Exhibit 4.3
Pooling and Servicing Agreement
EXECUTION COPY
CPS Receivables Corp.
Seller
and
Consumer Portfolio Services, Inc.
Servicer
and
Norwest Bank Minnesota, National Association
Trustee and Standby Servicer
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1997
$102,327,009.71
CPS Auto Grantor Trust 1997-1
$97,210,659.22, 6.55% Class A Certificates
$5,116,350,49, 11.66% Class B Certificates
POOLING AND SERVICING AGREEMENT dated as of March 1, 1997 (the
"Agreement") among CPS Receivables Corp., a California corporation, as seller
(the "Seller"), Consumer Portfolio Services, Inc., a California corporation
("CPS"), as servicer (the "Servicer"), and Norwest Bank Minnesota, National
Association, a national banking association, as trustee and standby servicer
(the "Trustee" and "Standby Servicer", respectively).
In consideration of the premises and of the mutual agreements herein
contained, and other good and valuable consideration, the receipt of which is
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, whenever capitalized
shall have the following meanings:
"Adjusted Compensating Interest" has the meaning assigned to such term
in Section 3.8(b).
"Affiliate" of any Person means any Person who directly or indirectly
controls, is controlled by, or is under direct or indirect common control with
such Person. For purposes of this definition of "Affiliate", the term "control"
(including the terms "controlling", "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause a direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agreement" means this Pooling and Servicing Agreement, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
"Amount Financed" with respect to a Receivable means the aggregate
amount originally advanced under the Receivable toward the purchase price of the
Financed Vehicle and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in the Receivable.
"Applied Principal" with respect to any Distribution Date shall be equal
to the excess, if any, of (i) any increase in the Class B Principal Carryover
Shortfall on such Distribution Date
over (ii) the Principal Balance of all Receivables that became Liquidated
Receivables during the related Collection Period.
"Applied Principal Carryover Amount" as of the close of business on any
Distribution Date shall be an amount equal to the Applied Principal Carryover
Amount as of the close of business on the preceding Distribution Date (or, with
respect to the initial Distribution Date, for the Initial Closing Date), (i)
increased by the Applied Principal, if any, with respect to such current
Distribution Date and (ii) reduced by the Applied Principal Reduction Amount, if
any, with respect to such current Distribution Date; provided that the Applied
Principal Carryover Amount for the Initial Closing Date shall be $0.
"Applied Principal Reduction Amount" with respect to any Distribution
Date shall be equal to the amount of any decrease in a Class B Principal
Carryover Shortfall on such Distribution Date; provided that the Applied
Principal Reduction Amount for any Distribution Date shall not exceed the
Applied Principal Carryover Amount as of such Distribution Date.
"Assumption Date" has the meaning assigned to such term in Section
9.2(a).
"Authenticating Agent" has the meaning assigned to such term in Section
6.2B.
"Book-Entry Certificates" means beneficial interests in the Class A
Certificates, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency; provided that after the occurrence of
a condition whereupon book-entry registration and transfer are no longer
permitted and Definitive Certificates are issued to the Certificate Owners, such
Definitive Certificates shall replace Book-Entry Certificates.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York, the State in which the
Corporate Trust Office is located, the State in which the executive offices of
the Servicer are located or the State in which the principal place of business
of the Certificate Insurer is located shall be authorized or obligated by law,
executive order, or governmental decree to be closed.
"Casualty" means, with respect to a Financed Vehicle, the total loss or
destruction of such Financed Vehicle.
"Certificate" means any one of the certificates executed by the Trustee
on behalf of the Trust and authenticated by the Trustee in substantially the
form set forth in Exhibit A or Exhibit B hereto.
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"Certificate Account" means the account designated as such, established
and maintained pursuant to Section 4.1.
"Certificate Balance" as of any day, means the sum of the Class A
Certificate Balance on such day and the Class B Certificate Balance on such day.
"Certificate Insurer" means Financial Security Assurance Inc., a stock
insurance company organized and created under the laws of the State of New York,
or its successors in interest.
"Certificate Insurer Optional Deposit" means, with respect to any
Determination Date and the related Distribution Date, any amount delivered by
the Certificate Insurer to the Trustee in accordance with Section 4.11.
"Certificate Owner" means, with respect to a Book-Entry Certificate, the
Person who is the beneficial owner thereof as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant), in accordance with the
rules of such Clearing Agency.
"Certificate Register" and "Certificate Registrar" mean, respectively,
the register maintained and the Certificate Registrar appointed pursuant to
Section 6.3.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate shall be registered in the Certificate Register, except that so long
as any Certificates are outstanding, solely for the purposes of giving any
consent, waiver, request or demand pursuant to this Agreement, the interest
evidenced by any Certificate registered in the name of the Seller or the
Servicer, or any Affiliate of either of them, shall not be taken into account in
determining whether the requisite percentage necessary to effect any such
consent, waiver, request or demand shall have been obtained.
"Certificates" means the Class A Certificates and the Class B
Certificates.
"Class A Certificate" means any one of the 6.55% Class A Certificates,
executed by the Trustee on behalf of the Trust and authenticated by the Trustee
in substantially the form set forth in Exhibit A hereto.
"Class A Certificate Balance" shall equal, initially, the Class A
Percentage of the Original Pool Balance and, thereafter, shall equal the initial
Class A Certificate Balance, reduced by all amounts previously distributed to
Class A Certificateholders and allocable to principal.
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"Class A Certificateholder" means the Person in whose name a Class A
Certificate shall be registered in the Certificate Register.
"Class A Distributable Amount" means, for any Distribution Date, an
amount equal to the sum of the Class A Principal Distributable Amount with
respect to such Distribution Date and the Class A Interest Distributable Amount
with respect to such Distribution Date.
"Class A Guaranteed Distribution Amount" means, with respect to each
Distribution Date, the sum of the Class A Interest Distributable Amount for such
Distribution Date and the Class A Principal Distributable Amount for such
Distribution Date, in each case in accordance with the original terms of the
Class A Certificates when issued and without regard to any amendment or
modification of the Certificates or the Agreement which has not been consented
to by the Certificate Insurer; provided, however, the Class A Guaranteed
Distribution Amount shall not include, nor shall coverage be provided under the
Policy in respect of, any taxes, withholding or other charge imposed with
respect to any Class A Certificateholder by any governmental authority.
"Class A Interest Carryover Shortfall" means, as of the close of any
Distribution Date on which an Insurer Default is continuing, the excess of the
Class A Interest Distributable Amount for such Distribution Date and any
outstanding Class A Interest Carryover Shortfall from the preceding Distribution
Date plus interest on such outstanding Class A Interest Carryover Shortfall, to
the extent permitted by law, at the Class A Pass- Through Rate from such
preceding Distribution Date through the current Distribution Date (calculated on
the basis of a 360-day year consisting of twelve 30-day months), over the amount
of interest that the Holders of the Class A Certificates actually received on
such current Distribution Date.
"Class A Interest Distributable Amount" means, for any Distribution
Date, an amount equal to thirty (30) days of interest at the Class A
Pass-Through Rate on the Class A Certificate Balance as of the close of business
on the last day of the related Collection Period (calculated on the basis of a
360-day year consisting of twelve 30-day months); provided, however, that on the
first Distribution Date, the Class A Interest Distributable Amount will equal
interest at the Class A Pass-Through Rate on the Class A Certificate Balance
from and including the Closing Date through and including April 14, 1997.
"Class A Pass-Through Rate" means 6.55% per annum.
"Class A Percentage" shall be ninety-five percent (95%).
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"Class A Pool Factor" means, as of a Distribution Date, a seven-digit
decimal figure equal to the Class A Certificate Balance as of the close of
business on such Distribution Date divided by the initial Class A Certificate
Balance. The Class A Pool Factor will be 1.0000000 as of the Closing Date;
thereafter, the Class A Pool Factor will decline to reflect reductions in the
Class A Certificate Balance.
"Class A Principal Carryover Shortfall" means, as of the close of any
Distribution Date on which an Insurer Default is continuing, the excess of the
Class A Principal Distributable Amount and any outstanding Class A Principal
Carryover Shortfall from the preceding Distribution Date, over the amount of
principal that the Holders of the Class A Certificates actually received on such
current Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date other than the Final Scheduled Distribution Date, the sum of
(a) the Class A Percentage of the sum of the following amounts: (i) the sum of
(x) the principal portion as calculated in accordance with Section 4.3 of all
Scheduled Payments received during the preceding Collection Period on Rule of
78's Receivables (excluding Recoveries, but including amounts transferred from
the Payahead Account to the Certificate Account to be applied to the principal
portion of Scheduled Payments but excluding any other amounts deposited into the
Payahead Account) and (y) all payments of principal received on Simple Interest
Receivables during such preceding Collection Period; (ii) the principal portion
of all prepayments in full received during the preceding Collection Period
(including prepayments in full resulting from collections with respect to a
Receivable received during the preceding Collection Period plus the transfer of
the Payahead Balance with respect to such Receivable to the Certificate Account
pursuant to Section 4.6(a)(ii)) (without duplication of amounts included in
clause (i) above and clause (iv) below); (iii) the portion of the Purchase
Amount allocable to principal of each Receivable that became a Purchased
Receivable as of the last day of the preceding Collection Period and, at the
option of the Certificate Insurer, the Principal Balance of each Receivable that
was required to be but was not so purchased or repurchased (without duplication
of amounts referred to in clauses (i) and (ii) above); (iv) the Principal
Balance of each Receivable that first became a Liquidated Receivable during the
preceding Collection Period (without duplication of the amounts included in
clauses (i) and (ii) above); and (v) the aggregate amount of Cram Down Losses
with respect to the Receivables that have occurred during the preceding
Collection Period; plus (b) the portion of the Certificate Insurer Optional
Deposit pursuant to Section 4.11(ii), if any, allocable to principal for such
Distribution Date. In addition, on the Final Scheduled
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Distribution Date, the Class A Principal Distributable Amount will equal the
Class A Certificate Balance as of the Final Scheduled Distribution Date.
"Class B Certificate" means any one of the 11.66% Class B Certificates,
executed by the Trustee on behalf of the Trust and authenticated by the Trustee
in substantially the form set forth in Exhibit B hereto.
"Class B Certificate Balance" shall equal, initially, the Class B
Percentage of the Original Pool Balance and, thereafter, shall equal the initial
Class B Certificate Balance, reduced by all amounts previously distributed to
Class B Certificateholders and allocable to principal.
"Class B Certificateholder" means the Person in whose name a Class B
Certificate shall be registered in the Certificate Register.
"Class B Deficiency" shall have the meaning specified in
Section 4.7(c).
"Class B Distributable Amount" means, for any Distribution Date, an
amount equal to the sum of the Class B Principal Distributable Amount with
respect to such Distribution Date and the Class B Interest Distributable Amount
with respect to such Distribution Date.
"Class B Interest Carryover Shortfall" means, as of the close of any
Distribution Date, the excess of the Class B Interest Distributable Amount for
such Distribution Date and any outstanding Class B Interest Carryover Shortfall
from the preceding Distribution Date, plus interest on such outstanding Class B
Interest Carryover Shortfall, to the extent permitted by law, at the Class B
Pass-Through Rate from such preceding Distribution Date through the current
Distribution Date (calculated on the basis of a 360-day year consisting of
twelve 30-day months), over the amount of interest that the Holders of the Class
B Certificates actually received pursuant to Section 4.6(c)(vi) on such current
Distribution Date.
"Class B Interest Distributable Amount" means, for any Distribution
Date, an amount equal to thirty (30) days of interest at the Class B
Pass-Through Rate on the Class B Certificate Balance as of the close of business
on the last day of the related Collection Period (calculated on the basis of a
360-day year consisting of twelve 30-day months); provided, however, that on the
first Distribution Date, the Class B Interest Distributable Amount will equal
interest at the Class B Pass-Through Rate on the Class B Certificate Balance
from and including the Closing Date through and including April 14, 1997.
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"Class B Pass-Through Rate" means 11.66% per annum.
"Class B Percentage" shall be five percent (5%).
"Class B Pool Factor" means, as of a Distribution Date, a seven-digit
decimal figure equal to the Class B Certificate Balance as of the close of
business on such Distribution Date divided by the initial Class B Certificate
Balance. The Class B Pool Factor will be 1.0000000 as of the Closing Date;
thereafter, the Class B Pool Factor will decline to reflect reductions in the
Class B Certificate Balance.
"Class B Principal Carryover Shortfall" means, as of the close of any
Distribution Date, the excess of the Class B Principal Distributable Amount and
any outstanding Class B Principal Carryover Shortfall from the preceding
Distribution Date, over the amount of principal that the Holders of the Class B
Certificates actually received on such current Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date other than the Final Scheduled Distribution Date, the Class B
Percentage of the sum of the following amounts: (i) the sum of (x) the principal
portion as calculated in accordance with Section 4.3 of all Scheduled Payments
received during the preceding Collection Period on Rule of 78's Receivables
(excluding Recoveries, but including amounts transferred from the Payahead
Account to the Certificate Account to be applied to the principal portion of
Scheduled Payments but excluding any other amounts deposited into the Payahead
Account) and (y) all payments of principal received on Simple Interest
Receivables during such preceding Collection Period; (ii) the principal portion
of all prepayments in full received during the preceding Collection Period
(including prepayments in full resulting from collections with respect to a
Receivable received during the preceding Collection Period plus the transfer of
the Payahead Balance with respect to such Receivable to the Certificate Account
pursuant to Section 4.6(a)(ii)) (without duplication of amounts included in
clause (i) above and clause (iv) below); (iii) the portion of the Purchase
Amount allocable to principal of each Receivable that became a Purchased
Receivable as of the last day of the preceding Collection Period and, at the
option of the Certificate Insurer, the Principal Balance of each Receivable that
was required to be but was not so purchased or repurchased (without duplication
of amounts referred to in clauses (i) and (ii) above); (iv) the Principal
Balance of each Receivable that first became a Liquidated Receivable during the
preceding Collection Period (without duplication of the amounts included in
clause (i) and (ii) above); and (v) the aggregate amount of Cram Down Losses
with respect to the Receivables that have occurred during the preceding
Collection
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Period. In addition, on the Final Scheduled Distribution Date, the Class B
Principal Distributable Amount will equal the Class B Certificate Balance as of
the Final Scheduled Distribution Date.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, or any successor provision thereto. The initial Clearing Agency shall
be The Depository Trust Company ("DTC").
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means March 17, 1997.
"Code" shall have the meaning specified in Section 2.7.
"Collateral Agent" means, the Collateral Agent named in the Spread
Account Agreement, and any successor thereto pursuant to the terms of the Spread
Account Agreement.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 4.1.
"Collection Period" means each calendar month during the term of this
Agreement or, in the case of the initial Collection Period, the period from and
excluding the Cutoff Date to and including the last day of the month in which
the Cutoff Date occurred. Any amount stated "as of the close of business on the
last day of a Collection Period" shall give effect to the following calculations
as determined as of the end of the day on such last day: (1) all applications of
collections, (2) all current and previous Payaheads, (3) all applications of
Payahead Balances and (4) all distributions.
"Compensating Interest" means, with respect to all Simple Interest
Receivables for which the Scheduled Payment for any Collection Period is
received prior to the date on which such Scheduled Payment is due or for which
any prepayment is otherwise received, an amount equal to the aggregate of the
positive differences, if any, with respect to each such Simple Interest
Receivable between (x) the sum of (a) 30 days' interest at an interest rate
equal to the weighted average of the Class A Pass- Through Rate and the Class B
Pass-Through Rate (weighted by relative Class A Certificate Balance and Class B
Certificate Balance) on the Principal Balance of each such Simple Interest
Receivable as of the first day of the related Collection Period and (b) the
product of (i) one twelfth of the sum of (A) the Servicing Rate and (B) the per
annum rate at which the Premium is
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calculated pursuant to the Premium Side Letter and (ii) the Principal Balance of
such Simple Interest Receivable as of the first day of the related Collection
Period and (y) the product of (i) the interest actually paid by the related
Obligor with respect to such Simple Interest Receivable with respect to such
Collection Period and (ii) a fraction, the numerator of which is the sum of (a)
such weighted average of the Class A Pass-Through Rate and the Class B
Pass-Through Rate referred to in (x)(a) above, (b) the Servicing Rate and (c)
the per annum rate at which the Premium is calculated pursuant to the Premium
Side Letter, and the denominator of which is the APR of such Simple Interest
Receivable.
"Confidential Information" means, in relation to any Person, any written
information delivered or made available by or on behalf of CPS or the Seller to
such Person in connection with or pursuant to this Agreement or the transactions
contemplated hereby which is proprietary in nature and clearly marked or
identified as being confidential information, other than information (i) which
was publicly known, or otherwise known to such Person, at the time of disclosure
(except pursuant to disclosure in connection with this Agreement), (ii) which
subsequently becomes publicly known through no act or omission by such Person,
or (iii) which otherwise becomes known to such Person other than through
disclosure by CPS or the Seller.
"Corporate Trust Office" means the office of the Trustee at which its
corporate trust business shall be administered, which office at the date of this
Agreement is located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"CPS" means Consumer Portfolio Services, Inc., a California corporation
and its successors.
"Cram Down Loss" means, with respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the amount owed on a Receivable or otherwise modifying or restructuring
Scheduled Payments to be made on a Receivable, an amount equal to such reduction
in Principal Balance of such Receivable or the reduction in the net present
value (using as the discount rate the lower of the contract rate or the rate of
interest specified by the court in such order) of the Scheduled Payments as so
modified or restructured. A "Cram Down Loss" shall be deemed to have occurred on
the date such order is entered.
"Cutoff Date" means March 11, 1997.
"Dealer" means, with respect to a Receivable, the seller of the related
Financed Vehicle, who originated and assigned such
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Receivable to CPS, who in turn sold such Receivable to the Seller.
"Deficiency Claim Amount" shall have the meaning specified in Section
4.7(a).
"Deficiency Claim Date" means, with respect to any Distribution Date,
the fourth Business Day preceding such Distribution Date.
"Deficiency Notice" shall have the meaning specified in Section 4.7(a).
"Definitive Certificates" shall have the meaning specified in Section
6.8.
"Depository Agreement" means the agreement among the Seller, the Trustee
and the Clearing Agency in the form attached hereto as Exhibit H.
"Determination Date" means the earlier of (i) the seventh Business Day
of each calendar month and (ii) the fifth Business Day preceding the related
Distribution Date.
"Distribution Date" means, for each Collection Period, the 15th day of
the following month, or if the 15th day is not a Business Day, the next
following Business Day, commencing April 15, 1997.
"Eligible Account" means (i) a segregated trust account that is
maintained with a depository institution acceptable to the Certificate Insurer
(so long as an Insurer Default shall not have occurred and be continuing), or
(ii) a segregated direct deposit account maintained with a depository
institution or trust company organized under the laws of the United States of
America, or any of the States thereof, or the District of Columbia, having a
certificate of deposit, short-term deposit or commercial paper rating of at
least "A-1" by Standard & Poor's and "P-1" by Moody's and (so long as an Insurer
Default shall not have occurred and be continuing) acceptable to the Certificate
Insurer.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to the full and timely payment by, the United States of America;
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(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws
of the United States of America or any State thereof (or any domestic
branch of a foreign bank) and subject to supervision and examination by
Federal or State banking or depository institution authorities;
provided, however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other short-term
unsecured debt obligations (other than such obligations the rating of
which is based on the credit of a Person other than such depository
institution or trust company) thereof shall be rated "A-1+" by Standard
& Poor's and "P-1" by Moody's;
(c) commercial paper that, at the time of the investment or
contractual commitment to invest therein, is rated "A-1+" by Standard &
Poor's and "P-1" by Moody's;
(d) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(e) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed as to the full and timely
payment by, the United States of America or any agency or
instrumentality thereof the obligations of which are backed by the full
faith and credit of the United States of America, in either case entered
into with (i) a depository institution or trust company (acting as
principal) described in clause (b) or (ii) a depository institution or
trust company whose commercial paper or other short term unsecured debt
obligations are rated "A-1+" by Standard & Poor's and "P-1" by Moody's
and long term unsecured debt obligations are rated "AAA" by Standard &
Poor's and "Aaa" by Moody's;
(f) with the prior written consent of the Certificate Insurer,
money market mutual funds registered under the Investment Company Act of
1940, as amended, having a rating, at the time of such investment, from
each of the Rating Agencies in the highest investment category granted
thereby; and
(g) any other investment as may be acceptable to the Certificate
Insurer, as evidenced by a writing to that effect, as may from time to
time be confirmed in writing to the Trustee by the Certificate Insurer.
Any Eligible Investments may be purchased by or through the Trustee or
any of its Affiliates.
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"Employee Plan" has the meaning assigned to such term in Section 6.3(b).
"ERISA" shall have the meaning specified in Section 2.7.
"Event of Default" means an event specified in Section 9.1.
"Final Scheduled Distribution Date" shall be the August 2002
Distribution Date.
"Financed Vehicle" means a new or used automobile, light truck, van or
minivan, together with all accessions thereto, securing an Obligor's
indebtedness under a Receivable.
"Insolvency Proceeding" shall have the meaning specified in Section
9.5(b).
"Insurance Agreement" means the Insurance and Indemnity Agreement among
CPS, the Seller, and the Certificate Insurer, dated as of March 1, 1997, as such
agreement may be amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof.
"Insurance Agreement Event of Default" means an Event of Default as
defined in the Insurance Agreement.
"Insurer Default" shall mean any one of the following events shall have
occurred and be continuing:
(i) the Certificate Insurer fails to make a payment required
under the Policy in accordance with its terms;
(ii) the Certificate Insurer (A) files any petition or commences
any case or proceeding under any provision or chapter of the United
States Bankruptcy Code, the New York Department of Insurance Code or
similar Federal or State law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (B) makes a general
assignment for the benefit of its creditors or (C) has an order for
relief entered against it under the United States Bankruptcy Code or any
other similar Federal or State law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and
nonappealable; or
(iii) a court of competent jurisdiction, the New York Department
of Insurance or other competent regulatory authority enters a final and
nonappealable order, judgment or decree (A) appointing a custodian,
trustee, agent or receiver for the Certificate Insurer or for all or any
material portion of its property or (B) authorizing the
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taking of possession by a custodian, trustee, agent or receiver of the
Certificate Insurer (or the taking of possession of all or any material
portion of the property of the Certificate Insurer).
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens, and any liens
that may attach to a Financed Vehicle by operation of law.
"Liquidated Receivable" means any Receivable (i) which has been
liquidated by the Servicer through the sale of the Financed Vehicle or (ii) for
which the related Financed Vehicle has been repossessed and 90 days have elapsed
since the date of such repossession or (iii) as to which an Obligor has failed
to make more than 90% of a Scheduled Payment of more than ten dollars for 120 or
more days as of the end of a Collection Period or (iv) with respect to which
proceeds have been received which, in the Servicer's judgment, constitute the
final amounts recoverable in respect of such Receivable.
"Liquidation Proceeds" means, with respect to a Liquidated Receivable,
the monies collected from whatever source during the Collection Period in which
such Receivable became a Liquidated Receivable, net of the reasonable costs of
liquidation, including reasonable expenses of the Servicer in connection with
such liquidation, plus any amounts required by law to be remitted to the
Obligor.
"Lock-Box Account" means the segregated account designated as such,
established and maintained pursuant to Section 4.1.
