Exhibit 10.14
SERVICING AGREEMENT
among
CONN FUNDING II, L.P.,
AS ISSUER,
CAI, L.P.,
AS SERVICER,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
AS TRUSTEE
----------
DATED AS OF SEPTEMBER 1, 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.......................................................1
Section 1.01 Defined Terms...............................................1
Section 1.02 Definitions.................................................2
Section 1.03 Other Definitional Provisions...............................3
ARTICLE II ADMINISTRATION AND SERVICING OF RECEIVABLES AND
RELATED SECURITY..................................................3
Section 2.01 Appointment of Servicer.....................................3
Section 2.02 Duties of Servicer..........................................5
Section 2.03 Rights After Designation of New Servicer...................11
Section 2.04 Servicer Default...........................................11
Section 2.05 Servicer Indemnification of Indemnified Parties............13
Section 2.06 Grant of License...........................................13
Section 2.07 Servicing Compensation.....................................14
Section 2.08 Representations and Warranties of the Servicer.............14
Section 2.09 Reports and Records for the Trustee........................17
Section 2.10 Reports to the Commission..................................17
Section 2.11 Affirmative Covenants of the Servicer......................17
Section 2.12 Negative Covenants of the Servicer.........................19
ARTICLE III RIGHTS OF NOTEHOLDERS AND ALLOCATION AND APPLICATION
OF COLLECTIONS...................................................20
Section 3.01 Establishment of Accounts..................................20
Section 3.02 Collections and Allocations................................20
ARTICLE IV OTHER SERVICER POWERS............................................22
Section 4.01 Appointment of Paying Agent................................22
Section 4.02 Meetings of Noteholders....................................22
ARTICLE V OTHER MATTERS RELATING TO THE SERVICER...........................22
Section 5.01 Liability of the Servicer..................................22
Section 5.02 Limitation on Liability of the Servicer and Others.........22
Section 5.03 Servicer Not to Resign.....................................23
Section 5.04 Waiver of Defaults.........................................23
ARTICLE VI ADDITIONAL OBLIGATION OF THE SERVICER WITH RESPECT TO
THE TRUSTEE......................................................23
Section 6.01 Successor Trustee..........................................23
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Section 6.02 Tax Returns................................................24
Section 6.03 Final Payment with Respect to Any Series...................24
ARTICLE VII MISCELLANEOUS PROVISIONS.........................................24
Section 7.01 Amendment..................................................24
Section 7.02 Protection of Right, Title and Interest to Receivables
and Related Security.......................................25
Section 7.03 Governing Law..............................................26
Section 7.04 Notices....................................................26
Section 7.05 Severability of Provisions.................................26
Section 7.06 Delegation.................................................27
Section 7.07 Waiver of Trial by Jury....................................27
Section 7.08 Further Assurances.........................................27
Section 7.09 No Waiver; Cumulative Remedies.............................27
Section 7.10 Counterparts...............................................27
Section 7.11 Third-Party Beneficiaries..................................27
Section 7.12 Actions by Noteholders.....................................27
Section 7.13 Rule 144A Information......................................28
Section 7.14 Merger and Integration.....................................28
Section 7.15 Headings...................................................28
Section 7.16 Rights of the Trustee......................................28
EXHIBITS
Exhibit A-1 Form of Monthly Servicer Report
Exhibit A-2 Form of Monthly Noteholders' Statement
Exhibit B Form of Annual Servicer's Certificate
Exhibit C Form of Credit and Collection Policy
Exhibit D Form of Accounting Control Procedures and Processing Report
Exhibit E Form of Post Office Box Agreement
SCHEDULES
Schedule 2.08(i) Litigation
ii
SERVICING AGREEMENT dated as of September 1, 2002 (the "Agreement") by
and among CONN FUNDING II, L.P., a Texas limited partnership, as issuer (the
"Issuer"), CAI, L.P., a Texas limited partnership ("CAI"), as initial Servicer,
and ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking
association, as trustee under the Indenture (defined below) (in such capacity,
together with its successors and assigns in such capacity, the "Trustee").
WHEREAS, the Issuer has purchased from Conn Funding I, L.P., and has
purchased and desires to continue to purchase from Conn Appliances, Inc., and
CAI (collectively, and together with any additional "Sellers" added from time to
time pursuant to the Purchase Agreement referenced below, the "Sellers"), from
time to time, Receivables and other Related Security relating to such
Receivables pursuant to the terms of and subject to the conditions set forth in
the Receivables Purchase Agreement dated as of September 1, 2002 (as amended on
and through the date hereof and as further amended, supplemented or otherwise
modified from time to time the "Purchase Agreement") between the Sellers and the
Issuer.
WHEREAS, the Issuer is entering into a Base Indenture dated as of the
date hereof, together with one or more supplements thereto (as amended,
supplemented or otherwise modified from time to time, the "Indenture"), between
the Issuer and the Trustee, and each of the other related Transaction Documents,
pursuant to which the Issuer plans to issue one or more Notes from time to time,
in order to finance its business operations.
WHEREAS, the Servicer is willing to service all Receivables and other
Related Security acquired by the Issuer from time to time, pursuant to the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Back-Up Servicer" is defined in Section 2.01(b).
"Back-Up Servicing Agreement" is defined in Section 2.01(b).
"CAI" is defined in the preamble.
"Consolidated Net Worth" means at any date, with respect to any
Person, the consolidated stockholders' equity of such Person and its
consolidated Subsidiaries, plus the principal amount of subordinated
debt of such Person, minus (to the extent reflected in determining
such consolidated stockholders' equity) all intangible assets
(determined in accordance with GAAP) as reported in
the audited consolidated financial statements of such Person for the
fiscal year in question.
"Custodian" is defined in Section 2.02(a)(ii).
"Field Collections" is defined in Section 2.02(c).
"Indemnified Parties" is defined in Section 2.05.
"Indenture" is defined in the second recital.
"In-Store Payments" is defined in Section 2.02(c).
"Investor Servicing Fee" is defined in Section 2.07.
"Issuer" is defined in the preamble.
"Issuer Servicing Fee" is defined in Section 2.07.
"Mail Payments" is defined in Section 2.02(c).
"Post Office Box" means post office box 1687 in the name of the
Issuer maintained by the Issuer or the Servicer for the receipt of
Collections from the Obligors.
"Post Office Box Agreement" means an agreement by and among the
Issuer, the Trustee, the Servicer and the United States Postal
Service, in substantially the form attached hereto as Exhibit E,
specifying the rights of the parties in the Post Office Box.
"Purchase Agreement" is defined in the first recital.
"Sellers" is defined in the first recital.
"Servicer" is defined in Section 2.01(a).
"Servicer Default" is defined in Section 2.04.
"Servicing Fee" is defined in Section 2.07.
"Specified Servicer Default" means any Servicer Default of the
type specified in paragraph (a), (b), (c) or (d) of Section 2.04.
"Trustee" is defined in the preamble.
Section 1.02 Definitions. Capitalized terms used but not defined
herein shall have the respective meanings given to such terms in the Indenture
and, to the extent applicable, the Series Supplement for each Series.
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Section 1.03 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined
herein or in the Indenture shall have the respective meanings given to
them under GAAP, subject to the Indenture. To the extent that the
definitions of accounting terms herein are inconsistent with the
meanings of such terms under GAAP, the definitions contained herein
shall control.
(c) Unless the context otherwise requires, if more than one
Person is acting as Servicer under this Agreement, the agreements,
representations and warranties of the Servicer in this Agreement shall
be deemed to be the joint and several agreements, representations and
warranties of such Persons for so long as such Persons act in such
capacity under this Agreement; provided, that notwithstanding the
above, CAI shall remain liable for claims arising for breach of such
agreements, representation and warranties that arise from events that
occurred while it was acting in such capacity under this Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; and Section, subsection, Schedule and Exhibit references
contained in this Agreement are references to Sections, subsections,
Schedules and Exhibits in or to this Agreement unless otherwise
specified.
ARTICLE II
ADMINISTRATION AND SERVICING
OF RECEIVABLES AND RELATED SECURITY
Section 2.01 Appointment of Servicer.
(a) The servicing, administering and collection of the
Receivables shall be conducted by such Person (the "Servicer") so
designated from time to time in accordance with this Section 2.01.
