EXHIBIT 4(f)(1)
SECURITY AGREEMENT
SECURITY AGREEMENT (this "AGREEMENT"), dated as of July 7, 1998 among
KITTY HAWK FUNDING CORPORATION, a Delaware corporation, as a secured party
(together with its successors and assigns, the "COMPANY"), CAC FUNDING CORP., a
Nevada corporation, as debtor (together with its successors and assigns, the
"DEBTOR"), CREDIT ACCEPTANCE CORPORATION, a Michigan corporation, individually
and as servicer (together with its successors and assigns, the "SERVICER"), and
NATIONSBANK, N.A., a national banking association ("NATIONSBANK"), individually
and as collateral agent (together with its successors and assigns in such
capacity, the "COLLATERAL AGENT").
W I T N E S S E T H :
WHEREAS, subject to the terms and conditions of this Agreement, the
Debtor desires to grant a security interest in and to the Loans and related
property (including the Debtor's interest in the Contracts securing payment of
such Loans) and the Collections derived therefrom during the full term of this
Agreement;
WHEREAS, pursuant to the Note Purchase Agreement, the Debtor has
issued the Note to the Company and will be obligated to the holder of such Note
to pay the principal of and interest on such Note in accordance with the terms
thereof;
WHEREAS, the Debtor is granting a security interest in the Collateral
to the Collateral Agent, for the benefit of the Secured Parties, to secure the
payment and performance of the Debtor of its obligations under the Note, the
Note Purchase Agreement and this Agreement;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. All capitalized terms used herein shall
have the meanings herein specified, and shall include in the singular number the
plural and in the plural number the singular:
"ACCRUED INTEREST COMPONENT" shall mean, for any Collection Period,
the Interest Component of all Related Commercial Paper outstanding at any time
during such Collection Period which has accrued from the first day through the
last day of such Collection Period, whether or not such Related Commercial Paper
matures during such Collection Period. For purposes of the immediately
preceding sentence, the portion of the Interest Component of Related Commercial
Paper accrued in a Collection Period in which Related Commercial Paper has a
stated maturity date that succeeds the last day of such Collection Period shall
be computed based on the actual number of days that such Related Commercial
Paper was outstanding during such Collection Period.
"ADJUSTED LIBOR RATE" means, with respect to any Collection Period, a
rate per annum equal to the sum (rounded upwards, if necessary, to the next
higher 1/100 of 1%) of (A) the rate obtained by dividing (i) the applicable
LIBOR Rate by (ii) a percentage equal to 100% minus the reserve percentage used
for determining the maximum reserve requirement as specified in Regulation D
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) that is applicable to the Agent during such Collection Period
in respect of eurocurrency or eurodollar funding, lending or liabilities (or, if
more than one percentage shall be so applicable, the daily average of such
percentage for those days in such Collection Period during which any such
percentage shall be applicable) plus (B) the then daily net annual assessment
rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) as estimated by
the Agent for determining the current annual assessment payable by the Agent to
the Federal Deposit Insurance Corporation in respect of eurocurrency or
eurodollar
funding, lending or liabilities.
"ADMINISTRATIVE AGENT" shall mean NationsBank, N.A., as administrative
agent for the Company.
"ADMINISTRATIVE EXPENSES" shall mean, with respect to any Collection
Period, the sum of: (a) the reasonable expenses incurred by the Debtor in the
ordinary course of business, (b)the reasonable expenses of the Debtor relating
to the maintenance of the Collateral, and (c) all other expenses of the Debtor
relating to the issuance of the Note pursuant to this Agreement, including legal
fees and expenses of counsel and accountants; PROVIDED, that Administrative
Expenses shall not exceed $25,000 in any given calendar year.
"AFFILIATE" shall mean, with respect to a Person, any other Person
which directly or indirectly controls, is controlled by or is under common
control with such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"AGENT" shall have the meaning specified in the Note Purchase
Agreement.
"AGGREGATE OUTSTANDING ELIGIBLE LOAN BALANCE" shall mean, with respect
to any date of determination, the aggregate Outstanding Balance under all
Eligible Loans at the end of such day.
"AGREEMENT" shall mean this Security Agreement, as it may from time to
time be amended, supplemented or otherwise modified in accordance with the terms
hereof.
"AVAILABLE CASH" shall mean the Accrued Interest Component of Related
Commercial Paper which is distributed to the Agent pursuant to Section
5.1(a)(iii), with respect to which such Related Commercial Paper did not mature
during the related Collection Period.
"AVAILABLE COLLECTIONS" shall mean, with respect to each Remittance
Date, all Collections received by the Servicer, from whatever source, including
amounts paid by the Debtor under Section 3.2(e) during or with
respect to the prior Collection Period.
"BANK INVESTORS" shall have the meaning specified in the Note Purchase
Agreement.
"BASE RATE" means, a rate per annum equal to the greater of (i) the
prime rate of interest announced by the Liquidity Provider (or, if more than one
Liquidity Provider, then by NationsBank, N.A.) from time to time, changing when
and as said prime rate changes (such rate not necessarily being the lowest or
best rate charged by the Liquidity Provider (or NationsBank, N.A. as
applicable)) and (ii) the sum of (a) 1.50% and (b) the rate equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Liquidity Provider
(or, if more than one Liquidity Provider, then by NationsBank, N.A.) from three
Federal funds brokers of recognized standing selected by it.
"BLENDED ADVANCE RATE" shall mean the percentage designated by the
Company, in its sole discretion, on the day of the most recent Funding. As of
the Closing Date, the Blended Advance Rate will be 72.77%.
"BUSINESS DAY" shall mean any day excluding Saturday, Sunday and any
day on which banks in New York, New York, Charlotte, North Carolina or Detroit,
Michigan are authorized or required by law to close.
"CAC" shall mean Credit Acceptance Corporation, a Michigan
corporation, and its successors and assigns.
"CARRYING COSTS" shall mean, with respect to any Collection Period,
the sum (without duplication) of (i) the sum of the dollar amount of the
obligations of the Company and any related Program Support Providers for such
Collection Period determined on an accrual basis in
accordance with generally accepted accounting principles consistently applied
(a) to pay interest accrued during such Collection Period with respect to the
Note pursuant to the Liquidity Provider Agreement and amounts outstanding
under the Program Support Agreement at any time during such Collection
Period, whether or not such interest is payable during such Collection
Period, and (b) to pay the Accrued Interest Component of Related Commercial
Paper with respect to such Collection Period, and (ii) the sum of (a) amounts
payable in respect of the Note by the Debtor pursuant to Article V of the
Note Purchase Agreement, and (b) to pay all fees payable pursuant to the Fee
Letter accrued from the first day of such Collection Period through the last
day of such Collection Period to the extent not paid by the Debtor in
accordance with the provisions of the Note Purchase Agreement and such Fee
Letter. During any Collection Period during which the Bank Investors have
(x) advanced funds with respect to a Funding or (y) acquired an interest in
the Note, in lieu of the amounts described in clause (i)(b) above, Carrying
Costs shall include interest on the daily average Net Investment for the
related Collection Period at the Adjusted LIBOR Rate, or if such rate is
unavailable, at the Base Rate, or if a Termination Event (other than a
Termination Event described in clauses (vii) and (viii) of Section 6.1) shall
have occurred and be continuing, at the Base Rate plus 2.00%.
"CLOSING DATE" shall mean July 7, 1998.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time (including any successor statute), and the regulations promulgated
and the rulings issued thereunder.
"COLLATERAL" shall have the meaning set forth in Section 2.1 of this
Agreement.
"COLLATERAL AGENT" shall mean NationsBank, N.A., or any successor
thereto, as Collateral Agent hereunder.
"COLLECTION ACCOUNT" shall mean the account established pursuant to
Section 4.7 of this Agreement.
"COLLECTION GUIDELINES" shall mean policies and procedures of the
Servicer, relating to the collection of
amounts due on contracts for the sale of automobiles and/or light-duty
trucks, as in effect on the Cut-Off Date and as amended from time to time in
accordance herewith and with the other Transaction Documents.
"COLLECTION PERIOD" shall mean, with respect to any Remittance Date,
the period from and including the first day of the calendar month immediately
preceding the calendar month in which such Remittance Date occurs through and
including the last day of such immediately preceding calendar month; PROVIDED,
that the first Collection Period shall begin on the Cut-Off Date and shall end
on the 31st day of the calendar month following the month containing the Cut-Off
Date.
"COLLECTIONS" shall mean all payments (including Recoveries,
credit-related insurance proceeds, Interest Rate Cap proceeds and proceeds of
Related Security) received by the Servicer, CAC or the Debtor on or after the
Cut-Off Date in respect of the Loans in the form of cash, checks, wire
transfers or other form of payment in accordance with the Loans and the
Dealer Agreements.
"COMMERCIAL PAPER" shall mean promissory notes of the Company issued
by the Company in the commercial paper market.
"COMPANY" shall mean Kitty Hawk Funding Corporation, a Delaware
corporation, together with its successors and assigns.
"CONTRACT" shall mean each retail installment sales contract, in
substantially one of the forms attached hereto as Exhibit A, relating to the
sale of a new or used automobile or light-duty truck originated by a Dealer and
in which CAC shall have been granted a security interest and shall have acquired
certain other ownership rights under the related Dealer Agreement to secure the
related dealer's obligation to repay one or more Loans.
"CONTRIBUTION AGREEMENT" shall mean a Contribution Agreement, dated as
of July 7, 1998, substantially in the form of Exhibit B hereto between CAC
and the Debtor, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"CREDIT GUIDELINES" shall mean policies and procedures of CAC,
relating to the extension of credit to automobile and light-duty truck dealers
in respect of retail installment contracts for the sale of automobiles and/or
light-duty trucks, including, without limitation, the policies and procedures
for determining the creditworthiness of such dealers and relating to this
extension of credit to such dealers and the maintenance of installment sale
contracts, as in effect on the Cut-Off Date and as amended from time to time in
accordance herewith and with the other Transaction Documents.
"CUT-OFF DATE" shall mean June 30, 1998.
"DATE OF PROCESSING" shall mean, with respect to any transaction
relating to a Loan or a Contract, the date on which such transaction is first
recorded on the Servicer's master servicing file (without regard to the
effective date of such recordation).
"DEALER" shall mean any new or used automobile and/or light-duty truck
dealer who has entered into a Dealer Agreement with CAC.
"DEALER AGREEMENT" shall mean each agreement between CAC and any
Dealer, in substantially the form attached hereto as Exhibit C.
"DEALER COLLECTIONS" shall have the meaning specified in Section
5.1(e).
"DEALER CONCENTRATION LIMIT" shall mean 3% of the Net Investment on
any date of determination.
"DEBTOR" shall mean CAC Funding Corp., a Nevada corporation, and its
successors and assigns.
"DEBTOR RELIEF LAW" shall mean the Bankruptcy Code of the United
States of America, and any successor to such code, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshaling of assets or
similar debtor relief laws of the United States, any state or any foreign
country from time to time in effect affecting the rights of creditors
generally.
"DEFAULTED CONTRACT" shall mean each Contract for which the amounts
due thereunder should be charged off as uncollectible in accordance with the
Servicer's accounting policies in effect from time to time. A Contract shall
become a Defaulted Contract on the day on which the amounts due under such
Contract are recorded as charged off on the Servicer's master file of Contracts,
but, in any event, shall be deemed a Defaulted Contract no later than the
earliest of (x) the day it becomes 270 days delinquent, based on the date the
last payment thereon was received by the Servicer and (y) the day on which it is
identified by the Servicer as uncollectible. Notwithstanding any other
provision of this Agreement, any amount due under a Defaulted Contract which is
an Ineligible Contract shall be treated as an amount due under an Ineligible
Contract rather than as an amount due under a Defaulted Contract.
"DETERMINATION DATE" shall mean the eighth day of each calendar month
or, if such eighth day is not a Business Day, the next succeeding Business Day.
"DISSOLUTION EVENT" shall mean CAC, the Servicer or the Debtor
voluntarily seeking, consenting to or acquiescing in the benefit or benefits of
any Debtor Relief Law or similar proceeding or becoming a party to (or be made
the subject of) any proceeding provided for by any Debtor Relief Law or similar
proceedings of or relating to CAC, the Servicer or the Debtor, or relating to
all or substantially all of their respective properties, other than as a
creditor or claimant, and in the event such proceeding is involuntary, the
petition instituting the same is not dismissed within 60 days of its filing; or
CAC, the Servicer or the Debtor, as applicable, shall admit in writing its
inability to pay its debts generally as they become due, make an assignment for
the benefit of its creditors or voluntarily suspend payment of its obligations.
"DOLLAR," "DOLLARS" and the symbol "$" shall mean lawful money of the
United States of America.
"DUFF & XXXXXX" shall mean Duff & Xxxxxx Credit
Rating Company.
"ELIGIBLE CONTRACT" shall mean each Contract which satisfies the
requirements for "Qualified Receivable" set forth in the related Dealer
Agreement.