"Lock-Box Agreement" means the Tri-Party Remittance Processing
Agreement, dated the Closing Date, among the Servicer, the Lock-Box Processor
and the Trustee, as such agreement may be amended, supplemented or otherwise
modified from time to time in accordance with its terms or the terms hereof,
unless such Agreement shall be terminated in accordance with its terms or the
terms hereof, in which event "Lock-Box Agreement" shall mean such other
agreement, in form and substance acceptable to the Certificate Insurer, among
the Servicer, the Lock-Box Processor and the Trustee.
"Lock-Box Bank" means, as of any date, a depository institution named by
the Servicer and acceptable to the Certificate Insurer at which the Lock-Box
Account is established and maintained as of such date.
"Lock-Box Processor" means initially CashFlex, L.P. and its successors
or any replacement Lock-Box Processor acceptable to the Certificate Insurer
under the Lock-Box Agreement.
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24218203.5
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successors
thereof.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle or any other Person who owes or may be liable for
payments under such Receivable.
"Officer's Certificate" means a certificate signed by the chairman of
the board, the president, any vice chairman of the board, any vice president,
the treasurer, the controller or any assistant treasurer or any assistant
controller of CPS, the Seller, or the Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel who may but need
not be counsel to the Seller or Servicer, which counsel shall be acceptable to
the Trustee and the Certificate Insurer and which opinion shall be acceptable to
the Trustee and the Certificate Insurer in form and substance.
"Optional Purchase Percentage" means 10%.
"Original Pool Balance" means $102,327,009.71.
"Payahead" on a Rule of 78's Receivable means the amount, as of the
close of business on the last day of a Collection Period, determined in
accordance with Section 4.3 with respect to such Rule of 78's Receivable.
"Payahead Account" means the account designated as such, established and
maintained pursuant to Section 4.1. The Payahead Account shall be held by the
Trustee but shall be primarily for the benefit of the Obligors of Rule of 78's
Receivables and shall not be part of the Trust.
"Payahead Balance" on a Rule of 78's Receivable means the sum, as of the
close of business on the last day of a Collection Period, of all Payaheads made
by or on behalf of the Obligor with respect to such Rule of 78's Receivable, as
reduced by applications of previous Payaheads with respect to such Rule of 78's
Receivable, pursuant to Sections 4.3 and 4.4.
"Paying Agent" has the meaning assigned to such term in
Section 6.2A.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof or other organization or entity (whether governmental or
private).
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"Policy" means the Financial Guaranty Insurance Policy No. 50570-N
issued by the Certificate Insurer for the benefit of the Holders of the Class A
Certificates issued hereunder, including any endorsements thereto.
"Policy Claim Amount" with respect to a Distribution Date, means the sum
of: (I) the lesser of (i) the amount required to be distributed pursuant to
Section 4.6(c)(v), and (ii) the excess of the sum of the amounts required to be
distributed pursuant to Section 4.6(c)(i) through (v) over the sum of the Total
Distribution Amount and the amount distributed (or available to be distributed
pursuant to the Spread Account Agreement) in respect of the Deficiency Claim
Amount, plus (II) the lesser of (i) the amount required to be distributed
pursuant to Section 4.6(c)(vii), and (ii) the excess of the sum of the amounts
required to be distributed pursuant to Section 4.6(c)(i) through (vii) over the
sum of the Total Distribution Amount and the amount distributed (or available to
be distributed pursuant to the Spread Account Agreement) in respect of the
Deficiency Claim Amount.
"Policy Payments Account" means the segregated trust account created by
the Servicer under Section 4.1.
"Pool Balance" as of the close of business on the last day of a
Collection Period means the aggregate Principal Balance of the Receivables
(excluding Liquidated and Purchased Receivables).
"Post-Office Box" means the separate post-office box in the name of the
Trustee for the benefit of the Certificateholders and the Certificate Insurer,
established and maintained pursuant to Section 4.1.
"Preference Claim" shall have the meaning specified in Section 9.5(b).
"Premium" has the meaning specified in the Premium Side Letter.
"Premium Side Letter" means the letter agreement among the Seller, the
Trustee and the Certificate Insurer dated as of March 17, 1997, referring to
payment of the Premium.
"Principal Balance" of a Receivable, as of the close of business on the
last day of a Collection Period means the Amount Financed minus the sum of the
following amounts without duplication: (i) in the case of a Rule of 78's
Receivable, that portion of all Scheduled Payments actually received on or prior
to such day allocable to principal using the actuarial or constant yield method;
(ii) in the case of a Simple Interest Receivable, that portion of all Scheduled
Payments actually
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received on or prior to such day allocable to principal using the Simple
Interest Method; (iii) any payment of the Purchase Amount with respect to the
Receivable allocable to principal; (iv) any Cram Down Loss in respect of such
Receivable; and (v) any prepayment in full or any partial prepayment applied to
reduce the Principal Balance of the Receivable.
"Purchase Agreement" means the Purchase Agreement dated as of March 1,
1997, by and between the Seller and CPS, as such agreement may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, relating to the purchase of the Receivables by the Seller from
CPS.
"Purchase Amount" means, with respect to a Receivable, the amount, as of
the close of business on the last day of a Collection Period, required to prepay
in full such Receivable under the terms thereof including interest thereon to
the end of the month of purchase.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 3.7 or by CPS pursuant to Section 2.6 or Section 2.8.
"Rating Agency" means each of Standard & Poor's and Moody's and any
successors thereof. If either of such organizations or their respective
successors is no longer in existence, "Rating Agency" shall also be such
nationally recognized statistical rating organization or other comparable Person
designated by the Certificate Insurer, notice of which designation shall be
given to the Trustee and the Servicer.
"Receivable" means each retail installment sale contract for a Financed
Vehicle which shall appear on Schedule A to this Agreement (which Schedule A may
be in the form of microfiche) and all rights and obligations thereunder except
for Receivables that shall have become Purchased Receivables.
"Receivable Files" means the documents specified in Section 2.8.
"Record Date" means, with respect to any Distribution Date, the tenth
day of the calendar month in which such Distribution Date occurs.
"Recoveries" means, with respect to a Liquidated Receivable, the monies
collected from whatever source, during any Collection Period following the
Collection Period in which such Receivable became a Liquidated Receivable, net
of the reasonable costs of liquidation plus any amounts required by law to be
remitted to the Obligor.
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"Reimbursement Obligations" means, with respect to each Distribution
Date, any amounts due to the Certificate Insurer under the terms hereof or under
the Insurance Agreement and with respect to which the Certificate Insurer has
not been previously paid.
"Rule of 78's Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related retail installment sale contract as an add-on finance charge) and the
portion allocable to the Amount Financed is determined according to the method
commonly referred to as the "Rule of 78's" method or the "sum of the months'
digits" method or any equivalent method.
"Samco" means Samco Acceptance Corp., a subsidiary of CPS.
"Samco Receivables" means a Receivable purchased by CPS from Samco.
"Scheduled Payment" means, for any Collection Period for any Receivable,
the amount indicated in such Receivable as required to be paid by the Obligor in
such Collection Period (without giving effect to deferments of payments pursuant
to Section 3.2 or any rescheduling of payments in any insolvency or similar
proceedings).
"Securities Act" shall have the meaning specified in Section 6.3(b).
"Seller" means CPS Receivables Corp., as the seller of the Receivables
under this Agreement, and each of its successors pursuant to Section 7.3.
"Servicer" means CPS as the servicer of the Receivables which were
purchased by the Seller, and each successor to CPS (in the same capacity)
pursuant to Section 8.3(a) or 9.2.
"Servicer's Certificate" means a certificate completed and executed by a
Servicing Officer pursuant to Section 3.9, substantially in the form of Exhibit
F.
"Servicing Assumption Agreement" means the Servicing Assumption
Agreement, dated as of March 1, 1997, among CPS, the Standby Servicer and the
Trustee, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during the respective Collection Period, determined pursuant to Section
3.8.
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"Servicing Officer" means any Person whose name appears on a list of
Servicing Officers delivered to the Trustee and the Certificate Insurer, as the
same may be amended from time to time.
"Servicing Rate" shall be 2.12% per annum, payable monthly, provided,
however, that if the Standby Servicer becomes the successor Servicer, the
"Servicing Rate" shall be equal to a percentage per annum determined pursuant to
the Servicing Assumption Agreement not to exceed 3.00% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment between principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the product of the APR
multiplied by the unpaid balance multiplied by the period of time (expressed as
a fraction of a year, based on the actual number of days in the calendar month
and the actual number of days in the calendar year) elapsed since the preceding
payment of interest was made and the remainder of such payment is allocable to
principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Spread Account" means, with respect to the Trust and similar trusts to
be established by the Seller, the Spread Account established and maintained
pursuant to the Spread Account Agreement. The Spread Account shall be held by
the Collateral Agent and shall in no event be deemed part of the Trust.
"Spread Account Agreement" means the Master Spread Account Agreement
among the Seller, the Certificate Insurer, the Collateral Agent and the Trustee,
as amended and restated as of March 1, 1997, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, and any successors thereof.
"Standby Fee" means the fee payable to the Standby Servicer so long as
CPS is the Servicer calculated in the same manner, on the same basis and for the
same period as the Servicing Fee is calculated pursuant to Section 3.8 based on
a rate of 0.08% per annum rather than the Servicing Rate.
"Standby Servicer" means Norwest Bank Minnesota, National Association,
in its capacity as Standby Servicer pursuant to the
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terms of the Servicing Assumption Agreement or such Person as shall have been
appointed Standby Servicer pursuant to Section 9.2(c).
"State" means any State of the United States of America, or the District
of Columbia.
"Total Distribution Amount" shall mean, for each Distribution Date, the
sum of the following amounts with respect to the preceding Collection Period:
(i) all collections on Receivables (including amounts transferred from the
Payahead Account to the Certificate Account pursuant to Section 4.6(a)(ii) but
excluding amounts deposited into the Payahead Account); (ii) Liquidation
Proceeds received during the Collection Period with respect to Receivables that
became Liquidated Receivables during the Collection Period in accordance with
the Servicer's customary servicing procedures; (iii) proceeds from Recoveries
with respect to Liquidated Receivables; (iv) the Purchase Amount of each
Receivable that became a Purchased Receivable as of the last day of the
Collection Period, and (v) the amount of any Certificate Insurer Optional
Deposit into the Collection Account pursuant to Section 4.11(iii) with respect
to such Distribution Date, and any earnings on investments of funds in the
Collection Account and the Payahead Account pursuant to Section 4.1(a).
"Trust" means the trust created by this Agreement, the estate of which
shall consist of the Trust Assets.
"Trust Assets" means that property set forth in items (i) through (viii)
in Section 2.2 and the Policy for the benefit of the Class A Certificateholders.
"Trustee" means the Person acting as Trustee under this Agreement, its
successor in interest, and any successor trustee pursuant to Section 10.11.
"Trustee Fee" means the monthly fee payable on each Distribution Date to
the Trustee for services rendered during the preceding Collection Period in an
amount equal to the product of (i) one-twelfth of 0.015% and (ii) the Pool
Balance of the last day of the second preceding Collection Period, distributed
in accordance with Section 4.6(c); provided, however, that with respect to the
initial Distribution Date, such monthly fee shall be an amount equal to the
product of (i) one-twelfth of 0.015% and (ii) the Original Pool Balance.
"Trustee Officer" means any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect
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to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Trustee's Certificate" means a certificate completed and executed for
the Trustee by a Trustee Officer pursuant to Section 10.2, substantially in the
form of, in the case of an assignment to CPS, Exhibit C-1 and in the case of an
assignment to the Servicer, Exhibit C-2.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
SECTION 1.2. Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
SECTION 1.3. Section References. All section references shall be to
Sections in this Agreement.
SECTION 1.4. Limitation on Trust Fund Activities. Notwithstanding any
other provision in this Agreement to the contrary, the Trustee shall have no
power to vary the investment of the Certificateholders within the meaning of
Treasury Department Regulation ss. 301.7701-4(c) or to engage in business unless
the Trustee and the Certificate Insurer shall have received an Opinion of
Counsel that such activity shall not cause the Trust to be an association
taxable as a corporation for federal income tax purposes.
SECTION 1.5. Calculations. All calculations of the amount of interest
accrued on the Certificates and all calculations of the amount of the Servicing
Fee and the Trustee Fee shall be made on the basis of a 360-day year consisting
of twelve 30-day months. All references to the Principal Balance of a Receivable
as of the last day of a Collection Period shall refer to the close of business
on such day.
SECTION 1.6. Action by or Consent of Certificateholders. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Record Date immediately preceding the
date on which such
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action is to be taken, or consent given, by Certificateholders. Solely for the
purposes of any action to be taken, or consented to, by Certificateholders, any
Certificate registered in the name of the Seller, CPS or any Affiliate thereof
shall be deemed not to be outstanding and shall not be taken into account in
determining whether the requisite interest necessary to effect any such action
or consent has been obtained; provided, however, that, solely for the purpose of
determining whether the Trustee is entitled to rely upon any such action or
consent, only Certificates which the Trustee knows to be so owned shall be so
disregarded.
SECTION 1.7. Material Adverse Effect. Whenever a determination is to be
made under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse effect
on the Trust or the Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account the
insurance provided by the Policy.
ARTICLE II
The Trust and Trust Property
SECTION 2.1. Creation of Trust. Upon the execution of this Agreement by
the parties hereto, there is hereby created the CPS Auto Grantor Trust 1997-1.
SECTION 2.2. Conveyance of Receivables. In consideration of the
Trustee's delivery of Certificates in an aggregate principal amount equal to the
Original Pool Balance to or upon the written order of the Seller, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Trustee, in trust for the benefit of the Certificateholders, without recourse,
except as provided in Sections 2.5, 2.6 and 2.8 (subject to the obligations
herein):
(i) all right, title and interest of the Seller in and to the
Receivables listed in Schedule A hereto and, with respect to Rule of
78's Receivables, all monies due or to become due thereon after the
Cutoff Date (including Scheduled Payments due after the Cutoff Date
(including principal prepayments relating to such Scheduled Payments)
but received by the Seller or CPS on or before the Cutoff Date) and,
with respect to Simple Interest Receivables, all monies received
thereunder after the Cutoff Date and all Liquidation Proceeds and
Recoveries received with respect to such Receivables after the Cutoff
Date;
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(ii) all right, title and interest of the Seller in and to
the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Seller in such
Financed Vehicles, including, without limitation, the certificates of
title or, with respect to such Financed Vehicles in the State of
Michigan, all other evidence of ownership with respect to such Financed
Vehicles;
(iii) all right, title and interest of the Seller in and to
any proceeds from claims on any physical damage, credit life and credit
accident and health insurance policies or certificates relating to the
Financed Vehicles or the Obligors;
(iv) all right, title and interest of the Seller in and to
the Purchase Agreement, including a direct right to cause CPS to
purchase Receivables from the Trust under certain circumstances;
(v) all right, title and interest of the Seller in and to
refunds for the costs of extended service contracts with respect to
Financed Vehicles, refunds of unearned premiums with respect to credit
life and credit accident and health insurance policies or certificates
covering an Obligor or Financed Vehicle or his or her obligations with
respect to a Financed Vehicle and any recourse to Dealers for any of the
foregoing;
(vi) the Receivable File related to each Receivable;
(vii) all amounts and property from time to time held in or
credited to the Collection Account, the Lock-Box Account, the Policy
Payments Account or the Certificate Account; and
(viii) the proceeds of any and all of the foregoing.
In addition, the Seller shall cause the Policy to be issued to and
delivered to the Trust for the benefit of the Certificateholders.
Section 2.3. Transfer Intended as Sale; Precautionary Security Interest.
The conveyance to the Trust of the property set forth in Section 2.2 above is
intended as a sale free and clear of all Liens, and it is intended that the
property of the Trust shall not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. In the event, however, that notwithstanding the intent of CPS,
the Seller and the Trustee, the transfer under this Agreement is held not to be
a sale, this Agreement shall constitute a grant of a security interest in the
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property described in Section 2.2 above, for the benefit of the
Certificateholders and the Certificate Insurer as their interests may appear
herein.
SECTION 2.4. Acceptance by Trustee. The Trustee does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.2, and declares that
the Trustee shall hold such consideration upon the trusts herein set forth for
the benefit of all present and future Certificateholders, subject to the terms
and provisions of this Agreement.
SECTION 2.5. Representations and Warranties of Seller. The Seller makes
the following representations and warranties as to the Receivables to the
Certificate Insurer and to the Trustee, on which the Certificate Insurer relies
in executing and delivering the Policy, and on which the Trustee on behalf of
itself and the Certificateholders relies in accepting the items specified in
Section 2.2 in trust and executing and authenticating the Certificates. Such
representations and warranties speak as of the Closing Date, but shall survive
the sale, transfer, and assignment of the Receivables to the Trustee.
(i) Characteristics of Receivables. (A) Each Receivable (1)
has been originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, has been fully and properly executed by the parties
thereto and has been purchased by CPS in connection with the sale of
Financed Vehicles by the Dealers, (2) has created a valid, subsisting,
and enforceable first priority perfected security interest in favor of
CPS in the Financed Vehicle, which security interest has been assigned
by CPS to the Seller, which in turn has assigned such security interest
to the Trustee, (3) contains customary and enforceable provisions such
that the rights and remedies of the holder or assignee thereof shall be
adequate for realization against the collateral of the benefits of the
security, (4) provides for level monthly payments that fully amortize
the Amount Financed over the original term (except for the last payment,
which may be different from the level payment) and yield interest at the
Annual Percentage Rate, (5) has an Annual Percentage Rate of not less
than 13.50%, (6) that is a Rule of 78's Receivable provides for, in the
event that such contract is prepaid, a prepayment that fully pays the
Principal Balance and includes a full month's interest, in the month of
prepayment, at the Annual Percentage Rate, (7) is a Rule of 78's
Receivable or a Simple Interest Receivable, and (8) was originated by a
Dealer and was sold by the Dealer without any fraud or misrepresentation
on the part of such Dealer.
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(B) Approximately 89.40% of the aggregate Principal Balance of
the Receivables, constituting 91.93% of the number of contracts, as of
the Cutoff Date, represents financing of used automobiles, light trucks,
vans or minivans; the remainder of the Receivables represent financing
of new automobiles, light trucks, vans or minivans; approximately 17.77%
of the aggregate Principal Balance of the Receivables as of the Cutoff
Date were originated in the State of California; approximately 50.18% of
the aggregate Principal Balance of the Receivables as of the Cutoff Date
were originated under the CPS alpha program; approximately 10.67% of the
aggregate Principal Balance of the Receivables as of the Cutoff Date
were originated under the CPS delta program; approximately 6.75% of the
aggregate Principal Balance of the Receivables as of the Cutoff Date
were originated under the CPS first time buyer program; the
approximately 31.97% of the Receivables were originated under the CPS
standard program; the remaining 0.43% of the aggregate Principal Balance
of the Receivables as of the Cutoff Date were acquired by CPS from an
affiliated party; no Receivable shall have a payment that is more than
30 days overdue as of the Cutoff Date; 39.92% of the Receivables are
Rule of 78's Receivables and 60.08% of the Receivables are Simple
Interest Receivables; each Receivable shall have a final scheduled
payment due no later than April 12, 2002; each Receivable has an
original term to maturity of at least 24 months and not more than 60
months and a remaining term to maturity of not less than 4 months nor
greater than 60 months; and each Receivable was originated on or before
the Cutoff Date.
(ii) Schedule of Receivables. The information with respect to
the Receivables set forth in Schedule A to this Agreement is true and
correct in all material respects as of the close of business on the
Cutoff Date, and no selection procedures adverse to the
Certificateholders have been utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable, the sale of the
Financed Vehicle and the sale of any physical damage, credit life and
credit accident and health insurance and any extended service contracts
complied at the time the related Receivable was originated or made and
at the execution of this Agreement complies in all material respects
with all requirements of applicable Federal, State, and local laws, and
regulations thereunder including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the
Federal Reserve Board's Regulations B and Z, the Soldiers' and
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Sailors' Civil Relief Act of 1940, the Texas Consumer Credit Code, the
California Automobile Sales Finance Act and State adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code, and other
consumer credit laws and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the Receivables are due from
the United States of America or any State or from any agency,
department, or instrumentality of the United States of America or any
State.
(vi) Security Interest in Financed Vehicle. Immediately
subsequent to the sale, assignment and transfer thereof to the Trust,
each Receivable shall be secured by a validly perfected first priority
security interest in the Financed Vehicle in favor of the Trust as
secured party, and such security interest is prior to all other liens
upon and security interests in such Financed Vehicle which now exist or
may hereafter arise or be created (except, as to priority, for any tax
liens or mechanics' liens which may arise after the Closing Date).
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been waived.
(ix) No Amendments. No Receivable has been amended, except as
such Receivable may have been amended to grant extensions which shall
not have numbered more than (a) one extension of one calendar month in
any calendar year or (b) three such extensions in the aggregate.
(x) No Defenses. No right of rescission, setoff,
counterclaim or defense exists or has been asserted or threatened with
respect to any Receivable. The operation of the terms of any Receivable
or the exercise of any right thereunder will not render such Receivable
unenforceable in whole or in part or subject to any such right of
rescission, setoff, counterclaim, or defense.
(xi) No Liens. As of the Cutoff Date there are no liens or
claims existing or which have been filed for work,
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labor, storage or materials relating to a Financed Vehicle that shall be
liens prior to, or equal or coordinate with, the security interest in
the Financed Vehicle granted by the Receivable.
(xii) No Default; Repossession. Except for payment
delinquencies continuing for a period of not more than thirty days as of
the Cutoff Date, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred; and no
continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable has arisen; and the Seller shall not
waive and has not waived any of the foregoing; and no Financed Vehicle
shall have been repossessed as of the Cutoff Date.
(xiii) Insurance; Other. (A) Each Obligor has obtained
insurance covering the Financed Vehicle as of the execution of the
Receivable insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage, and each Receivable requires the
Obligor to obtain and maintain such insurance naming CPS and its
successors and assigns as an additional insured, (B) each Receivable
that finances the cost of premiums for credit life and credit accident
and health insurance is covered by an insurance policy or certificate of
insurance naming CPS as policyholder (creditor) under each such
insurance policy and certificate of insurance and (C) as to each
Receivable that finances the cost of an extended service contract, the
respective Financed Vehicle which secures the Receivable is covered by
an extended service contract.
(xiv) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Trust and that the beneficial
interest in and title to such Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person other than
the Trustee. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable and was the sole owner thereof, free and clear of all liens,
claims, encumbrances, security interests, and rights of others, and,
immediately upon the transfer thereof, the Trustee for the benefit of
the Certificateholders and the Certificate Insurer shall have good and
marketable title to each such Receivable and will be the sole owner
thereof, free and
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clear of all liens, encumbrances, security interests, and rights of
others, and the transfer has been perfected under the UCC.
(xv) Lawful Assignment. No Receivable has been originated in,
or is subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Receivable under this Agreement or
pursuant to transfers of the Certificates shall be unlawful, void, or
voidable. The Seller has not entered into any agreement with any account
debtor that prohibits, restricts or conditions the assignment of any
portion of the Receivables.
(xvi) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to
give the Trustee a first priority perfected ownership
interest in the Receivables have been made.
(xvii) Receivable File; One Original. CPS has delivered
to the Trustee a complete Receivable File with respect to
each Receivable. There is only one original executed copy
of each Receivable.
(xviii) Chattel Paper. Each Receivable constitutes "chattel
paper" under the UCC.