Until the Trustee gives notice to CAI of the designation of a new
Servicer pursuant to this Section 2.01, CAI is hereby designated as,
and hereby agrees to perform the duties and obligations of, the
Servicer pursuant to the terms hereof. The Servicer may not delegate
any of its rights, duties or obligations hereunder, or designate a
substitute Servicer, without the prior written consent of the Trustee,
the Enhancement Providers and the Notice Persons; provided, however,
that CAI shall be permitted to delegate its duties hereunder to any of
its Affiliates or their agents and may use sub-Servicers, but such
delegation shall not relieve CAI of its duties and obligations
hereunder.
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(b) (i) After the occurrence of a Servicer Default or any Pay
Out Event, the Trustee may, and upon the direction of the Required
Noteholders or in the case of a Specified Servicer Default shall, in
accordance with the provisions set forth in clause (ii) below, appoint
▇▇▇▇▇ Fargo Bank Minnesota, National Association, to succeed CAI as
Servicer hereunder (in such capacity, together with its respective
successors and assigns in such capacity, the "Back-Up Servicer")
pursuant to the Back-Up Servicing Agreement dated as of the date
hereof (as amended, supplemented or otherwise modified from time to
time the "Back-Up Servicing Agreement), among the Back-Up Servicer and
the various other parties thereto.
(ii) If (x) the Back-Up Servicer, on the date of its
appointment as successor Servicer or at any time following such
appointment, fails or is unable to perform the duties of the
Servicer hereunder or has previously resigned or otherwise been
terminated as Back-Up Servicer, or (y) any other Person
designated successor Servicer in accordance with this Section
2.01 resigns, fails or is unable to perform the duties of the
Servicer hereunder following its appointment as successor
Servicer, the Trustee may, and upon the direction of the Required
Noteholders shall, appoint as Servicer any Person to succeed the
then-current Servicer on the condition in each case that any such
Person so appointed shall agree to perform the duties and
obligations of the Servicer pursuant to the terms hereof. Until
such time as the Person so appointed becomes obligated to begin
acting as Servicer hereunder, the then current Servicer will
continue to perform all servicing functions under this Agreement
and the other Transaction Documents. If the Trustee is not able
to appoint a new Servicer to succeed CAI, the Back-Up Servicer or
any other Person then acting as Servicer, within a reasonable
time following the date upon which it is required to so appoint a
successor to the Servicer pursuant to this Section 2.01 (but in
any event not later than 30 days following such date), the
Trustee shall at the Issuer's expense petition a court of
competent jurisdiction to appoint as the Servicer hereunder any
established financial institution having, in the case of any
entity that is subject to risk-based capital adequacy
requirements, risk-basked capital of at least $25,000,000 or, in
the case of an entity that is not subject to risk-based capital
requirements, having a net worth of not less than $25,000,000 and
whose regular business includes the servicing of receivables
comparable to the Receivables which are the subject of this
Agreement and the other Transaction Documents. Following any
appointment of a successor Servicer pursuant to this Section
2.01, the Trustee will provide notice thereof to the Issuer, the
Sellers, the Enhancement Providers and the Noteholders.
(c) The Trustee shall not be responsible for any differential
between the Servicing Fee and any compensation paid to a successor
Servicer hereunder.
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Section 2.02 Duties of Servicer.
(a) (i) The Servicer shall take or cause to be taken all such
action as may be reasonably necessary or advisable to collect each
Receivable from time to time, all in accordance with applicable Laws,
with reasonable care and diligence, and in accordance with the Credit
and Collection Policy. Each of the Issuer, each Noteholder by its
acceptance of the related Notes and each of the other Secured Parties
(through their deemed appointment of the Trustee pursuant to the
Indenture), hereby appoints as its agent the Servicer, from time to
time designated pursuant to Section 2.01 hereof, to enforce its
respective rights and interests in and under the Contracts,
Receivables and Related Security, Collections and proceeds with
respect thereto. To the extent permitted by applicable law, each of
the Issuer and CAI (to the extent not then acting as Servicer
hereunder) hereby grants to any Servicer appointed hereunder all
rights and powers of the Issuer and/or the Servicer, as the case may
be, under the Contracts and with respect to the Related Security, and
hereby grants an irrevocable power of attorney to take in the Issuer's
and/or CAI's name and on behalf of the Issuer or CAI any and all steps
necessary or desirable, in the reasonable determination of the
Servicer, to collect all amounts due under any and all Receivables,
including, without limitation, to cancel any policy of insurance, make
demands for unearned premiums, commence enforcement proceedings,
exercise other powers under a Contract, execute and deliver
instruments of satisfaction or cancellation, or full or partial
discharge, with respect to Receivables, endorse the Issuer's and/or
CAI's name on checks and other instruments representing Collections
and enforce such Receivables and the related Contracts. The Servicer
shall, as soon as practicable following receipt thereof, turn over to
CAI any collections of any Indebtedness of any Person which is not on
account of a Receivable. The Servicer shall not make the Trustee, any
Enhancement Provider, any Noteholder or any of their respective agents
a party to any litigation without the prior written consent of such
Person. Without limiting the generality of the foregoing and subject
to Section 2.04, the Servicer is hereby authorized and empowered
unless such power and authority is revoked by the Trustee on account
of a Servicer Default (A) to make deposits or withdrawals from the
Collection Account as set forth in this Agreement, the Indenture and
any Series Supplement, (B) to instruct the Trustee to make deposits or
withdrawals and payments from the Finance Charge Account, the
Principal Account and any Series Account, in accordance with such
instructions as set forth in the Indenture or any applicable Series
Supplement, (C) to instruct or notify Trustee in writing, as set forth
in this Agreement, the Indenture and any Series Supplement, (D) to
make all calculations, allocations and determinations required of the
Servicer under the Indenture, any Series Supplement and as required
herein or to establish Series Accounts, (E) to execute and deliver, on
behalf of the Issuer for the benefit of the Noteholders, any and all
instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with
respect to the Receivables and the other Contracts and Related
Security and, after any delinquency in payment relating to any
Receivable, to the extent permitted under and in compliance with
applicable law and regulations, to commence enforcement proceedings
with respect thereto (including cancellation
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of the related insurance policy) and (F) to make any filings, reports,
notices, applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and any
state securities authority on behalf of the Issuer as may be necessary
or advisable to comply with any federal or state securities or
reporting requirements.
(ii) Subject to the terms and conditions of this Section
2.02(a)(ii), CAI shall maintain custody and possession of the
Receivable Files on behalf of, and as bailee for, Trustee (for
the benefit of the Noteholders and the other Secured Parties) (in
such capacity, together with its successors and assigns, the
"Custodian").
(A) Custodian agrees to maintain possession of the related
Receivable Files at its offices where they are presently maintained,
at the offices of the related subservicers or at such other offices of
Custodian as shall from time to time be identified to Trustee by
written notice. Custodian shall segregate such Receivable Files from
other files maintained by Custodian and shall store such Receivable
Files in fireproof safes upon conversion to microfilm, which shall
occur as soon as practical after acquisition of the applicable
Receivable by the Issuer and in no event later than six (6) months
after such acquisition. Until such time as Trustee shall notify
Originator in writing, Trustee hereby appoints CAI, and CAI hereby
agrees to act, as Custodian hereunder. Custodian may temporarily
deliver individual Receivable Files or any portion thereof to Servicer
without notice as necessary to conduct collection and other servicing
activities in accordance with its customary practices and procedures.
(B) As custodian and bailee, Custodian shall hold the Receivable
Files (by itself and/or through subservicers) on behalf of Trustee
(for the benefit of the Secured Parties and, by agreeing to act as
Custodian, is deemed to have received notice of the security interests
of the Secured Parties in the Collateral), maintain accurate records
pertaining to each Receivable to enable it to comply with the terms
and conditions of this Agreement, maintain a current inventory thereof
and conduct periodic physical inspections of Receivable Files held by
it under this Agreement and attend to all other details in connection
with maintaining custody of the Receivable Files.
(C) In performing its duties under this Section 2.02(a)(ii),
Custodian agrees to act with reasonable care, using that degree of
skill and care that it exercises with respect to similar contracts
owned and/or serviced by it. Custodian shall promptly report to
Trustee any material failure by it to hold the Receivable Files as
herein provided and shall promptly take appropriate action to remedy
such failure. In acting as custodian of the Receivable Files,
Custodian agrees further not to assert, and shall cause each related
subservicer not to assert any beneficial ownership interests in the
Receivables. Custodian agrees to indemnify Trustee, the Secured
Parties and Issuer, and their respective officers, directors,
employees, partners and agents for any and all liabilities,
obligations, losses, damages, payments, costs, or expenses of any kind
whatsoever which may be
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imposed on or incurred by any such Person arising from the gross
negligence or willful misconduct of Custodian in maintaining custody
of the Receivable Files pursuant to this Section 2.02(a)(ii);
provided, however, that Custodian will not be liable to the extent
that any such amount resulted from the negligence or willful
misconduct of such Person.
