EXHIBIT 4.1
[ ]
Seller
and
Consumer Portfolio Services, Inc.
Servicer
and
[ ]
Trustee [and Standby Servicer]
POOLING AND SERVICING AGREEMENT
Dated as of [ ]
$[ ]
CPS Auto Grantor Trust 199[ ]-[ ]
$[ ], [ ]% Class A Certificates
$[ ], [ ]% Class B Certificates
POOLING AND SERVICING AGREEMENT dated as of [ _______ ] (the
"Agreement") among [ ________ ], a [ ______ ], as seller (the "Seller"),
Consumer Portfolio Services, Inc., a California corporation ("CPS"), as servicer
(the "Servicer"), and [ ], a [ __________ ], as trustee [and standby servicer]
(the "Trustee" [and "Standby Servicer", respectively]).
WHEREAS the Seller has purchased a portfolio of receivables arising in
connection with motor vehicle retail installment sale contracts acquired by
Consumer Portfolio Services, Inc. [and Affiliated Originator],
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:
"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.
["[Affiliated Originator]" means an Affiliate of CPS, other than Samco
and Linc, that has originated certain of the Receivables.
"[Affiliated Originator] Purchase Agreement" means the Purchase
Agreement, dated as of [ ], 19[ ] by and between [Affiliated Originator] and the
Seller, 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 [Affiliated Originator] Receivables by the Seller from [Affiliated
Originator].
"[Affiliated Originator] Receivables" shall have the meaning specified
in the [Affiliated Originator] Purchase Agreement.]
"Aggregate Pass-Through Rate" means the sum of the Class A Pass-Through
Rate and the Class B Pass-Through Rate.
"Aggregate Prepayment Reduction Amount" means for any Distribution
Date, the sum of the Prepayment Reduction Amounts for all Simple Interest
Receivables which were paid in full during the related Collection Period.
"Agreement" means this Pooling and Servicing Agreement, as the same may
be amended and supplemented from time to time.
"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, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of retail automobile installment sale contracts or
promissory notes, and related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in the Receivable.
"Authenticating Agent" has the meaning assigned to such term in Section
6.2B.
"Basic Documents" means this Pooling and Servicing Agreement, the CPS
Purchase Agreement, the Samco Purchase Agreement, the Linc Purchase Agreement,
[the [Affiliated Originator] Purchase Agreement], the [Enhancement Agreement],
[the Spread Account Agreement] and [ ] thereto, [the Lock-Box Agreement] and
[the Servicing Assumption Agreement].
"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 [Credit Enhancer] 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.
"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 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, CPS 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 [ ]% 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 for such
Distribution Date and the Class A Interest Distributable Amount for 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 [Credit Enhancer]; provided, however, the Class A Guaranteed
Distribution Amount shall not include, nor shall coverage be provided under [the
Credit Enhancement] 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
business on any Distribution Date on which an [Enhancement 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, 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 [ ______ ].
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"Class A Pass-Through Rate" means [ ]% per annum.
"Class A Percentage" shall be [ ] percent ([ ]%).
"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 [Enhancement 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 Principal Distributable Amount plus (b) [the
portion of the [Credit Enhancer] Optional Deposit pursuant to Section 4.11(ii),
if any, allocable to principal for such Distribution Date]. In addition, on the
Final Scheduled Distribution Date, the Class A Principal Distributable Amount
will equal the Class A Certificate Balance as of the Final Scheduled
Distribution Date.
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"Class B Certificate" means any one of the [ ]% 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, the
sum of the Class B Principal Distributable Amount and the Class B Interest
Distributable Amount.
"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 [ ].
"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, 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 Pass-Through Rate" means [ ]% per annum.
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"Class B Percentage" shall be [ ] percent ([ ]%).
"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.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the Class B Percentage of the Principal Distributable Amount.
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.
"Closing Date" means [ ].
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"Code" shall have the meaning specified in Section 2.6.
["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].]
"Collateral Agent Fee" means [ ].
"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.
"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.
"Contract" means a motor vehicle retail installment sale contract.
"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.
"CPS Purchase Agreement" means the Purchase Agreement dated as of [ ],
19[ ] 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 CPS Receivables by the Seller
from CPS.
"CPS Receivables" shall have the meaning specified in the CPS Purchase
Agreement.
"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.
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["[Credit Enhancer]" means [ ], a [ ] organized and created under the
laws of [ ], or its successors in interest.]
["Credit Enhancement" means [describe Credit Enhancement] issued by the
[Credit Enhancer] for the benefit of the Holders of the Class A Certificates
issued hereunder.]
["Credit Enhancement Account" means the segregated trust account
created by the Servicer under Section 4.1.]
"Cutoff Date" means [ ].
"Dealer" means, with respect to a Receivable, the seller of the related
Financed Vehicle, who originated and assigned such Receivable to CPS, Samco,
Linc or [Affiliated Originator], 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).
"Delivery" means, when used with respect to Transaction
Account Property:
(i) the perfection and priority of a security interest in such
Transaction Account Property which is governed by the law of a
jurisdiction which has adopted the 1978 Revision to Article 8 of the
UCC:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other
obligations that constitute "instruments" within the meaning
of Section 9-105 (1) (i) of the UCC and are susceptible of
physical delivery, transfer thereof to the Trustee or its
nominee or custodian by physical delivery to the Trustee or
its nominee or custodian endorsed to, or registered in the
name of, the Trustee or its nominee or custodian or endorsed
in blank, and, with respect to a certificated security (as
defined in Section 8-102 of the UCC), transfer thereof (1) by
delivery of such certificated security endorsed to, or
registered in the name of, the Trustee or its nominee or
custodian or endorsed in blank to a financial intermediary (as
defined in Section 8-313 of the UCC) and the making by such
financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the
Trustee or its nominee or custodian and the sending by such
financial intermediary of a confirmation of the purchase of
such certificated security by the Trustee or its nominee or
custodian, or (2) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102 (3) of the UCC) and
the making by such clearing corporation of appropriate entries
on its books reducing the appropriate securities account of
the transferor and increasing the appropriate securities
account of a financial intermediary by the amount of such
certificated security, the identification by the clearing
corporation of the certificated securities for the sole and
exclusive account of the financial intermediary, the
maintenance of such certificated securities by such clearing
corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the
clearing corporation's exclusive control, the sending of a
confirmation by the financial intermediary of the purchase by
the Trustee or its nominee or custodian of such securities and
the making by such financial intermediary of entries on its
books and records identifying such certificated securities as
belonging to the Trustee or its nominee or custodian (all of
the foregoing, "Physical Property"), and, in any event, any
such Physical Property in registered form shall be in the name
of the Trustee or its nominee or custodian; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of
any such Transaction Account Property to the Trustee or its
nominee or custodian, consistent with changes in applicable
law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the
Federal National Mortgage Association that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations, the following procedures, all
in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such Transaction Account Property
to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a
"depository" pursuant to applicable Federal regulations and
issuance by such financial intermediary of a deposit advice or
other written confirmation of such book-entry registration to
the Trustee or its nominee or custodian of the purchase by the
Trustee or its nominee or custodian of such book-entry
securities; the making by such financial intermediary of
entries in its books and records identifying such book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations as belonging to the Trustee or
its nominee or custodian and indicating that such custodian
holds such Transaction Account Property solely as agent for
the Trustee or its nominee or custodian; and such additional
or alternative procedures as may hereafter become appropriate
to effect complete transfer of ownership of any such
Transaction Account Property to the Trustee or its nominee or
custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Transaction Account
Property that is an uncertificated security under Article 8 of
the UCC and that is not governed by clause (b) above,
registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by
the Trustee or its nominee or custodian of such uncertificated
security, the making by such financial intermediary of entries
on its books and records identifying such uncertificated
certificates as belonging to the Trustee or its nominee or
custodian; or
(ii) the perfection and priority of a security interest in
such Transaction Account Property which is governed by the law of a
jurisdiction which has adopted the 1994 Revision to Article 8 of the
UCC:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other
obligations that constitute "instruments" within the meaning
of Section 9-105(1)(i) of the UCC (other than certificated
securities) and are susceptible of physical delivery, transfer
thereof to the Trustee by physical delivery to the Trustee,
indorsed to, or registered in the name of, the Trustee or its
nominee or indorsed in blank and such additional or
alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such
Transaction Account Property to the Trustee free and clear of
any adverse claims, consistent with changes in applicable law
or regulations or the interpretation thereof;
(b) with respect to a "certificated security" (as
defined in Section 8-102(a)(4) of the UCC), transfer thereof:
(1) by physical delivery of such
certificated security to the Trustee, provided that
if the certificated security is in registered form,
it shall be indorsed to, or registered in the name
of, the Trustee or indorsed in blank;
(2) by physical delivery of such
certificated security in registered form to a
"securities intermediary" (as defined in Section
8-102(a)(14) of the UCC) acting on behalf of the
Trustee if the certificated security has been
specially endorsed to the Trustee by an effective
endorsement;
(c) with respect to any security issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the
Federal National Mortgage Association that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book entry regulations, the following procedures, all
in accordance with applicable law, including applicable
federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such property to an appropriate
book-entry account maintained with a Federal Reserve Bank by a
securities intermediary which is also a "depositary" pursuant
to applicable federal regulations and issuance by such
securities intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Trustee of
the purchase by the securities intermediary on behalf of the
Trustee of such book-entry security; the making by such
securities intermediary of entries in its books and records
identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as
belonging to the Trustee and indicating that such securities
intermediary holds such book-entry security solely as agent
for the Trustee; and such additional or alternative procedures
as may hereafter become appropriate to effect complete
transfer of ownership of any such Transaction Account Property
to the Trustee free of any adverse claims, consistent with
changes in applicable law or regulations or the interpretation
thereof;
(d) with respect to any item of Transaction Account
Property that is an "uncertificated security" (as defined in
Section 8-102(a)(18) of the UCC) and that is not governed by
clause (c) above, transfer thereof:
(1)(A) by registration to the Trustee as the
registered owner thereof, on the books and records of
the issuer thereof.
(B) by another Person (not a securities
intermediary) either becomes the registered owner of
the uncertificated security on behalf of the Trustee,
or having become the registered owner acknowledges
that it holds for the Trustee.
(2) the issuer thereof has agreed that it
will comply with instructions originated by the
Trustee without further consent of the registered
owner thereof.