"ELIGIBLE DEALER AGREEMENT" means, each Dealer Agreement:
(a) which was originated in compliance with all applicable
requirements of law and which complies with all applicable requirements of law;
(b) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by the Debtor,
CAC or by the Servicer in connection with the origination of such Dealer
Agreement or the execution, delivery and performance by the Debtor, CAC or by
the Servicer of such Dealer Agreement have been duly obtained, effected or given
and are in full force and effect;
(c) as to which at the time of the transfer of rights thereunder
to the Collateral Agent and the Secured Parties, the Debtor will have good and
marketable title thereto, free and clear of all Liens (other than the interests
of the applicable Dealer thereunder);
(d) The rights under which have been the subject of a valid
grant of a first priority perfected security interest in such rights and in the
proceeds thereof;
(e) which will at all times be the legal, valid and binding
obligation of the Dealer thereof (it being understood that recourse for such
payment obligation shall be limited to the extent set forth in the Dealer
Agreement), enforceable against such Dealer in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or
hereafter in effect, affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or inequity);
(f) which constitutes either a "general intangible" or "chattel
paper" under and as defined in Article 9 of the UCC as in effect in the Relevant
UCC State;
(g) which, at the time of the pledge of the rights to payment
thereunder to the Collateral Agent and the Secured Parties, has not been waived
or modified;
(h) which is not subject to any right of rescission, setoff,
counterclaim or other defense (including the defense of usury), other than
defenses arising out of applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
in general;
(i) as to which CAC, the Servicer and the Debtor have satisfied
all obligations to be fulfilled at the time the rights to payment thereunder are
pledged to the Collateral Agent and the Secured Parties;
(j) as to which the related Dealer has not asserted that such
agreement is void or unenforceable;
(k) as to which the related Dealer is not bankrupt or insolvent
to the best of CAC's knowledge; and
(l) as to which none of CAC, the Servicer nor the Debtor has
done anything, at the time of its pledge to the Collateral Agent and Secured
Parties, to impair the rights of the Collateral Agent and Secured Parties
therein.
"ELIGIBLE INSTITUTION" shall mean the Collateral Agent or any other
depository institution organized under the laws of the United States or any one
of the States thereof including the District of Columbia, the deposits in which
are insured by the FDIC and which at all times has a short-term unsecured debt
rating of at least "A-1+" and "P-1" from Standard & Poor's and
Moody's, respectively, and of at least "D-1+" from Duff & Xxxxxx, if such
institution is rated by Duff & Xxxxxx, and of at least "F-1+" from Fitch, if
such institution is rated by Fitch.
"ELIGIBLE INVESTMENTS" shall mean (a) negotiable instruments or
securities represented by instruments in bearer or registered or in book-entry
form which evidence (i) obligations fully guaranteed by the United States of
America; (ii) time deposits in, or bankers acceptances issued by, any depository
institution or trust company incorporated under the laws of the United States of
America or any state thereof (or any domestic branch or agency of any 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 certificates of
deposit or short-term deposits, if any, or long-term unsecured debt obligations
(other than any such obligation whose rating is based on collateral or on the
credit of a Person other than such institution or trust company) of such
depository institution or trust company shall have a credit rating from Moody's
and Standard & Poor's of at least "P-1" and "A-1+", respectively, and from Duff
& Xxxxxx of at least "D-1+", if such investment is rated by Duff & Xxxxxx, and
from Fitch of at least "F-1+", if such investment is rated by Fitch, in the case
of the certificates of deposit or short-term deposits, or a rating not lower
than one of the two highest investment categories granted by Moody's and
Standard & Poor's and Duff & Xxxxxx, if such investment is rated by Duff &
Xxxxxx, and Fitch, if such investment is rated by Fitch; (iii) certificates of
deposit having, at the time of the investment or contractual commitment to
invest therein, a rating from Moody's and Standard & Poor's of at least "P-1"
and "A-1+", respectively, and from Duff & Xxxxxx of at least "D-1+", if such
certificates of deposit are rated by Duff & Xxxxxx, and from Fitch of at least
"F-1", if such certificates of deposit are rated by Fitch; or (iv) investments
in money market funds rated in the highest investment category, (b) demand
deposits in the name of the Secured Parties or the Collateral Agent on behalf of
the Secured Parties in any depository institution or trust company referred to
in (a)(ii) above, (c) commercial paper (having original or remaining maturities
of no more than 30 days) having, at the time of the investment or contractual
commitment to invest therein, a credit rating from Moody's and Standard & Poor's
of at least "P-1" and "A-1+", respectively, and from Duff & Xxxxxx of at least
"D-1+", if such commercial paper is rated by Duff & Xxxxxx, and from Fitch of at
least "F-1", if such commercial paper is rated by Fitch, (d) Eurodollar time
deposits having a credit rating from Moody's and Standard & Poor's of at least
"P-1" and "A-1+", respectively, and from Duff & Xxxxxx of at least "D-1+", if
such deposits are rated by Duff & Xxxxxx, and from Fitch of at least "F-1", if
such deposits are rated by Fitch, and (e) repurchase agreements involving any of
the Eligible Investments described in clauses (a)(i), (a)(iii) and (d) hereof so
long as the other party to the repurchase agreement has at the time of the
investment therein, a rating from Moody's and Standard & Poor's of at least
"P-1" and "A-1+", respectively, and from Duff & Xxxxxx of at least "D-1+", if
such party is rated by Duff & Xxxxxx, and from Fitch of at least "F-1", if such
party is rated by Fitch.
"ELIGIBLE LOAN" means, each Loan:
(a) which has arisen under a Dealer Agreement that, on the day
the Loan was created, qualified as an Eligible Dealer Agreement;
(b) which was created in compliance with all applicable
requirements of law and pursuant to a Dealer Agreement which complies with all
applicable requirements of law;
(c) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by the Debtor
or by the original creditor, if not the Debtor, in connection with the creation
of such Loan or the execution, delivery and performance by the Debtor or by the
original creditor, if not the Debtor, of the related Dealer Agreement have been
duly obtained, effected or given and are in full force and effect;
(d) as to which at the time of the pledge of such Loan to the
Collateral Agent and the Secured Parties, the Debtor will have good and
marketable title thereto, free and clear of all Liens;
(e) which has been the subject of a grant of a valid first
priority perfected security interest in such Loan and in the proceeds thereof;
(f) which will at all times be the legal, valid and binding
payment obligation of the Obligor thereof (it being understood that recourse for
such payment obligation shall be limited to the extent set forth in the Dealer
Agreement), enforceable against such Obligor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, affecting the enforcement of creditors' rights in general and except
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or equity);
(g) which constitutes a "general intangible" under and as
defined in Article 9 of the UCC as in effect in the Relevant UCC State;
(h) the financing of which with the proceeds of commercial paper
would constitute a "current transaction" within the meaning of Section 3(a)(3)
of the Securities Act;
(i) which is denominated and payable in United States dollars;
(j) which, at the time of its pledge to the Collateral Agent and
the Secured Parties, has not been waived or modified;
(k) which is not subject to any right of rescission (subject to
the rights of the dealer to repay the outstanding balance of the Loan and
terminate the related Dealer Agreement), setoff, counterclaim or other defense
(including the defense of usury), other than
defenses arising out of applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights in general;
(l) as to which CAC, the Servicer and the Debtor have satisfied
all obligations to be fulfilled at the time it is pledged to the Collateral
Agent and the Secured Parties;
(m) as to which the related Dealer has not asserted that the
related Dealer Agreement is void or unenforceable;
(n) as to which the related Dealer is not bankrupt or insolvent
to the best of CAC's knowledge;
(o) as to which none of CAC, the Servicer nor the Debtor has
done anything, at the time of its pledge to the Collateral Agent and the Secured
Parties, to impair the rights of the Collateral Agent and the Secured Parties;
(p) the ratio of the outstanding advance to the gross contract
balance securing such Loan is less than or equal to 45%; PROVIDED, that Loans
which otherwise satisfy the definition of Eligible Loan but with regard to which
such ratio is greater than 45% shall be considered Eligible Loans but only to
the extent the Outstanding Balance of such Loans does not exceed 22.5% of the
Aggregate Outstanding Eligible Loan Balance (not giving effect to this clause
(p)); and
(q) the proceeds of which were used to finance the purchases of
new or used automobiles and/or light-duty trucks and related products.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" shall mean with respect to the Debtor, at any time,
each trade or business (whether or not incorporated) that would, at the time, be
treated together with the Debtor as a single employer under Section 4001 of
ERISA or Sections 414(b), (c), (m) or (o) of the Code.
"EXCLUDED LOAN BALANCE" shall mean, with respect to any date of
determination, the sum, without duplication, of the aggregate for all Dealers of
the amount by which (A) the aggregate Outstanding Balance of all Loans made to
each such Dealer exceeds (B) the product of the Dealer Concentration Limit and
the Aggregate Outstanding Eligible Loan Balance.
"FACE AMOUNT" shall mean (i) with respect to Commercial Paper issued
on a discount basis, the face amount stated therein, and (ii) with respect to
Commercial Paper which is interest-bearing, the principal amount of and interest
accrued and to accrue on such Commercial Paper to its stated maturity.
"FEE LETTER" shall mean the letter agreement, dated the Closing Date,
among the Company, the Administrative Agent and the Debtor in respect of the
payment by the Debtor of certain fees.
"FITCH" shall mean Fitch IBCA, Inc.
"FUNDING" shall have the meaning specified in the Note Purchase
Agreement.
"GOVERNMENTAL AUTHORITY" shall mean the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTY" shall mean any agreement, undertaking or arrangement by
which any Person guarantees, endorses, or otherwise becomes contingently liable
(whether directly, or indirectly by way of agreement, contingent or otherwise,
or purchase, to provide funds for payment, to supply funds to or otherwise
invest in the debtor, or otherwise to assure the creditor against loss) upon,
the indebtedness, obligation or liability of any Person, or guarantees the
payment of dividends or other distributions upon the stock of any corporation.
"INCOME COLLECTIONS" shall mean all Collections received in respect of
any dealer servicing fee, as stated in, and determined in accordance with, each
respective Dealer Agreement, plus all investment earnings on amounts on deposit
in the Collection Account.
"INELIGIBLE CONTRACT" shall mean each Contract other than an Eligible
Contract.
"INELIGIBLE LOAN" shall mean each Loan other than an Eligible Loan.
"INITIAL FUNDING" shall have the meaning specified in the Note
Purchase Agreement.
"INSTRUMENTS" shall mean "instruments" as defined in Section 9-105 of
the UCC.
"INSURANCE POLICY" shall mean the business interruption insurance
policy number FIP 000490002 issued by Fidelity & Deposit Company of Maryland.
"INTEREST COMPONENT" shall mean, with respect to Commercial Paper
issued (i) on a discount basis, the portion of the Face Amount of such
Commercial Paper representing the discount incurred in respect thereof and (ii)
on an interest-bearing basis, the interest payable on such Commercial Paper at
its maturity PROVIDED, HOWEVER, that if any component of such rate is a discount
rate in calculating the Interest Component, the rate used to calculate such
component of such rate shall be a rate resulting from converting such discount
rate to an interest bearing equivalent rate per annum.
"INTEREST RATE CAP" shall have the meaning specified in
Section 3.3(q).
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of
1940, as amended.
"KHFC COLLATERAL AGENT" shall mean NationsBank, N.A. as collateral
agent in respect of the Company's Commercial Paper program.
"LAW" shall mean any law (including common
law), constitution, statute, treaty, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Official Body.
"LIBOR RATE" means, with respect to any Collection Period, the rate
determined by NationsBank, N.A. ("NATIONSBANK") to be (i) the per annum rate for
deposits in U.S. Dollars for a term of one month which appears on the Telerate
Page 3750 Screen on the day that is two London Business Days prior to the first
day of such Collection Period except, that if such first day of the Collection
Period is not a Business Day, then the first preceding day that is a Business
Day (rounded upwards, if necessary, to the nearest 1/100,000 of 1%), (ii) if
such rate does not appear on the Telerate Page 3750 Screen, the term "LIBOR
Rate" with respect to that Collection Period shall be the arithmetic mean
(rounded upwards, if necessary, to the nearest 1/100,000 of 1%) of the offered
quotations obtained by NationsBank from four major banks in the London interbank
market selected by NationsBank (the "REFERENCE BANKS") for deposits in U.S.
Dollars to leading banks in the London interbank market as of approximately
11:00 a.m. (London time) on the day that is two London Business Days prior to
the first day of such Collection Period, unless such first day of the Collection
Period is not a Business Day, in which case, the first preceding day that is a
Business Day or (iii) if fewer than two Reference Banks provide NationsBank with
such quotations, the LIBOR Rate shall be the rate per annum which NationsBank
determines to be the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/100,000 of 1%) of the offered quotations which leading banks in New
York City selected by NationsBank are quoting in the New York interbank market
on such date for deposits in U.S. dollars to the Reference Banks or; if fewer
than two such quotations are available, to leading European and Canadian Banks.
"LIEN" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, participation, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority, charge or other security agreement or preferential
arrangement of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any
financing statement under the Uniform Commercial Code (other than any such
financing statement filed for informational purposes only) or comparable law of
any jurisdiction to evidence any of the foregoing.
"LIQUIDITY AGREEMENT" shall mean the agreement between the Company and
any Liquidity Provider evidencing the obligation of the Liquidity Provider to
provide liquidity support to the Company in connection with the issuance of
Commercial Paper.
"LIQUIDITY PROVIDER" shall have the meaning specified in the Note
Purchase Agreement.
"LIQUIDITY PROVIDER AGREEMENT" shall have the meaning specified in the
Note Purchase Agreement.
"LOAN" shall mean all amounts advanced by CAC under a Dealer Agreement
and payable from Collections, including servicing charges, insurance charges and
service policies and all related finance charges, late charges, and all other
fees and charges charged to customers; PROVIDED, HOWEVER, that the term "Loan"
shall, for the purposes of this Agreement, include only those Loans identified
from time to time on Exhibit D hereto, as amended from time to time in
accordance herewith.
"LONDON BUSINESS DAY" shall mean any day which is a Business Day and
also is a day on which commercial banks are open for international business
(including dealings in U.S. Dollar deposits) in London.
"MANDATORY CLEAN-UP EVENT" shall mean any day on which the Net
Investment is $500,000 or less.