(xix) Title Documents. (A) If the Receivable was originated in
a State in which notation of a security interest on the title document
of the related Financed Vehicle is required or permitted to perfect such
security interest, the title document of the related Financed Vehicle
for such Receivable shows, or if a new or replacement title document is
being applied for with respect to such Financed Vehicle the title
document (or, with respect to Receivables originated in the State of
Michigan, all other evidence of ownership with respect to such Financed
Vehicle) will be received within 180 days and will show, CPS (or with
respect to the Samco Receivables, Samco) named as the original secured
party under the related Receivable as the holder of a first priority
security interest in such Financed Vehicle, and (B) if the Receivable
was originated in a State in which the filing of a financing statement
under the UCC is required to perfect a security interest in motor
vehicles, such filings or recordings have been duly made and show CPS
(or with respect to the Samco Receivables, Samco) named as the original
secured party under the related Receivable, and in either case, the
Trustee has the same rights as such secured party has or would have (if
such secured party were still the owner of the Receivable) against all
parties claiming an interest in such Financed Vehicle. With respect to
each Receivable for which the title document of the
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related Financed Vehicle has not yet been returned from the Registrar of
Titles, CPS has received written evidence from the related Dealer that
such title document showing CPS (or, with respect to the Samco
Receivables, Samco) as first lienholder has been applied for.
(xx) Valid and Binding Obligation of Obligor. Each Receivable is
the legal, valid and binding obligation of the Obligor thereunder and is
enforceable in accordance with its terms, except only as such
enforcement may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally, and all
parties to such contract had full legal capacity to execute and deliver
such contract and all other documents related thereto and to grant the
security interest purported to be granted thereby.
(xxi) Tax Liens. As of the Cutoff Date, there is no lien against
the related Financed Vehicle for delinquent taxes.
(xxii) Characteristics of Obligors. As of the date of each
Obligor's application for the loan from which the related Receivable
arises, such Obligor (a) did not have any material past due credit
obligations or any personal or real property repossessed or wages
garnished within one year prior to the date of such application, unless
such amounts have been repaid or discharged through bankruptcy, (b) was
not the subject of any Federal, State or other bankruptcy, insolvency or
similar proceeding pending on the date of application that is not
discharged, (c) had not been the subject of more than one Federal, State
or other bankruptcy, insolvency or similar proceeding, and (d) was
domiciled in the United States.
(xxiii) Origination Date. Each Receivable has an origination
date on or after March 14, 1994.
(xxiv) Maturity of Receivables. Each Receivable has an original
term to maturity of not less than 24 months and not more than 60 months;
the weighted average original term to maturity of the Receivables is
56.35 months as of the Cutoff Date; the remaining term to maturity of
each Receivable was 60 months or less as of the Cutoff Date; the
weighted average remaining term to maturity of the Receivables was 55.08
months as of the Cutoff Date.
(xxv) Scheduled Payments. Each Receivable had an original
principal balance of not less than $2,665.00 nor more than $28,891.21,
had an outstanding principal balance as of the Cutoff Date of not less
than $1264.35 nor more
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than $28,891.21 and has a first Scheduled Payment due on or prior to
April 23, 1997.
(xxvi) Origination of Receivables. Based on the billing address
of the Obligors and the Principal Balances as of the Cutoff Date,
approximately 17.77% of the Receivables were originated in California,
approximately 9.32% of the Receivables were originated in Pennsylvania,
approximately 8.17% of the Receivables were originated in Texas,
approximately 7.57% of the Receivables were originated in Florida and
the remaining 57.17% of the Receivables were originated in other States.
(xxvii) Post-Office Box. On or prior to the next billing period
after the Cutoff Date, CPS will notify each Obligor to make payments
with respect to its respective Receivables after the Cutoff Date
directly to the Post-Office Box, and will provide each Obligor with a
monthly statement in order to enable such Obligors to make payments
directly to the Post-Office Box.
(xxviii) Location of Receivable Files. A complete Receivable
File with respect to each Receivable has been or prior to the Closing
Date will be delivered to the Trustee at the location listed in Schedule
B.
(xxix) Casualty. No Financed Vehicle has suffered a Casualty.
(xxx) Principal Balance/Number of Contracts. As of the Cutoff
Date, the total aggregate principal balance of the Receivables was
$102,327,007.71. The Receivables are evidenced by 8,311 Contracts.
(xxxi) Full Amount Advanced. The full amount of each Receivable
has been advanced to each Obligor, and there are no requirements for
future advances thereunder. The Obligor with respect to the Receivable
does not have any option under the Receivable to borrow from any person
additional funds secured by the Financed Vehicle.
SECTION 2.6. Repurchase Upon Breach. The Seller, the Servicer, the
Certificate Insurer or the Trustee, as the case may be, shall inform the other
parties to this Agreement and the Certificate Insurer promptly, in writing, upon
the discovery of any breach of the Seller's representations and warranties made
pursuant to Section 2.5 (without regard to any limitation therein as to the
Seller's knowledge). Unless the breach shall have been cured by the last day of
the second Collection Period following the discovery thereof by the Trustee or
the Certificate Insurer or receipt by the Trustee and the Certificate Insurer of
notice
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from the Seller or the Servicer of such breach, CPS shall repurchase any
Receivable if such Receivable is materially and adversely affected by the breach
as of the last day of such second Collection Period (or, at CPS's option, the
last day of the first Collection Period following the discovery) and, in the
event that the breach relates to a characteristic of the Receivables in the
aggregate, and if the Trust is materially and adversely affected by such breach,
unless the breach shall have been cured by such second Collection Period, CPS
shall purchase such aggregate Principal Balance of Receivables, such that
following such purchase such representation shall be true and correct with
respect to the remainder of the Receivables in the aggregate. In consideration
of the purchase of the Receivable, CPS shall remit the Purchase Amount, in the
manner specified in Section 4.5. For purposes of this Section, the Purchase
Amount of a Receivable which is not consistent with the warranty pursuant to
Section 2.5(i)(A)(4) or (A)(5) shall include such additional amount as shall be
necessary to provide the full amount of interest as contemplated therein. The
sole remedy of the Trustee, the Trust, the Certificateholders or the Certificate
Insurer with respect to a breach of representations and warranties pursuant to
Section 2.5 shall be to enforce CPS's obligation to purchase such Receivables
pursuant to the Purchase Agreement; provided, however, that CPS shall indemnify
the Trustee, the Standby Servicer, the Collateral Agent, the Certificate
Insurer, the Trust and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by any of them as a result
of third party claims arising out of the events or facts giving rise to such
breach. Upon receipt of the Purchase Amount and written instructions from the
Servicer, the Trustee shall release to CPS or its designee the related
Receivables File and shall execute and deliver all reasonable instruments of
transfer or assignment, without recourse, as are prepared by the Seller and
delivered to the Trustee and necessary to vest in CPS or such designee title to
the Receivable. If it is determined that consummation of the transactions
contemplated by this Agreement and the other transaction documents referenced in
this Agreement, the servicing and operation of the Trust pursuant to this
Agreement and such other documents, or the ownership of a Certificate by a
Holder constitutes a violation of the prohibited transaction rules of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
Internal Revenue Code of 1986, as amended (the "Code") or any successor statutes
of similar impact, together with the regulations thereunder, to which no
statutory exception or administrative exemption applies, such violation shall
not be treated as a breach of the Seller's representations and warranties made
pursuant to Section 2.6 if not otherwise such a breach.
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SECTION 2.7. Delivery of Receivable Files. On or prior to the Closing
Date, the Seller shall transfer and deliver to the Trustee at the offices
specified in Schedule B to this Agreement with respect to each Receivable the
following:
(i) The fully executed original of the Receivable (together
with any agreements modifying the Receivable, including without
limitation, any extension agreements).
(ii) The original certificate of title in the name of CPS or
such documents that CPS shall keep on file, in accordance with its
customary procedures, evidencing the security interest of CPS in the
Financed Vehicle or, if not yet received, a copy of the application
therefor showing CPS as secured party.
The Servicer shall hold all other documents with respect to the Receivables as
custodian for the Trust.
SECTION 2.8. Acceptance of Receivable Files by Trustee. The Trustee
acknowledges receipt of files which the Seller has represented are the
Receivable Files. The Trustee has reviewed the Receivable Files and has
determined that it has received a file for each Receivable identified in
Schedule A to this Agreement. The Trustee declares that it holds and will
continue to hold such files and any amendments, replacements or supplements
thereto and all other Trust Assets as Trustee in trust for the use and benefit
of all present and future Certificateholders. The Trustee agrees to review each
file delivered to it no later than 45 days after the Closing Date to determine
whether such Receivable Files contain the documents referred to in Section
2.7(i) and (ii). If the Trustee has found or finds that a file for a Receivable
has not been received, or that a file is unrelated to the Receivables identified
in Schedule A to this Agreement or that any of the documents referred to in
Section 2.7(i) or (ii) are not contained in a Receivable File, the Trustee shall
inform CPS, the Seller, the Standby Servicer and the Certificate Insurer
promptly, in writing, of the failure to receive a file with respect to such
Receivable (or of the failure of any of the aforementioned documents to be
included in the Receivable File) or shall return to CPS as the Seller's designee
any file unrelated to a Receivable identified in Schedule A to this Agreement
(it being understood that the Trustee's obligation to review the contents of any
Receivable File shall be limited as set forth in the preceding sentence). Unless
such defect with respect to such Receivable File shall have been cured by the
last day of the second Collection Period following discovery thereof by the
Trustee, CPS shall repurchase any such Receivable as of such last day. In
consideration of the purchase of the Receivable, CPS shall remit the Purchase
Amount, in the manner specified in
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Section 4.5. The sole remedy of the Trustee, the Trust, or the
Certificateholders with respect to a breach pursuant to this Section 2.8 shall
be to require CPS to purchase the Receivables pursuant to this Section 2.8. Upon
receipt of the Purchase Amount and written instructions from the Servicer, the
Trustee shall release to CPS or its designee the related Receivables File and
shall execute and deliver all reasonable instruments of transfer or assignment,
without recourse, as are prepared by CPS and delivered to the Trustee and are
necessary to vest in CPS or such designee title to the Receivable. The Trustee
shall make a list of Receivables for which an application for a certificate of
title but not an original certificate of title or, with respect to Receivables
originated in the State of Michigan, a "Form RD108" stamped by the Department of
Motor Vehicles, is included in the Receivable File as of the date of its review
of the Receivable Files and deliver a copy of such list to the Servicer and the
Certificate Insurer. On the date which is 180 days following the Closing Date or
the next succeeding Business Day, the Trustee shall inform CPS and the other
parties to this Agreement and the Certificate Insurer of any Receivable for
which the related Receivable File on such date does not include an original
certificate of title or, with respect to Financed Vehicles in the State of
Michigan, for which the related Receivable File on such date does not include a
"Form RD108" stamped by the Department of Motor Vehicles, and CPS shall
repurchase any such Receivable as of the last day of the current Collection
Period.
SECTION 2.9. Access to Receivable Files. The Trustee shall permit the
Servicer, any Certificateholder and the Certificate Insurer access to the
Receivable Files at all reasonable times during the Trustee's normal business
hours; provided, however, that the Trustee shall provide such access to any
Certificateholder only (i) in such cases where the Trustee is required by
applicable statutes or regulations (whether applicable to the Trustee, the
Servicer or to such Certificateholder) to permit such Certificateholder to
review the Receivable Files or (ii) if an Insurer Default shall have occurred
and be continuing. In addition, the Trustee shall provide such access to any
Certificateholder at all reasonable times during the Trustee's normal business
hours if an Event of Default shall have occurred and be continuing. In each
case, such access shall be afforded without charge but only upon reasonable
request. Each Certificateholder shall be deemed to have agreed by its acceptance
of a Certificate to use its best efforts to hold in confidence all Confidential
Information in accordance with its then customary procedures; provided that
nothing herein shall prevent any Certificateholder from delivering copies of any
financial statements and other documents whether or not constituting
Confidential Information, and disclosing other information, whether or not
Confidential
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Information, to (i) its directors, officers, employees, agents and professional
consultants, (ii) any other institutional investor that holds Certificates,
(iii) any prospective institutional investor transferee in connection with the
contemplated transfer of a Certificate or any part thereof or participation
therein who is subject to confidentiality arrangements at least substantially
similar hereto, (iv) any governmental authority, (v) the National Association of
Insurance Commissioners or any similar organization, (vi) any nationally
recognized rating agency in connection with the rating of the Certificates by
such agency or (vii) any other Person to which such delivery or disclosure may
be necessary or appropriate (a) in compliance with any applicable law, rule,
regulation or order, (b) in response to any subpoena or other legal process, (c)
in connection with any litigation to which such Certificateholder is a party, or
(d) in order to protect or enforce such Person's investment in any Certificate.
The Trustee shall, within two Business Days of the request of the Servicer or
the Certificate Insurer, execute such documents and instruments as are prepared
by the Servicer or the Certificate Insurer and delivered to the Trustee, as the
Servicer or the Certificate Insurer deems necessary to permit the Servicer, in
accordance with its customary servicing procedures, to enforce the Receivable on
behalf of the Trust and any related insurance policies covering the Obligor, the
Receivable or Financed Vehicle so long as such execution in the Trustee's sole
discretion does not conflict with this Agreement and will not cause it undue
risk or liability. The Trustee shall not be obligated to release any document
from any Receivable File unless it receives a trust receipt signed by a
Servicing Officer in the form of Exhibit E-1 hereto (the "Trust Receipt"). Such
Trust Receipt shall obligate the Servicer to return such document(s) to the
Trustee when the need therefor no longer exists unless the Receivable shall be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
substantially in the form of Exhibit E-2 hereto to the effect that all amounts
required to be deposited in the Collection Account with respect to such
Receivable have been so deposited, the Trust Receipt shall be released by the
Trustee to the Servicer.
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.1. Duties of Servicer. The Servicer, as agent for the Trust,
the Certificateholders and the Certificate Insurer (to the extent provided
herein) shall manage, service, administer and make collections on the
Receivables with reasonable care, using that degree of skill and attention
customary and usual for institutions which service motor vehicle retail
installment
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contracts similar to the Receivables and, to the extent more exacting, that the
Servicer exercises with respect to all comparable automotive receivables that it
services for itself or others. The Servicer's duties shall include collection
and posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, sending payment statements to
Obligors, reporting tax information to Obligors, accounting for collections,
furnishing monthly and annual statements to the Trustee and the Certificate
Insurer with respect to distributions. Without limiting the generality of the
foregoing, and subject to the servicing standards set forth in this Agreement,
the Servicer is authorized and empowered by the Trustee to execute and deliver,
on behalf of itself, the Trust, the Certificateholders or any of them, any and
all instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Vehicles securing such Receivables and/or the
certificates of title or, with respect to Financed Vehicles in the State of
Michigan, other evidence of ownership with respect to such Financed Vehicles. If
the Servicer shall commence a legal proceeding to enforce a Receivable, the
Trustee shall thereupon be deemed to have automatically assigned, solely for the
purpose of collection, such Receivable to the Servicer. If in any enforcement
suit or legal proceeding it shall be held that the Servicer may not enforce a
Receivable on the ground that it shall not be a real party in interest or a
holder entitled to enforce such Receivable, the Trustee shall, at the Servicer's
expense and direction, take steps to enforce such Receivable, including bringing
suit in its name or the name of the Certificateholders. The Servicer shall
prepare and furnish and the Trustee shall execute, any powers of attorney and
other documents reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
SECTION 3.2. Collection and Allocation of Receivable Payments.
Consistent with the standards, policies and procedures required by this
Agreement, the Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Receivables as and when the
same shall become due and shall follow such collection procedures as it follows
with respect to all comparable automotive receivables that it services for
itself or others; provided, however, that the Servicer shall notify each Obligor
to make all payments with respect to the Receivables to the Post-Office Box. The
Servicer will provide each Obligor with a monthly statement in order to notify
such Obligors to make payments directly to the Post-Office Box. The Servicer
shall allocate collections between principal and interest in accordance with the
customary servicing procedures it follows with respect to all comparable
automotive receivables that it services for itself or others and in
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accordance with the terms of this Agreement. Except as provided below, the
Servicer, for so long as CPS is the Servicer, may grant extensions on a
Receivable; provided, however, that the Servicer may not grant more than one
extension per calendar year with respect to a Receivable or grant an extension
with respect to a Receivable for more than one calendar month or grant more than
three extensions in the aggregate with respect to a Receivable without the prior
written consent of the Certificate Insurer and provided, further, that if the
Servicer extends the date for final payment by the Obligor of any Receivable
beyond the last day of the penultimate Collection Period preceding the Final
Scheduled Distribution Date, it shall promptly purchase the Receivable from the
Trust in accordance with the terms of Section 3.7 hereof (and for purposes
thereof, the Receivable shall be deemed to be materially and adversely affected
by such breach). If the Servicer is not CPS, the Servicer may not make any
extension on a Receivable without the prior written consent of the Certificate
Insurer. The Servicer may in its discretion waive any late payment charge or any
other fees that may be collected in the ordinary course of servicing a
Receivable. Notwithstanding anything to the contrary contained herein, the
Servicer shall not agree (i) to any alteration of the interest rate on any
Receivable or of the amount of any Scheduled Payment on Receivables, and (ii)
shall not agree to any modification that would result in a "deemed exchange" of
a receivable under Section 1001 of the Internal Revenue Code of 1986, as
amended, or would constitute reinvestment adversely affecting the status of the
Trust as not an association taxable as a corporation for Federal income tax
purposes.
SECTION 3.3. Realization Upon Receivables. On behalf of the Trust, the
Certificateholders and the Certificate Insurer, the Servicer shall use its best
efforts, consistent with the servicing procedures set forth herein, to repossess
or otherwise convert the ownership of the Financed Vehicle securing any
Receivable as to which the Servicer shall have determined eventual payment in
full is unlikely. The Servicer shall commence efforts to repossess or otherwise
convert the ownership of a Financed Vehicle on or prior to the date that an
Obligor has failed to make more than 90% of a Scheduled Payment thereon in
excess of $10 for 120 days or more; provided, however, that the Servicer may
elect not to commence such efforts within such time period if in its good faith
judgment it determines either that it would be impracticable to do so or that
the proceeds ultimately recoverable with respect to such Receivable would be
increased by forbearance. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of automotive receivables, consistent with the standards of care set
forth in Section 3.2, which may include reasonable efforts to realize upon any
recourse to Dealers and selling the Financed Vehicle at public or private sale.
The
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foregoing shall be subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
in connection with the repair or the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair and/or repossession
will increase the proceeds ultimately recoverable with respect to such
Receivable by an amount greater than the amount of such expenses.
SECTION 3.4. Physical Damage Insurance; Other Insurance. (a) The
Servicer, in accordance with the servicing procedures and standards set forth
herein, shall require that (i) each Obligor shall have obtained insurance
covering the Financed Vehicle, as of the date of the execution of the
Receivable, insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and collision
coverage and each Receivable requires the Obligor to maintain such physical loss
and damage insurance naming CPS and its successors and assigns as an additional
insured, (ii) each Receivable that finances the cost of premiums for credit life
and credit accident and health insurance is covered by an insurance policy or
certificate naming CPS as policyholder (creditor) and (iii) as to each
Receivable that finances the cost of an extended service contract, the
respective Financed Vehicle which secures the Receivable is covered by an
extended service contract.
(b) To the extent applicable, the Servicer shall not take any action
which would result in noncoverage under any of the insurance policies referred
to in Section 3.4(a) which, but for the actions of the Servicer, would have been
covered thereunder. The Servicer, on behalf of the Trustee, shall take such
reasonable action as shall be necessary to permit recovery under any of the
foregoing insurance policies. Any amounts collected by the Servicer under any of
the foregoing insurance policies shall be deposited in the Collection Account
pursuant to Section 4.2. The Servicer shall cause to be maintained in respect of
each Financed Vehicle the insurance or insurance reserves referred to in Section
3.4(a)(i) above.
SECTION 3.5. Maintenance of Security Interests in Financed Vehicles. (a)
Consistent with the policies and procedures required by this Agreement, the
Servicer shall take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle
including but not limited to obtaining the execution by the Obligors and the
recording, registering, filing, re-recording, re-registering and refiling of all
security agreements, financing statements and continuation statements or
instruments as are necessary to maintain the security interest granted by
Obligors under the respective Receivables. The Trustee hereby authorizes
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the Servicer to take such steps as are necessary to re-perfect or continue the
perfection of such security interest on behalf of the Trust in the event of the
relocation of a Financed Vehicle or for any other reason.
(b) Upon the occurrence of an Insurance Agreement Event of Default, the
Certificate Insurer may (so long as an Insurer Default shall not have occurred
and be continuing) instruct the Trustee and the Servicer to take or cause to be
taken, or, if an Insurer Default shall have occurred, upon the occurrence of an
Event of Default, the Trustee and the Servicer shall take or cause to be taken
such action as may, in the opinion of counsel to the Trustee, which opinion
shall not be an expense of the Trustee, be necessary to perfect or reperfect the
security interests in the Financed Vehicles securing the Receivables in the name
of the Trustee on behalf of the Trust by amending the title documents of such
Financed Vehicles or by such other reasonable means as may, in the opinion of
counsel to the Certificate Insurer or the Trustee (as applicable), which opinion
shall not be an expense of the Trustee, be necessary or prudent. The Servicer
hereby agrees to pay all expenses related to such perfection or reperfection and
to take all action necessary therefor. In addition, prior to the occurrence of
an Insurance Agreement Event of Default, the Certificate Insurer may (unless an
Insurer Default shall have occurred and be continuing) instruct the Trustee and
the Servicer to take or cause to be taken such action as may, in the opinion of
counsel to the Certificate Insurer, be necessary to perfect or reperfect the
security interest in the Financed Vehicles securing the Receivables in the name
of the Trustee on behalf of the Trust, including by amending the title documents
of such Financed Vehicles or by such other reasonable means as may, in the
opinion of counsel to the Certificate Insurer, be necessary or prudent;
provided, however, that if the Certificate Insurer requests (unless an Insurer
Default shall have occurred and be continuing) that the title documents be
amended prior to the occurrence of an Insurance Agreement Event of Default, the
out-of-pocket expenses of the Servicer or the Trustee in connection with such
action shall be reimbursed to the Servicer or the Trustee, as applicable, by the
Certificate Insurer.
SECTION 3.6. Additional Covenants of Servicer. The Servicer shall not
release the Financed Vehicle securing each Receivable from the security interest
granted by such Receivable in whole or in part except in the event of payment in
full by the Obligor thereunder or repossession, nor shall the Servicer impair
the rights of the Certificateholders in such Receivables, nor shall the Servicer
amend a Receivable, except that extensions may be granted in accordance with
Section 3.2.
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SECTION 3.7. Purchase of Receivables Upon Breach. The Servicer or the
Trustee shall inform the other party and the Certificate Insurer promptly, in
writing, upon the discovery of any breach of Section 3.2, 3.4, 3.5 or 3.6;
provided, however, that the failure to give such notice shall not affect any
obligation of the Servicer hereunder. Unless the breach shall have been cured by
the last day of the second Collection Period following such discovery (or, at
the Servicer's election, the last day of the first following Collection Period),
the Servicer shall purchase any Receivable materially and adversely affected by
such breach. In consideration of the purchase of such Receivable, the Servicer
shall remit the Purchase Amount in the manner specified in Section 4.5. The sole
remedy of the Trustee, the Trust, the Certificate Insurer or the
Certificateholders with respect to a breach of Section 3.2, 3.4, 3.5 or 3.6
shall be to require the Servicer to repurchase Receivables pursuant to this
Section 3.7; provided, however, that the Servicer shall indemnify the Trustee,
the Standby Servicer, the Collateral Agent, the Certificate Insurer, the Trust
and the Certificateholders against all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach. If it is
determined that the management, administration and servicing of the Receivables
and operation of the Trust pursuant to this Agreement constitutes a violation of
the prohibited transaction rules of ERISA or the Code to which no statutory
exception or administrative exemption applies, such violation shall not be
treated as a breach of Section 3.2, 3.4, 3.5 or 3.6 if not otherwise such a
breach.