(e) with respect to a "security entitlement" (as
defined in Section 8-102(a)(17) of the UCC):
(1) if a securities intermediary (A)
indicates by book entry that a "financial asset" (as
defined in Section 8-102(a)(9) of the UCC) has been
credited to the Trustee's "securities account" (as
defined in Section 8-501(a) of the UCC), (B) receives
a financial asset (as so defined) from the Trustee or
acquires a financial asset for the Trustee, and in
either case, accepts it for credit to the Trustee's
securities account (as so defined), (C) becomes
obligated under other law, regulation or rule to
credit a financial asset to the Trustee's securities
account, or (D) has agreed that it will comply with
"entitlement orders" (as defined in Section
8-102(a)(8) of the UCC) originated by the Trustee,
without further consent by the "entitlement holder"
(as defined in Section 8-102(a)(7) of the UCC), of a
confirmation of the purchase and the making by such
securities intermediary of entries on its books and
records identifying as belonging to the Trustee of
(I) a specific certificated security in the
securities intermediary's possession, (II) a quantity
of securities that constitute or are part of a
fungible bulk of certificated securities in the
securities intermediary's possession, or (III) a
quantity of securities that constitute or are part of
a fungible bulk of securities shown on the account of
the securities intermediary on the books of another
securities intermediary; and
(f) in each case of delivery contemplated pursuant to
clause(a) through (e) of subsection (ii) hereof, the Trustee
shall make appropriate notations on its records, and shall
cause the same to be made on the records of its nominees,
indicating that such Transaction Account Property which
constitutes a security is held in trust pursuant to and as
provided in this Agreement.
"Depository" means the initial Depository, The Depository Trust
Company, the nominee of which is Cede & Co., as the registered Holder of the
denomination specified herein, and any permitted successor depository. The
Depository shall at all times be a "clearing corporation" as defined in Section
8-102(5) of the Uniform Commercial Code of the State of New York.
"Depository Agreement" means the DTC Letter of Representations dated
the Closing Date by and between the Depositor, the Trustee and the Depository
Trust Company.
"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 [ ].
"Eligible Account" means (i) a segregated trust account that is
maintained with a depository institution acceptable to the [Credit Enhancer] (so
long as an [Enhancement 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 Ratings Group and "P-1" by ▇▇▇▇▇'▇ Investors
Service, Inc. and (so long as an [Enhancement Default] shall not have occurred
and be continuing) acceptable to the [Credit Enhancer].
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"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;
(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 [Credit Enhancer],
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 [Credit
Enhancer], as evidenced by a writing to that effect, as may from time
to time be confirmed in writing to the Trustee by the [Credit
Enhancer].
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Any Eligible Investments may be purchased by or through the Trustee or
any of its Affiliates.
["[Enhancement Agreement]" means the [Credit Enhancement Agreement]
among [ ] and the [Credit Enhancer], dated as of [ ].]
"[Enhancement Agreement] Event of Default" means an Event of Default as
defined in the [Enhancement Agreement].
"[Enhancement Default]" shall mean any one of the following events
shall have occurred and be continuing:
(i) the [Credit Enhancer] fails to make a payment required
under the [Credit Enhancement] in accordance with its terms;
(ii) the [Credit Enhancer] (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 or other competent
court or regulatory authority enters a final and nonappealable order,
judgment or decree (A) appointing a custodian, trustee, agent or
receiver for the [Credit Enhancer] or for all or any material portion
of its property or (B) authorizing the taking of possession by a
custodian, trustee, agent or receiver of the [Credit Enhancer] (or the
taking of possession of all or any material portion of the property of
the [Credit Enhancer]).
"ERISA" shall have the meaning specified in Section 2.6.
"Event of Default" means an event specified in Section 9.1.
"Final Scheduled Distribution Date" shall be the [ ], 200[ ]
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).
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"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.
"Linc" means Linc Acceptance Company LLC and its successors.
"Linc Purchase Agreement" means the Purchase Agreement, dated as of
March 1, 1998 by and between Linc and the Seller, 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 Linc Receivables by the
Seller from Linc.
"Linc Receivables" shall have the meaning specified in the
Linc Purchase Agreement.
"Liquidation Proceeds" means all amounts realized with respect to a
Liquidated Receivable (other than amounts withdrawn from the Spread Account and
drawings under the Policy) net of (i) reasonable expenses incurred by the
Servicer in connection with the collection of such Receivable and the
repossession and disposition of the Financed Vehicle and (ii) amounts that are
required to be refunded to the Obligor on such Receivable; provided, however,
that the Liquidation Proceeds with respect to any Receivable shall in no event
be less than zero.
"Lock-Box Account" means the segregated account designated as such,
established and maintained pursuant to Section 4.1.
"Lock-Box Agreement" means the [lock-box agreement], dated the Closing
Date, among the Servicer, the Lock-Box Processor, CPS Receivables Corp. and the
Trustee, as amended, modified or supplemented from time to time, 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 [Credit Enhancer], 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 [Credit Enhancer] at which the Lock-Box
Account is established and maintained as of such date.
"Lock-Box Processor" means initially [ ], and thereafter, its
successors or any replacement Lock-Box Processor acceptable to the [Credit
Enhancer] under the Lock-Box Agreement.
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"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, any assistant
controller, secretary or assistant secretary 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 reasonably
acceptable to the Trustee and (if such opinion or a copy thereof is required by
the provisions of this Agreement to be delivered to the [Credit Enhancer]) the
[Credit Enhancer] and which opinion shall be acceptable to the Trustee and (if
such opinion or a copy thereof is required by the provisions of this Agreement
to be delivered to the [Credit Enhancer]) the [Credit Enhancer] in form and
substance.
"Optional Purchase Percentage" means 10%.
"Original Class A Principal Balance" means the product of the Class A
Percentage and the Original Pool Balance.
"Original Class B Principal Balance" means the product of the Class B
Percentage and the Original Pool Balance.
"Original Pool Balance" means $[ ].
"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.
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"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization, or government
or any agency or political subdivision thereof.
"Policy" means [the policy issued by the Credit Enhancer].
"Policy Claim Amount" with respect to a Distribution Date, means [ ].
"Policy Payments Amount" 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 Receivables 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 [Credit Enhancer],
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 CPS, the Trustee
and the [Credit Enhancer] referring to payment of the Premium.
"Prepayment Reduction Amount" means with respect to any Simple Interest
Receivable which has been paid in full during any Collection Period, an amount
equal to one twelfth of the excess of (a) the product of (i) the Aggregate
Pass-Through Rate and (ii) the Principal Balance of such Simple Interest
Receivable as of the first day of such Collection Period over (b) the product of
(i) a fraction (A) the numerator of which is the number of days from and
including the first day of such Collection Period to but excluding the date on
which such Simple Interest Receivable is paid in full and (B) the denominator of
which is 30 and (ii) the Aggregate Pass-Through Rate and (iii) the Principal
Balance of such Simple Interest Receivable as of the first day of such
Collection Period.
"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 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.
"Principal Distributable Amount" means, with respect to any
Distribution Date, 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 and any other amounts deposited into the
Payahead Account but including amounts transferred from the Payahead Account to
the Certificate Account to be applied to the principal portion of Scheduled
Payments) and (y) all payments of principal received on Simple Interest
Receivables during the 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.
"Purchase Agreements" means the CPS Purchase Agreement, the Samco
Purchase Agreement, the Linc Purchase Agreement and [the [Affiliated Originator]
Purchase Agreement].
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"▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇" 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 [ ___________ ] and any successors thereof. If
such organization or successor is no longer in existence, "Rating Agency" shall
be such nationally recognized statistical rating organization or other
comparable Person designated by the [Credit Enhancer] (so long as no
[Enhancement Default] shall have occurred and be continuing), 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 2.7.
"Record Date" means the tenth day of the calendar month in which a
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.
["Reimbursement Obligations" means, with respect to each Distribution
Date, any amounts due to the [Credit Enhancer] under the terms hereof or under
the Enhancement Agreement and with respect to which the [Credit Enhancer] has
not been previously paid.]
"Requisite Amount" has the meaning specified in the [ ].
["Reserve Fund" means, the Reserve Fund established by the Seller
pursuant to the [Reserve Fund Agreement]. The Reserve Fund shall be held by the
[Reserve Fund Collateral Agent] and shall in no event be deemed part of the
Trust.]
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["Reserve Fund Agreement" means the Reserve Fund Agreement dated as of
[ ], among [ ] and [the Reserve Fund Collateral Agent].
["Reserve Fund Collateral Agent" means [ ] acting as Reserve Fund
Collateral Agent under the [Reserve Fund Agreement].]
"Residual Certificate" shall have the meaning set forth in Section 6.1
hereof.
"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. and its successors.
"Samco Purchase Agreement" means the Purchase Agreement, dated as of [
], 19[ ] by and between Samco and the Seller, 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 Samco Receivables by the Seller
from Samco.
"Samco Receivables" shall have the meaning specified in the Samco
Purchase Agreement.
"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).
"Seller" means CPS Receivables Corp., as the seller of the Receivables
under this Agreement, and each of its successors pursuant to Section 7.3.
"Securities Act" shall have the meaning specified in Section 6.3(b).
"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 E-2.
["Servicing Assumption Agreement" means the Servicing Assumption
Agreement, dated as of [ ], among CPS, [the Standby Servicer] and the Trustee,
as the same may be amended or supplemented in accordance with its terms.]
"Servicing Fee" means the fee payable to the Servicer for services
rendered during the respective Collection Period, determined pursuant to Section
3.8.
"Servicing Officer" means any person whose name appears on a list of
Servicing Officers delivered to the Trustee and the [Credit Enhancer], as the
same may be amended from time to time.
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"Servicing Rate" shall be [ ]% 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 [ ]% 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 [ ] and [the Collateral Agent], as amended and restated as of [ ], as the
same may be amended, supplemented or otherwise modified in accordance with the
terms thereof.
"Standard & Poor's" means Standard & Poor's Ratings Group, Inc. and any
successors thereof.
["Standby Fee" means the fee payable to [the Standby Servicer] so long
as CPS is the Servicer, on each Distribution Date in an amount equal to [ ].
["Standby Servicer" means [ ], in its capacity as Standby Servicer
pursuant to the terms of [the Servicing Assumption Agreement] or such other
Person as may 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.
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"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) [ ], and any earnings on investments of funds in the
Collection Account and the Payahead Account pursuant to Section 4.1(a).
"Transaction Account Property" means the Transaction Accounts, all
amounts and investments held from time to time in any Transaction Account
(whether in the form of deposit accounts, Physical Property, book-entry
securities, uncertificated securities or otherwise), and all proceeds of the
foregoing.
"Transaction Accounts" means the property set forth in item (vii) of
Section 2.2.
"Trigger Event" has the meaning specified in the Series
[ ] Supplement.
