than this
Agreement); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule, or regulation applicable to the Depositor
of any court or of any federal or State regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over
the Depositor or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Depositor's best knowledge,
threatened, before any court, regulatory body, administrative agency,
or other governmental instrumentality having jurisdiction over the
Depositor or its properties: (A) asserting the invalidity of this
Agreement or the Certificates, (B) seeking to prevent the issuance of
the Certificates or 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
Depositor of its obligations under, or the validity or enforceability
of, this Agreement or the Certificates, or (D) which might adversely
affect the federal income tax attributes of the Certificates.
(b) The Depositor 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 Certificate of
Incorporation delivered to the Surety Bond Issuer on or prior to the Closing
Date, and will not amend its Certificate of Incorporation without the prior
written consent of the Surety Bond Issuer.
(ii) It will not:
(A) Fail to do all things necessary to maintain its corporate
existence separate and apart from UAC and any other Person, including,
without limitation, holding regular
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meetings of its stockholders and board of directors and maintaining appropriate
corporate books and records (including a current minute book);
(B) Suffer any limitation on the authority of its own
directors 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 to customarily delegated to others under powers
of attorney) for which a corporation's own Officers and directors would
customarily be responsible;
(C) Fail to (I) maintain or cause to be maintained by an agent
of the Depositor under the Depositor's control physical possession of all its
books and records, (II) maintain capitalization adequate for the conduct of its
business, (III) account for and mange 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 Depositor or (VI) maintain a separate office address with a
separate telephone number from those of UAC 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 Depositor has similar
rights and/or obligations, commingle its funds with those of UAC or any
affiliate thereof or use its funds for other than the Depositor's uses.
SECTION 12.02. Liability of Depositor; Indemnities. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement.
(i) The Depositor shall indemnify, defend, and hold
harmless the Trustee, its officers, directors, employees and agents and
the Trust from and against any taxes that may at any time be asserted
against the Trustee, its officers, directors, employees or agents or
the Trust with respect to, and as of the date of, the sale of the
Receivables to the Trustee or the issuance and original sale of the
Certificates, 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 Certificates) and costs and
expenses in defending against the same.
(ii) The Depositor shall indemnify, defend, and hold
harmless the Trustee, its officers, directors, employees and agents and
the Trust from and against any loss, liability, or expense incurred by
reason of (a) the Depositor'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 Depositor's violation of federal or State
securities laws in connection with the registration of the sale of the
Certificates.
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Indemnification under this Section 12.02 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Depositor shall have made any indemnity payments to the Trustee or the
Trust pursuant to this Section and the Trustee or the Trust thereafter shall
collect any of such amounts from others, the Trustee or the Trust, as the case
may be, shall repay such amounts to the Depositor, without interest. This
indemnification shall survive the termination of this Agreement and the
resignation or removal of the Trustee.
SECTION 12.03. Merger or Consolidation of, or Assumption of the
Obligations of Depositor. Any Person (a) into which the Depositor may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Depositor shall be a party, or (c) which may succeed to all or substantially
all of the properties and assets of the Depositor's business, which Person in
any of the foregoing cases executes an agreement of assumption to perform every
obligation of the Depositor under this Agreement, shall be the successor to the
Depositor 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
Default, and no event that, after notice or lapse of time, or both, would become
an Event of Default shall have happened and be continuing, (ii) the Depositor
shall have delivered to the 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, if any, provided for in this Agreement relating to such transaction
have been complied with and (iii) the Depositor shall have delivered an Opinion
of Counsel 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 Trustee 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
forgoing, the Depositor shall not engage in any merger or consolidation with any
Person, or a disposition of all or substantially all of its assets without the
prior written consent of the Surety Bond Issuer, not to be unreasonably
withheld.
SECTION 12.04. Limitation on Liability of Depositor and Others. The
Depositor and any director or officer or employee or agent of the Depositor 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 Depositor 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.
SECTION 12.05. Depositor May Own Certificates. The Depositor and any
Person controlling, controlled by, or under common control with the Depositor
may in its individual or any other capacity become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Depositor
or an affiliate thereof, except as otherwise provided in the definition of
"Certificateholder", "Class A Certificateholder" and "Class I
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Certificateholder." Certificates so owned by or pledged to the Depositor or such
controlling or commonly controlled Person shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority, or
distinction as among all of the Certificates.
ARTICLE XIII
The Servicer
SECTION 13.01. Representations of Servicer. The Servicer makes the
following representations on which the Trustee relies in accepting the
Receivables in trust and executing and authenticating the Certificates. The
representations speak as of the execution and delivery of this Agreement and
shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Servicer shall
have been duly organized and shall be validly existing as a corporation
under the laws of the State of Indiana, 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 shall have, 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 Trustee.
(ii) Due Qualification. The Servicer shall be duly
qualified to do business as a foreign corporation in good standing, and
shall have 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) shall require such qualifications.
(iii) Power and Authority. The Servicer shall have 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 shall have been duly authorized by the Servicer by all
necessary corporate action.
(iv) Binding Obligations. This Agreement shall constitute
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
shall 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
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the Servicer 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 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 or the
Certificates, (B) seeking to prevent the issuance of the Certificates
or 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 the Certificates, or (D) which might adversely affect the federal
income tax attributes of the Certificates.
SECTION 13.02. 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 Trustee, its officers, directors, employees and agents,
the Trust and the Certificateholders 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 Trustee, its officers, directors, employees and agents and
the Trust from and against any taxes that may at any time be asserted
against the Trustee, its officers, directors, employees or agents or
the Trust 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
Certificates, or asserted with respect to ownership of the Receivables,
or federal or other income taxes arising out of distributions on the
Certificates) and costs and expenses in defending against the same.
(iii) The Servicer shall indemnify, defend, and hold
harmless the Trustee, its officers, directors, employees and agents,
the Trust and the Certificateholders from and against any and all
costs, expenses, losses, claims, damages, and liabilities to the extent
that such cost, expense, loss, claim, damage, or liability arose out
of, or was imposed upon the Trustee, the Trust or the
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Certificateholders 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 Trustee
(iv) The Servicer shall indemnify, defend, and hold
harmless the Trustee, its 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, 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 Trustee; (b) relates to any tax other than
the taxes with respect to which either the Depositor or Servicer shall
be required to indemnify the Trustee; (c) shall arise from the
Trustee's breach of any of its representations or warranties set forth
in Section 15.13; (d) shall be one as to which the Depositor is
required to indemnify the Trustee; or (e) shall arise out of or be
incurred in connection with the acceptance or performance by the
Trustee of the duties of successor Servicer hereunder.
Indemnification under this Section 13.02 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 13.03. 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 Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default shall have happened and be continuing, (ii) the
Servicer shall have delivered to the 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 13.03 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 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 Trustee and the Surety Bond Issuer 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.
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Notwithstanding the forgoing, the Servicer shall not engage in any merger or
consolidation in which it is not the surviving corporation without the prior
written consent of the Surety Bond Issuer, not to be unreasonably withheld.
SECTION 13.04. 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 or the Certificateholders,
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 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 13.05. 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 Trustee and the Surety Bond
Issuer. Any determination described above permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Trustee. No such resignation shall become effective until the Trustee or a
successor servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Section 14.02.
SECTION 13.06. Delegation of Duties. Except as provided in Section
13.03 hereof, it is understood and agreed by the parties hereto that the
Servicer or the Depositor 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 Depositor 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 Depositor or the Servicer hereunder. Any such delegation shall
not relieve the Servicer or the Depositor of their respective liability and
responsibility with respect to such duties, and shall not constitute a
resignation within Section 13.05 hereof. The Servicer shall give written notice
to the Rating Agency, the Surety Bond Issuer and the Trustee of any such
delegation.
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ARTICLE XIV
Default
SECTION 14.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) Any failure by the Servicer or UAC to deliver to the
Trustee for distribution to Certificateholders any proceeds or payment
required to be so delivered under the terms of the Certificates and
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 Trustee, the Surety Bond
Issuer (so long as the Surety Bond Issuer is not in default of its
obligations under the Surety Bonds) or the Holders of Certificates
evidencing not less than 25% of the Certificate Balance and 25% of the
Notional Principal Amount of the Class I Certificates is received by
the Servicer or UAC 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 Depositor or UAC
duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer, the Depositor or UAC, as the
case may be, set forth in the Certificates or in this Agreement or the
Purchase Agreement, which failure shall (a) materially and adversely
affect the rights of Certificateholders or the Surety Bond Issuer 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 (1) to the Servicer, UAC or the Depositor, as the
case may be, by the Trustee, or (2) to the Servicer or the Depositor,
as the case may be, and to the Trustee, by the Surety Bond Issuer (so
long as the Surety Bond Issuer is not in default of its obligations
under the Surety Bonds) or by the Holders of Certificates evidencing
not less than 25% of the Certificate Balance and 25% of the Notional
Principal Amount of the Class I Certificates; 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 Default shall not have
been remedied, either the Trustee, or the Holders of Certificates evidencing not
less than 25% of the Certificate Balance and 25% of the Notional Principal
Amount of the Class I Certificates, by notice then given in writing to the
Servicer (and to the Trustee if given by the Certificateholders) may, with the
consent of the Surety Bond Issuer (so long as the Surety Bond Issuer is not in
default of its obligations under the Surety Bonds) 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 Surety
Bond Issuer may (A) require that the Trustee deliver a notice of termination to
the Servicer and appoint a successor Servicer designated by the Surety Bond
Issuer in such notice pursuant to Section
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14.02 (B) require that the Trustee amend certificates of title relating to the
Financed Vehicles and take other actions to identify the Trust 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 Trustee
instruct Obligors in respect of the Receivables to remit payment on the
Receivable directly to the 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 Surety Bond Issuer or to the
successor Servicer designated by the Surety Bond Issuer. 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 Certificates or the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Trustee (except that the Trustee may but shall not be required to make
Advances and shall not be subject to the indemnification obligations of the
Servicer under Section 13.02(i), (ii) or (iv)) or such successor Servicer as may
be appointed under Section 14.02 pursuant to and under this Section 14.01; and,
without limitation, the Trustee is hereby authorized and 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 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 14.01 shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and expenses.
SECTION 14.02. Appointment of Successor. (a) Upon the Servicer's
receipt of notice of termination pursuant to Section 14.01 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
(x) the date 45 days from the delivery to the Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (y) 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 Trustee shall appoint a successor
Servicer, which successor Servicer shall be reasonably acceptable to the Surety
Bond Issuer (so long as the Surety Bond Issuer is not in default of its
obligations under the Surety Bond), and the successor Servicer shall accept its
appointment by a written assumption in
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form acceptable to the 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 14.02, the Trustee without further
action shall automatically be appointed the successor Servicer. Notwithstanding
the above, the Trustee shall, if it shall be legally unable 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 Trustee, reasonably acceptable to the
Surety Bond Issuer.
(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 Servicing Fee
and all of the rights granted to the predecessor Servicer, by the terms and
provisions of this Agreement. The predecessor Servicer shall be entitled to be
reimbursed for Outstanding Advances.
(c) In connection with such appointment, the Trustee may make such
arrangements for 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 Trustee and such successor Servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 14.03. Notification to Certificateholders. Upon any notice of
an Event of Default or upon any termination of, or appointment of a successor
to, the Servicer pursuant to this Article XIV, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
SECTION 14.04. Waiver of Past Defaults. The Holders of Certificates
evidencing not less than 51% of the Certificate Balance and 51% of the Notional
Principal Amount of the Class I Certificates, may, on behalf of all Holders of
Certificates, 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 Certificate Account in accordance with
this Agreement; provided, that the no waiver of any default or provision of this
Agreement shall become effective without the consent of the Surety Bond Issuer
(unless the Surety Bond Issuer is in default of its obligations under the Surety
Bond). Upon any such waiver of a past default, such default shall cease to
exist, and any Event of 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.
