EXHIBIT 10.33
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SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
(VARIABLE FUNDING NOTE),
dated as of April 13, 2005,
among
CPS WAREHOUSE TRUST
as Issuer,
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer,
PARADIGM FUNDING LLC,
as Paradigm,
and
WESTLB AG, acting through its New York Branch,
as Committed Note Purchaser and Agent
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SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
THIS SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT, dated as of
April 13, 2005 (as amended, supplemented, restated or otherwise modified from
time to time in accordance with the terms hereof, this "AGREEMENT"), is made
among CPS WAREHOUSE TRUST, a Delaware statutory trust (the "ISSUER"), CONSUMER
PORTFOLIO SERVICES, INC., a California corporation ("CPS" or the "SERVICER"),
PARADIGM FUNDING LLC, a Delaware corporation ("PARADIGM"), and WESTLB AG (f/k/a
WESTDEUTSCHE LANDESBANK GIROZENTRALE), acting through its New York Branch, a
German banking corporation (together with its successors and assigns, "WEST
LB"), as Committed Note Purchaser (in such capacity, together with any
successors in such capacity, the "COMMITTED NOTE PURCHASER") and as agent for
Paradigm and the Committed Note Purchaser (in such capacity, together with any
successors in such capacity, the "AGENT").
BACKGROUND
1. The Issuer, the Servicer, Paradigm, the Committed Note
Purchaser and the Agent (the "AMENDING PARTIES") entered into that Note Purchase
Agreement dated as of March 7, 2002 (the "ORIGINAL Agreement"), which was
amended and restated as of November 30, 2004 (as amended and restated, the
"AMENDED AND RESTATED AGREEMENT").
2. Contemporaneously with the execution and delivery of the
Original Agreement, the Issuer, WestLB and ▇▇▇▇▇ Fargo Bank, National
Association ("▇▇▇▇▇ FARGO"), as successor-by-merger to ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as successor-in-interest to Bank One Trust
Company, N.A., as trustee (together with its successors in trust thereunder as
provided in the Indenture referred to below, the "TRUSTEE"), entered into the
Indenture, dated as of March 7, 2002 (the "ORIGINAL INDENTURE"), which was
amended and restated as of November 30, 2004 (as amended and restated, the
"AMENDED AND RESTATED INDENTURE"), pursuant to which the Issuer issued its
Variable Funding Note (as amended and restated, the "AMENDED AND RESTATED
NOTE").
3. The security for the Amended and Restated Note includes
retail installment sale contracts secured by the new and used automobiles, vans,
minivans and light trucks (the "RECEIVABLES") that were pledged by the Issuer to
the Trustee pursuant to the Amended and Restated Indenture. The holder of the
Amended and Restated Note also has the benefit of a financial guarantee
insurance policy (the "NOTE POLICY") issued by XL Capital Insurance Inc.
("XLCA").
4. The Issuer from time to time acquired pools of Receivables
from CPS pursuant to the Sale and Servicing Agreement, dated as of March 7, 2002
(the "ORIGINAL SALE AND SERVICING AGREEMENT"), among the Issuer, as purchaser,
CPS, as seller and servicer (in such capacities, the "SELLER" and the
"SERVICER," respectively), Systems & Services Technologies, Inc., a Delaware
corporation, as back-up servicer, and ▇▇▇▇▇ Fargo, as successor-by-merger to
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as successor-in-interest to
Bank One Trust Company, N.A., as standby servicer and as Trustee, which was
amended and restated as of November 30, 2004 (as amended and restated, the
"AMENDED AND RESTATED SALE AND SERVICING AGREEMENT"), by the Issuer, as
purchaser, CPS, as Seller and Servicer, ▇▇▇▇▇ Fargo, as back-up servicer (in
such capacity, the "BACK-UP Servicer") and Trustee, and WestLB, as Agent.
5. Pursuant to the Amended and Restated Agreement and the
Amended and Restated Indenture the Issuer issued the Amended and Restated Note
in favor of Paradigm and obtained the agreement of Paradigm to make loans from
time to time (each, an "ADVANCE") for the purchase of Invested Amounts, all of
which Advances are evidenced by the Amended and Restated Note.
6. The Trustee, WestLB and the Issuer are amending and
restating the Amended and Restated Indenture pursuant to that Second Amended and
Restated Indenture dated as of even date herewith (as the same may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms thereof, the "INDENTURE") and, in connection therewith, amending
and restating the Amended and Restated Note (as the same may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms thereof and the Indenture, the "NOTE") and the parties to the
Amended and Restated Sale and Servicing Agreement are amending and restating the
Amended and Restated Sale and Servicing Agreement pursuant to that Second
Amended and Restated Sale and Servicing Agreement dated as of even date herewith
(as the same may be amended, supplemented, restated or otherwise modified from
time to time in accordance with the terms thereof, the "SALE AND SERVICING
AGREEMENT"). Simultaneously with the amendment and restatement of the Amended
and Restated Indenture, the Amended and Restated Note and the Amended and
Restated Sale and Servicing Agreement, the Note Policy is being terminated in
accordance with its terms and XLCA is releasing, and will be released from, as
applicable, all of its rights, duties and obligations under the Note Policy and
the Basic Documents (as defined in the Amended and Restated Sale and Servicing
Agreement).
7. The Amending Parties now desire to amend and restate the
Amended and Restated Agreement to reflect the terms upon which Paradigm and the
Committed Note Purchaser will continue to make Advances to the Issuer for the
purchase of Invested Amounts.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Agreement and unless
the context requires a different meaning, capitalized terms used but not defined
herein (including the PREAMBLE and the RECITALS hereto) shall have the meanings
assigned to such terms in ANNEX A to the Sale and Servicing Agreement. In
addition, the following terms shall have the following meanings and the
definitions of such terms are applicable to the singular as well as the plural
form of such terms and to the masculine as well as the feminine and neuter
genders of such terms:
ARTICLE II
PURCHASE AND SALE OF THE NOTE
SECTION 2.01 THE INITIAL NOTE PURCHASE. On the terms and
conditions set forth in the Indenture, the Sale and Servicing Agreement and this
Agreement, and in reliance on the covenants, representations and agreements set
forth herein and therein, the Issuer shall issue and cause the Trustee to
authenticate and deliver to the Agent, as agent for Paradigm and the Committed
Note Purchaser, the Note on the date hereof. Such Note shall be dated the date
hereof, registered in the name of the Agent, as agent for Paradigm, the
Committed Note Purchaser, and their respective successors and assigns and duly
authenticated in accordance with the provisions of the Indenture.
SECTION 2.02 ADVANCES. Upon the Issuer's request, delivered in
accordance with the provisions of SECTION 2.03, and the satisfaction of all
conditions precedent thereto, subject to the terms and conditions of this
Agreement, the Indenture and the Sale and Servicing Agreement, Paradigm may and,
if Paradigm determines that it will not make an Advance or any portion of an
Advance, the Committed Note Purchaser shall, to the extent Paradigm does not
make such Advance, make Advances from time to time during the Term; PROVIDED
that no Advance shall be required or permitted to be made on any date if, after
giving effect to such Advance, (a) the Invested Amount would exceed the Maximum
Invested Amount or (b) a Borrowing Base Deficiency exists or would exist. The
proceeds of all Advances on any date shall be deposited into the Principal
Funding Account. Subject to the terms of this Agreement and the Indenture, the
aggregate principal amount of the Advances outstanding may be increased or
decreased from time to time.