(D) The appointment of Custodian shall terminate at the sole
discretion of Trustee or at the direction of the Trustee acting at the
direction of the Required Noteholders upon the replacement of
Custodian by a successor Custodian selected by Trustee. Promptly
following the appointment of a successor Custodian, and in any event
within five days of such appointment, Custodian shall (at Custodian's
sole cost and expense if a Servicer Default shall have occurred or if
the Custodian shall have been removed for cause) deliver all of the
Receivable Files in its possession, and all records maintained by it
with respect thereto, to such successor Custodian.
(b) (i) Servicer shall service and administer the Receivables
on behalf of Issuer and Trustee (for the benefit of the Secured
Parties) and shall have full power and authority, acting alone and/or
through subservicers as provided in Section 2.02(b)(iii), to do any
and all things which it may deem reasonably necessary or desirable in
connection with such servicing and administration and which are
consistent with this Agreement. Consistent with the terms of this
Agreement, Servicer may waive, modify or vary any term of any
Receivable or consent to the postponement of strict compliance with
any such term or in any manner, grant indulgence to any Obligor if, in
Servicer's reasonable determination, such waiver, modification,
postponement or indulgence is not materially adverse to the interests
of Issuer or Trustee (for the benefit of the Secured Parties);
provided, however, that Servicer may not permit any modification with
respect to any Receivable that would change its interest rate, defer
the payment of any principal or interest, reduce the Outstanding
Principal Balance (except for actual payments of principal), or extend
the final maturity date on such Receivable except in accordance with
the Credit and Collection Policy. Without limiting the generality of
the foregoing, Servicer in its own name or in the name of Issuer is
hereby authorized and empowered by Issuer when Servicer believes it
appropriate in its best judgment to execute and deliver, on behalf of
Issuer, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable
instruments, with respect to the Receivable.
(ii) Servicer shall service and administer the Receivables
by employing such procedures (including collection procedures)
and degree of care, in each case consistent with prudent industry
standards, as are customarily employed by Servicer in servicing
and administering contracts and notes owned or serviced by
Servicer comparable to the Receivables. Servicer shall not take
any action to impair Trustee's (for the benefit of the Secured
Parties) security interest in any Receivable, except to the
extent allowed pursuant to this Agreement or required by law.
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(iii) Servicer may perform any of its duties pursuant to
this Agreement, including those delegated to it pursuant to this
Agreement, through subservicers appointed by Servicer. Such
subservicers may include Affiliates of Servicer. Notwithstanding
any such delegation of a duty, Servicer shall remain obligated
and liable for the performance of such duty as if Servicer were
performing such duty.
(iv) Servicer may take such actions as are necessary to
discharge its duties as Servicer in accordance with this
Agreement, including the power to execute and deliver on behalf
of Issuer such instruments and documents as may be customary,
necessary or desirable in connection with the performance of
Servicer's duties under this Agreement (including consents,
waivers and discharges relating to the Receivable).
(v) Servicer shall keep separate records covering the
transactions contemplated by this Agreement including the
identity and collection status of each Receivable purchased by
Issuer from the Originator.
(c) Collections. (i) On or prior to the Initial Closing Date,
Issuer and Servicer shall have established and shall maintain
thereafter the following system of collecting and processing
Collections of Receivables. The Obligors may make payments of
Receivables only (A) by check mailed to the Post Office Box (such
payments, upon receipt in such Post Office Box being referred to
herein as "Mail Payments"), (B) by cash, credit card or check
delivered in person or by phone at retail stores or other business
locations of Originator (such payments, upon receipt by such stores,
being referred to herein as "In-Store Payments") or (C) by cash,
credit card or check delivered in person or by phone at a service
center of CAI or, in the case of certain delinquent accounts, to
employees of CAI operating out of a service center of CAI (such
payments, upon receipt by the service center, being referred to herein
as "Field Collections").
(ii) Servicer's right of access to the Post Office Box
shall be revocable at the option of Trustee (acting in its own
discretion or at the direction of the Required Noteholders) upon
the occurrence of any Potential Pay Out Event, Pay Out Event or
Servicer Default. In addition, after the occurrence of any
Potential Pay Out Event, any Pay Out Event or any Servicer
Default, Servicer agrees that it shall, upon the written request
of Trustee, notify all Obligors under Receivables to make payment
thereof to (i) one or more bank accounts and/or post-office boxes
designated by Trustee and specified in such notice or (ii) any
successor Servicer appointed hereunder. The Trustee may, and
shall at the request of the Required Noteholders, if any
Potential Pay Out Event or Pay Out Event has occurred, require
the Servicer to establish a lockbox account pursuant to a lockbox
agreement acceptable to the Notice Persons, and to direct all
Obligors under Receivables to make payments to such lockbox
account.
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(iii) Servicer shall remove or cause all Mail Payments to
be removed from the Post Office Box by the close of business on
each Business Day. Servicer shall process all such Mail Payments
and all Field Collections on the date received by recording the
amount of the payment received from the Obligor and the
applicable account number. Subject to Section 5.4(a) of the
Indenture, no later than the close of business on the second
Business Day following the date on which Mail Payments are
received in the Post Office Box or Field Collections are received
by Servicer, Servicer shall deposit or cause such Mail Payments
and such Field Collections to be deposited in the Collection
Account in the same form in which such payments are received.
Subject to Section 5.4(a) of the Indenture, Originator and
Servicer shall cause all In-Store Payments to be (i) processed as
soon as possible after such payments are received by Originator
or Servicer but in no event later than the Business Day after
such receipt, and (ii) deposited in the Collection Account no
later than two Business Days following the date of such receipt.
Subject to Section 5.4(a) of the Indenture, Servicer shall
deposit all Recoveries into the Collection Account within two
Business Days after the date of receipt of such Recoveries.
(iv) So long as no Potential Pay Out Event, Pay Out Event
or Servicer Default shall have occurred and be continuing,
Servicer shall be permitted to transfer Available Cash on deposit
in the Principal Account for the purchase of Receivables by
Issuer pursuant to the Purchase Agreement or to repay the
Originator Notes solely to the extent that the principal amount
of such Originator Note was increased since the preceding Payment
Date.
(v) All Collections received by Originator or a Servicer
in respect of Receivables will, pending remittance to the
Collection Account as provided herein, be held by Originator or
such Servicer in trust for the exclusive benefit of Trustee and
shall not be commingled with any other funds or property of
Originator or Servicer except as otherwise permitted in
accordance with Section 5.4 of the Indenture. Only Collections
received by Originator or Servicer shall be deposited in the
Collection Account. Any funds held by Originator or Servicer
representing Collections of Receivables released from the
Principal Account as provided in Section 2.02(c)(iv) above shall
be held in trust by Originator or CAI for the benefit of Trustee
until such Collections are deposited into the Collection Account
in accordance with Section 5.4 of the Indenture.
(vi) Originator, Issuer and Servicer hereby irrevocably
waive any right to set off against, or otherwise deduct from, any
Collections.
(vii) Issuer and Servicer hereby transfer, assign, pledge,
set over and convey to Trustee all of their right, title and
interest in and to the Collection Account and the other Trust
Accounts.
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(viii) All payments or other amounts collected or received
by Servicer in respect of a Receivable shall be applied to the
Outstanding Principal Balance of such Receivable and allocated
first to the amount of any outstanding Finance Charge Receivables
due in respect thereof and then to the amount of any Principal
Receivables due in respect thereof.
(d) If the Servicer is not the Issuer, CAI or an Affiliate of
the Issuer or CAI, the Servicer, by giving three (3) Business Days'
prior written notice to the Trustee, may revise the Servicing Fee;
provided that such revised Servicing Fee shall be a reasonable fee
agreed upon by the Servicer and the Notice Persons of each Series and
the Trustee on an arm's-length basis reflecting rates and terms
prevailing at such time.