"MATERIAL ADVERSE CHANGE" Any circumstance or event which in the
reasonable judgment of the Collateral Agent (a) may be reasonably expected to
cause a material adverse change to the validity or enforceability of this
Agreement or the Servicing Agreement, (b) may be reasonably expected to be
material and adverse to the financial condition, business, operations or
property of the Servicer (other than a decline in the volume of vehicles sold in
the United States automobile and
light-duty truck market or a circumstance or event that has a material
adverse effect on the United States financial markets) or (c) may be
reasonably expected to materially impair the ability of the Servicer to
fulfill its obligations under this Agreement or the Servicing Agreement.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any Person, a
material adverse effect on (i) the financial condition or operations of such
Person and its subsidiaries, as the case may be, taken as one enterprise, (ii)
the ability of such Person to perform its obligations under this Agreement and
the other Transaction Documents, (iii) the legality, validity or enforceability
of this Agreement and the other Transaction Documents, (iv) the Collection
Agent's interest in the aggregate amount of Loans and other Collateral or in any
significant portion of the Loans and other Collateral, or (v) the collectibility
of the aggregate amount of Loans or of any significant portion of the Loans,
other than, in the case of clauses (i)-(v), such Material Adverse Effects which
are the direct result of actions or omissions of the Collection Agent, the
Company or their respective Affiliates.
"MONTHLY SERVICER'S CERTIFICATE" shall have the meaning specified in
Section 4.5 hereof.
"MONTHLY SERVICING FEE" shall mean, with respect to any Remittance
Date, an amount equal to the product of (i) 4.00% and (ii) the Available
Collections (excluding from Available Collections such amounts paid by the
Debtor under Section 3.2(e) with respect to such Remittance Date and any
proceeds received pursuant to the Interest Rate Cap).
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which contributions are or have been made by the
Debtor or any ERISA Affiliate of the Debtor.
"NATIONSBANK" shall mean NationsBank, N.A., a national banking
association, and its successors and assigns.
"NET INVESTMENT" shall mean with respect to any Determination Date,
(i) the amount of the Initial Funding PLUS any Subsequent Fundings LESS (ii) all
Collections distributed to the Noteholder in reduction of the Net Investment
pursuant to Section 5.1 hereof on or prior to such Determination Date LESS (iii)
any draws from the Reserve Account distributed to the Noteholder in reduction of
the Net Investment, LESS (iv) any amounts paid to the Noteholder allocable to
principal pursuant to Section 3.2(e), and LESS (v) any other amounts applied in
reduction of the Net Investment.
"NOTE" shall mean the note issued by the Debtor to the Company
pursuant to Section 2.1(e) of the Note Purchase Agreement.
"NOTEHOLDER" shall mean the Company as holder of the Note or any
assignee thereof.
"NOTE INTEREST" shall have the meaning specified in Section 5.1(c).
"NOTE PURCHASE AGREEMENT" shall mean the Note Purchase Agreement dated
as of July 7, 1998 among the Debtor, the Company and NationsBank, as Agent and
as a Bank Investor, as such agreement may be amended, modified and supplemented
from time to time.
"OBLIGOR" shall mean, with respect to any Loan, Dealer Agreement or
Contract, the Person or Persons obligated to make payments with respect to such
Dealer Agreement, Loan or Contract, respectively, including any guarantor
thereof.
"OFFICIAL BODY" shall mean any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"OPTIONAL CLEAN-UP EVENT" shall mean any day on which the amount of
the Net Investment is 5% (or less) of the amount of the highest Net Investment
on any preceding day.
"OUTSTANDING BALANCE" shall mean,
(i) with respect to any Contract, all amounts owing under such
Contract (whether considered principal or as finance charges) from time to time.
The Outstanding Balance with respect to a Contract shall be deemed to have been
created at the end of the day on the Date of Processing of such Contract; and
(ii) with respect to any Loan, the aggregate amount advanced under
such Loan plus all collection costs owed to CAC under and as defined in the
related Dealer Agreement less all Collections applied in accordance with the
related Dealer Agreement to the reduction of the balance of such Loan.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
other entity succeeding to the functions currently performed by the Pension
Benefit Guaranty Corporation.
"PERSON" shall mean any legal person, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, Governmental Authority
or other entity of similar nature.
"PLAN" shall mean any employee pension benefit plan that (a) is or has
been maintained by the Debtor or any ERISA Affiliate of the Debtor, or to which
contributions by any such Person are or have been required to be made, (b) is
subject to the provisions of Title IV of ERISA and (c) is not a Multiemployer
Plan.
"POTENTIAL TERMINATION EVENT" means an event which but for the lapse
of time or the giving of notice, or both, would constitute a Termination Event.
"PRINCIPAL COLLECTIONS" shall mean all Collections which are not
Income Collections or Dealer Collections.
"PROGRAM SUPPORT AGREEMENT" shall have the
meaning specified in the Note Purchase Agreement.
"PROGRAM SUPPORT PROVIDER" shall have the meaning specified in the
Note Purchase Agreement.
"RECORDS" shall mean the Dealer Agreements, Contracts and all other
documents, books, records and other information (including, without limitation,
computer programs, tapes, discs, punch cards, data processing software and
related contracts, records and other media for storage of information)
maintained with respect to the Loans and the Contracts and the related Obligors.
"RECOVERIES" shall mean all amounts, if any, received or collected by
the Servicer or CAC with respect to Defaulted Contracts.
"RECENCY BASIS" shall mean the method of aging a Contract, which
determines the delinquency of a Contract based upon the number of days elapsed
since the date the last payment was received.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be amended, supplemented or
otherwise modified and is effect from time to time.
"RELATED COMMERCIAL PAPER" shall mean Commercial Paper issued by the
Company the proceeds of which were used to acquire, or refinance the acquisition
of, an interest in the Net Investment with respect to the Debtor.
"RELATED SECURITY" shall mean with respect to any Loan all of CAC's
and the Debtor's interest in:
(i) the Dealer Agreements and Contracts securing payment of such
Loan;
(ii) all security interests or liens purporting to secure payment of
such Loan, whether pursuant to such Loan, the related Dealer Agreement or
otherwise, together with all financing statements signed by the related Obligor
describing any collateral securing such Loan and all other property obtained
upon foreclosure of any security interest securing payment of such Loan or any
related Contract; and
(iii) all guarantees, insurance (including insurance insuring the
priority or perfection of any lien) or other agreements or arrangements of any
kind from time to time supporting or securing payment of such Contract whether
pursuant to such Contract or otherwise, including any of the foregoing relating
to any Contract securing payment of such Loan.
"RELEVANT UCC STATE" shall mean the States of New York and Michigan,
as applicable.
"REMITTANCE DATE" shall mean the twelfth day of each calendar month,
or, if such twelfth day is not a Business Day, the next succeeding Business Day.
"REPORTABLE EVENT" shall mean any of the events set forth in section
4043(b) of ERISA, other than those events for which notice to the PBGC is waived
under applicable PBGC regulations.
"REQUIRED RESERVE ACCOUNT BALANCE" shall mean an amount equal to the
product of (i) 1.45% and (ii) the Net Investment (after the application of funds
pursuant to Section 5.1 on the related Remittance Date).
"REQUIREMENTS OF LAW" for any Person shall mean the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether Federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"RESERVE ACCOUNT" shall mean the account established pursuant to
Section 4.7(b) hereof.
"RESERVE ADVANCE" shall have the meaning specified in Section 5.1(c).
"S&P" shall mean Standard & Poor's Ratings Group, a Division of The
XxXxxx-Xxxx Companies.
"SECURED PARTIES" shall mean the Company, the Bank Investors and their
respective successors and assigns.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" shall mean NationsBank, N.A. and any other
entity acting in the capacity of a "securities intermediary" as defined in
Section 8-102(14) of the UCC.
"SERVICER" shall mean initially CAC and thereafter any Person
appointed as Successor Servicer.
"SERVICER ADVANCE" shall have the meaning specified in Section 5.1(c).
"SERVICER EVENT OF DEFAULT" shall mean (a) the failure of the Servicer
to make any payment, transfer or deposit as required hereunder, under the Note
Purchase Agreement or the Servicing Agreement, (b) the failure of the Servicer
to observe or perform in any material respect any other representation,
warranty, covenant or agreements of the Servicer (including its Credit
Guidelines) in the Servicing Agreement as reasonably determined by the
Collateral Agent, (c) the occurrence of any Material Adverse Change, and (d) an
event of the type described in Section 6.1(ii) shall occur with respect to the
Servicer.
"SERVICING AGREEMENT" shall mean the Servicing Agreement, dated as of
July 7, 1998, between CAC as servicer, and the Debtor, as such agreement may be
amended, modified and supplemented from time to time, attached hereto as Exhibit
E.
"STANDARD & POOR'S" or "S&P" shall mean Standard & Poor's, a division
of The XxXxxx-Xxxx Companies, Inc.
"SUBSEQUENT FUNDING" shall have the meaning specified in the Note
Purchase Agreement.
"SUBSEQUENT FUNDING DATE" shall have the meaning specified in the Note
Purchase Agreement.
"SUCCESSOR SERVICER" shall have the meaning specified in Section
4.1(a).
"TERMINATION DATE" shall have the meaning specified in the Note
Purchase Agreement.
"TERMINATION EVENT" shall have the meaning specified in Section 6.1
hereof.
"TRANSACTION DOCUMENTS" shall mean this Agreement, the Contribution
Agreement, the Note Purchase Agreement, the Note, the Servicing Agreement, the
Fee Letter and the Interest Rate Cap.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York; PROVIDED, HOWEVER, that if by reason of mandatory provisions of
law, the perfection or non-perfection of a Lien in any Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other than the State
of New York, "UCC" shall mean the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or non-perfection.
"WEIGHTED AVERAGE ADVANCE RATE" shall mean the Aggregate Outstanding
Eligible Loan Balance divided by the aggregate Outstanding Balance of all
Eligible Contracts.
ARTICLE II
GRANT OF SECURITY INTEREST
SECTION 2.1 GRANT OF SECURITY INTEREST. As security for the prompt
and complete payment of the Note and the performance of all of the Debtor's
obligations under the Note, the Note Purchase Agreement and this Agreement, the
Debtor hereby grants to the Collateral Agent, on behalf of the Secured Parties,
a security interest in and continuing Lien on all of the Debtor's property,
whether now owned or hereafter acquired and wherever located, including, without
limitation, all of its right, title and interest in, to and under all accounts,
contract rights, general intangibles, chattel paper, instruments, documents,
money, cash, deposit accounts, certificates of deposit, goods, letters of
credit, securities, investment property, financial assets or security
entitlements (all of the foregoing, collectively, the "COLLATERAL"). The
foregoing pledge does not constitute an assumption by the Collateral Agent of
any obligations of the Debtor to Obligors or any other Person in connection with
the Collateral or under any agreement and instrument relating to the Collateral,
including without limitation any obligation to make future advances to or on
behalf of such Obligors.
In connection with such pledge, the Debtor agrees to record and file,
at its own expense, financing statements with respect to the Collateral now
existing and hereafter created for the pledge of chattel paper and general
intangibles (each as defined in Article 9 of the UCC as in effect in the
Relevant UCC State) meeting the requirements of applicable state law, and the
Debtor shall take any other appropriate action in such manner and in such
jurisdictions as are necessary to perfect the security interest in the
Collateral to the Collateral Agent. The Debtor agrees to deliver a file-stamped
copy of such financing statements or other evidence of such filing (which may,
for purposes of this Section 2.1, consist of telephone confirmation of such
filing) to the Collateral Agent on or prior to the Closing Date.
In connection with such pledge, the Debtor agrees to deliver to the
Collateral Agent on the Closing Date, one or more computer files or microfiche
lists containing true and complete lists of all Dealer Agreements and Loans
securing the payment of the Note and
all of the Debtor's obligations under the Note as of the Closing Date, and
all Contracts securing all such Loans, identified by account number, dealer
number, and pool number and Outstanding Balance as of the Cut-Off Date. Such
file or list shall be marked as Exhibit D to this Agreement, shall be
delivered to the Collateral Agent as confidential and proprietary, and is
hereby incorporated into and made a part of this Agreement.
The Debtor further agrees to deliver to the Collateral Agent on
each Subsequent Funding Date, one or more computer files or microfiche lists
containing true and complete lists of all Dealer Agreements and Loans
securing the payment of the Note and all of the Debtor's obligations under
the Note as of to such Subsequent Funding Date, and all Contracts securing
all such Loans, identified by account number, dealer number, and pool number
and Outstanding Balance as of two days prior to such Subsequent Funding Date.
Such file or list shall be marked as Exhibit D to this Agreement, shall be
delivered to the Collateral Agent as confidential and proprietary, and is
hereby incorporated into and made a part of this Agreement.
In connection with such pledge, each of the Debtor, CAC and Servicer
agrees, at the expense of the Debtor, to indicate clearly and unambiguously in
its computer files, with respect to the Dealer Agreements listed on Exhibit D,
that the rights to payment under such Dealer Agreements have been pledged to the
Collateral Agent pursuant to this Agreement for the benefit of the Secured
Parties.
In connection with such pledge, each of the Debtor, CAC and the
Servicer also agrees, within twenty-one days of the Closing Date, to clearly
xxxx each Dealer Agreement and Contract securing a Loan with the following
legend: "THIS AGREEMENT HAS BEEN PLEDGED TO NATIONSBANK, N.A., AS COLLATERAL
AGENT FOR THE BENEFIT OF CERTAIN SECURED PARTIES" Such legend shall be in bold,
in type face at least as large as 12 point and shall be entirely in capital
letters.
SECTION 2.2 ACCEPTANCE BY COLLATERAL AGENT.
(a) The Collateral Agent hereby acknowledges its acceptance, on
behalf of the Secured
Parties, of the pledge by the Debtor of the Loans and all other Collateral.
The Collateral Agent further acknowledges that, prior to or simultaneously
with the execution and delivery of this Agreement, the Debtor delivered to
the Collateral Agent the computer file or microfiche list represented by the
Debtor to be the computer file or microfiche list described in the third
paragraph of Section 2.1.