"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 Credit Enhancement] 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 fee payable to the Trustee on each Distribution
Date in an amount equal to one-twelfth of [ ]% of the Certificate Balance on the
last day of the second preceding Collection Period; provided, however, that on
the first Distribution Date the Trustee will be entitled to receive an amount
equal to the product of (i) the percentage equivalent of a fraction the
numerator of which is the number days from the Closing Date to but excluding the
first Distribution Date and the denominator of which is 360, (ii) [ ]% and (iii)
the Certificate Balance as of the Closing Date.
"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 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.
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"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 [Credit Enhancer] 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, the Collateral Agent Fee, the Standby 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 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, the Servicer 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.
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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
[Credit Enhancement].
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 199[ ]-[
].
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 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;
(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;
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(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 securing Receivables, 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 Credit
Enhancement Account] or the Certificate Account; and
(viii) the proceeds of any and all of the foregoing.
In addition, the Seller shall cause [the Credit Enhancement] 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
property described in Section 2.2 above, for the benefit of the
Certificateholders and the [Credit Enhancer] 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
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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
[Credit Enhancer] and to the Trustee, on which the [Credit Enhancer] relies in
executing and delivering [the Credit Enhancement], 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 (or, with respect to the Samco
Receivables, Samco, with respect to the Linc Receivables, Linc, and
[with respect to the [Affiliated Originator] Receivables, [Affiliated
Originator]]) 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 (or, with respect
to the Samco Receivables, Samco, with respect to the Linc Receivables,
Linc, and [with respect to the [Affiliated Originator] Receivables,
[Affiliated Originator]]) in the Financed Vehicle, which security
interest has been assigned by CPS (or, with respect to the Samco
Receivables, Samco, with respect to the Linc Receivables, Linc, and
[with respect to the [Affiliated Originator] Receivables, [Affiliated
Originator]]) 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 [ ]%, (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.
(B) Approximately [ ]% of the aggregate Principal Balance of
the Receivables, constituting [ ]% 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;
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approximately [ ]% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date were originated under the CPS Alpha
Program; approximately [ ]% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date were originated under the CPS Delta
Program; approximately [ ]% of the aggregate Principal Balance of the
Receivables were originated under the CPS First Time Buyer Program;
approximately [ ]% of the aggregate Principal Balance of the
Receivables were originated under the CPS Standard Program;
approximately [ ]% of the aggregate Principal Balance of the
Receivables were originated under the CPS Super Alpha Program;
approximately [ ]% of the aggregate Principal Balance of the
Receivables are Samco Receivables; approximately [ ]% of the aggregate
Principal Balance of the Receivables are Linc Receivables;
[approximately [ ]% of the aggregate Principal Balance of the
Receivables are [Affiliate Originator] Receivables; no Receivable shall
have a payment that is more than [30] days overdue as of the Cutoff
Date; [ ]% of the Receivables are Rule of 78's Receivables and [ ]% of
the Receivables are Simple Interest Receivables; each Receivable shall
have a final scheduled payment due no later than [ ], 200[ ]; each
Receivable has an original term to maturity not more than 60 months and
a weighted average remaining term to maturity of [ ] 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 warranties or
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 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.
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(iv) 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.
(v) 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).
(vi) 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.
(vii) No Waiver. No provision of a Receivable has been waived.
(viii) 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.
(ix) No Defenses. As of the Closing Date, 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.
(x) No Liens. As of the Cutoff Date, there are no liens or
claims existing or which have been filed for work, 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.
(xi) 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
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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.
(xii) 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 that each Receivable requires
the Obligor to obtain and maintain such insurance naming CPS (or, with
respect to the Samco Receivables, Samco, with respect to the Linc
Receivables, Linc, and with respect to the [Affiliated Originator]
Receivables, [Affiliated Originator]) 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
(or, with respect to the Samco Receivables, Samco, with respect to the
Linc Receivables, Linc, and with respect to the [Affiliated Originator]
Receivables, [Affiliated Originator]) 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.
(xiii) 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 Trust. 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 Trust for the benefit
of the Certificateholders and the [Credit Enhancer] shall have good
and marketable title to each such Receivable and will be the sole
owner thereof, free and clear of all liens, encumbrances, security
interests, and rights of others, and the transfer has been perfected
under the UCC.
(xiv) 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
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with any account debtor that prohibits, restricts or conditions the
assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Trust a first priority perfected ownership interest in the Receivables
and the proceeds thereof and the other conveyed property have been
made, taken or performed.
(xvi) 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.
(xvii) Chattel Paper. Each Receivable constitutes "chattel
paper" under the UCC.
(xviii) Title Documents. (A) If the Receivable was originated
in a State in which notation of 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, a copy thereof) will be received within [180] days and
will show, CPS (or, with respect to the Samco Receivables, Samco, with
respect to the Linc Receivables, Linc, and with respect to the
[Affiliated Originator] Receivables, [Affiliated Originator]) 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,
with respect to the Linc Receivables, Linc, and with respect to the
[Affiliated Originator] Receivables, [Affiliated Originator]) named as
the original secured party under the related Receivable, and in either
case, the Trust 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 has not yet
been returned from the Registrar of Titles, CPS (or, with respect to
the Samco Receivables, Samco, with respect to the Linc Receivables,
Linc, and with respect to the [Affiliated Originator] Receivables,
[Affiliated Originator]) has received written evidence from the related
Dealer that such title document showing CPS as first lienholder has
been applied for.
(xix) 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
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thereto and to grant the security interest purported to be granted
thereby.
(xx) Tax Liens. As of the Cutoff Date, there is no lien
against the related Financed Vehicle for delinquent taxes.
(xxi) 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.
(xxii) Origination. Each Receivable has an origination date on
or after [ ].
(xxiii) Maturity of Receivables. Each Receivable has an
original term to maturity of not more than 60 months; the weighted
average original term to maturity of the Receivables is [ ] months as
of the Cutoff Date; the remaining term to maturity of each Receivable
was [ ] months or less as of the Cutoff Date; the weighted average
remaining term to maturity of the Receivables was [ ] months as of the
Cutoff Date.
(xxiv) Scheduled Payments. Each Receivable had an original
principal balance of not less than $[ ] nor more than $[ ], has an
outstanding principal balance as of the Cutoff Date of not less than
$[ ] nor more than $[ ] and has a first Scheduled Payment due on or
prior to [ ].
(xxv) Origination of Receivables. Based on the billing
address of the Obligors and the Principal Balances as of the Cutoff
Date, approximately [ ]% of the Receivables were originated in
California, approximately [ ]% of the Receivables were originated in
Florida, approximately [ ]% of the Receivables were originated in
Pennsylvania, approximately [ ]% of the Receivables were originated in
Texas and the remaining [ ]% of the Receivables were originated in all
other states.
(xxvi) 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.
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(xxvii) 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.
(xxviii) Casualty. No Financed Vehicle has suffered a
Casualty.
(xxix) Principal Balance/Number of Contracts. As of the Cutoff
Date, the total aggregate principal balance of the Receivables was $[
]. The Receivables are evidenced by [ ] Contracts.
(xxx) 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. (a) The Seller, the Servicer, the
[Credit Enhancer] or the Trustee, as the case may be, shall inform the other
parties to this Agreement and the [Credit Enhancer] 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 [Credit Enhancer] or receipt by the Trustee and the [Credit Enhancer] of
notice 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 [Credit
Enhancer] 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 [Credit
Enhancer], the Trust and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of
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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 ("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 2.5 if not otherwise such a breach.
(b) Pursuant to Section 2.1 of this Agreement, the Seller conveyed to
the Trust all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Purchase Agreements
including the Seller's rights under the Purchase Agreements and the delivery
requirements, representations and warranties and the cure or repurchase
obligations of CPS under the CPS Purchase Agreement. The Seller hereby
represents and warrants to the Trust that such assignment is valid, enforceable
and effective to permit the Trust to enforce such obligations of CPS under the
CPS Purchase Agreement.
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,
with respect to the Samco Receivables, Samco, with respect to the Linc
Receivables, Linc, and with respect to the [Affiliated Originator]
Receivables, [Affiliated Originator]) or such documents that CPS shall
keep on file, in accordance with its customary procedures, evidencing
the security interest of CPS (or, with respect to the Samco
Receivables, Samco, with respect to the Linc Receivables, Linc, and
with respect to the [Affiliated Originator] Receivables, [Affiliated
Originator]) in the Financed Vehicle or, if not yet received, a copy of
the application therefor showing CPS (or, with respect to the Samco
Receivables, Samco, with respect to the Linc Receivables, Linc, and
with respect to the [Affiliated Originator] Receivables, [Affiliated
Originator]) 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
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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 [Credit Enhancer] 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 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
[Credit Enhancer]. 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 [Credit Enhancer] 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.
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SECTION 2.9. Access to Receivable Files. The Trustee shall permit the
Servicer, any Certificateholder and the [Credit Enhancer] 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 [Enhancement 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 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 Class A
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 [Credit Enhancer], execute such documents and instruments as
are prepared by the Servicer or the [Credit Enhancer] and delivered to the
Trustee, as the Servicer or the [Credit Enhancer] 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
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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 [Credit Enhancer] (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 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 [Credit Enhancer] 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
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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 to the Trustee 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 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 [Credit Enhancer] 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 [Credit Enhancer]. 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
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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 [Credit Enhancer], 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 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 (or, with respect to the Samco Receivables,
Samco, with respect to the Linc Receivables, Linc, and with respect to the
[Affiliated Originator] Receivables, [Affiliated Originator]) 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 (or, with respect to
the Samco Receivables, Samco, with respect to the Linc Receivables, Linc, and
with respect to the [Affiliated Originator] Receivables, [Affiliated
Originator]) 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.
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(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.
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 the
Servicer, and the Servicer agrees, to take any and all 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. In the event that the assignment of a Receivable to the Trustee is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements under
the laws of the state in which the Financed Vehicle is located, to perfect a
security interest in the related Financed Vehicle in favor of the Trustee, the
Servicer hereby agrees that CPS's designation as the secured party on such
certificate of title is in its capacity as Servicer as agent of the Trustee.
(b) Upon the occurrence of an [Enhancement Agreement] Event of Default,
the [Credit Enhancer] may (so long as an [Enhancement Default] shall not have
occurred and be continuing) instruct the Trustee and the Servicer to take or
cause to be taken, or, if an [Enhancement 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
re-perfect 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 [Credit Enhancer] 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 re-perfection and to take all action necessary therefor. In
addition, prior to the occurrence of an [Enhancement Agreement] Event of
Default, the [Credit Enhancer] may (unless an [Enhancement 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
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to the [Credit Enhancer], be necessary to perfect or re-perfect 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 [Credit Enhancer], be necessary or prudent; provided, however,
that if the [Credit Enhancer] requests (unless an [Enhancement Default] shall
have occurred and be continuing) that the title documents be amended prior to
the occurrence of an [Enhancement 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 [Credit
Enhancer].