(e) (i) On or before 120 days after the end of each calendar
year and on or before 90 days after the end of each July 31, the
Servicer shall cause a firm of nationally recognized independent
public accountants (who may also render other services to the
Servicer, the Issuer or any Affiliates of the foregoing) to furnish to
the Issuer and the Trustee and the Enhancement Providers, (a) a report
in a format similar to Exhibit D attached hereto, to the effect that
they have (1) reviewed the Servicer's internal accounting control
procedures and processing functions relating to the Servicer's credit
policies and origination, collections, aging and charge-off functions,
(2) performed testing of a statistically significant sample of
Receivables and one Monthly Servicer Report (such Monthly Servicer
Report to be in a format similar to Exhibit A-1 attached hereto), and
describing the results of such review and testing, and (3) during such
review and testing, not discovered any deviations (other than those
described in the report) from the Credit and Collection Policy, and
(b) a report in a format similar to Exhibit D attached hereto to the
effect that they have applied certain procedures set forth in such
Exhibit agreed upon with the Servicer and the Notice Persons and
examined certain documents and records relating to the servicing of
Receivables under this Agreement, and that, based upon such agreed
upon procedures, nothing has come to the attention of such accountants
that caused them to believe such servicing (including without
limitation, the allocation of Collections) has not been conducted in
compliance with the terms and conditions set forth in Article V of the
Indenture and Article V of each Series Supplement and/or the
appropriate subsections thereof (with respect to specific procedures
performed), except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such
statement. In addition, each report shall set forth the agreed upon
procedures performed.
(ii) The Servicer will deliver to the Trustee and the
Enhancement Providers on or before March 31 of each calendar
year, beginning with March 31, 2003, a certificate in
substantially the form of Exhibit B of an authorized officer of
the Servicer stating that (a) a review of the activities of the
Servicer during the preceding calendar year (or portion thereof,
as applicable) and of its performance under this Agreement was
made under the supervision of the officer signing such
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certificate and (b) to the best of such officer's knowledge,
based on such review, the Servicer has fully performed in all
material respects all of its obligations under this Agreement and
each other applicable Transaction Document to which it is a party
throughout such period, or, if there has been a default in the
performance of any such obligation, specifying such default known
to such officer and the nature and status thereof.
(f) Notwithstanding anything to the contrary contained in this
Article II, the Servicer, if not the Issuer, CAI or any Affiliate of
the Issuer or CAI, shall have no obligation to collect, enforce or
take any other action described in this Article II with respect to any
Indebtedness that is not included in the Trust Estate other than to
deliver to the Issuer the collections and documents with respect to
any such Indebtedness as described in Section 2.02(a) hereof.
Section 2.03 Rights After Designation of New Servicer. At any time
following the designation of a new Servicer (other than CAI) pursuant to Section
2.01 hereof:
(i) The Trustee may, at its option, or shall, at the
direction of the Required Noteholders, direct that payment of all
amounts payable under any Receivable be made directly to the
Trustee or its designee.
(ii) The Issuer shall, at the Trustee's request and at the
Issuer's expense, give notice (to the extent such notice has not
otherwise already been provided) of the Trustee's interest in
Receivables to each Obligor and direct that payments be made
directly to the Trustee or its designee.
(iii) The Issuer shall, at the Trustee's request, (A)
assemble all of the records relating to the Receivables and other
Related Security, and shall make the same available to the
Trustee or its designee at a place selected by the Trustee or its
designee, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting
Collections of Receivables in a manner acceptable to the Trustee
and shall, promptly upon receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of
transfer, to the Trustee or its designee.
(iv) The Issuer hereby authorizes the Trustee to take any
and all steps in the Issuer's name and on behalf of the Issuer
necessary or desirable, in the reasonable determination of the
Trustee, to collect all amounts due under any and all
Receivables, including, without limitation, endorsing the
Issuer's name on checks and other instruments representing
Collections and enforcing such Receivables and the related
Contracts.
Section 2.04 Servicer Default. The occurrence of any one or more of
the following events shall constitute a Servicer default (each, a "Servicer
Default"):
(a) failure by the Servicer (or, for so long as CAI is the
Servicer, CAI) to make any payment, transfer or deposit under this
Agreement or any other
11
Transaction Document or to give instructions or to give notice to the
Trustee to make such payment, transfer or deposit or any withdrawal or
to give notice to the Trustee as to any required drawing or payment
under any applicable form of Enhancement or the Servicer Letter of
Credit on or before the date occurring two Business Days after the
date such payment, transfer or deposit or such instruction or notice
is required to be made or given, as the case may be, under the terms
of this Agreement or any other Transaction Document (or in the case of
a payment, transfer, deposit or instruction to be made or given with
respect to any Interest Period, by the related Payment Date);
(b) failure on the part of the Servicer (or, for so long as the
Servicer is CAI, CAI) duly to observe or perform any other covenants
or agreements of the Servicer set forth in this Agreement or any other
Transaction Document, which failure continues unremedied for a period
of 30 days after the earlier of discovery by the Servicer or the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee, the
Issuer or any Notice Person; or the Servicer shall assign its duties
under this Agreement, except as permitted by Article II;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or any other Transaction Document or in any
certificate delivered pursuant to this Agreement or any other
Transaction Document shall prove to have been incorrect when made
which continues unremedied for a period of 30 days after the date on
which the Servicer has knowledge thereof or on which written notice
thereof, requiring the same to be remedied, shall have been given to
the Servicer by the Trustee, the Issuer or any Notice Person;
(d) the Servicer shall become the subject of any Event of
Bankruptcy or shall voluntarily suspend payment of its obligations;
(e) for so long as CAI is the Servicer, the failure of Conn to
maintain a Consolidated Net Worth of at least $30,000,000.
(f) at any time that CAI is the Servicer, any event of default
(which has not been waived or cured within ten (10) Business Days)
under (A) the Retailer Credit Agreement, (B) any inventory financing
agreement between any lender and the Servicer, the Parent or any
Originator, or (C) any indenture, credit or loan agreement or other
agreement or instrument of any kind pursuant to which Debt of the
Servicer, the Parent or Originator in an aggregate principal amount in
excess of $1,000,000 is outstanding or by which the same is evidenced,
shall have occurred and be continuing;
(g) the Parent shall cancel the Dealer Agreement dated as of
January 1, 1998, between the Parent and the Voyager Service Programs,
Inc., and the Originator and the Parent shall not have arranged for an
alternate service policy insurance arrangement acceptable to the
Notice Persons;
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(h) at any time that CAI is Servicer, a final judgment or
judgments for the payment of money in excess of $250,000 in the
aggregate shall have been rendered against the Issuer, the Servicer,
any Originator or Parent and the same shall have remained unsatisfied
and in effect, without stay of execution, for a period of 30
consecutive days after the period for appellate review shall have
elapsed; or
(i) a Change in Control shall have occurred and be continuing.
Section 2.05 Servicer Indemnification of Indemnified Parties. The
Servicer shall indemnify and hold harmless the Trustee, the Enhancement
Providers, the Noteholders (together with their respective successors and
permitted assigns) and each of their respective agents, officers, members and
employees (collectively, the "Indemnified Parties"), from and against any loss,
liability, expense, damage or injury suffered or sustained solely by reason of
any breach by the Servicer of any of its representations, warranties or
covenants contained in this Agreement or any failure by the Servicer to perform
any duty or obligation of the Servicer contained in this Agreement or any other
Transaction Document, including any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses reasonably incurred in connection
with the defense of any actual action, proceeding or claim; provided, however,
that the Servicer shall not indemnify the Indemnified Parties if such acts or
omissions were attributable directly or indirectly to gross negligence or
willful misconduct by such Indemnified Party. Any indemnification pursuant to
this Section shall be had only from the assets of the Servicer and shall not be
payable from Collections, except to the extent such Collections are released to
the Servicer in accordance with Section 5.11 (or any related provision
describing the allocation of Collections) of the Indenture and each Series
Supplement in respect of the Servicing Fee. The provisions of such indemnity
shall run directly to and be enforceable by such Indemnified Parties.