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ARTICLE XV
The Trustee
SECTION 15.01. Duties of Trustee. The Trustee, both prior to and after
the occurrence of an Event of Default, shall undertake to perform such duties as
are specifically set forth in this Agreement. If an Event of Default shall have
occurred and shall not have been cured and, in the case of an Event of Default
described in clause (i) of Section 14.01, the Trustee has received notice of
such Event of Default, the 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 man would exercise or use under the
circumstances in the conduct of his own affairs; provided, however, that if the
Trustee shall assume the duties of the Servicer pursuant to Section 14.02, the
Trustee in performing such duties shall use the degree of skill and attention
customarily exercised by a servicer with respect to automobile receivables that
it services for itself or others.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
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
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 Default, and
after the curing of all such Events of Default that may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the 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 Trustee
and, in the absence of bad faith on the part of the Trustee, or
manifest error, the 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 Trustee and conforming to the
requirements of this Agreement;
(ii) The 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 Trustee shall have been negligent in ascertaining
the pertinent facts;
(iii) The 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 Holders of
Certificates evidencing not less than 25% of the Certificate Balance
relating to the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement;
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(iv) The 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 14.01, or of any
failure by the Depositor to comply with the obligations of the
Depositor referred to in clause (ii) of Section 14.01, unless a
Responsible Officer of the 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 Trustee, is not
attributable to the Trustee) from the Servicer or the Depositor, as the
case may be, or the Holders of Certificates evidencing not less than
25% of the Certificate Balance; and
(v) Without limiting the generality of this Section or
Section 15.04, the 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 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 Trustee pursuant to this
Agreement believed by the 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 Depositor'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 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 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 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 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 15.02. Trustee's Certificate. On or as soon as practicable
after each Distribution Date on which Receivables shall be (i) assigned to UAC
pursuant to Section 7.02 or deemed to be assigned to the Depositor as a result
of the application of Available Funds in respect of Defaulted Receivables
pursuant to Section 9.02 or (ii) assigned to the Servicer pursuant to Section
8.07 or 16.02, the Trustee shall, at the written request of the
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Servicer, execute a Trustee's Certificate, substantially in the form of, in the
case of an assignment to UAC, 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
Certificate Account, and notices received pursuant to this Agreement,
identifying the Receivables repurchased or deemed to be repurchased by UAC
pursuant to Section 7.02 or 9.02 or purchased by the Servicer pursuant to
Section 8.07 or 16.02 during such Collection Period, and shall deliver such
Trustee's Certificate, accompanied by a copy of the Servicer's Certificate for
such Collection Period to UAC or the Servicer, as the case may be. The Trustee's
Certificate shall be an assignment pursuant to Section 15.03.
SECTION 15.03. Trustee's Assignment of Purchased Receivables. With
respect to each Receivable repurchased by UAC pursuant to Section 7.02, or
deemed to be so repurchased pursuant to Section 9.02 or purchased by the
Servicer pursuant to Section 8.07 or 16.02, the Trustee 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 UAC or purchase by the
Servicer, without recourse, representation, or warranty, to UAC or the Servicer
(as the case may be) all the Trustee'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 Trustee shall, at the Servicer's expense, take
such steps as the Trustee deems necessary to enforce the Receivable, including
bringing suit in its name or the name of the Certificateholders.
SECTION 15.04. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 15.01:
(i) The 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 document believed by
it to be genuine and to have been signed or presented by the proper
party or parties.
(ii) The 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 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 any
of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity reasonably satisfactory to the Trustee
against the
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costs, expenses, and liabilities that may be incurred therein or
thereby. Nothing contained in this Agreement, however, shall relieve
the Trustee of the obligations, upon the occurrence of an Event of
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 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 Default and
after the curing of all Events of Default that may have occurred, the
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 so to do by
Holders of Certificates evidencing not less than 25% of the Certificate
Balance or not less than 25% of the Notional Principal Amount of the
Class I Certificates; provided, however, that if the payment within a
reasonable time to the 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 Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement,
the 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 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.
(vi) The 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 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.
(vii) Subsequent to the sale of the Receivables by the
Depositor to the Trustee, the Trustee shall have no duty of independent
inquiry, except as may be required by Section 15.01, and the Trustee
may rely upon the representations and warranties and covenants of the
Depositor and the Servicer contained in this Agreement with respect to
the Receivables and the Receivable Files.
SECTION 15.05. Trustee Not Liable for Certificates or Receivables. The
recitals contained herein and in the Certificates (other than the certificate of
authentication on the Certificates) shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
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Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or related document. The 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 Certificateholders under this Agreement, 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 Depositor 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 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
Trustee shall remain responsible for any Trust property that it may hold); the
acts or omissions of the Depositor, the Servicer, or any Obligor; an action of
the Servicer taken in the name of the Trustee; or any action by the Trustee
taken at the instruction of the Servicer; provided, however, that the foregoing
shall not relieve the Trustee of its obligation to perform its duties under this
Agreement. Except with respect to a claim based on the failure of the Trustee to
perform its duties under this Agreement or based on the Trustee's negligence or
willful misconduct, no recourse shall be had for any claim based on any
provision of this Agreement, the Certificates, or any Receivable or assignment
thereof against the Trustee in its individual capacity, the Trustee shall not
have any personal obligation, liability, or duty whatsoever to any
Certificateholder 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 Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor or the Servicer in respect of the
Receivables.
SECTION 15.06. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not Trustee.
SECTION 15.07. Trustee's Fees and Expenses. The Servicer shall pay to
the Trustee, and the Trustee shall be entitled to, reasonable compensation
(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 Trustee's powers and duties under this Agreement, and
the Servicer shall pay or reimburse the 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
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employ) incurred or made by the Trustee in accordance with any provisions of
this Agreement, except any such expense, disbursement, or advance as may be
attributable to its willful misfeasance, negligence, or bad faith, and the
Servicer shall indemnify the Trustee (which, for purposes of this section, shall
include its directors, officers, employees, and agents) for and hold it harmless
against any loss, liability, 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.
Additionally, the Depositor, pursuant to Section 12.02, and the Servicer,
pursuant to Section 13.02, respectively, shall indemnify the Trustee with
respect to certain matters. This indemnity shall survive the termination of this
Agreement or the Trust and the resignation or removal of the Trustee.
SECTION 15.08. Eligibility Requirements for Trustee. The Trustee under
this Agreement shall at all times be a corporation having an office in the same
State as the location of the Corporate Trust Office as specified in this
Agreement; and organized and doing business under the laws of such State or the
United States of America; authorized under such laws to exercise corporate trust
powers; and having a net worth of at least $50,000,000 and subject to
supervision or examination by federal or State authorities and the long-term
unsecured debt of which is rated at least Baa3 or which is approved by the
Surety Bond Issuer 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 15.08, 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 Trustee shall cease to
be eligible in accordance with the provisions of this Section 15.08, the Trustee
shall resign immediately in the manner and with the effect specified in Section
15.09.
SECTION 15.09. Resignation or Removal of Trustee. The 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 Surety Bond
Issuer, shall promptly appoint a successor Trustee, by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 15.08 and shall fail to resign after written
request therefor by the Servicer, or if at any time the Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation, or liquidation, then the Servicer may
remove the Trustee. If it shall remove the Trustee under the authority of the
immediately preceding
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sentence, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 15.09 shall
not become effective until acceptance of appointment by the successor Trustee
pursuant to Section 15.10.
SECTION 15.10. Successor Trustee. Any successor Trustee appointed
pursuant to Section 15.09 shall execute, acknowledge, and deliver to the
Servicer and to its predecessor Trustee an instrument accepting such appointment
under this Agreement, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor 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 Trustee. The predecessor Trustee
shall deliver to the successor Trustee all documents and statements held by it
under this Agreement; and the Servicer and the predecessor 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 Trustee
all such rights, powers, duties, and obligations.
No successor Trustee shall accept appointment as provided in this
Section 15.10 unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 15.08.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section 15.10, the Servicer shall mail notice of the successor of such Trustee
under this Agreement to all Holders of Certificates at their addresses 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 Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Servicer.
SECTION 15.11. Merger or Consolidation of Trustee. Any corporation into
which the 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 Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 15.08, 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 15.12. Appointment of Co-Trustee or Separate 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 Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees,
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of all or any part of the Trust, and to vest in such Person, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 15.12, such
powers, duties, obligations, rights, and trusts as the Servicer and the 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 Default shall have occurred and be continuing, the
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 Trustee pursuant to Section 15.08 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 15.10.
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 Trustee shall be conferred upon and exercised or
performed by the 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 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 (whether as
Trustee under this Agreement or as successor to the Servicer under this
Agreement), the 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 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 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 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 XV. 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 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 Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer.
Any separate trustee or co-trustee may at any time appoint the 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
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separate trustee or co-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 Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
SECTION 15.13. Representations and Warranties of Trustee. The Trustee
shall make the following representations and warranties on which the Depositor
and Certificateholders may rely:
(i) Organization and Existence. The Trustee is a New York
banking corporation duly organized and validly existing under the laws
of the State of New York and authorized to engage in a banking and
trust business under such laws.
(ii) Power and Authority. The 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 shall have been duly
executed and delivered by the Trustee and shall constitute the legal,
valid, and binding agreement of the 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 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 XVI
Termination
SECTION 16.01. Termination of the Trust. The respective obligations and
responsibilities of the Depositor, the Servicer and the Trustee created hereby
and the Trust created by this Agreement shall terminate upon (i) the disposition
of the Trust corpus as of the last day of any Collection Period at the direction
of the Class IC Certificateholder, at its option, pursuant to Section 16.02,
(ii) the sale, liquidation or disposition of the Trust corpus following a
termination upon the bankruptcy of the Class IC Certificateholder as provided in
Section 16.03, or (iii) the payment to Certificateholders and the Surety Bond
Issuer of all amounts required to be paid to them pursuant to this Agreement and
the Insurance Agreement 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
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expiration of 21 years from the date as of which this Agreement is executed. The
Servicer shall promptly notify the Trustee of any prospective termination
pursuant to this Section 16.01.
Notice of any termination, specifying the Distribution Date upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the 10th day
and not later than the 20th day of the month next preceding the specified
Distribution Date stating (A) the Distribution Date upon which final payment of
the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final payment, and (C) if applicable, that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the Trustee
therein specified. The Trustee shall give such notice to the Certificate
Registrar (if other than the Trustee) at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 9.04 and, in the
event of a termination pursuant to clause (i) or (ii) of the preceding
paragraph, the provisions of Section 9 of Annex A hereto shall govern the
remaining distributions to Certificateholders.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall, upon notice to the Trustee, be distributed by the Trustee
to the United Way of Central Indiana or its successor, and upon such
distribution the Certificateholders' rights to any amounts so distributed will
be extinguished.
SECTION 16.02. Optional Disposition of All Receivables. On the last day
of any Collection Period following which (i) the Notional Principal Amount has
been reduced to zero, and (ii) the Certificate Balance as of the related
Distribution Date is less than or equal to 10% of the Original Pool Balance, the
holder of the Class IC Certificate shall have the option to cause the Trustee to
sell (to the Class IC Certificateholder or any other person) 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 (i) the sum of (x) 100% of the
Certificate Balance, (y) accrued and unpaid interest on such amount computed at
a rate equal to the weighted average Note Rate, and (z) all amounts due and
owing to the Surety Bond Issuer under the Agreement and the Insurance Agreement
minus any amounts representing payments received on the Receivables not yet
applied to the interest related thereto or to reduce the principal balance
thereof. The proceeds of such sale will be deposited into the
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Certificate Amount for distribution to the Certificateholders (and, to the
extent applicable, the Surety Bond Issuer) on the next succeeding Distribution
Date. In connection with such disposition, the Class IC Certificateholder is
required to pay any unpaid fees and expenses of the Trustee that it would
otherwise have been entitled to pursuant to this Agreement. The fair market
value of the outstanding Receivables for purposes of this Section 16.02 shall be
an amount equal to the average of the bid prices for such assets taken as a
whole, provided to the Servicer by two independent, nationally recognized
dealers in automobile loans substantially similar to the Receivables. Such price
shall be deposited to the Certificate Account in immediately available funds by
12:00 noon, New York City time, on the Distribution Date and, upon notice to the
Trustee of such deposit, the Trustee shall transfer the Receivables and the
Receivable Files to the purchaser, whereupon the Certificates shall no longer
evidence any right or interest in the Receivables or any proceeds thereof.