(b) The Collateral Agent hereby agrees not to disclose to any
Person (including any Secured Party or Noteholder) any of the account numbers or
other information contained in the computer files or microfiche lists delivered
to the Collateral Agent by the Debtor pursuant to Section 2.1, except as is
required in connection with the performance of its duties hereunder or in
enforcing the rights of the Secured Parties or to a Successor Servicer appointed
pursuant to Section 4.1(a); PROVIDED, HOWEVER, that notwithstanding anything to
the contrary in this Agreement, the Collateral Agent may reply to a request from
any Person for a list of Loans, Dealer Agreements, Contracts or other
information referred to in any financing statement. The Collateral Agent agrees
to take such measures as shall be necessary or reasonably requested by the
Debtor to protect and maintain the security and confidentiality of such
information. The Collateral Agent shall provide the Debtor with written notice
five Business Days prior to any disclosure pursuant to this subsection 2.2(b).
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE DEBTOR. The
Debtor represents and warrants to and covenants with the Collateral Agent and
the Secured Parties as of the Closing Date and each Subsequent Funding Date
that:
(a) ORGANIZATION AND GOOD STANDING. The Debtor is a corporation
duly organized and validly existing in good standing under the laws of the State
of Nevada, and has full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, to execute, deliver and perform its
obligations under this Agreement.
(b) DUE QUALIFICATION. The Debtor is duly qualified to do
business and is in good standing (or is exempt from such requirement) in any
state where such qualification is required in order to conduct business, and has
obtained all necessary licenses and approvals in each jurisdiction in which the
failure to obtain such licenses and approvals would have a material adverse
effect on the conduct of its business or its ability to perform its obligations
under this Agreement.
(c) DUE AUTHORIZATION. The execution and delivery of this
Agreement and the consummation of the transactions provided for in this
Agreement have been duly authorized by the Debtor by all necessary corporate
action on the part of the Debtor.
(d) NO VIOLATION. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with, violate or result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any Requirement of Law
applicable to the Debtor or any indenture, contract, agreement, mortgage, deed
of trust or other instrument to which the Debtor is a party or by which it or
any of its properties are bound.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Debtor, threatened against the Debtor,
before any court, regulatory body, administrative agency, arbitrator or other
tribunal or governmental instrumentality (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the issuance of the Note or the consummation
of any of the transactions contemplated by this Agreement, the Note Purchase
Agreement or the Note, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Debtor, would materially and adversely affect the
performance by the Debtor of its obligations under this Agreement, the Note
Purchase Agreement or the Note, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of this
Agreement, the Note Purchase Agreement or the Note or (v) seeking to affect
adversely the Federal income tax attributes of the Debtor.
(f) ELIGIBILITY OF LOANS. (i) Each Loan classified as an
Eligible Loan (or included in any aggregation of balances of Eligible Loans) by
the Debtor or the Servicer in any document or report delivered hereunder was an
Eligible Loan as of the date so delivered, and (ii) each related Contract
classified as an Eligible Contract (or included in any aggregation of balances
of Eligible Contracts) by the Debtor or the Servicer in any document or report
delivered hereunder was an Eligible Contract as of the date so delivered.
(g) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
required to be obtained on or prior to the date as of which this representation
is being made in connection with the execution and delivery of this Agreement,
the performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof have been obtained.
(h) AMOUNT OF LOANS AND CONTRACTS; COMPUTER FILE. As of the
Cut-Off Date, as reported in the loan servicing system, (A) the Aggregate
Outstanding
Eligible Loan Balance was $69,712,673.71, and (B) the aggregate Outstanding
Balance of the Contracts was $253,886,307.59. The computer file or
microfiche list delivered pursuant to Section 2.1 hereof is complete and
accurately reflects the information regarding the Loans, Dealer Agreements
and Contracts in all material respects as of the applicable time referred to
in Section 2.1.
(i) INVESTMENT COMPANY. The Debtor is not an "investment
company" within the meaning of the Investment Company Act or is exempt from the
provisions of such act.
(j) INSOLVENCY. No Dissolution Event with respect to CAC, the
Servicer or the Debtor has occurred, and the pledge of the Loans and other
Collateral by the Debtor to the Company has not been made in contemplation of
the occurrence of any such event.
The representations and warranties set forth in this Section 3.1 shall
survive the Debtor's pledge of the Collateral to the Collateral Agent and the
termination of the rights and obligations of the Servicer. Upon discovery by
the Debtor, CAC, the Servicer or the Collateral Agent of a breach of any of the
representations and warranties set forth in this Section 3.1, the party
discovering such breach shall give prompt written notice to the other parties of
such breach.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE DEBTOR
RELATING TO THIS AGREEMENT, THE LOANS AND THE RELATED CONTRACTS.
(a) ELIGIBLE LOANS; ELIGIBLE CONTRACTS. The Debtor hereby
represents and warrants to the Collateral Agent and the Secured Parties that (i)
each Loan added to Exhibit D on the Closing Date was an Eligible Loan as of the
Closing Date; each Loan added to Exhibit D on any Subsequent Funding Date was an
Eligible Loan as of such Subsequent Funding Date, and (ii) each Contract added
to Exhibit D on the Closing Date was an Eligible Contract as of the Closing
Date; each Contract added to Exhibit D on any Subsequent Funding Date was an
Eligible Contract as of such Subsequent Funding Date.
(b) BINDING OBLIGATION; VALID TRANSFER AND ASSIGNMENT. The
Debtor hereby represents and
warrants to the Collateral Agent and the Secured Parties as of the Closing
Date and each Subsequent Funding Date, that:
(i) This Agreement constitutes a legal, valid and binding
obligation of the Debtor, enforceable against the Debtor, in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity).
(ii) This Agreement constitutes a grant of a security
interest (as defined in the UCC) in the Collateral and the proceeds thereof
(to the extent set forth in Section 9-306 of the UCC) upon execution and
delivery of this Agreement, it being understood that with respect to the
security interests in the Contracts, this Agreement constitutes an
assignment thereof. Upon the filing of the applicable financing
statements, the Collateral Agent shall have a first priority perfected
security interest in such property and the proceeds thereof (to the extent
set forth in Section 9-306 of the UCC). Neither the Debtor nor any Person
claiming through or under the Debtor shall have any claim to or interest in
the Collection Account, the Reserve Account or any other account or
accounts maintained for the benefit of Secured Parties, except for the
interest of the Debtor in such property as a debtor for purposes of the
UCC.
(c) ELIGIBILITY OF LOANS. The Debtor hereby represents and
warrants to the Collateral Agent and the Secured Parties that:
(i) each Loan classified as an "Eligible Loan" (or included
in any aggregation of balances of "Eligible Loans") by the Debtor or the
Servicer in any document or report delivered
hereunder satisfied the requirements contained in the definition of
Eligible Loan on the date so delivered; each Contract classified as an
"Eligible Contract" (or included in any aggregation of balances of
"Eligible Contracts") by the Debtor or the Servicer in any document or
report delivered hereunder satisfied the requirements contained in the
definition of Eligible Contract on the date so delivered;
(ii) all information with respect to the Dealer Agreements
and the Loans and the Contracts and the other Collateral provided to the
Collateral Agent by the Debtor or the Servicer was true and correct in all
material respects as of the date such information was provided to the
Collateral Agent;
(iii) each Loan and all other Collateral (other than
Records) has been pledged to the Collateral Agent free and clear of any
Lien of any Person, other than the interests of a Dealer under the Dealer
Agreements, and in compliance, in all material respects, with all
Requirements of Law applicable to the Debtor;
(iv) with respect to each Dealer Agreement and each Loan
and Contract and all other Collateral, all consents, licenses, approvals or
authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Debtor, in
connection with the pledge of such Contract or Collateral to the Collateral
Agent have been duly obtained, effected or given and are in full force and
effect;
(v) Exhibit D to this Agreement is and will be an accurate
and complete listing of all Dealer Agreements and Loans in all material
respects and all Contracts securing such Loans on the date each such Dealer
Agreement, Contract and Loan was added to Exhibit D, and the information
contained therein with respect to the identity of such Dealer Agreements
and Loans and all Contracts securing such Loans and the Outstanding
Balances thereunder and under the related Contracts is and will be true and
correct in all material respects as of each such date; and
(vi) no selection procedure believed by the Debtor to be
adverse to the interests of the Secured Parties has been or will be used in
selecting the Dealer Agreements or the Loans (it being expressly understood
that the Loans consist of closed pools of Loans under the related Dealer
Agreements).
(d) NOTICE OF BREACH. The representations and warranties set
forth in this Section 3.2 shall survive the pledge of the Collateral to the
Collateral Agent and the termination of the rights and obligations of the
Servicer. Upon discovery by the Debtor, CAC, the Servicer or the Collateral
Agent of a breach of any of the representations and warranties set forth in this
Section 3.2, the party discovering such breach shall give prompt written notice
to the other parties of such breach.
(e) PAYMENT IN RESPECT OF INELIGIBLE LOANS AND INELIGIBLE
CONTRACTS.
(i) In the event of a breach of any of the representations
or warranties in Section 3.2(c) with respect to a Loan or Contract, as
applicable, and such Loan or Contract (x) is an Ineligible Loan or
Ineligible Contract, as applicable, or (y) as a result of such breach or
event, such Loan or Contract becomes an Ineligible Loan or Ineligible
Contract, as applicable, or the Debtor's or Collateral Agent's rights in,
to or under such Loan or Contract or its proceeds are materially impaired
or the proceeds of such Loan or Contract are not available for any reason
to the Collateral Agent free and clear of any Lien, then the Debtor shall
deposit into the Collection Account, on the next Business Day,(A) with
respect to each such Loan, an amount equal to the sum of (1) the product of
(x) the Outstanding Balance of such Loan and (y) the Blended Advance Rate
relating to such Loan PLUS (2) the Accrued Interest Component
relating to such Loan, and (B) with respect to each such Contract, an
amount equal to (1) the product of (x) the Outstanding Balance of each such
Contract and (y) the Weighted Average Advance Rate relating to such
Contract DIVIDED BY (2) .80. Such amounts shall be allocated between
Income Collections and Principal Collections and distributed on the next
succeeding Remittance Date in accordance with Sections 5.1(a) and (b).
For purposes of this paragraph, Outstanding Balance shall be calculated as
of the last day of the immediately preceding Collection Period.
(ii) Upon the request of the Debtor, and after or
simultaneously with the deposit of the amounts specificied in Section
3.2(e)(i), the Collateral Agent shall release its security interest, on
behalf of the Secured Parties, on the Loans and Contracts with respect to
which the Debtor has made the specified deposits pursuant to Section
3.2(e)(i) and all other Collateral related exclusively to such Loans or
Contracts; PROVIDED, HOWEVER, that any Income Collections relating to any
such Loans accrued through the date of the release of the security interest
in such Loans shall continue to be pledged to the Collateral Agent and the
Secured Parties. The Collateral Agent shall execute such documents and
instruments of termination prepared by, and at the expense of, the Debtor
and take, at the Debtor's expense, such other actions as shall reasonably
be requested by the Debtor to effect the release of the security interests
in the Loans and Contracts pursuant to this Section 3.2(e). The obligation
of the Debtor set forth in this subsection shall constitute the sole remedy
respecting any breach of the representations and warranties set forth in
the above-referenced subsections with regard to the Loans and Contracts
with respect to which the Debtor has made the specified deposits pursuant
to Section 3.2(e)(i).
(iii) NO IMPAIRMENT. For the purposes of subsections
3.2(e) above, if CAC is the Servicer and the Servicer is otherwise
permitted hereunder to hold Collections beyond the applicable period under
Section 9-306(3) of the UCC, the
proceeds of a Loan shall not be deemed to be impaired hereunder solely
because such proceeds are held by the Servicer for more than the applicable
period under Section 9-306(3) of the UCC.
SECTION 3.3 COVENANTS OF THE DEBTOR.
The Debtor hereby covenants to the Collateral Agent and the Secured
Parties, until all amounts due under this Agreement, the Note Purchase Agreement
and the Note have been paid in full, that:
(a) CORPORATE EXISTENCE; CONDUCT OF BUSINESS. The Debtor will
preserve and maintain its existence as a corporation duly organized and existing
under the laws of the State of Nevada. The Debtor will carry on and conduct its
business in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated, validly
existing and in good standing in the jurisdiction of its incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
(b) COMPLIANCE WITH REQUIREMENTS OF LAW. The Debtor shall duly
satisfy in all material respects its obligations under or in connection with
each Loan and Contract, will maintain in effect all material qualifications
required under Requirements of Law, and will comply in all material respects
with all other Requirements of Law in connection with each Loan and Contract the
failure to comply with which would have a material adverse effect on the
interests of the Secured Parties in the Collateral.