SECTION 2.03 ADVANCE PROCEDURES. Whenever the Issuer wishes
Paradigm to make an Advance, the Issuer shall (or shall cause the Servicer to)
notify the Controlling Party by written notice delivered to the Controlling
Party no later than the third Business Day prior to the proposed Funding Date.
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Each such notice shall be irrevocable and shall in each case refer to this
Agreement and specify the aggregate amount of the requested Advance to be made
on such date. The Controlling Party shall promptly advise Paradigm and the
Committed Note Purchaser of any notice given pursuant to this section and shall
promptly thereafter (but in no event later than 11:00 a.m. New York City time on
the proposed Funding Date) notify the Issuer whether Paradigm or the Committed
Note Purchaser has determined to make such Advances. On the Funding Date,
subject to the other conditions set forth herein, in the Indenture, and in the
Sale and Servicing Agreement, Paradigm or the Committed Note Purchaser, as the
case may be, shall make available to the Issuer the amount of such Advance by
wire transfer in U.S. dollars of such amount in same day funds to the Principal
Funding Account no later than 4:00 p.m. (New York time) on the date of such
Advance.
SECTION 2.04 THE NOTE. On each date an Advance is funded under
the Note pursuant to the Indenture and on each date the amount of outstanding
Advances thereunder is reduced, a duly authorized officer, employee or agent of
the Controlling Party shall make appropriate notations in its books and records
of the amount of such Advance and the amount of such reduction, as applicable.
The Issuer hereby authorizes each duly authorized officer, employee and agent of
the Controlling Party to make such notations on the books and records as
aforesaid and every such notation made in accordance with the foregoing
authority shall be PRIMA FACIE evidence of the accuracy of the information so
recorded and shall be binding on the Issuer absent manifest error; PROVIDED,
HOWEVER, that in the event of a discrepancy between the books and records of the
Controlling Party and the records maintained by the Trustee pursuant to the
Indenture, such discrepancy shall be resolved by the Controlling Party and the
Trustee.
SECTION 2.05 COMMITMENT TERM. The "TERM" of the Commitment
hereunder shall be for a period commencing on the Closing Date and ending on the
Facility Termination Date, or such later date as the Committed Note Purchaser,
Paradigm and the Agent may agree to in writing, in their sole and absolute
discretion.
SECTION 2.06 SELECTION OF INTEREST RATES. Following any
assignment by Paradigm to its related liquidity providers pursuant to the
applicable liquidity purchase agreement or to the Committed Note Purchaser
hereunder, the Issuer may elect that Advances accrue interest at the Base Rate
or (if the Issuer gives notice prior to 11:00 a.m. (London Time) on the date
which is two London Business Days prior to the commencement of the related
Eurodollar Interest Period) that such Advances be made as Eurodollar Advances.
ARTICLE III
INTEREST AND FEES
SECTION 3.01 INTEREST. Each Advance funded or maintained by
Paradigm during any Interest Period (a) through the issuance of commercial paper
shall bear interest at the CP Rate for such Interest Period and (b) through
means other than the issuance of Commercial Paper shall bear interest at (i) the
Base Rate for the related Interest Period or (ii) if the required notice has
been given, the Eurodollar Rate (Reserve Adjusted) for the related Eurodollar
Interest Period, in each case except as otherwise provided in the definition of
Eurodollar Interest Period or in SECTION 3.03 or 3.04. Paradigm shall promptly
(but in no event later than the Business Day preceding the next Determination
Date) notify the Issuer and the Servicer of the applicable interest rate for the
Advances as of the first day of each Interest Period.
(a) Interest on Advances shall be due and payable on each
Settlement Date in accordance with the provisions of the Sale and Servicing
Agreement.
(b) All computations of interest at the CP Rate and the
Eurodollar Rate (Reserve Adjusted) shall be made on the basis of a year of 360
days and the actual number of days elapsed and all computations of interest at
the Base Rate shall be made on the basis of a 365 (or 366, as applicable) day
year and actual number of days elapsed. Whenever any payment of interest or
principal in respect of any Advance shall be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day (other than
as provided in the definition of Eurodollar Interest Period) and such extension
of time shall be included in the computation of the amount of interest owed.
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SECTION 3.02 FEES. On each Settlement Date on or prior to the
Facility Termination Date, the Issuer shall pay a facility fee equal to (i) the
product of (x) a fraction, the numerator of which is the actual number of days
elapsed in the related Interest Period and the denominator of which is 360 and
(y) 0.25% and (ii) the difference between (a) the Maximum Invested Amount and
(b) the daily average outstanding Invested Amount (the "UNUSED FACILITY FEE")
during the related Interest Period. Such Unused Facility Fee shall be paid in
accordance with Section 5.7(a)(ix) of the Sale and Servicing Agreement.
SECTION 3.03 EURODOLLAR LENDING UNLAWFUL. If Paradigm, the
Committed Note Purchaser or any Program Support Provider shall reasonably
determine (which determination shall, upon notice thereof to Paradigm and the
Issuer, be conclusive and binding on Paradigm and the Issuer absent manifest
error) that the introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any such Program Support Provider to
make, continue, or maintain any Advance as, or to convert any Advance into, the
Eurodollar Tranche of such Advance, the obligation of such Person to make,
continue or maintain or convert any such Advance as the Eurodollar Tranche of
such Advance shall, upon such determination, forthwith be suspended until such
Person shall notify Paradigm and the Issuer that the circumstances causing such
suspension no longer exist, and Paradigm shall immediately convert all Advances
of any such Program Support Provider, as applicable, into the Base Rate Tranche
of such Advance at the end of the then current Eurodollar Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 3.04 DEPOSITS UNAVAILABLE. If Paradigm, the Committed
Note Purchaser or any Program Support Provider shall have reasonably determined
that:
(a) Dollar deposits in the relevant amount and for the
relevant Eurodollar Interest Period are not available to all Reference
Lenders in the relevant market; or
(b) by reason of circumstances affecting all Reference
Lenders' relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to the Eurodollar Tranche of any
Advance; or
(c) Paradigm, the Committed Note Purchaser or the Majority
Program Support Providers have notified Paradigm and the Issuer that,
with respect to any interest rate otherwise applicable hereunder to the
Eurodollar Tranche of any Advance the Eurodollar Interest Period for
which has not then commenced, such interest rate will not adequately
reflect the cost to such Majority Program Support Providers of making,
funding or maintaining their respective Eurodollar Tranche of such
Advance for such Eurodollar Interest Period,
then, upon notice from Paradigm, the Committed Note Purchaser or the Majority
Program Support Providers to Paradigm and the Issuer, the obligations of
Paradigm, the Committed Note Purchaser and all Program Support Providers to make
or continue any Advance as, or to convert any Advances into, the Eurodollar
Tranche of such Advance shall forthwith be suspended until Paradigm shall notify
the Issuer that the circumstances causing such suspension no longer exist.