Section 2.06 Grant of License. For the purpose of enabling the
Back-Up Servicer or any other successor Servicer to perform the functions of
servicing and collecting the Receivables upon a Servicer Default, the Servicer
hereby (i) assigns, to the extent permitted, to the Trustee for the benefit of
the Secured Parties and shall be deemed to assign to the Trustee for the benefit
of the Secured Parties, the Back-Up Servicer or any other successor Servicer all
rights owned or hereinafter acquired by the Servicer (by license, sublicense,
lease, easement or otherwise) in and to any equipment used for servicing (or
reasonable access thereto) together with a copy of any software used in
connection with the performance of its duties as Servicer and relating to the
Servicing and collecting of Receivables, (ii) agrees to use all reasonable
efforts to assist the Trustee for the benefit of the Secured Parties, the
Back-Up Servicer or any other successor Servicer to arrange licensing agreements
with all software vendors and other applicable persons in a manner and to the
extent reasonably appropriate to effectuate the servicing of the Receivables,
(iii) agrees to deliver to the Trustee executed copies of any landlord waivers
in a form reasonably acceptable to the Notice Persons that may be necessary to
grant to the Trustee, the Back-Up Servicer or any other successor Servicer
access to any leased premises of the Servicer for which the Trustee, the Back-Up
Servicer or any other successor Servicer may require access to perform the
collection and administrative functions to be performed by the Trustee under the
Transaction Documents and (iv) agrees that it will terminate its activities as
Servicer hereunder in a manner which the Trustee reasonably believes will
facilitate the
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transition of the performance of such activities to the Back-Up Servicer or any
other designated successor Servicer, as applicable, and shall use commercially
reasonable efforts to assist the Trustee in such transition.
Section 2.07 Servicing Compensation. As compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in the immediately following paragraph, the Servicer shall be entitled to
receive a servicing fee (the "Servicing Fee") prior to the Indenture Termination
Date as described in Section 12.1 of the Indenture. The Servicing Fee shall be
payable, with respect to each Series, at the times and in the amounts set forth
in the related Series Supplement. The Servicing Fee shall be allocated between
the Notes (the "Investor Servicing Fee"), the Issuer (the "Issuer Servicing
Fee") and any Enhancement Provider and holder of a Collateral Interest, if
applicable and so provided in a related Series Supplement.
The Servicer's expenses include the fees and disbursements of
independent public accountants and all other expenses incurred by the Servicer
in connection with its activities hereunder; provided, that the Servicer in its
capacity as such shall not be liable for any liabilities, costs or expenses of
the Issuer, the Noteholders or the Note Owners arising under any tax law,
including without limitation any federal, state or local income or franchise
taxes or any other tax imposed on or measured by income or gross receipts (or
any interest or penalties with respect thereto or arising from a failure to
comply therewith) except to the extent that such liabilities, taxes or expenses
arose as a result of the breach by the Servicer of its obligations under Section
6.02 hereof. In such case, the Servicer shall be required to pay such expenses
for its own account and shall not be entitled to any payment therefor other than
the Servicing Fee.
Section 2.08 Representations and Warranties of the Servicer. The
Servicer hereby represents, warrants and covenants to and for the benefit of the
Issuer, the Trustee and the Noteholders as of the date of this Agreement and as
of each Closing Date:
(a) Organization and Good Standing, etc. Servicer has been duly
organized and is validly existing and in good standing under the laws
of its state of organization, with power and authority to own its
properties and to conduct its business as such properties are
presently owned and such business are presently conducted. Servicer is
duly licensed or qualified to do business as a foreign entity in good
standing in the jurisdiction where its principal place of business and
chief executive office are located and in each other jurisdiction in
which the failure to be so licensed or qualified would be reasonably
likely to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization. Servicer has (i) all
necessary power, authority and legal right to execute, deliver and
perform its obligations under this Agreement and each of the other
Transaction Documents to which it is a party, and (ii) duly
authorized, by all necessary action, the execution, delivery and
performance of this Agreement and the other Transaction Documents to
which it is a party. Servicer had at all relevant times, and now has,
all necessary power, authority and legal right to perform its duties
as Servicer.
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(c) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents and
the fulfillment of the terms hereof will not (i) conflict with, result
in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, (A)
the organizational documents of Servicer, or (B) any indenture, loan
agreement, pooling and servicing agreement, receivables purchase
agreement, mortgage, deed of trust, or other agreement or instrument
to which Servicer is a party or by which any of them or any of their
respective properties is bound, (ii) result in or require the creation
or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, loan agreement, pooling and
servicing agreement, receivables purchase agreement, mortgage, deed of
trust, or other agreement or instrument, other than pursuant to the
terms of the Transaction Documents, or (iii) violate any law or any
order, rule, or regulation applicable to Servicer or of any court or
of any federal, state or foreign regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over
Servicer or any of its properties.
(d) Validity and Binding Nature. This Agreement is, and the
other Transaction Documents to which it is a party when duly executed
and delivered by Servicer and the other parties thereto will be, the
legal, valid and binding obligation of Servicer enforceable in
accordance with their respective terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and by
general principles of equity.
(e) Government Approvals. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority
or regulatory body required for the due execution, delivery or
performance by Servicer of any Transaction Document to which it is a
party remains unobtained or unfiled, except for the filing of the UCC
financing statements referred to in Section 3.11(iii) and Schedule I
to the Indenture.
(f) Margin Regulations. Servicer is not engaged in the business
of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans, directly or indirectly, will be
used for a purpose that violates, or would be inconsistent with,
Regulations T, U and X promulgated by the Federal Reserve Board from
time to time.
(g) Offices. The principal place of business and chief executive
office of Servicer is located at the address referred to in Section
7.04 (or at such other locations, notified to Administrator in
jurisdictions where all action required thereby has been taken and
completed).
(h) Compliance with Applicable Laws. Servicer is in compliance
with the requirements of all applicable laws, rules, regulations, and
orders of all governmental authorities, a breach of any of which,
individually or in the aggregate, would be reasonably likely to have a
Material Adverse Effect.
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(i) No Proceedings. Except as described in Schedule 2.08(i),
(i) there is no order, judgment, decree, injunction,
stipulation or consent order of or with any court or other
government authority to which Servicer is subject, and there is
no action, suit, arbitration, regulatory proceeding or
investigation pending, or, to the knowledge of Servicer,
threatened, before or by any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality, against Servicer that, individually or in the
aggregate, is reasonably likely to have a Material Adverse
Effect; and
(ii) there is no action, suit, proceeding, arbitration,
regulatory or governmental investigation, pending or, to the
knowledge of Servicer, threatened, before or by any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (A) asserting the invalidity of this
Agreement or any other Transaction Document, or (B) seeking to
prevent the consummation of any of the other transactions
contemplated by this Agreement or any other Transaction Document.
(j) Accuracy of Information. All information heretofore
furnished by, or on behalf of, Servicer to the Trustee, any
Enhancement Provider, any Notice Person or any Noteholder in
connection with any Transaction Document, or any transaction
contemplated thereby, is true and accurate in every material respect
(without omission of any information necessary to prevent such
information from being materially misleading).
(k) No Material Adverse Change. Since January 31, 2002, there
has been no material adverse change in the collectibility of the
Receivables or Servicers's (i) financial condition, business,
operations or prospects or (ii) ability to perform its obligations
under any Transaction Document.
In the event that there is any breach of any of the representations,
warranties or covenants of the Servicer contained in Sections 2.11(a) and (e)
and 2.12(a) with respect to any Receivable, and such Receivable becomes a
Defaulted Receivable or the rights of the Secured Parties in, to or under such
Receivable or its proceeds are impaired or the proceeds of such Receivable are
not available to the Trustee for the benefit of the Secured Parties or the
Servicer has released any Merchandise securing a Receivable from the lien
created by such Receivable (except as specifically provided in the Transaction
Documents), then the Servicer shall be deemed to have received on such day a
collection of such Receivable in full, and the Servicer shall, on the
Distribution Date, deposit into the Collection Account, subject to Section
5.4(a) of the Indenture, an amount equal to the Outstanding Principal Balance of
such Receivable, together with accrued and unpaid interest thereon, and such
amount shall be allocated and applied by the Servicer as a Collection allocable
to the Receivables or Related Security in accordance with Section 5.11 (or the
applicable section relating to allocation of Collections) in each Series
Supplement. In the event that the Servicer has paid to or for the benefit of the
Noteholders or any other applicable Secured Party the full Outstanding Principal
Balance (plus accrued and unpaid interest) of any Receivable pursuant to this
paragraph, each of the Trustee for
16
the benefit of the Secured Parties and the Issuer shall release and convey all
of such Person's right, title and interest in and to the related Receivable to
the Servicer, without representation or warranty, but free and clear of all
liens created by such Person, as applicable.