(c) FURNISHING OF INFORMATION AND INSPECTION OF RECORDS. The
Debtor will furnish to the Collateral Agent, from time to time, such information
with respect to the Loans and Contracts as the Collateral Agent may reasonably
request, including, without limitation, a computer file, microfiche list or
other list identifying each Loan and Contract by pool number, account number and
dealer number and by the Outstanding Balance and identifying the Obligor on such
Loan or
Contract. The Debtor will, at any time and from time to time during regular
business hours, upon reasonable notice, permit the Collateral Agent, or its
agents or representatives, to examine and make copies of and abstracts from
all Records, to visit the offices and properties of the Debtor for the
purpose of examining such Records, and to discuss matters relating to the
Loans or Contracts or the Debtor's performance hereunder and under the other
Transaction Documents to which such Person is a party with any of the
officers, directors, employees or independent public accountants of the
Debtor having knowledge of such matters; PROVIDED, HOWEVER, that the
Collateral Agent acknowledges that in exercising the rights and privileges
conferred in this Section 3.3(c) it or its agents and representatives may,
from time to time, obtain knowledge of information, practices, books,
correspondence and records of a confidential nature and in which the Debtor
has a proprietary interest. The Collateral Agent agrees that all such
information, practices, books, correspondence and records are to be regarded
as confidential information and agrees that it shall retain in strict
confidence and shall use its reasonable efforts to ensure that its agents and
representatives retain in strict confidence, and will not disclose without
the prior written consent of the Debtor, any such information, practices,
books, correspondence and records furnished to them except that the
Collateral Agent may disclose such information (i) to its officers,
directors, employees, agents, counsel, accountants, auditors, affiliates,
advisors or representatives (provided that such Persons are informed of the
confidential nature of such information), (ii) to the extent such information
has become available to the public other than as a result of a disclosure by
or through the Collateral Agent or its officers, directors, employees,
agents, counsel, accountants, auditors, affiliates, advisors or
representatives, (iii) to the extent such information was available to the
Collateral Agent on a nonconfidential basis prior to its disclosure to the
Collateral Agent hereunder or (iv) to the extent the Collateral Agent should
be (A) required in connection with any legal or regulatory proceeding or (B)
requested by any bank regulatory authority to disclose such information, (v)
to any Program Support Provider, (vi) to any Bank Investor or prospective
Bank Investor, and (vii) to any prospective assignee of the Note; PROVIDED,
that the Collateral Agent shall notify such assignee of the
confidentiality provisions of this Section 3.3(c).
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Debtor will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing the Loans and
Contracts in the event of the destruction of the originals thereof), and keep
and maintain, or obtain, as and when required, all documents, books, records and
other information reasonably necessary or advisable for the collection of all
amounts due under the Loans and Contracts (including, without limitation,
records adequate to permit adjustments to amounts due under each existing Loan
and Contract). The Debtor will give the Collateral Agent notice of any material
change in the administrative and operating procedures of the Debtor referred to
in the previous sentence.
(e) NOTE PURCHASE AGREEMENT. The Debtor will comply with the
covenants set forth in Section 4.2 of the Note Purchase Agreement.
(f) NOTICE OF LIENS. The Debtor will advise the Collateral
Agent promptly, in reasonable detail, (i) of any Lien asserted by a Person that
is not an Obligor against any of the Loans or Contracts or other Collateral,
(ii) after becoming aware of any Lien on any Loan or other Collateral other than
the pledge hereunder or under the Contribution Agreement, (iii) of any breach by
the Debtor or the Servicer of any of its representations, warranties and
covenants contained herein or in the Note Purchase Agreement and (iv) of the
occurrence of any other event which would have a material adverse effect on the
Collateral Agent's interest in the Loans or Contracts or the collectability of
amounts due thereunder. The Debtor shall notify the Collateral Agent promptly
after becoming aware of any Lien on any Loan or Contract or other Collateral
other than the conveyances under the Contribution Agreement.
(g) PROTECTION OF INTEREST IN COLLATERAL. The Debtor shall
execute and file such continuation statements and any other documents reasonably
requested by the Collateral Agent, the Agent, the Company or any Bank Investor
or which may be required by law to fully preserve and protect the interest of
the Collateral Agent and the Secured Parties in and to the Loans and the
Contracts and the other Collateral. The Debtor shall further deliver to the
Collateral Agent annually, on May 31st of each year, commencing May 31st, 1999,
an opinion of counsel acceptable to the Collateral Agent stating whether that
(i) no filings or other actions need to be taken from the date of the opinion
until April 30th of the next year in order to continue the perfected status of
the Collateral Agent's interest in the Collateral or (ii) setting forth the
actions which need to be taken (and when) in order to continue the perfected
status of the Collateral Agent's interest in the Collateral beyond April 30th of
the next year.
(h) NO SALES, LIENS, ETC. Except as otherwise permitted by the
Note Purchase Agreement or any other Transaction Document, the Debtor will not
sell, assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Lien upon (or the filing of any financing
statement with respect to), any of the Collateral. In addition, the Debtor will
not, and will not permit CAC, the Servicer or any Obligor to, sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on (or the filing of any financing statement with
respect to) any inventory or goods, the sale of which may give rise to an amount
payable with respect to a Loan or Contract, other than Liens on inventory which
specifically exclude from the property subject to any such Lien Contracts and
other property of the type included in the Collateral generated by sales of such
inventory and the proceeds thereof. The Debtor will notify the Collateral Agent
of the existence of any such Lien immediately upon discovery thereof.
(i) NO EXTENSION OR AMENDMENT. Except as otherwise permitted by
the Note Purchase Agreement or any other Transaction Document, the Debtor will
not extend, amend or otherwise modify the terms of any Loan or Contract, except
to the extent that such extension, amendment or modification is done in
accordance with the Collection Guidelines, is determined by the Servicer to be
appropriate to maximize Collections and would not have a Material Adverse Effect
on the Collateral Agent or either of the Secured Parties.
(j) NO MERGER OR CONSOLIDATION. The Debtor shall not (i)
consolidate or merge with or into any other Person, or (ii) except as otherwise
permitted by the Note Purchase Agreement or any other Transaction Document,
sell, lease, transfer or otherwise convey all or substantially all of its assets
to any other Person.
(k) CHANGE OF NAME, ETC. The Debtor will not, without providing
30 days' notice to the Collateral Agent and without filing such amendments to
any previously filed financing statements as the Collateral Agent may reasonably
require, (A) change the location of its principal executive office or the
location of the offices where the records relating to the Loans or the Contracts
are kept, and (B) change its name, identity or corporate structure in any manner
which would, could or might make any financing statement or continuation
statement filed by the Debtor in accordance with this Agreement seriously
misleading within the meaning of Section 9-402(8) of the UCC.
(l) AMENDMENT OF NOTE PURCHASE AGREEMENT. The Debtor will not
amend, modify or supplement the Note Purchase Agreement or any other Transaction
Document to which it is a party without the prior written consent of the
Collateral Agent to the substance and form of any such amendment, modification
or supplement and will not take any other action under this Agreement, the Note
Purchase Agreement or any other Transaction Document to which it is a party that
would have a material adverse effect on the Collateral Agent, the Company or any
Bank Investor or which is inconsistent with the terms of this Agreement.
(m) CONTRIBUTION AGREEMENT. The Debtor, in its capacity under
the Contribution Agreement, will at all times enforce the covenants and
agreements of CAC in the Contribution Agreement (including the rights and
remedies against the Dealers assigned to it thereunder). The Debtor will not
enter into any amendment, modification or supplement to the Contribution
Agreement without the prior written consent of the Collateral Agent.
(n) ERISA MATTERS. The Debtor will not (i) engage or permit any
of its respective ERISA Affiliates to engage in any prohibited transaction (as
defined in Section 4975 of the Internal Revenue Code and Section 406 of ERISA)
for which an exemption is not available or has not previously been obtained from
the U.S. Department of Labor; (ii) permit to exist any accumulated funding
deficiency (as defined in Section 302(a) of ERISA and Section 412(a) of the
Internal Revenue Code) or funding deficiency with respect to any Benefit Plan
other than a Multiemployer Plan; (iii) fail to make any payments to any
Multiemployer Plan that the Debtor or any ERISA Affiliate of the Debtor is
required to make under the agreement relating to such Multiemployer Plan or any
law pertaining thereto; (iv) terminate any Benefit Plan so as to result in any
liability; (v) permit to exist any occurrence of any Reportable Event which
represents a material risk of a liability to the Debtor under ERISA or the
Internal Revenue Code, or (vi) permit to exist any occurrence of any Reportable
Event which represents a material risk of liability to any ERISA Affiliate of
the Debtor under ERISA or the Internal Revenue Code, if, in the case of such
ERISA Affiliate, such prohibited transactions, accumulated funding deficiencies,
payments, terminations and Reportable Events occurring within any fiscal year of
such ERISA Affiliate, in the aggregate, involve a payment of money or an
incurrence of liability by the Debtor or any ERISA Affiliate of the Debtor in an
amount in excess of $500,000.
(o) NO ASSIGNMENT. The Debtor shall not assign any of its
rights or delegate any of its duties hereunder or under the Note Purchase
Agreement or under any of the other Transaction Documents to which it is a party
without the prior written consent of the Collateral Agent.
(p) NOTICE OF DELEGATION OF SERVICER'S DUTIES. The Debtor
promptly shall notify the Collateral Agent of any delegation by the Servicer of
any of the Servicer's duties under this Agreement or the Note Purchase which is
not in the ordinary course of business
of the Servicer.
(q) INTEREST RATE CAP. Prior to the Closing Date, the Debtor
shall obtain and, unless otherwise consented to by the Agent, have at all times
in effect, an interest rate cap agreement (the "INTEREST RATE CAP") with a
financial institution (the "CAP COUNTERPARTY"), which shall at all times during
the term of the Interest Rate Cap be acceptable to the Agent and shall have at
all times a rating of at xxxxx "X0" from Xxxxx'x and "A-" from Standard & Poor's
and which has irrevocably and unconditionally agreed that, prior to the date
which is one year and one day after the payment in full of all Commercial Paper
issued by the Company, it will not acquiesce, petition or otherwise invoke or
cause the Debtor to invoke the process of any Governmental Authority for the
purpose of commencing or sustaining a case against the Debtor 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 Debtor or any substantial part of its property or ordering the winding-up
or liquidation of the affairs of the Debtor. The Interest Rate Cap shall be in
form and substance acceptable to the Agent and shall provide (i) that all
amounts payable thereunder shall be paid by the Cap Counterparty directly to the
Collection Account, (ii) that the Debtor's rights thereunder have been
irrevocably assigned to, and a security interest therein has been granted to,
the Collateral Agent for the benefit of the Secured Parties, (iii) for a strike
rate of not more than 6.50% per annum, and (iv) that it covers a notional amount
corresponding to an amortization schedule provided by the Collateral Agent and
attached hereto as Exhibit F.
SECTION 3.4. COVENANT OF CAC REGARDING THE INSURANCE POLICY. CAC and
the Debtor acknowledge that the Agent, for the benefit of the Secured Parties,
is relying upon CAC's ability to continue to service the Loans in accordance
herewith and with the Servicing Agreement. CAC and the Debtor further
acknowledge that the Agent is relying upon CAC's ability to purchase Loans and
Contracts from the Debtor under certain circumstances in accordance with the
Contribution Agreement. Accordingly, CAC and the Debtor have assigned the
Insurance Policy to the Agent, for the benefit of the
Secured Parties, and the Agent has also been named as beneficiary and loss
payee under the Insurance Policy. In connection therewith, neither CAC nor
the Debtor shall revoke or attempt to revoke the assignment of the Insurance
Policy to the Agent, nor shall either one of them remove or attempt to remove
the Agent as beneficiary and loss payee under the Insurance Policy, unless
the Agent shall consent in writing to such revocation or removal.
Notwithstanding the foregoing, nothing in this Section 3.4 shall be construed
as giving CAC or the Debtor the right to revoke the assignment of the
Insurance Policy or to remove the Agent as beneficiary or loss payee under
the Insurance Policy. CAC and the Debtor further agree that, for so long as
any amounts remain unpaid under this Agreement, the Note or the Note Purchase
Agreement, the Insurance Policy or an insurance policy substantially similar
to the Insurance Policy will be kept in full force and effect, and the Agent
shall be granted the same rights in any such agreement as it has been granted
with respect to the Insurance Policy.
SECTION 3.5. COVENANT OF THE COMPANY REGARDING THE INSURANCE POLICY.
Any proceeds or payments that the Agent receives under the Insurance Policy
shall be allocated as Principal Collections and applied on the next succeeding
Remittance Date in accordance with Section 5.1(b). The Agent shall remit any
such proceeds or payments in excess of $15,000,000 to CAC.
ARTICLE IV
SERVICING AND ADMINISTRATION; ACCOUNTS
SECTION 4.1 SERVICING. Pursuant to the Servicing Agreement, the
Debtor has contracted with CAC to act as servicer to manage, collect and
administer each of the Loans. Until such time as CAC is terminated as servicer
under the Servicing Agreement, references to the Servicer herein shall refer to
CAC as servicer under the terms of the Servicing Agreement. In the event of a
Servicer Event of Default, the Collateral Agent shall have the right to cause
the Debtor to terminate CAC as servicer thereunder. Upon termination of CAC as
servicer of the Loans pursuant to Section 2.1 of the Servicing Agreement, the
Collateral Agent shall have the right to appoint a successor servicer (the
"SUCCESSOR SERVICER") and enter into a servicing agreement with such Successor
Servicer at such time and exercise all of its rights under Section 4.3 hereof.
In the event that the Successor Servicer is not appointed within 30 days of the
Servicer Event of Default which led to the termination of the preceding
Servicer, NationsBank, N.A. shall thereupon be appointed to act as Successor
Servicer and NationsBank, N.A. agrees to so act. Such servicing agreement shall
specify the duties and obligations of such Successor Servicer, and all
references herein to the Servicer shall be deemed to refer to such Successor
Servicer. Notwithstanding the above, NationsBank, N.A. may appoint any
established financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of automobile
installment sales contracts as the Successor Servicer hereunder.
(a) The Debtor shall cause the Servicer under the Servicing
Agreement to deposit all Collections into the Collection Account no later than
two Business Days after the Date of Processing.