SECTION 3.05 INCREASED COSTS, ETC. The Issuer agrees to
reimburse Paradigm and the Committed Note Purchaser and any Program Support
Provider (each, an "AFFECTED PERSON") for an increase in the cost of, or any
reduction in the amount of any sum receivable by any such Affected Person,
including reductions in the rate of return on such Affected Person's capital, in
respect of making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Advances as, or of converting (or of its obligation to
convert) any Advances into, the Eurodollar Tranche of such Advance that arise in
connection with any change in, or the introduction, adoption, effectiveness,
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interpretation reinterpretation or phase-in, in each case, after the date
hereof, of any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority, except for such changes with respect to
increased capital costs and taxes which are governed by SECTIONS 3.07 and 3.08,
respectively; PROVIDED, however, that the Issuer shall have no obligation to pay
any such additional amount under this SECTION 3.05 with respect to any day or
days unless any such Affected Person shall have notified Paradigm and the Issuer
of its demand therefor within forty-five (45) days of the date upon which such
Affected Person has obtained audited information with respect to the fiscal year
of such Affected Person in which such day or days occurred. Each such demand
shall be provided to Paradigm and the Issuer in writing and shall state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Affected Person for such increased cost or reduced amount or
return. Such additional amounts shall be payable by the Issuer to Paradigm and
by Paradigm directly to such Affected Person within five (5) Business Days of
its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on Paradigm and the Issuer.
SECTION 3.06 FUNDING LOSSES. In the event any Affected Person
shall incur any loss or expense (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Affected Person to make, continue or maintain any portion of the principal
amount of any Advance as, or to convert any portion of the principal amount of
any Advance into, the Eurodollar Tranche of such Advance) as a result of:
(a) any conversion or repayment or prepayment (for any reason,
including, without limitation, as a result of the acceleration of the
maturity of the Eurodollar Tranche of such Advance or the assignment
thereof in accordance with the requirements of the applicable Program
Support Agreement) of the principal amount of any portion of the
Eurodollar Tranche on a date other than the scheduled last day of the
Eurodollar Interest Period applicable thereto;
(b) any Advance not being made as an Advance under the
Eurodollar Tranche after a request for such an Advance has been made in
accordance with the terms contained herein; or
(c) any Advance not being continued as, or converted into, an
Advance under the Eurodollar Tranche after a request for such an
Advance has been made in accordance with the terms contained herein, or
(d) any failure of the Issuer to make a prepayment on the Note
after notice thereof is delivered pursuant to SECTION 10.1(B) of the
Indenture.
then, upon the written notice of any Affected Person to Paradigm and the Issuer,
the Issuer shall pay to Paradigm and Paradigm shall, within five (5) Business
Days of its receipt thereof, pay directly to such Affected Person such amount as
will (in the reasonable determination of such Affected Person) reimburse such
Affected Person for such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on Paradigm and the Issuer.
SECTION 3.07 INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation or
phase-in, in each case after the date hereof, of any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority
affects or would affect the amount of capital required or reasonably expected to
be maintained by any Affected Person or any Person controlling such Affected
Person and such Affected Person reasonably determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of its commitment or the Advances made by such Affected Person
is reduced to a level below that which such Affected Person or such controlling
Person would have achieved but for the occurrence of any such circumstance,
then, in any such case after notice from time to time by such Affected Person to
Paradigm and the Issuer, the Issuer shall pay to Paradigm and Paradigm shall pay
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an incremental commitment fee sufficient to compensate such Affected Person or
such controlling Person for such reduction in rate of return; PROVIDED, HOWEVER,
that neither the Issuer nor Paradigm shall have any obligation to pay any such
additional amount under this SECTION 3.07 with respect to any day or days unless
such Affected Person shall have notified Paradigm and the Issuer of its demand
therefor within forty-five (45) days of the date upon which such Affected Person
has obtained audited information with respect to the fiscal year of such
Affected Person in which such day or days occurred. A statement of such Affected
Person as to any such additional amount or amounts (including calculations
thereof in reasonable detail), in the absence of manifest error, shall be
conclusive and binding on Paradigm and the Issuer; and PROVIDED, FURTHER, that
the initial payment of such increased commitment fee shall include a payment for
accrued amounts due under this SECTION 3.07 prior to such initial payment. In
determining such additional amount, such Affected Person may use any method of
averaging and attribution that it (in its reasonable discretion) shall deem
applicable so long as it applies such method to other similar transactions.
SECTION 3.08 TAXES. All payments by the Issuer of principal
of, and interest on, the Advances and all other amounts payable hereunder
(including fees) shall be made free and clear of and without deduction for any
present or future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature whatsoever imposed by
any taxing authority, but excluding in the case of any Affected Person, taxes
imposed on or measured by its overall net income, overall receipts or overall
assets and franchise taxes imposed on it by the jurisdiction of any Affected
Person, as the case may be, in which it is organized or is operating or any
political subdivision thereof and taxes imposed on or measured by its overall
net income, overall receipts or overall assets or franchise taxes imposed on it
by the jurisdiction of any Affected Person's Domestic Office or Eurodollar
Office, as the case may be, or any political subdivision thereof (such
non-excluded items being called "TAXES"). In the event that any withholding or
deduction from any payment to be made by Paradigm hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Issuer will pay to Paradigm and Paradigm will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the agent for the relevant Affected
Person an official receipt or other documentation satisfactory to the
agent for the relevant Affected Person or evidencing such payment to
such authority; and
(c) pay to the agent for the relevant Affected Person such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Affected Person will equal the full
amount such Affected Person would have received had no such withholding
or deduction been required.
Moreover, if any Taxes are directly asserted against any Affected Person with
respect to any payment received by such Affected Person or its agent hereunder,
such Affected Person or its agent may pay such Taxes and Paradigm will promptly
upon receipt of prior written notice stating the amount of such Taxes pay such
additional amounts (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any Taxes on such additional amount) shall equal the
amount such person would have received had not such Taxes been asserted. Each
Affected Person shall make all reasonable efforts, including transferring its
interest in the Note to another lending office, to avoid the imposition of any
Taxes which would give rise to an additional payment under this SECTION 3.08.
If the Issuer fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Affected Person or its
agent the required receipts or other required documentary evidence, the Issuer
shall indemnify the Affected Person and their agent for any incremental Taxes,
interest or penalties that may become payable by any such Affected Person or its
agent as a result of any such failure. For purposes of this SECTION 3.08, a
distribution hereunder by the agent for the relevant Affected Person shall be
deemed a payment by the Issuer.