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.
SECTION 3.7. Purchase of Receivables Upon Breach. The Servicer or the
Trustee shall inform the other party and the [Credit Enhancer] 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 [Credit Enhancer] 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, so long as the Servicer is
CPS, shall indemnify the Trustee, [the Standby Servicer], the [Collateral
Agent], the [Credit Enhancer], 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
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violation shall not be treated as a breach of Sections 3.2, 3.4, 3.5 or 3.6 if
not otherwise such a breach. The Seller shall have no obligation to repurchase
the Receivables upon a breach of Section 3.2, 3.4, 3.5 or 3.6. The Seller shall
have no liability for actions taken or omitted to be taken by the Servicer
pursuant to this Section 3.7.
SECTION 3.8. Servicing Fee. The Servicing Fee for each Distribution
Date shall be equal to the sum of (i) the result of one-twelfth times [ ]% of
the Pool Balance as of the close of business on the last day of the second
preceding Collection Period plus (ii) the result of one-twelfth times [ ]% of
the Certificate Balance as of the close of business on the last day of the
second preceding Collection Period; provided, however, that with respect to the
first Distribution Date the Servicer will be entitled to receive a Servicing Fee
equal to the sum of (i) the result of one-twelfth times [ ]% of the Original
Pool Balance plus (ii) the result of one-twelfth times [ ]% of the Certificate
Balance as of the Closing Date. 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.
SECTION 3.9. Servicer's Certificate. By 10:00 a.m., [ ] time, on each
Determination Date, the Servicer shall deliver to the Trustee, the [Credit
Enhancer], the Rating Agencies, 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 [Credit Enhancer]
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, the Standby Servicer and the [Credit
Enhancer], on or before July 31 of each year beginning [ ], 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 [ ]) 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
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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 [Credit Enhancer]
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.
The Seller shall deliver to the Trustee, the [Credit Enhancer] 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 [Credit
Enhancer] on or before July 31 of each year beginning [ ], 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 [ ]), addressed to the Board of Directors of the
Servicer and to the Trustee and the [Credit Enhancer], 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
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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. In the event such firm requires the Trustee and/or
the Standby Servicer to agree to the procedures performed by such firm, the
Servicer shall direct the Trustee and/or the Standby Servicer, as applicable, in
writing to so agree; it being understood and agreed that the Trustee and/or the
Standby Servicer will deliver such letter of agreement in conclusive reliance
upon the direction of the Servicer, and neither the Trustee nor the Standby
Servicer shall make, or have any obligations to make, any independent inquiry or
investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
The Report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 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 [ ], which term shall be
extendible by the [Credit Enhancer] for successive quarterly terms ending on
each successive March 31, June 30, September 30 and December 31 (or, at the
discretion of [the Credit Enhancer] 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 such time as all amounts due
the Certificateholders have been paid and until the termination of the Trust.
Each such notice (including each notice pursuant to standing instructions, which
shall be deemed delivered at the end of successive terms for so long as such
instructions are in effect) (a "Servicer Extension Notice") shall be delivered
by [the Credit Enhancer] 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
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[the Credit Enhancer] have been paid in full or an [Enhancement Default] has
occurred and is continuing, the term of the Servicer's appointment hereunder
shall be deemed to have been extended until the termination of the Trust or, in
the case of an [Enhancement Default], 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. Until such time as an Insurer
Default shall have occurred and be continuing, the Trustee agrees that if as of
the fifteenth day prior to the last day of any term of the Servicer, the Trustee
shall not have received any Servicer Extension Notice from the Certificate
Insurer, the Trustee shall, within five days thereafter, give written notice of
such non-receipt to the Certificate Insurer.
SECTION 3.15. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Trustee, the
Certificateholders and the [Credit Enhancer] reasonable access to documentation
and 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 [Enhancement 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 [Credit Enhancer] 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
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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 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 and the amount on deposit in the Spread Account 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
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pursuant to Section 12.11 and (unless an [Enhancement Agreement Event of
Default] shall have occurred and be continuing or [ ] shall then be the
Servicer) the Holders of Class B Certificates evidencing more than [ ]% 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, the Trustee shall have
received Objection Notices from Holders of Class B Certificates representing
more than [ ]% 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 [Credit Enhancer], provided that pursuant to the Lock-Box
Agreement, the Lock-Box Processor and no other person, save the Trustee and
pursuant to the standing instructions of the Trustee, which instructions may
only be modified in writing signed by the Trustee, the Servicer 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 [Credit Enhancer]
(unless an [Enhancement 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
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written notice of any change made at the request of the [Credit Enhancer] 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 [Credit Enhancer].
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 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 under such Lock-Box Agreement
and the successor Servicer shall not be liable for any obligations of the
outgoing Servicer arising out of a default by such outgoing Servicer. 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 [Credit Enhancer] (so long as an [Enhancement
Default] shall not have occurred and be continuing) or Holders of Certificates
evidencing more than [ ]% of the Class A Certificate Balance (if an [Enhancement
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 [Credit Enhancer] (so long as
an [Enhancement Default] shall not have occurred and be continuing) or Holders
of Certificates evidencing more than [ ]% of the Class A Certificate Balance (if
an [Enhancement 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 Credit Enhancement Account], and the Certificate Account in the
name of the Trustee for the benefit of the Certificateholders. 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
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in the Trust. Any amounts held on deposit in the Payahead Account and any
investment earnings thereon are owned by, and will be taxable to, CPS
Receivables for federal income tax purposes. The Collection Account, [the Credit
Enhancement 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 [Credit Enhancer], 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 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 Credit
Enhancement 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). The Servicer shall not
direct the Trustee to make any investment of any funds held in any of the
Transaction Accounts unless the security interest granted and perfected in such
Transaction Account will continue to be perfected in such investment, in any
case without any further action by any Person, and, in connection with any
direction to the Trustee to make any such investment, if requested by the
Trustee, the Servicer shall deliver to the Trustee an Opinion of Counsel,
acceptable to the Trustee, to such effect. For purposes of this paragraph, the
Trustee will take delivery of the Eligible Investments in accordance with
Schedule C.
(b) The Trustee shall not in any way be held liable by reason of any
insufficiency in any of the Transaction Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Trustee's negligence or bad faith or its failure in its commercial capacity as
principal obligor and not as Trustee to make payments on Eligible Investments
issued by the Trustee in such commercial capacity as principal obligor and not
as Trustee, in accordance with their terms.
(c) If the Servicer shall have failed to give investment directions for
any funds on deposit in any of the Transaction Accounts to the Trustee by 2:00
p.m. Eastern Time (or such other time as may be determined by the Trustee) on
any Business Day, then the Trustee shall, to the fullest extent practicable,
invest and reinvest funds in such Transaction Accounts in one or more Eligible
Investments.
(d) 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
theCollection 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:
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With respect to each Receivable (other than a Purchased Receivable),
payments by or on behalf of the Obligor shall be applied hereunder, in the case
of a Rule of 78's Receivable, first, to the Scheduled Payment of such Rule of
78's Receivable with the principal portion of the Scheduled Payment being
allocated on an actuarial basis, 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
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 Sections 3.7 and 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; [Credit Enhancement 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
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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).
(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 [ ], 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 $[ ]) incurred in
making the transition from Standby Servicer to 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,
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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
the Trustee pursuant to this clause (iii) and expenses payable to the
[Collateral Agent] pursuant to clause (iv) below, shall be limited to
$[ ] 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 Section 4.7(a) and
4.11(iii), an amount equal to the sum of (x) the Class A Interest
Distributable Amount, (y) any Class A Interest Carryover Shortfall and
(z) 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) in each case as of the close of business on 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 Sections 4.7(c) and
(d), an amount equal to the sum of (x) the Class B Interest
Distributable Amount, (y) any Class B Interest Carryover Shortfall and
(z) 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), in each case as of the close of business on 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 business on the preceding Distribution Date with
respect to each Distribution Date;
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(viii) to the [Credit Enhancer], 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;
(ix) to any successor Servicer, 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(a), to the extent
not previously paid by the predecessor Servicer pursuant to Section
9.2, or in the case of [the Standby Servicer], pursuant to clause (ii)
above, reasonable transition expenses (up to a maximum of $[ ])
incurred in making the transition from Standby Servicer to 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 (ix) above) and any amount
deposited into the Collection Account pursuant to Sections 4.7(c) and
(d), 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)
except to the extent of monies deposited in the Collection Account from [the
Reserve Fund] pursuant to Section 4.7(d) hereof and [the Reserve Fund
Agreement]. 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)
except to the extent of monies deposited in the Collection Account from [the
Reserve Fund] pursuant to Section 4.7(d) hereof and [the Reserve Fund
Agreement]. At such time as the Class A Certificates are paid in full and the
[Credit Enhancer] has received payment in full for all outstanding Reimbursement
Obligations and any other amounts owed to the [Credit Enhancer], the Class B
Certificateholders shall be entitled to exercise all rights granted to the Class
A Certificateholders under this
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Agreement to the extent that the exercise of such rights does not conflict with
the provisions of the Spread Account Agreement. In no event shall the Class A
Certificateholders be entitled to any amounts deposited in the Collection
Account pursuant to Section 4.7(d) hereof and [the Reserve Fund Agreement].
(e) [mechanics for drawing on [the Credit Enhancement]]
(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 is the Depository and such
Holder's Certificates in the aggregate evidence an original principal balance of
at least $[1,000,000], and if such Certificateholder shall have provided to the
Trustee appropriate instructions prior to the Record Date for such Distribution
Date, 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.
[SECTION 4.7. Withdrawals from [Spread Account] and [Reserve Fund]. (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), (viii) or (ix) (such deficiency being a "Deficiency
Claim Amount"), then on the [ ] Business Day immediately preceding the related
Distribution Date, the Trustee shall deliver to the [Collateral Agent], [the
Credit Enhancer], 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), (viii) and/or (ix), as
applicable.
(b) Any Deficiency Notice shall be delivered by [ ], on the [ ]
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.
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(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 [ ] 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.
(d) In the event that there are insufficient funds to cure any Class B
Deficiency pursuant to subsection (c) above, the [Collateral Agent] shall
instruct the [Reserve Fund Collateral Agent] to withdraw an amount up to the
remaining Class B Deficiency from [the Reserve Fund] in accordance with the
terms of the [Reserve Fund Agreement] for deposit in the Collection Account and
distribution pursuant to Sections 4.6(c)(vi) and (x), as applicable.]