SECTION 3.8. Servicing Fee. (a) The Servicing Fee for the initial
Distribution Date shall equal the product of (i) one twelfth of the Servicing
Rate, (ii) the Original Pool Balance and (iii) a fraction, the numerator of
which is the number of days from and including the Closing Date to and including
the last day of the initial Collection Period and the denominator of which is
30. Thereafter, the Servicing Fee for a Distribution Date shall equal the
product of (x) one twelfth of the Servicing Rate and (y) the Pool Balance as of
the last day of the second preceding Collection Period. The Servicing Fee shall
also include all late fees, prepayment charges including, in the case of a Rule
of 78's Receivable that is prepaid in full, to the extent not required by law to
be remitted to the related Obligor, the difference between the Principal Balance
of such Rule of 78's Receivable (plus accrued interest to the date of
prepayment) and the principal balance of such Receivable computed according to
the "Rule of 78's", and other administrative fees or similar charges allowed by
applicable law with respect to Receivables, collected (from whatever source) on
the Receivables.
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(b) On or prior to each Distribution Date, CPS shall deposit into the
Collection Account, out of its own funds without any right of reimbursement
therefor, an amount (the "Adjusted Compensating Interest") equal to the positive
difference, if any, between (i) Compensating Interest for the prior Collection
Period and (ii) the amount on deposit in the Spread Account.
SECTION 3.9. Servicer's Certificate. By 10:00 a.m., Minneapolis time, on
each Determination Date, the Servicer shall deliver to the Trustee, the
Certificate Insurer, the Rating Agencies and the Seller a Servicer's Certificate
containing all information necessary to make the distributions pursuant to
Section 4.6 (including, if required, withdrawals from or deposits to the
Payahead Account and withdrawals from the Spread Account) for the Collection
Period preceding the date of such Servicer's Certificate and all information
necessary for the Trustee to send statements to Certificateholders and the
Certificate Insurer pursuant to Section 4.8. Receivables to be purchased by the
Servicer or to be purchased by CPS shall be identified by the Servicer by
account number with respect to such Receivable (as specified in Schedule A).
SECTION 3.10. Annual Statement as to Compliance: Notice of Default. (a)
The Servicer shall deliver to the Trustee and the Certificate Insurer, on or
before July 31 of each year beginning July 31, 1998, an Officer's Certificate,
dated as of March 31 of such year, stating that (i) a review of the activities
of the Servicer during the preceding 12-month period (or, in the case of the
first such certificate, the period from the Cutoff Date to March 31, 1998) and
of its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year (or, in the case of the first such certificate, such
shorter period), or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. The Trustee shall send a copy of such certificate and the
report referred to in Section 3.11 to the Rating Agencies. The Trustee shall
forward a copy of such certificate as well as the report referred to in Section
3.11 to each Certificateholder.
(b) The Servicer shall deliver to the Trustee, the Certificate Insurer
and the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than 2 Business Days thereafter, written notice in an
Officer's Certificate of any event which with the giving of notice or lapse of
time, or both, would become an Event of Default under Section 9.1.
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The Seller shall deliver to the Trustee, the Certificate Insurer and the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than 5 Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Default under clause (ii) of Section 9.1.
The Trustee shall deliver to each Certificateholder a copy of each
notice delivered to it by the Servicer or the Seller pursuant to this Section
3.10(b).
SECTION 3.11. Annual Independent Certified Public Accountant's Report.
The Servicer shall cause a firm of nationally recognized independent certified
public accountants, who may also render other services to the Servicer or to the
Seller, to deliver to the Trustee, the Certificateholders and the Certificate
Insurer on or before July 31 of each year beginning July 31, 1998, a report
dated as of March 31 of such year and reviewing the Servicer's activities during
the preceding 12-month period (or, in the case of the first such report, the
period from the Cutoff Date to March 31, 1998), addressed to the Board of
Directors of the Servicer and to the Trustee and the Certificate Insurer, to the
effect that such firm has examined the financial statements of the Servicer and
issued its report therefor and that such examination (1) was made in accordance
with generally accepted auditing standards, and accordingly included such tests
of the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances; (2) included tests relating to auto
loans serviced for others in accordance with the requirements of the Uniform
Single Audit Program for Mortgage Bankers (the "Program"), to the extent the
procedures in the Program are applicable to the servicing obligations set forth
in this Agreement; (3) included an examination of the delinquency and loss
statistics relating to the Servicer's portfolio of automobile and light truck
installment sales contracts; and (4) except as described in the report,
disclosed no exceptions or errors in the records relating to automobile and
light truck loans serviced for others that, in the firm's opinion, paragraph
four of the Program requires such firm to report. The accountant's report shall
further state that (1) a review in accordance with agreed upon procedures was
made of three randomly selected Servicer Certificates; (2) except as disclosed
in the report, no exceptions or errors in the Servicer Certificates were found;
and (3) the delinquency and loss information, relating to the Receivables
contained in the Servicer Certificates were found to be accurate.
The Report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
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SECTION 3.12. Reserved.
SECTION 3.13. Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer, and expenses incurred in connection with distributions and reports
to Certificateholders.
SECTION 3.14. Retention and Termination of Servicer. The Servicer hereby
covenants and agrees to act as such under this Agreement for an initial term
commencing on the Closing Date and ending on June 30, 1997, which term shall be
automatically extended by the Certificate Insurer for successive terms of ninety
(90) days each as specified in a writing delivered by the Certificate Insurer
prior to the expiration of each current term to the Servicer and the Trustee
which provides that the Servicer will be automatically extended for a succeeding
ninety (90) day term unless an Event of Default shall have occurred and be
continuing, in which case the Certificate Insurer may extend the Servicer in its
sole discretion (or, at the discretion of the Certificate Insurer exercised
pursuant to revocable written standing instructions from time to time to the
Servicer and the Trustee, for any specified number of terms greater than one),
until the termination of the Trust. Each such notice (including each notice
pursuant to standing instructions, which shall be deemed delivered at successive
ninety (90) day intervals for so long as such instructions are in effect) (a
"Servicer Extension Notice") shall be delivered by the Certificate Insurer to
the Trustee and the Servicer. The Servicer hereby agrees that, upon its receipt
of any such Servicer Extension Notice, the Servicer shall become bound, for the
duration of the term covered by such Servicer Extension Notice, to continue as
the Servicer subject to and in accordance with the other provisions of this
Agreement. At such time as the Class A Certificates have been paid in full and
all outstanding Reimbursement Obligations and other amounts owed to the
Certificate Insurer have been paid in full, the term of the Servicer's
appointment hereunder shall be deemed to have been extended until the
termination of the Trust (unless such appointment is terminated sooner in
accordance with the terms of this Agreement). If an Insurer Default has occurred
and is continuing, the term of the Servicer's appointment hereunder shall be
deemed to have been extended until such time, if any, as such Insurer Default
has been cured unless such appointment is terminated sooner in accordance with
the terms of this Agreement).
SECTION 3.15. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Trustee, the
Certificateholders and the Certificate Insurer reasonable access to
documentation and
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computer systems and information regarding the Receivables. The Servicer shall
provide such access to any Certificateholder only (i) in such cases where the
Servicer is required by applicable statutes or regulations (whether applicable
to the Servicer or to such Certificateholder) to permit such Certificateholder
to review such materials and (ii) if an Insurer Default shall have occurred and
be continuing. In each case, such access shall be afforded without charge but
only upon reasonable request and during normal business hours. Nothing in this
Section 3.15 shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors, and
the failure of the Servicer to provide access as provided in this Section 3.15
as a result of such obligation shall not constitute a breach of this Section
3.15.
SECTION 3.16. Verification of Servicer's Certificate. (a) On or before
the fifth calendar day of each month, the Servicer will deliver to the Trustee
and the Standby Servicer a computer diskette (or other electronic transmission)
in a format acceptable to the Trustee and the Standby Servicer containing
information with respect to the Receivables as of the close of business on the
last day of the preceding Collection Period which information is necessary for
preparation of the Servicer's Certificate. The Standby Servicer shall use such
computer diskette (or other electronic transmission) to verify certain
information specified in Section 3.16(b) contained in the Servicer's Certificate
delivered by the Servicer, and the Standby Servicer shall notify the Servicer
and the Certificate Insurer of any discrepancies on or before the second
Business Day following the Determination Date. In the event that the Standby
Servicer reports any discrepancies, the Servicer and the Standby Servicer shall
attempt to reconcile such discrepancies prior to the second Business Day prior
to the related Distribution Date, but in the absence of a reconciliation, the
Servicer's Certificate shall control for the purpose of calculations and
distributions with respect to the related Distribution Date. In the event that
the Standby Servicer and the Servicer are unable to reconcile discrepancies with
respect to a Servicer's Certificate by the related Distribution Date, the
Servicer shall cause a firm of independent certified public accountants, at the
Servicer's expense, to audit the Servicer's Certificate and, prior to the fifth
calendar day of the following month, reconcile the discrepancies. The effect, if
any, of such reconciliation shall be reflected in the Servicer's Certificate for
such next succeeding Determination Date. Other than the duties specifically set
forth in this Agreement, the Standby Servicer shall have no obligations
hereunder, including, without limitation, to supervise, verify, monitor or
administer the performance of the Servicer. The Standby Servicer shall have no
liability for any actions taken or omitted by the Servicer. The duties and
obligations of the Standby Servicer shall be
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determined solely by the express provisions of this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Standby
Servicer.
(b) The Standby Servicer shall review each Servicer's Certificate
delivered pursuant to Section 3.16(a) and shall:
(i) confirm that such Servicer's Certificate is complete on
its face;
(ii) load the computer diskette (which shall be in a format
acceptable to the Standby Servicer) received from the Servicer pursuant
to Section 3.16(a) hereof, confirm that such computer diskette is in a
readable form and calculate and confirm the Principal Balance of each
Receivable for the most recent Distribution Date;
(iii) confirm that the Total Distribution Amount, the Class A
Distributable Amount, the Class A Principal Distributable Amount, the
Class A Interest Distributable Amount, the Class B Distributable Amount,
the Class B Interest Distributable Amount, the Class B Principal
Distributable Amount, the Standby Fee, the Servicing Fee, the Trustee
Fee, the amount on deposit in the Spread Account, and the Premium in the
Servicer's Certificate are accurate based solely on the recalculation of
the Servicer's Certificate; and
(iv) confirm the calculation of the performance tests
set forth in the Spread Account Agreement.
SECTION 3.17. Fidelity Bond. The Servicer shall maintain a fidelity bond
in such form and amount as is customary for entities acting as custodian of
funds and documents in respect of consumer contracts on behalf of institutional
investors.
SECTION 3.18. Delegation of Duties. The Servicer may at any time
delegate duties under this Agreement to sub-contractors who are in the business
of servicing automotive receivables with the prior written consent of the
controlling party as determined pursuant to Section 12.11 and (unless an
Insurance Agreement Event of Default shall have occurred and be continuing or
Norwest Bank Minnesota, National Association shall then be the Servicer) the
Holders of Class B Certificates evidencing at least 51% of the Class B
Certificate Balance; provided, however, that no such delegation or
sub-contracting of duties by the Servicer shall relieve the Servicer of its
responsibility with respect to such duties; and provided further, that the
consent of the Holders of the requisite percentage of the Class B Certificate
Balance shall not be unreasonably withheld or delayed and shall be deemed to
have been given unless, on or before the Objection Date (as
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defined below), the Trustee shall have received Objection Notices (as defined
below) from Holders of Class B Certificates representing more than 50% of the
Class B Certificate Balance. Upon written request of the Servicer, the Trustee
shall deliver to each Class B Certificateholder of record as of the most recent
Record Date a notice (a "Delegation Notice") prepared by the Servicer (i)
specifying the duties the Servicer proposes to delegate, (ii) identifying the
sub-contractor to whom it proposes to delegate such duties and (iii) informing
such Class B Certificateholder that if it wishes to object to the proposed
delegation of duties, it must deliver a written notice of objection (specifying
in reasonable detail the reasons for its objection; such notice of objection an
"Objection Notice") on or before the date specified in such Delegation Notice
(the "Objection Date"), which Objection Date shall be a date which is not more
than 10 Business Days after the date the Servicer delivers such Delegation
Notice to the Trustee.
ARTICLE IV
Distributions, Spread Account;
Statements to Certificateholders
SECTION 4.1. Accounts; Post-Office Box. (a) The Trustee shall establish
the Lock-Box Account in the name of the Trustee for the benefit of the
Certificateholders and the Certificate Insurer, provided that pursuant to the
Lock-Box Agreement, the Lock-Box Processor and no other Person, save the
Trustee, has authority to direct disposition of funds on deposit in the Lock-
Box Account consistent with the provisions of this Agreement and the Lock-Box
Agreement. The Trustee shall have no liability or responsibility with respect to
the Lock-Box Processor's directions or activities as set forth in the preceding
sentence. The Lock-Box Account shall be established pursuant to and maintained
in accordance with the Lock-Box Agreement and shall be a demand deposit account
initially established and maintained with Bank of America, or at the request of
the Certificate Insurer (unless an Insurer Default shall have occurred and be
continuing) an Eligible Account satisfying clause (i) of the definition thereof;
provided, however, that the Trustee shall give the Servicer prior written notice
of any change made at the request of the Certificate Insurer in the location of
the Lock- Box Account. The Trustee shall establish and maintain the Post- Office
Box at a United States Post Office Branch in the name of the Trustee for the
benefit of the Certificateholders and the Certificate Insurer.
In the event the Servicer shall for any reason no longer be acting as
such, the Standby Servicer or a successor Servicer shall thereupon assume all of
the rights and obligations of the
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outgoing Servicer under the Lock-Box Agreement. In such event, the successor
Servicer shall be deemed to have assumed all of the outgoing Servicer's interest
therein and to have replaced the outgoing Servicer as a party to the Lock-Box
Agreement to the same extent as if such Lock-Box Agreement had been assigned to
the successor Servicer, except that the outgoing Servicer shall not thereby be
relieved of any liability or obligations on the part of the outgoing Servicer to
the Lock-Box Bank under such Lock-Box Agreement. The outgoing Servicer shall,
upon request of the Trustee, but at the expense of the outgoing Servicer,
deliver to the successor Servicer all documents and records relating to the
Lock-Box Agreement and an accounting of amounts collected and held by the
Lock-Box Bank and otherwise use its best efforts to effect the orderly and
efficient transfer of any Lock-Box Agreement to the successor Servicer. In the
event that the Certificate Insurer (so long as an Insurer Default shall not have
occurred and be continuing) or Holders of Certificates evidencing more than 50%
of the Class A Certificate Balance (if an Insurer Default shall have occurred
and be continuing) shall elect to change the identity of the Lock-Box Bank, the
Servicer, at its expense, shall cause the Lock-Box Bank to deliver, at the
direction of the Certificate Insurer (so long as an Insurer Default shall not
have occurred and be continuing) or Holders of Certificates evidencing more than
50% of the Class A Certificate Balance (if an Insurer Default shall have
occurred and be continuing) to the Trustee or a successor Lock-Box Bank, all
documents and records relating to the Receivables and all amounts held (or
thereafter received) by the Lock-Box Bank (together with an accounting of such
amounts) and shall otherwise use its best efforts to effect the orderly and
efficient transfer of the lock-box arrangements.
In addition, the Trustee shall establish, with itself, the Collection
Account, the Policy Payments Account, and the Certificate Account in the name of
the Trustee for the benefit of the Certificateholders and the Certificate
Insurer. In addition, the Trustee shall establish with itself the Payahead
Account in the name of the Trustee for the benefit of Obligors of Rule of 78's
Receivables who make payments thereon in excess of Scheduled Payments and
applicable late fees and for the benefit, to the extent of earnings on
investments of funds in the Payahead Account, of the Certificateholders. The
Payahead Account shall not be included in the Trust. The Collection Account, the
Policy Payments Account, the Certificate Account and the Payahead Account shall
be Eligible Accounts initially established with the Trustee; provided, however,
if any of such accounts shall cease to be an Eligible Account, the Servicer,
with the consent of the Certificate Insurer, within 5 Business Days shall, cause
such accounts to be moved to an institution so that such account meets the
definition of Eligible Account. The Servicer shall promptly
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notify the Rating Agencies of any change in the location of any of the
aforementioned accounts.
All amounts held in the Collection Account and the Payahead Account
shall be invested by the Trustee at the written direction of the Servicer in
Eligible Investments in the name of the Trustee as trustee of the Trust and
shall mature no later than one Business Day immediately preceding the
Distribution Date next succeeding the date of such investment. Such written
direction shall certify that any such investment is authorized by this Section.
No investment may be sold prior to its maturity. Amounts in the Policy Payments
Account and the Certificate Account shall not be invested. The amount of
earnings on investments of funds in the Collection and Payahead Accounts during
the Collection Period related to each Distribution Date shall be deposited into
the Certificate Account, on each Distribution Date, and shall be available for
distribution pursuant to Section 4.6(c).
(b) The Trustee shall on or prior to each Distribution Date (and prior
to the transfer from the Collection Account to the Certificate Account described
in Section 4.6(a)) transfer from the Collection Account to the Payahead Account
all Payaheads as described in Section 4.3 received by the Servicer during the
Collection Period.
SECTION 4.2. Collections. On each Business Day, pursuant to the Lock-Box
Agreement, the Lock-Box Processor will transfer any payments from Obligors
received in the Post-Office Box to the Lock-Box Account. Within two Business
Days of receipt of funds into the Lock-Box Account, the Servicer shall cause the
Lock-Box Bank to transfer funds from the Lock-Box Account to the Collection
Account. In addition, the Servicer shall remit all payments by or on behalf of
the Obligors received by the Servicer with respect to the Receivables (other
than Purchased Receivables), and all Liquidation Proceeds no later than the
Business Day following receipt directly (without deposit into any intervening
account) into the Lock-Box Account or the Collection Account.
SECTION 4.3. Application of Collections. All collections for each
Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Purchased Receivable),
payments by or on behalf of the Obligor shall be applied, in the case of a Rule
of 78's Receivable, first, to the Scheduled Payment of such Rule of 78's
Receivable and, second, to any late fees accrued with respect to such Rule of
78's Receivable and, in the case of a Simple Interest Receivable, to interest
and principal in accordance with the Simple Interest
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Method. With respect to any Rule of 78's Receivable, any remaining excess shall
be added to the Payahead Balance, and shall be applied to prepay the Rule of
78's Receivable, but only if the sum of such excess and the previous Payahead
Balance shall be sufficient to prepay the Rule of 78's Receivable in full.
Otherwise, any such remaining excess payments with respect to a Rule of 78's
Receivable shall constitute a Payahead, and shall increase the Payahead Balance.
SECTION 4.4. Payaheads. As of the close of business on the last day of
each Collection Period, if the payments by or on behalf of the Obligor on a Rule
of 78's Receivable (other than a Purchased Receivable) shall be less than the
Scheduled Payment and accrued late fees with respect to such Receivable, the
Payahead Balance of an Obligor shall be applied by the Servicer to the extent of
the shortfall and such Payahead Balance shall be reduced accordingly.
SECTION 4.5. Additional Deposits. The Servicer or CPS, as the case may
be, shall deposit or cause to be deposited in the Collection Account the
aggregate Purchase Amount with respect to Purchased Receivables and the Servicer
shall deposit therein all amounts to be paid under Section 3.8(b) or 11.2. All
such deposits shall be made, in immediately available funds, on the Business Day
preceding the Determination Date. On or before the third Business Day preceding
each Distribution Date, the Trustee shall remit to the Collection Account any
amounts delivered to the Trustee by the Collateral Agent pursuant to Section
4.7.
SECTION 4.6. Distributions; Policy Claims. (a) On each Distribution
Date, the Trustee shall cause to be made the following transfers and
distributions based solely on the amounts set forth in the Servicer's
Certificate for the related Distribution Date:
(i) From the Collection Account to the Certificate Account,
in immediately available funds, those funds that were deposited in the
Collection Account, plus earnings on investments of funds in the
Collection Account pursuant to Section 4.1(a), for the Collection Period
related to such Distribution Date.
(ii) From the Payahead Account, to the Certificate Account,
in immediately available funds, the aggregate previous Payaheads to be
applied to Scheduled Payments on Rule of 78's Receivables or prepayments
for the related Collection Period pursuant to Sections 4.3 and 4.4, plus
earnings on investments of funds in the Payahead Account, for the
related Collection Period, pursuant to Section 4.1(a).
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(b) Prior to each Distribution Date, the Servicer shall on the related
Determination Date calculate the Total Distribution Amount, the Class A
Distributable Amount, the Class A Interest Distributable Amount, the Class A
Principal Distributable Amount, the Class B Interest Distributable Amount and
the Class B Principal Distributable Amount, and, based on the Total Distribution
Amount, and the other distributions to be made on such Distribution Date,
determine the amount distributable to the Certificateholders of each class.
