Exhibit 10.18


 


EXECUTION COPY


 


RECEIVABLES FINANCING AGREEMENT


 


dated as of April 1, 2005


 


among


 


CAR FUNDING, INC.,


as Borrower


 


CAR FINANCIAL SERVICES, INC.,


individually and as Seller and
Custodian


 


CONSUMER AUTO RECEIVABLES
SERVICING, LLC,


individually and as Servicer


 


COMPUCREDIT CORPORATION,


as Guarantor


 


THE LENDERS PARTIES HERETO,


 


DEUTSCHE BANK AG, NEW YORK
BRANCH,


as Agent


 


THE OTHER AGENTS PARTIES
HERETO,


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION,


as Backup Servicer


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Administrative Agent


 


and


 


U.S. BANK NATIONAL ASSOCIATION,


as Collateral Agent


 


***Represents material deleted per the Company's request for
Confidential Treatment and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 





















 


RECEIVABLES FINANCING AGREEMENT


 


THIS RECEIVABLES FINANCING AGREEMENT is made and
entered into as of April 1, 2005, among CAR FUNDING, INC., a Nevada
corporation (the “Borrower”), CAR FINANCIAL SERVICES, INC., a Georgia
corporation, in its individual capacity (“CAR”) and as the seller (in
such capacity, the “Seller”), CONSUMER AUTO RECEIVABLES SERVICING, LLC,
a Georgia limited liability company, in its individual capacity (“CAR
Servicing”) and as servicer (in such capacity, the “Servicer”) and
as custodian (in such capacity, the “Custodian”), COMPUCREDIT
CORPORATION, a Georgia corporation, in its individual capacity (“CCRT”)
and as guarantor (in such capacity, the “Guarantor”), each NONCOMMITTED
LENDER (as hereinafter defined) from time to time party hereto, each COMMITTED
LENDER (as hereinafter defined) from time to time party hereto, the AGENTS for
the Lender Groups from time to time parties hereto (each such party, together
with their respective successors in such capacity, an “Agent”), WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as backup
servicer (in such capacity, the “Backup Servicer”), DEUTSCHE BANK AG,
NEW YORK BRANCH, the New York Branch of a German bank, as administrative agent
(together with its successors in such capacity, the “Administrative Agent”),
and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
collateral agent (together with its successors in such capacity, the “Collateral
Agent”).


 


BACKGROUND


 


1.                                       The Borrower desires that the Lenders (as
hereinafter defined) extend financing to the Borrower on the terms and
conditions set forth herein.


 


2.                                       The Lenders are willing to provide such
financing on the terms and conditions set forth in this Agreement.


 


NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree as follows:


 





















 


DEFINITIONS


Defined Terms.  Terms used
in this Agreement which are defined in Annex I hereto shall have the meanings
specified in such Annex I (unless otherwise defined herein).


Other Definitional Provisions.  6.  Unless
otherwise specified therein, all terms defined in Annex I shall have the
meanings as so defined when used in the Notes or in any other Transaction
Document, certificate, report or other document made or delivered pursuant
hereto.


Each term defined in the singular form in Annex I or elsewhere in
this Agreement shall mean the plural thereof when the plural form of such term
is used in this Agreement, the Notes or any other Transaction Document,
certificate, report or other document made or delivered pursuant hereto, and
each term defined in the plural form in Annex I shall mean the singular
thereof when the singular form of such term is used herein or therein.


The words “hereof,” “herein,” “hereunder” and similar terms when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and article, section, subsection, schedule and
exhibit references herein are references to articles, sections, subsections,
schedules and exhibits to this Agreement unless otherwise specified.


The following terms which are defined in the Uniform Commercial Code in
effect in the State of New York on the date hereof are used herein as so
defined:  Accounts, Chattel Paper,
Documents, Equipment, General Intangibles, Instruments, Inventory, Investment
Property and Proceeds.


For the avoidance of doubt, on each date on which the Aggregate Eligible
Receivables Balance or the Borrowing Base is required to be calculated by the
Borrower, the Servicer, the Lenders or the Agents hereunder, the eligibility of
each of the Transferred Receivables shall be redetermined as of such
calculation date and, as a consequence thereof, Contracts that were Eligible
Receivables on the related Closing Date may be excluded from the Aggregate
Eligible Receivables Balance or the Borrowing Base on the date of calculation.


 


THE
FACILITY, ADVANCE PROCEDURES AND NOTE


 


Facility.  On the
terms and subject to the conditions set forth in this Agreement, each
Noncommitted Lender may, in its sole discretion, make Advances (to the extent
of its Available Commitment Amount) to the Borrower on a revolving basis from
time to time during the period commencing on the Effective Date and ending on
the Facility Termination Date, in each case in such amounts as may be requested
by the Borrower pursuant to Section 2.2.  If on any day there shall be more than one
Noncommitted Lender, any Advance requested by the Borrower on such day shall be
allocated among the Noncommitted Lenders pro  rata on the basis of
their respective Noncommitted Percentages and each Noncommitted Lender may, in
its sole and absolute discretion, determine whether to make an Advance in its
allocated amount.  If a Noncommitted
Lender elects not to make a requested Advance, each of the Committed Lenders
with respect to such Noncommitted Lender shall make Advances (in an aggregate
amount equal to the requested Advance) to the Borrower (to the extent of the unutilized
Commitment of each such Committed Lender and pro  rata among such
Committed Lenders in accordance with their respective Adjusted Commitment
Percentages) on a revolving basis from time to time during the period
commencing on the Effective Date and ending on the Facility Termination
Date.  The lending arrangement made
available to the Borrower pursuant to the preceding sentences of this Section 2.1
is herein called the “Facility”. 
The aggregate principal amount of all Advances from time to time outstanding
hereunder shall not exceed the lesser of (a) the Facility Limit and (b) the
Borrowing Base.  In addition, under no
circumstances shall any Lender make any Advance if after giving effect thereto
the aggregate outstanding principal balance of all Advances owing to such
Lender would exceed (i) if such Lender is a Noncommitted Lender, its
Maximum Loan Amount or (ii) if such Lender is a Committed Lender, its
applicable Commitment less its Adjusted Commitment Percentage of the
outstanding principal balance of all Advances owing to its Noncommitted
Lender.  The Committed Lenders may not
reduce their respective Commitments during the term of this Agreement other
than as expressly provided under Section 2.5.  Within the limits of the Facility, the
Borrower may borrow, prepay and reborrow under this Section 2.1.  No additional Advances may be made if the
Backup Servicer shall be acting as Servicer.


 


Advance Procedures.  The
Borrower may request an Advance hereunder by giving notice to the
Administrative Agent of a proposed Advance not later than 1:00 P.M., New
York time, two Business Days prior to the proposed date of such Advance.  Each such notice (herein called an “Advance
Request”) shall be in the form of Exhibit A and shall include
the date and amount of such proposed Advance and the Schedule of
Receivables setting forth the information required therein with respect to the
Receivables, if any, to be acquired by the Borrower on the date such Advance is
requested to be made.  No more than three
Advance Requests may be made in any calendar week.  Any Advance Request given by the Borrower
pursuant to this Section 2.2 shall be irrevocable and binding on
the


 


2





















 


Borrower. 
The Administrative Agent shall promptly forward a copy of each Advance
Request received by it to each Agent and each Lender.  The Administrative Agent, in its capacity as
such, shall have no obligation to lend funds hereunder.


 


Each Noncommitted Lender shall notify the Agent for
its Lender Group by 10:00 a.m., New York City time, on the applicable
requested date of Advance whether it has elected to make the Advance requested
of it pursuant to the preceding paragraph. 
In the event that a Noncommitted Lender shall not have timely provided
such notice, such Noncommitted Lender shall be deemed to have elected not to
make such Advance.  Such Agent shall
notify each Committed Lender for such Noncommitted Lender on or prior to 11:00 a.m.,
New York City time, on the applicable requested date of Advance if such
Noncommitted Lender has not elected to advance its entire Noncommitted
Percentage of the Advance requested, which notice shall specify (i) the
identity of such Noncommitted Lender, (ii) the portion of the Advance
which such Noncommitted Lender has not elected to advance as provided above,
and (iii) the respective Adjusted Commitment Percentages of such Committed
Lenders on such requested date of Advance (as determined by such Agent in good
faith; for purposes of such determination, such Agent shall be entitled to rely
conclusively on the most recent information provided by such Noncommitted
Lender).  Subject to receiving such
notice and to the satisfaction of the applicable conditions set forth in Article VII
hereof, each of such Noncommitted Lender’s Committed Lenders shall make an
Advance on the applicable requested date of Advance in an amount equal to its
Adjusted Commitment Percentage of the portion of the Advance which such
Noncommitted Lender has not elected to advance.


 


Funding.  Subject to
the satisfaction, in the reasonable determination of the Lenders, of the
conditions precedent set forth in Article VII with respect to such
Advance, each Lender’s portion of the requested Advance payable pursuant to Section 2.2
of this Agreement shall be made available to the Administrative Agent at or
prior to 2:00 p.m., New York City time, on the requested date of Advance,
by deposit of immediately available funds to the Administrative Agent’s
Account.  Subject to the satisfaction, in
the reasonable determination of the Lenders, of the conditions precedent set
forth in Article VII with respect to such Advance (as evidenced by
the advancing of such funds by the Lenders) and the Administrative Agent’s
receipt of such funds, the Administrative Agent shall make the proceeds of such
requested Advance available as follows: first, to the extent Borrower is
required pursuant to Section 11.6 hereof to fund the Cap Funding Reserve
Account and the amount on deposit in the Cap Funding Reserve Account is less
than the Cap Funding Reserve Account Requirement (computed after giving effect
to the proposed Advance and to the transfer to the Borrower of any Receivables
and Dealer Transaction Rights to be transferred to it by the Seller on such
date) on the proposed date of the Advance, an amount equal to such deficiency
shall be deposited in the Cap Funding Reserve Account; second, to pay
any upfront cost of acquiring any Interest Rate Cap; third, to pay any
fees and expenses due to the Lenders or the Agents on the date of such Advance;
and fourth, all amounts of the proposed Advance in excess of the amounts
distributed pursuant to first, second and third above
shall be made available to the Borrower by deposit to such account as may be
designated by the Borrower (in a written notice received by the Administrative
Agent at least one Business Day prior to the date of such Advance) in
immediately available funds no later than 3:00 p.m., New York City time,
on the date of such Advance.


 


In the event that notwithstanding the fulfillment of
the applicable conditions set forth in Article VII hereof with respect to
an Advance, a Noncommitted Lender elected to make an Advance but failed to make
its portion thereof available to the Administrative Agent when required
pursuant to the preceding paragraph, such Noncommitted Lender shall be deemed
to have rescinded its election to make such Advance, and neither the Borrower
nor any other party shall have any claim against such Noncommitted Lender by
reason of its failure to timely make such Advance.  In any such case, the Administrative Agent
shall give notice of such failure not later than 2:30 p.m., New York
City time, on the requested date of Advance to each Committed Lender for
such Noncommitted Lender and to the Agent for its Lender Group, the Borrower
and the Servicer, which notice shall specify (i) the identity of such
Noncommitted Lender, (ii) the


 


3





















 


amount of the Advance which it had elected but failed
to make and (iii) the respective Adjusted Commitment Percentages of such
Committed Lenders on such date (as determined by the related Agent).  Subject to receiving such notice, each of
such Noncommitted Lender’s Committed Lenders shall lend a portion of the
requested Advance in an amount equal to its Adjusted Commitment Percentage of
the amount described in clause (ii) above at or before 4:00 p.m., New
York City time, on such date and otherwise in accordance with this Section 2.3.  Subject to the Administrative Agent’s receipt
of such funds, the Administrative Agent will not later than 5:00 p.m., New
York City time, on such date make such funds available by depositing same
in the appropriate account in accordance with the provisions of the preceding
paragraph.


 


4





















 


Notes.  All
Advances by the Lenders in a Lender Group shall be further evidenced by a Note,
executed by the Borrower, with appropriate insertions, payable to the order of
the Agent for such Lender Group.  The
Borrower hereby irrevocably authorizes each Agent to make (or cause to be made)
appropriate notations on the grid attached to the Notes (or on any continuation
of such grid, or at such Agent’s option, in its records), which notations, if
made, shall evidence, inter  alia, the date of the outstanding
principal of the Advances evidenced thereby and each payment of principal
thereon; provided, however, that the failure to make any such
notations shall not limit or otherwise affect any of the Obligations or any
payment thereon.


 


Reductions of Commitments.


 


At any time the Borrower may, upon at least
five Business Days’ prior written notice to the Administrative Agent, reduce
the Facility Limit in whole or in part. 
Each partial reduction shall be in an aggregate amount of $5,000,000 or
integral multiples of $5,000,000 in excess thereof (or such other amount
requested by the Borrower to which the Administrative Agent consents).  Reductions of the aggregate Commitments
pursuant to this subsection 2.5(a) of this Agreement shall be
allocated (i) to the Maximum Loan Amount of each Noncommitted Lender, pro
rata based on the Noncommitted Percentage represented by such Maximum
Loan Amount, and (ii) to the aggregate Commitments of Committed Lenders
for each Noncommitted Lender pro  rata based on their respective
Adjusted Commitment Percentages.  The
Administrative Agent shall promptly deliver a copy of any such notice to each
Agent and each Lender.  The Borrower
shall repay the unpaid principal amount of the Advances to the extent they
exceed the Facility Limit after giving effect to such reduction.


 


On the Facility Termination Date, the
Commitment of each Lender shall be automatically reduced to zero.


 


The Borrower will give the Collateral Agent
written notice of any termination of the Commitments or reduction of the
Commitments to zero pursuant to Section 2.5(a) or as a result of the
occurrence of the Facility Termination Date within two Business Days of such
termination, reduction or occurrence.


 


Repayments and Prepayments.  The
Borrower shall repay in full the unpaid principal amount of each Advance on the
Scheduled Facility Termination Date. 
Prior thereto, the Borrower:


 


may, from
time to time on any Business Day, make a prepayment, in whole or in part, of
the outstanding principal amount of any Advance; provided, however, that


 


all
such voluntary prepayments shall require at least three Business Days’ prior
written notice to the Administrative Agent; and all such voluntary partial
prepayments shall be in a minimum amount of $5,000,000 and an integral multiple
of $1,000,000 in excess thereof or, if less than $5,000,000, the entire
outstanding principal amount of any Advances;


 


shall, on
any Distribution Date, any date an Advance is made or any date upon which the
Collateral Agent distributes Excess Funds from the Collection Account on which
the outstanding amount of Advances exceeds the Borrowing Base, make a
prepayment of the Advances in an amount equal to such excess;


 


shall,
immediately upon any acceleration of the maturity date of any Advance pursuant
to Section 14.3, repay all Advances, unless, pursuant to Section 14.3(a),
only a portion of all Advances is so accelerated, in which event the Borrower
shall repay the accelerated portion of the Advances; and


 


shall, on
the date the Borrower receives any net proceeds from any Take-Out
Securitization, make a prepayment of the Advances in an amount substantially
equal to such net proceeds or, if less, the total outstanding amount of
Advances.


 


Each such prepayment shall be subject to the payment
of any amounts required by Section 6.2 resulting from a prepayment
or payment of an Advance prior to the end of the Fixed Period with respect
thereto.


 


5





















 


Extension of Facility.  The
Borrower may request (in a written notice delivered to the Administrative
Agent, on or prior to the 30th calendar day, but not earlier than
the 90th calendar day, prior to each Scheduled Facility Termination
Date) that the Lenders extend the Scheduled Facility Termination Date for
successive periods of 364 days.  The
Scheduled Facility Termination Date shall be extended accordingly if the
Administrative Agent (acting pursuant to the instructions of all the Lenders,
which instructions may be given or withheld in their sole and absolute
discretion) notifies the Borrower that the then-current Scheduled Facility
Termination Date shall be so extended for a period of 364 days.  If any Lender instructs the Administrative
Agent not to extend such date, or fails to give the Administrative Agent any
instruction with respect to any such request, the Administrative Agent shall
notify the Borrower that the Lenders have declined the request of the Borrower
and the Scheduled Facility Termination Date shall not be so extended.  If no such notice is received by the Borrower
by the close of business on the 15th calendar day prior to the
then-current Scheduled Facility Termination Date, the Lenders shall be deemed
to have declined the request of the Borrower. 
If the request is declined, the Borrower may request that the
Administrative Agent promptly advise the Borrower of the Lenders that agreed to
the extension request and may, by the close of business on or before the 10th
calendar day prior to the then-current Scheduled Facility Termination Date,
request that one or more of the Lenders consenting to the extension request or
any Investor acquire and assume all or a ratable part of each non-consenting
Lender Commitment.  Upon notice from the
Administrative Agent that each non-consenting Lender has assigned its interest
in its Advances and its Commitment to another Lender or Investor, on or before
the close of business on the 5th calendar day prior to the
then-current Scheduled Facility Termination Date, the Lenders shall be deemed
to have accepted the request of the Borrower that the Scheduled Facility
Termination Date be so extended.  If no
such notice is received, or if the Borrower does not timely request that the
Administrative Agent solicit replacement of each the non-consenting Lender, the
Lenders shall be deemed to have declined the request and the Scheduled Facility
Termination Date shall not be so extended. 
The Borrower will give the Collateral Agent written notice of any
extension of Scheduled Facility Termination Date within two Business Days of
such extension.


 


YIELD, FEES, ETC.


 


Yield.  The
Borrower hereby promises to pay Yield on the unpaid principal amount of each
Advance (or each portion thereof) for the period commencing on the date of such
Advance until such Advance is paid in full. 
No provision of this Agreement or the Notes shall require the payment or
permit the collection of Yield in excess of the maximum permitted by applicable
law.


 


Yield Payment Dates.  Yield
accrued on Advances shall be payable, without duplication:


 


as to each
Advance on the Facility Termination Date;


 


as to any
payment or prepayment, on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Advance, but only on the portion of the
Advance so paid or prepaid; and


 


as to each
Advance, on each Distribution Date; provided that Yield relating to such
Advance may also be payable, at the option of the Borrower, on an Interim
Distribution Date selected (upon not less than three Business Days’ prior
written notice to the Administrative Agent) by the Borrower.


 


Yield Calculation.  (a) Interest
shall accrue on the Advances during each Accrual Period at the following rates:


 


Each
Noncommitted Lender’s portion of each Advance shall bear interest on each day
during each Accrual Period at a rate per annum equal to such Noncommitted
Lender’s Commercial Paper Rate for such day, except as otherwise provided in
clause (ii) below. 


 


If and to the
extent that, and only for so long as, a Noncommitted Lender at any time
determines in good faith that it is unable to raise or is precluded or
prohibited from raising, or that it is not advisable to raise, funds through
the issuance of commercial paper notes in the commercial paper market of the
United States to finance its making or maintenance of its portion of any Advance
or any portion thereof (which determination may be based on any allocation
method employed in good faith by such Noncommitted Lender), including by reason
of market conditions or by reason of insufficient availability under any of its
Support Facilities or the downgrading of any of its Support Parties, upon
notice from such Noncommitted 


 


6





















 


Lender to the
Agent for its Lender Group and the Administrative Agent, such Noncommitted
Lender’s portion of such Advance shall bear interest at a rate per annum equal
to the Alternative Rate, rather than as otherwise determined pursuant to clause
(i) above.  


 


Each Committed
Lender’s portion of each Advance shall bear interest for each Accrual Period at
a rate per annum equal to the Alternative Rate. 


 


Notwithstanding clauses (i), (ii) and (iii) above,
during the period any principal amount of any Advance is due and payable
(whether on the Facility Termination Date, upon acceleration or otherwise) or
during the period any other monetary obligation of the Borrower or the Servicer
(only if CAR, CAR Servicing or an Affiliate of CAR is the Servicer) arising
under this Agreement shall become due and payable, the Borrower or the Servicer
(only if CAR, CAR Servicing or an Affiliate of CAR is the Servicer), as the
case may be, shall pay (to the extent permitted by law, if in respect of any
unpaid amounts representing Yield) Yield (after as well as before judgment) on
such amounts, payable on demand, at a rate per  annum equal to the
Default Rate.


 


If (A) the consolidation of the assets
and liabilities of a Noncommitted Lender which is a Structured Lender on the
balance sheet of an administrator, manager, credit or liquidity enhancer or
similar party with respect to such Lender or any Affiliate of such
administrator, manager, credit or liquidity enhancer or similar party (each, an
“SL Affected Party”) shall be required, or capital shall be required to
be maintained with respect thereto under any capital requirements as if such
assets were owned by such SL Affected Party, by the Securities and Exchange
Commission, any banking regulatory authority or any other domestic or foreign
governmental authority having jurisdiction over such SL Affected Party, or (B) the
independent auditors for a SL Affected Party shall have advised such SL
Affected Party in writing that in their opinion such consolidation is required
under GAAP or applicable law, rule or regulations, then, upon notice by
such Lender to the Borrower and the related Agent, such Lender’s Advances shall
bear interest at a rate per annum equal to the Alternative Rate, rather than as
otherwise determined pursuant to clause (a) above.


 


Fees.  The
Borrower agrees to pay to the Administrative Agent, on behalf of itself, the
Agents, the Support Parties and the Lenders, certain fees in the amounts and on
the dates set forth in the letter agreement among the Administrative Agent, the
Borrower and CAR, dated as of the date hereof (as the same may be amended,
supplemented or otherwise modified, the “Fee Letter”).  Fees accrued on each Advance shall be
payable, without duplication, on the date of any payment or prepayment, in
whole or in part, of principal outstanding on such Advance.


 


Computation of Yield and Fees.  All Yield
and Fees shall be computed on the basis of the actual number of days (including
the first day but excluding the last day) occurring during the period for which
such Yield or fee is payable over a year comprised of 360 days (or, in the case
of Yield on an Advance bearing Yield on the basis of the Alternate Base Rate,
365 days or, if appropriate, 366 days). 
The Agent for each Lender Group shall notify the Administrative Agent,
the Borrower and the Servicer of the Yield and Fees accrued one Business Day
prior to each Distribution Date and from time to time upon request of the
Administrative Agent, the Borrower or Servicer.


 


GUARANTY


 


Guaranty of Payment.  The
Guarantor hereby guarantees to the Administrative Agent (on behalf of itself,
the Collateral Agent, the Agents and the Lenders) the payment of all payment
and performance obligations of the Servicer (so long as the Servicer is CAR,
CAR Servicing or an Affiliate thereof) to the Administrative Agent, the
Collateral Agent, each Agent, and each of the Lenders under the Sale and Servicing
Agreement or this Agreement, whether direct or indirect, absolute or
contingent, due or to become due, secured or unsecured, now existing or
hereafter arising or acquired (collectively, the “Guaranteed Obligations”).  The guaranty provided hereunder is an
absolute, unconditional and irrevocable guaranty of the full and punctual
payment and performance of the Guaranteed Obligations (and not of their
collectibility only) and is in no way conditioned upon any requirement that the
Administrative Agent, any Agent or any Lender first attempt to collect or
enforce any of the Guaranteed Obligations from or against the Servicer or
resort to any security or other means of obtaining their payment or


 


7





















 


performance. 
Should the Servicer default in the payment or performance of any of the
Guaranteed Obligations, the obligations of the Guarantor hereunder with respect
to such default shall become immediately due and payable, without demand or
notice by the Administrative Agent. 
Payments by the Guarantor hereunder may be required by the
Administrative Agent (on behalf of itself, the Collateral Agent, the Agents and
the Lenders), acting at the direction of the Required Lenders, on any number of
occasions.


 


Agreement to Pay Expenses.  The
Guarantor agrees, as the principal obligor and not as a guarantor only, to pay
to the Administrative Agent, on demand, all reasonable costs and expenses
(including court costs and reasonable legal expenses) incurred or expended by
the Administrative Agent in connection with enforcement of the obligations of
the Guarantor under this Article IV together with interest accrued thereon
from the time such amounts become due until payment, at the Default Rate in
effect from time to time; provided that, if such interest exceeds the
maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.


 


Unenforceability of Guaranteed Obligations
Against the Servicer.  If for any reason the Servicer
has no legal existence or is under no legal obligation to discharge any of the
Guaranteed Obligations, or if any of the Guaranteed Obligations have become
irrecoverable from the Servicer by operation of law or for any other reason,
the guaranty and the primary obligation provided under this Article IV
shall nevertheless be binding on the Guarantor to the same extent as if the
Guarantor at all times had been the principal obligor on all such Guaranteed
Obligations.  In the event that
acceleration of the time for payment of any of the Guaranteed Obligations is
stayed upon the insolvency, bankruptcy or reorganization of the Servicer, or
for any other reason, all such amounts otherwise subject to acceleration under
the terms of any agreement evidencing, securing or otherwise executed in
connection with any Guaranteed Obligation (including this Agreement) shall be
immediately due and payable by the Guarantor.


 


Waiver of Subrogation.  Until the
termination hereof and the payment in full of all Guaranteed Obligations and
payment in full of the principal of, and interest on, the Advances, the
Guarantor (a) shall not exercise any rights against the Servicer arising
as a result of payment or performance by the Guarantor under this Article IV,
by way of subrogation or otherwise; (b) will not prove any claim in
competition with the Administrative Agent, the Collateral Agent, the Agents or
the Lenders in respect of any payment or performance hereunder in bankruptcy or
insolvency proceedings of any nature; (c) will not claim any set-off or
counterclaim against the Servicer in respect of any liability of the Guarantor
to such Person; and (d) waives any benefit of and any right to participate
in any collateral which may be held by the Administrative Agent, the Collateral
Agent, the Agents or the Lenders.


 


Subordination.  The payment
of any amounts due with respect to any Indebtedness of the Servicer now or
hereafter held by the Guarantor is hereby subordinated to the prior payment in
full of the Guaranteed Obligations, provided
that so long as no default in the payment of the Guaranteed Obligations has
occurred and is continuing and no Facility Termination Event or Unmatured
Facility Termination Event has occurred and is continuing, and no undisputed
demand for payment of any of the Guaranteed Obligations has been made that
remains unsatisfied, the Servicer may make, and the Guarantor may demand and
accept, any payments of principal of and interest on such subordinated
Indebtedness in the amounts, at the rates and on the dates as specified in such
instruments, securities or other writings as shall evidence such subordinated
Indebtedness.  The Guarantor agrees that
after the occurrence and during the continuation of any default in the payment
of the Guaranteed Obligations or a Facility Termination Event or Unmatured
Facility Termination Event, the Guarantor will not demand, sue for or otherwise
attempt to collect any such Indebtedness of the Servicer to the Guarantor until
the Guaranteed Obligations shall have been paid in full.  If, notwithstanding the foregoing sentence,
the Guarantor shall in breach of this Section, collect, enforce or receive any
amounts in respect of such Indebtedness, such amounts shall be collected,
enforced and received by the Guarantor as trustee for the Administrative Agent,
the Collateral Agent, the Agents and the Lenders and be paid over to
Administrative Agent on account of the Guaranteed Obligations without affecting
in any manner the liability of the Guarantor under this Article IV.


 


Waivers by Guarantor.  The
Guarantor agrees that the Guaranteed Obligations will be paid strictly in
accordance with their respective terms. 
To the extent permitted by applicable law, the Guarantor waives
presentment, demand, protest, notice of acceptance, notice of Guaranteed
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshaling of assets
of the Servicer, and all suretyship defenses generally.  Without limiting the generality of the
foregoing, the Guarantor agrees to the provisions of any instrument evidencing,
securing or otherwise executed in connection with any of the Guaranteed
Obligations and agrees that the Guaranteed Obligations shall not be released or
discharged, in whole or in part, or otherwise affected by (i) the failure
of the Administrative Agent, the Collateral Agent, any Agent or any of the
Lenders to assert any claim or demand or to enforce any right or remedy against
the Servicer; (ii) any extensions or renewals of


 


8





















 


any of the Guaranteed Obligations; (iii) any
rescissions, waivers, amendments or modifications of any of the terms or provisions
of any agreement evidencing, securing or otherwise executed in connection with
the Guaranteed Obligations, including, without limitation, the Transaction
Documents; (iv) the substitution or release of any entity primarily or
secondarily liable for any obligation of the Servicer under this Agreement or
the other Transaction Documents; (v) the adequacy of any rights the
Agents, the Lenders, the Administrative Agent or the Collateral Agent may have
against any collateral or other means of obtaining repayment of the Guaranteed
Obligations; (vi) the impairment of any collateral securing the Guaranteed
Obligations, including without limitation the failure to perfect or preserve
any rights the Administrative Agent, the Collateral Agent, the Agents or the
Lenders might have in such collateral or the substitution, exchange, surrender,
release, loss or destruction of any such collateral; or (vii) any other
act or omission which might in any manner or to any extent vary the risk of the
Guarantor or otherwise operate as a release or discharge of the Guarantor, all
of which may be done without notice to the Guarantor.