Section 2.09 Reports and Records for the Trustee. In addition to each
of the reports required to be prepared and delivered by the Servicer pursuant to
Section 2.02(e) hereof, the Servicer shall prepare and deliver in accordance
with this Section 2.09 each of the following reports and notices:
(a) Periodic Reports. The Servicer shall prepare and forward to
the Issuer, the Trustee, each Holder of a variable funding note issued
under the Indenture (i) not later than the Determination Date with
respect to each calendar month, a Monthly Servicer Report in
substantially the form set forth on Exhibit A-1 attached hereto as of
the last Business Day of the immediately preceding calendar month, and
(ii) as soon as reasonably practicable, from time to time, such other
information as the Trustee or any Notice Person may reasonably
request.
(b) Monthly Noteholders' Statement. Unless otherwise stated in
the related Series Supplement with respect to any Series, on each
Determination Date the Servicer shall forward to the Trustee a Monthly
Noteholders' Statement in the form set forth on Exhibit A-2 attached
hereto prepared by the Servicer.
(c) Issuer Reports. The Servicer shall prepare and deliver the
reports and comply with all the provisions of Section 4.3 of the
Indenture.
(d) Series Reports. The Servicer shall prepare and deliver any
reports required to be prepared and delivered by the Servicer by the
terms of any agreements of the Issuer or the Servicer relating to the
issuance or purchase of any of the Notes.
Section 2.10 Reports to the Commission. The Issuer and/or CAI, if the
Issuer and/or CAI or any Affiliate of either of them is not acting as Servicer,
shall, at the expense of the Issuer or CAI, as applicable, cooperate in any
reasonable request of the Trustee in connection with any filings required to be
filed by the Trustee under the provisions of the Securities Exchange Act of 1934
or pursuant to Section 4.3 of the Indenture.
Section 2.11 Affirmative Covenants of the Servicer. At all times from
the date hereof to the date on which the outstanding principal balance of all
Notes and all amounts owing to the Enhancement Providers by the Issuer shall be
equal to zero, unless the Required Persons with respect to each such Series
shall otherwise consent in writing:
(a) Credit and Collection Policy. The Servicer will comply in
all material respects with the Credit and Collection Policy in regard
to each Receivable and the related Contract.
(b) Collections Received. Subject to Section 5.4(a) of the
Indenture, the Servicer shall set aside and deposit as soon as
reasonably practicable (but in
17
any event no later than two (2) Business Days following its receipt
thereof) into the Collection Account all Collections received from
time to time by the Servicer.
(c) Notice of Defaults, Events of Default, Potential Pay Out
Event or Servicer Defaults. Immediately, and in any event within one
(1) Business Day after the Servicer obtains knowledge or receives
notice of the occurrence of each Default, Event of Default, Potential
Pay Out Event or Servicer Default, the Servicer will furnish to the
Notice Persons of each Series a statement of a Responsible Officer of
the Servicer, setting forth details of such Default, Event of Default
or Servicer Default, and the action which the Servicer, the Issuer or
a Seller proposes to take with respect thereto.
(d) Conduct of Business. The Servicer will do all things
necessary to remain duly incorporated, validly existing and in good
standing as a domestic limited partnership in its jurisdiction of
organization and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted to
the extent that the failure to maintain such would have a Material
Adverse Effect.
(e) Compliance with Laws. The Servicer will comply in all
respects with all laws with respect to the Receivables to the extent
that any non-compliance would have a Material Adverse Effect.
(f) Further Information. The Servicer shall furnish or cause to
be furnished to the Trustee such other information relating to the
Receivables and readily available public information regarding the
financial condition of the Servicer, as soon as reasonably
practicable, and in such form and detail, as the Trustee or any Notice
Person may reasonably request.
(g) Furnishing of Information and Inspection of Records. The
Servicer will furnish to the Trustee and any requesting Notice Person
from time to time such information with respect to the Receivables as
such Person may reasonably request, including, without limitation,
listings identifying the Outstanding Principal Balance for each
Receivable, together with an aging of Receivables. The Servicer will,
at any time and from time to time during regular business hours and,
upon reasonable notice, permit the Trustee, and each of the Notice
Persons, or their respective agents or representatives, (i) to examine
and make copies of and abstracts from all Records relating to the
Receivables and (ii) to visit the offices and properties of the
Servicer for the purpose of examining such Records, and to discuss
matters relating to Receivables or the Servicer's performance
hereunder and under the other Transaction Documents to which it is a
party with any of the officers or branch managers of the Servicer,
having knowledge of such matters. Upon a Default or Event of Default,
the Trustee and each of the Notice Persons may have, without notice,
reasonable access to all records and the offices and properties of the
Servicer.
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Section 2.12 Negative Covenants of the Servicer. At all times from
the date hereof to the date on which the outstanding principal balance of all
Notes and all amounts owing to the Enhancement Providers by the Issuer shall be
equal to zero, unless the Required Persons with respect to each such Series
shall otherwise consent in writing:
(a) Modifications of Receivables or Contracts. The Servicer
shall not extend, amend, forgive, discharge, compromise, waive, cancel
or otherwise modify the terms of any Receivable or amend, modify or
waive any term or condition of any Contract related thereto; except in
accordance with Section 2.02(b).
(b) Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer. The Servicer shall not consolidate with or merge
into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
(i) the entity formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Servicer
substantially as an entirety shall be an entity organized and
existing under the laws of the United States of America or any
State or the District of Columbia and, if the Servicer is not the
surviving entity, such corporation shall expressly assume, by an
agreement supplemental hereto executed and delivered to the
Trustee, the Notice Persons of each Series and the Servicer
Letter of Credit Bank in a form reasonably satisfactory to the
Notice Persons of each Series, the performance of every covenant
and obligation of the Servicer under the Transaction Documents;
and
(ii) the Servicer has delivered to the Trustee, each
Notice Person and the Servicer Letter of Credit Bank (if
requested by such Person) an Opinion of Counsel stating that such
consolidation, merger, conveyance or transfer comply with this
paragraph (b) and that all conditions precedent herein provided
for relating to such transaction have been complied with (and if
an agreement supplemental hereto has been executed as
contemplated by clause (i) above, such opinion of counsel shall
state that such supplemental agreement is a legal, valid and
standing obligation of the Servicer enforceable against the
Servicer in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles).
(c) No Change in Business or the Credit and Collection Policy.
Subject to Requirements of Law, the Servicer will not make any change
in the character of its business or in the Credit and Collection
Policy, which change would, in either case, impair the collectibility
of any Receivable or otherwise have a Material Adverse Effect. The
Servicer agrees that prior to making any material change in the Credit
and Collection Policy in effect on each Closing Date, it shall
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obtain the prior written consent of the Notice Persons of each Series
of such changes; provided, however, that in the case of any material
change in its Credit and Collection Policy made pursuant to any
Requirement of Law as to which it is unable to give ten (10) Business
Days' prior written notice, then the Servicer shall give written
notice to the Trustee, each Notice Person and the Issuer of such
changes as soon as reasonably practicable prior to the implementation
of such changes.
ARTICLE III
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 3.01 Establishment of Accounts.
(a) The Collection Account. The Servicer, for the benefit of the
Secured Parties, shall establish and maintain the Collection Account
in the state of New York or in the city in which the Corporate Trust
Office is located, with a Qualified Institution in the name of the
Trustee, on behalf of the Secured Parties, a non-interest bearing
segregated account bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the
Secured Parties. Pursuant to authority granted to it pursuant to
subsection 2.02(a), the Servicer shall have the revocable power to
withdraw funds from the Collection Account for the purposes of
carrying out its duties hereunder and under the Indenture and any
Series Supplement.
(b) Series Accounts. If so provided in the related Series
Supplement, the Servicer shall cause to be established and maintained
in the name of the Trustee for the benefit of the Noteholders and the
other Secured Parties of the related Series, one or more Series
Accounts. Each such Series Account shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit
of the Noteholders and the other Secured Parties of such Series, to
the extent applicable. Each such Series Account will be a trust
account, if so provided in the related Series Supplement, and will
have the other features and be applied as set forth in the related
Series Supplement.
Section 3.02 Collections and Allocations.
(a) Collections. Subject to subsection 5.4(a) of the Indenture,
the Servicer shall deposit all Collections in the Collection Account
as promptly as possible after the date of receipt of such Collections,
but in no event later than the second Business Day following such date
of receipt.