(c) On each Distribution Date, the Trustee (based on the information
contained in the Servicer's Certificate delivered on the related Determination
Date pursuant to Section 3.9) shall, subject to subsection (d) hereof, make the
following distributions in the following order of priority:
(i) to the Servicer, from the Total Distribution Amount, any
amount deposited into the Collection Account pursuant to Section 4.7(a),
and any amount deposited into the Collection Account pursuant to Section
4.11(i) in respect of Servicing Fees, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods; provided, however, that as
long as CPS is the Servicer and Norwest Bank Minnesota, National
Association, is the Standby Servicer, the Trustee shall first pay to the
Standby Servicer out of the Servicing Fee otherwise payable to CPS an
amount equal to the Standby Fee;
(ii) in the event the Standby Servicer becomes the successor
Servicer, to the Standby Servicer, from the Total Distribution Amount
(as such Total Distribution Amount has been reduced by payments pursuant
to clause (i) above) and any amount deposited into the Collection
Account pursuant to Section 4.7(a), to the extent not previously paid by
the predecessor Servicer pursuant to Section 9.2, reasonable transition
expenses (up to a maximum of $50,000) incurred in acting as successor
Servicer;
(iii) to the Trustee, from the Total Distribution Amount (as
such Total Distribution Amount has been reduced by payments pursuant to
clauses (i) and (ii) above), any amount deposited into the Collection
Account pursuant to Section 4.7(a), and any amount deposited into the
Collection Account pursuant to Section 4.11(i) in respect of Trustee
Fees and reasonable out-of-pocket expenses of the Trustee, the Trustee
Fee and all reasonable out-of-pocket expenses (including counsel fees
and expenses) and all unpaid Trustee Fees and all unpaid reasonable
out-of-pocket expenses (including counsel fees and expenses) from prior
Collection Periods; provided, however, that unless an Event of Default
shall have occurred and be continuing, expenses payable to
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the Trustee pursuant to this clause (iii) and expenses payable to the
Collateral Agent pursuant to clause (iv) below, shall be limited to
$50,000 per annum;
(iv) to the Collateral Agent, from the Total Distribution
Amount (as such Total Distribution Amount has been reduced by payments
pursuant to clauses (i) through (iii) above), any amount deposited into
the Collection Account pursuant to Section 4.7(a), and any amount
deposited into the Collection Account pursuant to Section 4.11(i) in
respect of fees and expenses of the Collateral Agent, all fees and
expenses payable to the Collateral Agent with respect to such
Distribution Date pursuant to the Spread Account Agreement;
(v) to the Class A Certificateholders, from the Total
Distribution Amount (as such Total Distribution Amount has been reduced
by payments pursuant to clauses (i) through (iv) above) and any amount
deposited into the Collection Account pursuant to Sections 4.7(a) and
4.11(iii), an amount equal to the sum of the Class A Interest
Distributable Amount and any Class A Interest Carryover Shortfall as of
the close of the preceding Distribution Date;
(vi) to the Class B Certificateholders, from the Total
Distribution Amount (as such Total Distribution Amount has been reduced
by payments pursuant to clauses (i) through (v) above) and any amount
deposited into the Collection Account pursuant to Section 4.7(c), an
amount equal to the sum of the Class B Interest Distributable Amount and
any Class B Interest Carryover Shortfall as of the close of the
preceding Distribution Date;
(vii) to the Class A Certificateholders, from the Total
Distribution Amount (as such Total Distribution Amount has been reduced
by payments pursuant to clauses (i) through (vi) above), any amount
deposited into the Collection Account pursuant to Section 4.7(a), and
any amount deposited into the Collection Account pursuant to Section
4.11(ii) or (iii), an amount equal to the sum of the Class A Principal
Distributable Amount and any Class A Principal Carryover Shortfall as of
the close of the preceding Distribution Date with respect to each
Distribution Date;
(viii) to the Certificate Insurer, from the Total Distribution
Amount (as such Total Distribution Amount has been reduced by payments
made pursuant to clauses (i) through (vii) above), and any amount
deposited into the Collection Account pursuant to Section 4.7(a), an
amount equal to the Reimbursement Obligations;
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(ix) in the event any Person other than the Standby Servicer
becomes the successor Servicer, to such successor Servicer, from the
Total Distribution Amount (as such Total Distribution Amount has been
reduced by payments pursuant to clause (i) above) and any amount
deposited into the Collection Account pursuant to Section 4.7(a), to the
extent not previously paid by the predecessor Servicer pursuant to
Section 9.2, reasonable transition expenses (up to a maximum of $50,000)
incurred in acting as successor Servicer;
(x) to the Class B Certificateholders, from the Total
Distribution Amount (as such Total Distribution Amount has been reduced
by payments pursuant to clauses (i) through (viii) above) and any amount
deposited into the Collection Account pursuant to Section 4.7(c), an
amount equal to the sum of the Class B Principal Distributable Amount
and any Class B Principal Carryover Shortfall as of the close of the
preceding Distribution Date; and
(xi) to the Collateral Agent, for deposit into the Spread
Account, the remaining Total Distribution Amount, if any.
(d) The rights of the Class B Certificateholders to receive
distributions in respect of the Class B Certificates pursuant to Section
4.6(c)(vi) on a Distribution Date shall be and hereby are subordinated to the
payment of the amounts distributable pursuant to Sections 4.6(c)(i) through (v).
The rights of the Class B Certificateholders to receive distributions in respect
of the Class B Certificates pursuant to Section 4.6(c)(x) on a Distribution Date
shall be and hereby are subordinated to the payment of the amounts distributable
pursuant to Sections 4.6(c)(i) through (ix). At such time as the Class A
Certificates are paid in full and the Certificate Insurer has received payment
in full for all outstanding Reimbursement Obligations and any other amounts owed
to the Certificate Insurer, the Class B Certificateholders shall be entitled to
exercise all rights granted to the Class A Certificateholders under this
Agreement to the extent that the exercise of such rights does not conflict with
the provisions of the Spread Account Agreement.
(e) (i) In the event that the Trustee has delivered a Deficiency Notice
with respect to any Determination Date pursuant to Section 4.7(a), the Trustee
shall determine on the third Business Day (the "Draw Date") preceding the
related Distribution Date the Policy Claim Amount, if any, for such Distribution
Date. Amounts paid by the Certificate Insurer pursuant to a claim submitted
under this Section 4.6(e)(i) shall be deposited by the Trustee into the Policy
Payments Account and thereafter into the Certificate Account for payment to
Class A Certificateholders in
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respect of the Class A Guaranteed Distribution Amount on the related
Distribution Date.
(ii) Any notice delivered by the Trustee to the Certificate Insurer
pursuant to subsection 4.6(e)(i) shall specify the Policy Claim Amount claimed
under the Policy and shall constitute a "Notice of Claim" under the Policy. In
accordance with the provisions of the Policy, the Certificate Insurer is
required to pay to the Trustee the Policy Claim Amount properly claimed
thereunder by 12:00 noon, New York City time, on the later of (1) the third
Business Day following receipt on a Business Day of the Notice of Claim, and (2)
the applicable Distribution Date. Notwithstanding the provisions of Section
4.6(c), any payment made by the Certificate Insurer under the Policy shall be
applied solely to the payment of the Class A Certificates and for no other
purpose.
(iii) The Trustee shall (i) receive as attorney-in-fact of each Class A
Certificateholder any Policy Claim Amount from the Certificate Insurer and (ii)
deposit the same in the Certificate Account for disbursement to the Class A
Certificateholders as set forth in clauses (v) and (vii) of subsection 4.6(c).
Any and all Policy Claim Amounts disbursed by the Trustee from claims made under
the Policy shall not be considered payment by the Trustee or from the Spread
Account with respect to such Class A Certificates, and shall not discharge the
obligations of the Trust with respect thereto.
(iv) The Trustee shall be entitled to enforce on behalf of the Class A
Certificateholders the obligations of the Certificate Insurer under the Policy.
Notwithstanding any other provision of this Agreement, the Class A
Certificateholders are not entitled to institute proceedings directly against
the Certificate Insurer.
(f) Subject to Section 11.1 respecting the final payment upon retirement
of each Certificate, the Servicer shall on each Distribution Date instruct the
Trustee to distribute to each Certificateholder of record on the preceding
Record Date either by wire transfer, in immediately available funds to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Trustee
appropriate instructions prior to the Record Date for such Distribution Date and
such Holder's Certificates in the aggregate evidence an original principal
balance of at least $1,000,000, or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register, the amounts to be distributed to such Certificateholder pursuant to
such Holder's Certificates.
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SECTION 4.7. Withdrawals from Spread Account. (a) In the event that the
Servicer's Certificate with respect to any Determination Date shall state that
the Total Distribution Amount with respect to such Determination Date is
insufficient (taking into account the application of the Total Distribution
Amount to the payment required to be made on the related Distribution Date
pursuant to Section 4.6(c)(vi)) to make the payments required to be made on the
related Distribution Date pursuant to Section 4.6(c)(i), (ii), (iii), (iv), (v),
(vii) or (viii) (such deficiency being a "Deficiency Claim Amount"), then on the
fourth Business Day immediately preceding the related Distribution Date, the
Trustee shall deliver to the Collateral Agent, the Certificate Insurer, and the
Servicer, by hand delivery, telex or facsimile transmission, a written notice (a
"Deficiency Notice") specifying the Deficiency Claim Amount for such
Distribution Date. Such Deficiency Notice shall direct the Collateral Agent to
remit such Deficiency Claim Amount (to the extent of the funds available to be
distributed pursuant to the Spread Account Agreement) to the Trustee for deposit
in the Collection Account and distribution pursuant to Sections 4.6(c)(i), (ii),
(iii), (iv), (v), (vii) and/or (viii), as applicable.
(b) Any Deficiency Notice shall be delivered by 10:00 a.m., New York
City time, on the fourth Business Day preceding such Distribution Date. The
amounts distributed by the Collateral Agent to the Trustee pursuant to a
Deficiency Notice shall be deposited by the Trustee into the Collection Account
pursuant to Section 4.5.
(c) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that the Total Distribution Amount with respect
to such Determination Date is insufficient to make the payments required to be
made on the related Distribution Date pursuant to Section 4.6(c)(vi) or (x)
(such deficiency being a "Class B Deficiency"), then on the fourth Business Day
immediately preceding the related Distribution Date, the Trustee shall deliver
to the Collateral Agent and the Servicer, by hand delivery, telex or facsimile
transmission, a written notice specifying the amount of the Class B Deficiency
for such Distribution Date. Such notice shall direct the Collateral Agent to
remit to the Trustee an amount equal to such Class B Deficiency (but only to the
extent that, pursuant to the Spread Account Agreement, funds are required to be
released from the Spread Account to the Seller on the related Distribution Date)
for deposit into the Collection Account and distribution pursuant to Section
4.6(c)(vi) and/or Section 4.6(c)(x), as applicable, and any funds so remitted to
the Trustee shall be deemed to have been released to the Seller and paid to the
Trustee at the direction of the Seller.
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SECTION 4.8. Statements to Certificateholders; Tax Returns. (a) With
each distribution from the Certificate Account to the Certificateholders made on
a Distribution Date, the Servicer shall provide to the Certificate Insurer and
to the Trustee for the Trustee to forward to each Certificateholder of record a
statement (prepared by the Servicer) substantially in the form of Exhibit D
hereto setting forth at least the following information as to the Certificates
to the extent applicable:
(i) the amount of such distribution allocable to principal of
the Class A Certificates and the Class B Certificates, respectively, in
accordance with Section 4.6;
(ii) the amount of such distribution allocable to interest on the
Class A Certificates and the Class B Certificates, respectively, in
accordance with Section 4.6;
(iii) the amount of such distribution allocable to principal of
the Class A Certificates and the Class B Certificates, respectively, for
federal income tax purposes as provided in Section 4.13;
(iv) the amount of such distribution allocable to interest on the
Class A Certificates and the Class B Certificates, respectively, for
federal income tax purposes as provided in Section 4.13;
(v) the Pool Balance, the Class A Pool Factor and the Class B
Pool Factor as of the close of business on the last day of the preceding
Collection Period;
(vi) the Class A Certificate Balance and the Class B Certificate
Balance as of the close of business on the last day of the preceding
Collection Period, after giving effect to payments allocated to
principal reported under (i) above;
(vii) the amount of the Servicing Fee (inclusive of the Standby
Fee paid to the Standby Servicer) paid to the Servicer with respect to
the related Collection Period, the Class A Percentage of the Servicing
Fee (inclusive of the Standby Fee), the Class B Percentage of the
Servicing Fee (inclusive of the Standby Fee) and the amount of any
unpaid Servicing Fees (inclusive of the Standby Fee) and the change in
such amount from that of the prior Distribution Date;
(viii) the amount of the Class A Interest Carryover Shortfall,
if applicable, on such Distribution Date and the Class A Principal
Carryover Shortfall, if applicable, on such Distribution Date, and the
change in such amounts from the prior Distribution Date;
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(ix) the amount of the Class B Interest Carryover Shortfall,
if applicable, on such Distribution Date and the amount of the Class B
Principal Carryover Shortfall, if applicable, on such Distribution Date,
and the change in such amounts from the prior Distribution Date;
(x) the amount paid, if any, to Class A Certificateholders from
funds received under the Policy for such Distribution Date;
(xi) the amount distributable to the Certificate Insurer on such
Distribution Date;
(xii) the aggregate amount in the Payahead Account and the
Spread Account and the change in such amount from the preceding
Distribution Date;
(xiii) the number of Receivables and the aggregate gross amount
scheduled to be paid thereon, including unearned finance and other
charges, for which the related Obligors are delinquent in making
scheduled payments between 31 and 59 days and 60 days or more;
(xiv) the number and the aggregate Purchase Amount of
Receivables that became Purchased Receivables during the related
Collection Period and summary information as to losses and delinquencies
with respect to the Receivables; and
(xv) the cumulative amount of Liquidated Receivables, net of
Recoveries, since the Cutoff Date to the last day of the related
Collection Period.
Each amount set forth pursuant to subclauses (i), (ii), (vii), (viii) and (ix)
above shall be expressed as a dollar amount per $1,000 of original principal
balance of a Certificate.
(b) Within thirty days after the end of each calendar year, the Trustee
shall, provided it has received the necessary information from the Servicer,
furnish to each Person who at any time during such calendar year was a
Certificateholder of record and received any payment thereon (a) a report
(prepared by the Servicer) as to the aggregate of amounts reported pursuant to
(i), (ii), (iii), (iv) and (vii) of this Section 4.8 for such calendar year or
applicable portion thereof during which such Person was a Certificateholder, and
(b) such information as may be reasonably requested by the Certificateholders or
required by the Code and regulations thereunder, to enable such Holders to
prepare their Federal and State income tax returns. The obligation of the
Trustee set forth in this paragraph shall be deemed to have been satisfied to
the extent that substantially
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comparable information shall be provided by the Servicer pursuant to any
requirements of the Code.
(c) The Servicer, at its own expense, shall cause a firm of nationally
recognized accountants to prepare any tax returns required to be filed by the
Trust, and the Trustee shall execute and file such returns if requested to do so
by the Servicer. The Trustee upon request, will furnish the Servicer with all
such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust.
SECTION 4.9. Policy Payments; Subrogation. (a) The Trustee shall keep a
complete and accurate record of the amount of insurance payments made in
reduction of the Class A Certificate Balance and in payment of the Class A
Interest Distributable Amount and Class A Principal Distributable Amount
pursuant to the Policy. The Certificate Insurer shall have the right to inspect
such records at reasonable times upon one Business Day's prior notice to the
Trustee.
(b) Subject to and conditioned upon payment of any interest or principal
with respect to the Class A Certificates by or on behalf of the Certificate
Insurer, the Trustee on behalf of the Class A Certificateholders shall assign,
and the Class A Certificateholders, by reason of their acquisition and holding
of the Class A Certificates, are hereby deemed to have assigned to the
Certificate Insurer all rights to the payment of the Class A Interest
Distributable Amount and Class A Principal Distributable Amount which are then
due for payment to the extent of all payments made by the Certificate Insurer.
The Certificate Insurer (for so long as no Insurer Default shall have occurred
and be continuing) may exercise any option, vote, right, power or the like with
respect to the Class A Certificates to the extent it has made a principal
payment pursuant to the Policy. The Trustee and the Class A Certificateholders,
by reason of their acquisition and holding of the Class A Certificates, agree
that the Certificate Insurer shall be subrogated to all of the rights to payment
of the Class A Certificateholders or in relation thereto to the extent that any
payment of principal or interest was made to such Class A Certificateholders
with payments made under the Policy by the Certificate Insurer in accordance
with the provisions hereof.
SECTION 4.10. Reliance on Information from the Servicer. Notwithstanding
anything to the contrary contained in this Agreement, all distributions from any
of the accounts described in this Article IV and any transfer of amounts between
such accounts shall be made by the Trustee in reliance on information provided
to the Trustee by the Servicer in writing, whether by way of a Servicer's
Certificate or otherwise.
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SECTION 4.11. Optional Deposits by the Certificate Insurer; Notice of
Waivers. (a) The Certificate Insurer shall at any time, and from time to time,
with respect to a Distribution Date, have the option (but shall not be required,
except as provided in Section 4.6(e)) to deliver amounts to the Trustee for
deposit into the Collection Account for any of the following purposes: (i) to
provide funds in respect of the payment of fees or expenses of any provider of
services to the Trust with respect to such Distribution Date, (ii) to distribute
as a component of the Class A Principal Distributable Amount to the extent that
the Class A Certificate Balance as of the Determination Date preceding such
Distribution Date exceeds the Class A Percentage of the Pool Balance as of such
Determination Date, or (iii) to include such amount as part of the Total
Distribution Amount for such Distribution Date to the extent that without such
amount a draw would be required to be made on the Policy.
(b) If the Certificate Insurer waives the satisfaction of any of the
events that might trigger an event of default under the Insurance Agreement and
so notifies the Trustee in writing pursuant to Section 5.02(d) of the Insurance
Agreement, the Trustee shall notify ▇▇▇▇▇'▇ of such waiver.
SECTION 4.12. Federal Income Tax Requirements. For federal income tax
purposes only, notwithstanding anything to the contrary contained in this
Agreement, an amount with respect to each period equal to (a) the amounts
received by on the Distribution Date on account of the Class B Interest
Distributable Amount or any outstanding Class B Interest Carryover Shortfall,
minus (b) the Applied Principal with respect to such Distribution Date, plus (c)
the amount of any Applied Principal Reduction Amount with respect to such
Distribution Date shall be characterized as interest income. Each Class B
Certificateholder and each Class B Certificate Owner, by its acceptance of a
Class B Certificate or a beneficial interest therein agrees that it will report
interest income in respect of its Class B Certificates in accordance with such
characterization.
ARTICLE V
Reserved
ARTICLE VI
The Certificates
SECTION 6.1. The Certificates. The Class A Certificates shall be issued
in minimum denominations of $1,000 and integral
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multiples thereof and the Class B Certificates shall be issued in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
The Certificates shall be executed by the Trustee on behalf of the Trust by
manual or facsimile signature of a Trustee Officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trustee,
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates.
SECTION 6.2A. Appointment of Paying Agent. The Trustee may act as or
appoint one or more paying agents (each, a "Paying Agent"). The Paying Agent
shall make distributions to Certificateholders from amounts delivered by the
Trustee to the Paying Agent from amounts on deposit in the Certificate Account
pursuant to Article IV. Either the Trustee or the Certificate Insurer may remove
the Paying Agent if such Person determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Paying Agent shall initially be the Trustee. A
co-paying agent may be chosen by the Trustee. Any co-paying agent or any
successor Paying Agent shall be permitted to resign as Paying Agent, co-paying
agent or successor Paying Agent, as the case may be, upon 30 days' written
notice to the Trustee, the Seller and the Certificate Insurer. In the event that
the Trustee, any co-paying agent or any successor Paying Agent shall no longer
be the Paying Agent, co-paying agent or successor Paying Agent, as the case may
be, the Trustee, with the Certificate Insurer's reasonable consent, shall
appoint a successor to act as Paying Agent or co-paying agent. The Trustee shall
cause each Paying Agent and each successor Paying Agent or any additional Paying
Agent appointed by the Trustee (other than the Trustee, which hereby agrees) to
execute and deliver to the Trustee an instrument in which such Paying Agent,
successor Paying Agent or additional Paying Agent shall agree with the Trustee
that, as Paying Agent, such Paying Agent, successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto in an Eligible Account (which may be maintained with such Paying Agent)
until such sums shall be paid to such Certificateholders and shall promptly
notify the Trustee of any default in making such payment. The Paying Agent shall
return all unclaimed funds to the Trustee and upon removal of a Paying Agent
shall also return all funds in its possession to the Trustee. The provisions of
Sections 10.4 and 10.5 shall apply to each Paying Agent in its role as Paying
Agent. The fees of any Paying Agent or co-paying
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agent shall be paid by the Trustee. Each Paying Agent and co- paying agent must
be acceptable to the Seller.
SECTION 6.2B. Authenticating Agent. (a) The Trustee may appoint one or
more authenticating agents with respect to the Certificates which shall be
authorized to act on behalf of the Trustee in authenticating the Certificates in
connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Certificates (the "Authenticating Agent"). Whenever reference
is made in this Agreement to the authentication of Certificates by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Seller and the Certificate
Insurer. The Trustee is hereby appointed as the initial Authenticating Agent.
(b) Any institution succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Seller. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving notice of
termination to such Authenticating Agent and to the Seller. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be acceptable to the Trustee or the Seller
or the Certificate Insurer, the Trustee may appoint a successor Authenticating
Agent. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless acceptable to the Trustee, the Seller and the Certificate Insurer.
(d) The Trustee agrees to pay to each Authenticating Agent from its own
funds from time to time reasonable compensation for its services under this
Section 6.2B.
(e) The provisions of Sections 10.4 and 10.5 shall be applicable to any
Authenticating Agent.
(f) Pursuant to an appointment made under this Section 6.2B, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate
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certificate of authentication in substantially the following form:
This is one of the Certificates described in the Pooling and Servicing
Agreement.
[ ]
as Authenticating Agent for the Trustee,
By
Authorized Signatory
SECTION 6.2. Authentication of Certificates. The Trustee shall cause the
Certificates to be executed on behalf of the Trust, authenticated, and delivered
to or upon the written order of the Seller, such written order to be signed by
its chairman of the board, its president, or any vice president, without further
corporate action by the Seller, in authorized denominations, pursuant to this
Agreement. No Certificate shall entitle its Holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A or Exhibit B hereto or in Section 6.2B, as the case may be,
executed by a Trustee Officer the Trustee by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates issued on
the Closing Date shall be dated the Closing Date. All Certificates issued upon
transfer or exchange thereafter shall be dated the date of their authentication.
SECTION 6.3. Registration of Transfer and Exchange of Certificates. (a)
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 6.7, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall be the initial Certificate
Registrar.
(b) No transfer of a Class B Certificate shall be made unless (i) the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable State securities laws are complied with,
(ii) such transfer is exempt from the registration requirements under said
Securities Act and laws or (iii) such transfer is made to a Person who the
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transferor reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A of the Securities Act) that is purchasing such Class B Certificate
for its own account or the account of a qualified institutional buyer to whom
notice is given that the transfer is being made in reliance on said Rule 144A.
In the event that a transfer is to be made in reliance upon clause (ii) above,
the Class B Certificateholder desiring to effect such transfer and such Class B
Certificateholder's prospective transferee must each (x) certify in writing to
the Trustee the facts surrounding such transfer and (y) provide the Trustee with
a written opinion of counsel in form and substance satisfactory to the Seller
and the Trustee that such transfer may be made pursuant to an exemption from the
Securities Act or laws, which Opinion of Counsel shall not be an expense of the
Seller or the Trustee. In the event that a transfer is to be made in reliance
upon clause (iii) above, the prospective transferee shall have furnished to the
Trustee and the Seller a Transferee Certificate, signed by such transferee, in
the form of Exhibit G. Neither the Seller nor the Trustee is under any
obligation to register the Class B Certificates under said Securities Act or any
other securities law. The Certificate Registrar may request and shall receive in
connection with any transfer signature guarantees satisfactory to it in its sole
discretion.
In no event shall a Class B Certificate be transferred to an employee
benefit plan, trust annuity or account subject to ERISA or a plan described in
Section 4975(e)(1) of the Code (any such plan, trust or account including any
▇▇▇▇▇ (HR-10) plans, individual retirement accounts or annuities and other
employee benefit plans subject to Section 406 of ERISA or Section 4975 of the
Code being referred to in this Section 6.3 as an "Employee Plan"), a trustee of
any Employee Plan, or an entity, account or other pooled investment fund the
underlying assets of which include or are deemed to include Employee Plan assets
by reason of an Employee Plan's investment in the entity, account or other
pooled investment fund. The foregoing restriction on sale or transfer to an
employee benefit plan shall not apply to prevent the initial issuance or sale or
subsequent transfer of the Class B Certificates to an insurance company,
insurance service, or insurance organization qualified to do business in a State
that purchases Class B Certificates with funds held in one or more of its
general accounts which is eligible for the exemptive relief afforded under
Section III of Prohibited Transaction Class Exemption 95-60. The Seller, the
Servicer, the Trustee, the Certificate Insurer and the Standby Servicer shall
not be responsible for confirming or otherwise investigating whether a proposed
purchaser is an employee benefit plan, trust or account subject to ERISA, or
described in Section 4975(e)(1) of the Code.
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(c) Each Holder of Class B Certificates, by virtue of the acquisition
and holding thereof, will be deemed to have represented and agreed as follows:
(i) It is a qualified institutional buyer as defined in Rule
144A or an institutional accredited investor as defined in Regulation D
promulgated under the Securities Act and is acquiring the Class B
Certificates for its own institutional account or for the account of a
qualified institutional buyer or an institutional accredited investor.