 


PAYMENTS; TAXES


 


Making of Payments; Taxes.  7.  Subject to, and in accordance with, the
provisions hereof, all payments of principal of, or Yield on, the Advances and
of all Fees and other amounts shall be made by the Borrower no later than 2:00 p.m.,
New York time, on the day when due in lawful money of the United States of
America in immediately available funds to the Administrative Agent, at its
account (account number –10-598524-0008 (account name – Nantucket Funding
Corp., LLC) maintained at the office of Deutsche Bank AG, New York Branch, New
York, New York (ABA # 026-003-780), reference:  CAR Funding Inc., with telephone notice
(including wire number) to the Administrative Agent (telephone number 212-474-7737)),
or such other account as the Administrative Agent shall designate in writing to
the Borrower (the “Administrative Agent’s Account”).  Payments received by the Administrative Agent
after 2:00 p.m., New York time, on any day will be deemed to have been
received by the Administrative Agent on its next following Business Day.  The Administrative Agent shall, upon receipt
of such payments, promptly remit such payments (in the same type of funds
received by the Administrative Agent) to the Agent for each Lender Group pro
rata among the Lender Groups on the basis of the respective amounts
owing to such Lender Groups of the Obligations to which such payments
relate.  Each Agent shall allocate to the
Lenders in its Lender Group each payment in respect of the Advances received by
such Agent as provided herein.  Payments
in reduction of the principal amount of the Advances shall be allocated and
applied to Lenders pro  rata based on their respective portions of
such Advances.  Payments of Yield shall
be allocated and applied to Lenders pro  rata based upon the
respective amounts of interest due and payable to them, determined as provided
above in Section 3.3(a). 
Payments of the “Usage Fee” (as defined in the Fee Letter) shall be
allocated and paid to Lenders pro  rata based upon their
respective principal interests in the Advances for the applicable Accrual
Period.  Payments of the “Program Fee”
(as defined in the Fee Letter) shall be allocated and paid to the Agent for
each Lender Group pro  rata based on the aggregate Commitments of
the Lenders in such Lender Group.  Each
Lender in a Lender Group shall be entitled to receive the share of the Program
Fee allocated to such Lender Group as may be agreed upon from time to time
between such Lender and the Agent for such Lender Group.


 


All payments described in Section 5.1(a) and all other
payments made by or on behalf of the Borrower, the Seller, CAR, the Guarantor
or the Servicer (so long as CAR, CAR Servicing or an Affiliate of CAR is the
Servicer) to the Administrative Agent for the benefit of itself or any Affected
Person or the Lenders or to any Affected Person directly under this Agreement
and any other Transaction Document shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Official Body (excluding (i) taxes imposed on the net income
of the Administrative Agent or Affected Person, however denominated, and (ii) franchise
taxes imposed on the net income of the Administrative Agent or Affected Person
in each case imposed: (1) by the United States or any political
subdivision or taxing authority thereof or therein; (2) by any
jurisdiction under the laws of which the Administrative Agent or such Affected
Person or its applicable lending office is organized or located, managed or controlled
or in which its principal office is located or any political subdivision or
taxing authority thereof or therein; or (3) by reason of any connection
between the jurisdiction imposing such tax and the Administrative Agent, such
Affected Person or such lending office other than a connection arising solely
from this Agreement or any other Transaction Document or any transaction
hereunder or thereunder) (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, collectively or individually, “Taxes”).  If any such Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Affected Person
hereunder or under any other Transaction Document, the amounts so payable to
the Administrative Agent or such Affected Person shall be increased to the
extent necessary to yield to the Administrative Agent or such Affected Person
(after payment of all Taxes) all amounts payable hereunder or thereunder at the
rates or in the amounts specified in this Agreement and the other Transaction
Documents.  The Borrower (or the party
required to “gross-up” the applicable payment) shall indemnify the
Administrative Agent or such Affected Person for the full amount of any such
Taxes on the first Settlement Date 


 


9





















 


occurring at least 10 Business Days after the date of written demand
therefor by the Administrative Agent or Affected Person and delivery to the
Borrower (or the party required to “gross-up” the applicable payment) of the
written statement setting forth the legal basis for the Taxes, the amount of
the Taxes and the calculation thereof; provided that no Person shall be
indemnified pursuant to this Section 5.1(b) to the extent the
reason for such indemnification relates to, or arises from, the failure by such
Person to comply with the provisions of Section 5.1(c).


 


Each Affected Person that is not incorporated under the laws of the
United States of America or a state thereof or the District of Columbia shall:


 


prior
to becoming a party to, or acquiring an interest in, any Transaction Document
or Support Facility (if not a party to a Transaction Document), deliver to the
Borrower and the Administrative Agent (A) two duly completed copies of Form W-8ECI,
Form W-8BEN or Form W-8IMY, or successor applicable forms, as the
case may be, and (B) an IRS Form W-9, or successor applicable form,
as the case may be; and


deliver
to the Borrower and the Administrative Agent two (2) further copies of any
such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower and the Administrative Agent;


 


Each such Affected Person so organized shall certify (a) in
the case of a Form W-8ECI, Form W-8BEN or Form W-8IMY, that it
is entitled to receive payments under the this Agreement and the other
Transaction Documents without deduction or withholding of any United States
federal income taxes and (b) in the case of an IRS Form W-9, that it
is entitled to a complete exemption from United States backup withholding
tax.  Each Person that desires to become
an additional party to a Support Facility, shall, prior to the effectiveness of
such addition, be required to provide all of the forms and certifications
required pursuant to this Section 5.1(c) unless such Person
has previously delivered such forms in its capacity as a party to a Transaction
Document and such forms have not expired or become obsolete.  Failure of any Affected Person to comply with
this clause (c) shall result in the Borrower having no obligation to
gross-up for Taxes pursuant to clause (b) of this Section.


 


Application of Certain Payments.  Each
payment of principal of the Advances shall be applied to such Advances as the
Borrower shall direct or, in the absence of such direction or during the
existence of a Facility Termination Event or after the Facility Termination
Date, as the Required Lenders shall determine, in their discretion.


 


Due Date Extension.  If any
payment of principal or Yield with respect to any Advance falls due on a day
which is not a Business Day, then such due date shall be extended to the next
following Business Day, and additional Yield and Fees shall accrue and be
payable for the period of such extension at the rate applicable to such
Advance.


 


INCREASED COSTS, ETC.


 


Increased Costs.  If due to
the introduction of or any change in or in the interpretation of any law or
regulation occurring or issued after the date hereof, any Lender or other
Investor, any Support Party, or any Person controlling any thereof (each an “Affected
Person”) determines that compliance with any law or regulation or any
guideline or request from any central bank or other Official Body (whether or
not having the force of law) shall impose, modify or deem applicable any
reserve requirement imposed by the Board of Governors of the Federal Reserve
System (but excluding any reserve requirement, if any, included on the determination
of Yield), special deposit or similar requirements against assets of, deposits
with or for the account of, or credit extended by such Affected Party, and the
result of any of the foregoing is to increase the amount of capital required or
expected to be maintained by such Affected Person and such Affected Person
determines that the amount of such capital is increased by or based upon the
existence of its obligations or Commitments hereunder or with respect hereto or
to the funding thereof (other than any increase in cost resulting solely from a
consolidation event described in Section 3.3(b)


 


10





















 


but only if the Borrower is liable for the
payment of the increased rate of interest under such Section 3.3(b)),
then, upon demand by such Affected Person (with a copy to the
Administrative Agent) (which demand shall be accompanied by a statement setting
forth in reasonable detail the basis for the determination that the increase in
capital is allocable to the existence of its obligations or Commitments
hereunder and, in reasonable detail, the calculations of the amount being
claimed), the Borrower agrees to pay to the Administrative Agent, for the
account of such Affected Person (as a third-party beneficiary), on the
Distribution Date following the date on which such Affected Person provides
notice of such event to the Borrower and the Servicer (provided that such
notice is accompanied by the statement described above in this Section 6.1
and is delivered on or prior to the fifth Business Day prior to such
Distribution Date and otherwise on the Distribution Date following such
Distribution Date), subject to and in accordance with the priorities set forth
in Section 9.5, additional amounts sufficient to compensate such
Affected Person in the light of such circumstances, to the extent that such
Affected Person reasonably determines such increase in capital to be allocable
to the existence of any of such obligations, commitments or fundings.  The calculations set forth in such written
statement shall, in the absence of manifest error, be rebuttably presumptive
evidence of the subject matter thereof. 
Any Affected Person claiming any additional amounts payable pursuant to
this Section 6.1 agrees to use reasonable efforts (consistent with
legal and regulatory restrictions) to designate a different office or branch of
such Affected Person as its lending office or take such other actions if the
making of such a designation or taking of such other actions would avoid the
need for, or reduce the amount of, any such additional amounts and would not,
in the reasonable judgment of such Affected Person, be otherwise
disadvantageous to such Affected Person.


 


Funding Losses.  The
Borrower hereby agrees that upon demand by any Affected Person (which demand
shall be accompanied by a statement setting forth in reasonable detail the
basis for the calculations of the amount being claimed) it will indemnify such
Affected Person against any net loss or expense which such Affected Person or
incurs (including, without limitation, any net loss or expense incurred by
reason of or resulting from interest to accrue on the related commercial paper
after the date of any failed borrowing, payment or prepayment of an Advance or
from the termination of related hedging arrangements, the liquidation or
reemployment of deposits or other funds acquired by such Affected Person to
fund or maintain any Advance to the Borrower), as reasonably determined by such
Affected Person, as a result of any failure by the Borrower to borrow an
Advance on the date specified therefor in an Advance Request (other than due to
a default by a Lender) or as a result of any payment or prepayment (including
any mandatory prepayment) of any Advance on a date other than the last day of
the Fixed Period for such Advance.  The
calculations set forth in such written statement shall, in the absence of
manifest error, be rebuttably presumptive evidence of the subject matter
thereof.


 


Replacement of Affected Person.  Upon the
receipt by the Borrower of a claim for reimbursement or compensation under Section 6.1
hereof by an Affected Person, if payment thereof shall not be waived by such
Affected Person, or upon receipt of notice pursuant to Section 3.3(a)(ii) from
any Noncommitted Lender or upon receipt by the Borrower of any notice by a
Lender pursuant to Section 3.3(b), the Borrower may (a) request such
Affected Person or the Lender that has assigned an interest in its Advances to
such Affected Person to use reasonable efforts to assist the Borrower in its
attempt to obtain a replacement bank, financial institution or Structured
Lender, as applicable, satisfactory to the Borrower (in the case of a
replacement Lender), to acquire and assume all or a ratable part of such
Affected Person’s Commitment, or (b) request one or more of the other
Lenders or Investors to acquire and assume all or a part of such Affected
Person’s Commitment.  Upon notice from
the Borrower, such Affected Person shall, or the Lender that has assigned an
interest in its Advances to such Affected Person shall cause such Affected
Person to, assign, without recourse, its commitment to make Advances, its
outstanding Advances or interests therein and its other rights and obligations
(if any) hereunder, or a ratable share thereof, to the replacement bank,
financial institution or Structured Lender designated by the Borrower and
consented to by the Administrative Agent (such consent not to be unreasonably
withheld or delayed) for a purchase price equal to the sum of the principal
amount of the Advances or interests therein so assigned, all accrued and unpaid
Yield thereon and any other amounts (including Fees and any amounts owing under
this Article VI) to which such Affected Person is entitled
hereunder; provided, that the Borrower shall provide such Affected
Person with an Officer’s Certificate of CAR stating that such replacement bank,
financial institution or Structured Lender has advised the Borrower that it is
not subject to, or has agreed not to seek, such increased amount.


 


EFFECTIVENESS; CONDITIONS TO ADVANCES


 


Effectiveness.  This
Agreement shall become effective on the first day (the “Effective Date”)
on which the Administrative Agent, on behalf of the Agents and the Lenders,
shall have received the following, each in form and substance satisfactory to
each Agent:


 


11





















 


Agreement.  This Agreement executed by each party
thereto;


 


Notes.  For each Lender Group, a Note duly completed
and executed by the Borrower and payable to the Agent for such Lender Group;


 


Fee
Letter.  The Fee Letter, duly executed
and delivered by the parties thereto, and evidence that all amounts required to
be paid on the Effective Date thereunder shall have been paid;


 


Transaction
Documents.  Executed counterparts of each
of the other Transaction Documents, the Backup Servicer Fee Letter and the
Collateral Agent Fee Letter, duly executed by each of the parties thereto; 


 


Resolutions.  A copy of the resolutions of the Board of
Directors (or similar items) of each of the Borrower, the Servicer and the
Seller approving the Transaction Documents to be delivered by it hereunder and
the transactions contemplated hereby, certified by its Secretary or Assistant
Secretary;  


 


Charters.  The Articles of Incorporation or certificate
of organization of each of the Borrower, the Servicer and the Seller certified
by the Secretary of State of its jurisdiction of organization; and a certified
copy of the Borrower’s, the Servicer’s and the Seller’s by-laws, limited
liability company agreement or the equivalent; 



 


Good
Standing Certificates.  Good Standing
Certificates for each of the Borrower, the Seller, and the Servicer issued by
the applicable Official Body of its jurisdiction of organization; 


 


Incumbency.  A certificate of the Secretary or Assistant
Secretary of each of the Borrower, the Servicer and the Seller certifying the
names and true signatures of the officers authorized on its behalf to sign this
Agreement and the other Transaction Documents to be delivered by it;  


 


Filings.  Acknowledgment copies of proper Financing
Statements, as may be necessary under the UCC of all appropriate jurisdictions
or any comparable law to perfect the security interest of the Collateral Agent
on behalf of the Secured Parties in all Borrower Collateral in which an
interest may be pledged hereunder;  


 


Searches.  Copies of UCC financing statement lien
searches certified by a party reasonably acceptable to each Agent), dated a
date reasonably near to the date of the initial Advance, listing all effective
financing statements which name the Borrower or CAR (under their respective
present names and any previous names) as debtor and which are filed in the
jurisdictions in which filings were made pursuant to Section 7.1(i),
together with copies of such financing statements;  


 


12





















 


Opinions.  Legal opinions of counsel for the Collateral
Agent and the Backup Servicer in form and substance reasonably satisfactory to
the Administrative Agent covering such matters as the Administrative Agent
shall reasonably request, and legal opinions of Troutman Sanders LLP, special
counsel for the Borrower, CCRT, CAR and CAR Servicing, as to (i) the true
sale of the Dealer Transaction Rights conveyed pursuant to the Sale and
Servicing Agreement, (ii) UCC creation, perfection and, where appropriate,
priority opinions as to the security interest in Dealer Transaction Rights (and
assuming such right constitutes a “payment intangible” under the UCC) and in
the Borrower Collateral, to the extent a security interest in such Collateral
can be perfected by the filing of a financing statement under the UCC as in
effect in the State of Georgia or Nevada, as applicable, (iii) enforceability
of the Sale and Servicing Agreement against the Borrower, CAR and CAR
Servicing, and of this Agreement and the related Transaction Documents against
the Borrower, CAR, CAR Servicing and CCRT, (iv) non-consolidation under
federal bankruptcy law as to the Borrower, on the one hand, and CCRT, CAR, CARS
Acquisition and CAR Servicing, on the other hand and(v) general corporate
matters, each in form and substance reasonably satisfactory to the
Administrative Agent;  


 


Commercial
Paper Ratings.  Evidence reasonably
satisfactory to each initial Lender (e.g. ratings letters) that is a Structured
Lender that its acquisition of Notes and the making of Advances hereunder will
not result in a reduction or withdrawal of the rating of its commercial paper
notes by Moody’s, Standard & Poor’s or any other nationally recognized
rating agency rating its commercial paper notes; 


 


Transition
Servicing Agreement.  A transition
servicing agreement among Wells Fargo Financial America, Inc., the
Predecessors in Interest and CARS Acquisition in form and substance acceptable
to the Administrative Agent; 


 


Payment of
Fees.  Evidence that all fees payable on
or prior to the Effective Date pursuant to the Fee Letter have been paid in
full; and


 


PATRIOT
Act.  All satisfactory information deemed
necessary or desirable by the Administrative Agent with respect to the
Borrower, CAR, the Servicer and CCRT in order for the Administrative Agent, the
Agents and the Lenders to comply fully with their obligations under law,
including without limitation, under the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, also known as the USA PATRIOT Act, as amended from time to time
(including all regulations promulgated thereunder).


 


All Advances.  The making
of each Advance (including the initial Advance) is subject to the condition
that the Effective Date shall have occurred and to the following further
conditions precedent that:


 


13





















 


No
Facility Termination Event, etc.  Each of
the Transaction Documents shall be in full force and effect and (i) no
Facility Termination Event or Unmatured Facility Termination Event has occurred
and is continuing or will result from the making of such Advance, (ii) the
representations and warranties of the Borrower, the Servicer and the Seller
contained herein are true and correct in all material respects as of the date
of such requested Advance, with the same effect as though made on the date of
(and after giving effect to) such Advance (except to the extent (A) such
representation and warranties specifically relate to an earlier date or (B) such
representations and warranties become untrue by reason of events or conditions
otherwise permitted under the Transaction Documents), (iii) after giving effect
to such Advance, the aggregate outstanding principal balance of the Advances
hereunder will not exceed the lesser of the Facility Limit and the Borrowing
Base and (iv) the Backup Servicer shall not have been appointed as
successor Servicer;  


 


Advance
Request, etc.  The Administrative Agent
shall have received the Advance Request for such Advance (including a
certification that the conditions described in subsections 7.2(a) through
7.2(h) have been satisfied with respect thereto) in accordance with Section 2.2,
together with all items required to be delivered in connection therewith;


 


Facility
Termination Date.  The Facility
Termination Date shall not have occurred;


 


Minimum
Advance Amount.  The amount of such
Advance is not less than $1,000,000;


 


Custodial
Receipt.  The Administrative Agent and
the Collateral Agent shall have received a duly completed and executed
Custodial Receipt in respect of each Transferred Receivable identified in the
related Schedule of Contracts or Schedule of Subsequent Contracts, as
the case may be, if any, delivered since the date of the prior Advance;


 


Borrowing
Base Confirmation.  The Administrative
Agent shall have received an Officer’s Certificate dated the date of such
requested Advance certifying the Borrowing Base in the form attached hereto as Exhibit C
(a “Borrowing Base Confirmation”), computed as of the date of such Advance and
after giving effect thereto and to the purchase by the Borrower of any Dealer
Transaction Rights to be purchased by it under the Sale and Servicing Agreement
on such date, demonstrating that the aggregate principal amount of all Advances
shall not exceed the Borrowing Base;


 


Interest
Rate Caps; Cap Funding Reserve Account. 
The Administrative Agent shall have received evidence, in form and substance
satisfactory to the Required Lenders, that the Borrower has arranged for the
Collateral Agent to enter into Interest Rate Caps to the extent required by,
and satisfying the requirements of, Section 11.6; and after giving effect
to the Advance, to the transfer of Receivables and Dealer Transaction Rights
from the Seller to the Borrower on the date of such Advance and the application
of the proceeds thereof in accordance with Section 2.3, the amount on
deposit in the Cap Funding Reserve Account is not less than the Cap Funding
Reserve Account Requirement, if any; and


 


Net
Spread.  Net Spread shall be *** or more
after giving effect to the Advance, to the transfer of Dealer Transaction
Rights from the Seller to the Borrower on the date of such Advance and the
application of the proceeds thereof in accordance with Section 2.3.


 


14





















 


No
Lender which is a Structured Lender shall make any Advance unless such Lender’s
Support Facilities are in full force and effect.  If any such Structured Lender’s Support
Facilities are not in full force and effect, the Committed Lenders for such
Structured Lender shall make such Advance so long as the conditions to such
Advance in this Section 7.2 are satisfied.


 


15





















 


ADMINISTRATION AND SERVICING OF RECEIVABLES


 


Duties of the Servicer.  The
Servicer shall manage, service, administer and make collections on the
Transferred Receivables and perform the other actions required by the Servicer
under the terms and provisions of the Sale and Servicing Agreement and this
Agreement.


 


Representations and Warranties of the
Servicer.  The Servicer (so long as CAR, CAR Servicing
or an Affiliate of CAR is the Servicer) represents, warrants and covenants as
of the Effective Date and as of the date of each Advance as to itself:


 


Organization
and Good Standing.  It has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of its jurisdiction of organization, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and had at all
relevant times; 


 


Due
Qualification.  It is duly qualified to
do business as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in all jurisdictions where the
failure to do so would have a Material Adverse Effect with respect to the
Servicer; 


 


Power and
Authority.  It has the power and
authority to execute and deliver this Agreement and the other Transaction
Documents to which it is a party and to perform its obligations hereunder and
thereunder; and the execution, delivery and performance of this Agreement and
the Transaction Documents to which it is a party have been duly authorized by
the Servicer by all necessary corporate action; 


 


Binding
Obligation.  This Agreement and the
Transaction Documents to which it is a party (in any capacity) have been
executed and delivered by the Servicer and constitute its legal, valid and
binding obligations enforceable in all material respects in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors’ rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law; 


 


No
Violation.  The execution, delivery and
performance of this Agreement and the Transaction Documents to which it is a
party, the consummation of the transactions contemplated thereby and the
fulfillment of the terms thereof do not (A) conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, its articles of organization or
operating agreement, or any indenture, agreement, mortgage, deed of trust or
other instrument to which it is a party or by which it or its properties are
bound, (B) result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement and the
other Transaction Documents, or (c) violate any law, order, rule or
regulation applicable to it of any Official Body having jurisdiction over it or
any of its properties; 


 


16





















 


No
Proceedings.  There are no proceedings or
investigations pending or, to its knowledge, threatened against it, before any
Official Body having jurisdiction over it or its properties (A) asserting
the invalidity of any of the Transaction Documents, (B) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions
contemplated by the Transaction Documents, (C) seeking any determination
or ruling that would have a Material Adverse Effect with respect to the
Servicer, (D) that would have a material adverse effect on the Borrower
Collateral, or (E) seeking to materially and adversely affect the federal
income tax or other federal, state or local tax attributes of the Notes or
seeking to impose any excise, franchise, transfer or similar tax upon the Notes
or the sale and assignment of the Transferred Receivables or Transferred Dealer
Transaction Rights hereunder; 


 


No
Consents.  No consent, license, approval,
authorization or order of, or registration, declaration or filing with, any
Official Body or other Person is required to be made in connection with the
execution, delivery or performance of this Agreement and the Transaction
Documents to which it is a party (in any capacity) or the consummation of the
transactions contemplated thereby, except such as have been duly made, effected
or obtained or to the extent the failure to obtain any such consent, license,
approval, authorization or order, or to make any registration, declaration or
filing would not have a Material Adverse Effect with respect to the Servicer; 


 


Taxes; ERISA.  The Servicer has filed on a timely basis all
tax returns (including, without limitation, foreign, federal, state, local and
otherwise) required to be filed, is not liable for taxes payable by any other
Person and has paid or made adequate provisions for the payment of all taxes,
assessments and other governmental charges due from the Servicer.  No tax lien or similar adverse claim has been
filed, and no claim is being asserted, with respect to any such tax, assessment
or other governmental charge.  Any taxes,
fees and other governmental charges payable by the Servicer in connection with
the execution and delivery of this Agreement and the other Transaction
Documents and the transactions contemplated hereby or thereby have been paid or
shall have been paid if and when due. 
Each benefit plan, if any, of the Servicer that is a “defined benefit”
plan as defined in Section 3(35) of ERISA is in compliance in all material
respects with ERISA and there is no Lien of the Pension Benefit Guaranty
Corporation on any of the Borrower Collateral; 


 


Investment
Company Status.  It is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or is exempt from all provisions of such Act; 


 


Information
True and Complete.  All information
heretofore or hereafter furnished by or on behalf of the Servicer in writing to
the Borrower, any Lender, any Agent or the Administrative Agent in connection
with this Agreement or any transaction contemplated hereby is and will be, in
each case as of the date furnished or such other date(s) as to be specified in
the information furnished, true and complete in all material respects and does
not and will not, in each case as of the date furnished or such other date(s)
as to be specified in the information furnished, omit to state a material fact
necessary to make the statements contained therein not misleading; and


 


17





















 


Other
Documents.  The representations and
warranties made by it in each of the other Transaction Documents to which it is
a party are true and correct in all material respects as of the date(s) made. 


 


Intentionally Omitted.


 


Servicing Fee; Payment of Certain Expenses by
Servicer; Backup Servicer Fee.  On each
Distribution Date, the Servicer shall be entitled to receive out of the
Collection Account the Servicing Fee – Senior and the Servicing Fee –
Subordinate for the related Collection Period pursuant to Section 9.5.
The Servicer shall be required to pay all expenses incurred by it in connection
with its activities under this Agreement and the Sale and Servicing Agreement; provided,
however, that if the Backup Servicer shall have become the successor
Servicer, the Servicer shall be entitled to reimbursement of its expenses as
specified in the Backup Servicer Fee Letter and Section 9.5.  On each Distribution Date, the Backup
Servicer shall be entitled to receive out of the Collection Account the Backup
Servicer Fee for the related Collection Period pursuant to Section 9.5.


 


Distribution Date Statement.  No later
than 2:00 p.m., New York City time, on each Determination Date, the
Servicer shall deliver to the Administrative Agent, the Collateral Agent and
the Backup Servicer a Distribution Date Statement executed by a Responsible
Officer of the Servicer.  The parties
hereto acknowledge that the basis for calculating Yield on the Advances may
change between the date the Servicer delivers a Distribution Date Statement and
the related Distribution Date and that the amount the Servicer sets forth in a
Distribution Date Statement as Yield accrued on the Advances as of the related
Distribution Date is its good faith estimate of such Yield; in the event of any
change in calculating Yield during such period of time, the parties agree to
use reasonable efforts to revise the Distribution Date Statement on or prior to
such Distribution Date to reflect such changes, provided that if such
revisions are not made by such time, then appropriate corrections shall be made
on the next Distribution Date.


 


Annual Statement as to Compliance; Notice of
Servicer Default.


 


The
Servicer shall deliver to the Administrative Agent and the Collateral Agent on
or before April 30 (or 120 days after the end of the Servicer’s fiscal
year, if other than December 31) of each year, beginning on April 30,
2006, an officer’s certificate signed by any Responsible Officer of the
Servicer, dated as of the preceding December 31 (or other applicable
date), stating that (i) a review of the activities of the Servicer during
the preceding 12-month period (or such other period as shall have elapsed from
the Effective Date to the date of the first such certificate) and of its
performance under this Agreement and the Sale and Servicing Agreement has been
made under such officer’s supervision, and (ii) to such officer’s
knowledge, based on such review, the Servicer substantially has fulfilled all
its obligations under this Agreement and the Sale and Servicing Agreement
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof.


 


The
Servicer shall deliver to Administrative Agent, the Collateral Agent, the
Custodian (if other than CAR) and the Backup Servicer, promptly after having
obtained knowledge thereof, but in no event later than two Business Days
thereafter, written notice in an Officers’ Certificate of any event that, with
the giving of notice or lapse of time, would become a Servicer Default, Event
of Default or a Facility Termination Event.


 


Quarterly Independent Accountants’ Report.  8.  The Servicer shall cause BDO Siedman LLP or
other firm of nationally recognized independent certified public accountants
(the “Independent Accountants”), who may also render other services to
CCRT, CAR, the Servicer or the Seller, to deliver to the Administrative Agent,
on or before April 30, July 31, October 31 and January 31
of each year, beginning on July 31, 2005, with respect to the fiscal
quarter ended one month previously (or such other period as shall have elapsed
from the Effective Date to the date of such certificate), a statement (the “Accountants’
Report”) addressed to the Administrative Agent to the effect that (1) the
firm is independent of CCRT, CAR, the Seller and the Servicer within the
meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants, and (2) included therein is a report on the
results of the application of agreed upon procedures acceptable to the Required
Lenders (such procedures to be substantially similar to those set forth in the
Field Examination Report dated August 25, 2004 prepared for


 


18





















 


DBNY by Evergreen Collateral Consulting, LLC
prior to the occurrence and continuation of a Facility Termination Event) to (A) a
randomly selected Distribution Date Statement including the delinquency,
default and loss statistics required to be specified therein noting whether any
exceptions or errors in the Distribution Date Statements were found and (B) a
statistically significant number of randomly selected Contract Files.  If, in its sole discretion, the
Administrative Agent at any time agrees that the Servicer need only provide an
Accountant’s Report on annual basis, such statement will contain a report on
four randomly selected Distribution Date Statements from the preceding
year.  Such report shall set forth the
agreed-upon procedures performed and will be made available to each of the
Administrative Agent,  Collateral Agent,
and the Back-Up Servicer upon each such party reaching agreement with the
Independent Accountants concerning any potential terms or conditions associated
with the report’s release.  In the event
that such Independent Accountants require the Administrative Agent to agree to
the procedures to be performed by such firm in any of the reports required to
be prepared pursuant to this Section 8.7, the Agents shall direct
the Administrative Agent in writing to so agree; it being understood and agreed
that the Administrative Agent will deliver such letter of agreement in
conclusive reliance upon the written direction of the Agents, and the
Administrative Agent has not made any independent inquiry or investigation as
to, and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures. 
Notwithstanding the foregoing, if WFB shall become the successor
Servicer, such report (A) shall relate only to the Contracts and WFB’s
servicing of the Contracts, (B) the fees and expenses of WFB associated
therewith shall be reimbursable, and (C) the independence of the
accountants shall be only with respect to WFB and its Affiliates.