SECTION 16.03. Termination upon the Bankruptcy of the Class IC
Certificateholder. Following the occurrence of an Insolvency Event with respect
to the Class IC Certificateholder, the Class IC Certificateholder shall on the
date of such Insolvency Event give notice to the Trustee and the Surety Bond
Issuer of such Insolvency Event. Within 15 days of the receipt by the Trustee of
such notice of an Insolvency Event, the Trustee shall (i) publish a notice in
Authorized Newspapers that an Insolvency Event has occurred and that the Trustee
intends to sell, dispose of or otherwise liquidate the Receivables in a
commercially reasonable manner and (ii) send written notice to the
Certificateholders describing the provisions of this Section 16.03, noting in
particular that the Surety Bond will not be available to be drawn upon to pay a
shortfall in the amount due Certificateholders upon a liquidation of the
Receivables, and requesting instructions from such Certificateholders, which
notice shall request each such Certificateholder to advise the Trustee in
writing that it elects one of the following options: (a) the Certificateholder
wishes the Trustee to instruct the Servicer not to sell, dispose of or otherwise
liquidate the Receivables and terminate the Trust, or (b) the Certificateholder
wishes the Trustee to instruct the Servicer to sell, dispose of or otherwise
liquidate the Receivables and terminate the Trust, or (c) the Certificateholder
refuses to advise the Trustee as to whether or not the Trustee shall instruct
the Servicer to sell, dispose of or otherwise liquidate the Receivables and
terminate the Trust. After 90 days from the day on which notice pursuant to
clause (i) above is first published, the Trustee shall, unless instructed not to
do so by the written direction of the holders of Certificates representing not
less than 51% of the Certificate Balance and 51% of the Notional Principal
Amount of the Class I Certificates, instruct the Servicer to proceed to sell,
dispose of, or otherwise liquidate the Receivables, in a commercially reasonable
manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids, and shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the highest
bidder for the Receivables. The Servicer shall be permitted to bid for the
Receivables. The Trustee may obtain a prior determination from
trustee-in-bankruptcy that the terms and manner of any proposed sale,
disposition or liquidation are commercially reasonable. The provisions of
Sections 9.04 and this Section 16.03 shall not be deemed to be mutually
exclusive. Following the sale, disposition or liquidation of the Receivables in
a commercially reasonable manner, the Trustee shall wind up the affairs of the
Trust and terminate the Trust in accordance with Section 16.01.
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ARTICLE XVII
Miscellaneous Provisions
SECTION 17.01. Amendment. This Agreement may be amended by the
Depositor, the Servicer and the Trustee, without the consent of any of the
Certificateholders, 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 any Certificateholder.
This Agreement may also be amended from time to time by the Depositor,
the Servicer, and the Trustee with the consent of the Class IC
Certificateholder, Holders of Certificates evidencing not less than 51% of the
Certificate Balance and 51% of the Notional Principal Amount of the Class I
Certificates for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Holders of Certificates; provided, however, that
no such amendment shall, without the consent of the Holders of all Certificates
then outstanding, reduce the aforesaid percentage required to consent to any
such amendment. In no case may any such amendment increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made on
any Certificate.
Notwithstanding anything to the contrary in this Agreement, no Opinion
of Counsel or consent of Certificateholders shall be required in connection with
any amendment of this Agreement to provide for a Spread Account Facility;
provided that prior to the effectiveness of any such amendment S&P and Moody's
shall confirm in writing that the rating of the Certificates will not be lowered
or withdrawn as a result of such amendment.
Notwithstanding anything to the contrary to this Agreement, no
amendment of this Agreement shall be effective without the prior written consent
of the Surety Bond Issuer.
Sections 7.08 and 16.03 shall not be subject to amendment under any
circumstances; provided however that Section 7.08(a) and Section 16.03 may be
deleted by an amendment pursuant to the first paragraph of this Section 17.01 if
the Depositor shall have provided to the Trustee, at Depositor's expense, an
Opinion of Counsel to the effect that the Trustee has complied with any
applicable temporary or final Treasury Regulation or Notice of the Internal
Revenue Service providing for a "check-the-box" partnership classification for
federal income tax purposes; and such amendment shall further provide that
Section 1 of Annex A hereof shall be amended by adding the following sentence
immediately preceding the last sentence thereof: "If the Treasury Department or
Internal Revenue Service shall
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promulgate a temporary or final regulation, notice or other rule adopting a
"check-the-box" classification system for unincorporated organizations and which
shall be applicable to the Trust, the Servicer on behalf of the Tax Partners
shall elect, in such manner as may be provided in such regulation, notice or
other rule, to treat the Trust as a partnership for federal income tax purposes,
and each Tax Partner irrevocably agrees to be bound by such election." Moreover,
except as provided in the third paragraph of this Section 17.01, no amendment to
this Agreement shall be recognized or be effective without the written consent
of the Trustee and receipt by the 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.
Promptly after the execution of any amendment or consent, the Trustee
shall furnish written notification of the substance of such amendment or consent
to each Certificateholder.
It shall not be necessary for the consent of Certificateholders
pursuant to this Section 17.01 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 Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the 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 Counsel referred to in Section 17.02(i)(1). The Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Trustee's own rights, duties, or immunities under this Agreement.
SECTION 17.02. Protection of Title to Trust.
(a) The Depositor 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 Certificateholders and the Trustee under this
Agreement in the Receivables and in the proceeds thereof. The Depositor shall
deliver (or cause to be delivered) to the 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 Depositor 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 Depositor 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 Trustee at least 60
days' prior written notice thereof.
(c) The Depositor and the Servicer shall give the Trustee at least 60
days' prior written notice of any relocation of its principal executive office
if, as a result of such
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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
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 Certificate
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 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 Trustee. Indication of the 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.
(f) If at any time the Depositor 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
Trustee.
(g) The Servicer shall permit the 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 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 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
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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 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 17.03. Limitation on Rights of Certificateholders. The death or
incapacity of any 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.
No Certificateholder shall have any right to vote (except as provided
in Section 14.04, 17.01 or 17.07) 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 Certificates, be construed
so as to constitute the Certificateholders 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
(except for the Class IC Certificateholder to the extent provided in Section
7.08).
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 Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Certificate
Balance or not less than 25% of the Notional Principal Amount of the Class I
Certificates shall have made written request upon the Trustee to institute such
action, suit, or proceeding in its own name as Trustee under this Agreement and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses, and liabilities to be incurred therein or thereby,
and the 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 Trustee pursuant to
Section 14.04; no one or more Holders of Certificates shall have any right in
any manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect,
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disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right, under this Agreement except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 17.03, each Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 17.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed within the State of New York, and the obligations, rights,
and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
SECTION 17.05. Notices. All demands, notices, and communications under
this Agreement shall be in writing, personally delivered, 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 Depositor to the agent for service as specified
in this Agreement, at the following address: UAC Securitization Corporation, 250
North Shadeland Avenue, Suite 210A, Indianapolis, Indiana 46219, or at such
other address as shall be designated by the Depositor in a written notice to the
Servicer or Trustee; (b) in the case of the Servicer to the agent for service as
specified in this Agreement, at the following address, Union Acceptance
Corporation, 250 North Shadeland Avenue, Indianapolis, Indiana 46219, (c) in the
case of the Trustee, at the Corporate Trust Office, (d) in the case of the
Surety Bond Issuer, at Capital Markets Assurance Corporation, 885 Third Avenue,
14th Floor, New York, New York 10022, Fax (212) 755-5462, Attention: Managing
Director, Consumer Structured Finance. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register
unless otherwise provided herein. 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 shall
receive such notice.
SECTION 17.06. 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 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 or of the
Certificates or the rights of the Holders thereof.
SECTION 17.07. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided below or in Sections 12.03 and 13.03 and as
provided in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Depositor or the Servicer
without the prior written consent of the Trustee, the Class IC
Certificateholder, and the Holders of Certificates evidencing not less than 66%
of the Certificate Balance and 66% of the Notional Principal Amount of the Class
I Certificates.
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SECTION 17.08. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust
(except to the extent provided in respect of the Class IC Certificateholder in
Section 7.08). The interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and, upon authentication thereof by the Trustee pursuant to Section
11.02, Certificates shall be deemed fully paid.
SECTION 17.09. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer, UAC and the Trustee shall not,
prior to the date which is one year and one days after the termination of this
Agreement with respect to the Trust or the Depositor, acquiesce, petition or
otherwise invoke or cause the Trust or the Depositor to invoke the process of
any court or government authority for the purpose of commencing or sustaining a
case against the Trust or the Depositor 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
Depositor or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust or the Depositor.
SECTION 17.10. 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 17.11. Third Party Beneficiary. This Agreement shall inure to
the benefit of the Surety Bond Issuer and its successors and assigns.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Pooling and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
UAC SECURITIZATION CORPORATION,
as Depositor
By _________________________
TITLE: Vice President
UNION ACCEPTANCE CORPORATION,
as Servicer
By _________________________
TITLE: President
BANKERS TRUST COMPANY,
as Trustee
By _________________________
TITLE:
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EXHIBIT A
[Form of Class A Certificate]
PRINCIPAL IN RESPECT OF THIS CLASS A CERTIFICATE IS DISTRIBUTABLE MONTHLY AS SET
FORTH HEREIN. ACCORDINGLY, THE UNPAID PRINCIPAL AMOUNT OF THE FRACTIONAL
INTEREST EVIDENCED HEREBY AT ANY TIME MAY BE LESS THAN THE ORIGINAL PRINCIPAL
AMOUNT SET FORTH HEREIN.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
UACSC 199_-_ AUTO TRUST
_____% CLASS A AUTOMOBILE RECEIVABLE
PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of simple and precomputed
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 Trustee by UAC Securitization
Corporation.
(This Certificate does not represent an interest in or obligation of
UAC Securitization Corporation or any of its affiliates. Neither this
Certificate nor the underlying Receivables, as defined below, are
insured or guaranteed by any government agency).
NUMBER CUSIP _________
R-A-___
$---------------
THIS CERTIFIES THAT ___________ is the registered owner of a
___________ dollars nonassessable, fully-paid, fractional undivided interest in
the UACSC 199_-_ Auto Trust (the "Trust") formed by UAC Securitization
Corporation, a Delaware corporation (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of ________, 199_ (the
"Agreement") between UAC Securitization Corporation as Depositor, Union
Acceptance Corporation, as Servicer and Bankers Trust Company (the "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 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 one of the
duly authorized Certificates designated as "_____% Class A Automobile Receivable
Pass-Through Certificates" (the "Class A Certificates"). 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 and precomputed 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 thereon,
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and all monies due thereon, including Accrued Interest, after ___________, 199_
(but excluding Accrued Interest paid or due prior to the Closing Date), security
interests in the vehicles financed thereby, certain bank accounts and the
proceeds thereof, all documents contained in the Receivable 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, any rights of the Depositor in
proceeds from claims or refunds of premiums on physical damage, lender's single
interest, credit life, disability and hospitalization insurance policies, if
any, covering vehicles financed thereby and the obligors thereunder, the
interest of the Depositor in recourse to dealers relating to certain of the
Receivables, the proceeds of all of the foregoing and amounts on deposit from
time to time in the Spread Account for the benefit of the Class I and Class A
Certificateholders, and the Surety Bond for the benefit of the Class I and Class
A Certificateholders.
In addition to the Class A Certificates, a class of interest-only
planned amortization Certificates representing an interest in the Trust (the
"Class I Certificates" and together with the Class A Certificates, the
"Certificates") and a Class IC Certificate (the "Class IC Certificate") shall be
issued pursuant to the Agreement. The Class A and Class I Certificates are
senior in right and interest to the Class IC Certificate. In the event that the
funds available are not sufficient to pay the Class A and Class I
Certificateholders in full, they shall share pro rata in the amounts available
based upon the total amounts they are due. The Class I Certificates will receive
monthly interest payments based on their Notional Principal Amount and will
receive no distributions after the date on which the Notional Principal Amount
of the Class I Certificates has been reduced to zero. The Class IC Certificate
initially will be issued to the Depositor and it shall represent the interest in
the Receivables not represented by the Certificates.
Under the Agreement, there will be distributed on the third Business
Day after the 5th day of each month (the "Distribution Date"), commencing
____________, 199_, to the person in whose name this Class A Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), such
Certificateholder's fractional interest in Class A Monthly Interest and Monthly
Principal. Each Class A Certificateholder's "fractional interest" is equal to
the original principal amount of such Class A Certificateholder's Certificate,
as set forth on the face thereof, divided by the aggregate Initial Certificate
Balance.