(b) On or before ninety (90) days after the end of each fiscal
year of the Servicer, beginning with the fiscal year ending December 31, 1998,
the Servicer shall cause a firm of independent public accountants (who may also
render other services to the Servicer or the Debtor) to furnish a report to the
Collateral Agent and the Secured Parties to the effect
that they have (i) compared the information contained in the Monthly
Servicer's Certificates delivered during such fiscal year, based on a sample
size provided by the Collateral Agent, with the information contained in the
Loans, the Contracts and the Servicer's records and computer systems for such
period, and that, on the basis of such agreed upon procedures, such firm is
of the opinion that the information contained in the Monthly Servicer's
Certificates reconciles with the information contained in the Loans and the
Contracts and the Servicer's records and computer system and that the
servicing of the Loans and the Contracts has been conducted in compliance
with this Agreement, (ii) verified the Aggregate Outstanding Eligible Loan
Balance as of the end of each Collection Period during such fiscal year, and
(iii) verified that a sample of Loans and Contracts treated by the Servicer
as Eligible Loans and as Eligible Contracts, as applicable, in fact satisfied
the requirements of the definition thereof contained herein and (iv) conducted
a "negative confirmation" of a sample of the Loans and Contracts and verified
that the Servicer's records and computer system used in servicing the Loans
and Contracts contained correct information with regard to due dates and
outstanding balances, except, in each case for (a) such exceptions as such
firm shall believe to be immaterial (which exceptions need not be enumerated)
and (b) such other exceptions as shall be set forth in such statement.
SECTION 4.2 DUTIES OF THE SERVICER.
(a) The Servicer shall take or cause to be taken all such action
as may be necessary or advisable to collect all amounts due under the Loans and
Contracts from time to time, all in accordance with applicable laws, rules and
regulations, with reasonable care and diligence, and in accordance with the
Collection Guidelines, it being understood that there shall be no recourse to
the Servicer with regard to the Loans and Contracts except as otherwise provided
herein and in the other Transaction Documents. Each of the Debtor and the
Secured Parties hereby appoints as its agent the Servicer, from time to time
designated pursuant to Section 4.1, to enforce its respective rights and
interests in and under the Collateral. So long as no Termination Event shall
have occurred, the Servicer may, unless otherwise required by law, in accordance
with the Collection Guidelines, extend the maturity of Loans and Contracts, as
the Servicer may determine to be appropriate to maximize Collections thereof.
The Servicer shall hold in trust for the Secured Parties all records which
evidence or relate to all or any part of the Collateral. In the event that a
Successor Servicer is appointed, the outgoing Servicer shall deliver to the
Successor Servicer and the Successor Servicer shall hold in trust for the Debtor
and the Secured Parties all records which evidence or relate to all or any part
of the Collateral.
(b) If CAC or any affiliate thereof is not the Servicer, the
Collateral Agent, with the consent of the Agent, may revise the percentage used
to calculate the Monthly Servicing Fee. The Servicer, if other than CAC, shall
as soon as practicable upon demand, deliver to the Debtor all records in its
possession which evidence or relate to indebtedness of an Obligor which is not a
Loan or a Contract.
SECTION 4.3 RIGHTS AFTER DESIGNATION OF SUCCESSOR SERVICER. At any
time following the designation of a Successor Servicer pursuant to Section 4.1:
(i) The Collateral Agent may intercept payments made by or
on behalf of Obligors and direct that payment of all amounts payable under
any Loan or Contract be made directly to the Collateral Agent or its
designee; PROVIDED, that the Collateral Agent shall pay to any Dealer, to
the extent to which such Dealer is entitled, all amounts due to such Dealer
under the related Dealer Agreement.
(ii) The Debtor shall, at the Collateral Agent's request
and at the Debtor's expense, give notice of the Collateral Agent's interest
in the Loans and Contracts to each Obligor and direct that payments be made
directly to the Collateral Agent or its designee.
(iii) The Debtor shall, at the
Collateral Agent's request, (A) assemble all of the records relating to the
Collateral, including all Records with respect to the Loans and Contracts,
and shall make the same available to the Collateral Agent at a place
selected by the Collateral Agent or its designee, and (B) segregate all
cash, checks and other instruments received by it from time to time
constituting collections of Collateral in a manner acceptable to the
Collateral Agent and shall, promptly upon receipt, remit all such cash,
checks and instruments, duly endorsed or with duly executed instruments
of transfer, to the Collateral Agent or its designee.
(iv) The Debtor hereby authorizes the Collateral Agent to
take any and all steps in the Debtor's name and on behalf of the Debtor
necessary or desirable, in the determination of the Collateral Agent, to
collect all amounts due under any and all of the Collateral with respect
thereto, including, without limitation, endorsing the Debtor's name on
checks and other instruments representing Collections and enforcing the
Loans and Contracts.
SECTION 4.4 RESPONSIBILITIES OF THE DEBTOR. Anything herein to the
contrary notwithstanding, the Debtor shall (i) perform all of its obligations
under the Loans and Contracts to the same extent as if a security interest in
such Loans and Contracts had not been granted hereunder and the exercise by the
Collateral Agent of its rights hereunder shall not relieve the Debtor from such
obligations and (ii) pay when due any taxes, including without limitation, any
sales taxes payable in connection with the Loans or Contracts and their creation
and satisfaction. Neither the Collateral Agent nor any Secured Party shall have
any obligation or liability with respect to any Loan, nor shall any of them be
obligated to perform any of the obligations of the Debtor thereunder.
SECTION 4.5 MONTHLY SERVICER'S CERTIFICATE. On each Determination
Date, the Servicer shall deliver to the Agent, and the Collateral Agent a
certificate in
substantially the form of Exhibit G attached hereto (the "MONTHLY SERVICER'S
CERTIFICATE") for the related Collection Period. The Agent shall provide to
the Debtor, by the day prior to the related Determination Date in the
calendar month following the Collection Period to which such Monthly
Servicer's Certificate relates, information relating to the amount of each
obligation of the Company which comprises Carrying Costs for such Collection
Period. The Monthly Servicer's Certificate shall specify whether a
Termination Event is deemed to have occurred with respect to the Collection
Period preceding such Determination Date. Upon receipt of the Monthly
Servicer's Certificate, the Collateral Agent shall rely (and shall be fully
protected in so relying) on the information contained therein for the
purposes of making distributions and allocations as provided for herein.
SECTION 4.6 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF CAC AS
SERVICER. CAC, in its capacity as Servicer, represents and warrants to the
Collateral Agent as of the Closing Date, and each Subsequent Funding Date, that
the only material servicing computer systems and related software utilized by
the Servicer to service the Loans and Contracts are provided by Ontario Systems
Corporation under an agreement (and related non-exclusive license) and related
letter agreements dated November 15, 1989. Should the Servicer or any of its
Affiliates develop or implement computer software for servicing that is owned by
or exclusively licensed to the Servicer or an Affiliate and utilize such
software in the servicing of the Loans and Contracts, the Collateral Agent shall
be entitled to compel a license or sublicense for the benefit of the Collateral
Agent or its designee of any such rights to the extent the Collateral Agent
deems reasonably necessary and appropriate to assure that it or a duly appointed
Successor Servicer would be able to continue to service the Loans and Contracts
should that be required in accordance with the Servicing Agreement.
SECTION 4.7 ESTABLISHMENT OF ACCOUNTS. There shall be
established on the Closing Date and maintained, for the benefit of the Secured
Parties in the name of the Collateral Agent, a segregated securities account
(the "COLLECTION ACCOUNT"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Secured Parties.
Subject to
the terms hereof, the Collateral Agent shall possess all right, title and
interest in and to all funds deposited from time to time in the Collection
Account. The Collateral Agent will maintain the Collection Account at an
Eligible Institution. If the Eligible Institution holding the Collection
Account shall cease to be an Eligible Institution, the Collateral Agent shall
have the right to direct the transfer of the Collection Account to an
Eligible Institution. On each Remittance Date, all interest and earnings
(net of losses and investment expenses) on funds on deposit in the Collection
Account shall be included in Available Collections and be distributed
pursuant to Section 5.1.
(a) There shall be established on the Closing Date and
maintained, for the benefit of the Secured Parties in the name of the Collateral
Agent, a segregated securities account (the "RESERVE ACCOUNT"), bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Secured Parties. Subject to the terms hereof, the Collateral
Agent shall possess all right, title and interest in and to all funds deposited
from time to time in the Reserve Account. The Collateral Agent shall maintain
the Reserve Account at an Eligible Institution. If the Eligible Institution
holding the Reserve Account shall cease to be an Eligible Institution, the
Collateral Agent shall have the right to direct the transfer of the Reserve
Account to an Eligible Institution. Notwithstanding the foregoing, the
Collateral Agent shall not withdraw any funds from, or otherwise exercise
control over, the Reserve Account except as provided in this Agreement. All
amounts on deposit in the Reserve Account shall be held by the Collateral Agent
for the benefit of the Secured Parties.
(b) (1) Funds on deposit in the Collection Account and the
Reserve Account shall be invested in Eligible Investments by or at the written
direction of the Debtor, provided that if a Termination Event shall have
occurred, such investments shall be made as directed by the Collateral Agent.
Any such written directions shall specify the particular investment to be made
and shall certify that such investment is an
Eligible Investment and is permitted to be made under this Agreement.
(2) The Collateral Agent agrees that it shall not accept for credit
to the Collection Account or the Reserve Account any investment as to which it
has knowledge of any adverse claim thereto. NationsBank, N.A. hereby agrees
(and any other Securities Intermediary holding the Reserve Account shall so
agree) to comply with all Entitlement Orders (as defined in Section 8-102 of the
1994 Official Text of the Uniform Commercial Code) received by it with respect
to the Collection Account or the Reserve Account from the Collateral Agent.
(3) Funds on deposit in the Reserve Account shall be so invested in
Eligible Investments that mature such that such funds or the proceeds thereof
will be available for withdrawal pursuant to Section 5.1(a), 5.1(b) and 5.1(c)
on the maturity date of Related Commercial Paper; in any event the maturity of
any Eligible Investment shall not exceed 30 days. Funds on deposit in the
Collection Account shall be invested in Eligible Investments that will mature so
that such funds will be available prior to the next Remittance Date, except that
in the case of funds representing Collections with respect to a succeeding
Collection Period, such Eligible Investments may mature so that such funds will
be available no later than the Business Day prior to the Remittance Date for
such Collection Period. No Eligible Investment may be liquidated or disposed of
prior to its maturity. All proceeds of any Eligible Investment shall be
deposited in the Collection Account or the Reserve Account, as applicable.
Investments may be made in either account on any date (provided such investments
mature in accordance herewith), only after giving effect to deposits to and
withdrawals from such account on such date. Realized losses, if any, on amounts
invested in Eligible Investments shall be charged against investment earnings on
amounts on deposit in the Collection Account or the Reserve Account, as
applicable.
(4) The Debtor shall provide the Collateral Agent on the date hereof
and from time to time an incumbency certificate or the substantial equivalent
with respect to each officer of the Debtor that is authorized to provide
instructions relating to investments in Eligible Investments.
(5) Eligible Investments shall be maintained by the Collateral
Agent in such manner as may be necessary to maintain the first priority
perfected security interest in favor of the Collateral Agent on behalf of the
Secured Parties. NationsBank, N.A. agrees (and any other Securities
Intermediary holding the Reserve Account shall so agree) that it shall not agree
to comply with Entitlement Orders (as defined in Section 8-102 of the 1994
version of the Official Text of Article 8 of the Uniform Commercial Code) with
respect to the Collection Account or the Reserve Account given to it by any
Person other than the Collateral Agent.
ARTICLE V
ALLOCATION AND APPLICATION
OF COLLECTIONS
SECTION 5.1 COLLECTIONS. On each Remittance Date, the Collateral
Agent shall determine by reference to the Monthly Servicer's Certificate, the
portion of Available Collections which are Income Collections with respect to
such Remittance Date and shall withdraw such amount of Income Collections from
the Collection Account and allocate and pay such amounts in the following order
of priority:
(i) an amount equal to unpaid Servicer Advances and Reserve
Advances for the related Collection Period, if any, shall be paid to the
Servicer or deposited into the Reserve Account, as applicable, to repay
such Servicer Advances or reinstate such Reserve Advances, respectively;
(ii) to the Servicer, an amount equal to the Monthly
Servicing Fee for the related Collection Period;
(iii) to the Agent, for the account of the Company or the
Bank Investors an amount equal to the Carrying Costs for the related
Collection Period due on such Remittance Date (less the amount of any such
Carrying Costs that has been paid by a Servicer Advance or a Reserve
Advance), plus the amount of any Carrying Costs previously due but not paid
on a prior Remittance Date;
(iv) to the Debtor for Administrative Expenses;
(v) to the Noteholder to reduce the Net Investment, until
the Net Investment has been reduced to zero;
(vi) to the Agent, for the account of the Persons entitled
thereto, an amount equal to all other amounts owed under the Note Purchase
Agreement; and
(vii) the remainder, if any, to the
Debtor.
(a) On each Remittance Date, the Collateral Agent shall
determine by reference to the Monthly Servicer's Certificate, the portion of
Available Collections which are Principal Collections with respect to such
Remittance Date and shall withdraw such amount of Principal Collections from the
Collection Account and allocate and pay such amounts in the following order of
priority:
(i) to the Agent, for the account of the Company or the
Bank Investors an amount equal to any Carrying Costs for the related
Collection Period due on such Remittance Date but which were not paid
pursuant to Section 5.1(a);
(ii) to the Noteholder to reduce the Net Investment to an
amount equal to the product of (x) the Blended Advance Rate and (y) (a) the
Aggregate Outstanding Eligible Loan Balance determined as of the last day
of the related Collection Period minus (b) the Excluded Loan Balance;
(iii) to the Noteholder to reduce the Net Investment, until
the Net Investment has been reduced to zero;
(iv) to the Agent, for the account of the Persons entitled
thereto, an amount equal to all other amounts owed under the Note Purchase
Agreement; and
(v) the remainder, if any, to the Debtor.