The Servicer shall allocate such amounts to each Series and to the
Issuer in accordance with this Article III and Article 5 of the Indenture and
shall withdraw the required amounts from the Collection Account or pay such
amounts to the Noteholders, the Enhancement Providers, the Issuer or otherwise
in accordance with this Article III and Article 5 of the
20
Indenture, in both cases as modified by any Series Supplement. The Servicer
shall make such deposits or payments on the date indicated therein by wire
transfer or as otherwise provided in the Series Supplement for any Series of
Notes with respect to such Series.
(b) Allocation of Collections Between Finance Charges and
Principal Receivables. At all times and for all purposes of this
Agreement, the Indenture and any Series Supplement, the Servicer shall
allocate Collections received in respect of any Receivables for any
Monthly Period to Finance Charges and to Principal Receivables
pursuant to any method of allocation that is in accordance with GAAP
and that is consistent with the Servicer's past practice (or is
consented to by the Required Persons of each Series).
(c) Adjustments to Issuer Interest. The Servicer shall be
obligated on or prior to each Determination Date to deduct on a net
basis for each Monthly Period from the aggregate amount of Principal
Receivables used to calculate the Issuer Interest as provided in this
subsection 3.02(c) (and to the extent applicable, Section 5.4(d) of
the Indenture) (a "Credit Adjustment") the portion of each Principal
Receivable which is reduced by the Servicer by any rebate, refund,
charge-back or adjustment (including due to any Servicer errors) made
in accordance with the Credit and Collection Policy.
(d) Deemed Collections. If on any day, (i) any of the
representations or warranties set forth in Section 5.1(h)(i) and
Section 3(o)(i) of the Series 2002-A Note Purchase Agreement and the
Series 2002-B Note Purchase Agreement, respectively (and any
corresponding provisions of any other applicable Note Purchase
Agreement), is untrue or incorrect with respect to a Receivable as of
the date such representation or warranty was made and such breach
continues unremedied for 30 days from the earlier to occur of the
discovery of such breach or condition by the Issuer or the Servicer,
or receipt by the Issuer of written notice of such breach or condition
given by the Trustee, any Notice Person, the Servicer or any Seller,
(ii) any of the representations or warranties set forth in Section
5.1(n) and Section 3(v) of the Series 2002-A Note Purchase Agreement
and the Series 2002-B Note Purchase Agreement, respectively (and any
corresponding provisions of any other applicable Note Purchase
Agreement), is untrue or incorrect with respect to a Receivable as of
the date such representation or warranty was made or (iii) the
Servicer adjusts downward the amount of any Receivables without either
receiving Collections therefor or charging such amount off as
uncollectible, and such condition continues unremedied for five
Business Days from the earlier to occur of the discovery of such
condition by the Issuer or the Servicer, or receipt by the Issuer of
written notice of such condition given by the Trustee, any Notice
Person, the Servicer or any Seller, then in any case above, the Issuer
shall be deemed to have received on such day a Collection of such
Receivable in full (or, in the case of clause (iii) above, in an
amount equal to such adjustment or excess, as applicable), and the
Issuer shall, on such day, to the extent that (1) the Coverage Test is
not satisfied, (2) funds are not otherwise available therefor out of
Collections on Receivables on such day and (3) such amounts have not
otherwise already been paid by the Issuer pursuant to Article 5
21
of the Indenture and Article 5 of each applicable Series Supplement,
pay to the Servicer an amount equal to the Outstanding Principal
Balance of such Receivable (or, in the case of clause (iii) above, in
an amount equal to such adjustment or excess, as applicable), together
with accrued and unpaid interest thereon, and such amount shall be
allocated and applied by the Servicer as a Collection allocable to
each Series in accordance with Article 5 of the Indenture and Article
5 of each applicable Series Supplement.
ARTICLE IV
OTHER SERVICER POWERS
Section 4.01 Appointment of Paying Agent. Subject to Section 2.7 of
the Indenture, the Servicer may revoke the power of the Paying Agent to withdraw
funds from any account maintained for the benefit of the Secured Parties
pursuant to the Indenture and remove the Paying Agent, if the Servicer
determines in its reasonable discretion that the Paying Agent shall have failed
to perform its obligations under the Indenture and any Series Supplement in any
material respect or for other good cause. The Servicer shall notify each of the
Rating Agencies of the removal of any Paying Agent pursuant to the immediately
preceding sentence.
Section 4.02 Meetings of Noteholders. To the extent provided by the
Series Supplement for any Series issued in whole or in part in Bearer Notes, the
Servicer may at any time call a meeting of the Noteholders of such Series, to be
held at such time and at such place as the Servicer shall determine, for the
purpose of approving a modification of or amendment to, or obtaining a waiver
of, any covenant or condition set forth in this Agreement with respect to such
Series, subject to Section 7.01 of this Agreement. For such purpose, the
provisions of Section 13.8 of the Indenture relating to the setting of a record
date for the purpose of establishing the Person in whose name any such Note is
held shall apply.
ARTICLE V
OTHER MATTERS RELATING
TO THE SERVICER
Section 5.01 Liability of the Servicer. The Servicer hereby agrees to
perform any and all duties and obligations set forth in the Indenture or any
Series Supplement thereto that are specifically identified therein as duties of
the Servicer. Subject to the foregoing, the Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by it in such capacity herein.
Section 5.02 Limitation on Liability of the Servicer and Others. The
directors, officers, employees or agents who are natural persons of the Servicer
shall not be under any liability to the Issuer, the Trustee, the Noteholders,
any Enhancement Provider or any other Person hereunder or pursuant to any
document delivered hereunder for any action taken or for refraining from the
taking of any action, it being expressly understood that all such liability is
expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement and any supplement hereto; provided, however, that
this provision shall not protect
22
the directors, officers, employees and agents of the Servicer against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. Except as provided in this
Section 5.02 with respect to the Issuer and the Trustee, its officers,
directors, employees and agents, the Servicer shall not be under any liability
to the Issuer, the Trustee, its officers, directors, employees and agents, the
Noteholders or any other Person for any action taken or for refraining from the
taking of any action in its capacity as Servicer pursuant to this Agreement or
any supplement hereto; provided, however, that this provision shall not protect
the Servicer against any liability which would otherwise be imposed by reason of
(x) willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of its reckless disregard of its obligations and duties
hereunder or under any Series Supplement or (y) breach of the express terms of
any Transaction Document. 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 hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Receivables or the other property in the Trust Estate in
accordance with this Agreement, the Indenture and any Series Supplement which in
its reasonable opinion may involve it in any expense or liability.
Section 5.03 Servicer Not to Resign. The Servicer shall not resign
from the obligations and duties hereby imposed on it except upon determination
that (i) the performance of its duties hereunder is no longer permissible under
applicable law and (ii) there is no reasonable action which such Servicer could
take to make the performance of its duties hereunder permissible under
applicable law. Any such determination permitting the resignation of any
Servicer shall be evidenced as to clause (i) above by an Opinion of Counsel and
as to clause (ii) by a Conn Officer's Certificate of the Servicer, each to such
effect delivered, and satisfactory in form and substance, to the Notice Persons.
No such resignation shall become effective until the Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of such
Servicer in accordance with Section 2.01 hereof.
Section 5.04 Waiver of Defaults. Any default by the Servicer in the
performance of its obligations hereunder and its consequences may be waived
pursuant to Section 7.01. Upon any such waiver of a default, such default shall
cease to exist, and any 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 except to the
extent expressly so waived.
ARTICLE VI
ADDITIONAL OBLIGATION OF THE
SERVICER WITH RESPECT TO THE TRUSTEE
Section 6.01 Successor Trustee.
(a) If the Trustee resigns or is removed pursuant to the terms
of the Indenture or if a vacancy exists in the office of the Trustee
for any reason, the Servicer shall promptly appoint a successor
Trustee meeting the requirements of
23
Section 11.9 of the Indenture, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee.
(b) The Servicer agrees to 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 rights,
powers, duties and obligations under the Indenture and hereunder.
Section 6.02 Tax Returns. The Servicer shall prepare or shall cause
to be prepared all tax information required by law to be distributed to
Noteholders and shall deliver such information to the Trustee at least five days
prior to the date it is required by law to be distributed to Noteholders. Except
to the extent the Servicer breaches its obligations or covenants contained in
this Section 6.02, in no event shall the Servicer be liable for any liabilities,
costs or expenses of the Issuer, the Noteholders or the Note Owners arising
under any tax law, including without limitation federal, state, local or foreign
income or excise taxes or any other tax imposed on or measured by income or
gross receipts (or any interest or penalty with respect thereto or arising from
a failure to comply therewith).