Distributions on this Class A Certificate will be made by the Trustee
by check mailed to the Person entitled thereto without the presentation or
surrender of this Class A Certificate or the making of any notation hereon,
except that with respect to Certificates registered in the name of CEDE & Co.,
the nominee registrant for The Depository Trust Company, payments will be made
in the form of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this Class A
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A
Certificate at the office or agency maintained for that purpose by the Trustee
in the Borough of Manhattan, The City of New York.
Unless the certificate of authentication hereon shall have been
executed by a Responsible Officer of the Trustee, by manual or facsimile
signature, this Class A Certificate shall not entitle the holder hereof to any
benefit under the Agreement or be valid for any purpose.
The Class A Certificates do not represent an obligation of, or an
interest in, the Depositor or any affiliate of the Depositor. The Class A
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables, all as more specifically set forth in the
Agreement. The Agreement provides for certain amounts to be deposited into the
Spread Account. In the event amounts available for withdrawal from the Spread
Account are insufficient to make distributions on the Class A Certificates, the
Trustee will draw on the Surety Bond up to the Surety Bond Amount to pay such
deficiency.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Class A Certificateholders under the Agreement
at any time by the Depositor and the Trustee with the consent of the Holders of
Certificates evidencing not less than 51% of the Certificate Balance and 51% of
the Notional Principal Amount of the Class I Certificates. Any such consent by
the Holder of this Class A Certificate shall be conclusive and binding on such
Holder and on all future Holders of this Class A Certificate and of any Class A
Certificate issued upon the transfer
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hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Class A Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Class A Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Class A Certificate is registrable in the
Certificate Register upon surrender of this Class A Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in the
Borough of Manhattan, The City of New York, accompanied by a written instrument
of transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Class A Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee.
The Class A Certificates are issuable only as registered Class A
Certificates without coupons in denominations of $1,000 and integral multiples
thereof; provided, however, that one Class A Certificate may be issued in a
denomination that represents any residual amount and that such Class A
Certificate shall be retained by the Depositor. As provided in the Agreement and
subject to certain limitations therein set forth, Class A Certificates are
exchangeable for new Class A Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Class A
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities to the Class A Certificateholders
created by the Agreement and the Trust created thereby shall terminate upon the
payment to Class A Certificateholders 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 holder of the Class IC Certificate may at its option cause the
Trustee to sell the corpus of the Trust at a price not to be less than the price
specified in the Agreement, and such sale of the Receivables and other property
of the Trust will effect early retirement of the Class A Certificates; however,
such right of purchase is exercisable only as of a Record Date as of which the
Certificate Balance is less than or equal to 10% of the original aggregate
principal balance of the Receivables and the Notional Principal Amount has been
reduced to zero.
Although this Class A Certificate summarizes certain provisions of the
Agreement, this Class A 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 Trustee. In the event of any
inconsistency or conflict between the terms of this Class A 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 Tax
Partnership Agreement included as an annex to the Agreement.
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IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class A Certificate to be duly executed.
Dated: _______ __, 199_
UACSC 199_-_ AUTO TRUST
By BANKERS TRUST COMPANY, solely in its
capacity as Trustee
By
Responsible Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates
referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as 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 Class A Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________________ Attorney
to transfer said Class A 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 Class A 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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EXHIBIT B
[Form of Class I Certificate]
THIS CERTIFICATE DOES NOT ENTITLE THE HOLDER TO RECEIVE ANY PRINCIPAL BUT ONLY
INTEREST ON THE NOTIONAL PRINCIPAL AMOUNT DISTRIBUTABLE MONTHLY AS SET FORTH
HEREIN. THE NOTIONAL PRINCIPAL AMOUNT WILL DECREASE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE NOTIONAL PRINCIPAL AMOUNT OF THE INTEREST EVIDENCED HEREBY AT
ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL PRINCIPAL AMOUNT SET FORTH BELOW.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
UACSC 199_-_ AUTO TRUST
CLASS I INTEREST ONLY AUTOMOBILE RECEIVABLE
PASS-THROUGH CERTIFICATE
evidencing a fractional interest in the Trust, as defined below, the property of
which includes a pool of simple and precomputed 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 Trustee by
UAC Securitization Corporation.
(This Certificate does not represent an interest in or obligation of UAC
Securitization Corporation or any of its affiliates. Neither this Certificate
nor the underlying Receivables, as defined below, are insured or guaranteed by
any government agency).
NUMBER CUSIP ___________
R-1-__
$-------------
THIS CERTIFIES THAT ___________ is the registered owner of a designated
initial notional principal amount of ___________ dollars nonassessable,
fully-paid interest in the UACSC 199_-_ Auto Trust (the "Trust") formed by UAC
Securitization Corporation. The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of ________, 199_ (the "Agreement") between UAC
Securitization Corporation as Depositor, Union Acceptance Corporation, as
Servicer and Bankers Trust Company (the "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
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 one of the duly authorized Class I
Certificates designated as " Class I Interest Only Automobile Receivable
Pass-Through Certificates, (the "Class I Certificates"). This Certificate is
issued under and is subject to the terms, provisions, and conditions of the
Agreement, to which Agreement the holder of this Class I 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 and precomputed interest loan and
security agreements and installment sales contracts for new and used
automobiles, light trucks and van conversions (the "Receivables"), generally all
monies paid thereon, and all
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monies due thereon, including Accrued Interest, after ___________, 199_ (but
excluding Accrued Interest paid or due prior to the Closing Date), security
interests in the vehicles financed thereby, certain bank accounts and the
proceeds thereof, all documents contained in the Receivable 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, any rights of the Depositor in
proceeds from claims or refunds of premiums on physical damage, lender's single
interest, credit life, disability and hospitalization insurance policies, if
any, covering vehicles financed thereby and the obligors thereunder, the
interest of the Depositor in recourse to dealers relating to certain of the
Receivables and amounts on deposit from time to time in the Spread Account for
the benefit of the Class I and Class A Certificateholders, and the Surety Bond
for the benefit of the Class I and Class A Certificateholders.
In addition to the Class I Certificates, a class of Certificates
representing interests in the Trust (the "Class A Certificates," together with
the Class I Certificates, the "Certificates") and a Class IC Certificate (the
"Class IC Certificate") shall be issued pursuant to the Agreement. The Class A
Certificates will receive monthly payments of principal and interest in
accordance with the Agreement. The Class A and Class I Certificates are senior
in right and interest to the Class IC Certificates. In the event that the funds
available are not sufficient to pay the Class A and Class I Certificateholders
in full, they shall share pro rata in the amounts available based upon the total
amounts they are due. The Class IC Certificate initially will be issued to the
Depositor and it shall represent the interest in the Receivables not represented
by the Certificates.
Under the Agreement, there will be distributed on the third Business
Day after the 5th day of each month (the "Distribution Date"), commencing on
____________, 199_, to the person in whose name this Certificate is registered
at the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), such Class I
Certificateholder's fractional interest in Class I Monthly Interest. Each Class
I Certificateholder's "fractional interest" is equal to the original notional
principal amount of such Class I Certificateholder's Class I Certificate, as set
forth on the face thereof, divided by the aggregate original notional principal
amount of all of the Class I Certificates. The Class I Monthly Interest as of
any Distribution Date (except the first Distribution Date) will be the product
of one-twelfth (1/12) of the Class I Pass-Through Rate of _____% per annum and
the Notional Principal Amount, which shall be reduced on each Distribution Date
as more fully described in the Agreement.
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto without the presentation or surrender of
this Certificate or the making of any notation hereon, except that with respect
to Class I Certificates registered in the name of CEDE & Co., the nominee
registrant for The Depository Trust Company, payments will be made in the form
of immediately available funds. Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this Certificate will
be made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee in the Borough of Manhattan, The City
of New York. The Class I Certificateholders will not be entitled to any
distributions after the Notional Principal Amount of the Class I Certificates
has been reduced to zero.
Unless the certificate of authentication hereon shall have been
executed by a Responsible Officer of the Trustee, by manual or facsimile
signature, this Class I Certificate shall not entitle the holder hereof to any
benefit under the Agreement or be valid for any purpose.
The Certificates do not represent an obligation of, or an interest in,
the Depositor or any affiliate of the Depositor. The Certificates are limited in
right of payment to certain collections and recoveries respecting the
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Receivables, all as more specifically set forth in the Agreement. The Agreement
provides for certain amounts to be deposited into the Spread Account. In the
event amounts available for withdrawal from the Spread Account are insufficient
to make distributions on the Class I Certificates, the Trustee will draw on the
Surety Bond to pay such deficiency.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement at any
time by the Depositor and the Trustee with the consent of the Holders of
Certificates evidencing not less than 51% of the Certificate Balance and 51% of
the Notional Principal Amount of the Class I Certificates. Any such consent by
the Holder of this Class I Certificate shall be conclusive and binding on such
Holder and on all future Holders of this Class I Certificate and of any Class I
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Class I
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Certificate
Registrar, or by any successor Certificate Registrar, in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Class I Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class I Certificates are issuable only as registered Class I
Certificates without coupons in denominations representing a minimum of $1,000
of Original Notional Principal Amount. As provided in the Agreement and subject
to certain limitations therein set forth, Class I Certificates are exchangeable
for new Class I Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Class I
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities to the Class I Certificateholders
created by the Agreement and the Trust created thereby shall terminate upon the
payment to Class I Certificateholders 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 holder of the Class IC Certificate may at its option cause the
Trustee to sell the corpus of the Trust at a price not less than the price
specified in the Agreement; however, such right of purchase is exercisable only
as of a Record Date as of which the Pool Balance is less than or equal to 10% of
the original aggregate principal balance of the Receivables and the Notional
Principal Amount has been reduced to zero.
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
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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 Tax Partnership Agreement included as an annex to the Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Certificate to be duly executed.
Dated: _______ ______, 199_
UACSC 199_-_ AUTO TRUST
By BANKERS TRUST COMPANY, solely in its
capacity as Trustee
By _______________________________
Responsible Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class I Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By _______________________________
Signatory
Dated: _______ ______, 199_
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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 or
trust company.
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EXHIBIT C
[Form of Class IC Certificate]
THIS CLASS IC CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. NEITHER THIS CLASS IC 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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UACSC 199_-_ AUTO TRUST
CLASS IC AUTOMOBILE RECEIVABLE
PASS-THROUGH 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 Trustee by UAC
Securitization Corporation.
(This Class IC Certificate does not represent an interest in or obligation of
UAC Securitization Corporation or any of its affiliates. Neither this Class IC
Certificate nor the underlying Receivables, as defined below, are insured or
guaranteed by any other government agency).
NUMBER One Unit
R-__
THIS CERTIFIES THAT UAC Securitization Corporation, a Delaware
corporation, is the registered owner of a nonassessable, fully-paid interest in
the UACSC 199_-_ Auto Trust (the "Trust") formed by UAC Securitization
Corporation. The Trust was created pursuant to a Pooling and Servicing Agreement
dated as of ________, 199_ (the "Agreement") between UAC Securitization
Corporation as Depositor, Union Acceptance Corporation, as Servicer and Bankers
Trust Company (the "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 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 Class IC Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
holder of this Class IC 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 and precomputed interest loan and security agreements and installment
sales contracts for new and used automobiles, light trucks and vans (the
"Receivables"), all monies paid thereon, and all monies due thereon, including
Accrued Interest, after ____________, 199_ (but excluding Accrued Interest paid
or due before the Closing Date), security interests in the vehicles financed
thereby, certain bank accounts and the proceeds thereof, all documents contained
in the Receivable 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, proceeds from claims or refunds of premiums on physical damage,
lender's single interest, credit life, disability and hospitalization insurance
policies, if any, covering vehicles financed thereby and the obligors
thereunder, certain interests of the Depositor in recourse to dealers relating
to certain of the Receivables and amounts on deposit from time to time in the
Spread Account for the benefit of the Class I and Class A Certificateholders and
the Surety Bond for the benefit of the Class I and Class A Certificateholders.
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This Class IC Certificate represents an 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. In addition
to the Class IC Certificates, two classes of Certificates representing undivided
interests in the Trust, the Class A Certificates and the Class I Certificates
(collectively, the "Certificates") shall be issued pursuant to the Agreement.
The Class A and Class I Certificates are senior in right and interest to the
Class IC Certificates. In the event that the funds available are not sufficient
to pay the Class A and Class I Certificateholders in full, they shall share pro
rata in the amounts available based upon the total amounts they are due. The
Class A Certificates will receive monthly payments of principal and interest in
accordance with the Agreement. The Class I Certificates will receive monthly
interest payments based on their Notional Principal Amount and will receive no
distributions after the date on which the Notional Principal Amount of the Class
I Certificates has been reduced to zero.