(b) On any date that a tranche of Related Commercial Paper
matures whether or not such date is a Remittance Date (each, an "INTEREST
PAYMENT DATE"), the Interest Component of matured or maturing Related Commercial
Paper due and payable on such day shall be payable as interest on the Note
("NOTE INTEREST"). Accordingly, the Collateral Agent, acting upon notice from
the Administrative Agent, shall, to the extent the Note Interest exceeds
Available Cash, withdraw such amount from funds on deposit in the Collection
Account,
to the extent of Collections on deposit therein, and remit such amount
to the Agent for the account of the Company. To the extent that amounts
withdrawn by the Agent, as specified above are insufficient to pay such costs,
the Servicer, acting upon notice from the Administrative Agent, shall make an
advance in an amount equal to such costs due and payable on such day (a
"SERVICER ADVANCE") and remit to the Agent for the account of the Company, the
amount of such advance; PROVIDED, HOWEVER, that the Servicer shall not be
obligated to make any such advance except to the extent that the Servicer
reasonably expects to be reimbursed for such advance on a succeeding Remittance
Date pursuant to Section 5.1(a)(i); PROVIDED FURTHER, that the Servicer, from
the period beginning on the Closing Date and ending on July 31, 1998, shall not
be obligated to make Servicer Advances such that the aggregate amount of
outstanding Servicer Advances would be in excess of $750,000 at any time during
such time period. To the extent that amounts advanced by the Servicer are
insufficient to pay such costs and the Debtor fails to make a payment to the
Collateral Agent on such day in the amount of such shortfall, the Collateral
Agent shall withdraw the amount of such remaining shortfall from the Reserve
Account, to the extent of amounts on deposit therein, and remit such amount to
the Agent (such amount, a "RESERVE ADVANCE"), for the account of the Company.
Amounts required to be remitted pursuant to this Section 5.1(c) to the Agent or
the Collateral Agent shall be remitted in immediately available funds to the
Agent's account no later than 12:00 noon, New York City time, on the date due.
(c) If the Available Collections in respect of a Remittance Date
are insufficient to pay the sum of the amounts to be distributed pursuant to
clauses (i) through (iii) of Section 5.1(a) or clauses (i) and (ii) of Section
5.1(b), the Collateral Agent shall withdraw the amount of such shortfall from
the Reserve Account, to the extent of amounts on deposit therein, and apply such
amount to the payment of the items described in clauses (i), (ii) and (iii) of
Section 5.1(a) and clauses (i) and (ii) of Section 5.1(b), in that order of
priority.
(d) ALLOCATION OF COLLECTIONS BETWEEN PRINCIPAL COLLECTIONS AND
INCOME COLLECTIONS. The Servicer will allocate Collections monthly in
accordance
with the actual amount of Income Collections and Principal Collections
processed. The Servicer shall determine each month the amount of Collections
processed during such month which constitutes amounts which, pursuant to the
terms of any Dealer Agreement, are required to be remitted to the applicable
Dealer (such collections, "DEALER COLLECTIONS"). Notwithstanding any other
provision hereof, the Servicer shall distribute to the Debtor on each
Remittance Date an amount equal to the aggregate amount of Dealer Collections
received during or with respect to the prior Collection Period prior to the
distribution of Available Collections pursuant to this Section 5.1.
SECTION 5.2 REMITTANCES TO THE SECURED PARTIES. On each Remittance
Date, the Collateral Agent shall remit all applicable amounts to each Secured
Party in accordance with the provisions of Section 5.1. The foregoing
notwithstanding, the final remittance in respect of the Note shall be made in
the applicable manner specified above only upon presentation and surrender of
the Note at the office of the Debtor specified by it in the notice of such final
remittance or repurchase.
SECTION 5.3 RESERVE ACCOUNT.
(a) On or prior to any Funding, the Debtor shall deposit or
cause to be deposited in the Reserve Account, the Required Reserve Account
Balance (calculated as if such Funding had occurred). The Debtor shall deposit
into the Reserve Account all amounts which are required to be deposited therein
by this Agreement. The Collateral Agent shall promptly withdraw from the
Reserve Account all amounts required to be withdrawn therefrom pursuant to
Sections 5.1(c), 5.1(d) and 5.4 hereof, and shall either (i) pay such amounts to
the Agent, for the account of the Company or the Bank Investors (in the case of
withdrawals pursuant to Section 5.1(c) or 5.4) or (ii) deposit such amounts to
the credit of the Collection Account (in the case of withdrawals therefrom
pursuant to Section 5.1(d)).
(b) To the extent that amounts on deposit
in the Reserve Account on any Remittance Date, after giving effect to any
required withdrawals therefrom on such day, exceed the Required Reserve
Account Balance, such excess amounts shall be withdrawn from the Reserve
Account by the Collateral Agent and used to reduce the Net Investment.
(c) If and to the extent that the Net Investment has been
reduced to zero and all amounts owed by the Debtor to the Secured Parties
hereunder, under the Note Purchase Agreement, the Note and any other Transaction
Document have been paid in full, any amounts on deposit in the Reserve Account
shall be released to the Debtor.
SECTION 5.4 OPTIONAL CLEAN-UP EVENT; MANDATORY CLEAN-UP EVENT.
Upon the occurrence of an Optional Clean-Up Event, the Debtor may, and upon the
occurrence of a Mandatory Clean-Up Event, the Debtor shall, deposit into the
Collection Account on the day preceding the next Remittance Date, an amount
which, when taken together with the amount then on deposit in the Collection
Account and the Reserve Account (before giving effect to any deposit required by
this Section 5.4), shall be sufficient to pay all amounts outstanding under the
Note Purchase Agreement, the Note and any other Transaction Document; PROVIDED
that such deposit by the Debtor does not constitute or result in a violation of
any material agreement related to the indebtedness of the Debtor. If such
deposit (or any part of such deposit) is made into the Collection Account
pursuant to this Section 5.4, the Collateral Agent shall withdraw all funds on
deposit in the Collection Account and the Reserve Account on the next Remittance
Date and pay such amounts to the Company, the Bank Investors and any Noteholder,
as applicable.
EXHIBIT 4(f)(2)
ARTICLE VI
TERMINATION EVENTS
SECTION 6.1 TERMINATION EVENTS. The occurrence and continuation of
any one of the following events shall be a "TERMINATION EVENT" under this
Agreement:
(i) failure (a) on the part of the Debtor or CAC, as
applicable, to make any payment or deposit on the date required under this
Agreement, the Note Purchase Agreement or the Note, as applicable, and the
continuance thereof for one day, (b) on the part of the Debtor to duly
observe or perform any term, covenant, condition or agreement set forth in
this Agreement, the Note Purchase Agreement, the Note or the Contribution
Agreement, and the continuance thereof for three days, (c) of any
representation or warranty contained in this Agreement, the Note Purchase
Agreement or the Contribution Agreement to be true and correct in all
material respects on any day when made or deemed to be made hereunder;
(ii) the Debtor, CAC or the Servicer or any of their
subsidiaries (unless such subsidiary is deemed to be immaterial by the
Collateral Agent in its sole discretion) shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Debtor, CAC or the Servicer or any such subsidiary, as the
case may be, or of or relating to all or substantially all of its property,
or a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Debtor, CAC
or the Servicer, as the case may be, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or the
Debtor, CAC or the Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of an applicable insolvency or reorganization statute, make any
assignment for the benefit of its creditors or voluntarily suspend payment
of its obligations;
(iii) the Debtor, the Servicer or CAC shall enter into any
merger, consolidation or conveyance transaction unless, in the case of the
Servicer or CAC, the Servicer or CAC, as applicable, is the surviving
entity;
(iv) any Servicer Event of Default occurs;
(v) the Collateral Agent and the Secured Parties shall fail
for any reason to have a valid and perfected first priority security
interest in the Loans and other Collateral of the type covered by Article 9
of the UCC;
(vi) the Net Investment shall exceed (a) the Aggregate
Outstanding Eligible Loan Balance MINUS (b) the Excluded Loan Balance;
(vii) the Net Investment shall exceed the product of (a)
the Outstanding Balance of all Eligible Contracts MINUS the Outstanding
Balance of all Eligible Contracts which have become Defaulted Contracts and
(b) 75%.
(viii) a Liquidity Provider or a Program Support Provider
shall have notified the Company that an event of default has occurred under
the related Liquidity Provider Agreement or the related Program Support
Agreement, respectively; or
(ix) the Commercial Paper of the Company shall no longer be
rated at least "A-2", in the case of S&P, and at least "P-2", in the case
of Xxxxx'x;
then, in the case of any event described above the Agent shall be entitled to
give notice of the occurrence of the
Termination Date in accordance with clause (iv) of the definition of
Termination Date set forth in the Note Purchase Agreement; PROVIDED, that
upon the occurrence of an event described in clause (ii) of this Section 6.1,
a Termination Date shall occur automatically without the need for any notice
or action on the Agent's part.
SECTION 6.2 REMEDIES. If a Termination Event shall have occurred,
the Agent has the right to declare all amounts outstanding under the Note and
the Note Purchase Agreement to be then due and payable. If the Note and such
other amounts are declared due and payable, the Collateral Agent may do any one
or more of the following:
(a) take all necessary action to foreclose upon the Collateral;
(b) pursue any available remedy by proceeding at law or in
equity including complete or partial foreclosure of the lien upon the Collateral
and sale of the Collateral or any portion thereof or rights on interest therein
as may appear necessary or desirable (i) to collect amounts owed pursuant to the
Note and any other payments then due and thereafter to become due under the Note
or (ii) to enforce the performance and observance of any obligation, covenant,
agreement or provision contained in this Agreement to be observed or performed
by the Debtor; and
(c) exercise any remedies of a secured party under the Uniform
Commercial Code and take any other appropriate action to protect and enforce the
rights and remedies of the Collateral Agent on behalf of the Secured Parties,
subject to Section 8.7 hereof;
PROVIDED, that, in exercising the foregoing rights and remedies, the Collateral
Agent shall take no action with regard to any Dealer which is expressly
prohibited by the related Dealer Agreement.
SECTION 6.3 APPLICATION OF PROCEEDS. Any proceeds received by the
Collateral Agent from the sale, disposition or liquidation of the Collateral,
including as a result of any sale or foreclosure thereon as contemplated by
Section 6.2 above, shall be applied as follows:
(a) to the payment of (i) all accrued and unpaid interest in
accordance with Section 5.1 hereof and (ii) principal on the Note;
(b) to the payment of all other amounts due hereunder, under the
Note Purchase Agreement or the Note to the Agent, the Collateral Agent, the
Company or the Bank Investors (PRO RATA among them in the event sufficient funds
are not available to pay such Persons in full); and
(c) any remainder after the payment in full of all of the
foregoing, to the Debtor.
ARTICLE VII
THE COLLATERAL AGENT
SECTION 7.1 DUTIES OF THE COLLATERAL AGENT. The Collateral Agent,
both prior to the occurrence of a Termination Event hereunder and after a
Termination Event shall have been cured or waived, shall undertake to perform
such duties and only such duties as are specifically set forth in this
Agreement. The Collateral Agent shall at all times after the occurrence of a
Termination Event which has not been cured or waived exercise such of the rights
and powers vested in it pursuant to this Agreement using the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or her
own affairs.
All Collections received by the Collateral Agent from the Servicer or
otherwise will, pending remittance to the Secured Party entitled thereto, be
held in trust by the Collateral Agent for the benefit of the Secured Parties and
together with all other payment obligations of the Debtor hereunder owing to the
Secured Parties shall be payable to the Secured Parties in accordance with the
provisions of Article V hereof.
Except as otherwise provided herein, the Collateral Agent shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Collateral Agent could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Collateral Agent shall be evidenced as to clause (i) above by
an opinion of counsel to such effect delivered to the Secured Parties.
Notwithstanding the foregoing, the Collateral Agent may resign if, after demand
therefor, it does not receive payment of any compensation due from the Debtor
pursuant to the letter agreement described in Section 7.2. No resignation of
the Collateral Agent shall become effective until a successor Collateral Agent
approved by the Secured Parties shall have assumed the responsibilities and
obligations of the Collateral Agent hereunder.
SECTION 7.2 COMPENSATION AND INDEMNIFICATION OF COLLATERAL AGENT.
The Collateral Agent shall be compensated for its activities hereunder and
reimbursed for reasonable out-of-pocket expenses (including the reasonable
compensation and expenses of its counsel and agents) pursuant to the Fee Letter.
Subject to the terms of such letter agreement, the Collateral Agent shall be
required to pay the expenses incurred by it in connection with its activities
hereunder from its own account. Notwithstanding any other provisions in this
Agreement, the Collateral Agent shall not be liable for any liabilities, costs
or expenses of the Debtor arising under any tax law, including without
limitation any Federal, state or local income or franchise taxes or any other
tax imposed on or measured by income (or any interest or penalties with respect
thereto or arising from a failure to comply therewith).
The Debtor shall indemnify the Collateral Agent, its officers,
directors, employees and agents for, and hold it harmless against any loss,
liability or expense incurred without willful misconduct, gross negligence or
bad faith on its part, arising out of or in connection with (i) the acceptance
or administration of this Agreement, 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 and (ii) the
negligence, willful misconduct or bad faith of the Debtor in the performance of
its duties hereunder. The provisions of this Section 7.2 shall survive the
termination of this Agreement.
SECTION 7.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COLLATERAL AGENT. The Collateral Agent agrees to make the following
representations, warranties and covenants, and further agrees that the Secured
Parties shall be deemed to have relied upon such representations, warranties and
covenants in entering into this Agreement and the Note Purchase Agreement.
(a) ORGANIZATION AND GOOD STANDING. The Collateral Agent is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America, and has full corporate
power, authority and legal right to own its properties and conduct its business
as such properties
are presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
(b) DUE AUTHORIZATION. The execution, delivery, and performance
of this Agreement have been duly authorized by the Collateral Agent by all
necessary corporate action on the part of the Collateral Agent.