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 [Credit Enhancer] 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;
(ii) the amount of such distribution allocable to interest on
the Class A Certificates and the Class B Certificates, respectively;
(iii) 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;
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(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) the amount paid, if any, to Class A Certificateholders
from funds received under [the Credit Enhancement] for such
Distribution Date;
(ix) the amount distributable to the [Credit Enhancer] on such
Distribution Date;
(x) the aggregate amount in each of the Payahead Account, the
[Spread Account] and [the Reserve Fund] and the change in each such
amount from the preceding Distribution Date;
(xi) 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;
(xii) 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
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(xiii) 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), (v) and (vi) 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) and (v) 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 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. Credit Enhancement; Subrogation. (a) The Trustee shall
keep a complete and accurate record of the amount of payments made under [the
Credit Enhancement] 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 Credit Enhancement]. The [Credit Enhancer]
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
[Credit Enhancer], 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
[Credit Enhancer] all rights to the payment of the Class A Interest
Distributable Amount and Class A Principal Distributable
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Amount which are then due for payment to the extent of all payments
made by the [Credit Enhancer]. The [Credit Enhancer] (for so long as no
[Enhancement 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 under [the Credit
Enhancement]. The Trustee and the Class A Certificateholders, by reason of their
acquisition and holding of the Class A Certificates, agree that the [Credit
Enhancer] 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 Credit Enhancement] by the [Credit Enhancer] 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 and the Trustee shall be
fully protected in relying on such information from the Servicer.
SECTION 4.11. [Optional Deposits by the [Credit Enhancer]. The [Credit
Enhancer] 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.
If the [Credit Enhancer] waives the satisfaction of any of the events
that might trigger an event of default under the [Enhancement Agreement] and so
notifies the Trustee in writing pursuant to Section 5.02(d) of the [Enhancement
Agreement], the Trustee shall notify [the applicable Rating Agency] of such
waiver].
ARTICLE V
Reserved.
ARTICLE VI
The Certificates
SECTION 6.1. The Certificates. The Trustee shall, upon written order or
request signed in the name of the Seller by one of its officers authorized to do
so and delivered to an Trustee Officer, execute on behalf of the Trust,
authenticate and deliver the Certificates to or upon the order of the Seller in
the aggregate principal amount and denominations as set forth in such written
order or request. The Class A Certificates shall be issuable in minimum
denominations of [$1,000] and integral multiples thereof. The Class B
Certificates shall be issuable in minimum denominations of [$1,000] and integral
multiples thereof; provided , however, that one Class A Certificate and one
Class B Certificate respectively, may be issued in a denomination that
represents the residual amount of the Original Class A Principal Balance and the
original Class B Principal Balance, respectively (each, a "Residual
Certificate"). Upon initial issuance, the Class A Certificates and the Class B
Certificates shall be substantially in the form of Exhibit A and
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Exhibit B, respectively, in an aggregate amount equal to the Original Class A
Principal Balance and the Original Class B Principal Balance, respectively. The
Certificates shall be executed 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 Trust, notwithstanding that
such individuals 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 [Credit Enhancer] 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 [Credit Enhancer]. 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 [Credit Enhancer]'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 agent shall be
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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 [Credit
Enhancer]. 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 [Credit Enhancer], 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 [Credit Enhancer].
[(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 certificate of authentication in substantially the
following form:
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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, 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 the
Trustee Officer 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
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 F. 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, CPS,
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.
(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
for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof, subject nevertheless to any
requirement of law that the disposition of the Purchaser's property
shall at all times be and remain within its control.
(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 transferor 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
TRANSFEROR 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
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 THIS 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 THIS CLASS B CERTIFICATE TO AN
INSURANCE COMPANY, INSURANCE SERVICE, OR INSURANCE ORGANIZATION THAT IS
QUALIFIED TO DO BUSINESS IN A STATE IF SUCH INSURANCE COMPANY PURCHASES
THIS CLASS B CERTIFICATE 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 an "insurance company general account" of such buyer (as
such term is defined) under Section V of The United States Department
of Labor's Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")), and as of the date of the purchase of the Certificates, such
buyer satisfies all of the requirements for relief under Section I and
IV of PTCE 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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(e) 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.
(f) 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 [Credit Enhancer] 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 either 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 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
[Credit Enhancer], at the expense of the Trust, within 15 days after receipt by
the Trustee of a request therefor from the Servicer or the [Credit Enhancer],
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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 [ ]% 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 [Credit
Enhancer] 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 [ ], 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 Certificates, upon original
issuance (except for the Residual Certificate), 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 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 certificate representing such Certificate Owner's
interest in the Certificates, except as provided in Section 6.10. Unless and
until definitive, fully registered 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
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the 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
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 or
Class B Principal Balance, as the case may be, 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 Certificates and has
delivered such instructions to the Trustee.
(vi) each such Certificate registered in the name of the
Depository's nominee and shall bear the following legend:
"Unless this Certificate is presented by an
authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the Trustee or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
SECTION 6.9. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, other
than to the Holder of the Residual Certificate, 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 Certificates to
the Clearing Agency.
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 [ ]% of the
Class A Certificate Balance, advises the Trustee in writing that a
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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 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. None of the Seller, the
Certificate Registrar nor the Trustee shall be liable for any delay in delivery
of such instructions ▇▇▇▇ ▇▇▇ conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates, the
Trustee 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 [Credit Enhancer] and the Trustee, on which the [Credit
Enhancer] relied in executing and delivering [the Credit Enhancement] 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 [ ] in good standing under the
laws of [ ], with power and authority to execute, deliver and perform
its obligations under this Agreement.
(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
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approvals in all jurisdictions material to the performance of its
obligations under this Agreement.
(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 except as enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered a proceeding in
equity or at law.
(v) No Violation. The execution, delivery and performance by
the Seller of this Agreement and the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement 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 or both) a default under, the articles of incorporation
or by-laws of the Seller, or any material 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 material 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.
(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
tribunal or 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
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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] 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
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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 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 [Credit Enhancer] 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 [Credit Enhancer] 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 [Enhancement Agreement Event of
Default] and no event that, after notice or lapse of time, or both, would become
an [Enhancement 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 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
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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 [Credit Enhancer] and the Trustee, on which the
[Credit Enhancer] relies in executing and delivering [the Credit Enhancement],
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 initial 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 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 the Basic Documents
to which it is a party and to carry out its terms and their terms,
respectively; and the execution, delivery, and performance of this
Agreement and the basic documents to which it is a party has been duly
authorized by the Servicer by all necessary corporate action.
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(iv) Binding Obligation. This Agreement and the Basic
Documents to which the Servicer is a party shall constitute legal,
valid and binding obligation of the Servicer enforceable in accordance
with their respective terms except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law.
(v) No Violation. The execution, delivery and performance by
the Servicer of this Agreement and the consummation of the transactions
contemplated by this Agreement and the Basic Documents to which the
Servicer is a party and the fulfillment of the terms of this Agreement
and the Basic Documents to which the Servicer is a party 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 the
Basic Documents; 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 initial Servicer's best knowledge,
threatened against the initial Servicer, before any court, regulatory
body, administrative agency, or other trubunal or governmental
instrumentality having jurisdiction over the Servicer or its
properties: (A) asserting the invalidity of this Agreement or the
Certificates or any of the Basic Documents to which it is a party, (B)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement or any of the
Basic Documents to which it is a party, (C) seeking any determination
or ruling that might materially and adversely affect the performance by
the initial Servicer of its obligations under, or the validity or
enforceability of, this Agreement or the Certificates or any of the
Basic Documents to which it is a party, or (D) relating to the initial
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 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.
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(ix) Chief Executive Office. The initial 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: 2
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 initial Servicer shall defend, indemnify, and hold
harmless the Trustee, [the Standby Servicer], the [Collateral Agent],
the Trust, the [Credit Enhancer], 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 initial Servicer shall indemnify, defend and hold
harmless the Trustee, [the Standby Servicer], the [Collateral Agent],
the Trust, the [Credit Enhancer] 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 [Credit
Enhancer] 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 initial Servicer shall indemnify, defend, and hold
harmless the Trustee, [the Standby Servicer], the [Collateral Agent],
the Seller, the [Credit Enhancer], 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 performance of its duties under
this Agreement or by reason of reckless disregard of its obligations
and duties under this Agreement.
(iv) The initial 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
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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, in the event of the termination of
the rights and obligations of the Servicer (or any successor thereto pursuant to
Section 8.3) as Servicer pursuant to Section 9.1, or a resignation by the
Servicer pursuant to this Agreement, such Servicer shall be deemed to continue
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 outgoing
Servicer provided by Section 8.2(a).
(c) Indemnification by the initial Servicer 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.
SECTION 8.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer or Standby Servicer. (a) Any Person (i) into which the
Servicer may be merged or consolidated, (ii) which may result from any merger or
consolidation to which the Servicer shall be a party, or (iii) 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
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Servicer under this Agreement without further act on the part of any of the
parties to this Agreement; provided, however, that (w) 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, (x) the Servicer shall have delivered to the
Trustee and the [Credit Enhancer] 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, (y) the Servicer shall have delivered to the Trustee and the
[Credit Enhancer] 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 (z) 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 (i) into which [the Standby Servicer] may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
[the Standby Servicer] shall be a party, or (iii) 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 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 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
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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 applicable, 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 [Credit
Enhancer] 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 [Credit Enhancer] 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 [Credit Enhancer] 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 [Credit Enhancer] 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
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].
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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 CPS, 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 CPS, the Servicer or the
Seller (as the case may be) set forth in the Certificates, the Purchase
Agreements 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 CPS, the Servicer or the Seller (as the case may be),
by the [Credit Enhancer] or the Trustee, or (2) to the Servicer or the
Seller, (as the case may be), and to the Trustee and the [Credit
Enhancer] by the Holders of Class A Certificates evidencing not less
than [ ]% 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 [Credit Enhancer] have been
paid in full, by the Holders of Class B Certificates evidencing not
less than [ ]% 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 CPS, the
Servicer or the Seller (or, so long as 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
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(iv) The consent by CPS, 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 [Enhancement 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 [Enhancement Default] shall have occurred and be
continuing, the [Credit Enhancer] in its sole and absolute discretion, or (ii)
if an [Enhancement Default] shall have occurred and be continuing, then either
the Trustee or the Holders of Class A Certificates evidencing not less than [ ]%
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 [Credit Enhancer] have been paid in full or (B) an
[Enhancement Default] shall have occurred and be continuing, then either the
Trustee or the Holders of Class B Certificates evidencing not less than [ ]% of
the Class B Certificate Balance, by notice then given in writing to the Servicer
(and to the Trustee if given by the [Credit Enhancer] 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 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
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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 [Credit
Enhancer] reasonable access to the predecessor Servicer's premises at the
predecessor Servicer's expense. If requested by the [Credit Enhancer], [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 [Credit Enhancer]).