Unless the certificate of authentication hereon shall have been
executed by a Responsible Officer of the Trustee, by manual or facsimile
signature, this Class IC Certificate shall not entitle the holder hereof to any
benefit under the Agreement or be valid for any purpose. Registration of
transfer of the Class IC Certificate to a person may not be effected unless (a)
the Surety Bond Issuer consents to such transfer, and the 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 Certificates, and (b) the Surety
Bond Issuer consents to such transfer. Notwithstanding the foregoing, the
Depositor shall have no obligation to register this Class IC 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 Certificateholders 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 holder of this Class
IC Certificate may at its option cause the Trustee to sell the corpus of the
Trust at a price not to be less than the price specified in the Agreement, and
such sale of the Receivables and other property of the Trust will effect early
retirement of the Certificates; however, such right of purchase is exercisable
only as of a Record Date as of which the Certificate Balance is less than or
equal to 10% of the original aggregate principal balance of the Receivables and
the Notional Principal Amount has been reduced to zero. The Class IC
Certificateholder is required to pay any unpaid fees and expenses of the Trustee
and in connection with such disposition and also is responsible for paying
certain obligations of the Trust, as set forth in Section 7.08(a) of the
Agreement.
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 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 Tax Partnership
Agreement included as an annex to the Agreement.
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IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Certificate to be duly executed.
Dated: _______ ______, 199_
UACSC 199_-_ AUTO TRUST
By BANKERS TRUST COMPANY, solely in its capacity
as Trustee
By _______________________________
Responsible Officer
CERTIFICATE OF AUTHENTICATION
This is the Class IC Certificate referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Trustee
By _______________________________
Signatory
Dated: _______ ______, 199_
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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 or
trust company.
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Schedule C
Planned Notional Principal Amount Schedule
Planned Notional
Distribution Date in Principal Amount
Initial.........................................................$_____________
________ ___.........................................................0.00
The Class I Certificates will not be entitled to any distributions after the
Notional Principal Amount of the Class I Certificates has been reduced to zero.
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ANNEX A
TAX PARTNERSHIP AGREEMENT
1. Characterization for Tax Purposes. For United States federal and
state income tax purposes, the Depositor's contribution of the Receivables to
the Trust in exchange for interests in the Trust, and the sale by the Depositor
of Class A Certificates and Class I Certificates and the retention by the
Depositor of the Class IC Certificate is intended to constitute the formation of
a partnership (the "Tax Partnership") whose partners are the Class A
Certificateholders, the Class I Certificateholders and the Class IC
Certificateholder (which are hereinafter collectively referred to as the "Tax
Partners"). This Tax Partnership shall continue in effect as provided in
Paragraph 3 below. The Tax Partnership shall not be a partnership to any other
extent or for any other purpose.
2. Election with Respect to Subchapter K. Notwithstanding anything to
the contrary, each Tax Partner agrees: (a) not to elect to be excluded from the
application of Subchapter K of Chapter 1 of Subtitle A of the Code, or any
comparable provisions of applicable state laws; and (b) to join in the execution
of such additional documents and elections as may be required in order to
effectuate the foregoing.
3. Term. The provisions of this Tax Partnership Agreement shall be
effective as of the effective date of the sale by the Depositor of the Class A
Certificates and Class I Certificates and the issuance to the Depositor of the
Class IC Certificate (the "Effective Date") and shall continue in full force and
effect from and after such date until the earliest of: (a) the termination of
the Agreement pursuant to its terms; or (b) the mutual agreement of all of the
Tax Partners to terminate the Trust.
4. Capital Contributions and Capital Accounts.
(a) The value of the interests contributed by the Class A
Certificateholders and the Class I Certificateholders shall equal the amount
paid by such Certificateholders, respectively, for their Certificates and such
amounts shall constitute the opening balance in their Capital Accounts (as
hereinafter defined). The value of the interests contributed by the Class IC
Certificateholder shall equal the fair market value of the Class IC Certificate,
which the Tax Partners agree shall be based on the present value of the cash
flow to the Class IC Certificateholder of the amounts to which the Class IC
Certificateholder is entitled to receive pursuant to Section 10.02(e) at each
Distribution Date using a discount rate of approximately three percent over the
Class A Pass- Through Rate (based upon the Servicer's determination of what an
investor would pay for such an interest) and a prepayment assumption of
approximately 1.5 Asset Back Speed ("ABS") and such total shall be submitted to
the Trustee in writing within five (5) Business Days after the Closing Date.
Such amount shall constitute the opening balance in the Class IC
Certificateholder's Capital Account.
(b) An individual capital account (a "Capital Account") shall be
maintained for each Tax Partner in compliance with Treasury Regulation Sections
1.704-1(b)(2)(iv) and 1.704-2 and accordingly, except as otherwise provided
herein:
(i) The Capital Account of each Tax Partner shall be
credited by (A) the amount of cash and the fair market value
of property other than cash contributed (or deemed contributed
pursuant to Code Section 708) by such Tax Partner to the Tax
Partnership (net of any liabilities assumed by the Tax
Partnership upon such contribution or to which such property
is subject at the time of such contribution); and (B) the
amount of any item of taxable income or gain and the amount of
any item of income or gain exempt from tax allocated to such
Tax Partner.
(ii) The Capital Account of each Tax Partner shall be
debited by (A) the amount of any item of tax deduction or loss
allocated to such Tax Partner; (B) such Tax Partner's
allocable share, of expenditures not deductible in computing
taxable income and not properly
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chargeable as capital expenditures; and (C) the amount of cash
and the fair market value of any property other than cash (net
of any liabilities assumed by such Tax Partner or to which
such property is subject at the time of distribution)
distributed to such Tax Partner.
(iii) Immediately prior to any distribution of
property in kind, the Tax Partners' Capital Accounts shall be
adjusted by assuming that the distributed properties were sold
for cash at their respective fair market values as of the date
of distribution and crediting or debiting each Tax Partner's
Capital Account with its respective share of the hypothetical
gains or losses resulting from such assumed sales in the same
manner as gains or losses on actual sales of such properties
would be allocated under Paragraph 6 below.
(iv) Any adjustments of basis of property provided
for under Code Section 734 and 733 and comparable provisions
of state law (resulting from an election under Code Section
754 or comparable provisions of state law) shall not affect
the Capital Accounts of the Tax Partners, except as provided
in Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(5).
5. Federal and State Income Tax Returns and Elections.
(a) The Tax Partners agree that the holder of the Class IC
Certificate shall serve as the "tax matters partner" (as such term is
defined in Code Section 6231(a)(7) (the "Tax Matters Partner") of the
Tax Partnership. The Tax Matters Partner shall (i) apply to the
Internal Revenue Service for a taxpayer identification number for the
Tax Partnership, (ii) elect to adopt the accrual method of accounting
and, if permitted by applicable federal tax law, the calendar year as
the Tax Partnership's fiscal year, (iv) make such other elections as it
deems proper, (v) prepare, execute and file the necessary federal and
state partnership income tax returns for the Tax Partnership and (vi)
keep the other Tax Partners informed of all material matters that may
come to its attention in its capacity as Tax Matters Partner. Each Tax
Partner agrees to furnish the Tax Matters Partner with all pertinent
information relating to activities under the Agreement and this Annex A
which is necessary for the Tax Matters Partner to prepare and file
federal and state partnership returns. In acting as Tax Matters
Partner, the Tax Matters Partner shall use its best efforts, but shall
incur no liability to the other Tax Partners.
(b) Within 60 days after the end of each of the Tax
Partnership's taxable years, the Tax Matters Partner shall send to each
Tax Partner who has been a Tax Partner at any time during the taxable
year then ended such tax information as shall be necessary for the
preparation by such Tax Partner of its Federal income tax return and
state income and other tax returns, if any, in states where the Tax
Partnership is organized or is qualified to do business.
6. Allocations.
(a)(i) "Net Income" and "Net Loss" respectively, for any
period, means the income or losses of the Tax Partnership as determined
in accordance with the method of accounting followed by the Tax
Partnership for Federal income tax purposes, including, for all
purposes, any income exempt from tax and any expenditures of the Tax
Partnership described in Code Section 705(a)(2)(B); provided, however,
(i) that any item allocated under Paragraphs 6(b)(iii) or 6(c) shall be
excluded from the computation of Net Income and Net Loss and (ii) that
if, as a result of the contribution of an asset whose fair market value
differs from its adjusted basis for Federal income tax purposes or as a
result of the revaluation of the Tax Partnership's assets, the book
value of any Tax Partnership asset differs from its adjusted basis for
Federal income tax purposes, gain, loss, depreciation and amortization
with respect to such asset shall be computed using the asset's book
value consistently with the requirements of Treasury Regulation Section
1.704-1(b)(2)(iv)(g).
(ii) "Period" shall mean the calendar month; provided
that as to the month in which the Closing Date occurs, Period
shall mean the period commencing on the Closing Date and
ending on the last day of that calendar month, and as to the
month in which the Tax
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Partnership terminates, Period shall mean the period beginning
on the first day of such month and ending on the date of the
Tax Partnership's termination.
(b) The Tax Partners agree that the Tax Partnership's Net
Income and Net Loss and each item of income, gain, loss, or deduction
entering into the computation thereof for any Fiscal Year shall be
allocated by first allocating the Tax Partnership's Net Income and Net
Loss (and each item of income, gain, loss, or deduction entering into
the computation thereof) for each Period within such Fiscal Year (as if
such Period were a complete fiscal year) and then aggregating the
allocations for each Period within the Fiscal Year. In the case of the
transfer of any interest in the Tax Partnership, the items of Net
Income and Net Loss allocated for any Period with respect to the
transferred interest shall be allocated to the holder of that interest
on the first business day of the month following the end of such Period
(or in the case of the Period in which the Tax Partnership terminates,
the last day of such Period). If the Tax Matters Partner determines
that this method of allocation of items of Net Income and Net Loss is
not consistent with the requirements of the Code and applicable
Treasury Regulations, it may revise such method of allocation to
conform with such requirements. The Tax Partnership's Net Income and
Net Loss for each Period within a Fiscal Year shall be allocated as
follows:
(i) Net Income for such Period shall be allocated as
follows:
(A) An amount of Net Income equal to the
excess of (x) the sum for such Period and each
preceding Period up to the Period beginning with the
Closing Date, of (1) the product of the Class A
Pass-Through Rate and (2) the Certificate Balance
amount for such Period (and each such preceding
Period) over (y) all amounts allocated to the Class A
Certificateholders pursuant to this Paragraph
6(b)(i)(A) shall be allocated 100% to the Class A
Certificateholders, in proportion to their holdings
of Class A Certificates; provided that the product of
(1) and (2) in clause (x) shall be computed on the
basis of a 360 day year consisting of twelve 30 day
months, and that any such product shall be
appropriately prorated for any Period that is not a
full calendar month in a manner consistent with the
computation of cash distributions with respect to
such Periods as provided by the Agreement.
(B) An amount of Net Income equal to the
excess of (x) the sum for such Period and each
preceding Period up to the Period beginning with the
Closing Date, of that portion of any excess of the
principal amount of the Class A Certificates over
their initial issue price (disregarding accrued
interest) that would have accrued with respect to
such Periods if the Class A Certificates were
indebtedness and such excess were original issue
discount over (y) all amounts previously allocated to
the Class A Certificateholders pursuant to this
Paragraph 6(b)(i)(B) shall be allocated 100% to the
Class A Certificateholders, in proportion to their
holdings of Class A Certificates.
(C) An amount of Net Income equal to the
excess of (x) the sum for such Period and each
preceding Period up to the Period beginning with the
Closing Date, of the Periodic Allocation (as
hereinafter defined) over (y) all amounts previously
allocated to the Class I Certificateholders pursuant
to this Paragraph 6(b)(i)(C), shall be allocated 100%
to the Class I Certificateholders, in proportion to
their holdings of Class I Certificates. The "Periodic
Allocation" for any Period shall equal the excess of
(i) the product of (1) the Class I Pass-Through Rate
and (2) the Notional Principal Amount for such Period
over (ii) the portion of the amount distributable
with respect to the Class I Certificates with respect
to such Period that would constitute a return of
basis for an initial holder if the Class I
Certificates constituted an instrument described in
Code Section 860G(a)(1)(B)(ii), employing the
principles of Code Section 1272(a)(6) and the
constant yield method of accrual; provided that the
product of (1) and (2) in clause (i) shall be
computed on the basis of a 360 day year consisting of
twelve 30 days months, and that such product shall be
appropriately prorated for any
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Period that is not a full calendar month in a manner
consistent with the computation of cash distributions
with respect to such Periods as provided by the
Agreement.