Section 6.03 Final Payment with Respect to Any Series. The Servicer
shall provide any notice of termination as specified for the Servicer in Section
12.5(a) of the Indenture and in accordance with the procedures set forth
therein.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment.
(a) This Agreement may be amended in writing from time to time
by the Issuer, the Servicer and the Trustee, without the consent of
any of the Noteholders, to cure any ambiguity, to correct or
supplement any provisions herein which may be inconsistent with any
other provisions herein, to add any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, that
such action shall not adversely affect in any material respect the
interests of any Noteholder or any Enhancement Provider.
(b) Any provision of this Agreement may also be amended,
supplemented, modified or waived in writing from time to time by the
Issuer, the Servicer and the Trustee with the consent of the Required
Persons of each outstanding Series for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of
Noteholders of any Series then issued and outstanding; provided,
however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, distributions which are required to
be made on any Notes of such Series without the consent of each Holder
of Notes of such
24
Series so affected, (ii) change the definition of or the manner of
calculating the Investor Interests, the Investor Percentage or the
Aggregate Investor Default Amount of such Series without the consent
of each Holder of Notes of such Series, (iii) reduce the aforesaid
percentage required to consent to any such amendment, without the
consent of each Holder of Notes of all Series adversely affected or
(iv) result in a reduction or withdrawal of the then current ratings
of any outstanding Notes of such Series by any Rating Agency. The
Trustee may, but shall not be obligated to, enter into any such
amendment which adversely affects the Trustee's rights, duties or
immunities under this Agreement or otherwise, except as otherwise may
be provided in the Indenture.
(c) Promptly after the execution of any such amendment, the
Trustee shall furnish notification of the substance of such amendment
to each Noteholder of each Series affected thereby, to any related
Enhancement Provider and to each Rating Agency providing a rating for
such Series.
(d) It shall not be necessary for the consent of Noteholders
under this Section 7.01 to approve the particular form of any proposed
amendment, 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 Noteholders
shall be subject to such reasonable requirements as the Trustee may
prescribe.
(e) In connection with any amendment, the Trustee may request an
Opinion of Counsel (from an external law firm) from the Servicer to
the effect that the amendment complies with all requirements of this
Agreement, except that such counsel shall not be required to opine on
factual matters.
Section 7.02 Protection of Right, Title and Interest to Receivables
and Related Security.
(a) The Servicer shall cause this Agreement, the Indenture and
any Series Supplement, all amendments hereto and/or all financing
statements and continuation statements and any other necessary
documents covering the Noteholders and the Trustee's right, title and
interest to the Trust Estate to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to
preserve and protect the Trustee's Lien (granted pursuant to the
Indenture for the benefit of the Secured Parties) on the property
comprising the Trust Estate. The Servicer shall deliver to the Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following
such recording, registration or filing. The Seller shall cooperate
fully with the Servicer in connection with the obligations set forth
above and will execute any and all documents reasonably required to
fulfill the intent of this subsection 7.02(a).
25
(b) The Servicer will give the Trustee prompt written notice of
any relocation of any office from which it services the Receivables
and Related Security or keeps records concerning such items or of its
principal executive office and whether, 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 and shall
file such financing statements or amendments as may be necessary to
continue the Trustee's security interest in the Trust Estate and the
proceeds thereof for the benefit of the Secured Parties. The Servicer
will at all times maintain each office from which it services the
Receivables, Related Security and other property in its possession and
part of the Trust Estate and its principal executive office within the
United States of America.
Section 7.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. EACH OF THE PARTIES
TO THIS SERVICING AGREEMENT HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENT THEREOF. EACH OF THE
PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 7.04 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at, sent by facsimile to, sent by courier at or mailed by
registered mail, return receipt requested, to (a) in the case of the Issuer, to
Conn Funding II, L.P., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇, Telephone: 409-832-1696 ext. 3270, (b) in the case of the Servicer
to CAI, L.P., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇, Telephone: 409-832-1696 ext. 3270, (c) in the case of the Trustee, to its
Corporate Trust Office, (d) in the case of the Enhancement Provider for a
particular Series, the address, if any, specified in the Series Supplement
relating to such Series and (e) in the case of the Rating Agency for a
particular Series, the address, if any, specified in the Series Supplement
relating to such Series; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. Unless
otherwise provided with respect to any Series in the related Series Supplement,
any notice required or permitted to be mailed to a Noteholder shall be given as
required in the Indenture or any related Series Supplement.
Section 7.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the
26
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.
Section 7.06 Delegation. Except as provided in Section 2.01, 2.02 or
2.12(b), the Servicer may not delegate any of its obligations under this
Agreement.
Section 7.07 Waiver of Trial by Jury. To the extent permitted by
applicable law, each of the parties hereto irrevocably waives all right of trial
by jury in any action, proceeding or counterclaim arising out of or in
connection with this Agreement or the Transaction Documents or any matter
arising hereunder or thereunder.
Section 7.08 Further Assurances. The Servicer agrees to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Trustee or any Notice Person
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to all or any portion of the Trust Estate for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 7.09 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee, any Notice Person, any
Enhancement Provider or the Noteholders, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Section 7.10 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 7.11 Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, the Secured Parties and,
to the extent provided in any related Series Supplement, to the Enhancement
Provider named therein, and their respective successors and permitted assigns.
Section 7.12 Actions by Noteholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a notice, demand or instruction given by
Noteholders, such action, notice or instruction may be taken or given
by any Noteholder, unless such provision requires a specific
percentage of Noteholders or unless otherwise provided in a Series
Supplement. Notwithstanding anything in this Agreement to the
contrary, neither the Servicer nor any Affiliate thereof shall have
any right to vote with respect to any Note except as specifically
provided in the Indenture.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Noteholder shall bind such
Noteholder and every subsequent holder of such Note issued upon the
registration of transfer thereof or
27
in exchange therefor or in lieu thereof in respect of anything done or
omitted to be done by the Trustee or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Note.
Section 7.13 Rule 144A Information. For so long as any of the Notes
of any Series or any Class are "restricted securities" within the meaning of
Rule 144(a)(3) under the Securities Act, the Servicer, the Trustee and the
Enhancement Provider(s) for such Series agree to cooperate with each other to
provide to any Noteholders of such Series or Class and to any prospective
purchaser of Notes designated by such a Noteholder upon the request of such
Noteholder or prospective purchaser, any information required to be provided to
such holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act.
Section 7.14 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement.
Section 7.15 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 7.16 Rights of the Trustee. The rights, privileges and
immunities afforded to the Trustee in the Indenture shall apply to this
Agreement as if fully set forth herein.
28
IN WITNESS WHEREOF, the Issuer, the Servicer and the Trustee have
caused this Servicing Agreement to be duly executed by their respective officers
as of the day and year first above written.
CONN FUNDING II, L.P., as Issuer
By: Conn Funding II GP, L.L.C.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary/Treasurer
CAI, L.P., as Servicer
By: Conn Appliances, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO and Chairman of the
Board
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
S-1 Servicing Agreement
Exhibit A-1
Form of Monthly Servicer Report
FORM OF MONTHLY SERVICER REPORT
A-1-1 Servicing Agreement
[Monthly Servicer Report Appears Here]
Exhibit A-2
Form of Monthly Noteholders' Statement
FORM OF MONTHLY NOTEHOLDERS' STATEMENT
A-2-1 Servicing Agreement
[Series 2002-B Appears Here]
Exhibit B
Form of Annual Servicer's Certificate
FORM OF ANNUAL SERVICER'S CERTIFICATE
-------------------------------------
B-1 Servicing Agreement
[Form of Annual Servicers Certificate]
Exhibit C
Form of Credit
and Collection Policy
FORM OF CREDIT AND COLLECTION POLICY
------------------------------------
[On File with Trustee]
C-1 Servicing Agreement
Exhibit D
Form of Accounting Control
Procedures and Processing Report
FORM OF ACCOUNTING CONTROL
PROCEDURES AND PROCESSING REPORT
--------------------------------
D-1 Servicing Agreement
Exhibit E
Form of Post Office Box Agreement
FORM OF POST OFFICE BOX AGREEMENT
---------------------------------
Schedule E-1 Servicing Agreement
[Form of Post Office Box Agreement Appears Here]
Schedule 2.08(i)
Litigation
LITIGATION
----------
None.
Schedule Servicing Agreement
2.08(i)-1