 


The Servicer shall promptly deliver to each Agent a copy of the
accountants’ letter delivered in connection with each Take-Out Securitization.


 


Access to Certain Documentation and
Information Regarding Contracts.  


 


The
Servicer shall permit representatives of the Administrative Agent, each Agent,
the Backup Servicer, the Collateral Agent and the Custodian at any time and
from time to time, but, so long as no Event of Default has occurred and is
continuing, no more than two times per year, during normal business hours as
the Administrative Agent, such Agent, the Backup Servicer, the Collateral Agent
and the Custodian shall reasonably request, (a) to inspect and make copies
of and abstracts from its records relating to the Transferred Receivables and
Transferred Dealer Transaction Rights, and (b) to visit its properties in
connection with the collection, processing or servicing of the Transferred
Receivables and Transferred Dealer Transaction Rights for the purpose of
examining such records, and to discuss matters relating to the Transferred
Receivables and Transferred Dealer Transaction Rights or such Person’s performance
under this Agreement and the other Transaction Documents with any officer or
employee of such Person having knowledge of such matters.  In each case, such access shall be afforded
without charge.  In connection with any
inspection, the Administrative Agent, any Agent, the Backup Servicer, the
Collateral Agent and the Custodian may institute procedures to permit it to
confirm the Obligor balances in respect of any Transferred Receivables or
Transferred Dealer Transaction Rights. 
The Servicer agrees to render to the Administrative Agent, each Agent,
the Backup Servicer, the Collateral Agent and the Custodian such clerical and
other assistance as may be reasonably requested with regard to the
foregoing.  Nothing in this Section 8.8
shall derogate from the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the
failure of any of them to provide access as a result of such obligation shall
not constitute a breach of this Section 8.8.


 


The Servicer shall make arrangements for the
prompt and safe transfer of, and the Servicer shall provide to the Backup
Servicer, all necessary servicing files and records, including (as deemed
necessary by the Backup Servicer at such time): 
(A) account documentation, (B) servicing system tapes (in a
format reasonably acceptable to the Backup Servicer), (C) account payment
history, (D) collections history and (E) the trial balances, in each
case reflecting all applicable loan information, as of the following dates: (1) on
an annual basis commencing December 31, 2005, (2) following the
occurrence and during the continuation of a Facility Termination Event under Section 14.1,
monthly, and (3) on the close of business on the day immediately preceding
the day on which the Backup Servicer becomes the successor Servicer.


 


19





















 


Certain Duties of Backup Servicer.


 


On or
before each Determination Date, the Servicer shall deliver to the
Administrative Agent and the Backup Servicer a computer tape or a diskette or
any other electronic transmission in a format reasonably acceptable to the
Administrative Agent and the Backup Servicer containing the information with
respect to the Transferred Receivables and Transferred Dealer Transaction
Rights as of the related Accounting Date necessary for preparation of the
Distribution Date Statement relating to such Determination Date.


 


Prior to
each such Distribution Date, the Backup Servicer shall use such tape or
diskette (or other means of electronic transmission reasonably acceptable to
the Administrative Agent and the Backup Servicer) and review the related
Distribution Date Statement in order to perform the following:


 


confirm that the Distribution Date Statement is
complete on its face or note any discrepancies;


 


verify the Aggregate Outstanding Principal Balance of
the Transferred Receivables, the Delinquency Ratio, and the Charge-Off Ratio;
and


 


review the mathematical accuracy of any information
relating to the Collateral on the face of the Distribution Date Statement or
note any discrepancies.


 


20





















 


In the
event of any discrepancy between the information set forth in (ii) or (iii) in
clause (b) above as calculated by the Servicer from that determined or
calculated by the Backup Servicer, the Backup Servicer shall promptly report
such discrepancy to the Servicer and the Administrative Agent.  In the event of a discrepancy as described in
the preceding sentence, the Servicer and the Backup Servicer shall attempt to
reconcile such discrepancies prior to the related Distribution Date, but in the
absence of a reconciliation, distributions on the related Distribution Date
shall be made by the Administrative Agent consistent with the information
provided by the Servicer and the Servicer and the Backup Servicer shall attempt
to reconcile such discrepancies prior to the next Determination Date.  If the Backup Servicer and the Servicer are
unable to reconcile discrepancies with respect to such Distribution Date
Statement by the next Determination Date, the Servicer shall cause the
Independent Accountants, at the Servicer’s expense, to examine the Distribution
Date Statement and attempt to reconcile the discrepancies at the earliest
possible date.  The effect, if any, of
such reconciliation shall be reflected in the Distribution Date Statement for
such next succeeding Determination Date.


 


Other than
the duties specifically set forth in this Agreement, the Backup Servicer shall
have no obligations hereunder, including to supervise, verify, monitor or
administer the performance of the Servicer. 
The Backup Servicer shall have no liability for any actions taken or
omitted by the Servicer, except for the express duties of the Backup Servicer
set forth herein.  The Backup Servicer
shall have no liability for any obligation of the Servicer or for any error
contained in any certificate, notice or data prepared by the Servicer (whether
or not verified by the Backup Servicer), such obligations being solely the
obligations of the Servicer.


 


Upon
appointment of the Backup Servicer as the successor Servicer, its obligations
as Backup Servicer shall terminate.


 


Consequences of a Servicer Default.  If a
Servicer Default shall occur and be continuing, the Administrative Agent,
acting at the direction of the Required Lenders, by written notice given to the
Servicer, may terminate all of the rights and obligations of the Servicer
pursuant to the terms of the Sale and Servicing Agreement and appoint a
successor pursuant to the terms thereof. 
In addition, upon the occurrence of a Servicer Default, the Servicer
shall, if so requested by the Administrative Agent, acting at the direction of
the Required Lenders, deliver to the Backup Servicer its Monthly Records within
two Business Days after demand therefor and a computer tape or diskette (or any
other means of electronic transmission reasonably acceptable to the Backup
Servicer) containing as of the close of business on the date of demand all of
the data maintained by the Servicer in computer format in connection with
servicing the Transferred Receivables and the Transferred Dealer Transaction
Rights.


 


Appointment of Backup Servicer as Successor
Servicer.  On and after the termination of the Servicer
pursuant to Section 8.10, the Backup Servicer (or any other
successor Servicer appointed by the Administrative Agent) shall be the
successor in all respects to the Servicer in its capacity as Servicer under
this Agreement and the Sale and Servicing Agreement and the transactions set
forth or provided for in this Agreement and the Sale and Servicing Agreement
and shall be subject to all the rights, responsibilities, restrictions, duties,
liabilities and termination provisions relating thereto placed on the Servicer
by the terms and provisions of this Agreement and the Sale and Servicing
Agreement.


 


Upon the notice to WFB that it shall be appointed
successor Servicer, WFB shall develop a reasonable transition plan and shall be
granted a reasonable period of time, which shall not exceed 90 days, to
implement such plan and assume the obligations of the Servicer and the
servicing of the Transferred Receivables and Transferred Dealer Transaction
Rights in accordance with its customary servicing procedures, including a
reasonable period of time to hire required personnel, load and configure the
necessary information onto its computer systems, establish necessary cash
management procedures, locate and contact the Obligors to redirect 


 


21





















 


payments, and any other transition related item
required or reasonably necessary to perform its obligations as Servicer or
subservicer.


 


WFB shall service the Transferred Receivables and
Transferred Dealer Transaction Rights in its own name from centralized locations
using its own personnel and properties and shall have no liability arising from
or responsibility for the personnel or properties of any other or predecessor
Servicer.  All powers, rights and
authorities granted to the Servicer are hereby granted to WFB and each of its
Affiliates and agents as are necessary, appropriate or convenient to perform
its functions as Servicer or subservicer. 
If WFB shall be a subservicer, the Servicer shall deliver to WFB copies
of all information delivered to or by it in its capacity as Servicer, and WFB’s
obligations and liabilities shall be solely to the Servicer and not to any
other party or Person.  Any provision of
this Agreement or the Sale and Servicing Agreement requiring WFB to use best
efforts shall require only reasonable efforts with respect thereto.


 


After termination of the Servicer pursuant to Section 8.10,
if requested by the Collateral Agent, the Backup Servicer or successor Servicer
shall terminate each Lockbox Agreement and direct the Obligors to make all
payments under the Receivables Collateral directly to the successor Servicer or
to a lockbox established by the successor Servicer at the direction of the
Collateral Agent, at the prior Servicer’s expense.


 


In the event that WFB is appointed successor Servicer,
if (a) WFB is later removed as Servicer other than due to a Servicer
Default with respect to WFB that has occurred and is continuing or (b) all
or substantially all of the Contracts are sold in connection with an Event of
Default, WFB shall be entitled to a termination fee, immediately payable in
cash as part of the Servicing Fee – Subordinate, in an amount equal to two
times the average monthly fees of WFB over the preceding four Collection
Periods.


 


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Indemnification of Backup Servicer.  Without
limiting any other rights which the Backup Servicer may have hereunder or under
applicable law, the Borrower agrees to indemnify the Backup Servicer, including
in its capacity as successor Servicer, and each of its successors, and assigns,
from and against any and all damages, losses, claims, liabilities and related
costs and expenses, including reasonable attorneys’ fees and disbursements
awarded against or incurred by any of them arising out of or relating to any
Transaction Document or the transactions contemplated thereby or the use of
proceeds therefrom by the Borrower, the Seller or CAR, except (a) damages,
losses, claims, liabilities, costs and expenses payable to such Person to the
extent determined by a court of competent jurisdiction to have resulted from
gross negligence or willful misconduct on the part of any such Person or its
agent or subcontractor; and (b) any tax upon or measured by the net income
on any such Person.


 


Delegation of Duties.  The
Servicer, including the Backup Servicer as successor Servicer, may at any time
appoint a subservicer or subcontractor to perform all or any portion of its
obligations as Servicer hereunder; provided that the Servicer shall be
obligated and be liable for the performance of such obligations in accordance
with the provisions of this Agreement without diminution of such obligations by
virtue of the appointment of such subservicer or subcontractor to the same
extent as if the Servicer were alone performing such obligations.


 


ACCOUNTS; PAYMENTS


 


Borrower Accounts.


 


On or
prior to the Effective Date, the Servicer shall establish the Collection
Account and the Cap Funding Reserve Account each in the name of the Collateral
Agent for the benefit of the Secured Parties. 
The Collection Account and the Cap Funding Reserve Account shall each be
an Eligible Account which is a segregated trust account initially established
with the Collateral Agent.  If at any
time the Collection Account or the Cap Funding Reserve Account ceases to be an
Eligible Account, the Collateral Agent, at the written direction of the
Servicer, shall transfer such account to another institution such that such
account shall meet the requirements of an Eligible Account.


 


All
amounts held in the Collection Account and the Cap Funding Reserve Account
(collectively, the “Borrower Accounts”), shall, to the extent permitted by
applicable laws, rules and regulations, be invested by the Collateral
Agent, as directed by the Servicer (so long as CAR, CAR Servicing or an
Affiliate of CAR is the Servicer) in writing (or, if the Servicer fails to
provide such direction, amounts in the Collection Account shall be invested in
investments described in clause (f) of the definition of Permitted
Investments), in Permitted Investments that mature not later than one Business
Day prior to the Distribution Date for the Collection Period to which such
amounts relate.  Any such written
direction shall certify that any such investment is authorized by this Section 9.1.  Investments in Permitted Investments shall be
made in the name of the Collateral Agent on behalf of the Secured Parties and,
except as specifically required below, such investments shall not be sold or
disposed of prior to their maturity.  The
taxpayer identification number associated with each Borrower Account shall be
that of the Borrower and the Borrower shall report for Federal, state and local
income tax purposes, the income, if any, represented by each Borrower
Account.  If any amounts are needed for
disbursement from the Collection Account or the Cap Funding Reserve Account and
sufficient uninvested funds are not available therein to make such
disbursement, the Collateral Agent shall, at the written direction of the
Servicer, cause to be sold or otherwise converted to cash a sufficient amount
of the investments in such account to make such disbursement upon the written
direction of the Servicer (so long as CAR, CAR Servicing or an Affiliate of CAR
is the Servicer) or, if the Servicer shall fail to give such written direction,
DBNY.  


 


Subject to the
other provisions hereof, the Collateral Agent shall have sole control over each
such investment and the income thereon, and any certificate or other instrument



 


23





















 


evidencing any
such investment, if any, shall be delivered directly to the Collateral Agent or
its agent, together with each document of transfer, if any, necessary to
transfer title to such investment to the Collateral Agent in a manner that
complies with this Section 9.1. 
All interest, dividends, gains upon sale and other income from, or
earnings on, investments of funds in the Collection Account shall be deposited
in the Collection Account and distributed pursuant to Section 9.5.  All interest, dividends, gains upon sale and
other income from or earnings on, investments of funds in the Cap Funding
Reserve Account shall be deposited in the Collection Account and distributed
pursuant to Section 9.5.  If
the Collateral Agent is given instructions by the Servicer to invest funds in
any of the Borrower Accounts in investments other than investments of the type
described in clause (f) of the definition of “Permitted
Investments,” the Servicer agrees to assist the Administrative Agent in
complying with the requirements herein with respect to such investments.


 


Servicer Reimbursements.  The
Servicer shall be entitled to be reimbursed from amounts on deposit in, or to
be deposited in, the Collection Account with respect to a Collection Period for
amounts previously deposited in the Collection Account but later determined by
the Servicer to have resulted from mistaken deposits or postings or checks
returned for insufficient funds.  The
amount to be reimbursed hereunder shall be paid to the Servicer on or prior to
the related Distribution Date pursuant to Section 9.5(a)(iv).  Upon the request of the Administrative Agent
or any Agent, the Servicer shall certify any amount to be reimbursed hereunder
and shall supply such other information as may be necessary in the opinion of
the Administrative Agent to verify the accuracy of such certification.  The Administrative Agent shall not be under
any obligation to make the request described in the immediately preceding
sentence.


 


Application of Collections.  With
respect to each Transferred Receivable or Transferred Dealer Transaction Right,
payments by or on behalf of the Obligor shall be applied to interest and
principal thereof to reduce the balance thereof in accordance with the terms of
such Transferred Receivable or Transferred Dealer Transaction Right and Section 5.02
of the Sale and Servicing Agreement.


 


Additional Deposits.  On or
before each Determination Date, the Servicer (so long as CAR, CAR Servicing or
an Affiliate of CAR is the Servicer) or the Borrower, as applicable, shall
deposit into the Collection Account the aggregate Repurchase Amounts with
respect to Repurchased Receivables or Repurchased Dealer Transaction
Rights.  All such deposits of Repurchase
Amounts shall be made in immediately available funds.  Upon receipt, the Collateral Agent shall
remit to the Collection Account any amounts paid by a counterparty under any
Interest Rate Cap.


 


Distributions.


 


On
each Distribution Date prior to the occurrence and continuation of a
Termination Event or an Event of Default, the Collateral Agent shall
distribute, at the written direction of the Servicer, from the Collection
Account, in accordance with the applicable Distribution Date Statement provided
by the Servicer, the Amount Available for such Distribution Date in the
following order of priority:  


 


FIRST, from the Amount
Available, to the extent not previously paid by CAR or otherwise by or on
behalf of the Borrower, to the Backup Servicer, any accrued and unpaid fees and
expenses pursuant to the Backup Servicer Fee Letter, which expenses shall not
exceed the amount of the Capped Fees/Expenses – Backup Servicer;


 


SECOND, from the
remaining Amount Available, to the extent not previously paid by CAR or
otherwise by or on behalf of the Borrower, to the Administrative Agent, any
accrued and unpaid fees, if any, and expenses (including those of its legal
counsel) for the related Collection Period pursuant to the Administrative Agent
Fee Letter, which expenses shall not exceed the amount of the Capped
Fees/Expenses –Administrative Agent and to the Collateral Agent, any accrued
and 


 


24





















 


unpaid fees and expenses
(including those of its legal counsel) for the related Collection Period
pursuant to the Collateral Agent Fee Letter, which expenses shall not exceed
the amount of the Capped Fees/Expenses –Collateral Agent;


 


THIRD, from the remaining
Amount Available, if the Custodian is not CAR or an Affiliate of CAR, to the
extent not previously paid by CAR or otherwise by or on behalf of the Borrower,
to the Custodian, any accrued and unpaid fees and expenses (including those of
its legal counsel) for the related Collection Period pursuant to the Custodian
Fee Letter, which expenses shall not exceed the amount of the Capped Fees/Expenses
– Custodian;


 


FOURTH, from the
remaining Amount Available, to the Servicer, any accrued and unpaid Servicing
Fees — Senior, and any transition expenses payable to a successor Servicer
pursuant to the Sale and Servicing Agreement to the extent not paid by the
predecessor Servicer, provided, that such transition expenses, including
travel, boarding fees, mailing costs, obligor letters (welcome and goodbye) and
document packaging and shipping, shall not exceed 200,000 in the aggregate and
the amounts specified in Section 9.2 to the extent the Servicer has
not reimbursed itself in respect of such amounts pursuant to Section 9.6;


 


FIFTH, from the remaining
Amount Available, to the Administrative Agent, on behalf of the Lenders, an
amount equal to Yield on the Advances accrued during the Accrual Period with
respect to such Distribution Date (and any Yield with respect to any prior
Accrual Period to the extent not paid on a prior Distribution Date), and the
Fees payable on such Distribution Date pursuant to the Fee Letter (and any Fees
due and not paid on a prior Distribution Date);


 


SIXTH, from the remaining
Amount Available, to the Administrative Agent, on behalf of the Lenders, to
repay pursuant to Section 2.6(b) the principal amount of
Advances in an amount equal to the excess, if any, of the then outstanding
principal amount of all Advances over the Borrowing Base with respect to such
Distribution Date;


 


SEVENTH, from the
remaining Amount Available, to the Servicer, any accrued and unpaid Servicing
Fees — Subordinate;


 


EIGHTH, from the
remaining Amount Available, to the Administrative Agent, for the benefit of
Affected Persons any Increased Costs and other unpaid amounts then due and
owing pursuant to Section 6.1; and


 


NINTH, from the remaining
Amount Available, to the Borrower.


 


On
each Distribution Date following the occurrence and continuation of a Facility
Termination Event or an Event of Default, the Collateral Agent shall distribute
from the Collection Account, in accordance with the applicable Distribution
Date Statement provided by the Servicer, the Amount Available for such
Distribution Date in the following order of priority:


 


FIRST, from the Amount
Available, to the extent not previously paid by CAR or otherwise by or on
behalf of the Borrower, to the Backup Servicer, any accrued and unpaid fees and
expenses pursuant to the Backup Servicer Fee Letter, which expenses shall not
exceed the amount of the Capped Fees/Expenses – Backup Servicer;


 


25





















 


SECOND, from the
remaining Amount Available, to the extent not previously paid by CAR or
otherwise by or on behalf of the Borrower, to the Administrative Agent, any
accrued and unpaid fees and expenses (including those of its legal counsel) for
the related Collection Period pursuant to the Administrative Agent Fee Letter,
which expenses shall not exceed the amount of the Capped Fees/Expenses –Administrative
Agent and to the Collateral Agent, any accrued and unpaid fees and expenses
(including those of its legal counsel) for the related Collection Period
pursuant to the Collateral Agent Fee Letter, which expenses shall not exceed
the amount of the Capped Fees/Expenses –Collateral Agent;


 


THIRD, from the remaining
Amount Available, if the Custodian is not CAR or an Affiliate of CAR, to the
extent not previously paid by CAR or otherwise by or on behalf of the Borrower,
to the Custodian, any accrued and unpaid fees and expenses (including those of
its legal counsel) for the related Collection Period pursuant to the Custodian
Fee Letter, which expenses shall not exceed the amount of the Capped
Fees/Expenses – Custodian;


 


FOURTH, from the
remaining Amount Available, to the Servicer, any accrued and unpaid Servicing
Fees — Senior, and any transition expenses payable to a successor Servicer
pursuant to the Sale and Servicing Agreement to the extent not paid by the
predecessor Servicer, provided, that such transition expenses, including
travel, boarding fees, mailing costs, obligor letters (welcome and goodbye) and
document packaging and shipping, shall not exceed $200,000 in the aggregate and
the amounts specified in Section 9.2 to the extent the Servicer has
not reimbursed itself in respect of such amounts pursuant to Section 9.6;;


 


FIFTH, from the remaining
Amount Available, to the Administrative Agent, on behalf of the Lenders, an
amount equal to Yield on the Advances accrued during the Accrual Period with
respect to such Distribution Date (and any Yield with respect to any prior
Accrual Period to the extent not paid on a prior Distribution Date), and the
Fees payable on such Distribution Date pursuant to the Fee Letter (and any Fees
due and not paid on a prior Distribution Date)


 


SIXTH, from the remaining Amount Available, to the
Administrative Agent on behalf of the Lenders, the principal amount of
outstanding Advances until such Advances are paid in full;


 


SEVENTH, from the
remaining Amount Available, to the Administrative Agent, for the benefit of
Affected Persons any Increased Costs and other unpaid amounts then due and
owing pursuant to Section 6.1;


 


EIGHTH, from the
remaining Amount Available, to the Servicer, any accrued and unpaid Servicing
Fees — Subordinate;


 


NINTH, from the remaining
Amount Available, to the Borrower.


 


On
each Interim Distribution Date, the Collateral Agent shall, at the written
direction of the Servicer (so
long as CAR, CAR Servicing or an Affiliate of CAR is the Servicer) delivered at
least two Business Days prior to such Interim Distribution Date, withdraw from the Collection Account and distribute the
following amounts in the following order of priority:  


 


FIRST, to the
Administrative Agent, on behalf of the Lenders, Yield and Fees accrued in
respect of the Advances being paid or prepaid on such date; and


 


26





















 


SECOND, to the
Administrative Agent, on behalf of the Lenders, an amount equal to the Advances
being paid or prepaid on such date.


 


On
any Business Day, the Borrower may request in writing that the Collateral Agent
withdraw Excess Funds from the Collection Account and distribute such amounts
to, or as directed by, the Borrower so long as the following conditions have
been satisfied:  


 


the Borrower shall have provided the Administrative
Agent with one Business Day’s prior written notification of the amount of
Excess Funds to be distributed and the date of such distribution and shall have
provided the Collateral Agent written notification of the amount of Excess
Funds to be distributed and the date of such distribution prior to noon, New
York City time, on the date of such distribution;


 


before and after giving effect to such distribution
(and after including in the Aggregate Outstanding Principal Balance on such day
the Dealer Transaction Rights and related Receivables transferred to the
Borrower on such day), no Borrowing Base Deficiency shall exist;


 


the Servicer shall have provided the Administrative
Agent with prior written confirmation of the amount of Excess Funds;


 


no Facility Termination Event or Unmatured Facility
Termination Event shall have occurred and be continuing; and


 


no Level Two Trigger Event shall have occurred and be
continuing, provided that the Servicer may
request that the Collateral Agent withdraw Excess Funds from the Collection
Account following the occurrence of a Level Two Trigger if the Servicer shall
be delivering to the Collateral Agent and the Administrative Agent daily
reports on Collections, Delinquent Receivables, Defaulted Receivables, the
Aggregate Outstanding Principal Balance, the Borrowing Base and such other information
as the Administrative Agent may reasonably request.


 


Net Deposits.  So long as no Servicer Default has occurred
and is continuing, the Servicer may make the remittances to be made by it
pursuant to Sections 9.3 and 9.4 net of amounts (which amounts may
be netted prior to any such remittance for a Collection Period) to be
distributed to it pursuant to Section 9.2, 9.5(a)(iii) or 9.5(b)(ii); provided, however, that the Servicer shall
account for all of such amounts in the related Distribution Date Statement as
if such amounts were deposited and distributed separately; and provided,
further, that if an error is made by the Servicer in calculating the
amount to be deposited or retained by it, with the result that an amount less
than required is deposited in the Collection Account, the Servicer shall make a
payment of the deficiency to the Collection Account immediately upon becoming
aware, or receiving notice from the Administrative Agent or Collateral Agent or
any Agent, of such error.


 


REPRESENTATIONS AND WARRANTIES


 


In order to induce the other parties hereto to enter
into this Agreement and, in the case of the Lenders, to make Advances
hereunder, the Borrower hereby represents and warrants to the Administrative
Agent, the Backup Servicer and the Investors, as of the Effective Date and the
date of each Advance (unless otherwise indicated), as follows:


 


Organization and Good Standing.  It has been
duly organized and is validly existing under the laws of the jurisdiction of
its organization, with power and authority to own its properties and to conduct
its business as such


 


27





















 


properties are currently owned and such
business is currently conducted.  It had
at all relevant times and now has, power, authority and legal right, in the
case of the Borrower, to acquire and own the Transferred Receivables, the
Transferred Dealer Transaction Rights and the Other Conveyed Property, and to
grant to the Collateral Agent a security interest in the Transferred
Receivables, the Transferred Dealer Transaction Rights, the Other Conveyed
Property and the other Borrower Collateral.


 


Due Qualification.  It is duly
qualified to do business and has obtained (or prior to the Initial Closing Date
will have obtained) all necessary licenses and approvals in all jurisdictions
where the failure to do so would have a Material Adverse Effect with respect to
the Borrower.


 


Power and Authority.  It has the
power and authority to execute and deliver this Agreement and the other
Transaction Documents to which it is a party and to CARS Acquisition out its
terms and their terms, respectively; the Borrower has full power and authority
to grant to the Collateral Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Borrower Collateral and has
duly authorized such grant by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the other Transaction
Documents to which it is a party have been duly authorized by each such Person
by all necessary corporate or limited liability company action.


 


Security Interest; Binding Obligations.  This
Agreement and the Transaction Documents to which it is a party have been duly
executed and delivered; this Agreement (together with the filing of any
required financing statements) shall create a valid first priority perfected
security interest (except, as to priority, for any Permitted Liens that may
arise after the Effective Date, to the extent granted priority under applicable
law (except to the extent the Collateral Agent has elected not to perfect such
Security Interest) in the Borrower Collateral in favor of the Collateral Agent,
for the benefit of the Secured Parties, enforceable against the Borrower and
creditors of the Borrower and any Affiliate thereof (including CAR), to the
extent (as to perfection and priority) that a security interest in said
Borrower Collateral may be perfected by the filing of a financing statement
under the applicable UCC; and this Agreement and the other Transaction
Documents to which it is a party shall constitute legal, valid and binding
obligations of each such Person enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.


 


No Violation.  The
consummation of the transactions contemplated by this Agreement and the other
Transaction Documents to which it is a party, and the fulfillment of the terms
of this Agreement and the other Transaction Documents to which it is a party,
shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or bylaws or the equivalent of
such Person, or any indenture, agreement, mortgage, deed of trust or other
instrument to which such Person is a party or by which it is bound or any of
its properties are subject in any material respect, or result in the creation
or imposition of any Lien (other than Permitted Liens) upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to such Person of any Official Body having jurisdiction
over such Person or any of its properties, or in any way materially adversely
affect such Person’s ability to perform its obligations under this Agreement or
the other Transaction Documents to which it is a party.


 


No Proceedings.  There are
no proceedings or investigations pending or, to the knowledge of such Person,
threatened against such Person, before any court or Official Body having
jurisdiction over it or its properties (A) asserting the invalidity of
this Agreement or any of the other Transaction Documents, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or any of the other Transaction Documents, (C) seeking any
determination or ruling that would materially and adversely affect the
performance by such Person of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Transaction Documents, (D) that
would have a material adverse effect on the Transferred Receivables, the
Transferred Dealer Transaction Rights or other Borrower Collateral or (E) seeking
to materially and adversely affect the federal income tax or other federal,
state or local tax attributes of the Notes or seeking to impose any excise,
franchise, transfer or similar tax upon the Notes or the sale and assignment of
the Transferred Receivables, Transferred Dealer Transaction Rights and the
other Borrower Collateral hereunder.


 


No Consents.  It is not
required to obtain the consent of any other party or any approval,
authorization, consent, license, approval or authorization, or registration or
declaration with, any Official Body or other Person in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
or the other Transaction Documents to which it is a party, except such as have
been duly made, effected or obtained.


 


Solvency.  It is
solvent and will not become insolvent after giving effect to the transactions
contemplated by this Agreement and the Transaction Documents.  The Borrower has no Indebtedness to any
Person other than pursuant


 


28





















 


 to
this Agreement and the other Transaction Documents except such Indebtedness to
the Seller as has been subordinated to the Borrower’s obligations under this
Agreement.  After giving effect to the
transactions contemplated by this Agreement and the other Transaction
Documents, it will have an adequate amount of capital to conduct its business
in the foreseeable future.