(D) Notwithstanding the foregoing Paragraphs
(A) through (C), if the actual Net Income for such
Period is less than the Net Income allocable under
such Paragraphs (A) through (C), the actual Net
Income for such Period shall be allocable to the
Class A Certificateholders and the Class I
Certificateholders in proportion to the allocations
that would have been made to such Certificateholders
with respect to such Period under such foregoing
Paragraphs (A) through (C) if sufficient Net Income
for such period had existed. For the purposes of
applying the foregoing Paragraphs (A) through (C), in
such periods, any amounts allocated pursuant to this
Paragraph (D) shall be treated as allocated pursuant
to Paragraphs (A), (B) and (C), as the case may be,
to the extent the allocation was related thereto.
(E) Any remaining Net Income shall be
allocated 100% to the Class IC Certificateholder.
(ii) Net Losses for such Periods shall be allocated
as follows:
(A) 100% to the Class IC Certificateholder
until the Adjusted Capital Account (as hereinafter
defined) balance of the Class IC Certificateholders
equals zero.
(B) 100% pro rata:
(I) to the Class I
Certificateholders, in proportion to their
holdings of Class I Certificates, until the
Adjusted Capital Account balances of the
Class I Certificateholders equal zero; and
(II) to the Class A
Certificateholders, in proportion to their
holdings of Class A Certificates, until the
Adjusted Capital Account balances of the
Class A Certificateholders equal zero.
(C) Any remaining Net Losses shall be
allocated 100% to the Class IC Certificateholder.
(iii) Any provision of this Agreement to the contrary
notwithstanding, any payment of amounts due and owing the
Surety bond Issuer from time to time or in connection with an
optional disposition of all Receivables pursuant to Section
16.02 of the Agreement or upon a termination of the Trust upon
the bankruptcy of the Class IC Certificateholder pursuant to
Section 16.03 of the Agreement shall be treated as a loss of
the Tax Partnership and shall be allocated in the same manner
as the Net Loss would be allocated under paragraph 6(b)(ii).
(c) (i) In the taxable year in which the final redemption of
the Class I Certificates occurs, a portion of the premium and other
deductions derived by the Trust up to an amount equal to the aggregate
remaining Capital Account balances of the Class I Certificateholders
shall be allocated to the Class I Certificateholders in proportion to
their respective Capital Account balances.
(ii) Any deductions not allocated pursuant to
Paragraph 6(c)(i) and attributable to (w) the amortization of
premium on the Receivables, (x) payments to the Trustee and
(y) payments to the Servicer shall be specially allocated to
the Class IC Certificateholder.
(iii) If there is a net decrease in "partnership
minimum gain" (within the meaning of Treasury Regulation
Section 1.704-2(d)) for a Fiscal Year, then there shall be
allocated to
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each Tax Partner items of income and gain for that year equal
to that Tax Partner's share of the net decrease in partnership
minimum gain (within the meaning of Treasury Regulation
Section 1.704-2(g)(2)), subject to the exceptions set forth in
Treasury Regulation Sections 1.704- 2(f)(2), (3) and (5),
provided, that if the Tax Partnership has any discretion as to
an exception set forth pursuant to Treasury Regulation Section
1.704-2(f)(5), the Tax Matters Partner may exercise such
discretion on behalf of the Tax Partnership. In the event the
application of the minimum gain chargeback requirement would
cause a distortion in the economic arrangement among the Tax
Partners, the Tax Matters Partner shall request the
Commissioner to waive the minimum gain chargeback requirement
pursuant to Treasury Regulation Section 1.704-2(f)(4). The
foregoing is intended to be a "minimum gain chargeback"
provision as described in Treasury Regulation Section
1.704-2(f) and shall be interpreted and applied in all
respects in accordance with that Treasury Regulation.
If during a Fiscal Year there is a net decrease in partner nonrecourse
debt minimum gain (as determined in accordance with Treasury Regulation
Section 1.704-2(i)(3)), then, in addition to the amounts, if any,
allocated pursuant to the preceding paragraph, any Tax Partner with a
share of that partner nonrecourse debt minimum gain (determined in
accordance with Treasury Regulation Section 1.704-2(i)(5)) as of the
beginning of the Fiscal Year shall, subject to the exceptions set forth
in Treasury Regulation Section 1.704-2(i)(4), including exceptions
analogous to those provided pursuant to Treasury Regulation Sections
1.704-2(f)(2), (3) and (5) (provided, that if the Tax Partnership has
any discretion as to an exception set forth pursuant to Treasury
Regulation Section 1.704-2(f)(5) as made applicable by Treasury
Regulation Section 1.704-2(i)(4), the Tax Matters Partner may exercise
such discretion on behalf of the Tax Partnership) be allocated items of
income and gain for the year (and, if necessary, for succeeding years)
equal to that Tax Partner's share of the net decrease in the partner
nonrecourse minimum gain. In the event the application of the minimum
gain chargeback requirement would cause a distortion in the economic
arrangement among the Tax Partners, the Tax Matters Partner shall
request the Commissioner to waive the minimum gain chargeback
requirement pursuant to Treasury Regulation Sections 1.704-2(i)(4) and
1.704-2(f)(4). The foregoing is intended to be the "chargeback of
partner nonrecourse debt minimum gain" required by Treasury Regulation
Section 1.704-2(i)(4) and shall be interpreted and applied in all
respects in accordance with that Treasury Regulation.
(iv) If during any Fiscal Year of the Tax Partnership
a Tax Partner unexpectedly receives an adjustment, allocation
or distribution described in Treasury Regulation Sections
1.704-1(b)(2)(ii)(d)(4), (5) or (6), which causes or increases
a deficit balance in the Tax Partner's Adjusted Capital
Account (as defined below), there shall be allocated to the
Tax Partner items of income and gain (consisting of a pro rata
portion of each item of Tax Partnership income, including
gross income, and gain for such year) in an amount and manner
sufficient to eliminate such deficit as quickly as possible.
The foregoing is intended to be a "qualified income offset"
provision as described in Treasury Regulation Section 1.704-
1(b)(2)(ii)(d) and shall be interpreted and applied in all
respects in accordance with the Treasury Regulation.
A Tax Partner's "Adjusted Capital Account", at any time, shall
equal the Tax Partner's Capital Account at such time (x) increased by
the sum of (A) the amount of the Tax Partner's share of partnership
minimum gain (as defined in Treasury Regulation Section 1.704-2(g)(1)
and (3)), (B) the amount of the Tax Partner's share of partner
nonrecourse debt minimum gain (as defined in Treasury Regulation
Section 1.704-2(i)(5)), and (C) any amount of the deficit balance in
its Capital Account and Tax Partner is obligated to restore on
liquidation of the Tax Partnership and (y) decreased by reasonably
expected adjustments, allocations and distributions described in
Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
(v) Notwithstanding anything to the contrary in this
Paragraph 6, Tax Partnership losses, deductions, or Code
Section 705(a)(2)(B) expenditures that are attributable to a
particular partner nonrecourse liability shall be allocated to
the Tax Partner that bears the
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economic risk of loss for the liability in accordance with the
rules of Treasury Regulation Section 1.704-2(i).
(vi) Notwithstanding any provision of Paragraphs 6(b)
and 6(c)(ii), no allocation of items of loss or deduction
shall be made to a Tax Partner if it would cause the Tax
Partner to have a negative balance in its Adjusted Capital
Account. Allocations of items of loss or deduction that would
be made to a Tax Partner but for this Paragraph 6(c)(vi) shall
instead be made first to the Class IC Certificateholder to the
extent not inconsistent with this Paragraph 6(c)(vi), and
second, to the Class A and Class I Certificateholders in
proportion to the amounts distributable for the related Period
pursuant to Sections 9.04(a)(iii) of the Agreement. To the
extent allocations of items of loss or deduction cannot be
made to any Tax Partner because of this Paragraph 6(c)(vi),
such allocations shall be made to the Tax Partners in
accordance with Paragraphs 6(b) and 6(c)(ii) notwithstanding
this Paragraph 6(c)(vi).
(vii) To the extent that any item of income, gain,
loss or deduction has been specially allocated pursuant to
Paragraphs 6(c)(iv) and (vi) and such allocation is
inconsistent with the way in which the same amount otherwise
would have been allocated under Paragraphs 6(b) and 6(c)(ii),
subsequent allocations under Paragraph 6(b) and 6(c)(ii) shall
be made, to the extent possible and without duplication, in a
manner consistent with Paragraphs 6(c)(iii), (iv), (v) and
(vi) which negate as rapidly as possible the effect of all
such inconsistent allocations.
(viii) Any allocations made pursuant to this
Paragraph 6 shall be made in the following order:
(i) Paragraph 6(c)(iii)
(ii) Paragraph 6(c)(iv)
(iii) Paragraph 6(c)(v)
(iv) Paragraph 6(c)(vii)
(v) Paragraph 6(c)(i)
(vi) Paragraph 6(c)(ii)
(vii) Paragraph 6(b)(iii)
(viii) Paragraph 6(b)(i) and (ii)
These provisions shall be applied as if all distributions and
allocations were made at the end of the Fiscal Year. Where any
provision depends on the Capital Account of any Partner, that
Capital Account shall be determined after the operation of all
preceding provisions for the year. These allocations shall be
made consistently with the requirements of Treasury Regulation
Section 1.704-2(j).
(d) The income, gains, losses, deductions and credits of the
Tax Partnership for Federal, state and local income tax purposes shall
be allocated in the same manner as the corresponding items entering
into the computation of Net Income and Net Losses were allocated
pursuant to Paragraphs 6(b) and (c) provided that solely for Federal,
local and state income and franchise tax purposes and not for book or
Capital Account purposes, income, gain, loss and deduction with respect
to property properly carried on the Tax Partnership's books at a value
other than its tax basis shall be allocated (i) in the case of property
contributed in kind, in accordance with the requirements of Code
Section 704(c) and such Treasury Regulations as may be promulgated
thereunder from time to time, and (ii) in the case of other property,
in accordance with the principles of Code Section 704(c) and the
Treasury Regulations thereunder as incorporated among the requirements
of the relevant provisions of the Treasury Regulations under Code
Section 704(b).
(e) The Tax Partnership shall comply with all withholding
requirements under Federal, state and local law and shall remit amounts
withheld to and file required forms with the applicable
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jurisdictions. To the extent the Tax Partnership is required to
withhold and pay over any amounts with respect to distributions or
allocations to any Tax Partner, the amount withheld shall be treated as
a distribution to that Tax Partner. In the event of any claimed
overwithholding, Tax Partners shall have no claim for recovery against
the Tax Partnership or other Tax Partners. If the amount withheld was
not withheld from actual distributions, the Tax Partnership, may at its
option, (i) require the Tax Partner to reimburse the Tax Partnership
for such withholding (and each Tax Partner agrees to reimburse the Tax
Partnership promptly following such request) or (ii) reduce any
subsequent distributions by the amount of such withholding. If there is
a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Tax Partner), the
Tax Partnership may in its sole discretion withhold such amounts in
accordance with this Paragraph 6(e). Each Tax Partner agrees to furnish
the Tax Partnership with any representations and forms as shall
reasonably be requested by the Tax Partnership to assist it in
determining the extent of, and in fulfilling, its withholding
obligations. If a Tax Partner wishes to apply for a refund of any such
withholding tax, the Trustee shall reasonably cooperate with such Tax
Partner in making such claim as long as the Tax Partner agrees to
reimburse the Tax Partnership for any out-of-pocket expenses incurred.
7. Sale of Interests. The Tax Partners agree that any sale by a Tax
Partner of any ownership interest in a Certificate shall be deemed to be a sale
of all or a portion of such Tax Partner's interest in the Tax Partnership.