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
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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, [ ], 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
[Credit Enhancer] shall have determined that a Person other than [the Standby
Servicer] shall be the successor Servicer in accordance with Section 9.2(c),
such Person shall assume the obligations of Servicer hereunder 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 other 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 other predecessor Servicer arising on or before the
Assumption Date under Sections 3.7, 4.4 or 8.2 of this Agreement, regardless of
when the liability, duty, responsibility or obligation of CPS or any other
predecessor Servicer theretofore 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 [Enhancement
Default] shall have occurred and be continuing, [the Standby Servicer], the
Trustee or Class A Certificateholders holding Class A Certificates evidencing
not less than [ ]% 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 [ ]% of the Class B Certificate Balance)
may petition a 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
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Servicer has ceased to act as Servicer in accordance with this Section 9.2, then
the [Credit Enhancer], 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 [Credit Enhancer] 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 [Credit Enhancer] 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 [Credit Enhancer].
(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 payment
under applicable bankruptcy law, the Trustee shall so notify the [Credit
Enhancer], shall comply with the provisions of [the Credit Enhancement] to
obtain payment by the [Credit Enhancer] of such avoided Class A Guaranteed
Distribution Amount payment, and shall, at the time it provides notice to the
[Credit Enhancer], notify Holders of the Class A Certificates by mail that, in
the event that any Class A Certificateholder's payment
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is so recoverable, such Class A Certificateholder will be entitled to payment
pursuant to the terms of [the Credit Enhancement]. Pursuant to the terms of [the
Credit Enhancement], the [Credit Enhancer] 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 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 [Credit
Enhancer] will make such payment to the Trustee for distribution to such Class A
Certificateholder upon proof of such payment reasonably satisfactory to the
[Credit Enhancer]).
(b) Upon knowledge of any of the following events, the Trustee shall
promptly notify the [Credit Enhancer] of (i) the commencement of any of CPS, 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 [Credit Enhancer] may, provided an [Enhancement
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 [Credit Enhancer], but subject to reimbursement as
provided in the [Enhancement Agreement]. In addition, and without limitation of
the foregoing, as set forth in Section 4.9, the [Credit Enhancer] 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.]
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
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notice thereof to the Servicer and the [Credit Enhancer]. For all purposes of
this Agreement, 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 [Credit Enhancer] 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 person would
exercise or use under the circumstances in the conduct of his or her 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 an exhibit 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 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
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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 [Credit
Enhancer] or, after an [Enhancement Default], the Holders of Class A
Certificates evidencing not less than [ ]% 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 [Credit Enhancer] have been paid in full or (B) an
[Enhancement Default] shall have occurred and be continuing, the
Holders of Class B Certificates evidencing not less than [ ]% 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 CPS, the Servicer or the Seller, as the case may be, the [Credit
Enhancer] or, after an [Enhancement Default], the Holders of Class A
Certificates evidencing not less than [ ]% 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 [Credit Enhancer] have been paid in full or (B) an
[Enhancement Default] shall have occurred and be continuing, the
Holders of Class B Certificates evidencing not less than [ ]% of the
Class B Certificate Balance (such notice shall constitute actual
knowledge of an Event of Default by the Trustee); and
(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.
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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 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.
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SECTION 10.4. Certain Matters Affecting Trustee. Except as otherwise
provided in Section 10.1:
(i) The Trustee may rely and shall be fully 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 the Trustee 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 [Credit Enhancer] pursuant to the
provisions of this Agreement, unless such Certificateholders or the
[Credit Enhancer] shall have offered to the Trustee reasonable (in the
Trustee's judgment) 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, with the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her 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 [Credit
Enhancer] or Holders of Class A Certificates evidencing not less than [
]% 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 [Credit
Enhancer] have been paid in full or (B) an
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[Enhancement Default] shall have occurred and be continuing, the
Holders of Class B Certificates evidencing not less that [ ]% 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, and shall be fully protected in so
relying, 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 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
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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
[Credit Enhancer] or any loss resulting therefrom (it being understood that the
Trustee shall remain responsible for any Trust Assets or Transaction Account
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 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 [ ] and [the Rating Agency rating the Class B Certificates is
[ ]] and that
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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. CPS as 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 the Trustee's
part, arising out of or in connection with the acceptance or administration of
the Trust, or the Trustee's performance of its duties hereunder 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 $[ ]
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 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
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to the Servicer. Upon receiving such notice of resignation, with the prior
written consent of (a) the [Credit Enhancer] and the Holders of Class A
Certificates evidencing not less than [ ]% 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 [Credit Enhancer] have
been paid in full, with the prior written consent of the Holders of Class B
Certificates evidencing not less than [ ]% 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 [Credit Enhancer]
delivered to the Trustee and the Servicer; [provided that, if an [Enhancement
Default] has occurred which is continuing, such right of the [Credit Enhancer]
shall be inoperative during the period of such [Enhancement Default] and shall
instead vest in the Trustee acting at the direction of the Holders of Class A
Certificates evidencing not less than [ ] 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 [Credit
Enhancer] have been paid in full, the Holders of Class B Certificates evidencing
not less than [ ] 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 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 [Credit Enhancer] 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
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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 [Credit Enhancer] 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
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 [Credit Enhancer]
(provided no [Enhancement Default] shall 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,
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and, subject to the other provisions of this Section 10.12, such powers, duties,
obligations, rights, and trusts as the Servicer, the [Credit Enhancer] and the
Trustee may consider necessary or desirable. If the Servicer and the [Credit
Enhancer] 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 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 [Enhancement Default] shall have occurred
and be continuing, the [Credit Enhancer] may, and, in the event an
[Enhancement 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
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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
[Credit Enhancer] and Certificateholders shall rely:
(i) The Trustee is a banking corporation [or association] duly
organized, validly existing, and in good standing under the laws of the
United States of America.
(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
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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 [Credit Enhancer] to Direct Trustee; Class B
Certificateholder's Right of First Refusal. (a) The [Credit Enhancer], 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 [ ]% of each of the Class A Certificate Balance and the Class B
Certificate Balance.]
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(c) Notwithstanding anything to the contrary contained in subsections
(a) or (b) above, the Trustee shall have the right to decline to follow any such
direction of the [Credit Enhancer] if the Trustee, being advised by counsel,
determines that the 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 [Credit Enhancer].
ARTICLE XI
Termination
SECTION 11.1. Termination of the Trust. The respective obligations and
responsibilities of CPS, 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 Credit Enhancement] (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 [Credit Enhancer] 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
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Trustee shall give such notice to the Certificate Registrar (if other than the
Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Trustee shall cause to be
distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 4.6.
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 [Credit Enhancer], if such purchase would result in a claim under
[the Credit Enhancement] or would result in any amount owing to the [Credit
Enhancer] 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 [Credit Enhancer], 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
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by the Servicer, the [Credit Enhancer] 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.
ARTICLE XII
Miscellaneous Provisions
SECTION 12.1. Amendment. (a) This Agreement may be amended from time to
time by the parties hereto, with the consent of the Trustee (which consent may
not be unreasonably withheld), with the prior written consent of the [Credit
Enhancer] (so long as no Insurer Default has occurred and is continuing) but
without the consent of any of the Certificateholders, to cure any error, defect
or ambiguity, to correct or supplement any provisions in this Agreement, to
comply with any changes in the Code, or to make any other provisions with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement or the [Enhancement
Agreement]; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel delivered to the Trustee, adversely affect in any material
respect the interests of any Certificateholder; provided further that if an
[Enhancement Default] has occurred and is continuing, such action shall not
materially adversely affect the interests of the [Credit Enhancer].
(b) This Agreement may be amended from time to time by the Seller, the
Servicer, and the Trustee with the consent of the [Credit Enhancer] 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 [
]% of the Class A Certificate Balance and the Holders of Class B Certificates
evidencing not less than [ ]% 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.
It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Agreement) and of evidencing
the authorization of any action by Certificateholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
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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 affects the
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 12.2. Protection of Title to Trust. (a) Each of the Seller, as
to itself, or Servicer, as to itself, 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
its interest in the Receivables and the other Trust Assets and in the proceeds
thereof. Each of the Seller, as to itself, or Servicer, as to itself, 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 [Credit Enhancer] 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 [Credit Enhancer] 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
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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.
(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 199[ ]-[ ] 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 [Credit Enhancer] 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 [Credit Enhancer], within [five] Business Days, a
list of all Receivables (by contract number and name of Obligor) then held as
part of the Trust, together with a reconciliation of such list to the Schedule
of Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
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(i) The Servicer shall deliver to the Trustee and the [Credit
Enhancer:
(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 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
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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 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 [ ]% 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
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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 under
[the Credit Enhancement].
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 this
Agreement, unless it has the prior written consent of the [Credit Enhancer] and,
if any Class A Certificate shall remain outstanding, the prior written consent
of the Holders of Class A Certificates evidencing not less than[ ]% 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 [Credit
Enhancer] 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 [Credit Enhancer], [the rating
agency] 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: [ ], 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, 2 ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy: 714-753-3951), (c) in the case of the Trustee, at [
], (d) in the case of [rating agency], at the following address: [ ], (e) in the
case of [rating agency] at [ ]; and (f) in the case of [Credit Enhancer], at the
following address: [ ]. 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.
The Trustee shall give prompt written notice to each of the Rating
Agencies and each Class A Certificateholder of (i) any
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amendments to the [Enhancement Agreement] or [the Credit Enhancement] (upon
receipt of written notice of any such amendments from CPS, the Seller or the
Servicer), (ii) any change in the identity of the Paying Agent and (iii) any
failure to make payment under [the Credit Enhancement].
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 [Credit Enhancer], CPS, the Trustee and the Holders
of Certificates evidencing not less than [ ]% of the Pool Balance, the Holders
of Class A Certificates evidencing not less than [ ]% of the Class A Certificate
Balance and the Holders of Class B Certificates evidencing not less than [ ]% 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 bankruptcy, insolvency or similar law or
appointing a receiver,
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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
[Credit Enhancer] 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. [The Credit Enhancer] 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 Credit
Enhancement], has agreed that the [Credit Enhancer] shall have certain rights
hereunder for so long as no [Enhancement Default] shall have occurred and be
continuing. So long as an [Enhancement Default] has occurred and is continuing,
any provision giving the [Credit Enhancer] 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 [Enhancement 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 [ ]% 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 [Credit Enhancer] have been paid in
full, any provision giving the [Credit Enhancer] 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 [ ]% of the
Class B Certificate Balance. [The Credit Enhancer may disclaim any of its rights
and powers under this Agreement (but not its duties and obligations under [the
Credit Enhancement]) upon delivery of a written notice to the Trustee. [The
Credit Enhancer] 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 Seller hereby designates CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (212) 644-1666 as agent for service of process in all
matters pertaining to the Seller in New York.]