 


Tax Treatment.  For federal
income tax purposes, the Borrower or Seller will be treated as the owner of the
Transferred Receivables, Transferred Dealer Transaction Rights and Other
Conveyed Property, the Borrower or the Seller will be treated as the borrower
under this Agreement, and the Advances made under this Agreement will be
treated as the Indebtedness of the Borrower or the Seller.  For legal purposes, the Seller and the
Borrower will treat the purchase or absolute assignment of the Transferred
Receivables, Transferred Dealer Transaction Rights and Other Conveyed Property
pursuant to the Sale and Servicing Agreement as a purchase or absolute
assignment of the relevant Seller’s full right, title and ownership interest in
such Transferred Receivables, Transferred Dealer Transaction Rights and Other
Conveyed Property.  For avoidance of
doubt, CAR may consolidate the Borrower and/or its properties and other assets
for accounting purposes.


 


Compliance With Laws.  It has
complied and will comply in all material respects with all applicable laws,
rules, regulations, judgments, agreements, decrees and orders with respect to
its business and properties and all Borrower Collateral.


 


Taxes.  It has
filed on a timely basis all tax returns (including, without limitation,
foreign, federal, state, local and otherwise) required to be filed, is not
liable for taxes payable by any other Person and has paid or made adequate
provisions for the payment of all taxes, assessments and other governmental
charges due from such Person.  No tax
lien or similar adverse claim has been filed, and no claim is being asserted,
with respect to any such tax, assessment or other governmental charge.  Any taxes, fees and other governmental
charges payable by such Person in connection with the execution and delivery of
this Agreement and the other Transaction Documents and the transactions
contemplated hereby or thereby including the transfer of each Transferred
Receivables, each Transferred Dealer Transaction Right and Other Conveyed
Property to such Person have been paid or shall have been paid if and when due
at or prior to the Effective Date and the relevant Purchase Date, as the case
may be.


 


Certificates.  Each
Distribution Date Statement, Advance Request and Borrowing Base Confirmation is
accurate in all material respects as of the date thereof.


 


No Liens, Etc.  The Borrower
Collateral and each part thereof is owned by the Borrower free and clear of any
Adverse Claim or restrictions on transferability and the Borrower has the full
right, corporate power and lawful authority to assign, transfer and pledge the
same and interests therein, and upon the making of each Advance, the Collateral
Agent, for the benefit of the Secured Parties, will have acquired a perfected,
first priority and valid security interest (except, as to priority, for any
Permitted Liens that may arise to the extent granted priority under applicable
law) in such Borrower Collateral, free and clear of any Adverse Claim or
restrictions on transferability, to the extent (as to perfection and priority)
that a security interest in said Borrower Collateral may be perfected under the
applicable UCC.  No effective financing
statement or other instrument similar in effect covering all or any part of the
Borrower Collateral is on file in any recording office, except such as will be
released on the Effective Date or as may have been filed in favor of the
Collateral Agent as “Secured Party” pursuant hereto or as necessary or
advisable to effect the sales contemplated by the Sale and Servicing Agreement.


 


Purchase and Sale.  After
giving effect to the making of the Advances and the application of the proceeds
thereof on each Purchase Date, the Borrower Collateral will have been purchased
by or contributed to the Borrower on such Purchase Date pursuant to the Sale
and Servicing Agreement and all amounts owing to the Seller as consideration
therefor will be paid in full (other than amounts due under the Promissory
Notes).


 


Information True and Complete.  All
information heretofore or hereafter furnished by or on behalf of such Person in
writing to any Lender, any Agent or the Administrative Agent in connection with
this Agreement or any transaction contemplated hereby is and will be true and
complete in all material respects and does not and will not omit to state a
material fact necessary to make the statements contained therein not
misleading.


 


ERISA Compliance.  It has no
benefit plans subject to ERISA.


 


Financial or Other Condition.  There has
been no material adverse change in its financial condition, business, or
results of operations since the date of organization.


 


Investment Company Status.  It is not
an “investment company” or an “affiliated person” of, or “promoter” or “principal
underwriter” for, an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended.


 


Eligible Receivables.  All
Transferred Receivables included by the Borrower in the Borrowing Base as of
the most recently delivered Distribution Date Statement or Borrowing Base
Confirmation are Eligible Receivables.


 


Use of Proceeds.  Neither the
Borrower, the Seller nor CAR is engaged in the business of extending credit for
the purpose of purchasing or CARS Acquisition margin stock (as defined in
Regulation U (12 CFR Part 221) of the 


 


29





















 


Board of Governors of the Federal Reserve
System) and none of the proceeds of the Advances will be used, directly or
indirectly, for a purpose that violates Regulation T, Regulation U, Regulation
X or any other regulation promulgated by the Board of Governors of the Federal Reserve
System from time to time.


 


Separate Existence.  The
Borrower is operated as an entity with assets and liabilities distinct from
those of CCRT, CAR, the Seller and any other Affiliates of the Borrower, the
Seller, CCRT or CAR, and the Borrower hereby acknowledges that the
Administrative Agent, each of the Agents and each of the Lenders are entering
into the transactions contemplated by this Agreement in reliance upon the
Borrower’s identity as a separate legal entity from CCRT, CAR, the Seller and
each such Affiliate.  Since its
formation, the Borrower has been (and will be) operated in such a manner as to
comply with the covenants set forth in Section 11.5.


 


Investments.  The
Borrower does not own or hold, directly or indirectly, any capital stock or equity
security of, or any equity interest in, any Person, other than, in the case of
the Borrower, the Permitted Investments in the Borrower Accounts.


 


Representation and Warranties True and
Complete.  Each of the representations and warranties of
such Person contained in this Agreement and the other Transaction Documents is
true and complete in all material respects and such Person hereby makes each
such representation and warranty to, and for the benefit of, the Administrative
Agent and the other Secured Parties as if the same were set forth in full
herein.


 


Transaction Documents.  The Sale
and Servicing Agreement is the only agreement pursuant to which the Borrower
purchases and receives contributions of Transferred Dealer Transaction Rights
and Transferred Receivables, and the Transaction Documents delivered to the
Administrative Agent represent all material agreements between the Seller, on
the one hand, and the Borrower, on the other. 
It has furnished to the Administrative Agent and each Agent true, correct
and complete copies of each Transaction Document to which it is a party, each
of which is in full force and effect. 
Neither the Borrower, the Seller nor any Affiliate party thereto is in
default of any of its obligations thereunder in any material respect.  All such assets are transferred to the
Borrower without recourse to the Seller except as described in the Sale and
Servicing Agreement.  The purchases of
such assets by the Borrower constitute valid and true sales for consideration
(and not merely a pledge of such assets for security purposes) and the
contributions of such assets received by the Borrower constitute valid and true
transfers for consideration, each enforceable against creditors of the Seller,
and no such assets shall constitute property of the Seller.


 


Ownership of the Borrower.  One hundred
percent (100%) of the outstanding capital stock of the Borrower is and will be
directly owned (both beneficially and of record) by CARS Acquisition.  All such stock is and will be validly issued,
and there are no options, warrants or other rights to acquire shares or other
equity rights in the Borrower.


 


 


BORROWER COVENANTS


 


From the date hereof until the first day following the
Facility Termination Date on which all Obligations shall have been finally and
fully paid and performed, the Borrower hereby covenants and agrees with the
Investors, the Custodian, the Administrative Agent and the Collateral Agent
that:


 


30





















 


Protection of Security Interest of
the Secured Parties.


 


At
or prior to the Effective Date, the Borrower shall have filed or caused to be
filed a UCC-1 financing statement, naming the Borrower as debtor, naming the
Collateral Agent (for the benefit of the Secured Parties) as secured party and
describing the Borrower Collateral, with the office of the Secretary of State
of the State of Nevada.  From time to
time thereafter, the Borrower shall file such financing statements and cause to
be executed and filed such continuation statements, all in such a manner and in
such places as may be required by law fully to preserve, maintain and protect
the interest of the Secured Parties under this Agreement in the Borrower
Collateral and in the proceeds thereof to the extent a security interest in
such Collateral can be perfected by the filing of a financing statement under
the UCC.  The Borrower shall deliver (or
cause to be delivered) to the Administrative Agent and the Collateral Agent
file-stamped copies of, or filing receipts for, any financing statement,
statement of continuation or statement of amendment filed as provided above, as
soon as available following such filing. 
In the event that the Borrower fails to perform its obligations under
this subsection, the Collateral Agent at the direction of the Required Lenders
may do so, in each case at the expense of the Borrower.


 


The
Borrower shall not change its name, identity or corporate structure in any
manner that would, make any financing statement or continuation statement filed
by the Borrower (or by the Collateral Agent on behalf of the Borrower) in
accordance with paragraph (a) above seriously misleading or change its
jurisdiction of organization, unless the Borrower shall have given the
Collateral Agent at least 30 days prior written notice thereof, and shall
promptly file appropriate amendments to all previously filed financing
statements and continuation statements.


 


The
Borrower shall maintain its computer systems, if any, so that, from and after
the time of the first Advance under this Agreement, the Borrower’s master
computer records (including archives) that shall refer to the Borrower
Collateral indicate clearly that such Borrower Collateral is subject to first
priority security interest in favor of the Collateral Agent, for the benefit of
the Secured Parties.  Indication of the
Collateral Agent’s (for the benefit of the Secured Parties) security interest
shall be deleted from or modified on the Borrower’s computer systems when, and
only when, the Borrower Collateral in question shall have been paid in full,
the security interest under this Agreement has been released in accordance with
its terms, with respect to any Transferred Receivables, upon such Transferred
Receivables becoming a Repurchased Receivable or otherwise as expressly
permitted by the Sale and Servicing Agreement or by this Agreement.  Notwithstanding the foregoing, until the
Servicer shall have in effect a new computer system for maintaining records from
that in effect on the Initial Closing Date, the covenant set forth in this
clause (c) shall not apply.


 


Without
limiting any of the other provisions hereof, if at any time the Borrower shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in motor vehicle receivables or dealer transaction rights to any
prospective lender or other transferee, the Borrower shall give to such
prospective lender or other transferee computer tapes, records, or print-outs
(including any restored from archives) that, if they shall refer in any manner
whatsoever to any Borrower Collateral, shall indicate clearly that such
Borrower Collateral is subject to a first priority security interest in favor
of the Collateral Agent, for the benefit of the Secured Parties.


 


31





















 


The
Borrower agrees that at any time and from time to time, at its expense, it
shall promptly execute and deliver all further instruments and documents, and
take all reasonable further action, that may be necessary or desirable or that
the Required Lenders may reasonably request to perfect and protect the
assignments and security interests granted or purported to be granted by this
Agreement or to enable the Collateral Agent or any of the Secured Parties to
exercise and enforce its rights and remedies under this Agreement with respect
to any Borrower Collateral.  Without
limiting the generality of the foregoing, the Borrower shall execute and file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices as may be necessary or desirable or that the Required
Lenders may reasonably request to protect and preserve the assignments and
security interests granted by this Agreement. 
The Borrower shall in no circumstance be required to obtain a security
interest in favor of the Borrower or the Collateral Agent in a Financed Vehicle
by causing the Borrower’s or the Collateral Agent’s name to be reflected on the
Title Document for such Financed Vehicle. 
The Borrower is in compliance with this Agreement and the other
Transaction Documents in respect of perfection in the Financed Vehicle so long
as the Title Documents for the Financed Vehicle reflects that the Seller, the
Dealer, a Predecessor in Interest or an initial lender has a security interest
in such Financed Vehicle, and the Seller has a blanket or individual power of
attorney from the named lienholder authoring the Seller to do all acts
necessary to perfect in the Seller’s name any liens or security interests in
such Financed Vehicle. 


 


The
Borrower and each Secured Party hereby severally authorize the Collateral
Agent, upon receipt of written direction from the Required Lenders (if the
Borrower has failed to fulfill its duties under Section 11.1(e)), to file
one or more financing or continuation statements, and amendments thereto,
relating to all or any part of the Borrower Collateral.


 


It
shall furnish to the Administrative Agent and the Collateral Agent from time to
time such statements and schedules further identifying and describing the
Receivables Collateral and such other reports in connection with the Borrower
Collateral as the Required Lenders may reasonably request, all in reasonable
detail. 


 


Other Liens or Interests.  Except for the security interest granted
hereunder, the Borrower will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on the
Borrower Collateral or any interest therein (other than Permitted Liens), and
the Borrower shall defend the right, title, and interest of the Collateral
Agent (for the benefit of the Secured Parties) and the Investors in and to the
Borrower Collateral against all claims of third parties claiming through or
under the Borrower.


 


Costs and Expenses.  The Borrower shall pay all of its reasonable
costs and disbursements in connection with the performance of its obligations
hereunder and under the Transaction Documents.


 


Reporting Requirements.  The Borrower shall furnish, or cause to be
furnished, to the Administrative Agent:


 


as
soon as available and in any event within 120 days (or next succeeding Business
Day if the last day of such period is not a Business Day) after the end of each
fiscal year, (i) a copy of CCRT and its consolidated subsidiaries’ audited
financial statements, certified without qualification by Independent
Accountants acceptable to the Required Lenders, and each other report or
statement sent to shareholders or publicly filed by CAR, CCRT, the Seller or
the Borrower and (ii) a copy of CARS Acquisition and its consolidated
subsidiaries’ unaudited financial statements, certified by its chief financial
officer;  


 


32





















 


as
soon as available and in any event within 45 days (or next succeeding Business
Day if the last day of such period is not a Business Day) after the end of each
of the first three quarters of each fiscal year of CCRT and CARS Acquisition, a
consolidated balance sheet of each of CCRT and its consolidated Subsidiaries
and CARS Acquisition and its consolidated Subsidiaries as of the end of such
quarter and including the prior comparable period, and consolidated statements
of income and retained earnings of each of CCRT and its consolidated
Subsidiaries and CARS Acquisition and its consolidated Subsidiaries for such
quarter and for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, certified by the chief financial
officer or chief accounting officer of CCRT or CARS Acquisition identifying
such documents as being the documents described in this paragraph (b) and
stating that the information set forth therein fairly presents the financial
condition of CCRT or CARS Acquisition and its consolidated Subsidiaries as of
and for the periods then ended, subject to year-end adjustments and confirming
compliance with all financial covenants applicable to CCRT or CARS Acquisition
in the Transaction Documents;


 


as
soon as possible and in any event within five days after the occurrence of a
Facility Termination Event or Unmatured Facility Termination Event, an Officer’s
Certificate of the Borrower or CAR setting forth complete details of such
Facility Termination Event or Unmatured Facility Termination Event and the
action which the Borrower has taken, is taking and proposes to take with
respect thereto;  


 


promptly,
from time to time, such other information, documents, records or reports
respecting the Transferred Receivables, Transferred Dealer Transaction Rights,
the Other Conveyed Property related thereto or the Financed Vehicles related
thereto, the other Borrower Collateral or the results of operations or
financial condition, of the Borrower or the Seller as any Agent may, from time
to time, reasonably request; and


 


notwithstanding
the foregoing, with respect to financial statements and materials and reporting
requirements pursuant to this Section by CCRT, the timely filing of such
materials with the Securities Exchange Commission’s EDGAR system shall
constitute delivery thereof pursuant to this Section 11.4.  


 


Separate Existence.


 


The
Borrower shall conduct its business solely in its own name through its duly
authorized officers or agents so as not to mislead others as to the identity of
the entity with which such persons are concerned, and shall use commercially
reasonable efforts to avoid the appearance that it is conducting business on
behalf of any Affiliate thereof or that the assets of the Borrower are
available to pay the creditors of CCRT, CAR or any Affiliate thereof (other
than as expressly provided herein).


 


It
shall maintain corporate records and books of account separate from those of
CCRT, CAR and any other Affiliate thereof.


 


It
shall obtain proper authorization for all corporate action requiring such
authorization.


 


Other
than organizational expenses and as expressly provided herein or in the other
Transaction Documents, it shall pay its own operating expenses and liabilities
from its own funds.


 


33





















 


It
will insure that the annual financial statements of CCRT and the financial
statements of CAR shall disclose the effects of the transactions contemplated
hereby in accordance with GAAP.


 


The
resolutions, agreements and other instruments of the Borrower underlying the
transactions described in the Transaction Documents shall be continuously
maintained by the Borrower as official records of the Borrower.


 


It
shall maintain an arm’s-length relationship with CCRT and CAR and its other
Affiliates, and shall not hold itself out as being liable for the debts of CCRT
and CAR or any of their respective Affiliates.


 


It
shall keep its assets and liabilities separate from those of all other entities
other than as permitted by the Transaction Documents.


 


The
books and records of the Borrower shall be maintained at the address designated
herein for receipt of notices, unless the Borrower shall otherwise advise the
parties hereto in writing.  


 


It
shall not maintain bank accounts or other depository accounts to which any
Affiliate is an account party, into which any Affiliate makes deposits or from
which any Affiliate has the power to make withdrawals, except as otherwise
permitted by the Transaction Documents.


 


It
shall insure that any consolidated financial statements of CCRT and the
financial statements of CAR have notes to the effect that the Borrower is a
separate entity whose creditors have a claim on its assets prior to those
assets becoming available to its equity holders.


 


It
shall not amend, supplement or otherwise modify (i) its articles of
incorporation in any respect that affects its limited purpose or its
separateness covenants without the prior written consent of the Required
Lenders (which consent shall not be unreasonably withheld) or (ii) its
bylaws in any manner that is inconsistent therewith or with its articles of
incorporation.


 


Interest Rate Caps.


 


The Borrower hereby covenants and agrees that in the event the one-month
LIBOR Rate is greater than *** at any Determination Date, it shall, within two
Business Days, obtain and deliver to the Collateral Agent one or more Interest
Rate Caps from qualified Cap Providers in favor of the Collateral Agent for the
benefit of the Secured Parties having, singly or in the aggregate, an Aggregate
Interest Rate Caps Notional Amount not less than the Required Interest Rate
Caps Notional Amount, provided that each Interest Rate Cap (1) shall
have an initial notional principal amount equal to or greater than $1,000,000, (2) may
provide for reductions of the Aggregate Interest Rate Caps Notional Amount on
each Distribution Date on an amortization schedule for such Aggregate
Interest Rate Caps Notional Amount assuming zero losses and (x) a 0.5 ABS
prepayment speed until the pool factor reaches 10% and (y) a 0.0 ABS prepayment
speed thereafter, and (3) shall have other terms and conditions and be
represented by Cap Agreements otherwise acceptable to the Required Lenders and
the Rating Agencies.  The Borrower agrees
that each Interest Rate Cap shall provide that payments by the Cap Provider
shall be made to the Collateral Agent and that such payments shall be deposited
into the Collection Account.


 


On any Determination Date on which the Minimum Liquidity Amount Test has
not been satisfied, the Borrower shall be required to deposit an amount equal
to the Cap Funding Reserve Account Requirement into the Cap Funding Reserve
Account on the related Date; provided, however, that
if the Minimum Liquidity Amount Test is subsequently satisfied on any
Determination Date following the Determination Date on which the Minimum
Liquidity Amount Test failed to be satisfied, all funds then on deposit in the
Cap Funding Reserve Account shall be released to the Borrower on such
Determination Date; provided further,
that if the Cap Funding Reserve Account Requirement shall increase on any
applicable Determination Date as a result of an increase in the estimated cost
of purchasing Interest Rate Caps from qualified Cap Providers, the Borrower
shall be required to deposit an amount equal to such additional cost into the
Cap Funding Reserve Account on the related Distribution Date; provided further, that if the Cap Funding Reserve Account
Requirement shall decrease on any applicable Determination Date as a result of
a decrease in the estimated cost of purchasing Interest Rate Caps from
qualified Cap Providers, the excess of the amount on deposit in the Cap Funding
Reserve Account over the adjusted Cap Funding Reserve Account Requirement shall
be withdrawn from the Cap 


 


34





















 


Funding Reserve Account and released to the Borrower on such
Determination Date.  As specified in Section 11.6(a) above,
in the event the one-month LIBOR Rate is greater than 6.00% at any
Determination Date, the Borrower may use the funds in the Cap Funding Reserve
Account to purchase one or more Interest Rate Caps.  If the Borrower defaults on its obligations
under Section 11.6(a), the Administrative Agent, at the direction
of the Required Lenders, may use the funds in the Cap Funding Reserve Account
to purchase the Interest Rate Caps; provided, however,
that such action by the Administrative Agent shall not release the Borrower
from its obligations under this Section 11.6; provided
further, that the Servicer shall provide the Administrative Agent
with all information necessary to purchase such Interest Rate Caps; provided further, that if the amount on deposit in the Cap
Funding Reserve Account is insufficient to purchase any required Interest Rate
Caps, the Borrower shall be responsible for any such shortfall; provided further, that if the Borrower defaults on its
obligation with respect to such Cap Funding Reserve Account shortfall, the
Administrative Agent shall follow the instructions provided by the Required
Lenders with respect to the satisfaction of any such shortfall or the purchase
of any Interest Rate Caps.  Funds
retained in the Cap Funding Reserve Account following application as set forth
above shall be invested at the direction of the Servicer in Permitted
Investments with maturities not later than the next succeeding Business
Day.  Any earnings on such invested funds
shall be applied pursuant to Section 9.1.


 


In the event that any Cap Provider defaults in its obligation to make a
payment to the Collateral Agent under one or more Cap Agreements on any date on
which payments are due pursuant to a Cap Agreement, the Collateral Agent shall
make a demand on such Cap Provider, or any guarantor, if applicable, demanding
payment by 12:30 p.m., New York City time, on such date.  The Collateral Agent shall give notice to the
Lenders and the Rating Agencies upon the continuing failure by any Cap Provider
to perform its obligations within two Business Days following a demand made by
the Collateral Agent on such Cap Provider, and shall take such action with
respect to such continuing failure as may be directed in writing by the
Required Lenders.


 


In the event that any Cap Provider no longer maintains the ratings
specified in the definition of “Cap Provider,” then within 30 days after
receiving notice of such decline in the creditworthiness of such Cap Provider
as determined by any Rating Agency, either (x) such Cap Provider, upon the
receipt of the consent of the Required Lenders, will enter into an arrangement
the purpose of which shall be to assure performance by the Cap Provider of its
obligations under the Interest Rate Cap; or (y) the Borrower shall at its
option either (i) upon the receipt of the consent of the Required Lenders,
cause such Cap Provider to pledge securities in the manner provided by
applicable law which shall be held by the Collateral Agent free and clear of
the Lien of any third party, in a manner conferring on the Collateral Agent a
perfected first Lien in such securities securing such Cap Provider’s
performance of its obligations under the applicable Interest Rate Cap, (ii) provided
that a Replacement Interest Rate Cap or Qualified Substitute Arrangement
meeting the requirements of Section 11.6(e) has been obtained,
(A) provide written notice to such Cap Provider (with a copy to the
Administrative Agent and the Collateral Agent) of its intention to terminate
the applicable Interest Rate Cap within such 30-day period and (B) terminate
the applicable Interest Rate Cap within such 30-day period, request the payment
to it of all amounts due to the Collateral Agent under the applicable Interest
Rate Cap through the termination date and deposit any such amounts so received,
on the day of receipt, to the Collection Account, or (iii) establish any
other arrangement (including an arrangement or arrangements in addition to or
in substitution for any prior arrangement made in accordance with the
provisions of this Section 11.6(d)) which are reasonably
satisfactory to the Required Lenders (a “Qualified Substitute Arrangement”);
provided, however, that in the event at any time any alternative
arrangement established pursuant to clause (x) or (y)(i) or (y)(iii) above
shall cease to be satisfactory to the Required Lenders, then the provisions of
this Section 11.6(d) shall again be applied and in connection
therewith the 30-day period referred to above shall commence on the date the
Borrower receives notice of such cessation or termination, as the case may be.


 


Unless an alternative arrangement pursuant to clause (x) or (y)(i) or
(y)(iii) of Section 11.6(d) is being established, the
Borrower shall use reasonable efforts to obtain a Replacement Interest Rate Cap
or Qualified Substitute Arrangement meeting the requirements of this Section 11.6(e) during
the 30-day period referred to in Section 11.6(d).  Neither the Borrower nor the Collateral Agent
shall terminate the Interest Rate Cap unless, prior to the expiration of the 30-day
period referred to in said Section 11.6(d), the Borrower delivers
to the Collateral Agent (i) a Replacement Interest Rate Cap or Qualified
Substitute Arrangement, (ii) to the extent applicable, an Opinion of
Counsel as to the due authorization, execution and delivery and validity and
enforceability of such Replacement Interest Rate Cap or Qualified Substitute
Arrangement, as the case may be, and (iii) evidence that the Required
Lenders have consented to the termination of the Interest Rate Cap and its
replacement with such Replacement Interest Rate Cap or Qualified Substitute
Arrangement.


 


The Servicer or the Borrower shall notify in writing the Administrative
Agent and the Collateral Agent within five Business Days after obtaining actual
knowledge that the senior unsecured debt rating of the Cap Provider has been
withdrawn or reduced by any Rating Agency.


 


Notwithstanding the foregoing, the Borrower may at any time obtain a
Replacement Interest Rate Cap, provided that the Borrower delivers to the
Collateral Agent evidence of the receipt of the consent of the Required Lenders
to the termination of the then-current Interest Rate Cap and its replacement
with such Replacement Interest Rate Cap.


 


The Borrower shall not agree to any amendment to any Interest Rate Cap
unless the Borrower shall have received evidence of the consent of the Required
Lenders to such amendment to such Interest Rate Cap (which consent will not be
unreasonably withheld or delayed).


 


The Borrower shall notify the Lenders and the Collateral Agent after
obtaining actual knowledge of the transfer by the related Cap Provider of any
Interest Rate Cap, or any interest or obligation thereunder.


 


35





















 


The Collateral Agent, upon written direction from the Borrower and the
Required Lenders, shall sell all or a portion of the Interest Rate Caps subject
to the following conditions having been met:


 


(x)                                   the Aggregate Interest Rate Caps Notional Amount after
giving effect to such sale shall equal or exceed the Required Interest Rate
Caps Notional Amount as of the date of such sale after giving effect to all
payments and allocations made pursuant to this Agreement; and


 


(y)                                 the minimum notional amount denomination of any Interest
Rate Cap to be sold is $1,000,000.


 


The Borrower shall have the duty of obtaining a fair
market value price for the sale of the Collateral Agent’s rights under any
Interest Rate Cap, notifying the Collateral Agent of prospective purchasers and
bids, and selecting the purchaser of such Interest Rate Cap.  The Collateral Agent upon receipt of the
purchase price in the Collection Account shall execute all documentation
prepared by the Borrower necessary to effect the transfer
of the Collateral Agent’s rights under such Interest Rate Cap and to release
the Lien of the Collateral Agent on such Interest Rate Cap and proceeds
thereof.


 


Tangible Net Worth.  The Borrower shall maintain at all times a
positive Tangible Net Worth.


 


Stock, Merger, Consolidation, Etc.  The Borrower
shall not merge or consolidate with any other Person or permit any other Person
to become the successor to all or substantially all of its business or assets
without the prior written consent of the Required Lenders.


 


Change in Name.  It shall
not make any change to its name or use any trade names, fictitious names,
assumed names or “doing business as” names.


 


Indebtedness; Guarantees.  The Borrower shall not create, incur, assume
or suffer to exist any Indebtedness other than
Indebtedness permitted under the Transaction Documents.  The Borrower shall incur no additional
borrowed money indebtedness secured by the Borrower Collateral other than the
Advances.  The Borrower shall not assume,
guarantee, endorse or otherwise be or become directly or contingently liable
for the obligations of any Person by, among other things, agreeing to purchase
any obligation of another Person, agreeing to advance funds to such Person or
causing or assisting such Person to maintain any amount of capital.


 


Limitation on Transactions with
Affiliates.  The Borrower
shall not enter into, or be a party to any transaction with any Affiliate of
the Borrower, except for (a) the transactions contemplated by the
Transaction Documents and (b) to the extent not otherwise prohibited under
this Agreement, other transactions upon fair and reasonable terms materially no
less favorable to the Borrower than would be obtained in a comparable arm’s-length
transaction with a Person not an Affiliate.


 


Documents.  Except as otherwise expressly permitted
herein (including, without limitation, in Section 11.6 regarding
Interest Rate Caps), it shall not cancel or terminate any of the Transaction
Documents to which it is party (in any capacity), or consent to or accept any
cancellation or termination of any of such agreements, or amend or otherwise
modify any term or condition of any of the Transaction Documents to which it is
party (in any capacity) or give any consent, waiver or approval under any such
agreement, or waive any default under or breach of any of the Transaction
Documents to which it is party (in any capacity) or take any other action under
any such agreement not required by the terms thereof, unless (in each case) the
Required Lenders shall have consented thereto (which consent shall not
unreasonably be withheld to the extent set forth in such Transaction Document).


