Exhibit 10.5
AMBAC ASSURANCE
CORPORATION
NOTE GUARANTY INSURANCE
POLICY
Policy No. AB1053BE
|
|
|
|
|
|
|
|
Insured Party:
|
|
The Indenture
Trustee (as defined herein) for the benefit of the Holders (as
defined herein) of the UPFC Auto Receivables Trust 2006-B
Asset-Backed Class A Notes, issued pursuant to the
Indenture.
|
|
|
|
|
Insured Obligations:
|
|
To the extent
set forth herein, the aggregate interest on and the aggregate
outstanding principal balance of all Class A Notes owned by
Holders, such principal amount not to exceed in the aggregate
$250,000,000.
|
|
|
|
|
Policy Claim Amounts:
|
|
(i) With
respect to each Distribution Date, the excess, if any, without
duplication, of (a) the Scheduled Payments minus (b) the sum of,
without duplication: (w) all amounts of Available Funds for the
related Collection Period, (x) Additional Funds Available, if any,
for such Distribution Date, (y) all other funds on deposit in the
Collection Account, the Note Distribution Account, the Spread
Account and any other Trust Accounts available for payment of
Scheduled Payments on the Class A Notes on such Distribution Date
and (z) any other amounts available pursuant to the Basic Documents
to pay the Scheduled Payments on such Distribution Date, in each
case to the extent available in accordance with the priorities set
forth in the Indenture and the Sale and Servicing Agreement, and
(ii) with respect to any Preference Payment Date, Preference
Amounts; provided , however , that the aggregate
amount of all such Preference Amounts shall be subject to the
limitations in such definition; provided , further ,
that in no event shall the aggregate amount payable by the Insurer
under this Policy exceed the Maximum Insured Amount.
|
For consideration received, AMBAC
ASSURANCE CORPORATION, a Wisconsin domiciled stock insurance
corporation (“ Ambac ” or the “
Insurer ”), in consideration of the payment of the
insurance premium payable with respect hereto, hereby
unconditionally and irrevocably guarantees, subject only to
(i) proper presentation of a Notice in accordance with the
terms of this Note Guaranty Insurance Policy (together with each
and every endorsement, if any, hereto, the “ Policy
”) and (ii) the terms of the
Policy, the payment to, or at the direction of,
the Indenture Trustee, for the benefit of the Holders of the
Insured Obligations, that portion of the Policy Claim Amounts which
are Due for Payment but are unpaid by reason of
Nonpayment.
1. Definitions .
Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in
the Insurance Agreement or, if not defined therein, in the Sale and
Servicing Agreement, or, if not defined therein, in the Indenture,
without giving effect to any subsequent amendment or modification
thereto unless such amendment or modification has been approved in
writing by Ambac. For purposes of the Policy, the following terms
shall have the following meanings:
“ Affiliate ”
shall mean, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such
specified Person. For the purposes of this definition,
“control” when used with respect to any Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
“ Bankruptcy Code
” shall mean Title 11 of the United States Code.
“ Basic Documents
” shall mean the Sale and Servicing Agreement, the
Certificate of Trust, the Trust Agreement, the Sale Agreement, the
Insurance Agreement, the Indenture, the Spread Account Agreement
and all other documents and certificates delivered in connection
therewith.
“ Business Day ”
shall mean a day other than (a) a Saturday or a Sunday,
(b) a day on which the Insurer is closed or (c) a day on
which banking institutions in New York City, Newport Beach,
California, Wilmington, Delaware or in the city in which the
corporate trust office of the Indenture Trustee under the Indenture
or the Owner Trustee under the Trust Agreement is located are
authorized or obligated by law or executive order to be
closed.
“ Class A Notes ”
shall mean, collectively, the Class A-1 Notes, the
Class A-2 Notes and the Class A-3 Notes.
“ Collection Account
” shall mean the account designated as such, established and
maintained pursuant to Section 5.1 of the Sale and Servicing
Agreement.
“ Distribution Date
” shall mean, with respect to each Collection Period, the
15th day of the following calendar month, or, if such day is not a
Business Day, the immediately following Business Day, commencing
January 16, 2007.
2
“ Due for Payment
” shall mean, with respect to any Policy Claim Amounts, such
amount as is due and payable pursuant to the terms of the
Indenture.
“ Final Scheduled
Distribution Date ” shall mean, with respect to
(i) the Class A-1 Notes, the December 17, 2007
Distribution Date, (ii) the Class A-2 Notes, the
December 15, 2009 Distribution Date and (iii) the
Class A-3 Notes, the August 15, 2012 Distribution
Date.
“ First Distribution
Date ” shall mean January 16, 2007.
“ Holder ” shall
mean any registered owner of a Class A Note (other than a
United Party).
“ Indenture ”
shall mean that certain Indenture, dated as of December 1,
2006, by and between the Issuing Entity and the Indenture
Trustee.
“ Indenture Trustee
” shall mean Deutsche Bank Trust Company Americas, not in its
individual capacity but as trustee under the Indenture, and its
successors and assigns in such capacity.
“ Insurance Agreement
” shall mean that certain Insurance and Indemnity Agreement,
dated as of December 14, 2006, among the Insurer, the Issuing
Entity, UACC, the Seller and the Indenture Trustee, in regard to
the Class A Notes, as such agreement may be amended, modified
or supplemented from time to time.
“ Insured Payments
” shall mean, (i) with respect to any Distribution Date,
the aggregate amount actually paid by the Insurer to, or at the
direction of, the Indenture Trustee in respect of the amounts set
forth in clause (i) of the definition of Policy Claim Amounts
for such Distribution Date and (ii) the aggregate amount of
any Preference Amounts paid by the Insurer on any given Business
Day.