[SECTION 12.13. Rule 144A Information. For so long as any of the
Certificates are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, each of CPS, the Seller, the Trustee and the Servicer
agrees to cooperate with each other to provide to any Certificateholder and to
any prospective purchaser of Certificates designated by such a
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Securities Act.]
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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.
[ ],
as Seller
By:__________________________________________
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer
By:__________________________________________
Name:
Title:
[ ]
as Trustee [and Standby Servicer]
By:__________________________________________
Name:
Title:
TABLE OF CONTENTS
Section Page
ARTICLE I
Definitions
1.1. Definitions........................................... 2
1.2. Usage of Terms........................................ 19
1.3. Section References.................................... 19
1.4. Limitation on Trust Fund Activities................... 19
1.5. Calculations.......................................... 19
1.6. Action by or Consent of Certificateholders............ 19
1.7. Material Adverse Effect............................... 20
ARTICLE II
The Trust and Trust Property
2.1. Creation of Trust..................................... 20
2.2. Conveyance of Receivables............................. 20
2.3. Transfer Intended as Sale; Precautionary
Security Interest................................ 21
2.4. Acceptance by Trustee................................. 21
2.5. Representations and Warranties of Seller.............. 22
2.6. Repurchase Upon Breach................................ 28
2.7. Delivery of Receivable Files.......................... 29
2.8. Acceptance of Receivable Files by Trustee............. 29
2.9. Access to Receivable Files............................ 31
ARTICLE III
Administration and Servicing of Receivables
3.1. Duties of Servicer.................................... 32
3.2. Collection and Allocation of Receivable
Payments......................................... 33
3.3. Realization Upon Receivables.......................... 34
3.4. Physical Damage Insurance; Other Insurance............ 34
3.5. Maintenance of Security Interests in
Financed Vehicles................................ 35
3.6. Additional Covenants of Servicer...................... 36
3.7. Purchase of Receivables Upon Breach................... 36
3.8. Servicing Fee......................................... 37
3.9. Servicer's Certificate................................ 37
3.10. Annual Statement as to Compliance: Notice
of Default....................................... 37
3.11. Annual Independent Certified Public
Accountant's Report.............................. 38
Section Page
3.12. Reserved............................................. 39
3.13. Servicer Expenses.................................... 39
3.14. Retention and Termination of Servicer................ 39
3.15. Access to Certain Documentation and
Information Regarding Receivables............... 40
3.16. Verification of Servicer's Certificate............... 40
3.17. Fidelity Bond........................................ 41
3.18. Delegation of Duties................................. 41
ARTICLE IV
Distributions, Spread Account;
Statements to Certificateholders
4.1. Accounts; Post-Office Box............................ 42
4.2. Collections.......................................... 44
4.3. Application of Collections........................... 44
4.4. Payaheads............................................ 45
4.5. Additional Deposits.................................. 45
4.6. Distributions; [Credit Enhancement Claims]........... 45
4.7. Withdrawals from [Spread Account] and
[Reserve Fund].................................. 49
4.8. Statements to Certificateholders; Tax
Returns......................................... 50
4.9. Credit Enhancement; Subrogation...................... 52
4.10. Reliance on Information from the Servicer............ 53
4.11. Reserved............................................. 53
ARTICLE V
Reserved.
ARTICLE VI
The Certificates
6.1. The Certificates..................................... 53
6.2A. Appointment of Paying Agent.......................... 54
6.2B. Authenticating Agent................................. 55
6.2. Authentication of Certificates....................... 56
6.3. Registration of Transfer and Exchange of
Certificates.................................... 56
6.4. Mutilated, Destroyed, Lost or Stolen
Certificates.................................... 57
6.5. Persons Deemed Owners................................ 57
6.6. Access to List of Certificateholders' Names
and Addresses................................... 57
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Section Page
6.7. Maintenance of Office or Agency.................... 58
6.8. Book-Entry Certificates............................ 58
6.9. Notices to Clearing Agency......................... 59
6.10. Definitive Certificates............................ 59
ARTICLE VII
The Seller
7.1. Representations of Seller.......................... 60
7.2. Liability of Seller; Indemnities................... 62
7.3. Merger or Consolidation of, or Assumption
of the Obligations of, Seller................. 62
7.4. Limitation on Liability of Seller and
Others........................................ 63
7.5. Seller May Own Certificates........................ 63
ARTICLE VIII
The Servicer
8.1. Representations of Servicer........................ 64
8.2. Indemnities of Servicer............................ 66
8.3. Merger or Consolidation of, or Assumption
of the Obligations of, Servicer or Standby
Servicer...................................... 67
8.4. Limitation on Liability of Servicer and
Others........................................ 68
8.5. Servicer and Standby Servicer Not to
Resign........................................ 69
ARTICLE IX
Default
9.1. Events of Default.................................. 70
9.2. Appointment of Successor........................... 72
9.3. Reserved........................................... 74
9.4. Notification to Certificateholders................. 74
9.5. Direction of Insolvency Proceedings by
[Credit Enhancer]............................. 74
9.6. Action Upon Certain Failures of the
Servicer...................................... 75
ARTICLE X
The Trustee
10.1. Duties of Trustee.................................. 76
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Section Page
10.2. Trustee's Certificate............................... 78
10.3. Reserved............................................ 78
10.4. Certain Matters Affecting Trustee................... 79
10.5. Trustee Not Liable for Certificates or
Receivables.................................... 80
10.6. Trustee May Own Certificates........................ 82
10.7. Indemnity of Trustee................................ 82
10.8. Eligibility Requirements for Trustee................ 82
10.9. Resignation or Removal of Trustee................... 82
10.10. Successor Trustee................................... 83
10.11. Merger or Consolidation of Trustee.................. 84
10.12. Co-Trustee; Separate Trustee........................ 84
10.13. Representations and Warranties of Trustee........... 86
10.14. No Bankruptcy Petition.............................. 86
10.15. Trustee May Enforce Claims Without
Possession of Certificates..................... 87
10.16. Rights of [Credit Enhancer] to Direct
Trustee; Class B Certificateholder's
Right of First Refusal......................... 87
ARTICLE XI
Termination
11.1. Termination of the Trust............................ 88
11.2. Optional Purchase of All Receivables................ 89
ARTICLE XII
Miscellaneous Provisions
12.1. Amendment........................................... 90
12.2. Protection of Title to Trust........................ 91
12.3. Limitation on Rights of
Certificateholders............................. 94
12.4. Governing Law....................................... 95
12.5. Notices............................................. 95
12.6. Severability of Provisions.......................... 96
12.7. Assignment.......................................... 96
12.8. Certificates Nonassessable and Fully Paid........... 96
12.9. Nonpetition Covenant................................ 96
12.10. Third Party Beneficiaries........................... 97
12.11. [The Credit Enhancer] as Controlling Party.......... 97
12.12. Agent for Service................................... 97
12.13. Rule 144A Information............................... 97
-iv-
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
SCHEDULES
Schedule A Schedule of Receivables
Schedule B Location of Receivables
-v-
Exhibit A to the
Pooling and Servicing
Agreement
FORM OF CLASS A CERTIFICATE SEE REVERSE FOR
CERTAIN
DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED By AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE &, CO., HAS AN INTEREST HEREIN.
CPS AUTO GRANTOR TRUST 199[ ]
[ ] ASSET BACKED CERTIFICATE
CLASS A
evidencing a beneficial ownership interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used automobiles, light trucks, vans and minivans and sold to the
Trust by [Seller].
(This Certificate does not represent an interest in or obligation of [Seller],
Consumer Portfolio Services, Inc., the Trustee or any of their respective
affiliates, except to the extent described below.)
NUMBER R-[ ] CUSIP No. [ ]
$[ ] Final Scheduled Distribution Date: [ ]
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a [ ] dollar
nonassessable, fully-paid, fractional undivided ownership interest in the CPS
Auto Grantor Trust 199[ ]-[ ] (the "Trust") formed by Consumer Portfolio
Services, Inc. (the "Servicer"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of [ ] (the "Agreement") among the Seller, Consumer
Portfolio Services, Inc., as servicer (the "Servicer"), and [ ] as trustee (the
"Trustee") [and Standby Servicer], a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "[ ]% Asset Backed Certificates, Class A"
(herein called the "Class A Certificates"). Also issued under the Agreement are
Certificates designated as "[ ]% Asset Backed Certificates, Class B" (the "Class
B Certificates"). The Class B Certificates and the Class A Certificates are
hereinafter collectively called the "Certificates". The aggregate beneficial
ownership interests in the Trust evidenced by all Class A Certificates is [ ]%.
This Class A Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which Agreement the Holder of
this Class A Certificate by virtue of the acceptance hereof assents and by which
such Holder is bound. The property of the Trust includes (i) a pool of retail
installment sale contracts for new and used automobiles, light trucks, vans and
minivans (the "Receivables"), with respect to Rule of 78's Receivables, all
monies due or to become due thereon after [ ] (the "Cutoff Date") and, with
respect to Simple Interest Receivables, all amounts received with respect
thereto after the Cutoff Date, security interests in the vehicles financed
thereby, proceeds from claims on certain insurance policies and certain other
rights under the Agreement, certain bank accounts and the proceeds thereof, all
right, title and interest of the Seller in and to the Purchase Agreement, all
right, title and interest of the Seller in and to certain refunds, the
Receivable File related to each Receivable and the proceeds of any or all of the
foregoing; and (ii) [Credit Enhancement] issued for the benefit of the Class A
Certificateholders by [Credit Enhancer] [(the "Credit Enhancement"].
Under the Agreement, there will be distributed on the 15th day of each
month or, if such [ ] day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on [ ], to the person in whose name this Class
A Certificate is registered at the close of business on the [ ] day of the
calendar month in which such Distribution Date occurs (the "Record Date"), such
Class A Certificateholder's percentage interest (determined by dividing the
denominations of this Class A Certificate by the aggregate original denomination
of all Class A Certificates) in the amounts distributed to Class A
Certificateholders pursuant to the Agreement.
[Credit Enhancement is provided pursuant to the Enhancement Agreement.]