 


Preservation of Existence.  It shall observe all procedures required by
its organizational documents and preserve and maintain its existence, rights,
franchises and privileges in the jurisdiction of its formation and qualify and
remain qualified in good standing in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and qualifications
would materially adversely affect (1) the interests hereunder of the
Required Lenders or any Secured Party, (2) the collectibility of any
Transferred Receivables or Transferred Dealer Transaction Right or (3) its
ability to perform its obligations hereunder or under any of the other
Transaction Documents.


 


Accounting Treatment.  The Borrower shall not prepare any financial
statements or other statements (including any tax filings which are not
consolidated with those of CAR) which shall account for the transactions
contemplated by the Sale and Servicing Agreement in any manner other than as
the sale of, or a capital contribution of, the 


 


36





















 


Transferred Receivables and
Transferred Dealer Transaction Rights and the related assets by the Seller to
the Borrower.  For avoidance of doubt, CAR may
consolidate the Borrower and/or its properties and other assets for accounting
purposes.


 


Limitation on Investments.  The Borrower shall not form, or cause to be
formed, any Subsidiaries; or make or suffer to exist any loans or advances to,
or extend any credit to, or make any investments (by way of transfer of
property, contributions to capital, purchase of stock or securities or
evidences of indebtedness, acquisition of the business or assets, or otherwise)
in, any Affiliate or any other Person except as otherwise permitted herein and
pursuant to the other Transaction Documents.


 


Distributions.  The Borrower shall not declare or make (a) payment
of any distribution on or in respect of any shares of its capital stock, or (b) any
payment on account of the purchase, redemption, retirement or acquisition of
any option, warrant or other right to acquire such shares unless (in each case)
at the time of such declaration or payment (and after giving effect thereto) no
Facility Termination Event under Section 14.1 or Unmatured Facility
Termination Event under Section 14.1 shall occur or be continuing
and no amount payable by the Borrower under any Transaction Document is then due
and owing but unpaid.


 


Performance of Borrower Assigned
Agreements.  The Borrower shall (i) perform and observe all
the terms and provisions of the Transaction Documents (including, without
limitation, each of the Borrower Assigned Agreements) to which it is a party to
be performed or observed by it, maintain such Transaction Documents in full
force and effect, enforce such Transaction Documents in accordance with their
terms and take all such action to such end as may be from time to time
requested by any Agent, and (ii) upon request of any Agent, make to any
other party to such Transaction Documents such demands and requests for
information and reports or for action as the Borrower is entitled to make
thereunder.


 


Notice of Material Adverse Claim.  It shall advise the
Administrative Agent and the Collateral Agent promptly, in reasonable detail, (i) of
any material Adverse Claim, other than a Permitted Lien, known to it made or
asserted against any of the Borrower Collateral, and (ii) of the
occurrence of any event which would have a material adverse effect on the
aggregate value of the Borrower Collateral or on the assignments and security
interests granted by the Borrower in this Agreement.


 


Access to Certain Documentation
and Information Regarding Contracts.  The Borrower shall permit representatives of the
Administrative Agent, each Agent, the Backup Servicer, the Collateral Agent and
the Custodian at any time and from time to time, but, so long as no Event of
Default has occurred and is continuing, no more than two times per year, during
normal business hours as the Administrative Agent, such Agent, the Backup
Servicer, the Collateral Agent and the Custodian shall reasonably request, (a) to
inspect and make copies of and abstracts from its records relating to the
Transferred Receivables and Transferred Dealer Transaction Rights, and (b) to
visit its properties in connection with the collection, processing or servicing
of the Transferred Receivables and Transferred Dealer Transaction Rights for
the purpose of examining such records, and to discuss matters relating to the
Transferred Receivables and Transferred Dealer Transaction Rights or such
Person’s performance under this Agreement and the other Transaction Documents
with any officer or employee of such Person having knowledge of such
matters.  In each case, such access shall
be afforded without charge.  In
connection with any inspection, the Administrative Agent, any Agent, the Backup
Servicer, the Collateral Agent and the Custodian may institute procedures to
permit it to confirm the Obligor balances in respect of any Transferred
Receivables or Transferred Dealer Transaction Rights.  The Borrower agrees to render to the
Administrative Agent, each Agent, the Backup Servicer, the Collateral Agent and
the Custodian such clerical and other assistance as may be reasonably requested
with regard to the foregoing.  Nothing in
this Section 11.19 shall derogate from the obligation of the
Borrower to observe any applicable law prohibiting disclosure of information regarding
the Obligors, and the failure of any of them to provide access as a result of
such obligation shall not constitute a breach of this Section 11.19.


 


THE SERVICER; THE BACKUP SERVICER


 


Liability of Servicer.  The Servicer (in its capacity as such) shall
be liable hereunder only to the extent of the obligations in this Agreement and
the other Transaction Documents specifically undertaken by the Servicer and the
representations made by the Servicer.


 


Merger or Consolidation of, or
Assumption of the Obligations of, the Servicer.  The Servicer shall not merge or consolidate
with any other Person, convey, transfer or lease all or substantially all its
assets as an entirety to another Person, or permit any other Person to become
the successor to all or substantially all of its business or assets, unless
after the merger, consolidation, conveyance, transfer, lease or succession, the
successor or surviving entity shall be an Eligible Servicer and shall be
capable of fulfilling the duties of the Servicer contained in this
Agreement.  Any Person (i) into
which the Servicer may be merged or consolidated, (ii) resulting from any
merger or consolidation to


 


37





















 


which the Servicer shall be a party, (iii) which
acquires by conveyance, transfer, or lease substantially all of the assets of
the Servicer, or (iv) succeeding to the business of the Servicer, in any
of the foregoing cases shall execute an agreement of assumption to perform
every obligation of the Servicer under this Agreement and the other Transaction
Documents to which the Servicer is a party and, whether or not such assumption
agreement is executed, shall be the successor to the Servicer under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties to this Agreement, anything in this Agreement to
the contrary notwithstanding; provided, however, that nothing contained herein
shall be deemed to release the Servicer from any obligation hereunder.  The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 12.2
to the Required Lenders and the Backup Servicer and the Required Lenders shall
have consented thereto.  Notwithstanding
the foregoing, as a condition to the consummation of the transactions referred
to in clauses (i), (ii), (iii) and (iv) above, (x) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 8.2 shall have been breached in any material
respect (for purposes hereof, such representations and warranties shall speak
as of the date of the consummation of such transaction) and no event that after
notice or lapse of time would become a Facility Termination Event pursuant to Section 14.1
shall have occurred and be continuing, and (y) the Servicer shall have
delivered to the Administrative Agent an Officer’s Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section 12.2.


 


The
parties to this Agreement acknowledge that this Section 12.2 shall only
apply to the Servicer so long as CAR, CAR Servicing or an Affiliate of CAR is
the Servicer.


 


38





















 


Covenants of Servicer.


 


Preservation of Existence.  The Servicer shall observe all procedures
required by its organizational documents and preserve and maintain its
existence, rights, franchises and privileges in the jurisdiction of its
formation and qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualifications would materially adversely affect (1) the
interests hereunder of the Required Lenders or any Secured Party, (2) the
collectibility of any Transferred Receivables or Transferred Dealer Transaction
Right or (3) its ability to perform its obligations hereunder or under any
of the other Transaction Documents.


 


Keeping of Records and Books of Account.  The Servicer shall maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing the Transferred Receivables in the event
of the destruction of the originals thereof) and keep and maintain, all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Transferred Receivables and Transferred Dealer Transaction
Rights (including, without limitation, records adequate to permit the daily
identification of all collections of and adjustments to each Transferred
Receivables or Transferred Dealer Transaction Right).


 


Maintain Records of Receivables Collateral.  The Servicer shall, at its own
cost and expense, maintain satisfactory and complete records of the Receivables
Collateral, including a record of all payments received and all credits granted
with respect to the Receivables Collateral and all other dealings with the
Receivables Collateral.  The Servicer
shall maintain its computer systems so that, from and after the time of sale
under the Sale and Servicing Agreement of the Dealer Transaction Rights to the
Borrower, the Servicer’s master computer records (including any back-up
archives) that refer to a Transferred Dealer Transaction Right and the related
Receivable shall indicate the interest of the Borrower and the Collateral Agent
in such Transferred Dealer Transaction Right and that such Transferred Dealer
Transaction Right and the right to receive all monies in respect of the related
Receivable are owned by the Borrower and have been pledged to the Collateral
Agent for the benefit of the Secured Parties pursuant to this Agreement.  Notwithstanding the foregoing, until the
Servicer shall have in effect a new computer system for maintaining records
from that in effect on the Initial Closing Date, the covenant set forth in this
clause (c) regarding noting the interest of, and the pledge to, the
Borrower and the Collateral Agent relating to such Transferred Dealer
Transaction Rights and right to receive monies therefor shall not apply.


 


Notice of Material Adverse Claim.  The Servicer shall
advise the Administrative Agent and the Collateral Agent promptly, in
reasonable detail, (i) of any material Adverse Claim, other than a
Permitted Lien, known to it made or asserted against any of the Borrower
Collateral, and (ii) of the occurrence of any event which would have a
material adverse effect on the aggregate value of the Borrower Collateral or on
the assignments and security interests granted by the Borrower in this
Agreement.


 


Limitation on Liability of Backup
Servicer.


 


Neither
the Backup Servicer nor any of the directors or officers or employees or agents
of the Backup Servicer shall be under any liability to the Borrower, the
Investors or the Administrative Agent, except as provided in this Agreement,
for any action taken or for refraining from the taking of any action pursuant
to this Agreement; provided, however, that this provision shall not protect the
Backup Servicer or any such Person against any liability that would otherwise
be imposed by reason of a breach of this Agreement or willful misfeasance, bad
faith or negligence in the performance of its duties.  The Backup Servicer and any director,
officer, employee or agent of the Backup Servicer may rely in good faith on the
written advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement.


 


Unless
acting as Servicer hereunder, the Backup Servicer shall not be liable for any
obligation of the Servicer contained in this Agreement, and the Administrative
Agent, the Collateral Agent, the Borrower and the Investors shall look only to
the Servicer to perform such obligations.


 


39





















 


The
Backup Servicer shall have no responsibility and shall not be in default
hereunder nor incur any liability for any failure, error, malfunction or any
delay in CARS Acquisition out any of its duties under this Agreement if any
such failure or delay results from the Backup Servicer acting in accordance
with information prepared or supplied by a Person other than the Backup
Servicer or the failure of any such Person to prepare or provide such
information.  The Backup Servicer shall
have no responsibility, shall not be in default and shall incur no liability (i) for
any act or failure to act by any third party, including the Servicer or the
Administrative Agent or for any inaccuracy or omission in a notice or
communication received by the Backup Servicer from any third party or (ii) that
is due to or results from the invalidity, unenforceability of any Transferred
Receivables under applicable law or the breach or the inaccuracy of any
representation or warranty made with respect to any Transferred Receivables.


 


Backup Servicer Not to Resign.  Subject to the provisions of Section 12.2,
the Backup Servicer shall not resign from the obligations and duties imposed on
it by this Agreement as Backup Servicer except upon a determination that by
reason of a change in legal requirements the performance of its duties under
this Agreement would cause it to be in violation of such legal requirements and
the Administrative Agent does not elect to waive the obligations of the Backup
Servicer to perform the duties which render it legally unable to act or to
delegate those duties to another Person. 
Any such determination permitting the resignation of Backup Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered and
acceptable to the Required Lenders.  No
resignation of the Backup Servicer shall become effective until an entity
acceptable to the Required Lenders shall have assumed the responsibilities and
obligations of the Backup Servicer; provided, however, that in
the event a successor Backup Servicer is not appointed within 60 days after the
Backup Servicer has given notice of its resignation as permitted by this Section 12.4,
the resignation of the Backup Servicer shall become effective.


 


GRANT OF SECURITY INTEREST


 


Borrower’s Grant of Security Interest.  As security
for the prompt payment or performance in full when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations (including, without
limitation, Advances, Yield and other amounts at any time owing hereunder), the
Borrower hereby assigns and pledges to the Collateral Agent, for the benefit of
the Secured Parties, and grants to the Collateral Agent, for the benefit of the
Secured Parties, a security interest in and lien upon, all of the Borrower’s
right, title and interest in and to the following, in each case whether now or
hereafter existing or in which Borrower now has or hereafter acquires an
interest and wherever the same may be located (collectively, the “Borrower
Collateral”):


 


all
Receivables Collateral;


 


the
Sale and Servicing Agreement and all other documents now or hereafter in effect
to the extent they relate to the purchase, servicing or processing of
Transferred Receivables or Transferred Dealer Transaction Rights, including the
right to receive Dealer Recourse payments pursuant to the Dealer Purchase
Agreements to the extent permitted under the Sale and Servicing Agreement
(collectively, the “Borrower Assigned Agreements”), including (i) all
rights of the Borrower to receive moneys due and to become due under or
pursuant to the Borrower Assigned Agreements, (ii) all rights of the
Borrower to receive proceeds of any insurance, indemnity, warranty or guaranty
with respect to the Borrower Assigned Agreements, (iii) the Borrower’s
right of foreclosure as lienholder of the Financed Vehicles underlying the
Contracts, (iv) claims of the Borrower for damages arising out of or for
breach of or default under the Borrower Assigned Agreements, and (v) the
right of the Borrower to amend, waive or terminate the Borrower Assigned
Agreements, to perform under the Borrower Assigned Agreements and to compel
performance and otherwise exercise all remedies and rights under the Borrower
Assigned Agreements;


 


40





















 


all
of the following (the “Borrower Account Collateral”):


 


the Collection
Account, all funds held in the Collection Account, and all certificates and
instruments, if any, from time to time representing or evidencing the
Collection Account or such funds,


 


the Cap Funding
Reserve Account, all funds held in the Cap Funding Reserve Account, and all
certificates and instruments, if any, from time to time representing or
evidencing the Cap Funding Reserve Account or such funds,


 


all investments from
time to time of amounts in the Collection Account and Cap Funding Reserve
Account, and all certificates and instruments, if any, from time to time
representing or evidencing such investments,


 


all notes, certificates
of deposit and other instruments from time to time delivered to or otherwise
possessed by the Collateral Agent or any Secured Party or any assignee or agent
on behalf of the Collateral Agent or any Secured Party in substitution for or
in addition to any of the then existing Borrower Account Collateral, and


 


all interest, dividends,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any and all of the then
existing Borrower Account Collateral;


 


each Interest Rate Cap including all rights
of the Borrower to receive moneys due and to become due thereunder;


 


all
additional property that may from time to time hereafter be granted and pledged
by the Borrower or by anyone on its behalf under this Agreement, including the
deposit with the Collateral Agent of additional moneys by the Borrower;


 


all
Accounts, all Chattel Paper, all Documents, all Equipment, all General
Intangibles, all Instruments, all Investment Property and all Inventory of the
Borrower; and


 


all
Proceeds, accessions, substitutions, rents and profits of any and all of the
foregoing Borrower Collateral (including proceeds that constitute property of
the types described in paragraphs (a) through (f) above) and, to the
extent not otherwise included, all payments under insurance (whether or not the
Collateral Agent or a Secured Party or any assignee or agent on behalf of the
Collateral Agent or a Secured Party is the loss payee thereof) or any
indemnity, warranty or guaranty payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Borrower Collateral.


 


Delivery of Collateral.  All documents in the
Contracts File shall be delivered to and held by or on behalf of the Custodian
pursuant to the Sale and Servicing Agreement, and shall be in suitable form for
transfer by delivery.


 


Borrower Remains Liable.  Notwithstanding anything in this Agreement, (a) except to
the extent of the Servicer’s duties under this Agreement, the Borrower shall
remain liable under the Transferred Receivables, Transferred Dealer Transaction
Rights, Borrower Assigned Agreements and other agreements (including each
Interest Rate Cap) included in the Borrower Collateral to perform in all
material respects all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by a
Secured Party or the Collateral Agent of any of its rights under this Agreement
shall not release the Borrower, CAR, the Custodian or the 


 


41





















 


Servicer from any of their
respective duties or obligations under the Transferred Receivables, Transferred
Dealer Transaction Rights, Borrower Assigned Agreements or other agreements
included in the Borrower Collateral, (c) the Agents, the Secured Parties,
the Administrative Agent, the Collateral Agent and the Custodian shall not have
any obligation or liability under the Transferred Receivables, Transferred
Dealer Transaction Rights, Borrower Assigned Agreements or other agreements
included in the Borrower Collateral by reason of this Agreement, and (d) neither
the Agent, the Administrative Agent, the Collateral Agent nor any of the
Secured Parties shall be obligated to perform any of the obligations or duties
of the Borrower, CAR, the Custodian or the Servicer under the Transferred
Receivables, Borrower Assigned Agreements or other agreements included in the
Borrower Collateral or to take any action to collect or enforce any claim for
payment assigned under this Agreement.


 


Release of Borrower Collateral.


 


Generally. 
To the extent that (i) the Borrowing Base equals or exceeds the
aggregate outstanding principal amount of Advances, (ii) all amounts due
and owing with respect to the Advances, including the Yield thereon and other
amounts due under the Receivables Financing Agreement have been paid in full,
and (iii) no Facility Termination Event or Unmatured Facility Termination
Event under Section 14.1 has occurred and is continuing, in connection
with the sale or transfer of Transferred Dealer Transaction Rights, Contracts
or Transferred Receivables pursuant to a Take-Out Securitization to which the
Administrative Agent has consented, in connection with the purchase by the
Servicer or the Seller of a Transferred Receivables and related Transferred
Dealer Transaction Right pursuant to the Sale and Servicing Agreement, in
connection with the payment in full of the Advances and other Obligations
hereunder, or if a Transferred Receivable is a Defaulted Receivable, the
Borrower may from time to time obtain releases of the Collateral Agent’s (for
the benefit of the Secured Parties) security interest in all or any part of the
Receivables Collateral (with the matters set forth in the foregoing clauses
(i), (ii) and (iii) being determined immediately after giving effect
to any requested release and any payments made on the date thereof, including,
without limitation, any repayment of Advances and payment of Yield thereon on
such date).  Each request (a “Transfer
Request”) for a partial release of Receivables Collateral, except in connection
with the purchase by the Servicer or the Seller of a Transferred Receivables or
Transferred Dealer Transaction Right or the sale or transfer of a Defaulted
Receivable pursuant to the Sale and Servicing Agreement (in which case, the
Collateral Agent’s security interest in such Transferred Receivable,
Transferred Dealer Transaction Right or Defaulted Receivable and in the
Contract and Title Documents therefor shall be deemed automatically released
without the execution of a Transfer Request so long as clause (c) of this Section 13.4
is complied with as to the proceeds, if any, of such transfer), shall be
addressed to the Administrative Agent and the Collateral Agent, demonstrating
compliance with the immediately preceding sentence and acknowledging that the
receipt of proceeds from such sale or transfer shall be deposited into the
Collection Account.


 


Transfers. 
With respect to each Transfer Request that is received by the
Administrative Agent by 12:00 noon, New York time on a Business Day, the
Administrative Agent shall use due diligence and reasonable efforts to review
such Transfer Requests and instruct the Custodian to prepare the files,
identified in each Transfer Request, for shipment by 12:00 noon, New York time
on the fourth succeeding Business Day or, with respect to shipping out more
than 1000 files on any one Business Day, as mutually agreed between the
Custodian and the Borrower.


 


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Continuation of Lien. 
Unless released in writing by the Collateral Agent, as herein provided,
the security interest in favor of the Collateral Agent, for the benefit of the
Secured Parties, in all Borrower Collateral shall continue in effect until such
time as the Collateral Agent shall have received payment in full of the
proceeds, if any, from the sale or transfer of such Borrower Collateral to
third parties in accordance with this Section 13.4.


 


Application of Proceeds;
No Duty.  Neither the Collateral Agent nor any Secured
Party shall be under any duty at any time to credit Borrower for any amount due
from any third party in respect of any purchase of any Receivables Collateral
contemplated above, until the Administrative Agent has actually received such
amount in immediately available funds for deposit to the Collection
Account.  Neither any Secured Party nor
the Collateral Agent shall be under any duty at any time to collect any amounts
or otherwise enforce any obligations due from any third party in respect of any
such purchase of Contracts or Transferred Receivables covered by the release of
such portion of Receivables Collateral or in respect of a securitization or
financing thereof with a third party.


 


Representation in
Connection with Releases, Sales and Transfers. 
The Borrower represents and warrants that each request for any release
or transfer in connection with any Take-Out Securitizations pursuant to Section 13.4(a) shall
automatically constitute a representation and warranty to the Secured Parties
and the Administrative Agent to the effect that immediately before and after
giving effect to such release or Transfer Request, there is no Facility
Termination Event or Unmatured Facility Termination Event under Section 14.1
and each of the other conditions set forth in Section 13.4 have been
satisfied.


 


Release of Security
Interest.  Upon receipt of a Transfer Request or, in
connection with the purchase by the Servicer or the Seller of a Transferred
Dealer Transaction Right pursuant to the Sale and Servicing Agreement, upon the
Servicer’s written request, and, in each case upon receipt in the Collection
Account of proceeds from the sale or transfer (including, without limitation,
in connection with the purchase by the Servicer or the Seller of a Transferred
Dealer Transaction Right pursuant to the Sale and Servicing Agreement, the
related Repurchase Amount), the Collateral Agent shall promptly release, at the
Borrower’s expense, such part of the Receivables Collateral covered in
connection with the Transfer Request or such Servicer’s request and shall
deliver, at the Borrower’s expense, and without recourse, representation or
warranty of any kind, the Contracts Files on the released portion of
Receivables Collateral to the trustee or such similar entity in connection with
the applicable Take-Out Securitization or, in connection with the purchase by
the Servicer, CAR or the Seller of a Transferred Dealer Transaction Right
pursuant to the Sale and Servicing Agreement, the Servicer; provided that the
trustee or such similar entity in connection with the third party securitization
(including any Take-Out Securitization) or the Servicer or the Borrower, as the
case may be, acknowledges and agrees (i) that all proceeds thereof that it
receives from such sale are held in trust for the Secured Parties and (ii) that
it shall transfer such funds to the Administrative Agent for deposit in the
Collection Account.  The foregoing
notwithstanding, upon the deposit into the Collection Account of all amounts
required to effect a full payment or prepayment by an Obligor of a Transferred
Dealer Transaction Right, the security interest of the Collateral Agent in that
Transferred Dealer Transaction Right and any rights to payment in respect of
the related Receivables shall be automatically deemed released.


 


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Expenses.  It is understood that
the Collateral Agent shall be entitled to receive reimbursement for its
reasonable, out-of-pocket, costs and expenses and such reimbursement obligation
shall be payable by the Borrower to the extent funds are available therefor
under Section 9.5 hereof and otherwise by CAR.


 


Representations And
Warranties Of the Collateral Agent.  The Collateral Agent represents and warrants as of the date
hereof that:


 


It
is a national banking association validly existing and in good standing under
the laws of the United States of America;


 


It
has full power, authority and legal right to execute, deliver and perform this
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement; and


 


This
Agreement has been duly executed and delivered by it and constitutes its legal,
valid and binding agreement, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency reorganization or
other similar laws affecting the enforcement of creditors’ rights generally and
by general principles of equity.


 


Certain Remedies.


 


Subject
to the provisions of Section 13.9 hereof, the Collateral Agent shall, at
the written direction of the Required Lenders, proceed to protect and enforce
its rights and the rights of the Secured Parties by such appropriate
proceedings as the Required Lenders shall deem necessary to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in any Transaction Document or in and of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Collateral Agent by any Transaction Document or by law.


 


In
case there shall be pending, relative to the Borrower or any other obligor upon
the Notes or any Person having or claiming an ownership interest in the
Borrower Collateral, proceedings under the Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Borrower or its property or such other obligor or Person,
or in case of any other comparable judicial proceedings relative to the
Borrower or other obligor upon the Notes, or to the creditors of property of
the Borrower or such other obligor, the Collateral Agent, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Collateral Agent shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered but without any obligation, subject to
Section 13.7(a), by intervention in such proceedings or otherwise:


 


to file and prove a claim
or claims for the whole amount of principal and Yield owing and unpaid in
respect of the Notes, all other amounts owing to the Investors and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Collateral Agent (including any claim for reimbursement of all
expenses (including the fees and expenses of counsel) and liabilities incurred,
and all advances, if any, made, by the Collateral Agent and each predecessor
Collateral Agent, except as determined to have been caused by its own gross
negligence or willful misconduct) and of each of the other Secured Parties
allowed in such proceedings;


 


44





















 


unless prohibited by
applicable law and regulations, to vote (with the consent of each Agent) on
behalf of the holders of the Notes in any election of a trustee, a standby
trustee or person performing similar functions in any such proceedings;


 


to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of the Secured
Parties on their behalf; and


 


to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Collateral Agent or the Secured Parties allowed in
any judicial proceedings relative to the Borrower, its creditors and its
property;


 


and any trustee,
receiver, liquidator, custodian or other similar official in any such
proceeding is hereby authorized by each of such Secured Parties to make
payments to the Collateral Agent, and, in the event that the Collateral Agent
shall consent, to the making of payments directly to such Secured Parties, to
pay to the Collateral Agent such amounts as shall be sufficient to cover all
reasonable expenses and liabilities incurred, and all advances made, by the
Collateral Agent and each predecessor Collateral Agent except as determined to
have been caused by its own gross negligence or willful misconduct.


 


45





















 


Nothing
herein contained shall be deemed to authorize the Collateral Agent to authorize
or consent to or vote for or accept or adopt on behalf of any Lender or other
Secured Party any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any holder thereof or to
authorize the Collateral Agent to vote in respect of the claim of any Secured
Party in any such proceeding except, pursuant to Section 13.7(b)(ii), to
vote for the election of a trustee in bankruptcy or similar person.


 


All
rights of action and of asserting claims under the Transaction Documents, may
be enforced by the Collateral Agent without the possession of the Notes or the
production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Collateral Agent shall be brought
in its own name as Collateral Agent, and any recovery of judgment, subject to
the payment of the reasonable expenses, disbursements and compensation of the
Collateral Agent, each predecessor Collateral Agent and their respective agents
and attorneys, shall be for the ratable benefit of the holders of the Notes and
other Secured Parties.


 


In
any proceedings brought by the Collateral Agent to enforce the Liens under the
Transaction Documents (and also any proceedings involving the interpretation of
any provision of any Transaction Document), the Collateral Agent shall be held
to represent all the Secured Parties, and it shall not be necessary to make any
Secured Party a party to any such proceedings.


 


Other Remedies.  Following an Event of
Default, the Collateral Agent shall, at the written direction of the Required
Lenders, also do one or more of the following (subject to Section 13.9):


 


institute
proceedings in its own name and on behalf of the Secured Parties as Collateral
Agent for the collection of all amounts then payable on the Notes or hereunder
and Fee Letter with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Borrower and any other
obligor upon the Notes moneys adjudged due;


 


institute proceedings from time to time for the
complete or partial foreclosure upon the Borrower Collateral;


 


exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect and enforce the right
and remedies of the Collateral Agent and the Secured Parties; and


 


sell the Borrower Collateral or any portion
thereof or rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law.


 


Limitation on Duty of Collateral
Agent in Respect of Collateral.


 


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Beyond
the exercise of reasonable care in the custody thereof, the Collateral Agent
shall have no duty as to any Borrower Collateral in its possession or control
or in the possession or control of any agent or bailee or any income thereon or
as to preservation of rights against prior parties or any other rights
pertaining thereto and the Collateral Agent shall not be responsible for filing
any financing or continuation statements or recording any documents or instruments
in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Borrower
Collateral.  The Collateral Agent shall
be deemed to have exercised reasonable care in the custody of the Borrower
Collateral in its possession if the Borrower Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not be
liable or responsible for any loss or diminution in the value of any of the
Borrower Collateral, by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by the Collateral Agent in
good faith. 


 


The
Collateral Agent shall not be responsible for the existence, genuineness or
value of any of the Borrower Collateral or for the validity, perfection,
priority or enforceability of the Liens in any of the Borrower Collateral,
whether impaired by operation of law or by reason of any action or omission to
act on its part hereunder, except to the extent such action or omission
constitutes gross negligence or willful misconduct on the part of the
Collateral Agent, for the validity or sufficiency of the Borrower Collateral or
any agreement or assignment contained therein, for the validity of the title of
the Borrower to the Borrower Collateral, for insuring the Borrower Collateral
or for the payment of taxes, charges, assessments or Liens upon the Borrower
Collateral or otherwise as to the maintenance of the Borrower Collateral. 


 


The
Collateral Agent shall have no duty to act outside of the United States in
respect of any Borrower Collateral located in any jurisdiction other than the
United States. 