(ii) It understands that the Class B Certificates have been
offered in a transaction not involving any public offering within the
meaning of the Securities Act, and that, if in the future it decides to
resell, pledge or otherwise transfer any Class B Certificates, such
Class B Certificates may be resold, pledged or transferred only (a) to a
person whom the seller reasonably believes is a qualified institutional
buyer (as defined in Rule 144A under the Securities Act) that purchases
for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, (b) pursuant to an effective
registration statement under the Securities Act or (c) in reliance on
another exemption under the Securities Act.
(iii) It understands that the Class B Certificates will
bear a legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT THIS SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) SO LONG
AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, AND SUBJECT TO THE RECEIPT BY THE TRUSTEE AND THE
SELLER OF A CERTIFICATION OF THE TRANSFEREE, (2) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (3)
IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE RECEIPT BY
THE TRUSTEE OF A CERTIFICATION OF THE TRANSFEREE (SATISFACTORY TO
THE TRUSTEE) AND AN OPINION OF COUNSEL (SATISFACTORY TO THE
TRUSTEE AND THE SELLER) TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE
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SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND IN
COMPLIANCE WITH THE TRANSFER REQUIREMENTS SET FORTH IN SECTION
6.3 OF THE AGREEMENT.
IN NO EVENT SHALL A CLASS B CERTIFICATE BE TRANSFERRED TO
AN EMPLOYEE BENEFIT PLAN, TRUST ANNUITY OR ACCOUNT SUBJECT TO
ERISA OR A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE CODE, (ANY
SUCH PLAN, TRUST OR ACCOUNT BEING REFERRED TO AS AN "EMPLOYEE
PLAN"), A TRUSTEE OF ANY EMPLOYEE PLAN, OR AN ENTITY, ACCOUNT OR
OTHER POOLED INVESTMENT FUND THE UNDERLYING ASSETS OF WHICH
INCLUDE OR ARE DEEMED TO INCLUDE EMPLOYEE PLAN ASSETS BY REASON
OF AN EMPLOYEE PLAN'S INVESTMENT IN THE ENTITY, ACCOUNT OR OTHER
POOLED INVESTMENT FUND. INCLUDED WITHIN THE DEFINITION OF
"EMPLOYEE PLANS" ARE, WITHOUT LIMITATION, ▇▇▇▇▇ (HR-10) PLANS,
IRA'S (INDIVIDUAL RETIREMENT ACCOUNTS OR ANNUITIES) AND OTHER
EMPLOYEE BENEFIT PLANS, SUBJECT TO SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE. THE FOREGOING RESTRICTION ON SALE OR
TRANSFER TO AN EMPLOYEE BENEFIT PLAN SHALL NOT APPLY TO PREVENT
THE INITIAL ISSUANCE OR SALE OR SUBSEQUENT TRANSFER OF THE CLASS
B CERTIFICATES TO AN INSURANCE COMPANY, INSURANCE SERVICE, OR
INSURANCE ORGANIZATION THAT IS QUALIFIED TO DO BUSINESS IN A
STATE IF SUCH INSURANCE COMPANY PURCHASES CLASS B CERTIFICATES
WITH FUNDS HELD IN ONE OR MORE OF ITS GENERAL ACCOUNTS WHICH IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AFFORDED UNDER SECTION III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
(iv) It has not acquired the Class B Certificates with the
assets of an Employee Plan, other than an insurance company, insurance
service or insurance organization qualified to do business in a State,
which represents that the source of funds from which its investment is
to be made is a general account of an insurance company which is
eligible for the exemptive relief afforded under Section III of
Prohibited Transaction Class Exemption 95-60.
(d) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Trustee shall execute, authenticate and the
Trustee shall deliver, in the name of the designated transferee or transferees,
one or more new Certificates in authorized denominations of a like aggregate
amount dated the date of authentication. At the option of a Holder, Certificates
may be exchanged for other Certificates in authorized denominations of a like
aggregate amount upon surrender of the Certificates to be exchanged at the
Corporate Trust Office.
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Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder or his attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer and exchange shall be canceled and subsequently
disposed of by the Trustee in accordance with its customary procedures.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
SECTION 6.4. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss, or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar, the Trustee and the Certificate Insurer such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Trustee on behalf of the Trust shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. If after the delivery of such new Certificate, a bona fide
purchaser of the original Certificate in lieu of which such new Certificate was
issued presents for payment such original Certificate, the Certificate Insurer
and the Trustee shall be entitled to recover such new Certificate from the
Person to whom it was delivered or any Person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expenses incurred
by the Certificate Insurer or the Trustee or any agent of any of them in
connection therewith. In connection with the issuance of any new Certificate
under this Section 6.4, the Trustee and the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 6.4 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen, or
destroyed Certificate shall be found at any time.
SECTION 6.5. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee or the Certificate
Registrar may treat the Person in
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whose name any Certificate shall be registered as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 4.6 and for all
other purposes whatsoever, and neither the Trustee nor the Certificate Registrar
shall be bound by any notice to the contrary.
SECTION 6.6. Access to List of Certificateholders' Names and Addresses.
The Trustee shall furnish or cause to be furnished to the Servicer or the
Certificate Insurer, at the expense of the Trust, within 15 days after receipt
by the Trustee of a request therefor from the Servicer or the Certificate
Insurer, as the case may be, in writing, a list of the names and addresses of
the Certificateholders as of the most recent Record Date. If three or more Class
A Certificateholders, or one or more Holders of Class A Certificates evidencing
not less than 25% of the Class A Certificate Balance apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and such application shall be accompanied by a copy of
the communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt for such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Certificate, shall
be deemed to have agreed to hold none of the Servicer, the Certificate Insurer
or the Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 6.7. Maintenance of Office or Agency. The Trustee shall maintain
in Minneapolis, Minnesota, an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. The Trustee initially designates its office
located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
as its office for such purposes. The Trustee shall give prompt written notice to
the Servicer and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 6.8. Book-Entry Certificates. The Class A Certificates, upon
original issuance, will be issued in the form of typewritten Certificates
representing the Book-Entry Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Seller. The
Class A Certificates delivered to The Depository Trust Company shall initially
be registered on the Certificate Register in the name of CEDE & Co., the nominee
of the initial Clearing Agency, and no Certificate Owner will receive a
definitive
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certificate representing such Certificate Owner's interest in the Class A
Certificates, except as provided in Section 6.10. Unless and until definitive,
fully registered Class A Certificates (the "Definitive Certificates") have been
issued to Certificate Owners pursuant to Section 6.10:
(i) the provisions of this Section 6.8 shall be in full force
and effect;
(ii) the Seller, the Servicer, the Certificate Registrar, and the
Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Class A Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.8
conflict with any other provisions of this Agreement, the provisions of
this Section 6.8 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 6.10, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest on the Class A
Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Class A Principal Balance, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Certificate
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
Class A Certificates and has delivered such instructions to the Trustee.
SECTION 6.9. Notices to Clearing Agency. Whenever notice or other
communication to the Class A Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Owners pursuant to Section 6.10, the Trustee and the Servicer shall
give all such notices and communications specified herein to be given to Holders
of the Class A Certificates to the Clearing Agency.
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SECTION 6.10. Definitive Certificates. If (i) (A) the Seller advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the Depository Agreement and (B)
the Trustee or the Seller is unable to locate a qualified successor, (ii) the
Seller at its option, advises the Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency, or (iii) after the occurrence
of an Event of Default, the Clearing Agency at the direction of Certificate
Owners representing beneficial interests aggregating not less than 51% of the
Class A Certificate Balance, advises the Trustee in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners, than the Trustee shall notify the
Clearing Agency and request that the Clearing Agency notify all Certificate
Owners of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Class A Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the Trustee
shall issue the Definitive Certificates and deliver such Definitive Certificates
in accordance with the instructions of the Clearing Agency. Neither the Seller,
the Certificate Registrar nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder. The Trustee shall not be liable if
the Trustee or the Seller is unable to locate a qualified successor Clearing
Agency.
ARTICLE VII
The Seller
SECTION 7.1. Representations of Seller. The Seller makes the following
representations to the Certificate Insurer and the Trustee, on which the
Certificate Insurer relied in executing and delivering the Policy and on which
the Trustee on behalf of itself and the Certificateholders relied in accepting
the Receivables in trust and executing and authenticating the Certificates. The
representations speak as of the execution and delivery of this Agreement and
shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of California, with power and authority to
execute, deliver and perform its
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obligations under this Agreement and to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times, and
shall have, power, authority, and legal right to acquire and own the
Receivables.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property sold and assigned to and deposited with the Trustee as part of
the Trust and has duly authorized such sale and assignment to the
Trustee by all necessary corporate action; and the execution, delivery,
and performance of this Agreement has been duly authorized by the Seller
by all necessary corporate action.
(iv) Valid Sale; Binding Obligation. This Agreement effects a
valid sale, transfer and assignment of the Receivables and the other
property conveyed to the Trust pursuant to Section 2.2, enforceable
against creditors of and purchasers from the Seller; and this Agreement
shall constitute a legal, valid and binding obligation of the Seller
enforceable in accordance with its terms.
(v) No Violation. The execution, delivery and performance by
the Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust, or other instrument to
which the Seller is a party or by which it is bound or any of its
properties are subject; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust, or other instrument
(other than this Agreement); nor violate any law, order, rule, or
regulation applicable to the Seller of any court or of any Federal or
State regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties.
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(vi) No Proceedings. There are no proceedings or
investigations pending, or to the Seller's best knowledge, threatened,
before any court, regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller or its
properties: (A) asserting the invalidity of this Agreement or the
Certificates, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this
Agreement, (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement or the
Certificates, or (D) relating to the Seller and which might adversely
affect the Federal or State income, excise, franchise or similar tax
attributes of the Certificates.
(vii) No Consents. No consent, approval, authorization or
order of or declaration or filing with any governmental authority is
required for the issuance or sale of the Certificates or the
consummation of the other transactions contemplated by this Agreement,
except such as have been duly made or obtained.
(viii) The Seller has filed on a timely basis all tax returns
required to be filed by it and paid all taxes, to the extent that such
taxes have become due.
(ix) The Seller hereby represents and warrants to the Trustee
that the Seller's principal place of business and chief executive office
is, and for the four months preceding the date of this Agreement has
been, located at: ▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
SECTION 7.2. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement and the representations made by
the Seller in this Agreement. The Seller shall indemnify, defend, and hold
harmless the Trustee and the Standby Servicer from and against any loss,
liability or expense incurred by reason of (a) the Seller's willful misfeasance,
bad faith, or negligence in the performance of its duties under this Agreement,
or by reason of reckless disregard of its obligations and duties under this
Agreement or (b) the Seller's violation of Federal or State securities laws in
connection with the sale of the Certificates.
Indemnification under this Section 7.2 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Seller shall have made any indemnity payments to the Trustee or the
Standby Servicer pursuant to this Section and the Trustee or the Standby
Servicer
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thereafter shall collect any of such amounts from others, the Trustee or the
Standby Servicer shall repay such amounts to the Seller, without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party, or (c) which may succeed to the properties and assets
of the Seller substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Seller under this Agreement, shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any of the
parties to this Agreement; provided, however, that (i) immediately after giving
effect to such transaction, no representation or warranty made pursuant to
Section 2.5 shall have been breached and no Event of Default and no event that,
after notice or lapse of time, or both, would become an Event of Default shall
have happened and be continuing, (ii) the Seller shall have delivered to the
Certificate Insurer and the Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation, merger, or succession and such
agreement or assumption comply with this Section 7.3 and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, (iii) the Seller shall have delivered to the
Certificate Insurer and the Trustee an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interest and (iv) immediately after giving effect to such
transaction, no Insurance Agreement Event of Default and no event that, after
notice or lapse of time, or both, would become an Insurance Agreement Event of
Default shall have happened and be continuing. The Seller shall provide notice
of any merger, consolidation or succession pursuant to this Section 7.3 to each
Rating Agency and shall have received confirmation from each Rating Agency that
the then current rating of the Class A Certificates or the Class B Certificates
will not be downgraded as a result of such merger, consolidation or succession.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clause (i), (ii), (iii) or (iv)
above shall be conditions to the consummation of the transactions referred to in
clause (a), (b) or (c) above.
SECTION 7.4. Limitation on Liability of Seller and Others. The Seller
and any director or officer or employee or agent of
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the Seller may rely in good faith on the advice of counsel or on any document of
any kind, prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Seller shall not be under any obligation to
appear in, prosecute, or defend any legal action that shall not be incidental to
its obligations under this Agreement, and that in its opinion may involve it in
any expense or liability.
SECTION 7.5. Seller May Own Certificates. The Seller and any Person
controlling, controlled by, or under common control with the Seller may in its
individual or any other capacity become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Seller or an Affiliate
thereof, except as otherwise provided in the definition of "Certificateholder"
specified in Section 1.1 and in Section 1.6. Certificates so owned by or pledged
to the Seller or such controlling or commonly controlled Person shall have an
equal and proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates except as
otherwise provided herein or by the definition of Certificateholder.
ARTICLE VIII
The Servicer
SECTION 8.1. Representations of Servicer. The Servicer makes the
following representations to the Certificate Insurer and the Trustee, on which
the Certificate Insurer relies in executing and delivering the Policy, and on
which the Trustee on behalf of itself and the Certificateholders relies in
accepting the Receivables in trust and executing and authenticating the
Certificates. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of California, with power and authority to
own its properties and to conduct its business as such properties shall
be currently owned and such business is presently conducted, and had at
all relevant times, and shall have, power, authority, and legal right to
acquire, own, and service the Receivables.
(ii) Due Qualification. The Servicer is duly
qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including
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the servicing of the Receivables as required by this Agreement) shall
require such qualifications.
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery, and performance of this Agreement
has been duly authorized by the Servicer by all necessary corporate
action.
(iv) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer enforceable in accordance
with its terms.
(v) No Violation. The execution, delivery and performance by the
Servicer of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of the Servicer, or any
indenture, agreement, mortgage, deed of trust, or other instrument to
which the Servicer is a party or by which it is bound or any of its
properties are subject; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any indenture,
agreement, mortgage, deed of trust, or other instrument (other than this
Agreement); nor violate any law, order, rule, or regulation applicable
to the Servicer of any court or of any Federal or State regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or to the Servicer's best knowledge, threatened, before any
court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties:
(A) asserting the invalidity of this Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, (C) seeking
any determination or ruling that might materially and adversely affect
the performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement or the Certificates, or
(D) relating to the Servicer and which might adversely affect the
Federal or State income, excise, franchise or similar tax attributes of
the Certificates.
(vii) No Consents. No consent, approval, authorization or order
of or declaration or filing with any
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governmental authority is required for the issuance or sale of the
Certificates or the consummation of the other transactions contemplated
by this Agreement, except such as have been duly made or obtained.
(viii) Taxes. The Servicer has filed on a timely basis all tax
returns required to be filed by it and paid all taxes, to the extent
that such taxes have become due.
(ix) Chief Executive Office. The Servicer hereby represents and
warrants to the Trustee that the Servicer's principal place of business
and chief executive office is, and for the four months preceding the
date of this Agreement has been, located at: ▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
SECTION 8.2. Indemnities of Servicer. (a) The Servicer shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement and the representations made by
the Servicer herein.
(i) The Servicer shall defend, indemnify, and hold harmless the
Trustee, the Standby Servicer, the Collateral Agent, the Trust, the
Certificate Insurer, the Certificateholders and the Seller, from and
against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership, or
operation by the Servicer or any Affiliate thereof of a Financed
Vehicle.
(ii) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Standby Servicer, the Collateral Agent, the Trust, the
Certificate Insurer and the Seller from and against any taxes that may
at any time be asserted against the Trustee, the Standby Servicer, the
Collateral Agent, the Trust, the Certificate Insurer or the Seller, with
respect to the transactions contemplated herein including, without
limitation, any sales, gross receipts, general corporation, tangible
personal property, privilege, or license taxes and costs and expenses in
defending against the same.
(iii) The Servicer shall indemnify, defend, and hold harmless the
Trustee, the Standby Servicer, the Collateral Agent, the Seller, the
Certificate Insurer, the Trust and the Certificateholders from and
against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage,
or liability arose out of, or was imposed upon the Trustee, the Standby
Servicer, the Collateral Agent, the Seller, the Trust or the
Certificateholders through, the negligence, willful misfeasance, or bad
faith of the Servicer in the
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performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.
(iv) The Servicer shall indemnify, defend, and hold harmless the
Trustee, the Standby Servicer and the Collateral Agent from and against
all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in connection with the acceptance or performance of
the trusts and duties herein contained, if any, except to the extent
that such cost, expense, loss, claim, damage or liability: (a) shall be
due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of the Trustee, the Standby Servicer or Collateral
Agent, as applicable; (b) relates to any tax other than the taxes with
respect to which the Servicer shall be required to indemnify the
Trustee, the Standby Servicer or the Collateral Agent; or (c) shall
arise from the Trustee's breach of any of its representations or
warranties set forth in Section 10.13.
(v) Notwithstanding the foregoing, the Servicer shall not be
obligated to defend, indemnify, and hold harmless any Certificateholder
for any losses, claims, damages or liabilities incurred by any
Certificateholders arising out of claims, complaints, actions and
allegations relating to Section 406 of ERISA or Section 4975 of the Code
as a result of the purchase or holding of a Certificate by such
Certificateholder with the assets of a plan subject to such provisions
of ERISA or the Code or the servicing, management and operation of the
Trust.
(b) For purposes of this Section 8.2, in the event of the termination of
the rights and obligations of a Servicer (or any successor thereto pursuant to
Section 8.3) as Servicer pursuant to Section 9.1, or a resignation by such
Servicer pursuant to this Agreement, such Servicer shall be deemed to be the
Servicer pending appointment of a successor Servicer pursuant to Section 9.2.
The provisions of this Section 8.2(b) shall in no way affect the survival
pursuant to Section 8.2(c) of the indemnification by the Servicer provided by
Section 8.2(a).
(c) Indemnification under this Section 8.2 shall survive the termination
of this Agreement and any resignation or removal of CPS as Servicer and shall
include reasonable fees and expenses of counsel and expenses of litigation. If
the Servicer shall have made any indemnity payments pursuant to this Section and
the recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts to the Servicer, without interest.
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SECTION 8.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer or Standby Servicer. (a) Any Person (a) into which the
Servicer may be merged or consolidated, (b) which may result from any merger or
consolidation to which the Servicer shall be a party, or (c) which may succeed
to the properties and assets of the Servicer substantially as a whole, shall
execute an agreement of assumption to perform every obligation of the Servicer
hereunder, and whether or not such assumption agreement is executed, shall be
the successor to the Servicer under this Agreement without further act on the
part of any of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event of
Default shall have happened and be continuing, (ii) the Servicer shall have
delivered to the Trustee and the Certificate Insurer an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 8.3 and
that all conditions precedent provided for in this Agreement relating to such
transaction have been complied with, (iii) the Servicer shall have delivered to
the Trustee and the Certificate Insurer an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interest and (iv) nothing herein shall be deemed to release the
Servicer from any obligation. Notwithstanding anything herein to the contrary,
the execution of the foregoing agreement of assumption and compliance with
clauses (i), (ii) or (iii) above shall be conditions to the consummation of the
transactions referred to in clause (a), (b) or (c) above.
(b) Any Person (a) into which the Standby Servicer may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Standby Servicer shall be a party, or (c) which may succeed to the properties
and assets of the Standby Servicer substantially as a whole, shall execute an
agreement of assumption to perform every obligation of the Standby Servicer
hereunder, and whether or not such assumption agreement is executed, shall be
the successor to the Standby Servicer under this Agreement without further act
on the part of any of the parties to this Agreement; provided, however, that
nothing herein shall be deemed to release the Standby Servicer from any
obligation.
SECTION 8.4. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be under
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any liability to the Trust or the Certificateholders, except as provided under
this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement; provided, however, that this provision shall
not protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of a breach of this Agreement or willful
misfeasance, bad faith, or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties under this Agreement. The
Servicer and any director or officer or employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute, or defend any legal action that shall
not be incidental to its duties to service the Receivables in accordance with
this Agreement, and that in its opinion may involve it in any expense or
liability.
SECTION 8.5. Servicer and Standby Servicer Not to Resign. Subject to the
provisions of Section 8.3, neither the Servicer nor the Standby Servicer may
resign from the obligations and duties hereby imposed on it as Servicer or
Standby Servicer, as the case may be, under this Agreement except upon
determination that by reason of a change in legal requirements the performance
of its duties under this Agreement would cause it to be in violation of such
legal requirements in a manner which would result in a material adverse effect
on the Servicer or the Standby Servicer, as the case may be, and the Certificate
Insurer does not elect to waive the obligations of the Servicer or the Standby
Servicer, as the case may be, to perform the duties which render it legally
unable to act or does not elect to delegate those duties to another Person.
Notice of any such determination permitting the resignation of the Servicer or
the Standby Servicer, as the case may be, shall be communicated to the Trustee
and the Certificate Insurer at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to and satisfactory to the Trustee and the
Certificate Insurer concurrently with or promptly after such notice. No such
resignation of the Servicer shall become effective until a successor servicer
shall have assumed the responsibilities and obligations of CPS in accordance
with Section 9.2 and the Servicing Assumption Agreement, if applicable. No such
resignation of the Standby Servicer shall become effective until an entity
acceptable to the Certificate Insurer shall have assumed the responsibilities
and obligations of the Standby Servicer; provided, however, that if no such
entity shall have assumed such responsibilities and obligations
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of the Standby Servicer within 60 days of the resignation of the Standby
Servicer, the Standby Servicer may petition a court of competent jurisdiction
for the appointment of a successor to the Standby Servicer.