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Upon the request of the Issuer, each Affected Person that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the initial due date of any payments hereunder and to the extent
permissible under then current law, execute and deliver to Paradigm and the
Issuer on or about the first scheduled payment date in each calendar year
thereafter, one or more (as the Issuer may reasonably request) United States
Internal Revenue Service Forms W-8ECI or Forms W-8BEN or such other forms or
documents (or successor forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to such Affected
Person is exempt from withholding or deduction of Taxes. Paradigm shall not,
however, be required to pay any increased amount under this SECTION 3.08 to any
Affected Person that is organized under the laws of a jurisdiction other than
the United States if such Affected Person fails to comply with the requirements
set forth in this paragraph.
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01 TIME AND METHOD OF PAYMENT. All amounts payable
to Paradigm or the Committed Note Purchaser hereunder or with respect to the
Note shall be made by wire transfer of immediately available funds in Dollars
not later than 1:00 p.m., New York City time, on the date due. Any funds
received after that time will be deemed to have been received on the next
Business Day.
ARTICLE V
THE AGENT
SECTION 5.01 AUTHORIZATION AND ACTION. Each Note Purchaser
Party is hereby deemed to have designated and appointed West LB as the Agent
hereunder, and hereby authorizes the Agent to take such actions as agent on its
behalf and to exercise such powers as are delegated to the Agent by the terms of
this Agreement together with such powers as are reasonably incidental thereto.
The Agent shall not have any duties or responsibilities, except those expressly
set forth herein (whether as Agent or, if applicable, Controlling Party), or any
fiduciary relationship with Paradigm, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the Agent
shall be read into this Agreement or otherwise exist for the Agent. In
performing its functions and duties hereunder, the Agent shall act solely as
agent for the Note Purchaser Parties and does not assume nor shall it be deemed
to have assumed any obligation or relationship of trust or agency with or for
the Issuer or any of its successors or assigns. The Agent shall not be required
to take any action that exposes the Agent to personal liability or that is
contrary to this Agreement or applicable law. The appointment and authority of
the Agent hereunder shall terminate upon the earlier of (x) the indefeasible
payment in full of the Note and all other amounts owed by the Issuer hereunder
and under the Indenture (the "AGGREGATE UNPAIDS") and (y) the resignation of the
Agent without the appointment of a successor Agent pursuant to Section 5.07.
SECTION 5.02 DELEGATION OF DUTIES. The Agent may execute any
of its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
SECTION 5.03 EXCULPATORY PROVISIONS. Neither the Agent nor any
of its directors, officers, agents or employees shall be (a) liable for any
action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement (except for its, their or such Person's own gross
negligence or willful misconduct or, in the case of the Agent, the breach of its
obligations expressly set forth in this Agreement), or (b) responsible in any
manner to any of the Note Purchaser Parties for any recitals, statements,
representations or warranties made by the Issuer contained in this Agreement or
in any certificate, report, statement or other document referred to or provided
for in, or received under or in connection with, this Agreement for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other document furnished in connection herewith, or for any
failure of the Issuer to perform its obligations hereunder, or for the
satisfaction of any condition specified in Article VII. The Agent shall not be
under any obligation to any Note Purchaser Party to ascertain or to inquire as
to the observance or performance of any of the agreements or covenants contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of the Issuer. The Agent shall not be deemed to have knowledge of any
Funding Termination Event or potential Funding Termination Event unless the
Agent has received notice from the Issuer or a Note Purchaser Party.
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SECTION 5.04 RELIANCE. The Agent shall in all cases be
entitled to rely, and shall be fully protected in relying, upon any document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Issuer),
independent accountants and other experts selected by the Agent. The Agent shall
in all cases be fully justified in failing or refusing to take any action under
this Agreement or any other document furnished in connection herewith unless it
shall first receive such advice or concurrence of Paradigm or the Note Purchaser
Parties, as applicable, as it deems appropriate or it shall first be indemnified
to its satisfaction by the Note Purchaser Parties, provided that unless and
until the Agent shall have received such advice, the Agent may take or refrain
from taking any action, as the Agent shall deem advisable and in the best
interests of the Note Purchaser Parties. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of a Note Purchaser Party and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Note Purchaser Parties.
SECTION 5.05 NON-RELIANCE ON THE AGENT AND OTHER PURCHASERS.
Each Note Purchaser Party expressly acknowledges that neither the Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the Agent
hereafter taken, including, without limitation, any review of the affairs of the
Issuer, shall be deemed to constitute any representation or warranty by the
Agent. Each Note Purchaser Party represents and warrants to the Agent that it
has and will, independently and without reliance upon the Agent or any other
Note Purchaser Party and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the Issuer and made its own decision to enter into this
Agreement and, in the case of a Hedge Counterparty, such Hedge Counterparty's
Hedge Agreement.
SECTION 5.06 THE AGENT IN ITS INDIVIDUAL CAPACITY. The Agent
and any of its Affiliates may make loans to, accept deposits from, and generally
engage in any kind of business with the Issuer or any Affiliate of the Issuer as
though the Agent were not the Agent hereunder.
SECTION 5.07 SUCCESSOR AGENT. The Agent may, upon 5 days
notice to the Issuer and the Note Purchaser Parties, and the Agent will, upon
the direction of Paradigm or any successor Noteholder, resign as Agent. If the
Agent shall resign, then Paradigm or any successor Noteholder, during such 5-day
period, may appoint from among the Note Purchaser Parties a successor Agent. The
retiring Agent shall agree to cause the re-registration of the Note in the name
of a successor Agent or Paradigm or any successor Noteholder and/or the
Committed Note Purchaser, as directed by Paradigm or any successor Noteholder.