 


The
Collateral Agent may act through its agents or attorneys and shall not be
liable for any misconduct or negligence of any such agents or attorneys
appointed with due care by it hereunder. 


 


In
no event shall Collateral Agent be liable for special, punitive or
consequential damages. 


 


No
provision of this Receivables Financing Agreement or any other Transaction
Document shall require the Collateral Agent to risk its own funds or otherwise
incur financial liability in the performance of its duties hereunder or
thereunder if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity is not assured to it.


 


FACILITY TERMINATION EVENTS; EVENTS OF DEFAULT


 


Facility Termination Events.  The occurrence of any of the following shall
constitute a Facility Termination Event under this Agreement:


 


The
aggregate principal amount of all Advances outstanding hereunder exceeds the
Borrowing Base and such condition continues unremedied for two Business Days;


 


47





















 


The
Internal Revenue Service shall file notice of a lien pursuant to Section 6323
of the Internal Revenue Code with regard to any of the assets of the Borrower
or the Seller and such lien shall not have been released within 30 days, or the
Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068
of ERISA with regard to any of the assets of the Borrower or the Seller and
such lien shall not have been released within 30 days;


 


(i) 
Any Transaction Document or any lien or security interest granted thereunder by
the Borrower, shall (except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally valid, binding and
enforceable obligation of the Borrower; or (ii) the Borrower, the Seller,
the Servicer, the Guarantor, CCRT or CAR or any other party shall, directly or
indirectly, contest in any manner the effectiveness, validity, binding nature
or enforceability of any Transaction Document to which it is a party; or (iii) any
security interest securing any Obligation shall, in whole or in part, cease to
be a perfected first priority security interest (except, as to priority, for
Permitted Liens that may arise after the applicable Purchase Date and as
provided in clause (b) above) against the Borrower;


 


A
Servicer Default shall have occurred and be continuing;


 


the
Delinquency Ratio exceeds ***;


 


the
Aggregate Outstanding Principal Balance of Eligible Receivables relating to
Dealers with Dealer Reserve Percentages less than 15% exceeds *** of Aggregate
Outstanding Principal Balance of all Eligible Receivables;  


 


the
Charge-Off Ratio exceeds (i) during any period other than a period that
includes any Collection Period that encompasses any month occurring during the
period of December through March of any year, *** or (ii) during
a period that includes any Collection Period that encompasses any month
occurring during the period of December through and including March of
any year, ***;


 


CCRT
fails to own directly or indirectly *** of the outstanding equity in the
Borrower; 


 


CAR
shall make any payment, dividend or other distribution to CCRT or any of its
Affiliates or to the principals of CCRT or CAR and the aggregate amount of such
payments, dividends and other distributions exceeds of *** without the prior
consent of the Administrative Agent (not to include amounts paid from time to
time in accordance with the Transaction Documents to the Servicer for Servicing
the Receivables relating to any Transferred Dealer Transaction Right or for any
tax payment due in accordance with the Transaction Documents);


 


the
Seller shall incur Indebtedness (other then any Indebtedness incurred pursuant
to the Transaction Documents) after the date hereof in an aggregate principal
amount in excess of *** without the prior consent of the Administrative Agent; 


 


the
Pool Discount/Reserve Percentage exceeds ***; or


 


the
occurrence of an Event of Default.


 


Events of Default.  Each of the following shall constitute an
Event of Default under this Agreement:


 


48





















 


Default
in the payment when due of any principal of any Advance, which default shall
continue unremedied for one Business Day, or default in the payment of any
other amount payable by the Borrower or CAR (in any capacity) hereunder,
including, without limitation, any Yield on any Advance or any Fees which default
shall continue for two Business Days;


 


The
Borrower, CAR (in any capacity), the Servicer or CCRT shall fail to perform in
any material respect any covenant applicable to it contained in this Agreement
or any other Transaction Document, and, except in the case of the covenants and
agreements contained in Sections 11.7 and 11.8, as to each of which no grace
period shall apply, any such failure shall remain unremedied for 30 days after
knowledge thereof or after written notice thereof shall have been given by the
Administrative Agent to the Borrower, CAR, the Servicer or CCRT, as applicable;


 


Any
representation or warranty of the Borrower, CAR (in any capacity), the Servicer
or CCRT made or deemed to have been made hereunder or in any other Transaction
Document or any other writing or certificate furnished by or on behalf of the
Borrower, CAR, the Servicer or CCRT to the Administrative Agent for purposes of
or in connection with this Agreement or any other Transaction Document shall
prove to have been false or incorrect when made or deemed to have been made,
and such failure would result in a Material Adverse Effect with respect to such
Person, and such failure shall remain unremedied for 30 days after knowledge
thereof or after written notice thereof shall have been given by the
Administrative Agent to the Borrower, CAR, the Servicer or CCRT, as applicable;
provided that no breach shall be deemed to occur hereunder in respect of any
representation or warranty relating to the “eligibility” of any Receivable
relating to any Transferred Dealer Transaction Right if such Transferred Dealer
Transaction Right shall have been purchased or repurchased by the Servicer or
the Seller; or


 


An
Insolvency Event shall have occurred and be continuing with respect to the Borrower,
the Seller, the Servicer or CCRT.


 


Effect of an Event of Default.


 


Optional
Termination.  Upon notice by the Administrative Agent that
an Event of Default (other than an Event of Default described in Section 14.2(d))
has occurred, and so long as such Event of Default is continuing, the Required
Lenders may declare all or any portion of the outstanding principal amount of
the Advances and other Obligations to be due and payable, whereupon the full
unpaid amount of such Advances and other Obligations which shall be so declared
due and payable shall be and become immediately due and payable, without
further notice, demand or presentment and the Facility Termination Date shall
be deemed to have occurred.


 


Automatic
Termination.  Upon the occurrence of an Event of Default
described in Section 14.2(d), the Facility Termination Date shall be
deemed to have occurred automatically, and all outstanding Advances under this
Agreement and all other Obligations under this Agreement shall become
immediately and automatically due and payable, all without presentment, demand,
protest or notice of any kind.  


 


49





















 


The
Administrative Agent will give the Collateral Agent written notice of the
occurrence of any Event of Default or any waiver of any Event of Default,
provided that the failure of the Administrative Agent to give the Collateral
Agent written notice of any Event of Default shall not affect the rights of the
Administrative Agent, the Collateral Agent or the Lenders with respect to the
Borrower or the Borrower Collateral following such Event of Default.


 


Rights Upon Event of
Default.  If an Event of Default shall have occurred
and be continuing, the Required Lenders may direct the Administrative Agent to
exercise any of the remedies specified herein in respect of the Borrower
Collateral.


 


Rights Upon Facility
Termination Event.  If a Facility Termination Event
shall have occurred and be continuing, the Facility Termination Date shall
occur and the commitments of the Lenders hereunder shall terminate.


 


THE AGENTS


 


Appointment.  Each Lender and each Agent hereunder hereby
irrevocably designates and appoints U.S. Bank National Association as
Collateral Agent hereunder and under the other Transaction Documents, and
authorizes the Collateral Agent to take such action on its behalf under the
provisions of this Agreement and the other Transaction Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Collateral Agent by the terms of this Agreement and the other Transaction
Documents, together with such other powers as are reasonably incidental
thereto.  Each Lender and each Agent
hereunder hereby irrevocably designates and appoints Deutsche Bank AG, New York
Branch as the Administrative Agent hereunder and under the other Transaction
Documents, and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and the other Transaction
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Transaction Documents, together with such other powers as are reasonably
incidental thereto.  Each Lender in each
Lender Group hereby irrevocably designates and appoints the Agent for such
Lender Group as the agent of such Lender under this Agreement, and each such
Lender irrevocably authorizes such Agent, as the agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other
Transaction Documents and to exercise such powers and perform such duties
thereunder as are expressly delegated to such Agent by the terms of this
Agreement and the other Transaction Documents, together with such other powers
as are reasonably incidental thereto. 
The Collateral Agent, the Administrative Agent and each Agent hereby accepts such appointment. 
Each of the Administrative Agent and the Collateral Agent shall promptly
deliver, but in any event no later than the following Business Day, a copy of
any notice, certificate, report or other documents received by it in its
capacity as Administrative Agent or Collateral Agent to each Agent, provided
that the Collateral Agent shall not be obligated to deliver any such copy to
DBNY, in its capacity as an Agent, if DBNY is the Administrative Agent at such
time and the notice, certificate, report or other document on its face
indicates that the Administrative Agent has received a copy of such item.  Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither the Administrative Agent, the Collateral
Agent nor any Agent (the Administrative Agent, the Collateral Agent and each
Agent being referred to in this Article as a “Note Agent”) shall
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against any Note Agent.


 


Delegation of Duties.  Each Note Agent may execute any of its duties
under this Agreement and the other Transaction Documents by or through its
subsidiaries, affiliates, agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties.  No Note Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable CARS Acquisition.  The Administrative Agent hereby directs the
Collateral Agent to appoint, and the Collateral Agent hereby appoints, the
Custodian to act as its agent to maintain custody of the Contract Files and for
the other purposes described in Section 3.03 of the Sale and Servicing
Agreement.


 


Exculpatory Provisions.  Neither any Note Agent (acting in such
capacity) nor any of its directors, officers, agents or employees shall be (a) liable
for any action lawfully taken or omitted to be taken by it or them or any
Person described in Section 15.2 under or in connection with this Agreement
or the other Transaction Documents (except for its, their or such Person’s own
gross negligence or willful misconduct), or (b) responsible in any manner
to any Person for any recitals, statements, representations or warranties of
any Person (other than itself) contained in the Transaction Documents or in any
certificate, report, statement or other document referred to or provided for
in,


 


50





















 


or received under or in connection with, the
Transaction Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of the Transaction Documents or any other
document furnished in connection therewith or herewith, or for any failure of
any Person (other than itself or its directors, officers, agents or employees)
to perform its obligations under any Transaction Document or for the
satisfaction of any condition specified in a Transaction Document.  Except as otherwise expressly provided in
this Agreement, no Note Agent shall be under any obligation to any Person to
ascertain or to inquire as to the observance or performance of any of the
agreements or covenants contained in, or conditions of, the Transaction
Documents, or to inspect the properties, books or records of the Borrower, the
Seller, CAR, the Guarantor, CCRT, the Custodian, the Backup Servicer, any Cap
Provider or the Servicer.


 


Reliance by Agents.  Each Note Agent shall in all cases be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to each
of the Lenders), independent accountants and other experts selected by such
Note Agent.  Each Note Agent shall in all
cases be fully justified in failing or refusing to take any action under this
Agreement, any other Transaction Document or any other document furnished in
connection herewith or therewith unless it shall first receive such advice or
concurrence of the Lenders, as it deems appropriate, or it shall first be
indemnified to its satisfaction (i) in the case of the Administrative
Agent or the Collateral Agent, by the Lenders or (ii) in the case of an
Agent, by the Lenders in its Lender Group, against any and all liability, cost
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  Each of the
Administrative Agent and the Collateral Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement, the
other Transaction Documents or any other document furnished in connection
herewith or therewith in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders.  Each Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement, the other Transaction Documents or any other document
furnished in connection herewith or therewith in accordance with a request of the
Lenders in its Lender Group holding greater than 50% of the outstanding
Advances held by such Lender Group, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders in such
Lender Group.


 


Notices.  No Note Agent shall be deemed to have
knowledge or notice of the occurrence of any breach of this Agreement or the
occurrence of any Facility Termination Event unless such Note Agent has
received notice from the Servicer, the Borrower or any Lender, referring to
this Agreement and describing such event. 
In the event that the Administrative Agent or the Collateral Agent
receives such a notice, it shall promptly give notice thereof to each Agent,
and in the event any Agent receives such a notice, it shall promptly give
notice thereof to the Lenders in its Lender Group.  The Administrative Agent or Collateral Agent
shall take such action with respect to such event as shall be reasonably
directed by the Required Lenders, and each Agent shall take such action with
respect to such event as shall be reasonably directed by (i) Lenders in
its Lender holding greater than 50% of the outstanding Advances held by such
Lender Group; provided that unless and until such Note Agent shall have
received such directions, such Note Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
event as it shall deem advisable in the best interests of the Lenders or of the
Lenders in its Lender Group, as applicable.


 


Non-Reliance on Agent.  The Lenders expressly acknowledge that
neither any Note Agent, nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to
it and that no act by a Note Agent hereafter taken, including, without
limitation, any review of the affairs of the Borrower, the Borrower, the
Seller, CAR, the Guarantor, CCRT, the Servicer, the Custodian or the Backup
Servicer, shall be deemed to constitute any representation or warranty by such
Note Agent to any Lender.  Each Lender
represents to each Note Agent that it has, independently and without reliance
upon any Note Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower, the Seller, CAR, the Guarantor,
CCRT, the Servicer, the Custodian, the Backup Servicer and the Borrower
Collateral and made its own decision to purchase its interest in the Notes
hereunder and enter into this Agreement. 
Each Lender also represents that it will, independently and without
reliance upon any Note Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis, appraisals and decisions in taking or not taking action under any
of the Transaction Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrower, the Seller, CAR, the
Guarantor, CCRT, the Servicer, the Custodian, the Backup Servicer and the
Borrower Collateral.  Except as expressly
provided


 


51





















 


herein, no Note Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the Borrower Collateral or the business, operations, property,
prospects, financial and other condition or creditworthiness of the Borrower,
the Seller, CAR, the Guarantor, CCRT, the Borrower, the Servicer, the Custodian
or the Backup Servicer which may come into the possession of such Note Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


Indemnification.  (i)  The Committed Lenders agree to
indemnify each of the Administrative Agent and the Collateral Agent and their
respective officers, directors, employees, representatives and agents (to the
extent not reimbursed by the Borrower, the Seller, the Guarantor, CCRT, the
Servicer, the Custodian or CAR under the Transaction Documents, and without
limiting the obligation of such Persons to do so in accordance with the terms
of the Transaction Documents), ratably according to their Commitment
Percentages and (ii) the Committed Lenders in each Lender Group agree to
indemnify the Agent for such Lender Group in its capacity as such (without
limiting the obligation (if any) of the Borrower, the Seller, the Guarantor,
CCRT, the Servicer, the Custodian or CAR under the Transaction Documents to
reimburse such Agent for any such amounts), ratably according to their
respective Commitments, in each case, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such Note
Agent or the affected Person in connection with any investigative, or judicial
proceeding commenced or threatened, whether or not such Note Agent or such
affected Person shall be designated a party thereto) that may at any time be
imposed on, incurred by or asserted against such Note Agent or such affected
Person as a result of, or arising out of, or in any way related to or by reason
of, any of the transactions contemplated hereunder or under the Transaction
Documents or any other document furnished in connection herewith or therewith
(but excluding any such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the gross negligence or willful misconduct of such Note Agent or such
affected Person).  The provisions of this
Section 15.7 shall survive the termination of the Transaction
Documents and the resignation or removal of the Administrative Agent,
Collateral Agent or any other Note Agent.


 


Successor Agent.  Each of the Administrative Agent and
Collateral Agent may, upon five (5) days’ notice to the Lenders (with a
copy to the Borrower and the Servicer), resign as Administrative Agent or
Collateral Agent; provided, that an Agent or a Lender agrees to become
the successor Administrative Agent or Collateral Agent hereunder in accordance
with the next sentence.  If the
Administrative Agent or Collateral Agent shall resign as Administrative Agent
or Collateral Agent under this Agreement, then the Required Lenders during such
period shall appoint from among the Agents and the Committed Lenders a
successor agent, whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent or Collateral Agent, as the case
may be, and the term “Administrative Agent” or “Collateral Agent” shall mean
such successor agent, effective upon its acceptance of such appointment, and
the rights, powers and duties of the former Administrative Agent or Collateral
Agent as Administrative Agent or Collateral Agent shall be terminated, without
any other or further act or deed on the part of such former agent or any of the
parties to this Agreement.  In the event of any such resignation of the Administrative
Agent or Collateral Agent, the Administrative Agent or Collateral Agent shall
promptly transfer (upon its receipt of any outstanding fees, expenses and
indemnities due and owing to it) to the successor Administrative Agent or
Collateral Agent, as the case may be, as directed in writing by the Required
Lenders, all accounts, funds and investments being administered under this
Agreement and shall cooperate with the Required Lenders, CAR and the successor
administrative agent to facilitate the continued perfection and priority of the
Lien granted for the benefit of the Secured Parties in the Borrower Collateral.  Any Agent may resign as Agent upon ten
days’ notice to the Lenders in its Lender Group, the Administrative Agent and
each other Agent, the Borrower and the Servicer with such resignation becoming
effective upon a successor agent succeeding to the rights, powers and duties of
the Agent pursuant to this Section 15.8.  If an Agent shall resign as Agent under this
Agreement, then Lenders in its Lender Group holding greater than 50% of the
outstanding Advances (or, if no Advances are outstanding, the Noncommited
Lender and more than 50% (by Commitment) of the Committed Lenders in such
Lender Group) held by such Lender Group shall appoint from among the Committed
Lenders in such Lender Group a successor agent for such Lender Group.  After any retiring Note Agent’s resignation
hereunder as Note Agent, the provisions of this Article XV shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Note Agent under this Agreement. 
No resignation of any Note Agent shall become effective until a successor
Note Agent shall have assumed the responsibilities and obligations of such Note
Agent; provided, however, that in the event a successor Note
Agent is not appointed within 60 days after such Note Agent has given notice of
its resignation as permitted by this Section 15.8, such Note Agent
may petition a court of competent jurisdiction for its removal and appointment
of a successor.


 


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Agents in their Individual
Capacity.  Each Note
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, the Seller, CAR, the
Guarantor, CCRT, the Servicer, the Custodian, the Backup Servicer or any other
Note Agent or Investor as though such Note Agent were not an agent
hereunder.  In addition, the Lenders
acknowledges that one or more Persons which are Note Agents may act (i) as
administrator, sponsor or agent for one or more Noncommitted Lenders and in
such capacity acts and may continue to act on behalf of each such Noncommitted
Lender in connection with its business, and (ii) as the agent for certain
financial institutions under the liquidity and credit enhancement agreements
relating to this Agreement to which any one or more Noncommitted Lenders is party
and in various other capacities relating to the business of any such
Noncommitted Lender under various agreements. 
Any such Person, in its capacity as Note Agent, shall not, by virtue of
its acting in any such other capacities, be deemed to have duties or
responsibilities hereunder or be held to a standard of CARS Acquisition in
connection with the performance of its duties as a Note Agent other than as
expressly provided in this Agreement. 
Any Person which is a Note Agent may act as a Note Agent without regard
to and without additional duties or liabilities arising from its role as such
administrator or agent or arising from its acting in any such other capacity.


 


ASSIGNMENTS


 


Restrictions on Assignments.  Except as specifically provided herein and in
the Transaction Documents, neither the Borrower, the Seller, the Guarantor,
CCRT, the Servicer, CAR, the Administrative Agent, the Collateral Agent, the
Custodian nor Backup Servicer may assign any of their respective rights or
obligations hereunder or any interest herein without the prior written consent
of the Administrative Agent and the Required Lenders.  No Noncommitted Lender shall assign any of
its Advances or rights hereunder without the consent of its Committed Lenders
and the consent of the Borrower; and no Committed Lender may assign any of its
Advances or rights or commitments hereunder without the consent of the related
Noncommitted Lenders and the consent of the Borrower.  Any Lender may furnish any information
concerning the Borrower, the Seller, the Servicer, the Guarantors, CAR or CCRT
or the Transaction Documents to prospective assignees or participants; provided
that prior to furnishing any such information, any such prospective assignee or
participant shall have executed a confidentiality agreement in which it agrees
to comply with the provisions of Section 18.14.


 


Documentation.  Each Lender shall deliver to each assignee an
assignment, in such form as such Lender and the related assignee may agree,
duly executed by such Lender assigning any such rights, obligations, Advance or
Note to the assignee; and such Lender shall promptly execute and deliver all
further instruments and documents, and take all further action, that the
assignee may reasonably request, in order to perfect, protect or more fully
evidence the assignee’s right, title and interest in and to the items assigned,
and to enable the assignee to exercise or enforce any rights hereunder or under
the Notes evidencing such Advance.


 


Rights of Assignee.  Upon the foreclosure of any assignment of any
Advances made for security purposes, or upon any other assignment of any
Advance from any Lender pursuant to this Article XVI, the
respective assignee receiving such assignment shall have all of the rights of
such Lender hereunder with respect to such Advances and all references to the
Lender or Investors in Section 6.1 shall be deemed to apply to such
assignee.


 


Notice of Assignment.  Each Lender shall provide notice to the
Borrower, the Servicer and the Seller of any assignment hereunder by such
Lender to any assignee.  Each Lender
authorizes the related Agent to, and such Agent agrees that it shall, endorse
the Notes to reflect any assignments made pursuant to this Article XVI
or otherwise, together with a copy of the executed assignments, which shall
include the address, contact information, and payment instructions for the
assignee.


 


Registration; Registration of
Transfer and Exchange.


 


The
Administrative Agent shall keep a register (the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Administrative
Agent shall provide for the registration of the Notes and of transfer of
interests in the Notes.  The
Administrative Agent is hereby appointed “Note Registrar” for the purpose of
registering the Notes and transfers of the Notes as herein provided.


 


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Each
person who has or who acquired an interest in a Note shall be deemed by such
acquisition to have agreed to be bound by the provisions of this Section 16.5.  A Note may be exchanged (in accordance with Section 16.5(c))
and transferred to the holders (or their agents or nominees) of the Advances
and to any assignee (in accordance with Section 16.1) (or its agent or
nominee) of all or a portion of the Advances. 
The Administrative Agent shall not register (or cause to be registered)
the transfer of such Note, unless the proposed transferee shall have delivered
to the Administrative Agent (i) either (x) evidence satisfactory to
it that the transfer of such Note is exempt from registration or qualification
under the Securities Act of 1933, as amended, and all applicable state
securities laws and that the transfer does not constitute a “prohibited
transaction” under ERISA or (y) an express agreement by the proposed
transferee to be bound by and to abide by the provisions of this Section 16.5,
the restrictions noted on the face of such Note and (ii) a properly
executed Form W-9 and, in the case of a transferee who is a foreign person
(within the meaning of Section 7701(a)(5) of the Code), a properly
executed Form W-8ECI, Form W-8BEN or Form W-81MY.


 


At
the option of the holder thereof, a Note may be exchanged for one or more new
Notes of any authorized denominations and of a like class and aggregate
principal amount at an office or agency of the Borrower.  Whenever any Note is so surrendered for
exchange, the Borrower shall execute and deliver (through the Administrative
Agent) the new Note which the holder making the exchange is entitled to
receive.


 


Upon
surrender for registration of transfer of any Note at an office or agency of
the Borrower, the Borrower shall execute and deliver (through the
Administrative Agent), in the name of the designated transferee or transferees,
one or more new Notes of any authorized denominations and of a like class and
aggregate principal amount.


 


All
Notes issued upon any registration of transfer or exchange of any Note in
accordance with the provisions of this Agreement shall be the valid obligations
of the Borrower, evidencing the same debt, and entitled to the same benefits
under this Agreement, as the Note(s) surrendered upon such registration of
transfer or exchange.


 


Every
Note presented or surrendered for registration of transfer or for exchange
shall (if so required by the Borrower or the Administrative Agent) be fully
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Note Registrar, duly executed by the holder thereof or his
attorney duly authorized in writing. 
Each such Note shall be accompanied by a statement providing the name of
the transferee and indicating whether the transferee is subject to income tax
backup withholding requirements and whether the transferee is the sole
beneficial owner of such Notes.


 


No
service charge shall be made for any registration of transfer or exchange of a
Note, but the Borrower may require payment from the transferee holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer of exchange of a Note, other than
exchanges pursuant to this Section 16.5.


 


The
holders of the Notes shall be bound by the terms and conditions of this
Agreement.


 


Mutilated, Destroyed, Lost and Stolen Notes.


 


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If
any mutilated Note is surrendered to the Administrative Agent, the Borrower
shall execute and deliver (through the Administrative Agent) in exchange
therefor a new Note of like class and tenor and principal amount and bearing a
number not contemporaneously outstanding.


 


If
there shall be delivered to the Borrower and the Administrative Agent prior to
the payment of the Notes (i) evidence to their satisfaction of the
destruction, loss or theft of any Note and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Borrower or the Administrative
Agent that such Note has been acquired by a bona fide Lender, the Borrower
shall execute and deliver (through the Administrative Agent), in lieu of any
such destroyed, lost or stolen Note, a new Note of like class, tenor and
principal amount and bearing a number not contemporaneously outstanding.


 


Upon
the issuance of any new Note under this Section 16.6, the Borrower may
require the payment from the transferor holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses connected therewith.


 


Every
new Note issued pursuant to this Section 16.6 and in accordance with the
provisions of this Agreement, in lieu of any destroyed, lost or stolen Note
shall constitute an original additional contractual obligation of the Borrower,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Notes duly issued
hereunder.


 


The
provisions of this Section 16.6 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of a mutilated, destroyed, lost or stolen Note.


 


Persons Deemed Owners.  The
Borrower, the Servicer, the Seller, the Backup Servicer, the Agents, the
Administrative Agent, the Collateral Agent, the Custodian and any agent for any
of the foregoing may treat the holder of any Note as the owner of such Note for
all purposes whatsoever, whether or not such Note may be overdue, and none of
Borrower, the Seller, the Guarantor, CCRT, the Servicer, the Agents, the
Administrative Agent, the Collateral Agent, the Custodian and any such agent
shall be affected by notice to the contrary.


 


Cancellation.  All Notes surrendered for payment or
registration of transfer or exchange shall be promptly canceled.  The Borrower shall promptly cancel and
deliver to the Administrative Agent any Notes previously authenticated and
delivered hereunder which the Borrower may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly canceled by the
Borrower.  No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 16.8, except as expressly permitted by this Agreement.


 


Participations; Pledge.


 


At
any time and from time to time, each Lender may, in accordance with applicable
law, at any time grant participations in all or a portion of its Commitment
and/or its interest in the Advances and other payments due to it under this
Agreement and the Notes to any Person (each, a “Participant”); provided,
however, that no participation shall be granted to any Person unless and until
the Administrative Agent shall have consented thereto (which consent shall not
be unreasonably withheld or delayed). 
Each Lender hereby acknowledges and agrees that (A) any such
participation will not alter or affect such Lender’s direct obligations
hereunder, and (B) neither the Borrower, the Seller, the Guarantor, CCRT,
Administrative Agent, the Collateral Agent, the Custodian, any Agent, the
Backup Servicer nor the Servicer shall have any obligation to have any
communication or relationship with any Participant.  Each Participant shall comply with the
provisions of Section 5.1(c).


 


55





















 


Each
Lender may pledge its interest in the Advances and the Notes to any Federal
Reserve Bank as collateral in accordance with applicable law.


 


INDEMNIFICATION


 


Indemnity.  The Borrower (to the extent of funds
available therefor under Section 9.5 of this Agreement) agrees, to
indemnify and hold harmless the Administrative Agent, the Collateral Agent, the
Backup Servicer, the Lenders, the Agents and each of their Affiliates, and
their respective successors and assigns (each an “Indemnified Party”)
against any and all claims, damages, losses, liabilities or expenses
(including, but not limited to, reasonable attorneys’ fees, court costs and
costs of investigation to the extent actually incurred) of any kind or nature
whatsoever awarded against or incurred by any of them in connection with this
Agreement and the Transaction Documents; excluding, however, as
to each Indemnified Party (and the Borrower shall not have any obligation to
indemnify any such Person for any liabilities arising from), (a) claims,
damages, losses, liabilities or expenses payable to such Indemnified Party to the extent determined by a court of
competent jurisdiction to have resulted from gross negligence or willful
misconduct on the part of any such Indemnified Party
or its agent or subcontractor, or (b) taxes
imposed on such Indemnified Party or any affiliate thereof, however
denominated, and franchise taxes imposed on the net income of any Indemnified
Party, in each case imposed: (1) by the United States or any political
subdivision or taxing authority thereof or therein; (2) by any
jurisdiction under the laws of which such Indemnified Party or its applicable
lending office is organized or located, managed or controlled or in which its
principal office is located or any political subdivision or taxing authority
thereof or therein; or (3) by reason of any connection between the
jurisdiction imposing such tax and such Indemnified Party or such lending
office other than a connection arising solely from this Agreement or any other
Transaction Document or any transaction hereunder or thereunder.  The provisions of
this Section 13.7 shall survive the resignation or removal of the
Administrative Agent or the Collateral Agent or any successor Administrative
Agent or the Collateral Agent and the termination of this Agreement.  If the Borrower has made any indemnity
payments pursuant to this Section 17.1 and the Indemnified Party
thereafter collects any of such amounts from others, such Indemnified Party
shall promptly repay such amounts collected to the Borrower, without interest.