ARTICLE IX
Default
SECTION 9.1. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) Any failure by the Servicer to deliver to the Trustee
for distribution to Certificateholders any proceeds or payment required
to be so delivered under the terms of the Certificates and this
Agreement that shall continue unremedied for a period of two Business
Days (or, in the case of a payment or deposit to be made no later than a
Distribution Date, the failure to make such payment or deposit by such
Distribution Date); or the certificate required by Section 3.9, the
statement required by Section 3.10, or the report required by Section
3.11 shall not have been delivered within five (5) days after the date
such certificates or statements or reports, as the case may be, are
required to be delivered; or
(ii) Failure on the part of the Servicer, or the Seller, as
the case may be, duly to observe or to perform in any material respect
any other covenants or agreements of the Servicer or the Seller (as the
case may be) set forth in the Certificates or in this Agreement, which
failure shall continue unremedied for a period of 30 days after the date
on which written notice of such failure requiring the same to be
remedied, shall have been given (1) to the Servicer or the Seller (as
the case may be), by the Certificate Insurer or the Trustee, or (2) to
the Servicer or the Seller, (as the case may be), and to the Trustee and
the Certificate Insurer by the Holders of Class A Certificates
evidencing not less than 25% of the Class A Certificate Balance or,
after the Class A Certificates have been paid in full and all
outstanding Reimbursement Obligations and other amounts due to the
Certificate Insurer have been paid in full, by the Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate
Balance; or
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, or liquidator for the Servicer
or the Seller (or, so long as
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CPS is Servicer, any of the Servicer's Affiliates) in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(iv) The consent by the Servicer or the Seller (or, so long
as CPS is Servicer, any of the Servicer's Affiliates) to the appointment
of a conservator, trustee, receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the Servicer or the Seller (or,
so long as CPS is Servicer, any of the Servicer's Affiliates) of or
relating to substantially all of its property; or the Servicer or the
Seller (or, so long as CPS is Servicer, any of the Servicer's
Affiliates) shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(v) The occurrence of an Insurance Agreement Event of
Default;
then, and in each and every case, so long as an Event of Default shall not have
been remedied, provided (i) no Insurer Default shall have occurred and be
continuing, the Certificate Insurer in its sole and absolute discretion, or (ii)
if an Insurer Default shall have occurred and be continuing, then either the
Trustee or the Holders of Class A Certificates evidencing not less than 25% of
the Class A Certificate Balance or (iii) if the Class A Certificates have been
paid in full and either (A) all outstanding Reimbursement Obligations and other
amounts due to the Certificate Insurer have been paid in full or (B) an Insurer
Default shall have occurred and be continuing, then either the Trustee or the
Holders of Class B Certificates evidencing not less than 25% of the Class B
Certificate Balance, by notice then given in writing to the Servicer (and to the
Trustee if given by the Certificate Insurer or by the Certificateholders) may
terminate all of the rights and obligations of the Servicer under this
Agreement. The Servicer shall be entitled to its pro rata share of the Servicing
Fee for the number of days in the Collection Period prior to the effective date
of its termination. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement, whether
with respect to the Certificates or the Receivables or otherwise, shall, without
further action, pass to and be vested in (i) the Standby Servicer or (ii) such
successor Servicer as may be appointed under Section 9.2; provided, however,
that the
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successor Servicer shall have no liability with respect to any obligation which
was required to be performed by the predecessor Servicer prior to the date the
successor Servicer becomes the Servicer or any claim of a third party (including
a Certificateholder) based on any alleged action or inaction of the predecessor
Servicer as Servicer; and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the successor Servicer and the Trustee
in effecting the termination of the responsibilities and rights of the
predecessor Servicer under this Agreement, including the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held or should have been held by the predecessor Servicer for
deposit, or shall thereafter be received with respect to a Receivable and the
delivery to the successor Servicer of all files and records concerning the
Receivables and a computer tape in readable form containing all information
necessary to enable the successor Servicer to service the Receivables and the
other property of the Trust. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Receivable Files
to the successor Servicer and amending this Agreement to reflect such succession
as Servicer pursuant to this Section 9.1 shall be paid by the predecessor
Servicer upon presentation of reasonable documentation of such costs and
expenses. In addition, any successor Servicer shall be entitled to payment from
the immediate predecessor Servicer for reasonable transition expenses incurred
in connection with acting as successor Servicer, and to the extent not so paid,
such payment shall be made pursuant to Section 4.6(c) hereof. Upon receipt of
notice of the occurrence of an Event of Default, the Trustee shall give notice
thereof to the Rating Agencies. The predecessor Servicer shall grant the
Trustee, the Standby Servicer and the Certificate Insurer reasonable access to
the predecessor Servicer's premises at the predecessor Servicer's expense. If
requested by the Certificate Insurer, the Standby Servicer or successor Servicer
shall terminate any arrangements relating to (i) the Lock-Box Account with the
Lock-Box Bank, (ii) the Post-Office Box or (iii) the Lock-Box Agreement, and
direct the Obligors to make all payments under the Receivables directly to the
Servicer at the predecessor Servicer's expense (in which event the successor
Servicer shall process such payments directly, or, through a Lock-Box Account
with a Lock-Box Bank at the direction of the Certificate Insurer).
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SECTION 9.2. Appointment of Successor. (a) Upon the Servicer's receipt
of notice of termination pursuant to Section 9.1, the Servicer's resignation in
accordance with the terms of this Agreement or expiration or non-renewal of the
term of the Servicer hereunder in accordance with Section 3.14, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of expiration and non-renewal of
the term of the Servicer upon the expiration of such term, and, in the case of
resignation, until the later of (x) the date 45 days from the delivery to the
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (y) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of termination of the Servicer, Norwest Bank Minnesota, National
Association, as Standby Servicer, shall assume the obligations of Servicer
hereunder on the date specified in such written notice (the "Assumption Date")
pursuant to the Servicing Assumption Agreement or, in the event that the
Certificate Insurer shall have determined that a Person other than the Standby
Servicer shall be the successor Servicer in accordance with Section 9.2(c), on
the date of the execution of a written assumption agreement by such Person to
serve as successor Servicer. Notwithstanding the Standby Servicer's assumption
of, and its agreement to perform and observe, all duties, responsibilities and
obligations of CPS as Servicer under this Agreement arising on and after the
Assumption Date, the Standby Servicer shall not be deemed to have assumed or to
become liable for, or otherwise have any liability for, any duties,
responsibilities, obligations or liabilities of CPS or any predecessor Servicer
arising on or before the Assumption Date, whether provided for by the terms of
this Agreement, arising by operation of law or otherwise, including, without
limitation, any liability for, any duties, responsibilities, obligations or
liabilities of CPS or any predecessor Servicer arising on or before the
Assumption Date under Section 3.7, 4.4 or 8.2 of this Agreement, regardless of
when the liability, duty, responsibility or obligation of CPS or any predecessor
Servicer therefore arose, whether provided by the terms of this Agreement,
arising by operation of law or otherwise. In addition, if the Standby Servicer
shall be legally unable to act as Servicer and an Insurer Default shall have
occurred and be continuing, the Standby Servicer, the Trustee or Class A
Certificateholders holding Class A Certificates evidencing not less than 51% of
the Class A Certificate Balance (or, if the Class A Certificates have been paid
in full, Class B Certificateholders holding Class B Certificates evidencing not
less than 51% of the Class B Certificate Balance) may petition a
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court of competent jurisdiction to appoint any successor to the Servicer.
Pending appointment pursuant to the preceding sentence, the Standby Servicer
shall act as successor Servicer unless it is legally unable to do so, in which
event the predecessor Servicer shall continue to act as Servicer until a
successor has been appointed and accepted such appointment. In the event that a
successor Servicer has not been appointed at the time when the predecessor
Servicer has ceased to act as Servicer in accordance with this Section 9.2, then
the Certificate Insurer, in accordance with Section 9.2(c) shall appoint, or
petition a court of competent jurisdiction to appoint a successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer shall be the successor in
all respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties, and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, and shall be entitled to the Servicing Fee
and all of the rights granted to the predecessor Servicer, by the terms and
provisions of this Agreement.
(c) Subject to Section 12.11, the Certificate Insurer may exercise at
any time its right to appoint as Standby Servicer or as successor Servicer a
Person other than the Person serving as Standby Servicer at the time, and shall
have no liability to the Trustee, CPS, the Seller, the Person then serving as
Standby Servicer, any Certificateholder or any other Person if it does so.
Subject to Section 8.5, no provision of this Agreement shall be construed as
relieving the Standby Servicer of its obligation to succeed as successor
Servicer upon the termination of the Servicer pursuant to Section 9.1 or
resignation of the Servicer pursuant to Section 8.5. If upon any such
resignation or termination, the Certificate Insurer appoints a successor
Servicer other than the Standby Servicer, the Standby Servicer shall not be
relieved of its duties as Standby Servicer hereunder.
SECTION 9.3. Reserved.
SECTION 9.4. Notification to Certificateholders. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article IX,
the Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register and to each of
the Rating Agencies.
SECTION 9.5. Direction of Insolvency Proceedings by Certificate Insurer.
(a) In the event that the Trustee has received a certified copy of an order of
the appropriate court that any Class A Guaranteed Distribution Amount paid on a
Class A Certificate has been avoided in whole or in part as a preference
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payment under applicable bankruptcy law, the Trustee shall so notify the
Certificate Insurer, shall comply with the provisions of the Policy to obtain
payment by the Certificate Insurer of such avoided Class A Guaranteed
Distribution Amount payment, and shall, at the time it provides notice to the
Certificate Insurer, notify Holders of the Class A Certificates by mail that, in
the event that any Class A Certificateholder's payment is so recoverable, such
Class A Certificateholder will be entitled to payment pursuant to the terms of
the Policy. Pursuant to the terms of the Policy, the Certificate Insurer will
make such payment on behalf of the Class A Certificateholder to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the Order
(as defined in the Policy) and not to the Trustee or any Class A
Certificateholder directly (unless a Class A Certificateholder has previously
paid such payment to the receiver, conservator, debtor-in-possession or trustee
in bankruptcy, in which case the Certificate Insurer will make such payment to
the Trustee for distribution to such Class A Certificateholder upon proof of
such payment reasonably satisfactory to the Certificate Insurer).
(b) Upon knowledge of any of the following events, the Trustee shall
promptly notify the Certificate Insurer of (i) the commencement of any of the
events or proceedings described in Section 9.1(iii) or (iv) in respect of the
Seller or the Servicer or any such event or proceedings applicable to an Obligor
under a Receivable (any such event or proceedings, an "Insolvency Proceeding")
and (ii) the making of any claim in connection with any Insolvency Proceeding
seeking the avoidance as a preferential transfer (a "Preference Claim") with
regard to any payment of principal of, or interest on a Class A Certificate.
Each Class A Certificateholder, by its purchase of Class A Certificates, and the
Trustee hereby agree that, the Certificate Insurer may, provided an Insurer
Default has not occurred, at any time during the continuation of an Insolvency
Proceeding direct all matters relating to such Insolvency Proceeding, including,
without limitation, (i) all matters relating to any Preference Claim, (ii) the
direction of any appeal of any order relating to any Preference Claim and (iii)
the posting of any surety, supersedeas or performance bond pending any such
appeal at the expense of the Certificate Insurer, but subject to reimbursement
as provided in the Insurance Agreement. In addition, and without limitation of
the foregoing, as set forth in Section 4.9, the Certificate Insurer shall be
subrogated to, and each Class A Certificateholder and the Trustee hereby
delegate and assign, to the fullest extent permitted by law, the rights of the
Trustee and each Class A Certificateholder in the conduct of any proceeding with
respect to a Preference Claim, including, without limitation, all rights of any
party to an adversary proceeding action with respect to any court order issued
in connection with any such Preference Claim.
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SECTION 9.6. Action Upon Certain Failures of the Servicer. In the event
that the Trustee shall have knowledge of any failure of the Servicer specified
in Section 9.1 which would give rise to a right of termination under such
Section upon the Servicer's failure to remedy the same after notice, the Trustee
shall give notice thereof to the Servicer and the Certificate Insurer. For all
purposes of this Agreement (including, without limitation, Section 9.5(b) and
this Section 9.6), the Trustee shall not be deemed to have knowledge of any
failure of the Servicer as specified in Section 9.1 unless notified thereof in
writing by the Servicer, the Certificate Insurer or by a Certificateholder. The
Trustee shall be under no duty or obligation to investigate or inquire as to any
potential failure of the Servicer specified in Section 9.1.
ARTICLE X
The Trustee
SECTION 10.1. Duties of Trustee. The Trustee, both prior to the
occurrence of an Event of Default and after an Event of Default shall have been
cured or waived, shall undertake to perform such duties and only such duties as
are specifically set forth in this Agreement. If an Event of Default shall have
occurred and shall not have been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and shall use the
same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that shall be specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
The Trustee shall take and maintain custody of the Receivable Files
(except as otherwise provided herein) and the schedule of receivables included
as Schedule A to this Agreement and shall retain copies of all Servicer's
Certificates prepared hereunder.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default
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that may have occurred, the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as shall be specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely on the truth of the
statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment
made in good faith by a Trustee Officer, unless it shall be proved that
the Trustee shall have been negligent in ascertaining the pertinent
facts;
(iii) The Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken in good faith in
accordance with this Agreement or at the direction of the Certificate
Insurer or, after an Insurer Default, the Holders of Class A
Certificates evidencing not less than 25% of the Class A Certificate
Balance or, after the Class A Certificates have been paid in full and
either (A) all outstanding Reimbursement Obligations and other amounts
due to the Certificate Insurer have been paid in full or (B) an Insurer
Default shall have occurred and be continuing, the Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate
Balance, relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any
Event of Default, unless a Trustee Officer assigned to the Trustee's
Corporate Trust Office receives written notice of such Event of Default
from the Servicer or the Seller, as the case may be, the Certificate
Insurer or, after an Insurer Default, the Holders of Class A
Certificates evidencing not less than 25% of the Class A Certificate
Balance or, after the Class A Certificates have been paid in full and
either (A) all outstanding Reimbursement Obligations and other amounts
due to the Certificate Insurer have been paid in full or (B) an Insurer
Default shall have occurred and be continuing, the Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate
Balance (such notice shall constitute actual knowledge of an Event of
Default by the Trustee); and
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(v) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that the repayment of such funds or adequate
indemnity against such risk or liability shall not be reasonably assured to it,
and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Agreement except during
such time, if any, as the Trustee, in its capacity as Standby Servicer, shall be
the successor to, and be vested with the rights, duties, powers, and privileges
of, the Servicer in accordance with the terms of this Agreement.
Except for actions expressly authorized by this Agreement, the Trustee
shall take no action reasonably likely to impair the security interests created
or existing under any Receivable or Financed Vehicle or to impair the value of
any Receivable or Financed Vehicle.
All information obtained by the Trustee regarding the Obligors and the
Receivables, whether upon the exercise of its rights under this Agreement or
otherwise, shall be maintained by the Trustee in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by this
Agreement or any applicable law or regulation.
SECTION 10.2. Trustee's Certificate. On or as soon as practicable after
each Distribution Date on which Receivables shall be assigned to CPS or the
Servicer, as applicable, pursuant to this Agreement, based on amounts deposited
to the Collection Account, notices received pursuant to this Agreement and the
information contained in the Servicer's Certificate for the related Collection
Period, identifying the Receivables purchased by CPS pursuant to Section 2.6 or
2.8 or purchased by the Servicer pursuant to Section 3.7 or 11.2, the Trustee
shall execute a Trustee's Certificate (in the form of Exhibit C-1 or C-2, as
applicable), and shall deliver such Trustee's Certificate, accompanied by a copy
of the Servicer's Certificate for such Collection Period to CPS or the Servicer,
as the case may be. The Trustee's Certificate submitted with respect to such
Distribution Date shall operate, as of such Distribution Date, as an assignment,
without recourse, representation, or warranty, to CPS or the Servicer, as the
case may be, of all the Trustee's
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right, title, and interest in and to such repurchased Receivable, and all
security and documents relating thereto, such assignment being an assignment
outright and not for security.
SECTION 10.3. Reserved.
SECTION 10.4. Certain Matters Affecting Trustee. Except as otherwise
provided in Section 10.1:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
Servicer's Certificate, certificate of auditors, or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties.
(ii) The Trustee may consult with counsel, and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this
Agreement in good faith and in accordance with such Opinion of Counsel.
(iii) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct, or defend any litigation under this Agreement or in relation to
this Agreement, at the request, order or direction of any of the
Certificateholders or the Certificate Insurer pursuant to the provisions
of this Agreement, unless such Certificateholders or the Certificate
Insurer shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses, and liabilities that may be
incurred therein or thereby; nothing contained in this Agreement,
however, shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (that shall not have been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(iv) Prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts of
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, or
other paper or document (other than for its duties pursuant to Section
2.8), unless requested in writing to do so by the
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Certificate Insurer or Holders of Class A Certificates evidencing not
less than 25% of the Class A Certificate Balance or, after the Class A
Certificates have been paid in full and either (A) all outstanding
Reimbursement Obligations and other amounts due to the Certificate
Insurer have been paid in full or (B) an Insurer Default shall have
occurred and be continuing, the Holders of Class B Certificates
evidencing not less that 25% of the Class B Certificate Balance;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses, or liabilities likely to be incurred by
it in the making of such investigation shall be, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require reasonable
indemnity against such cost, expense, or liability as a condition to so
proceeding. The reasonable expense of every such examination shall be
paid by the Person making such request or, if paid by the Trustee, shall
be reimbursed by the Person making such request upon demand. Nothing in
this clause (iv) shall affect the obligation of the Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Obligors.
(v) The Trustee may execute any of the trusts or powers hereunder
or perform any duties under this Agreement either directly or by or
through agents or attorneys or a custodian. The Trustee shall not be
responsible for any misconduct or negligence of any such agent or
custodian appointed with due care by it hereunder or of the Servicer in
its capacity as Servicer or custodian.
(vi) Except as may be required by Sections 2.8 and 10.1,
subsequent to the sale of the Receivables by the Seller to the Trust,
the Trustee shall have no duty of independent inquiry, and the Trustee
may rely upon the representations and warranties and covenants of the
Seller and the Servicer contained in this Agreement with respect to the
Receivables and the Receivable Files.
(vii) The Trustee may rely, as to factual matters relating to the
Seller or the Servicer, on an Officer's Certificate of the Seller or
Servicer, respectively.
(viii) The Trustee shall not be required to take any action or
refrain from taking any action under this Agreement, or any related
documents referred to herein, nor shall any provision of this Agreement,
or any such related document be deemed to impose a duty on the Trustee
to take action, if the Trustee shall have been advised by counsel
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that such action is contrary to (i) the terms of this Agreement, (ii)
any such related document or (iii) law.
SECTION 10.5. Trustee Not Liable for Certificates or Receivables. The
recitals contained herein and in the Certificates (other than the certificate of
authentication on the Certificates) shall be taken as the statements of the
Seller or the Servicer, as the case may be, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or related document. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity, and
enforceability of any security interest in any Financed Vehicle or any
Receivable, or the perfection and priority of such a security interest or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including, without limitation: the
existence, condition, location, and ownership of any Financed Vehicle; the
existence and enforceability of any physical damage insurance thereon; except as
required by Section 2.8, the existence, contents and completeness of any
Receivable or any Receivable File or any computer or other record thereof; the
validity of the assignment of any Receivable to the Trust or of any intervening
assignment; except as required by Section 2.8, the performance or enforcement of
any Receivable; the compliance by the Seller or the Servicer with any warranty
or representation made under this Agreement or in any related document and the
accuracy of any such warranty or representation prior to the Trustee's receipt
of notice or other discovery of any noncompliance therewith or any breach
thereof; any investment of monies by or at the direction of the Servicer or the
Certificate Insurer or any loss resulting therefrom (it being understood that
the Trustee shall remain responsible for any Trust Property that it may hold);
the acts or omissions of the Seller, the Servicer, or any Obligor; any action of
the Servicer taken in the name of the Trustee; or any action by the Trustee
taken at the instruction of the Servicer; provided, however, that the foregoing
shall not relieve the Trustee of its obligation to perform its duties under this
Agreement. Except with respect to a claim based on the failure of the Trustee to
perform its duties under this Agreement or based on the Trustee's negligence or
willful misconduct, no recourse shall be had for any claim based on any
provision of this Agreement, the Certificates, or any Receivable or assignment
thereof against the Trustee in its individual capacity, the Trustee shall not
have any personal obligation, liability, or duty whatsoever to any
Certificateholder or any other Person with respect to any such claim, and any
such claim shall be asserted solely against the
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Trust or any indemnitor who shall furnish indemnity as provided in this
Agreement. The Trustee shall not be accountable for the use or application by
the Seller of any of the Certificates or of the proceeds of such Certificates,
or for the use or application of any funds paid to the Servicer in respect of
the Receivables. The Seller hereby certifies to the Trustee that the Rating
Agencies rating the Class A Certificates are Standard & Poor's and Moody's and
the rating agency rating the Class B Certificates is Standard & Poor's and that
their addresses are as set forth in Section 12.5. The Trustee may rely on the
accuracy of such certification until it receives from the Seller an Officer's
Certificate superseding such certification.
SECTION 10.6. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Seller and the Servicer in banking transactions with the
same rights as it would have if it were not Trustee.
SECTION 10.7. Indemnity of Trustee. The Servicer shall indemnify the
Trustee for, and hold it harmless against any loss, liability, or expense
incurred without willful misfeasance, negligence, or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
Trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties under this Agreement. Additionally the Seller, pursuant to Section 7.2,
shall indemnify the Trustee with respect to certain matters, the Servicer,
pursuant to Section 8.2, shall indemnify the Trustee with respect to certain
matters, and Certificateholders, pursuant to Section 10.4 shall, upon the
circumstances therein set forth, indemnify the Trustee under certain
circumstances. The provisions of this Section 10.7 shall survive the termination
of this Agreement or any resignation or removal of CPS as Servicer.
SECTION 10.8. Eligibility Requirements for Trustee. The Trustee under
this Agreement shall at all times be organized and doing business under the laws
of the United States of America; authorized under such laws to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; and having a rating, both with respect to long-term and short-term
unsecured obligations, of not less than investment grade by the Rating Agencies.
If such corporation shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 10.8, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the
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Trustee shall cease to be eligible in accordance with the provisions of this
Section 10.8, the Trustee shall resign immediately in the manner and with the
effect specified in Section 10.9.
SECTION 10.9. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days'
prior written notice thereof to the Servicer. Upon receiving such notice of
resignation, with the prior written consent of (a) the Certificate Insurer
(provided no Insurer Default has occurred which is continuing) and the Holders
of Class A Certificates evidencing not less than 51% of the Class A Certificate
Balance or (b) if the Class A Certificates have been paid in full and all
outstanding Reimbursement Obligations and other amounts owing to the Certificate
Insurer have been paid in full, with the prior written consent of the Holders of
Class B Certificates evidencing not less than 51% of the Class B Certificate
Balance, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee. The
Trustee may be removed at any time by written demand of the Certificate Insurer
delivered to the Trustee and the Servicer; provided that, if an Insurer Default
has occurred which is continuing, such right of the Certificate Insurer shall be
inoperative during the period of such Insurer Default and shall instead vest in
the Trustee acting at the direction of the Holders of Class A Certificates
evidencing not less than 51% of the Class A Certificate Balance or, from and
after such time as the Class A Certificates have been paid in full and all
outstanding Reimbursement Obligations and other amounts due to the Certificate
Insurer have been paid in full, the Holders of Class B Certificates evidencing
not less than 51% of the Class B Certificate Balance, in each case, in
accordance with Section 12.11.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 10.8 and shall fail to resign after written request
therefor by the Servicer, or if at any time the Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver, conservator
or liquidator of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer may remove the Trustee. If the Servicer shall remove the Trustee under
the authority of the immediately preceding sentence, the Servicer
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shall promptly appoint a successor Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor Trustee, and pay all fees and expenses owed to the
outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 10.9 shall not become
effective until acceptance of appointment by the successor Trustee pursuant to
Section 10.10 and payment of all fees and expenses owed to the outgoing Trustee.
The Servicer shall provide notice of such resignation or removal of the Trustee
to each of the Rating Agencies.
SECTION 10.10. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.9 shall execute, acknowledge, and deliver to the
Servicer, the Certificate Insurer and to its predecessor Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Trustee. The
predecessor Trustee shall upon payment of its fees and expenses deliver to the
successor Trustee all documents and statements and monies held by it under this
Agreement; and the Servicer and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties, and obligations.
No successor Trustee shall accept appointment as provided in this
Section 10.10 unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.8.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section 10.10, the Servicer shall mail notice of the successor of such Trustee
under this Agreement to all Holders of Certificates at their addresses as shown
in the Certificate Register and to the Rating Agencies. If the Servicer shall
fail to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
SECTION 10.11. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
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corporation shall be eligible pursuant to Section 10.8, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided further that
the Trustee shall mail notice of such merger or consolidation to the Rating
Agencies.