“ Insurer ” shall
mean Ambac, or any successor thereto, as issuer of this
Policy.
“ Interest Period
” means with respect to any Distribution Date (i) for
the Class A-1 Notes, from and including the prior Distribution
Date (or in the case of the first Distribution Date, from and
including the Closing Date) to, but excluding, the current
Distribution Date, and (ii) with respect to the Class A-2
Notes and the Class A-3 Notes, from and including the 15th day
of the preceding calendar month (or, in the case of the first
Distribution Date, from and including the Closing Date) to , but
excluding, the 15th day of the month of the current Distribution
Date.
“ Interest Rate ”
shall mean, with respect to (i) the Class A-1 Notes,
5.34% per annum, (ii) the Class A-2 Notes,
5.15% per annum and (iii) the Class A-3 Notes,
5.01% per annum (in the case of the Class A-1 Notes,
computed on the basis of a 360-day year and the actual number of
days in the related Interest Period and, in the case of the Class
A-2 Notes and the Class A-3 Notes, computed on the basis of a
360-day year consisting of twelve 30-day months).
3
“ Issuing Entity
” shall mean UPFC Auto Receivables Trust 2006-B, a Delaware
statutory trust.
“ Late Payment Rate
” shall mean the lesser of (a) the greater of
(i) the per annum rate of interest publicly announced from
time to time by Citibank, N.A. as its prime or base lending rate
(any change in such rate of interest to be effective on the date
such change is announced by Citibank, N.A.), plus 2% per annum
and (ii) the then applicable highest rate of interest on the
Class A Notes and (b) the maximum rate permissible under
applicable usury or similar laws limiting interest rates. The Late
Payment Rate shall be computed on the basis of the actual number of
days elapsed over a year of 360 days.
“ Maximum Insured
Amount ” shall mean $250,000,000 in respect of principal,
plus interest thereon calculated at the applicable Interest Rate
for the Class A Notes.
“ Nonpayment ”
shall mean, with respect to any Distribution Date, Policy Claim
Amounts which are Due for Payment but have not been paid pursuant
to the Indenture.
“ Notice ” shall
mean the telephonic or telegraphic notice, promptly confirmed in
writing by telecopy substantially in the form of Exhibit A
or Exhibit B , as applicable, to this Policy, the original
of which is subsequently delivered by registered or certified mail,
from the Indenture Trustee specifying the amount of any Policy
Claim Amount which shall be due and owing.
“ Order ” shall
have the meaning given such term in Section 8
hereto.
“ Person ” shall
mean any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision
thereof.
“ Preference Amount
” shall mean any interest on or principal of the Class A
Notes which has become Due for Payment, the Nonpayment of which
would have been covered by the Policy, and which was made to a
Holder by or on behalf of the Issuing Entity which has been deemed
a preferential transfer and recoverable, or theretofore recovered,
from its Holder pursuant to the Bankruptcy Code in accordance with
a final, nonappealable order of a court of competent jurisdiction;
provided that any Preference Amount that constitutes
interest shall be limited to the amount of interest on the
outstanding principal amount of the Class A Notes (calculated
at the Interest Rate for the relevant class of Class A Notes)
accrued as of the last day of the applicable interest accrual
period with respect to the Class A Notes and shall not, in any
event, include any interest on the Class A Notes accrued after
such date or any interest on such interest amount; provided
, further , that in no event shall Ambac be obligated to
make any payment in respect to any Preference Amount to the extent
that such payment, when added to all prior payments of Policy Claim
Amounts, would exceed the Maximum Insured Amount.
“ Preference Payment
Date ” shall have the meaning given such term in
Section 8 hereto.
4
“ Reimbursement Amount
” shall mean, as of any Distribution Date, the sum of (x)(i)
all Insured Payments paid by Ambac, but for which Ambac has not
been reimbursed prior to such Distribution Date, plus
(ii) interest accrued on such Insured Payments not previously
repaid calculated at the Late Payment Rate from the date the
Indenture Trustee, or any other Person at its direction, received
the related Insured Payments or the date such Insured Payments were
made, and (y) without duplication (i) any amounts then
due and owing to Ambac under the Insurance Agreement, the Indenture
and the Sale and Servicing Agreement, as certified to the Indenture
Trustee by Ambac plus (ii) interest on such amounts at
the Late Payment Rate.
“ Sale Agreement
” shall mean the Sale Agreement between UACC and the Seller,
dated as of December 1, 2006, as such Sale Agreement may be
amended from time to time.
“ Sale and Servicing
Agreement ” shall mean that certain Sale and Servicing
Agreement, dated as of December 1, 2006, by and among the
Issuing Entity, the Seller, the Servicer, the Trust Collateral
Agent, the Custodian, the Backup Servicer and the Designated Backup
Subservicer, as the same may be amended or supplemented from time
to time.
“ Scheduled Payments
” shall mean, with respect to any Distribution Date, an
amount equal to the sum of the Noteholders’ Interest
Distributable Amount (net of any interest shortfalls resulting from
the application of Relief Act Shortfalls) and the
Noteholders’ First Principal Distributable Amount (other than
the amount specified in clause (2)(b) of the definition
thereof) for the related Distribution Date; provided that
Scheduled Payments shall not include (x) any portion of a
Noteholders’ Interest Distributable Amount or of a
Noteholders’ Interest Carryover Amount due to Holders because
the Notice in proper form was not timely received by Ambac, or
(y) any portion of a Noteholders’ Inter