 


Contribution.  If for any reason (other than the exclusions (a) through
(b) set forth in Section 17.1) the indemnification provided
above in Section 17.1 is unavailable to an Indemnified Party or is
insufficient to hold an Indemnified Party harmless, then the Borrower agrees to
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is appropriate
to reflect not only the relative benefits received by such Indemnified Party,
on the one hand, and the Borrower, on the other hand, but also the relative
fault of such Indemnified Party, on the one hand, and the Borrower, on the
other hand, as well as any other relevant equitable considerations.


 


MISCELLANEOUS


 


No Waiver; Remedies.  No failure
on the part of any Investor, any Agent, the Administrative Agent, the
Collateral Agent, any Indemnified Party or any Affected Person to exercise, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by any of them of any
right, power or remedy hereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.  Without limiting the foregoing, each Investor
and Participant is hereby authorized by the Borrower, the Seller and CAR at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by it to or
for the credit or the account of the Borrower, the Seller or CAR (as the case
may be) to the amounts owed by the Borrower, such Seller or CAR, respectively,
under this Agreement, to the Administrative Agent, the Collateral Agent, the
Agents, any Affected Person, any Indemnified Party or any Investor or their
respective successors and assigns.


 


Amendments, Waivers.  This Agreement may not be amended,
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 18.2.  With the written consent of the Required
Lenders, the Agents, Borrower, the Seller, the Guarantor, CCRT, the Servicer,
CAR, Administrative Agent, the Collateral Agent, the Custodian and the Backup
Servicer may, from time to time, enter into written amendments, supplements,
waivers or modifications hereto for the purpose of adding any provisions to
this


 


56





















 


Agreement or changing in any manner the
rights of any party hereto or waiving, on such terms and conditions as may be
specified in such instrument, any of the requirements of this Agreement; provided,
however, that no such amendment, supplement, waiver or modification
shall (i) reduce the amount of or extend the maturity of any payment with
respect to an Advance or reduce the rate or extend the time of payment of Yield
thereon, or reduce or alter the timing of any other amount payable to any
Lender hereunder, in each case without the consent of each Lender affected
thereby or (ii) amend, modify or waive any provision of this Section 18.2
or 18.11, or reduce the percentage specified in the definition of Required
Lenders, in each case without the written consent of all Lenders.  Any waiver of any provision of this Agreement
shall be limited to the provisions specifically set forth therein for the period
of time set forth therein and shall not be construed to be a waiver of any
other provision of this Agreement.  No
amendment, supplement, modification or waiver of this Agreement shall take
effect unless each Rating Agency shall have confirmed that such action will not
result in the withdrawal or reduction of its rating of the Notes.


 


Notices, Etc.  All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages hereof
or at such other address or facsimile number as shall be designated by such
party in a written notice to the other parties hereto.  All such notices and communications to CAR,
CAR Servicing or CCRT, in any capacity, shall be copied to its counsel,
Troutman Sanders LLP, 600 Peachtree Street, Suite 5200, Atlanta, Georgia
30308-2216, Attn: William Brinkley Dickerson, Esq., 404-885-3822
(telephone), 404-962-6743 (facsimile). 
All such notices and communications to the Borrower shall be copied to
its counsel, Lionel Sawyer & Collins, 50 W. Liberty Street, Suite 1100,
Reno, NV 89501, Attn: Colleen A. Dolan, (telephone) 775-788-8654, (facsimile)
775-788-8682.  All such notices and
communications shall be effective, (a) if personally delivered, when
received, (b) if sent by certified mail, three Business Days after having
been deposited in the mail, postage prepaid, (c) if sent by overnight
courier, one Business Day after having been given to such courier, and (d) if
transmitted by facsimile, when sent, receipt confirmed by telephone or
electronic means, except that notices and communications pursuant to Section 2.2
shall not be effective until received.


 


Costs, Expenses and Taxes.  (a)  In addition to the rights of
indemnification granted under Section 17.1, the Borrower or CAR on
behalf of the Borrower agrees to pay on demand all reasonable out of pocket
costs and expenses of the Administrative Agent, the Collateral Agent, the
Backup Servicer, the Agents and the Lenders in connection with the preparation
(subject to the Fee Letter), execution, delivery and syndication of this
Agreement, any Support Facility and the other documents and agreements to be
delivered hereunder or with respect hereto, and CAR further agrees to pay all
reasonable out of pocket costs and expenses of the Administrative Agent, the
Collateral Agent, the Backup Servicer, the Agents and the Lenders in connection
with any amendments, waivers or consents executed in connection with this
Agreement and any Support Facility, including, without limitation, the
reasonable actual fees and out-of-pocket expenses of counsel for the Administrative
Agent, the Collateral Agent, the Backup Servicer, the Agents and the Lenders
with respect thereto and with respect to advising the Administrative Agent, the
Collateral Agent, the Backup Servicer, the Agents and the Lenders as to their
rights and remedies under this Agreement and any Support Facility, and to pay
all reasonable costs and expenses, if any (including reasonable counsel fees
and expenses actually incurred), of the Administrative Agent, the Collateral
Agent, the Backup Servicer, the Agents, the Lenders, the Investors, and their
respective Affiliates, in connection with the enforcement against CCRT, CAR or
the Borrower of this Agreement or any of the other Transaction Documents and
the other documents and agreements to be delivered hereunder or with respect
hereto, provided that, so long as no Facility Termination Event has
occurred and is continuing, after the Effective Date the Borrower and CAR,
individually or collectively, shall not be obligated under this Agreement to
reimburse (x) the Administrative Agent, the Agents, the Lenders and the
Investors for costs and expenses, including without limitation filing fees,
periodic audit expenses, rating agency fees, due diligence expenses, accounting
expenses, fees and expenses of counsel and disbursements, in excess of $100,000
in the aggregate in any calendar year, (y) the Backup Servicer for costs and
expenses, including without limitation filing fees, periodic audit expenses,
fees and expenses of counsel and disbursements, in excess of $25,000 in the
aggregate in any calendar year and (z) the Collateral Agent for costs and
expenses, including without limitation filing fees, periodic audit expenses,
fees and expenses of counsel and disbursements, in excess of $25,000 in the
aggregate in any calendar year.


 


Binding Effect; Survival.  This Agreement shall be binding upon and
inure to the benefit of Borrower, the Seller, the Guarantor, CCRT, the
Investors, the Agents, the Administrative Agent, the Collateral Agent, the
Back-Up Servicer, the Custodian, the Servicer, CAR, and their respective
successors and permitted assigns, and the provisions of Section 5.1(b),
Article VI, Section 12.1 and Article XVII
shall inure to the benefit of the Affected Persons and the Indemnified Parties,
respectively, and their respective successors and permitted assigns; provided,
however, nothing in the foregoing shall be deemed to authorize any
assignment not permitted by Article XVI or any other provisions


 


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of the Transaction Documents.  This Agreement shall create and constitute
the continuing obligations of the parties hereto in accordance with its terms,
and shall remain in full force and effect until such time when all Obligations
have been finally and fully paid and performed. 
The rights and remedies with respect to any breach of any representation
and warranty made by the Borrower pursuant to Article X and the
indemnification and payment provisions of Article VI,  Section 12.1
and Article XVII and the provisions of Section 18.10, Section 18.11
and Section 18.12 shall be continuing and shall survive any
termination of this Agreement and any termination of CAR’s rights to act as
Servicer hereunder or under any other Transaction Document.


 


Captions and Cross References.  The various captions (including, without
limitation, the table of contents) in this Agreement are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.  Unless
otherwise indicated, references in this Agreement to any Section, Schedule or
Exhibit are to such Section of or Schedule or Exhibit to
this Agreement, as the case may be, and references in any Section, subsection,
or clause to any subsection, clause or subclause are to such subsection, clause
or subclause of such Section, subsection or clause.


 


Severability.  Any provision of this Agreement which is
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 of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.


 


GOVERNING LAW.  THIS AGREEMENT AND THE NOTES SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PRINCIPLES (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


Counterparts.  This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
but all of which shall constitute together but one and the same agreement.


 


WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE SELLER, THE BORROWER, THE SERVICER, THE CUSTODIAN, THE BACKUP
SERVICER, THE GUARANTOR, ADMINISTRATIVE/COLLATERAL AGENT, THE AGENTS, THE
INVESTORS OR ANY OTHER AFFECTED PERSON. 
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR ITS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER
TRANSACTION DOCUMENT.


 


No Proceedings.


 


Each
of the Borrower, the Seller, CAR, the Guarantor, CCRT, the Custodian, the
Servicer, the Backup Servicer, the Administrative Agent, the Collateral Agent,
each Agent and each Investor hereby agrees that it will not institute against
any Lender which is a Structured Lender, or join any other Person in
instituting against such Lender, any insolvency proceeding (namely, any
proceeding of the type referred to in the definition of Insolvency Event) so
long as any commercial paper or other senior indebtedness issued by such Lender
shall be outstanding or there shall not have elapsed one year plus one day
since the last day on which any such commercial paper or other senior
indebtedness shall be outstanding.  The
foregoing shall not limit such Person’s right to file any claim in or otherwise
take any action with respect to any insolvency proceeding that was instituted
by any Person other than such Person.


 


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Each
of CAR, the Custodian, the Servicer, the Seller, the Backup Servicer, each
Agent, each Investor, the Administrative Agent and the Collateral Agent hereby
agrees that it will not institute against the Borrower, or join any other
Person in instituting against the Borrower, any insolvency proceeding (namely,
any proceeding of the type referred to in the definition of Insolvency Event)
so long as any Advances or other amounts due from the Borrower hereunder or any
indebtedness issued by the Borrower secured by motor vehicle installment sales
contracts or loans and other related collateral shall be outstanding, or there
shall not have elapsed one year plus one day since the last day on which any
such Advances or other amounts shall be outstanding.  The foregoing shall not limit such Person’s
right to file any claim in or otherwise take any action with respect to any
insolvency proceeding that was instituted by any Person other than such Person.


 


Limited Recourse.  No recourse under any obligation, covenant or
agreement of a Lender, the Borrower, CAR, or the Servicer contained in this
Agreement shall be had against any incorporator, stockholder, officer,
director, member, manager, employee or agent of any Lender, the Borrower, CAR,
or the Servicer, or any of their respective Affiliates (solely by virtue of
such capacity), by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly
agreed and understood that this Agreement is solely a corporate obligation of
each Lender, the Borrower, CAR, or the Servicer, as applicable, and that no
personal liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, member, manager, employee or agent of any
Lender, the Borrower, CAR, or the Servicer, or any of their respective
Affiliates (solely by virtue of such capacity), or any of them under or by
reason of any of the obligations, covenants or agreements of a Lender, the
Borrower, CAR, or the Servicer contained in this Agreement or in any other
Transaction Document, or implied therefrom, and that any and all personal
liability for breaches by a Lender, the Borrower, CAR or the Servicer, as
applicable, of any of such obligations, covenants or agreements, either at
common law or at equity, or by statute, rule or regulation, of every such
incorporator, stockholder, officer, director, member, manager, employee or
agent is hereby expressly waived as a condition of and in consideration for the
execution of this Agreement and any of the other Transaction Documents; provided
that the foregoing shall not relieve any such Person from any liability it
might otherwise have as a result of their willful misconduct, gross negligence
or of fraudulent actions taken or fraudulent omissions made by them.


 


ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS EXECUTED AND DELIVERED HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES.


 


Confidentiality.  9.  The Borrower, the Servicer, the Seller, CCRT,
the Guarantor and CAR shall hold in confidence, and not disclose to any Person,
the identity of any Lender or the terms of any fees payable in connection with
this Agreement except they may disclose such information (i) to their
affiliates and its and their officers, directors, employees, agents, counsel,
accountants, auditors, advisors or representatives, (ii) with the consent
of such Lender, (iii) to the extent the Borrower, the Seller, CAR, the
Guarantor, CCRT or the Servicer or any Affiliate of any of them should be
required by any law or regulation applicable to it or requested by any Official
Body to disclose such information or (iv) at any time which is 18 months
after such information was provided to the Borrower, the Seller, CAR, the
Guarantor, CCRT or the Servicer; provided, that, in the case of clause
(iii), the Borrower, such Seller, CAR, the Guarantor, CCRT or the Servicer, as
the case may be, will use all reasonable efforts to maintain confidentiality
and will (unless otherwise prohibited by law) notify the Administrative Agent
of its intention to make any such disclosure prior to making such disclosure.


 


The Administrative Agent, the Collateral Agent, the Backup Servicer,
each Agent and each Lender, severally and with respect to itself only,
covenants and agrees that any information obtained by the Administrative Agent,
the Collateral Agent, the Backup Servicer, such Agent or such Lender pursuant
to this Agreement shall be held in confidence (it being understood that
documents provided to the Administrative Agent, the Collateral Agent hereunder
may in all cases be distributed by the Administrative Agent, the Collateral
Agent to the Agents and the Lenders) except that the Administrative Agent, the
Collateral Agent, the Backup Servicer, such Agent or such Lender may disclose
such information (i) to its affiliates, officers, directors, employees,
agents, counsel, accountants, auditors, advisors or representatives, (ii) to
the extent such information has become available to the public other than as a
result of a disclosure by or through the Administrative Agent, the Collateral
Agent, the Backup Servicer, such Agent or such Lender, (iii) to the extent
such information was available to the Administrative Agent, the Collateral
Agent, the Backup Servicer, such 


 


59





















 


Agent or such Lender on a nonconfidential basis prior to its disclosure
to the Administrative Agent, the Collateral Agent, the Backup Servicer, such
Agent or such Lender hereunder, (iv) with the consent of CAR, (v) to
the extent permitted by Article XVI, (vi) to the extent the
Administrative Agent, the Collateral Agent, the Backup Servicer, such Agent or
such Lender should be (A) required in connection with any legal or
regulatory proceeding or (B) requested by any Official Body to disclose
such information, (vii) for the purposes of establishing a “due diligence”
defense, (viii) in the case of any Lender that is a Structured Lender, to
rating agencies, placement agents and providers of liquidity and credit support
who agree to hold such information in confidence or (ix) at any time which
is 18 months after such information was provided to the Administrative Agent,
the Collateral Agent, the Backup Servicer, such Agent or such Lender; provided,
that, in the case of clause (vi) above, the Administrative Agent, the
Collateral Agent, the Backup Servicer, such Agent or such Lender, as
applicable, will use all reasonable efforts to maintain confidentiality and, in
the case of clause (vi)(A) above, will (unless otherwise prohibited by
law) notify CAR of its intention to make any such disclosure prior to making
any such disclosure.


 


[signature
pages begin on next page]


 


60





















 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.


 


	
   

  	
  CAR FUNDING, INC., as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  101 Convention Center Drive, Suite 850-

  
	
   

  	
   

  	
   24A

  
	
   

  	
   

  	
  Las Vegas, NV 89109

  
	
   

  	
   

  	
  Attention: Joshua C. Miller, Assistant

  
	
   

  	
   

  	
   Secretary

  
	
   

  	
   

  	
  Facsimile No.: 702-598-3651

  
	
   

  	
   

  
	
   

  	
   

  
	
  CAR FINANCIAL SERVICES, INC., individually
  and as Seller and Custodian

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  245 Perimeter Center Parkway, Suite 600

  
	
   

  	
   

  	
  Atlanta, GA 30346

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Facsimile No.: 770-206-6187

  
	
   

  	
   

  
	
   

  	
   

  
	
  CONSUMER AUTO RECEIVABLES SERVICING, LLC,
  individually and as Servicer

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  245 Perimeter Center Parkway, Suite 600

  
	
   

  	
   

  	
  Atlanta, GA 30346

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Facsimile No.: 770-206-6187

  
											



 


61





















 


 


	
  COMPUCREDIT
  CORPORATION, as Guarantor

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  245 Perimeter Center Parkway, Suite 600

  
	
   

  	
   

  	
  Atlanta, GA 30346

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Facsimile No.: 770-206-6187

  
					



 


62





















 


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as

  Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. Bank Corporate Trust Services

  
	
   

  	
  60 Livingston Avenue

  
	
   

  	
  EP-MN-WS3D

  
	
   

  	
  St. Paul, Minnesota 55107-2292

  
	
   

  	
   

  
	
   

  	
  Attention: Car Funding Inc.

  
	
   

  	
  Facsimile No.: (651) 495-8093

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH,

  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, New York 10005

  
	
   

  	
  Attention: Conduit Funding/Administration

  
	
   

  	
  Telecopier: (212) 797-5150

  



 


63





















 


	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as
  Backup Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address: MAC N9311-161

  
	
   

  	
   

  	
  Sixth Street and Marquette Avenue

  
	
   

  	
   

  	
  Minneapolis, Minnesota 55479

  
	
   

  	
  Attention:

  	
  Corporate
  Trust Services – Asset-

  Backed Administration

  
	
   

  	
  Telephone:

  	
  612-667-8058

  
	
   

  	
  Facsimile No.:

  	
  612-667-3464

  
					



 


64





















 


 


NANTUCKET
LENDER GROUP


 


	
  Type of Lender:

  	
  NANTUCKET FUNDING CORP., LLC

  
	
  Noncommitted
  Lender

  	
   

  
	
   

  	
   

  
	
  Maximum Purchase

  	
  By:

  	
   

  	
   

  
	
  Amount: 
  $150,000,000

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  c/o Lord Securities Corporation

  
	
   

  	
  48 Wall Street, 27th Floor

  
	
   

  	
  New York, New York 10005

  
	
   

  	
  Attn: President

  
	
   

  	
  Telecopier: (212)346-9012

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  c/o Deutsche
  Bank AG, New York Branch,

  Agent

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, New York 10005

  
	
   

  	
  Attention: Conduit Funding/Administration

  
	
   

  	
  Telecopier: (212) 797-5150

  
	
   

  	
   

  
	
   

  	
  Payment Instructions:

  
	
   

  	
   

  
	
   

  	
  Fed ABA: 026-003-780

  
	
   

  	
  Fed Bank: Deutsche Bank, NY

  
	
   

  	
  Acct. #: 10-598524-0008

  
	
   

  	
  Acct. Name: Nantucket Funding Corp., LLC

  
	
   

  	
  Attention:
  Siegfried Rader Ph: 212-474-7737

  
	
   

  	
  Ref: CCRT

  
	
   

  	
   

  
	
   

  	
   

  
	
  Type of Lender:

  	
  DEUTSCHE BANK AG, NEW YORK BRANCH

  
	
  Committed
  Lender

  	
   

  
	
   

  	
   

  
	
  Commitment: $150,000,000

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


65





















 


 


	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  c/o
  Deutsche Bank AG, New York Branch

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, New York 10005

  
	
   

  	
  Attention: Conduit Funding/Administration

  
	
   

  	
  Telecopier: (212) 797-7973

  
	
   

  	
   

  
	
   

  	
  Payment Instructions:

  
	
   

  	
   

  
	
   

  	
  Fed ABA: 021-000-018

  
	
   

  	
  Fed Bank: The Bank of New York

  
	
   

  	
  Acct. Name: DBO

  
	
   

  	
  Account #: GLA-111569

  
	
   

  	
  Attention:
  Nicole Lashley

  
	
   

  	
  Ref: CCRT

  



 


66





















 


	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH,

  as Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  c/o
  Deutsche Bank AG, New York Branch

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, New York 10005

  
	
   

  	
  Attention: Conduit Funding/Administration

  
	
   

  	
  Telecopier: (212) 797-7973

  
	
   

  	
   

  
	
   

  	
  Payment Instructions:

  
	
   

  	
   

  
	
   

  	
  Fed ABA: 021-000-018

  
	
   

  	
  Fed Bank: The Bank of New York

  
	
   

  	
  Acct. Name: DBO

  
	
   

  	
  Account #: GLA-111569

  
	
   

  	
  Attention:
  Nicole Lashley

  
	
   

  	
  Ref: CCRT

  



 


67





















 


EXHIBIT A


 


Deutsche Bank
AG, New York Branch,

as Administrative Agent


60 Wall Street


New York, NY 10005


Attention:                     


Fax #: (212) 797-        


Phone #: (212) 250-++++


 


RE:          Advance Request: $               


 


[                      
]


 


Gentlemen and Ladies:


 


This Advance Request is delivered to you pursuant to Section 2.2
of the Receivables Financing Agreement, dated as of April 1, 2005
(together with all amendments, if any, from time to time made thereto, the “Receivables
Financing Agreement”), among CAR Funding Inc. (the “Borrower”), CAR
Financial Services, Inc., Consumer Auto Receivables Servicing, LLC,
CompuCredit Corporation, U.S. Bank National Association, Deutsche Bank AG, New
York Branch, Wells Fargo Bank, National Association, and the Lenders and Agents
parties thereto.  Unless otherwise
defined herein or the context otherwise requires, capitalized terms used herein
have the meanings provided in the Receivables Financing Agreement.


 


The Borrower hereby requests that an Advance be made
in the aggregate principal amount of
$          on the                            .


 


Please wire xxxxxxxxx to the Cap Reserve
Account to cause the amount on deposit therein to equal the Required Cap
Reserve Account Amount and xxxxxxxxxx to the Borrower at the Borrower’s
direction.  Wiring instructions are
included at the end of this letter.


 


The Borrower represents that the conditions described
in subsections 7.2(a) through 7.2(h) of the Receivables Financing
Agreement have been satisfied with respect to the Advance.


 


The Borrower agrees that if prior to the Effective
Date any matter certified to herein by it will not be true and correct at such time as if then made, it will immediately so notify the
Administrative Agent.  Except to the
extent, if any, that prior to the time of the Advance requested hereby the
Administrative Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed once again to be
certified as true and correct at the date of such Advance as if then made.


 


The Borrower has caused this Advance Request to be
executed and delivered, and the certification and warranties contained herein
to be made, by its duly authorized officer this     day of
          , 200  .


 


	
   

  	
  CAR FUNDING, INC.

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 





















 


Wire Instructions:


 


Bank:


ABA


Account Name:


Account Number:


For further credit to account


Ref:


 





















 


EXHIBIT B


 


NOTE


 


THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE
SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE OWNER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT AND SUCH STATE LAWS, AND WILL NOT BE A “PROHIBITED
TRANSACTION” UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”).  BY ACCEPTANCE OF THIS
NOTE, THE HOLDER AGREES TO BE BOUND BY ALL THE TERMS OF THE RECEIVABLES
FINANCING AGREEMENT.


 


	
  $                    

  	
                
     , 2005

  



 


FOR VALUE RECEIVED, the undersigned, CAR FUNDING,
INC., a Nevada corporation (the “Borrower”), promises to pay to the
order of                    ,
as Agent, on the Facility Termination Date the principal sum of                           
              ($                )
or, if less, the aggregate unpaid principal amount of all Advances shown on the
schedule attached hereto (and any continuation thereof) and/or in the
records of Agent made by the Lenders in the related Lender Group pursuant to
that certain Receivables Financing Agreement, dated as of April 1, 2005]
(together with all amendments and other modifications, if any, from time to
time thereafter made thereto, the “Receivables Financing Agreement”),
among the Borrower, CAR Financial Services, Inc., Consumer Auto
Receivables Servicing, LLC, CompuCredit Corporation, U.S. Bank National
Association, Deutsche Bank AG, New York Branch, Wells Fargo Bank, National
Association, and the Lenders and the Agents parties thereto.  Unless otherwise defined, capitalized terms
used herein have the meanings provided in the Receivables Financing Agreement.


 


The Borrower also promises to pay Yield on the unpaid
principal amount hereof from time to time outstanding from the date hereof
until maturity (whether by acceleration or otherwise) and, after maturity,
until paid, at the rates per annum and on the dates specified in the
Receivables Financing Agreement.


 


Payments of both principal and Yield are to be made in
lawful money of the United States of America in same day or immediately
available funds to the account designated by the Administrative Agent pursuant
to the Receivables Financing Agreement.


 


This Note is one of the Notes referred to in, and
evidences indebtedness incurred under, the Receivables Financing Agreement, and
the holder hereof is entitled to the benefits of the Receivables Financing
Agreement, to which reference is made for a description of the security for
this Note and for a statement of the terms and conditions on which the Borrower
is permitted and required to make prepayments and repayments of principal of
the indebtedness evidenced by this Note and on which such indebtedness may be
declared to be immediately due and payable.


 





















 


All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand, protest and notice
of dishonor.


 


As provided in the Receivables Financing Agreement and
subject to certain limitations therein set forth, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note for registration
of transfer at the office or agency of the Administrative Agent in The City of
New York, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Note Registrar duly executed by, the holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.


 


The Notes are issuable only in registered form without
coupons in minimum denominations of $100,000. 
As provided in the Receivables Financing Agreement and subject to
certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the holder surrendering the same.


 


No service charge shall be made for any such
registration of transfer or exchange, but the Borrower may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.


 


The Borrower, any agent of the Borrower, and the
Administrative Agent may treat the Person in whose name this Note is registered
as the owner hereof for all purposes, whether or not this Note may be overdue,
and neither the Borrower nor any such agent shall be affected by notice to the
contrary.


 


The holder hereof hereby agrees, and any assignee of
such holder, by accepting such assignment, shall be deemed to have agreed, that
it will not institute against any Lender which is a Structured Lender or the
Borrower, or join any other Person in instituting against any such Lender or
the Borrower, any insolvency proceeding (namely, any proceeding of the type
referred to in the definition of Insolvency Event) so long as, in the case of
any such Lender, any commercial paper or other senior indebtedness issued by
such Lender shall be outstanding or there shall not have elapsed one year plus
one day since the last day on which any such commercial paper or other senior
indebtedness shall be outstanding and, in the case of the Borrower, any
Advances or other amounts due from the Borrower hereunder shall be outstanding
or there shall not have elapsed one year plus one day since the last day
on which any such Advances or other amounts shall be outstanding.  The foregoing shall not limit such Person’s
right to file any claim in or otherwise take any action with respect to any
insolvency proceeding that was instituted by any
Person other than such Person.  The
agreement set forth in this paragraph shall survive payment of this Note.


 





















 


THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


	
   

  	
  CAR FUNDING, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 





















 


Form of
Assignment Form


 


ASSIGNMENT FORM


 


If you the holder want to assign this Note, fill in
the form below and have your signature guaranteed:


 


I or we assign and transfer this Note to:


 


(Print or type name, address
and zip code and


social
security or tax ID number of assignee)


 


and irrevocably appoint                                             ,
agent to transfer this Note on the books of the Borrower.  The agent may substitute another to act for
him.


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (sign exactly as the name appears on the

  other side of this Note)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee 

  	
   

  
								



 


Important Notice: 
When you sign your name to this Assignment Form without filling in
the name of your “Assignee” or “Attorney”, this Note becomes fully negotiable,
similar to a check endorsed in blank. 
Therefore, to safeguard a signed Note, it is recommended that you fill
in the name of the new owner in the “Assignee” blank.  Alternatively, instead of using this
Assignment Form, you may sign a separate “power of attorney” form and then mail
the unsigned Note and the signed “power of attorney” in separate
envelopes.  For added protection, use
certified or registered mail for a Note.


 





















 


 


Schedule attached to Note dated April 1, 2005 of CAR Funding, Inc.
payable to the order of
                            ,
as Agent


 


	
  Date of 

  Advance or Repayment

  	
   

  	
  Amount of 

  Advance

  	
   

  	
  Amount of 

  Repayment

  	
   

  
	
  April 1,
  2005

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT C


 


FORM OF BORROWING BASE
CERTIFICATE


 


***


 





















 


	
  ARTICLE I DEFINITIONS

  	
   

  	
   

  
	
  ARTICLE II THE FACILITY, ADVANCE PROCEDURES AND NOTE

  	
   

  	
   

  
	
  ARTICLE III YIELD, FEES, ETC.

  	
   

  	
   

  
	
  ARTICLE IV GUARANTY

  	
   

  	
   

  
	
  ARTICLE V PAYMENTS; TAXES

  	
   

  	
   

  
	
  ARTICLE VI INCREASED COSTS, ETC.

  	
   

  	
   

  
	
  ARTICLE VII EFFECTIVENESS; CONDITIONS TO ADVANCES

  	
   

  	
   

  
	
  ARTICLE VIII ADMINISTRATION AND SERVICING OF RECEIVABLES

  	
   

  	
   

  
	
  ARTICLE IX ACCOUNTS; PAYMENTS

  	
   

  	
   

  
	
  ARTICLE X REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  
	
  ARTICLE XI BORROWER COVENANTS

  	
   

  	
   

  
	
  ARTICLE XII THE SERVICER; THE BACKUP SERVICER

  	
   

  	
   

  
	
  ARTICLE XIII GRANT OF SECURITY INTEREST

  	
   

  	
   

  
	
  ARTICLE XIV FACILITY TERMINATION EVENTS; EVENTS OF DEFAULT

  	
   

  	
   

  
	
  ARTICLE XV THE AGENTS

  	
   

  	
   

  
	
  ARTICLE XVI ASSIGNMENTS

  	
   

  	
   

  
	
  ARTICLE XVII INDEMNIFICATION

  	
   

  	
   

  
	
  ARTICLE XVIII MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A 

  	
  Form of Advance Request

  	
   

  	
   

  
	
  EXHIBIT B 

  	
  Form of Note

  	
   

  	
   

  
	
  EXHIBIT C 

  	
  Form of Borrowing Base Confirmation

  	
   

  	
   

  



 





















 


EXECUTION COPY


 


ANNEX I


 


DEFINITIONS


 


As used in the Receivables Financing Agreement to
which this Annex I is annexed, the following terms shall have the meanings
herein specified or as specified in the Section of such Receivables
Financing Agreement or in such other document herein referenced:


 


“Accountants’ Report” has the meaning set forth
in Section 8.7 of the Receivables Financing Agreement.