After any retiring Agent's resignation hereunder as Agent, the provisions of
SECTION 9.05 and this Article V shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 THE ISSUER. The Issuer represents and warrants to
Paradigm and the Committed Note Purchaser that each of its representations and
warranties in the Indenture and the other Basic Documents is true and correct,
as of the date hereof as if made on and as of the date hereof and as of and
after giving effect to the making of each Advance as if made on and as of the
making of each Advance, and further represents and warrants to such parties, as
of the date hereof and as of and after giving effect to the making of each
Advance, that:
(a) The Issuer has been duly organized and is validly existing
as a statutory trust in good standing under the laws of the State of
Delaware, and the Issuer has full power and authority (corporate and
other) necessary to own or hold its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement and the other Basic Documents and,
with respect to the Issuer, to cause the Trustee to authorize and issue
the Note from time to time as contemplated by this Agreement and the
Indenture;
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(b) the Issuer is not in violation of its certificate of trust
or in default under any agreement, indenture or instrument to which it
is a party, the effect of which violation or default would be
materially adverse to it, to the Receivables or to any of the
transactions contemplated hereby. Neither the issuance and sale of the
Note, nor the execution, delivery and performance by the Issuer of this
Agreement or any Basic Document to which it is a party, nor the
consummation by the Issuer of any of the transactions contemplated
hereby or by any Basic Document, nor compliance by the Issuer with the
provisions hereof or thereof, does or will conflict with or result in a
breach or violation of any term or provision of the certificate of
trust (or other document of similar import) of the Issuer or conflict
with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other agreement or
instrument to which the Issuer is a party or by which either of them is
bound or to which any of the properties of the Issuer is subject, the
effect of which conflict, breach, violation, acceleration or default
would be materially adverse to it, the Receivables or any of the
transactions contemplated hereby or any statute, order or regulation
applicable to the Issuer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Issuer, the
effect of which conflict, breach, violation or default would be
materially adverse to it, the Receivables or any of the transactions
contemplated hereby. The Issuer is not a party to, bound by or in
breach or violation of any indenture or other agreement or instrument
to which it is a party, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it that materially
and adversely affects, or could reasonably be expected to materially
and adversely affect, (i) the ability of the Issuer to perform its
obligations under this Agreement or any Basic Document or (ii) the
business, operations, financial condition, properties, assets or
prospects of the Issuer;
(c) there are no actions or proceedings against, or
investigations of, the Issuer pending, or, to the knowledge of the
Issuer, threatened, before any court, arbitrator, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement, any
Basic Document or the Note, (ii) seeking to prevent the issuance of the
Note or the consummation of any of the transactions contemplated by
this Agreement or any Basic Document, (iii) that, if determined
adversely to the Issuer, could reasonably be expected to materially and
adversely affect the Receivables or the business, operations, financial
condition, properties, assets or prospects of the Issuer or the
validity or enforceability of, or the performance by the Issuer of its
obligations under, this Agreement, any Basic Document or the Note or
(iv) seeking to affect adversely the federal income tax attributes of
the Note;
(d) immediately prior to each pledge of Receivables by the
Issuer to the Trustee as contemplated by the Indenture, the Issuer (i)
had good title to, and was the sole owner of, each such Receivable and
the other property purported to be pledged by it pursuant to the
Indenture free and clear of any Lien and (ii) had not assigned to any
person any of its right, title or interest in such Receivables or
property.
(e) [Reserved].
(f) no Funding Termination Event, or event which, with the
giving of notice or the passage of time or both would constitute a
Funding Termination Event, has occurred and is continuing;
(g) assuming Paradigm or other purchaser of the Note hereunder
is not purchasing with a view toward further distribution and there has
been no general solicitation or general advertising within the meaning
of the Securities Act, the offer and sale of the Note in the manner
contemplated by this Agreement is a transaction exempt from the
registration requirements of the Securities Act, and the Indenture is
not required to be qualified under the Trust Indenture Act; and
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(h) the Issuer has furnished to the Committed Note Purchaser
true, accurate and (except as otherwise consented by the Committed Note
Purchaser) complete copies of all other Basic Documents to which it is
a party as of the date of this Agreement, all of which Basic Documents
are in full force and effect as of the date of this Agreement and no
terms of any such agreements or documents have been amended, modified
or otherwise waived as of such date.
SECTION 6.02 SERVICER. The Servicer represents and warrants to
Paradigm and the Committed Note Purchaser, as of the date hereof and as of and
after giving effect to the making of each Advance, that:
(a) the Servicer has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of California, and the Servicer has full power and authority (corporate
and other) necessary to own or hold its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement and the other Basic Documents;
(b) the Servicer is not in violation of its certificate of
incorporation or by-laws, respectively, or in default under any
agreement, indenture or instrument to which it is a party, the effect
of which violation or default would be materially adverse to it, to the
Receivables or to any of the transactions contemplated hereby. Neither
the issuance and sale of the Note, nor the execution, delivery and
performance by the Servicer of this Agreement or any Basic Document to
which it is a party, nor the consummation by the Servicer of any of the
transactions contemplated hereby or by any Basic Document, nor
compliance by the Servicer with the provisions hereof or thereof, does
or will conflict with or result in a breach or violation of any term or
provision of the certificate of incorporation or by-laws (or other
document of similar import) of the Servicer or conflict with, result in
a breach, violation or acceleration of, or constitute a default under,
the terms of any indenture or other agreement or instrument to which
the Servicer is a party or by which either of them is bound or to which
any of the properties of the Servicer is subject, the effect of which
conflict, breach, violation, acceleration or default would be
materially adverse to it, the Receivables or any of the transactions
contemplated hereby or any statute, order or regulation applicable to
the Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Servicer, the effect of
which conflict, breach, violation or default would be materially
adverse to it, the Receivables or any of the transactions contemplated
hereby. The Servicer is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument to which it
is a party, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it that materially and
adversely affects, or could reasonably be expected to materially and
adversely affect, (i) the ability of the Servicer to perform its
obligations under this Agreement or any Basic Document or (ii) the
business, operations, financial condition, properties, assets or
prospects of the Servicer;
(c) there are no actions or proceedings against, or
investigations of, the Servicer pending, or, to the knowledge of the
Servicer, threatened, before any court, arbitrator, administrative
agency or other tribunal (i) asserting the invalidity of this
Agreement, any Basic Document or the Note, (ii) seeking to prevent the
issuance of the Note or the consummation of any of the transactions
contemplated by this Agreement or any Basic Document, (iii) that, if
determined adversely to the Servicer, could reasonably be expected to
materially and adversely affect the Receivables or the business,
operations, financial condition, properties, assets or prospects of the
Servicer or the validity or enforceability of, or the performance by
the Servicer of its obligations under, this Agreement, any Basic
Document or the Note or (iv) seeking to affect adversely the federal
income tax attributes of the Note;
(d) each representation and warranty made by it in each Basic
Document to which it is a party (including any representations and
warranties made by it as Servicer) is true and correct as of the date
originally made, as of the date hereof as if made on and as of the date
hereof and as of and after giving effect to the making of each Advance
as if made on and as of the making of each Advance,
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(e) the audited consolidated balance sheet of the Servicer and
its consolidated subsidiaries as of December 31, 2004 and the related
statements of income, changes in stockholders equity and cash flow as
of and for the fiscal year ending on such date (including in each case
the schedules and notes thereto) (the "FINANCIAL STATEMENTS"), have
been prepared in accordance with GAAP and present fairly the financial
position of the Servicer and its consolidated subsidiaries as of the
dates thereof and the results of their operations for the periods
covered thereby subject, in the case of all unaudited statements, to
normal year-end adjustments and lack of footnotes and other
presentation items.