8. Termination of a Tax Partner's Interest. Any distribution by the Tax
Partnership in termination of any Tax Partner's interest in the Tax Partnership
other than pursuant to Paragraph 9 below shall be in an amount of cash or
property other than cash having a net fair market value equal to the positive
Capital Account balance of such Tax Partner at the time such interest is
terminated, after such Capital Account balance has been adjusted in accordance
with Paragraphs 4 and 6 above for all operations preceding such distribution and
the applicable Treasury Regulations under Code Section 704(b), and shall be made
by the later of: (a) the end of the Tax Partnership's taxable year in which such
termination occurs; or (b) within 90 days after the date of such termination.
9. Distributions upon Termination. Upon termination of the Agreement
pursuant to its terms, the activities of the Tax Partners under this Annex A
shall be concluded and the assets subject to the Agreement and this Annex A
shall be distributed to the Tax Partners in the manner and in the order set
forth below:
(a) Debts of the Tax Partnership created pursuant to the
Agreement, other than to Tax Partners, including, except as provided in
Paragraph 9(e), all amounts due and owing to the Surety Bond Issuer,
shall be paid.
(b) Debts owed among the Tax Partners created pursuant to the
Agreement shall be paid.
(c) All cash on hand representing unexpended contributions by
any Tax Partner shall be returned to the contributor.
(d) The Tax Partners' Capital Accounts shall be adjusted by:
(i) assuming the sale of all remaining assets at their fair market
values as of the date of termination of the Agreement; and (ii)
debiting or crediting each Tax Partner's Capital Account with the Tax
Partner's respective share of the hypothetical gains or losses
resulting from such assumed sales in the same manner as such Tax
Partner's Capital Account would be debited or credited under Paragraph
6 above for gains or losses on actual sales of such properties.
(e) All Tax Partnership assets shall be distributed to the Tax
Partners in accordance with their respective Capital Account balances
as so adjusted by the later of: (i) the end of the Tax Partnership's
taxable year in which the termination occurs; or (ii) within 90 days
after the date of such termination, in the following order or priority:
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(i) to the Class A and Class I Certificateholders,
pro rata; and
(ii) to the Class IC Certificateholder; provided,
that in the event of a termination of the Trust Fund in the
event of a bankruptcy of the Class IC Certificateholders as
provided in Section 16.03 of the Agreement or an optional
termination of the Trust under Section 16.02 of the Agreement,
all amounts due and owing to the Surety Bond Issuer shall be
paid to the Surety Bond Issuer after the distribution to the
Class A and Class I Certificateholders pursuant to clause (i)
of this Paragraph 9(e) and prior to the distribution to the
Class IC Certificateholder pursuant to clause (ii) of this
Paragraph 9(e).
If property subject to the Agreement is distributed pursuant to this paragraph,
the amount of the distribution shall be equal to the net fair market value of
the distributed property.
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this ___ day of _______, 199_, by
and among UAC SECURITIZATION CORPORATION, a Delaware corporation (the
"Purchaser"), UNION ACCEPTANCE FUNDING CORPORATION, a Delaware corporation (the
"Seller") and UNION ACCEPTANCE CORPORATION, an Indiana corporation ("UAC").
WHEREAS, the Purchaser desires to purchase certain Receivables from the
Seller and the Seller desires to sell such Receivables to the Purchaser.
WHEREAS, the Seller purchased Receivables from UAC, and UAC has certain
obligations related to the representations and warranties made to the Seller in
conjunction with such sales. UAC services the Receivables on behalf of UAFC and
expects to service the Receivables on behalf of the UACSC 199_-_ Auto Trust and
to receive the benefits of acting as servicer in such capacities.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms of the terms defined):
"Agreement" means this Purchase Agreement and all amendments hereof and
supplements hereto.
"Assignment" means the document of assignment attached to this
Agreement as Annex A.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Chicago, Illinois or
Boston, Massachusetts are authorized or obligated by law, executive order or
governmental decree to be closed.
"Closing Date" means the date specified as such in Article II of the
Pooling and Servicing Agreement.
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"Cutoff Date" means the date specified as such in the Pooling and
Servicing Agreement.
"Dealer" means the seller of a Financed Vehicle, who originated and
assigned the related Receivable to UAC or the Predecessor under an existing
agreement with UAC or the Predecessor or who arranged for a loan from UAC or the
Predecessor to the purchaser of a Financed Vehicle under an existing agreement
with UAC or the Predecessor.
"Distribution Date" means, for each Collection Period, the third
Business Day after the 5th day of the following month.
"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.
"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 by operation of law.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Depositor, which counsel shall be acceptable to the Purchaser and
the Trustee.
"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.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement by and between the Purchaser as Depositor and Servicer and Bankers
Trust Company as Trustee dated as of ___________, 199_, providing for the
issuance of Automobile Receivable Pass-Through Certificates.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related contract as an add-on finance charge) and the portion allocable to the
Amount Financed is determined according to the sum of periodic balances, the sum
of monthly balances, the rule of 78's or any equivalent method.
"Predecessor" means Union Federal Savings Bank of Indianapolis, a
federally chartered savings bank.
"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.
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"Receivable" means any simple or precomputed interest installment sales
contract or installment loan and security agreement which shall appear on
Schedule A to this Agreement.
"Receivable Files" means the following documents or instruments 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 UAC 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 Seller shall
keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor, or
a Financed Vehicle.
"Servicer" means initially the UAC and thereafter any Person appointed
as the successor Servicer as provided in Section 14.02 of the Pooling and
Servicing Agreement.
"Trust" means the trust created by the Pooling and Servicing Agreement.
"Trustee" means Bankers Trust Company, a banking corporation organized
under the laws of the State of New York 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.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
Capitalized terms used herein but not defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
Section 2.01 Purchase and Sale of Receivables.
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(a) Purchase and Sale of Receivables. Simultaneously with the
transactions occurring on the Closing Date pursuant to the Pooling and
Servicing Agreement, the Seller shall sell, transfer, assign and
otherwise convey to the Purchaser, without recourse;
(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;
(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) the interest of the Seller in any proceeds from
recourse to Dealers relating to the Receivables;
(v) all documents contained in the Receivable Files;
(vi) all monies paid thereon, and all monies due
thereon, including Accrued Interest after the Cutoff Date (but
excluding interest paid prior to the Closing Date), with
respect to the Receivables held by the Servicer; and
(vii) all proceeds of the foregoing.
The Seller does not convey to the Purchaser any interest in any
contracts with Dealers related to any "dealer reserve" or any rights to the
recapture of any dealer reserve.
(b) Receivables Purchase Price. In consideration for the Receivables,
the Purchaser shall on the Closing Date pay to the Seller the purchase price for
such Receivables, equal to the Principal Balance of such Receivables at the
Cutoff Date in the amount of $____________.
Section 2.02 Closing the Purchase and Sale.
(a) The Closing. The closing of the sale of Receivables (the "Closing")
shall take place at the offices of Barnes & Thornburg, 1313 Merchants Bank
Building, 11 South Meridian Street, Indianapolis, Indiana 46204, on the Closing
Date, simultaneously with the closing under the Pooling and Servicing Agreement.
(b) Documents to be Delivered at the Closing.
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(i) The Assignment. On or prior to the Closing, the Seller will execute
and deliver the Assignment. The Assignment shall be in substantially the form of
Annex A hereto.
(ii) Evidence of UCC Filing. The Seller shall record and file, at its
own expense, one or more financing statements with respect to the Receivables in
such manner and in such places as required by law fully to preserve, maintain
and protect the interest of the Purchaser in the Receivables and other property
conveyed to the Purchaser hereunder, and shall deliver a file-stamped copy of
such financing statements or other evidence of such filings to the Purchaser on
or prior to the Closing Date.
(iii) Schedule of Receivables. The Seller shall at its own expense, on
or prior to the Closing Date, indicate in its computer files those Receivables
that have been sold or otherwise conveyed to the Purchaser pursuant to this
Agreement and deliver to the Purchaser (or to the Trustee on the Purchaser's
behalf) a computer file, hard copy or microfiche list containing a true and
complete list of all such Receivables.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties Regarding the Seller. The
Seller hereby represents and warrants to the Purchaser as of the date hereof and
as of the Closing Date;
(a) Organization and Good Standing. The Seller has been duly
incorporated and is validly existing as a corporation and in good standing under
the laws of the State of Delaware, and has full corporate power, authority and
legal right to execute and deliver this Agreement and to perform the terms and
provisions hereof.
(b) Due Authorization. The execution, delivery and performance of this
Agreement by the Seller has been duly authorized by all necessary corporate
action, does not require any approval or consent of any governmental agency or
authority, does not and will not violate or result in a breach which would
constitute a material default under, any agreement for borrowed money binding
upon or applicable to it or such to its property which is material to it or its
subsidiaries (whether or not consolidated) taken as a whole, or to the best of
the Seller's knowledge, any law or governmental regulation or court decree
applicable to it or such material property, and this Agreement is the valid,
binding and enforceable obligation of the Seller except as the same may be
limited by insolvency, bankruptcy or other similar laws of general application
affecting the enforcement of creditors' rights or general equity principles.
(c) Accuracy of Information. All information heretofore furnished by
the Seller in writing to the Purchaser for purposes of or in connection with
this Agreement or any
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transaction contemplated hereby is true and accurate in every material respect
or based on reasonable estimates on the date as of which such information is
stated or certified.
(d) No Proceedings. There are no proceedings or investigations pending,
or, to the best knowledge of the Seller, threatened against the Seller before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality seeking any determination or ruling that, in the
reasonable judgment of the Seller, would have a material adverse effect on the
performance by the Seller of its obligations under this Agreement.
Section 3.02 Representations and Warranties Regarding UAC. UAC hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date;
(a) Organization and Good Standing. UAC has been duly incorporated and
is validly existing as a corporation and in good standing under the laws of the
State of Indiana and has full corporate power, authority and legal right to
execute and deliver this Agreement and to perform the terms and provisions
hereof.
(b) Due Authorization. The execution, delivery and performance of this
Agreement by UAC has been duly authorized by all necessary corporate action,
does not require any approval or consent of any governmental agency or
authority, does not and will not violate or result in a breach which would
constitute a material default under, any agreement for borrowed money binding
upon or applicable to it or such to its property which is material to it or its
subsidiaries (whether or not consolidated) taken as a whole, or to the best of
UAC's knowledge, any law or governmental regulation or court decree applicable
to it or such material property, and this Agreement is the valid, binding and
enforceable obligation of UAC except as the same may be limited by insolvency,
bankruptcy or other similar laws of general application affecting the
enforcement of creditors' rights or general equity principles.
(c) Accuracy of Information. All information heretofore furnished by
UAC in writing to the Purchaser for purposes of or in connection with this
Agreement or any transaction contemplated hereby is true and accurate in every
material respect or based on reasonable estimates on the date as of which such
information is stated or certified.
(d) No Proceedings. There are no proceedings or investigations pending,
or, to the best knowledge of UAC, threatened against UAC before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality seeking any determination or ruling that, in the reasonable
judgment of UAC, would have a material adverse effect on the performance by UAC
of its obligations under this Agreement.
Section 3.03 Representations and Warranties Regarding the Receivables.
The Seller and UAC make the following representations and warranties as to the
Receivables on which the Purchaser relies in purchasing the Receivables. Such
representations and warranties speak as of the execution and delivery of the
Agreement, but shall survive the sale, transfer,
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and assignment of the Receivables by the Seller to the Purchaser hereunder and
by the Purchaser to the Trustee under the Pooling and Servicing Agreement.
(a) Characteristics of Receivables. Each Receivable (1) shall have been
either (A) originated in the United States of America by a Dealer for the retail
sale of a Financed Vehicle in the ordinary course of such Dealer's business,
shall have been purchased by UAC or the Predecessor from such Dealer and shall
have been validly assigned by such Dealer to UAC (or to the Predecessor and by
the Predecessor to UAC) in accordance with its terms and by UAC to the Seller
and, pursuant to this Agreement, by the Seller to the Purchaser or (B) shall
have been originated in the United States of America by UAC (or originated by
the Predecessor and validly sold and assigned by the Predecessor to UAC) and in
either case, validly sold and assigned by UAC to the Seller, and, pursuant to
this Agreement, by the Seller to the Purchaser (2) shall have been fully and
properly executed by the parties thereto, (3) shall have created or shall create
a valid, subsisting, and enforceable first priority perfected security interest
in favor of UAC, the Predecessor or the Seller in the Financed Vehicle, which
security interest shall be assignable and shall have been validly assigned by
the Seller to the Purchaser, (4) shall contain customary and enforceable
provisions such that the rights and remedies of the holder thereof shall be
adequate for realization against the collateral of the benefits of the security,
and (5) shall bear a fixed rate of interest.