SECTION 10.12. Co-Trustee; Separate Trustee. Notwithstanding any other
provisions of this Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust or any Financed
Vehicle may at the time be located, the Servicer, the Certificate Insurer
(provided an Insurer Default shall not have occurred and be continuing) and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust, and to vest in such Person, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 10.12, such
powers, duties, obligations, rights, and trusts as the Servicer, the Certificate
Insurer and the Trustee may consider necessary or desirable. If the Servicer and
the Certificate Insurer shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, or in the case an Event of
Default shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.8, except that the co-trustee or its parent shall
comply with the rating requirements set forth therein, and no notice of a
successor trustee pursuant to Section 10.10 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.10.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties, and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee under
this Agreement or, in its capacity as Standby Servicer, as successor to
the Servicer under this Agreement), the Trustee shall be incompetent or
unqualified
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to perform such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) Provided no Insurer Default shall have occurred and be
continuing, the Certificate Insurer may, and, in the event an Insurer
Default shall have occurred and be continuing, then, the Servicer and
the Trustee acting jointly may, at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the other then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Each such instrument shall be filed with the Trustee and a copy thereof
given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the Trustee,
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 10.13. Representations and Warranties of Trustee. The Trustee
shall make the following representations and warranties on which the Seller, the
Certificate Insurer and Certificateholders shall rely:
(i) The Trustee is a banking corporation duly organized, validly
existing, and in good standing under the laws of its place of
incorporation.
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(ii) The Trustee has full corporate power authority and legal
right to execute, deliver, and perform this Agreement and shall have
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement.
(iii) This Agreement shall have been duly executed and
delivered by the Trustee and this Agreement constitutes a legal, valid
and binding obligation of the Trustee enforceable in accordance with its
terms, subject to (x) applicable bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting creditor's rights generally
and (y) general principles of equity.
SECTION 10.14. No Bankruptcy Petition. The Trustee covenants and agrees
that prior to the date which is one year and one day after the payment in full
of all securities issued by the Seller or by a trust for which the Seller was
the depositor it will not institute against, or join any other Person in
instituting against, the Seller or the Trust any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or State bankruptcy or similar law.
SECTION 10.15. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as Trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
SECTION 10.16. Rights of Certificate Insurer to Direct Trustee. (a) The
Certificate Insurer, after giving written notice to the Trustee, shall have the
right to direct the time, method and place at or by which the Trustee conducts
any proceeding for any remedy available to the Trustee, or exercises any such
trust or power conferred upon the Trustee.
(b) Notwithstanding anything to the contrary contained in subsection (a)
above, the Trustee shall not exercise any remedy involving a sale of the
Receivables unless it shall have received instruction to do so by Holders of at
least 66 2/3% of each of the Class A Certificate Balance and the Class B
Certificate Balance and, in addition, the Trustee shall have the right to
decline to follow any such direction of the Certificate Insurer if the Trustee,
being advised by counsel, determines that the
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action so directed may not lawfully be taken, or if the Trustee in good faith
shall, by a responsible officer of the Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Certificateholders; provided, that nothing in this
Agreement shall impair the right of the Trustee to take any action deemed proper
by the Trustee and which is not inconsistent with such direction of the
Certificate Insurer.
ARTICLE XI
Termination
SECTION 11.1. Termination of the Trust. The respective obligations and
responsibilities of the Seller, the Servicer, and the Trustee created hereby and
the Trust created by this Agreement shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to this
Agreement or the Policy (including all amounts required to reduce the Class A
Certificate Balance to zero and to pay in full any unpaid Class A Interest
Distributable Amount), satisfaction of all Reimbursement Obligations, and the
expiration of any preference period related thereto and the disposition of all
property held as part of the Trust; provided, however, that in no event shall
the trust created by this Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late ambassador of the United States of America to the Court of St. ▇▇▇▇▇,
living on the date of this Agreement. The Servicer shall promptly notify the
Trustee and the Certificate Insurer of any prospective termination pursuant to
this Section 11.1.
Notice of any termination, specifying the Distribution Date upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the 15th day
and not later than the 25th day of the month next preceding the specified
Distribution Date stating (A) the Distribution Date upon which final payment of
the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final payment, and (C) if applicable, that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the Trustee
therein specified. The Trustee shall give such notice to the Certificate
Registrar (if other than the Trustee) at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to
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Certificateholders amounts distributable on such Distribution Date pursuant to
Section 4.6. Notwithstanding the foregoing, if on the Distribution Date upon
which final payment of the Certificates is to be made, there are only six or
less initial Certificateholders of record, the amounts distributable to such
initial Certificateholders pursuant to Section 4.6 will be paid on the final
Distribution Date by wire transfer or check as set forth in Section 4.6(g), and
each such initial Certificateholder shall present and surrender its Certificates
at the office of the Trustee designated in the notice referred to above within
30 days after such Distribution Date.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee shall take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement or, if none, from CPS. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Trustee to
the American Red Cross.
SECTION 11.2. Optional Purchase of All Receivables. On the last day of
any Collection Period as of which the Pool Balance shall be less than or equal
to the Optional Purchase Percentage multiplied by the Original Pool Balance, the
Servicer shall have the option to purchase the corpus of the Trust (with the
consent of the Certificate Insurer, if such purchase would result in a claim on
the Policy or would result in any amount owing to the Certificate Insurer or to
the Holders of the Class A Certificates remaining unpaid); provided, however,
that the Servicer may not effect any such purchase unless the Trustee shall have
received an Opinion of Counsel to the effect that such purchase would not
constitute a fraudulent conveyance. To exercise such option the Servicer (or the
Certificate Insurer, if applicable) shall deposit pursuant to Section 4.5 in the
Collection Account an amount equal to the aggregate Purchase Amount for the
Receivables (including defaulted Receivables), plus the appraised value of any
other property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Servicer, the Certificate Insurer and the Trustee,
and shall succeed to all interests in and to the Trust. For purposes of this
Section, the Purchase Amount shall not be less than the sum of the Class A
Certificate Balance and the Class B Certificate Balance.
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ARTICLE XII
Miscellaneous Provisions
SECTION 12.1. Amendment. This Agreement may be amended from time to time
by the Seller, the Servicer, and the Trustee with the consent of the Certificate
Insurer and with the consent (which consent of any Holder of a Certificate given
pursuant to this Section or pursuant to any other provision of this Agreement
shall be conclusive and binding on such Holder and on all future Holders of such
Certificate and of any Certificate issued upon the transfer thereof or in
exchange thereof or in lieu thereof whether or not notation of such consent is
made upon the Certificate) of the Holders of Class A Certificates evidencing not
less than 51% of the Class A Certificate Balance and the Holders of Class B
Certificates evidencing not less than 51% of the Class B Certificate Balance for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement, or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that shall be required to be made on any
Certificate or change the Class A Pass-Through Rate or the Class B Pass-Through
Rate without the consent of each Certificateholder affected thereby, (b) reduce
the aforesaid percentage of the Class A Certificate Balance or Class B
Certificate Balance required to consent to any such amendment, without the
consent of the Holders of all Certificates of the applicable class then
outstanding, (c) result in a downgrade or withdrawal of the then current rating
of the Class A Certificates by either of the Rating Agencies without the consent
of all the Class A Certificateholders or (d) result in a downgrade or withdrawal
of the then current rating of the Class B Certificates by either of the Rating
Agencies without the consent of all the Class B Certificateholders.
Promptly after the execution of any such amendment or consent, the
Trustee shall furnish a copy of such amendment or consent to each
Certificateholder and each of the Rating Agencies.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
the Opinion of Counsel referred to in Section 12.2(i)(1). The Trustee may, but
shall not be obligated to, enter into any such amendment which
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affects the Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 12.2. Protection of Title to Trust. (a) The Seller or Servicer
or both shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain, and protect the
interest of the Certificateholders and the Trustee in the Receivables and the
other Trust Assets and in the proceeds thereof. The Seller or Servicer or both
shall deliver (or cause to be delivered) to the Trustee file-stamped copies of,
or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Seller nor the Servicer shall change its name, identity,
or corporate structure in any manner that would, could, or might make any
financing statement or continuation statement filed in accordance with paragraph
(a) above seriously misleading within the meaning of ss. 9-402(7) of the UCC,
unless it shall have given the Trustee and the Certificate Insurer at least five
days' prior written notice thereof, shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements and shall have delivered an Opinion of Counsel (A) stating that, in
the opinion of such counsel, all amendments to all previously filed financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables and the other Trust Assets, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
(c) Each of the Seller and the Servicer shall have an obligation to give
the Trustee and the Certificate Insurer at least 60 days' prior written notice
of any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement, shall promptly file any such amendment and shall
deliver an Opinion of Counsel (A) stating that, in the opinion of such counsel,
all amendments to all previously filed financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the Trustee in the Receivables, and reciting the details
of such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest. The Servicer
shall at all times maintain each office from which it shall service Receivables,
and its principal executive office, within the United States of America.
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(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Certificate
Account and Payahead Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Trustee,
the Servicer's master computer records (including any back-up archives) that
refer to a Receivable shall indicate clearly the interest of CPS Auto Grantor
Trust 1997-1 in such Receivable and that such Receivable is owned by the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, such Receivable
shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender, or other transferee, the
Servicer shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or printouts (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold to and is owned by the
Trust.
(g) The Servicer shall permit the Trustee, the Standby Servicer and the
Certificate Insurer and its agents at any time during normal business hours to
inspect, audit, and make copies of and abstracts from the Servicer's records
regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee, the Standby
Servicer or to the Certificate Insurer, within five Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part of the
Trust, together with a reconciliation of such list to the schedule of
receivables included as Schedule A to this Agreement and to each of the
Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee and the Certificate
Insurer:
(1) promptly after the execution and delivery of this Agreement
and of each amendment hereto and after the execution and delivery of
each amendment to any financing
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statement, an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements
have been executed and filed that are necessary fully to preserve and
protect the interest of the Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect
such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 90-day period either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of the Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such
details are given or (B) stating that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2) above
shall specify any action necessary (as of the date of such opinion) to be taken
in the following year to preserve and protect such interest.
(j) For the purpose of facilitating the execution of this Agreement and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and all of which counterparts shall constitute but one and the same instrument.
(k) In the event any of the events described in Section 9.1(iii) or (iv)
shall have occurred, or in the event CPS shall have been removed or replaced as
Servicer for any reason, then CPS and/or the Servicer shall immediately cause
each Certificate of Title for a Financed Vehicle to be marked to reflect the
security interest of the Trustee in the Financed Vehicle, and CPS hereby
appoints the Trustee its attorney-in-fact to effect such marking, and the
Trustee hereby accepts such appointment. The appointment of the Trustee
hereunder shall not operate to relieve CPS and/or the Servicer of its
obligations to ▇▇▇▇ each Certificate of Title under this provision. CPS shall be
liable for all costs, fees and expenses incurred under this Section 12.2(k).
SECTION 12.3. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not
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operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as
specifically provided herein including in Section 12.1) or in any manner
otherwise control the operation and management of the Trust, or the obligations
of the parties to this Agreement, nor shall anything in this Agreement set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken pursuant to any provision of this
Agreement.
No Class A Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, and unless also the
Holders of Class A Certificates evidencing not less than 25% of the Class A
Certificate Balance shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee under this
Agreement and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby and the Trustee, for 30 days after its receipt of such notice,
request, and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and during such 30-day period no request or
waiver inconsistent with such written request has been given to the Trustee
pursuant to this Section or Section 9.5; no one or more Holders of Class A
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the Class A
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right, under this Agreement except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Class A Certificateholders. For the protection and enforcement of the
provisions of this Section 12.3, each Class A Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Nothing in this Agreement shall be construed as giving the Class A
Certificateholders any direct right to make a claim on the Policy.
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No Class B Certificateholder shall have any right by virtue or by
availing itself of any provisions of the Agreement to institute any suit,
action, proceeding in equity or at law upon or under or with respect to the
Agreement, unless it has the prior written consent of the Certificate Insurer
and, if any Class A Certificate shall remain outstanding, the prior written
consent of the Holders of Class A Certificates evidencing not less than 51% of
the Class A Certificate Balance; provided that, this sentence shall be
inoperative from and after such time as the Class A Certificates have been paid
in full and all outstanding Reimbursement Obligations and other amounts due to
the Certificate Insurer have been paid in full.
SECTION 12.4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 12.5. Notices. All demands, notices, and communications upon or
to the Seller, the Servicer, the Trustee, the Certificate Insurer, Standard &
Poor's or Moody's under this Agreement shall be in writing, and delivered (a)
personally, (b) by certified mail, return receipt requested, (c) by Federal
Express or similar overnight courier service or (d) by telecopy, and shall be
deemed to have been duly given upon receipt (a) in the case of the Seller, to
the agent for service as specified in this Agreement, at the following address:
▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy: 714-753-6805), or at such
other address as shall be designated by the Seller in a written notice to the
Trustee, (b) in the case of the Servicer, to Secretary, ▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy: 714-753-6805), (c) in the case of the
Trustee, at the Corporate Trust Office (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇), (d) in the
case of Standard & Poor's Ratings Group, at the following address: Standard &
Poor's Ratings Group, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Asset Backed Surveillance Department (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇), (e)
in the case of ▇▇▇▇▇'▇ Investors Service, Inc., at the following address: ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Surveillance
Department (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) and (f) in the case of Financial Security
Assurance Inc., at the following address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Senior Vice President, Surveillance (Telecopy: (212)
339-3547). Any notice required or permitted to be mailed to a Certificateholder
shall be given by Federal Express or similar overnight courier service, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder shall receive such notice.
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The Trustee shall give prompt written notice to each of the Rating
Agencies and each Class A Certificateholder of (i) any amendments to the
Insurance Agreement or the Policy (upon receipt of written notice of any such
amendments from the Seller or the Servicer), (ii) any change in the identity of
the Paying Agent and (iii) any failure to make payment under the Policy.
SECTION 12.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
SECTION 12.7. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.3 and 8.3 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Seller or the Servicer without the
prior written consent of the Certificate Insurer, the Trustee and the Holders of
Certificates evidencing not less than 51% of the Pool Balance, the Holders of
Class A Certificates evidencing not less than 51% of the Class A Certificate
Balance and the Holders of Class B Certificates evidencing not less than 51% of
the Class B Certificate Balance.
SECTION 12.8. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and upon
authentication thereof by the Trustee pursuant to Section 6.2 or 6.3,
Certificates shall be deemed fully paid.
SECTION 12.9. Nonpetition Covenant. (a) None of the Seller, the
Servicer, the Trustee, the Standby Servicer or CPS shall petition or otherwise
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Trust or the Seller under any
Federal or State bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or the Seller or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Trust or the Seller.
(b) The Servicer shall not, nor cause the Seller to, petition or
otherwise invoke the process of commencing or sustaining a case against the
Seller under any Federal or State
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bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller.
SECTION 12.10. Third Party Beneficiaries. Except as otherwise
specifically provided herein with respect to Certificateholders, the parties to
this Agreement hereby manifest their intent that no third party other than the
Certificate Insurer and the Collateral Agent with respect to the indemnification
provisions set forth herein, shall be deemed a third party beneficiary of this
Agreement, and specifically that the Obligors are not third party beneficiaries
of this Agreement.
SECTION 12.11. Financial Security as Controlling Party. Each
Certificateholder by purchase of the Certificates held by it acknowledges that
the Trustee, as partial consideration of the issuance of the Policy, has agreed
that the Certificate Insurer shall have certain rights hereunder for so long as
no Insurer Default shall have occurred and be continuing. So long as an Insurer
Default has occurred and is continuing, any provision giving the Certificate
Insurer the right to direct, appoint or consent to, approve of, or take any
action under this Agreement shall be inoperative during the period of such
Insurer Default and such right shall instead vest in the Trustee acting at the
direction of the Holders of Class A Certificates evidencing, unless otherwise
specified, not less than 51% of the Class A Certificate Balance. From and after
such time as the Class A Certificates have been paid in full and all outstanding
Reimbursement Obligations and other amounts due to the Certificate Insurer have
been paid in full, any provision giving the Certificate Insurer or the Class A
Certificateholders the right to direct, appoint or consent to, approve of, or
take any action under this Agreement shall be inoperative and such right shall
instead vest in the Trustee acting at the direction of the Holders of Class B
Certificates evidencing, unless otherwise specified, not less than 51% of the
Class B Certificate Balance. The Certificate Insurer may disclaim any of its
rights and powers under this Agreement (but not its duties and obligations under
the Policy) upon delivery of a written notice to the Trustee. The Certificate
Insurer may give or withhold any consent hereunder in its sole and absolute
discretion.
SECTION 12.12. Agent for Service. The agent for service for the Seller
shall be the President, CPS Receivables Corp., ▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇. The Seller hereby designates CT Corporation
System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ as agent for
service of process in all matters pertaining to the Seller in New York.
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IN WITNESS WHEREOF, the Seller, the Servicer, the Trustee and the
Standby Servicer have caused this Pooling and Servicing Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CPS RECEIVABLES CORP.,
as Seller
By:
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer
By:
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee and
Standby Servicer
By:
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
SCHEDULE B
LOCATION OF RECEIVABLES FILES
Norwest Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
Section Page
ARTICLE I
Definitions
1.1. Definitions................................................. 1
1.2. Usage of Terms.............................................. 19
1.3. Section References.......................................... 19
1.4. Limitation on Trust Fund Activities......................... 20
1.5. Calculations................................................ 20
1.6. Action by or Consent of Certificateholders.................. 20
1.7. Material Adverse Effect..................................... 20
ARTICLE II
The Trust and Trust Property
2.1. Creation of Trust........................................... 20
2.2. Conveyance of Receivables................................... 21
2.3. Transfer Intended as Sale; Precautionary Security
Interest................................................. 22
2.4. Acceptance by Trustee....................................... 22
2.5. Representations and Warranties of Seller.................... 22
2.6. Repurchase Upon Breach...................................... 29
2.7. Delivery of Receivable Files................................ 30
2.8. Acceptance of Receivable Files by Trustee................... 30
2.9. Access to Receivable Files.................................. 32
ARTICLE III
Administration and Servicing of Receivables
3.1. Duties of Servicer.......................................... 33
3.2. Collection and Allocation of Receivable Payments............ 34
3.3. Realization Upon Receivables................................ 35
3.4. Physical Damage Insurance; Other Insurance.................. 35
3.5. Maintenance of Security Interests in Financed
Vehicles................................................. 36
3.6. Additional Covenants of Servicer............................ 37
3.7. Purchase of Receivables Upon Breach......................... 37
3.8. Servicing Fee............................................... 38
3.9. Servicer's Certificate...................................... 38
3.10. Annual Statement as to Compliance: Notice of
Default.................................................. 38
3.11. Annual Independent Certified Public Accountant's
Report................................................... 39
3.12. Reserved.................................................... 40
Section Page
3.13. Servicer Expenses........................................... 40
3.14. Retention and Termination of Servicer....................... 40
3.15. Access to Certain Documentation and Information
Regarding Receivables.................................... 41
3.16. Verification of Servicer's Certificate...................... 41
3.17. Fidelity Bond............................................... 43
3.18. Delegation of Duties........................................ 43
ARTICLE IV
Distributions, Spread Account;
Statements to Certificateholders
4.1. Accounts; Post-Office Box................................... 43
4.2. Collections................................................. 45
4.3. Application of Collections.................................. 46
4.4. Payaheads................................................... 46
4.5. Additional Deposits......................................... 46
4.6. Distributions; Policy Claims................................ 47
4.7. Withdrawals from Spread Account............................. 51
4.8. Statements to Certificateholders; Tax Returns............... 52
4.9. Policy Payments; Subrogation................................ 54
4.10. Reliance on Information from the Servicer................... 55
4.11. Optional Deposits by the Certificate Insurer;
Notice of Waivers........................................ 55
4.12. Federal Income Tax Reporting.
ARTICLE V
Reserved.................................................... 56
ARTICLE VI
The Certificates
6.1. The Certificates............................................ 56
6.2A. Appointment of Paying Agent................................. 56
6.2B. Authenticating Agent........................................ 57
6.2. Authentication of Certificates.............................. 58
6.3. Registration of Transfer and Exchange of
Certificates.............................................. 58
6.4. Mutilated, Destroyed, Lost or Stolen Certificates........... 62
6.5. Persons Deemed Owners....................................... 63
6.6. Access to List of Certificateholders' Names and
Addresses................................................. 63
6.7. Maintenance of Office or Agency............................. 63
6.8. Book-Entry Certificates..................................... 64
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Section Page
6.9. Notices to Clearing Agency.................................. 65
6.10. Definitive Certificates..................................... 65
ARTICLE VII
The Seller
7.1. Representations of Seller.................................... 65
7.2. Liability of Seller; Indemnities............................. 67
7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Seller.................................... 68
7.4. Limitation on Liability of Seller and Others................. 69
7.5. Seller May Own Certificates.................................. 69
ARTICLE VIII
The Servicer
8.1. Representations of Servicer.................................. 69
8.2. Indemnities of Servicer...................................... 71
8.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer or Standby Servicer.............. 73
8.4. Limitation on Liability of Servicer and Others............... 74
8.5. Servicer and Standby Servicer Not to Resign.................. 74
ARTICLE IX
Default
9.1. Events of Default............................................ 75
9.2. Appointment of Successor..................................... 78
9.3. Reserved..................................................... 79
9.4. Notification to Certificateholders........................... 79
9.5. Direction of Insolvency Proceedings by Certificate
Insurer................................................... 80
9.6. Action Upon Certain Failures of the Servicer................. 81
ARTICLE X
The Trustee
10.1. Duties of Trustee........................................... 81
10.2. Trustee's Certificate....................................... 83
10.3. Reserved.................................................... 84
10.4. Certain Matters Affecting Trustee........................... 84
10.5. Trustee Not Liable for Certificates or Receivables.......... 86
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Section Page
10.6. Trustee May Own Certificates............................... 87
10.7. Indemnity of Trustee....................................... 87
10.8. Eligibility Requirements for Trustee....................... 87
10.9. Resignation or Removal of Trustee.......................... 88
10.10. Successor Trustee.......................................... 89
10.11. Merger or Consolidation of Trustee......................... 90
10.12. Co-Trustee; Separate Trustee............................... 90
10.13. Representations and Warranties of Trustee.................. 92
10.14. No Bankruptcy Petition..................................... 92
10.15. Trustee May Enforce Claims Without Possession of
Certificates............................................ 92
10.16. Rights of Certificate Insurer to Direct Trustee............ 92
ARTICLE XI
Termination
11.1. Termination of the Trust................................... 93
11.2. Optional Purchase of All Receivables....................... 94
ARTICLE XII
Miscellaneous Provisions
12.1. Amendment.................................................. 95
12.2. Protection of Title to Trust............................... 96
12.3. Limitation on Rights of Certificateholders................. 99
12.4. Governing Law..............................................100
12.5. Notices....................................................100
12.6. Severability of Provisions.................................101
12.7. Assignment.................................................101
12.8. Certificates Nonassessable and Fully Paid..................101
12.9. Nonpetition Covenant.......................................101
12.10. Third Party Beneficiaries..................................102
12.11. Financial Security as Controlling Party....................102
12.12. Agent for Service..........................................103
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EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class B Certificate
Exhibit C-1 Form of Trustee's Certificate
Exhibit C-2 Form of Trustee's Certificate
Exhibit D Form of Monthly Certificateholder Statement
Exhibit E-1 Form of Trust Receipt
Exhibit E-2 Form of Servicing Officer's Certificate
Exhibit F Form of Servicer's Certificate
Exhibit G Form of Transferee Certificate
Exhibit H Form of Depository Agreement
SCHEDULES
Schedule A Schedule of Receivables
Schedule B Location of Receivables