SECTION 6.03 NOTE PURCHASER. Each of Paradigm and the
Committed Note Purchaser represents and warrants to the Issuer and the Servicer,
as of the date hereof (or as of a subsequent date on which a successor or assign
of Paradigm or the Committed Note Purchaser shall become a party hereto), that:
(a) it has had an opportunity to discuss the Issuer's and the
Servicer's business, management and financial affairs, and the terms
and conditions of the proposed purchase, with the Issuer and the
Servicer and their respective representatives;
(b) it is an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and
has sufficient knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of investing
in, and is able and prepared to bear the economic risk of investing in,
the Note;
(c) it is purchasing the Note for its own account, or for the
account of one or more "accredited investors" within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act that meet the criteria described in SUBSECTION (B) and for which it
is acting with complete investment discretion, for investment purposes
only and not with a view to distribution, subject, nevertheless, to the
understanding that the disposition of its property shall at all times
be and remain within its control;
(d) it understands that the Note has not been and will not be
registered or qualified under the Securities Act or any applicable
state securities laws or the securities laws of any other jurisdiction
and is being offered only in a transaction not involving any public
offering within the meaning of the Securities Act and may not be resold
or otherwise transferred unless so registered or qualified or unless an
exemption from registration or qualification is available, that the
Issuer is not required to register the Note, and that any transfer must
comply with provisions of SECTION 2.3 of the Indenture;
(e) it understands that the Note will bear the legend set out
in the form of Note attached as EXHIBIT A-1 to the Indenture and be
subject to the restrictions on transfer described in such legend;
(f) it will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Note;
(g) it understands that the Note may be offered, resold,
pledged or otherwise transferred with the Issuer's prior written
consent (unless an Event of Default has occurred, in which case, the
Issuer's consent is not required) only (A) to the Issuer or an
Affiliate of the Issuer, (B) in a transaction meeting the requirements
of Rule 144A under the Securities Act, or (C) in a transaction
complying with or exempt from the registration requirements of the
Securities Act and in accordance with any applicable securities laws of
any state of the United States or any other jurisdiction;
notwithstanding the foregoing, it is hereby understood and agreed by
the Issuer that the Note will be pledged by Paradigm pursuant to
Paradigm's commercial paper program documents, and may be sold,
transferred or pledged to West LB or any affiliate of West LB or, any
commercial paper conduit administered by West LB or any affiliate of
West LB, without the consent of the Issuer;
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(h) if it desires to offer, sell or otherwise transfer, pledge
or hypothecate the Note as described in clause (B) or (C) of the
preceding paragraph, the transferee of the Note will be required to
deliver a certificate and may under certain circumstances be required
to deliver an opinion of counsel, in each case, as described in the
Indenture, reasonably satisfactory in form and substance to the
applicable seller, that an exemption from the registration requirements
of the Securities Act applies to such offer, sale, transfer or
hypothecation. Paradigm understands that the registrar and transfer
agent for the Note will not be required to accept for registration of
transfer the Note acquired by it, except upon presentation of an
executed letter in the form required by the Indenture;
(i) it will obtain from any purchaser of the Note
substantially the same representations and warranties contained in the
foregoing paragraphs; and
(j) this Agreement has been duly and validly authorized,
executed and delivered by Paradigm and the Committed Note Purchaser and
constitutes a legal, valid, binding obligation of Paradigm and the
Committed Note Purchaser, enforceable against Paradigm and the
Committed Note Purchaser in accordance with its terms.
ARTICLE VII
CONDITIONS
SECTION 7.01 CONDITIONS TO ISSUANCE. Paradigm will have no
obligation to purchase the Note hereunder unless:
(a) the Indenture shall be in full force and effect; and
(b) at the time of such issuance, all conditions to the
issuance of the Note under the Indenture and under SECTION 2.2 of the
Sale and Servicing Agreement shall have been satisfied.
SECTION 7.02 CONDITIONS TO INITIAL ADVANCE. The obligation of
Paradigm to fund the initial Advance hereunder shall be subject to the
satisfaction of the conditions precedent that all conditions precedent set forth
in the Indenture and in SECTION 2.2 of the Sale and Servicing Agreement shall
have been satisfied, the Agent shall have received a duly executed and
authenticated Note registered in its name as Agent and stating that the
principal amount thereof shall not exceed the Maximum Invested Amount and the
Issuer shall have paid all fees required to be paid by it on the Closing Date,
including all fees required hereunder.
SECTION 7.03 CONDITIONS TO EACH ADVANCE. The election of
Paradigm to fund, and the obligation of the Committed Note Purchaser to fund,
any Advance on any day (including the Initial Advance) shall be subject to the
conditions precedent that on the date of the Advance, before and after giving
effect thereto and to the application of any proceeds therefrom, the following
statements shall be true:
(a) the Facility Termination Date shall not have occurred;
(b) the Controlling Party shall have received the Servicer's
Certificate for the Accrual Period immediately preceding the date of
such Advance and an executed advance request in the form of EXHIBIT B-1
or EXHIBIT B-2 hereto (each such request, an "ADVANCE REQUEST")
certifying as to the current Borrowing Base;
(c) such Advance is at least $1,000,000;
(d) such Advance will not cause there to be more than two
Advances in a calendar week;
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(e) after giving effect to such Advance, the Aggregate
Principal Balance of Eligible Receivables will be $5,000,000 or more;
(f) after giving effect to such Advance, the Invested Amount
of the Note will not exceed the Maximum Invested Amount;
(g) no Funding Termination Event or Event of Default has
occurred or will occur as a result of making such Advance;
(h) the representations and warranties made by the Servicer
and the Issuer are true and correct;
(i) the Controlling Party shall have received a properly
completed Borrowing Base Certificate in the form of EXHIBIT A hereto at
least 3 Business Days prior to such Funding Date;
(j) the Trustee shall (in accordance with the procedures
contemplated in SECTION 3.4 of the Sale and Servicing Agreement) have
confirmed receipt of the related Receivable File for each Eligible
Receivable included in the Borrowing Base calculation;
(k) the amount on deposit in the Reserve Account shall equal
or exceed the Required Reserve Account Amount, taking into account the
application of the proceeds of the proposed Advance on such date;
(l) Hedge Agreements are in full force and effect in
accordance with SECTION 2.1(b)(xviii) of the Sale and Servicing
Agreement;
(m) after giving effect to such Advance, the Borrowing Base
Deficiency shall be equal to zero;
(n) immediately prior to giving effect to such Advance, the
Weighted Average Portfolio Spread shall not be less than 3.0%; and
(o) all limitations specified in SECTION 2.02 of this
Agreement and in SECTION 2.2 of the Sale and Servicing Agreement shall
have been satisfied with respect to the making of such Advance.
The giving of any notice pursuant to SECTION 2.03 shall
constitute a representation and warranty by the Issuer and the Servicer that all
conditions precedent to such Advance have been satisfied.
ARTICLE VIII
COVENANTS
SECTION 8.01 COVENANTS. Each of the Issuer and the Servicer
severally covenants and agrees that, until the Note and all other obligations of
the Issuer under this Agreement have been paid in full and the Term has expired,
it will:
(a) duly and timely perform all of its respective covenants
and obligations under each Basic Document to which it is a party;
(b) not except as contemplated by the Indenture, amend,
modify, waive or give any approval, consent or permission under, any
provision of the Indenture or any other Basic Document to which it is a
party unless any such amendment, modification, waiver or other action
is in writing and made in accordance with the terms of the Indenture or
such other Basic Document, as applicable;
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(c) at the same time any report, notice or other document is
provided to the Rating Agencies and/or the Trustee, or caused to be
provided, by the Issuer or the Servicer under the Indenture, provide
the Controlling Party with a copy of such report, notice or other
document; PROVIDED, HOWEVER, that neither the Servicer nor the Issuer
shall have any obligation under this SECTION 8.01(C) to deliver to the
Controlling Party copies of any vehicle identification number listings;
(d) at any time and from time to time, following at least 3
Business Days prior notice from the Controlling Party, and during
regular business hours, permit the Controlling Party, or its agents,
representatives or permitted assigns, access to the offices of, the
Servicer and the Issuer, as applicable, (i) to examine and make copies
of and abstracts from all documentation relating to the Collateral, and
(ii) to visit the offices and properties of, the Servicer and the
Issuer for the purpose of examining such materials described in CLAUSE
(I) above, and to discuss matters relating to the Collateral, or the
administration and performance of the Indenture, the Sale and Servicing
Agreement and the other Basic Documents with any of the officers or
employees of, the Servicer and/or the Issuer, as applicable, having
knowledge of such matters.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 AMENDMENTS. No amendment to or waiver of any
provision of this Agreement, nor consent to any departure by the Servicer, the
Issuer, Paradigm or the Committed Note Purchaser therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Servicer, the
Issuer, the Agent, the Committed Note Purchaser and Paradigm.