(b) Schedule of Receivables. The information set forth in Schedule A to
the Agreement shall be true and correct in all material respects as of the
closing of business on the Cutoff Date, and no selection procedures believed to
be adverse to the Certificateholders shall have been utilized in selecting the
Receivables.
(c) Compliance with Law. Each Receivable and each sale of the related
Financed Vehicle shall have complied at the time it was originated or made and
at the execution of the Agreement shall comply in all material respects with all
requirements of applicable federal, State, and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Billing
Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Federal
Reserve Board's Regulations B and Z, and State adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other applicable
consumer credit laws and equal credit opportunity and disclosure laws.
(d) Binding Obligation. Each Receivable shall represent the genuine,
legal, valid, and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(e) No Government Obligor. None of the Receivables shall be due from
the United States of America or any State or from any agency, department, or
instrumentality of the United States of America, any State or any local
government.
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(f) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment, and transfer thereof, each Receivable shall be secured by a
validly perfected first priority security interest in the Financed Vehicle in
favor of UAC, the Predecessor or the Seller as secured party or all necessary
and appropriate actions with respect to such Receivable shall have been taken to
perfect a first priority security interest in the Financed Vehicle in favor of
UAC, the Predecessor or the Seller as secured party.
(g) Receivables in Force. No Receivable shall have been satisfied,
subordinated, or rescinded, nor shall any Financed Vehicle have been released
from the lien granted by the related Receivable in whole or in part.
(h) No Waiver. No provision of a Receivable shall have been waived.
(i) No Defenses. No right of rescission, setoff, counterclaim, or
defense shall have been asserted or threatened with respect to any Receivable.
(j) No Liens. No liens or claims shall have been filed, including liens
for work, labor, or materials relating to a Financed Vehicle that shall be liens
prior to, or equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable.
(k) No Default. Except for payment defaults continuing for a period of
not more than 30 days as of the Cutoff Date, no default, breach, violation, or
event permitting acceleration under the terms of any Receivable shall have
occurred; and no continuing condition that with notice or the lapse of time
would constitute a default, breach, violation, or event permitting acceleration
under the terms of any Receivable shall have arisen; and neither UAC, the Seller
nor the Predecessor shall have waived any of the foregoing.
(l) Insurance. Each Obligor has agreed to obtain physical damage
insurance covering the Financed Vehicle.
(m) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated, taken as a whole, constitute a sale of the
Receivables from the Seller to the Purchaser 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
Purchaser, except for pledges as shall have been duly and fully released.
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 Purchaser shall have good and
marketable title to each Receivable, free and clear of all liens and rights of
others and the transfer and assignment herein contemplated has been perfected
under the UCC.
(n) Lawful Assignment. No Receivable shall have been originated in, or
shall be subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such
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Receivable under the Agreement or transfers of the Certificates would be
unlawful, void, or voidable.
(o) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Purchaser a first priority
perfected security interest in the Receivables shall have been made.
(p) One Original. There shall be only one original executed copy of
each Receivable.
(q) Original Number of Scheduled Payments. Each Receivable shall have
not less than __ nor greater than __ monthly payments scheduled at origination.
(r) Remaining Maturity of Receivables. Each Receivable shall have a
remaining maturity of not more than __ months.
(s) Minimum Note Rate. Each Receivable shall have a contract rate of
interest (exclusive of prepaid finance charges) equal to or greater than _____%
and less than or equal to _____%.
(t) Scheduled Payments. Each Receivable shall be not more than 30 days
overdue as of the Cutoff Date.
(u) Interest Method. Each Receivable shall provide for accrual of
interest according to the simple interest method or shall be a Precomputed
Receivable and shall provide for monthly payments of principal and interest that
fully amortize the Amount Financed by maturity and for a finance charge or yield
interest at its Note Rate. The Principal Balance of Precomputed Receivables (on
an actuarial basis) as of the Cutoff Date represents ____% of the Original Pool
Balance.
(v) Latest First Payment Date. No Receivable shall have had a first
payment due after ___________, 199_.
(w) Location of Receivable Files. The Receivable Files shall be kept at
one or more of the locations listed in Annex B hereto.
(x) Composition of Receivables. Each and every Receivable listed on
Schedule A hereto shall arise from loans originated only on automobiles, light
trucks, vans or van conversions, at least _____% of which (securing at least
_____% of the Receivables by principal balance) are new vehicles.
(y) Marking Records. By the Closing Date, the Seller and UAC will have
caused the portions of the electronic ledger or similar computer records
relating to the Receivables conveyed to the Purchaser hereunder to be clearly
and unambiguously marked to show that such Receivables constitute property of
the Purchaser and/or have been conveyed by
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Purchaser to the Trust and constitute part of the Trust in accordance with the
terms of the Trust created under the Pooling and Servicing Agreement.
(z) Precomputed Receivables. Each Precomputed Receivable shall provide
for, in the event that such a Receivable is prepaid, a prepayment that fully
pays the Principal Balance and includes accrued but unpaid interest in an amount
calculated using an interest rate at least equal to its Note Rate.
Section 3.04 Repurchase Upon Breach. The Purchaser, UAC or the Seller,
as the case may be, shall inform the other parties promptly, in writing, upon
the discovery of any breach of the representations and warranties under Section
3.03. Unless the breach shall have been cured by the second Record Date under
Section 3.03 (as described in the Pooling and Servicing Agreement), following
the discovery, UAC shall repurchase from the Purchaser any Receivable materially
and adversely affected by the breach as of such Record Date (or, at UAC's
option, the first Record Date following the discovery). In consideration of the
purchase of the Receivable, UAC shall remit the Purchase Amount to or for the
account of the Purchaser. The sole remedy of the Purchaser shall be to require
UAC to repurchase Receivables pursuant to this Section 3.04. UAC hereby consents
to the assignment by the Purchaser of its rights under this Section 3.04 to the
Trust in the Pooling and Servicing Agreement and, in the event of such
assignment, agrees to remit the Purchase Amount in respect of any repurchased
Receivable directly to the Trust Certificate Account as provided for in the
Pooling and Servicing Agreement. Seller acknowledges that the Trust and the
Surety Bond Issuer shall be third party beneficiaries in respect of the rights
and benefits arising hereunder that are so assigned by Purchaser. Moreover, the
Seller and UAC each hereby authorizes the Purchaser and its assignee on behalf
of Seller or UAC, respectively, to execute and deliver certificates of title for
any Financed Vehicle securing a Receivable naming Seller or UAC as secured
party, and such other documents or certificates as may be necessary in
connection therewith, in order to identify the Purchaser or its assignee, as
appropriate, as the secured party with respect to such Financed Vehicle.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
The obligation of the Purchaser to purchase Receivables on the Closing
Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller or UAC hereunder shall be true and correct on the
Closing Date with the same effect as if then made.
(b) Documents, Other Obligations. The Seller shall have delivered the
documents and performed all other obligations to be performed by it hereunder.
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ARTICLE V
ADDITIONAL AGREEMENTS
The Seller agrees with the Purchaser as follows:
Section 5.01 Conflicts with Pooling and Servicing Agreement. To the
extent that any provision of Sections 5.02 through 5.05 of this Agreement
conflicts with any provision of the Pooling and Servicing Agreement, the Pooling
and Servicing Agreement shall govern.
Section 5.02 Protection of Right, Title and Interest.
(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 Purchaser and/or the Certificateholders and the
Trustee under the Pooling and Servicing Agreement in the Receivables and in the
proceeds thereof. The Seller shall deliver (or cause to be delivered) to the
Purchaser and/or the Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) The Seller shall not 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 9-402(7) of the UCC, unless it
shall have given the Purchaser at least 60 days' prior written notice thereof.
(c) The Seller shall give the Purchaser 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).
(d) The Seller shall cause its computer systems to be maintained so
that, from and after the time of sale under this Agreement of the Receivables to
be maintained such that the master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly that such Receivable
is owned by the Purchaser or Trustee. Indication of the 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.
(e) If at any time the Seller 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 Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, records,
or print-outs (including any restored from back-up
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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
Purchaser or the Trustee.
(f) The Seller shall permit the Purchaser and its agents at any time
during normal business hours to inspect, audit, and make copies of and abstracts
from the Seller's records regarding any Receivable.
Section 5.03 Security Interests. The Seller shall defend the right,
title and interest of the Purchaser in, to and under the Receivables, against
all claims of third parties claiming through or under the Seller.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Obligations of the Seller. The obligations of the Seller
to the Purchaser under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
Section 6.02 Amendment. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the parties hereto.
Section 6.03 Termination. This Agreement shall terminate upon the
termination of the Trust pursuant to the Pooling and Servicing Agreement.
Section 6.04 Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
Section 6.05 Notices. All communications and notices pursuant hereto to
either party shall be in writing or by telegraph or telex and addressed or
delivered to it at its address (or in case of telex, at its telex number at such
address) shown below or at such other address as may be designated by it by
notice to the other party and, if mailed or sent by telegraph or telex, shall be
deemed given when mailed, communicated to the telegraph office or transmitted by
telex. Such notice shall be sent to (a) in the case of the Seller, Union
Acceptance Funding Corporation, 250 North Shadeland Avenue, Suite 220A,
Indianapolis, Indiana 46219, Attention: Cynthia F. Whitaker (b) in the case of
UAC, Union Acceptance Corporation, 250 North Shadeland Avenue, Indianapolis,
Indiana 46219, Attention: John M. Stainbrook and (c) in the case of the
Purchaser, UAC Securitization Corporation, 250 North Shadeland Avenue, Suite
210A, Indianapolis, Indiana 46219, Attention: Cynthia F. Whitaker, or at such
other address as shall be designated by Purchaser in a written notice to Seller.
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Section 6.06 Headings and Cross-references. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such sections of this Agreement
unless otherwise specified.
Section 6.07 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
Indiana, without reference to its conflict of laws provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 6.08 Nonpetition covenant. Seller shall not, prior to the date
which is one year and one day after the termination of this Agreement,
acquiesce, petition or otherwise invoke or cause the Trust or the Depositor to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Trust or the Depositor 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 Depositor or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Trust or the
Depositor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
UNION ACCEPTANCE FUNDING
CORPORATION, Seller
By:____________________________
Its:
UAC SECURITIZATION CORPORATION,
Purchaser
By:____________________________
Its:
UNION ACCEPTANCE CORPORATION,
UAC
By:____________________________
Its:
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Assignment
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency are
hereby acknowledged, Union Acceptance Funding Corporation, a Delaware
corporation (the "Seller") does hereby sell, transfer, assign and otherwise
convey to UAC Securitization Corporation, a Delaware corporation (the
"Purchaser"), without recourse:
(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;
(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) the interest of the Seller in any proceeds from
recourse to Dealers relating to the Receivables;
(v) all documents contained in the Receivable Files;
(vi) all monies paid thereon, and all monies due thereon,
including Accrued Interest after the Cutoff Date,
(but excluding interest paid or due prior to the
Closing Date) with respect to the Receivables held by
the Servicer; and
(vii) all proceeds of the foregoing.
The Seller does not convey to the Purchaser any interest in any
contracts with Dealers related to any "dealer reserve" or any rights to the
recapture of any dealer reserve.
Capitalized terms used but not defined in this Assignment have the
meanings assigned to them in the Purchase Agreement dated as of ___________,
199_ between the Purchaser and the Seller.
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IN WITNESS WHEREOF, the undersigned has executed this Assignment as of
the ___ day of _______________, 199_.
UNION ACCEPTANCE FUNDING
CORPORATION, Seller
By:____________________________
Name:
Title:
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SCHEDULE A
List of Receivables
The Receivables consisting of motor vehicle retail installment sale contracts
originated and booked on or before ___________, 199_, aggregating
$______________ in remaining principal amount as of the Cutoff Date are listed
on the attached pages.
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ANNEX B
Location of Receivables Files
Union Acceptance Corporation
250 N. Shadeland Avenue
Indianapolis, Indiana 46219
Union Acceptance Funding Corporation
250 North Shadeland Avenue
Suite 220A
Indianapolis, Indiana 46219
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