Distributions on this Class A Certificate will be made by the Trustee
by check or money order mailed to the Class A Certificateholder of record in the
Certificate Register without the presentation or surrender of this Class A
Certificate or the making of any notation hereon except that with respect to
Class A Certificates registered in the name of Cede & Co., the nominee for the
Clearing Agency, distributions will be made in the form of immediately available
funds. Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Class A Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Class A Certificate at the office or agency
maintained for that purpose by the Trustee in the Borough of Manhattan, The City
of New York. The Record Date otherwise applicable to such distribution shall not
be applicable.
Reference is hereby made to the further provisions of this Class A
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class A Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class A Certificate to be duly executed.
CPS AUTO GRANTOR TRUST 199[ ]-[ ]
By: [ ]
not in its individual
capacity but solely in its
capacity as Trustee
By:/s/__________________________
Authorized Signatory
Dated: [ ]
This is one of the Class A Certificates
referred to in the within-mentioned Agreement.
[ ]
not in its individual capacity but
solely in its capacity as Trustee
By:/s/ ___________________________
Authorized Signatory
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables [and claims made under the [Credit
Enhancement], all as more specifically set forth in the Agreement. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Seller, and at such other places, if any, designated by the Seller, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement at any time
by the Seller, the Servicer and the Trustee with the consent of the [Credit
Enhancer] and with the consent of the Holders of Certificates evidencing not
less than [ ]% of the Class A Certificate Balance and [ ]% of the Class B
Certificate Balance. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity as
Certificate Registrar, or by any successor Certificate Registrar, accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee.
The Class A Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 and integral multiples
thereof; however, one certificate may be issued in the residual amount. As
provided in the Agreement and subject to certain limitations set forth therein,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Trustee may require payment of a sum sufficient
to cover any tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Authenticating Agent may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement, the payment
of all Reimbursement Obligations, and the expiration of any preference period
with respect thereto and the disposition of all property held as part of the
Trust. The Servicer of the Receivables may at its option purchase the corpus of
the Trust at a price specified in the Agreement, and such purchase of the
Receivables and other property of the Trust will effect early retirement of the
Certificates; however, such right of purchase is exercisable only as of the last
day of any Collection Period as of which the Pool Balance is less than or equal
to 10% of the original aggregate principal balance of the Receivables.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-----------------------------------------------------------------
(Please print or typewrite name and address, including postal zip
code, of assignee)
-----------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
__________________________________________ Attorney to transfer said Certificate
on the books of the Certificate Registrar, with full power of substitution in
the premises.
Dated:
__________________________________*
__________________________________*
_______________
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever.
Exhibit B to the
Pooling and Servicing
Agreement
FORM OF CLASS B CERTIFICATE
SEE REVERSE FOR
CERTAIN
DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED By AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CPS AUTO GRANTOR TRUST 199[ ]
[ ] ASSET BACKED CERTIFICATE
CLASS B
evidencing a beneficial ownership interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used automobiles, light trucks, vans and minivans and sold to the
Trust by [Seller].
(This Certificate does not represent an interest in or obligation of [Seller],
Consumer Portfolio Services, Inc., the Trustee or any of their respective
affiliates, except to the extent described below.)
NUMBER R-[ ] CUSIP No. [ ]
$[ ] Final Scheduled Distribution Date: [ ]
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a [ ] dollar
nonassessable, fully-paid, fractional undivided ownership interest in the CPS
Auto Grantor Trust 199[ ]-[ ] (the "Trust") formed by Consumer Portfolio
Services, Inc. (the "Servicer"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of [ ] (the "Agreement") among the Seller, Consumer
Portfolio Services, Inc., as servicer (the "Servicer"), and [ ] as trustee (the
"Trustee") [and Standby Servicer], a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "[ ]% Asset Backed Certificates, Class B"
(herein called the "Class B Certificates"). Also issued under the Agreement are
Certificates designated as "[ ]% Asset Backed Certificates, Class A" (the "Class
B Certificates"). The Class B Certificates and the Class A Certificates are
hereinafter collectively called the "Certificates". The aggregate beneficial
ownership interests in the Trust evidenced by all Class B Certificates is [ ]%.
This Class B Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which Agreement the Holder of
this Class B Certificate by virtue of the acceptance hereof assents and by which
such Holder is bound. The property of the Trust includes (i) a pool of retail
installment sale contracts for new and used automobiles, light trucks, vans and
minivans (the "Receivables"), with respect to Rule of 78's Receivables, all
monies due or to become due thereon after [ ] (the "Cutoff Date") and, with
respect to Simple Interest Receivables, all amounts received with respect
thereto after the Cutoff Date, security interests in the vehicles financed
thereby, proceeds from claims on certain insurance policies and certain other
rights under the Agreement, certain bank accounts and the proceeds thereof, all
right, title and interest of the Seller in and to the Purchase Agreement, all
right, title and interest of the Seller in and to certain refunds, the
Receivable File related to each Receivable and the proceeds of any or all of the
foregoing; and (ii) [Credit Enhancement] issued for the benefit of the Class A
Certificateholders by [Credit Enhancer] [(the "Credit Enhancement"].
Under the Agreement, there will be distributed on the 15th day of each
month or, if such [ ] day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on [ ], to the person in whose name this Class
B Certificate is registered at the close of business on the [ ] day of the
calendar month in which such Distribution Date occurs (the "Record Date"), such
Class B Certificateholder's percentage interest (determined by dividing the
denominations of this Class B Certificate by the aggregate original denomination
of all Class B Certificates) in the amounts distributed to Class B
Certificateholders pursuant to the Agreement.
Distributions on this Class B Certificate will be made by the Trustee
by check or money order mailed to the Class B Certificateholder of record in the
Certificate Register without the presentation or surrender of this Class B
Certificate or the making of any notation hereon except that with respect to
Class B Certificates registered in the name of Cede & Co., the nominee for the
Clearing Agency, distributions will be made in the form
of immediately available funds. Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this Class B
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the Trustee
in the Borough of Manhattan, The City of New York. The Record Date otherwise
applicable to such distribution shall not be applicable.
Reference is hereby made to the further provisions of this Class B
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class B Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class B Certificate to be duly executed.
CPS AUTO GRANTOR TRUST 199[ ]-[ ]
By: [ ]
not in its individual capacity
but solely in its capacity as
Trustee
By: ______________________________
Authorized Signatory
Dated: [ ]
This is one of the Class B Certificates
referred to in the within-mentioned
Agreement.
[ ]
not in its individual capacity but
solely in its capacity as Trustee
By:___________________________
Authorized Signatory
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables [and claims made under the [Credit
Enhancement], all as more specifically set forth in the Agreement. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Seller, and at such other places, if any, designated by the Seller, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement at any time
by the Seller, the Servicer and the Trustee with the consent of the [Credit
Enhancer] and with the consent of the Holders of Certificates evidencing not
less than [ ]% of the Class A Certificate Balance and [ ]% of the Class B
Certificate Balance. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity as
Certificate Registrar, or by any successor Certificate Registrar, accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee.
The Class B Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 and integral multiples
thereof; however, one certificate may be issued in the residual amount. As
provided in the Agreement and subject to certain limitations set forth therein,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Trustee may require payment of a sum sufficient
to cover any tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Authenticating Agent may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement, the payment
of all Reimbursement Obligations, and the expiration of any preference period
with respect thereto and the disposition of all property held as part of the
Trust. The Servicer of the Receivables may at its option purchase the corpus of
the Trust at a price specified in the Agreement, and such purchase of the
Receivables and other property of the Trust will effect early retirement of the
Certificates; however, such right of purchase is exercisable only as of the last
day of any Collection Period as of which the Pool Balance is less than or equal
to 10% of the original aggregate principal balance of the Receivables.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-----------------------------------------------------------------
(Please print or typewrite name and address, including postal zip
code, of assignee)
-----------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
__________________________________________ Attorney to transfer said Certificate
on the books of the Certificate Registrar, with full power of substitution in
the premises.
Dated:
__________________________________*
__________________________________*
______________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever.
Exhibit C-1 to
Pooling and Servicing
Agreement
Trustee's Certificate
Pursuant to Section 10.2 of
the Pooling and Servicing Agreement
[ ], as trustee (the "Trustee") of the CPS Auto Grantor Trust 199[ ]-[
] created pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [ ], among [ ], as Seller, Consumer Portfolio
Services, Inc., as Servicer, and [ ], as Trustee [and Standby Servicer], does
hereby sell, transfer, assign, and otherwise convey to Consumer Portfolio
Services, Inc., without recourse, representation, or warranty, all of the
Trustee's right, title, and interest in and to all of the Receivables (as
defined in the Pooling and Servicing Agreement) identified in the attached
Servicer's Certificate as "Purchased Receivables," which are to be repurchased
by Consumer Portfolio Services, Inc. pursuant to Section 2.6 and all security
and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this __ day of ____, 19__.
By:
_____________________________________
Name:
Title:
Exhibit C-2 to
Pooling and Servicing
Agreement
Trustee's Certificate
Pursuant to Section 10.2 of
the Pooling and Servicing Agreement
[ ], as trustee (the "Trustee") of the CPS Auto Grantor Trust 199[ ]-[
] created pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [ ], among [ ], as Seller, [ ], as Servicer
(the "Servicer"), and [ ], as Trustee [and Standby Servicer], does hereby sell,
transfer, assign, and otherwise convey to the Servicer, without recourse,
representation, or warranty, all of the Trustee's right, title, and interest in
and to all of the Receivables (as defined in the Pooling and Servicing
Agreement) identified in the attached Servicer's Certificate as "Purchased
Receivables," which are to be repurchased by the Servicer pursuant to Section
3.7 and all security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this __ day of ____,
19__.
By:
_____________________________________
Name:
Title:
Exhibit D to
Pooling and Servicing
Agreement
Form of Monthly
Certificateholder Statement
[To be delivered by Servicer at Closing]
Exhibit E-1 to
Pooling and Servicing
Agreement
Trust Receipt
Pursuant to Section 2.9 of
the Pooling and Servicing Agreement
[ ], as Servicer (the "Servicer") of the CPS Auto Grantor Trust 199[
]-[ ] created pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [ ], among [ ], as Seller, [ ], the Servicer,
and [ ], as Trustee [and Standby Servicer], does hereby acknowledge receipt of
the documents relating to Receivables, each of which documents and the
Receivables they related to are listed on the attached Schedule 1 hereto.
Servicer furthermore agrees to return such documents to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement.
IN WITNESS WHEREOF I have hereunto set my hand this __ day of ____, 19__.
[ ],
as Servicer
By:
_____________________________________
Name:
Title:
Acknowledged By:
[ ],
as Trustee
By:
--------------------------------
Name:
Title:
Exhibit E-2 to
Pooling and Servicing
Agreement
Form of Servicing
Officer's Certificate
[To be delivered by Servicer at Closing]