SECTION 9.02 NO WAIVER; REMEDIES. Any waiver, consent or
approval given by any party hereto shall be effective only in the specific
instance and for the specific purpose for which given, and no waiver by a party
of any breach or default under this Agreement shall be deemed a waiver of any
other breach or default. No failure on the part of any party hereto to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder, or any
abandonment or discontinuation of steps to enforce the right, power or
privilege, preclude any other or further exercise thereof or the exercise of any
other right. No notice to or demand on any party hereto in any case shall
entitle such party to any other or further notice or demand in the same, similar
or other circumstances. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.03 BINDING ON SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon, and inure to the benefit of, the Issuer, the Servicer,
the Committed Note Purchaser, Paradigm, the Agent, and their respective
successors and assigns; PROVIDED, HOWEVER, that neither the Issuer nor the
Servicer may assign its rights or obligations hereunder or in connection
herewith or any interest herein (voluntarily, by operation of law or otherwise)
without the prior written consent of Paradigm and the Committed Note Purchaser;
and PROVIDED, FURTHER, that neither Paradigm nor the Committed Note Purchaser
may transfer, pledge, assign, sell participations in or otherwise encumber its
rights or obligations hereunder or in connection herewith or any interest herein
except as permitted under SECTIONS 9.03 (A) AND (B). Nothing expressed herein is
intended or shall be construed to give any Person other than the Persons
referred to in the preceding sentence any legal or equitable right, remedy or
claim under or in respect of this Agreement.
(a) Notwithstanding any other provision set forth in this
Agreement, Paradigm may at any time grant to one or more Program Support
Providers a participating interest in or lien on Paradigm's interests in the
Advances made hereunder and such Program Support Provider, with respect to its
participating interest, shall be entitled to the benefits granted to Paradigm
under this Agreement.
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(b) Paradigm may at any time assign its rights in the Note
(and its rights hereunder and under the Basic Documents) to the Committed Note
Purchaser. Furthermore, Paradigm may at any time grant a security interest in
and lien on, all or any portion of its interests under this Agreement, the Note
and all Basic Documents to (i) the Committed Note Purchaser, (ii) any Person
who, at any time now or in the future, provides program liquidity or credit
enhancement, including without limitation, a surety bond for Paradigm or (iii)
any other Person who, at any time now or in the future, provides liquidity or
credit enhancement for Paradigm, including without limitation, a surety bond;
PROVIDED, HOWEVER, any such security interest or lien shall be released upon
assignment of the Note to the Committed Note Purchaser. The Committed Note
Purchaser may assign its Commitment or all or any portion of its interest under
the Note, this Agreement and the Basic Documents to any Person with the written
consent of the Issuer. Notwithstanding the foregoing, it is understood and
agreed by the Issuer that the Note may be sold, transferred or pledged without
the consent of the Issuer in compliance with, and as provided for under, SECTION
6.03(G). Notwithstanding any other provisions set forth in this Agreement, the
Committed Note Purchaser may at any time create a security interest in all or
any portion of its rights under this Agreement, the Note and the Basic Documents
in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 9.04 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made herein and in the Note delivered pursuant
hereto shall survive the making and the repayment of the Advances and the
execution and delivery of this Agreement and the Note and shall continue in full
force and effect until all interest and principal on the Note and other amounts
owed hereunder have been paid in full and the commitment of Paradigm hereunder
has been terminated. In addition, the obligations of the Issuer and Paradigm
under SECTIONS 3.03, 3.04, 3.05, 3.06, 3.07 and 3.08 shall survive the
termination of this Agreement.
SECTION 9.05 PAYMENT OF COSTS AND EXPENSES; INDEMNIFICATION.
(a) PAYMENT OF COSTS AND EXPENSES. The Issuer agrees to pay on
demand all reasonable expenses of the Agent, Paradigm and the Committed
Note Purchaser (including the reasonable fees and out-of-pocket
expenses of counsel to the Agent, Paradigm and the Committed Note
Purchaser, if any) in connection with:
(i) the negotiation, preparation, execution, delivery and
administration of this Agreement and of each other Basic Document,
including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to this Agreement or any
other Basic Document as may from time to time hereafter be proposed,
whether or not the transactions contemplated hereby or thereby are
consummated, and
(ii) the consummation of the transactions contemplated by this
Agreement and the other Basic Documents.
The Issuer further agrees to pay, and to save the Agent, Paradigm and the
Committed Note Purchaser harmless from all liability for, (i) any breach by the
Issuer of its obligations under this Agreement (ii) all reasonable costs
incurred by Paradigm in enforcing this Agreement and (iii) any stamp,
documentary or other taxes which may be payable in connection with the execution
or delivery of this Agreement, any Advance hereunder, or the issuance of the
Note or any other Basic Documents. The Issuer also agrees to reimburse the
Agent, Paradigm and the Committed Note Purchaser upon demand for all reasonable
out-of-pocket expenses incurred by the Agent, Paradigm or the Committed Note
Purchaser in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of the Basic Documents and (y) the
enforcement of the Basic Documents.
(b) INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by Paradigm and the Committed Note
Purchaser, the Issuer and the Servicer, jointly and severally, hereby
indemnify and hold Paradigm and the Committed Note Purchaser and each
of their officers, directors, employees and agents (collectively, the
"INDEMNIFIED PARTIES") harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and
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reasonable expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought and including, without limitation,
any liability in connection with the offering and sale of the Note),
including reasonable attorneys' fees and disbursements (collectively,
the "INDEMNIFIED LIABILITIES"), incurred by the Indemnified Parties or
any of them (whether in prosecuting or defending against such actions,
suits or claims) as a result of, or arising out of, or relating to
(i) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Advance; or
(ii) the entering into and performance of this Agreement and
any other Basic Document by any of the Indemnified Parties,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence, bad faith or willful misconduct and, with respect to the Servicer,
excluding any Indemnified Liabilities that would constitute recourse to the
Servicer for loss by reason of the bankruptcy, insolvency (or other credit
condition) of, or default by the related Obligor on any Receivable. If and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Issuer hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The indemnity set forth in this SECTION 9.05(B) shall in no
event include indemnification for any Taxes (which indemnification is provided
in SECTION 3.08). the Issuer shall give notice to the Rating Agencies of any
claim for Indemnified Liabilities made under this Section.