(c) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Collateral Agent, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(d) NO CONFLICT. The execution and delivery of this Agreement
by the Collateral Agent, and the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof applicable to the
Collateral Agent, will not conflict with, violate, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time or both) a default under, any Requirement of Law applicable to the
Collateral Agent or any indenture, contract, agreement, mortgage, deed of trust
or other instrument to which the Collateral Agent is a party or by which it is
bound.
SECTION 7.4 LIABILITY OF THE COLLATERAL AGENT.
(a) The Collateral Agent shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the Collateral
Agent in such capacity herein. No implied covenants or obligations shall be
read into this Agreement against the Collateral Agent and, in the absence of bad
faith on the part of the Collateral Agent, the Collateral Agent may conclusively
rely on the truth of the statements and the correctness of the opinions
expressed in any certificates
or opinions furnished to the Collateral Agent and conforming to the
requirements of this Agreement.
(b) The Collateral Agent shall not be liable for an error of
judgment made in good faith, unless it shall be proved that the Collateral Agent
shall have been negligent in ascertaining the pertinent facts.
(c) The Collateral Agent 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 a Secured Party relating to the exercise
of any power conferred upon the Collateral Agent under this Agreement.
(d) The Collateral Agent shall not be charged with knowledge of
any Termination Event unless an officer personally familiar with and currently
responsible for administering this Agreement obtains actual knowledge of such
event or the Collateral Agent receives written notice of such event from the
Debtor, the Servicer, the Company or the Agent, as the case may be.
(e) Without limiting the generality of this Section 7.4, the
Collateral Agent shall have no duty (i) to see to any recording, filing or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest in
the Loans or the related Contracts, or to see to the maintenance of any such
recording or filing or depositing or to any recording, refiling or redepositing
of any thereof, except with respect to actions necessary to maintain the
Collateral Agent's priority position for Eligible Investments pursuant to
Section 4.7(c)(5), (ii) to see to any insurance of the Obligors or to effect or
maintain any such insurance, (iii) to see to the payment or discharge of any
tax, assessment or other governmental charge or any Lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Loans,
(iv) to confirm or verify the contents of any reports or certificates of the
Servicer or the Debtor delivered to the Collateral Agent pursuant to this
Agreement believed by the Collateral Agent to be genuine and to have been signed
or presented by the proper party or parties or (v) to inspect the Contracts at
any time or ascertain or
inquire as to the performance or observance of any of the Debtor's or the
Servicer's representations, warranties or covenants or the Servicer's duties
and obligations as Servicer and as custodian of books, records, files and
computer records relating to the Loans under the Servicing Agreement.
(f) The Collateral Agent 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 ground 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 Collateral Agent to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under this
Agreement.
(g) The Collateral Agent may rely and shall be protected in
acting or refraining from acting upon any resolution, officer's certificate, any
Monthly 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 reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties.
(h) The Collateral Agent may consult with counsel and any
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it under this Agreement
in good faith and in accordance with such opinion of counsel.
(i) The Collateral Agent 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 a Secured Party
pursuant to the provisions of this Agreement, unless such Secured Party shall
have
offered to the Collateral Agent reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained in this Agreement, however, shall relieve the Collateral
Agent of its obligations, upon the occurrence of a Termination Event (that
shall not have been cured or waived), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(j) The Collateral Agent 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.
(k) Prior to the occurrence of a Termination Event before the
Collateral Agent has received notice of such Termination Event and after the
curing or waiving of all Termination Events that may have occurred, the
Collateral Agent 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, unless requested in writing so to do by a Secured Party; PROVIDED,
HOWEVER, that if the payment within a reasonable time to the Collateral Agent 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 Collateral Agent, not
reasonably assured by the Debtor, the Collateral Agent 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 Debtor or, if paid by the Collateral Agent, shall be reimbursed by the
Debtor upon demand.
(l) The Collateral Agent 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 Collateral Agent shall not be
responsible for any misconduct or negligence of any such agent or custodian
appointed with due care by it hereunder.
SECTION 7.5 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE COLLATERAL AGENT. The Collateral Agent shall not
consolidate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which the Collateral Agent is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Collateral Agent
substantially as an entirety shall be a corporation organized and existing
under the laws of the United States of America or any State or the District
of Columbia and, if the Collateral Agent is not the surviving entity, shall
expressly assume, by an agreement supplemental hereto, executed and
delivered to the Secured Parties in form satisfactory to the Secured
Parties, the performance of every covenant and obligation of the Collateral
Agent hereunder; and
(ii) the Collateral Agent has delivered to the Secured
Parties an officer's certificate and an opinion of counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 7.5 and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
EXHIBIT 4 (f) (1)
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 NOTICES, ETC. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto shall be in writing and shall be sent by facsimile transmission
with a confirmation of the receipt thereof and shall be deemed to be given for
purposes of this Agreement on the day that the receipt of such facsimile
transmission is confirmed in accordance with the provisions of this Section 8.1.
Unless otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section, notices, demands, instructions (including
payment instructions) and other communications in writing shall be given to or
made upon the respective parties hereto at their respective addresses and
accounts indicated below, and, in the case of telephonic instructions or
notices, by calling the telephone number or numbers indicated for such party
below:
If to the Company:
Kitty Hawk Funding Corporation
c/o Lord Securities, Inc.
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone:(000) 000-0000
Telecopy: (000) 000-0000
(with a copy to the Administrative Agent)
If to the Servicer (if the Servicer is CAC):
Credit Acceptance Corporation
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000 (ext. 432)
Telecopy: (000) 000-0000
If to the Debtor:
CAC Funding Corp.
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000 (ext. 432)
Telecopy: (000) 000-0000
If to the Collateral Agent, the Administrative Agent or the Agent:
NationsBank N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 28255-0001
Attention: Xxxxxxxx X. Xxxxx
Investment Banking
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Payment Information:
Bankers Trust Company
ABA #: 000000000
Acct. #:00362941
Reference: KHFC-CAC Funding Corp.
SECTION 8.2 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Debtor, the Collateral Agent, the Secured Parties, the
Servicer, CAC and their respective successors and permitted assigns and shall
inure to the benefit of the Debtor, the Servicer, the Collateral Agent, the
Secured Parties and CAC and their respective successors and permitted assigns
including any Bank Investors and the Liquidity Provider; PROVIDED that the
Debtor shall not assign any of its rights or obligations hereunder without the
prior written consent of the Collateral Agent acting upon written instruction of
the Secured Parties. The Debtor and the Collateral Agent hereby acknowledge
that the Company has granted a security interest in all of its rights
hereunder to the KHFC Collateral Agent. In addition, the Debtor hereby
acknowledges that the Company may at any time and from time to time assign
all or a portion of its rights hereunder to the Liquidity Provider pursuant
to the Liquidity Agreement.
SECTION 8.3 SEVERABILITY CLAUSE. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 8.4 AMENDMENTS. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER MAY NOT BE CHANGED ORALLY BUT ONLY BY AN
INSTRUMENT IN WRITING SIGNED BY THE PARTY AGAINST WHICH ENFORCEMENT IS SOUGHT.
SECTION 8.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6 NO BANKRUPTCY PETITION AGAINST THE COMPANY. The Debtor
and each of the other parties hereto covenant and agree that, and each such
Person agrees that they shall cause any Successor Servicer appointed pursuant to
Section 4.1 to covenant and agree that, prior to the date which is one year and
one day after the payment in full of all Commercial Paper issued by the Company
it will not institute against, or join any other Person in instituting against,
the Company or the Debtor, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
state bankruptcy or similar law.
SECTION 8.7 SETOFF. To the extent permitted by applicable law, the
Debtor hereby irrevocably and unconditionally waives all right of setoff that it
may have under contract (including this Agreement), applicable law or otherwise
with respect to any funds or monies of the Debtor at any time held by or in the
possession of the Collateral Agent.
SECTION 8.8 NO RECOURSE. Except as otherwise expressly provided in
this Agreement, it is understood and agreed that the Debtor shall not be liable
for amounts due under the Note, this Agreement or the Note Purchase Agreement,
except to the extent of the Collateral, for any losses suffered by the Company
in respect of the Note. The preceding sentence shall not relieve the Debtor
from any liability hereunder with respect to its representations, warranties,
covenants and other payment and performance obligations herein described.
SECTION 8.9 FURTHER ASSURANCES. The Debtor agrees to do such
further acts and things and to execute and deliver to the Collateral Agent such
additional assignments, agreements, powers and instruments as are required by
the Collateral Agent to carry into effect the purposes of this Agreement or to
better assure and confirm unto the Collateral Agent its rights, powers and
remedies hereunder.
SECTION 8.10 OTHER COSTS, EXPENSES AND RELATED MATTERS. The Debtor
agrees, upon receipt of a written invoice, to pay or cause to be paid, and to
save the Collateral Agent harmless against liability for the payment of, all
reasonable out-of-pocket expenses (including, without limitation, reasonable
attorneys', accountant's and other third parties' fees and expenses, any filing
fees and expenses incurred by officers or employees of the Collateral Agent)
incurred by or on behalf of the Collateral Agent (i) in connection with the
negotiation, execution, delivery and preparation of this Agreement and any
documents or instruments delivered pursuant hereto and the transactions
contemplated hereby (including, without limitation, the perfection or protection
of the Collateral Agent's security interest in the Collateral) and (ii) from
time to time (a) relating to any amendments, waivers or consents under this
Agreement, (b) arising in connection with the Collateral Agent's or its agent's
enforcement or preservation of rights (including, without limitation, the
perfection and protection of the Collateral Agent's security interest in the
Collateral under this Agreement), or (c) arising in connection with any audit,
dispute, disagreement, litigation or preparation for litigation involving this
Agreement.
SECTION 8.11 DIRECTION OF COLLATERAL AGENT. The Collateral Agent
acknowledges that unless expressly indicated to the contrary herein, all of its
rights under this Agreement shall be exercised at the direction of the Secured
Parties.
SECTION 8.12 COUNTERPARTS. This Agreement may be executed in any
number of copies, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
SECTION 8.13 HEADINGS. Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
IN WITNESS WHEREOF, the Debtor, CAC, the Company, the Collateral Agent
and, solely, with respect to Sections 4.1 and 4.7, NationsBank, N.A. in its
individual capacity have caused this Security Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above
written.
CAC FUNDING CORP.,
as Debtor
By: /S/ XXXXXXX X. XXXX
-----------------------------------
Name: XXXXXXX X. XXXX
Title: TREASURER
CREDIT ACCEPTANCE CORPORATION,
Individually and as Servicer
By: /S/ XXXXX X. XXXXXXX
-----------------------------------
Name: XXXXX X. XXXXXXX
Title: CFO
KITTY HAWK FUNDING CORPORATION,
as Company
By: /S/ XXXXXXX X. XXXXXX
-----------------------------------
Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT
NATIONSBANK, N.A.,
Individually and as
Collateral Agent
By: /S/ XXXXXX X. XXXX
-----------------------------------
Name: XXXXXX X. XXXX
Title: VICE PRESIDENT
--------------------------------------------------------------------------------
SECURITY AGREEMENT
among
CAC FUNDING CORP.
as Debtor,
KITTY HAWK FUNDING CORPORATION,
as Company,
NATIONSBANK, N.A.
individually and as Collateral Agent,
and
CREDIT ACCEPTANCE CORPORATION
as Servicer
Dated as of July 7, 1998
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GRANT OF SECURITY INTEREST
SECTION 2.1 Grant of Security Interest. . . . . . . . . . . . . . . . . . . 26
SECTION 2.2 Acceptance by Collateral Agent. . . . . . . . . . . . . . . . . 28
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE DEBTOR
SECTION 3.1 Representations and Warranties of the Debtor. . . . . . . . . . 29
SECTION 3.2 Representations and Warranties of the Debtor Relating to this
Agreement, the Loans and the related Contracts . . . . . . . . 31
SECTION 3.3 Covenants of the Debtor . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IV
SERVICING AND ADMINISTRATION; ACCOUNTS
SECTION 4.1 Servicing . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.2 Duties of the Servicer. . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.3 Rights After Designation of
Successor Servicer. . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.4 Responsibilities of the Debtor. . . . . . . . . . . . . . . . . 47
SECTION 4.5 Monthly Servicer's Certificate. . . . . . . . . . . . . . . . . 47
SECTION 4.6 Additional Representations and
Warranties of CAC as Servicer . . . . . . . . . . . . . . . . . 48
SECTION 4.7 Establishment of Accounts . . . . . . . . . . . . . . . . . . . 48
PAGE
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ARTICLE V
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 5.1 Collections . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 5.2 Remittances to the Secured Parties. . . . . . . . . . . . . . . 55
SECTION 5.3 Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VI
TERMINATION EVENTS
SECTION 6.1 Termination Events. . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . 59
ARTICLE VII
THE COLLATERAL AGENT
SECTION 7.1 Duties of the Collateral Agent. . . . . . . . . . . . . . . . . 61
SECTION 7.2 Compensation and Indemnification
of Collateral Agent . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.3 Representations, Warranties and
Covenants of the Collateral Agent . . . . . . . . . . . . . . . 62
SECTION 7.4 Liability of the Collateral Agent . . . . . . . . . . . . . . . 63
SECTION 7.5 Merger or Consolidation of, or
Assumption of the Obligations of,
the Collateral Agent. . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 8.2 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.3 Severability Clause . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.4 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.6 No Bankruptcy Petition Against
the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.7 Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.8 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.9 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.10 Other Costs, Expenses and
Related Matters . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.11 Direction of Collateral Agent . . . . . . . . . . . . . . . . . 72
SECTION 8.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.13 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
EXHIBITS
EXHIBIT A Form of Contracts. . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Contribution Agreement . . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Dealer Agreement . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Loans Schedule . . . . . . . . . . . . . . . . . . . . . . . . D-1
PAGE
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EXHIBIT E Servicing Agreement. . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F Amortization Schedule. . . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT G Form of Monthly Servicer's Certificate . . . . . . . . . . . . G-1