SECTION 9.06 CHARACTERIZATION AS BASIC DOCUMENT; ENTIRE
AGREEMENT. This Agreement shall be deemed to be a Basic Document for all
purposes of the Indenture and the other Basic Documents. This Agreement,
together with the Indenture, the Sale and Servicing Agreement, the documents
delivered pursuant to SECTION 7.01 and the other Basic Documents, including the
exhibits and schedules thereto, contains a final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter hereof, superseding all previous oral statements
and other writings with respect thereto.
SECTION 9.07 NOTICES. All notices, amendments, waivers,
consents and other communications provided to any party hereto under this
Agreement shall be in writing and addressed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto or
at such other address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted upon receipt of electronic confirmation
of transmission.
SECTION 9.08 SEVERABILITY OF PROVISIONS. Any covenant,
provision, agreement or term of this Agreement that is prohibited or is held to
be void or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement.
SECTION 9.09 TAX CHARACTERIZATION. Each party to this
Agreement (a) acknowledges that it is the intent of the parties to this
Agreement that, for accounting purposes and for all federal, state and local
income and franchise tax purposes, the Note will be treated as evidence of
indebtedness issued by the Issuer, (b) agrees to treat the Note for all such
purposes as indebtedness and (c) agrees that the provisions of the Basic
Documents shall be construed to further these intentions.
SECTION 9.10 NO PROCEEDINGS; LIMITED RECOURSE.
(a) THE ISSUER. Each of the parties hereto (other than the
Issuer) hereby covenants and agrees that, prior to the date which is one year
and one day after the date on which the Note and all Secured Obligations have
been paid in full, it will not institute against, or join with any other Person
in instituting against, the Issuer, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
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state bankruptcy or similar law, all as more particularly set forth in SECTION
13.16 of the Indenture and subject to any retained rights set forth therein;
PROVIDED, HOWEVER, that nothing in this SECTION 9.10(a) shall constitute a
waiver of any right to indemnification, reimbursement or other payment from the
Issuer pursuant to this Agreement, the Sale and Servicing Agreement or the
Indenture. In the event that the Committed Note Purchaser (solely in its
capacity as such) or Paradigm (solely in its capacity as such) takes action in
violation of this SECTION 9.10(a), the Issuer agrees that it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such a petition by any such Person against the Issuer or the commencement of
such action and raise the defense that such Person has agreed in writing not to
take such action and should be estopped and precluded therefrom and such other
defenses, if any, as its counsel advises that it may assert. The provisions of
this SECTION 9.10(a) shall survive the termination of this Agreement. Nothing
contained herein shall preclude participation by the Committed Note Purchaser or
Paradigm in assertion or defense of its claims in any such proceeding involving
the Issuer. The obligations of the Issuer under this Agreement are solely the
trust obligations of the Issuer. No recourse shall be had for the payment of any
amount owing in respect of this Agreement, including the payment of any fee
hereunder or any other obligation or claim arising out of or based upon this
Agreement, against any certificateholder, stockholder, employee, officer,
director, affiliate or trustee of the Issuer; PROVIDED, HOWEVER, nothing in this
SECTION 9.10(A) shall relieve any of the foregoing Persons from any liability
which any such Person may otherwise have for its gross negligence, bad faith or
willful misconduct. In addition, each of the parties hereto agree that all fees,
expenses and other costs payable hereunder by the Issuer shall be payable only
to the extent set forth in SECTION 11.16 of the Indenture and that all other
amounts owed to them by the Issuer shall be payable solely from amounts that
become available for payment pursuant to the Indenture and the Sale and
Servicing Agreement.
(b) PARADIGM. Each of the parties hereto (other than Paradigm)
hereby covenants and agrees that it will not, prior to the date which is one
year and one day after the payment in full of the latest maturing commercial
paper notes and other securities issued by Paradigm, institute against, or join
with any other Person in instituting against, Paradigm, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any Federal or state bankruptcy or similar law, subject to any
retained rights set forth therein; PROVIDED, HOWEVER, that nothing in this
SECTION 9.10(B) shall constitute a waiver of any right to indemnification,
reimbursement or other payment from Paradigm pursuant to this Agreement, the
Sale and Servicing Agreement or the Indenture. In the event that the Issuer, the
Servicer or the Committed Note Purchaser (solely in its capacity as such) takes
action in violation of this SECTION 9.10(B), Paradigm agrees that it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such a petition by any such Person against Paradigm or the commencement of such
action and raise the defense that such Person has agreed in writing not to take
such action and should be estopped and precluded therefrom and such other
defenses, if any, as its counsel advises that it may assert. The provisions of
this SECTION 9.10(B) shall survive the termination of this Agreement. Nothing
contained herein shall preclude participation by the Issuer, the Servicer or the
Committed Note Purchaser in assertion or defense of its claims in any such
proceeding involving Paradigm. The obligations of Paradigm under this Agreement
are solely the limited liability company obligations of Paradigm. No recourse
shall be had for the payment of any amount owing in respect of this Agreement,
including the payment of any fee hereunder or any other obligation or claim
arising out of or based upon this Agreement, against any member, partner,
stockholder, employee, officer, director, affiliate or incorporator of Paradigm;
PROVIDED, HOWEVER, nothing in this SECTION 9.10(B) shall relieve any of the
foregoing Persons from any liability which any such Person may otherwise have
for its gross negligence, bad faith or willful misconduct.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 9.12 JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY OF THE PARTIES HEREUNDER WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN ANY STATE OR (TO THE EXTENT PERMITTED BY LAW) FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH PARTY HEREUNDER ACCEPTS FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
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SECTION 9.13 WAIVER OF JURY TRIAL. ALL PARTIES HEREUNDER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS NOTE PURCHASE AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND
AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO
ENTER INTO THIS AGREEMENT.
SECTION 9.14 [RESERVED].
SECTION 9.15 COUNTERPARTS. This Agreement may be executed in
any number of counterparts (which may include facsimile) and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original, and all of which together shall constitute one and the
same instrument.
SECTION 9.16 ISSUER OBLIGATION. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Seller, the Servicer, the Depositor, the Owner Trustee or the Trustee on the
Note or under this Note Purchase Agreement or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Seller, the
Servicer, the Depositor, the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of the
Seller, the Servicer, the Depositor, the Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the issuer, the
Seller, the Servicer, the Depositor, the Owner Trustee or the Trustee or of any
successor or assign of the Seller, the Servicer, the Depositor, the Trustee or
the Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Trustee and the Owner Trustee
have no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Note Purchase
Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers and delivered as
of the day and year first above written.
CPS WAREHOUSE TRUST
By: Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee
By:
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Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CONSUMER PORTFOLIO SERVICES, INC.
By:
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Name:
Title:
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PARADIGM FUNDING LLC
By:
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Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WESTLB AG, acting through its New York Branch,
as Committed Note Purchaser and Agent
By:
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Name:
Title:
By:
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Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