 


“Accounting Date” means (a) the last day
of a Collection Period and (b) with respect to a Distribution Date or
Determination Date, the last day of the Collection Period preceding such
Distribution Date or Determination Date (such date being referred to as the “related
Accounting Date” with respect to such Distribution Date or Determination
Date).


 


“Accrual Period” means, with respect to any
Distribution Date, the period from and including the previous Distribution Date
(or, in the case of the first Distribution Date, from and including the
Effective Date) through and including the day preceding such Distribution Date.


 


“Accrued Costs” means, on any day, the sum of
the following:


 


unpaid Yield and Fees accrued in respect of
the Advances assuming each Advance has borne interest at the Alternative Rate
during the period from the prior Distribution Date to such date;


 


Yield and Fees in respect of the Advances
estimated to accrue for the period from such date to the succeeding
Distribution Date assuming (A) that the aggregate outstanding principal
amount of the Advances during each day of such period will equal *** of the aggregate outstanding principal amount of the Advances
on such day and (B) that each Advance will bear interest during such
period at the Alternate Rate; and


 


any excess of the amounts required to be distributed pursuant to
clauses (i) through (viii) of Section 9.5(a) of the
Receivables Financing Agreement on the preceding Distribution Date over the
Amount Available on such Distribution Date.


 


provided that the *** percentages used in clause (b) above
shall be 100% if no Level Two Trigger Event shall have occurred and be
continuing and the Servicer is delivering to the
Collateral Agent and the Administrative Agent daily reports on Collections,
Delinquent Receivables, Defaulted Receivables, the Aggregate Outstanding
Principal Balance, the Borrowing Base and such other information as the
Administrative Agent may reasonably request.


 


“Acquisition Agreement” means the Asset
Purchase Agreement, dated as of December 10, 2004, between the
Predecessors in Interest and CCRT and CARS Acquisition, as amended,
supplemented or otherwise modified from time to time.


 


“Adjusted Commitment Percentage” means, for a
Committed Lender with respect to a specific Noncommitted Lender, the Commitment
of such Committed Lender as a percentage of the Maximum Loan Amount of such
Noncommitted Lender.


 





















 


“Adjusted Eurodollar Rate” means, for any Fixed
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100th
of 1%) equivalent to the rate determined pursuant to the following formula:


 


	
  Adjusted Eurodollar
  Rate

  	
  =

  	
  LIBOR Rate

  	
   

  	
   

  
	
   

  	
   

  	
  1-LIBOR Reserve
  Percentage

  	
   

  	
   

  



 


on the first day of such Fixed Period.


 


“Administrative Agent” means Deutsche Bank AG,
New York Branch solely in its capacity as Administrative Agent, together with
its permitted successors and assigns in such capacity.


 


“Administrative Agent Fee Letter” means any
letter agreement(s) or schedule of fees entered into by CAR and the
Borrower, with the consent of the Required Lenders,
with a substitute Administrative Agent relating to fees payable to such
substitute Administrative Agent.


 


“Administrative Agent’s Account” has the
meaning set forth in Section 5.1(a) of the Receivables
Financing Agreement.


 


“Advance” means, individually and collectively,
the amounts disbursed by any Lender to the Borrower pursuant to Section 2.1
of its Receivables Financing Agreement.


 


“Advance Rate” means, on any day, the lower of (a) 60%
and (b) the Base Advance Rate on such day minus the Pool Discount/Reserve
Percentage as of the preceding Distribution Date.


 


“Adverse Claim” means any claim of ownership or
any Lien, security interest, title retention, trust or other charge or
encumbrance, or other type of preferential arrangement having the effect or
purpose of creating a Lien or security interest, other than the security
interests created under the Transaction Documents.


 


“Affected Person” has the meaning set forth in Section 6.1
of the Receivables Financing Agreement.


 


“Affiliate” of any Person means any other
Person that directly or indirectly controls, is controlled by or is under
common control with such Person (excluding any trustee under, or any committee
with responsibility for administering, any employee benefit plan).  A Person shall be deemed to be “controlled by”
any other Person if such other Person possesses, directly or indirectly, power


 


to
vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing partners; or


 


to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.


 


“AFP Program” means the program of CAR (or a
Predecessor in Interest) for purchasing Receivables which has been designated
as the “Advanced Funding Program” or “AFP Program” as more particularly
described in the Credit and Collection Policy.


 


2





















 


“Agent” has the meaning set forth in the Preamble
of the Receivables Financing Agreement.


 


“Aggregate Eligible Receivables Balance” means,
as of any date, the Aggregate Outstanding Principal Balance of all Transferred
Receivables which are Eligible Receivables on such day of determination.


 


“Aggregate Interest Rate Caps Notional Amount”
means with respect to any date of determination an amount equal to the sum of
the notional amounts or equivalent amounts of all outstanding Cap Agreements,
Replacement Interest Rate Caps and Qualified Substitute Arrangements, each as
of such date of determination.


 


“Aggregate Outstanding Principal Balance”
means, with respect to any group of Receivables as of any date, the sum of the
outstanding Principal Balances of all such Receivables as at 11:59 p.m. on
the immediately preceding day.


 


“Aggregate Net Outstanding Principal Balance”
means, with respect to any group of Receivables as of any date, the sum of the
Net Outstanding Principal Balances of all such Receivables as at 11:59 p.m.
on the immediately preceding day.


 


“Agreement” means this Receivables Financing
Agreement (including the Fee Letter), as it may be amended, supplemented or
otherwise modified from time to time.


 


“Alternate Base Rate” means a fluctuating rate
per annum as shall be in effect from time to time, which rate shall be at all
times equal to the higher of:


 


the rate of interest announced publicly by DBNY in New York, New York,
from time to time as DBNY’s base commercial lending rate; and


 


1⁄2 of one percent above the Federal Funds
Rate.


 


“Alternative Rate”
for any Advance means a rate per annum equal to the Adjusted Eurodollar Rate
for such Advance or portion thereof; provided, however, that in
the case of


 


any Fixed Period on or after
the first day on which a Committed Lender shall have notified the related Agent
that the introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Committed Lender to fund such
Advance at the Alternative Rate set forth above (and such Committed Lender
shall not have subsequently notified such Agent that such circumstances no
longer exist),


 


any Fixed Period of
less than seven days,


 


any Fixed Period of
seven to (and including) 29 days, in the event the Adjusted Eurodollar Rate is
not reasonably available to any Agent for such a Fixed Period,


 


any Fixed Period as to which
the related Advance will not be funded by issuance of commercial paper, as
determined by the related Agent (on behalf of a Noncommitted Lender) later than
12:00 noon (New York City time) on the second Business Day preceding the first
day of such Fixed Period, or


 


(e)           any Fixed Period for a Borrowing the
principal amount of which allocated to the Committed Lenders in the aggregate
is less than $1,000,000,


 


the “Alternative Rate” shall be a
floating rate per annum equal to the Alternate Base Rate in effect on each day
of such Fixed Period.


 


3





















 


“Amount Available” means, with respect to any
Distribution Date, the sum of (a) the amount of Net Collections with
respect to the related Collection Period and any amounts paid into the
Collection Account under any Interest Rate Cap with respect to the Accrual
Period ending on the day preceding such Distribution Date, plus (b) any
investment income earned on amounts on deposit in the Collection Account and
the Cap Funding Reserve Account since the prior Distribution Date (or the
Effective Date in the case of the first Distribution Date), plus (c) any
Repurchase Amounts deposited in the Collection Account since the last day of
the related Collection Period.


 


“Ancillary Product” means, with respect to any
Contract, any extended vehicle service contract, vehicle warranty, guaranteed
auto protection policies or waivers, mechanical breakdown contracts or such
other products or services sold to an Obligor in connection with his or her
financing of a Financed Vehicle.


 


“Approved State” means (a) the 38 states
where CAR is licensed (as necessary) and doing business as of the Effective
Date, (b) following successful state licensing or approval (as necessary),
Arkansas, Illinois, Iowa, Mississippi and Wisconsin and (c) any additional
states approved by the Administrative Agent. 
Such approval shall not be unreasonably withheld. Such approval will be
granted upon CAR’s demonstration of being licensed to do business in such
state, conformity by CAR with any applicable laws or regulations and the
satisfactory due diligence by the Administrative Agent.


 


“APR” of a Contract means annual percentage
rate and is the annual rate of finance charges specified in such Contract.


 


“Assignments” means, collectively, the original
instrument of assignment of a Receivable and all other documents securing such
Receivable made by a Dealer to the Seller and by the Seller to the Purchaser.


 


“Available Commitment Amount” of a Noncommitted
Lender means the aggregate of the unutilized Commitments of the Committed
Lenders with respect to such Noncommitted Lender.


 


“Backup Servicer” means Wells Fargo Bank,
National Association, a national banking association, in its capacity as Backup
Servicer, together with its permitted successors and assigns in such capacity.


 


“Backup Servicer Fee” means, for any
Distribution Date, the amount payable to the Backup Servicer as its regular fee
on such Distribution Date pursuant to the Backup Servicer Fee Letter.


 


“Backup Servicer Fee Letter” means (a) that
certain schedule of fees of WFB, acknowledged by CAR and the Borrower, and
consented to by the Administrative Agent, as the same may be amended,
supplemented or otherwise modified by the parties thereto with the consent of
the Required Lenders and (b) any letter agreement(s) or schedule of
fees entered into by CAR and the Borrower, with the consent of the Required
Lenders, with a substitute Backup Servicer in replacement of the schedule of
fees referred to in clause (a) above relating to fees payable to such
substitute Backup Servicer.


 


4





















 


“Bankruptcy Code” means the Bankruptcy Code, 11
U.S.C. § 101, et  seq., as amended.


 


“Base Advance Rate” means, on any day, (i) if
no Level One Trigger Event or Level Two Trigger Event has occurred, ***; (ii) if
a Level One Trigger Event has occurred, ***; and (iii) if a Level Two
Trigger Event has occurred, ***.  If a
Level One Trigger Event shall have occurred, then the Advance Rate will remain
*** until no Level One Trigger Event or Level Two Trigger Event shall have
occurred for a period of three consecutive months — at which point the Advance
Rate shall be ***.  If a Level Two
Trigger Event shall have occurred, then (a) the Advance Rate will remain
*** until no Level Two Trigger Event shall have occurred for a period of three
consecutive months — at which point the Advance Rate shall be *** — and (b) the
Advance Rate will thereafter be *** until no Level One Trigger Event or Level
Two Trigger Event shall have occurred for a period of three consecutive months
thereafter — at which point the Advance Rate shall be ***.


 


“Borrower” has the meaning set forth in the Preamble
of the Receivables Financing Agreement.


 


“Borrower Account Collateral” has the meaning
set forth in Section 13.1 of the Receivables Financing Agreement.


 


“Borrower Accounts” has the meaning set forth
in Section 9.1 of the Receivables Financing Agreement.


 


“Borrower Assigned Agreements” has the meaning
set forth in Section 13.1 of the Receivables Financing Agreement.


 


“Borrower Collateral” has the meaning set forth
in Section 13.1 of the Receivables Financing Agreement.


 


“Borrowing Base” means, on any day, the sum of (a) the
product of (i) the Advance Rate and (ii) the Aggregate Outstanding
Principal Balance of all Transferred Receivables other than PIPP Receivables,
if any, which are Eligible Receivables less any Overconcentration Amount plus
(b) the product of (i) *** and (ii) the aggregate outstanding
principal amount of payments under Eligible Receivables purchased under the
PIPP Program plus (c) the amount on deposit in the Collection
Account as of such day (excluding, on any Distribution Date, any amount to be
included in the Amount Available on such Distribution Date) minus (d) if
such date is not a Distribution Date, the amount equal to the sum of clauses (a) and
(b) of the definition of Accrued Costs on such date.


 


“Borrowing Base Confirmation” has the meaning
set forth in Section 7.2(g) of the Receivables Financing
Agreement.


 


“Branch Office” means any office of the Seller.


 


“Breach” means any breach of, or any inaccuracy
in, any representation or warranty or any breach of, or failure to perform or
comply with, any covenant or obligation, in or of any 


 


5





















 


contract, or any event which with the passing of
time or the giving of notice, or both, would constitute such a breach,
inaccuracy or failure.


 


“Business Day” means any day that is not a Saturday,
Sunday or other day on which banking institutions in Atlanta, Georgia, Las
Vegas, Nevada, St. Paul, Minnesota or New York, New York are authorized or
obligated by law, executive order or government decree to remain closed.


 


“Calculation Day” means the last day of each
calendar month.


 


“Cap Agreements” means each interest rate cap
agreement, between the Borrower and a Cap Provider, as amended from time to
time, and any additional interest rate protection agreement or agreements,
entered into between the Borrower and a Cap Provider, as the same may from time
to time, with the prior written consent of the Required Lenders, be amended,
restated, modified and in effect.


 


“Cap Funding Reserve Account” means the account
designated as the Cap Funding Reserve Account in, and which is established and
maintained pursuant to, Section 9.1(a) of the Receivables
Financing Agreement.


 


“Cap Funding Reserve Account Requirement”
means, with respect to any Determination Date, the amount required as of such
date to purchase Interest Rate Caps meeting the requirements of Section 11.6
of the Receivables Purchase Agreement if they were required to be purchased on
such date pursuant thereto; provided that
the Servicer (or, if CAR Servicing shall not be the Servicer, DBNY) shall
contact qualified Cap Providers to determine the Cap Funding Reserve Account
Requirement and shall report such amount (i) in the first monthly
Distribution Date Statement following the Effective Date and (ii) in each
monthly Distribution Date Statement following the Determination Date in which
CAR fails to satisfy the Minimum Liquidity Amount Test.


 


“Cap Provider” means (a) a third party cap
provider having a senior unsecured debt rating of at least “A” by Standard &
Poor’s and “A2” by Moody’s and not on credit watch with negative implications
(or a similar status), or (b) a third party cap provider approved by the
Required Lenders.


 


“Capped Fees/Expenses – Administrative Agent”
means, at any time, fees, costs and expenses due at such time (if any) to the Administrative
Agent under the Transaction Documents such that the aggregate amount of such
fees, costs and expenses paid to the Administrative Agent under the Transaction
Documents in any calendar year do not exceed $150,000.


 


“Capped Fees/Expenses – Backup Servicer” means,
at any time, fees, costs and expenses due at such time (if any) to the Backup
Servicer under the Transaction Documents such that the aggregate amount of such
fees, costs and expenses paid to the Backup Servicer under the Transaction Documents
in any calendar year do not exceed $300,000.


 


“Capped Fees/Expenses –Collateral Agent” means,
at any time, fees, costs and expenses due at such time (if any) to the
Collateral Agent under the Transaction Documents such that the 


 


6





















 


aggregate amount of such fees, costs and expenses
paid to the Collateral Agent under the Transaction Documents in any calendar
year do not exceed (a) prior to the occurrence and continuation of a
Facility Termination Event or Event of Default, $25,000. or
(b) during the occurrence and continuation of a Facility Termination Event
or Event of Default, $50,000.


 


“Capped Fees/Expenses – Custodian” means, at
any time, fees, costs and expenses due at such time (if any) to the Custodian
under the Transaction Documents such that the aggregate amount of such fees,
costs and expenses paid to the Custodian under the Transaction Documents in any
calendar year do not exceed $25,000.


 


“CAR” has the meaning set forth in the Preamble
of the Receivables Financing Agreement.


 


“CARS Acquisition” means CARS Acquisition, LLC,
a Georgia limited liability company.


 


“CAR Servicing” has the meaning set forth in
the Preamble of the Receivables Financing Agreement.


 


“CCRT” has the meaning set forth in the Preamble
of the Receivables Financing Agreement.


 


“Charge-Off Ratio” means, on any day, the
average of the Monthly Charge-Off Ratios for the three most recently completed
Collection Periods.


 


“Closing Date” means, unless the context
otherwise requires, the Initial Closing Date and each Subsequent Closing Date
as may be agreed to from time to time by CAR and the Borrower.


 


“Collateral” shall have the meaning given to
such term in Section 2.01(c) of the Sale and Servicing
Agreement.


 


“Collateral Agent” means U.S. Bank National
Association solely in its capacity as Collateral Agent, together with its
permitted successors and assigns in such capacity.


 


“Collateral Agent Fee Letter” means (a) that
certain schedule of fees of U.S. Bank National Association, acknowledged
by CAR and the Borrower, as the same may be amended, supplemented or otherwise
modified by the parties thereto with the consent of the Required Lenders and (b) any
letter agreement(s) or schedule of fees entered into by CAR and the
Borrower, with the consent of the Required Lenders, with a substitute
Collateral Agent in replacement of the schedule of fees referred to in
clause (a) above relating to fees payable to such substitute
Collateral Agent.


 


“Collection Account” means the account
designated as the Collection Account in, and which is established and
maintained pursuant to, Section 9.1(a) of the Receivables
Financing Agreement.


 


7





















 


“Collection Period” means any calendar month
and, with respect to a Determination Date or a Distribution Date, the calendar
month preceding the month in which such Determination Date or Distribution Date
occurs (such calendar month being referred to as the “related” Collection
Period with respect to such Determination Date or Distribution Date) or, in the
case of the initial Distribution Date and Determination Date, the period
commencing at the opening of business on the Effective Date and ending at the
end of the calendar month immediately following the calendar month in which the
Effective Date occurs.  Any amount stated
“as of the close of business of the last day of a Collection Period” shall give
effect to the following calculations as determined as of the end of the day on
such last day:  (i) all applications
of collections on the Transferred Receivables and Transferred Dealer
Transaction Rights and Repurchase Amounts, and (ii) all distributions.


 


“Commercial Paper Rate” for Advances means, to
the extent a Noncommitted Lender funds such Advances by issuing commercial paper,
the sum of (i) the weighted average of the rates at which commercial paper
notes of such Noncommitted Lender issued to fund such Advances may be sold by
any placement agent or commercial paper dealer selected by such Noncommitted
Lender, as agreed in good faith between each such agent or dealer and such
Noncommitted Lender; provided if the rate (or rates) as agreed between
any such agent or dealer and such Noncommitted Lender for any Advance is a
discount rate (or rates), then such rate shall be the rate (or if more than one
rate, the weighted average of the rates) resulting from converting such
discount rate (or rates) to an interest-bearing equivalent rate per annum plus
(ii)  any and all commissions of placement agents and commercial paper
dealers in payment of commercial paper issued to fund the making of or
maintenance of an Advance and any and all reasonable costs and expenses of any
issuing and paying agent or other Person responsible for the administration of
such Noncommitted Lender’s commercial paper program in connection with the
preparation, completion, issuance, delivery or payment of commercial paper
issued to fund the making or maintenance of any Advance not to exceed 5 basis
points per annum in the aggregate.  Each
Noncommitted Lender shall notify the Administrative Agent of its Commercial
Paper Rate applicable to any Advance promptly after the determination thereof.


 


“Commitment” means, for any Committed Lender,
the maximum amount of such Committed Lender’s commitment to fund Advances hereunder,
as set forth on the signatures pages hereof.  In the event that a Committed Lender
maintains a portion of its Commitment hereunder with respect to more than one
Noncommitted Lender, such Committed Lender shall be deemed to hold separate
Commitments hereunder in each such capacity.


 


“Commitment Percentage” means, for a Committed
Lender, such Committed Lender’s Commitment as a percentage of the aggregate
Commitments of all Committed Lenders.


 


“Committed Lender” means, with respect to a
Noncommitted Lender, each financial institution party to this Agreement
designated as a “Committed Lender” with respect to such Noncommitted Lender,
and any permitted assignee of such Committed Lender pursuant to Article XVI
to the extent such assignee has assumed a portion of the Commitment of such
Committed Lender.


 


“Contract” means a motor vehicle retail
installment sale contract (including any written amendments and assumptions
thereto) pursuant to which the related Obligor has (i) agreed to pay 


 


8





















 


the amount financed set forth therein for
the purchase of the related Financed Vehicle and the related finance charge
thereon and (ii) granted the related Dealer a security interest in the
Financed Vehicle to secure the payment of the amount financed and the finance
charge.


 


“Contract Files” has the meaning set forth in Section 3.03
of the Sale and Servicing Agreement.


 


“Contract Number” means, with respect to any
Receivables transferred to the Purchaser, the number assigned to the related
Contract by the Servicer, which number is set forth in the related Schedule of
Receivables.


 


“Contract Rate” means, the rate of interest
reflected on a Contract.


 


“Credit and Collection Policy” means credit and
collection policies and practices of the Seller and Servicer, as in effect from
time to time or, if there should be a successor Servicer, of the successor
Servicer only.  The Seller and Servicer
have delivered a copy thereof, as in effect on the date hereof, to the
Purchaser and the Lenders.


 


“Custodial Receipt” means a Custodian’s
Acknowledgment in the form of Exhibit A to the Sale and Servicing
Agreement.


 


“Custodian” means CAR, in its capacity as the
Custodian of the Contracts under the Receivables Financing Agreement and the
Sale and Servicing Agreement, and each successor thereto (in the same
capacity).


 


“Custodian Fee Letter” means any letter
agreement(s) or schedule of fees entered into by CAR and the Borrower,
with the consent of the Required Lenders, with a substitute Custodian in
replacement of the schedule of fees referred to in clause (a) above
relating to fees payable to such substitute Custodian.


 


“Cut-Off Date” means, with respect to (i) the
Initial Closing Date, February 28, 2005 and (ii) each Subsequent
Closing Date, the Business Day immediately preceding such Subsequent Closing
Date.


 


“DBNY” means Deutsche Bank AG, New York Branch.


 


“Dealer” means, with respect to any Receivable
and the related Financed Vehicle, the automobile dealer or its Affiliate, or a
finance company or similar entity, that (i) sold
the related Financed Vehicle, (ii) originated the related Contract, and/or
(iii) sold and assigned such Receivable to the Seller.


 


“Dealer Discount” means, with respect to any Receivable, the discount from par at which the Seller or a
Predecessor in Interest purchased such Receivable from the related Dealer.


 


“Dealer Discount Percentage” means, with
respect to any date, the weighted average (weighted by outstanding Principal
Balance) of the Dealer Discount Percentage – Individual Receivable for all
Receivables outstanding on such date.


 


9





















 


“Dealer Discount Percentage – Individual Receivable”
means, with respect to any Receivable, (a) the Dealer Discount of such
Receivable divided by (b) the outstanding Principal Balance of such
Receivable on the date the Seller or a Predecessor in Interest purchased such
Receivable from the related Dealer.


 


“Dealer Purchase Agreement” means an agreement
pursuant to which a Dealer has assigned, and CAR or a Predecessor in Interest
has acquired, an interest in a Receivable, including any short form purchase
agreement authorized by such agreement to affect subsequent transactions
between the parties thereto, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.


 


“Dealer Recourse” means all obligations of a
Dealer under any Dealer Purchase Agreement to pay monies due to a Receivable
transferred thereunder becoming a defaulted Receivable, in lieu of the Seller charging
the balance of such Receivable to the reserve fund thereunder.


 


“Dealer Reserve” means the unfunded contingent
liability of the Seller or any Predecessor in Interest to each Dealer pursuant
to the related Dealer Purchase Agreement to pay the remaining principal balance
of the agreed purchase price of the Receivables transferred pursuant to such
Dealer Purchase Agreement, and is used to allow the Seller, by exercising a
right of offset, to satisfy the Dealer’s obligation to the Seller to repurchase
any Receivable for any of the reasons set forth in such Dealer Purchase
Agreement.


 


“Dealer Reserve Percentage” means, with respect
to any Dealer on any date, the higher of (a) (i) the amount of the
Dealer Reserve for such Dealer on such date divided by (ii) the
outstanding Principal Balance of all Receivables purchased by the Seller or a
Predecessor in Interest from such Dealer and outstanding on such date and (b) the
remaining principal balance of the agreed purchase price of the Receivable most
recently transferred pursuant to such Dealer Purchase Agreement divided by the
outstanding Principal Balance of such Receivable.  The Dealer Reserve Percentage shall not apply
to the Receivables in the Franklin Pool or the Receivables originated under the
PIPP Program


 


“Dealer Reserve Target Percentage” means, with
respect to any Dealer on any date, the percentage specified with respect to
such Dealer on such date by CAR.


 


“Dealer Transaction Rights” means, with respect
to any Receivable, the right to receive all payments after the Cut-Off Date
applicable to such Receivable by an Obligor on a Contract, and “Dealer
Transaction Right” means any such right.


 


“Default” means any event that with the giving
of notice, the lapse of time or both would become an Event of Default.


 


“Default Rate” means a rate per  annum
equal to 2.00% plus the Alternate Base Rate (but not less than the Yield (if
any) in effect for the related monetary obligation).


 


“Defaulted Receivable” means a Receivable (i) with
respect to which the Servicer has determined in good faith that all amounts it
expects to recover have been received; (ii) with 


 


10





















 


respect to which the related Financed Vehicle
was repossessed and any cure period required by law has expired; (iii) with
respect to which at least 5% of a scheduled payment is more than 90 days past
due; or (iv) as to which the Obligor became the subject of a bankruptcy
proceeding commenced after the execution of the related Contract.


 


“Delinquency Ratio” means, on any day, the
average of the Monthly Delinquency Ratios for the three most recently completed
Collection Periods.


 


“Delinquent Receivable” means a Receivable
(other than a Defaulted Receivable) with respect to which at least 10% of a
scheduled payment is more than 60 days past due.


 


“Determination Date” means, with respect to any
Distribution Date, the third Business Day prior to such Distribution Date.


 


“Discount Factor” means as of any date of
determination, a percentage agreed to by the Seller and the Purchaser under the
Sale and Servicing Agreement to account for profit, the time value of money,
the risk of non-payment and anticipated collectiblity of the Receivable, the
liquidation of any contingent liability of the Seller relating to the related
Receivable, and the value attributable to the Seller bringing to the Purchaser
the related Receivable.


 


“Distribution Date” means the 20th day of each
calendar month, or if such 20th day is not a Business Day, the next succeeding
Business Day, commencing May 20, 2005.


 


“Distribution Date Statement” has the meaning
specified in Section 4.09 of the Sale and Servicing Agreement.


 


“Dollar(s)” and the sign “$” mean lawful
money of the United States of America.


 


“Due Date” means, with respect to any Contract,
the date upon which an installment of Monthly P&I is due.


 


“Effective Date” has the meaning set forth in Section 7.1
of the Receivables Financing Agreement.


 


“Eligible Account” means (i) a segregated
trust account or (ii) a segregated direct deposit account, in each case,
maintained with a depository institution or trust company organized under the
laws of the United States of America, or any of the States thereof, or the
District of Columbia, having a certificate of deposit, short term deposit or
commercial paper rating of at least A-1+ by Standard & Poor’s and P-1
by Moody’s.  In either case, such
depository institution or trust company shall have been approved by the
Required Lenders, acting in their discretion, by written notice to the
Servicer.  U.S. Bank National Association
and DBNY are each deemed to be an acceptable depository institution to the
Required Lenders.


 


“Eligible AFP Receivable” means, as of any
date, a Receivable (a) which was originated under the AFP Program by a
Dealer which has transferred Receivables under at least ten (10) Contracts
to the Seller or a Predecessor in Interest; (b) which has an outstanding
Principal Balance not greater than 15% of the Aggregate Outstanding Principal
Balance of all outstanding 


 


11





















 


Receivables acquired from such Dealer; and (c) with
respect to which the obligations of such Dealer under the related Dealer
Purchase Agreement are fully cross-collateralized by security interests in all
Receivables transferred to the Seller by such Dealer.


 


“Eligible Dealer” means, as of any date, a
Dealer (a) which has been in business for at least 2 years, (b) which
has executed and is in compliance with a Dealer Purchase Agreement with CAR or
any of the Predecessors in Interest, (c) with respect to which the
Aggregate Outstanding Principal Balance on such date of Delinquent Receivables
purchased from such Dealer by the Seller (or any of the Predecessors in
Interest) is less than 15% of the Aggregate Outstanding Principal Balance on
such date of all Receivables purchased from such Dealer by the Seller (or any
of the Predecessors in Interest), provided if the Aggregate Outstanding
Principal Balance on such date of Delinquent Receivables purchased from such
Dealer by the Seller (or any of the Predecessors in Interest) is greater than
or equal to 15% of the Aggregate Outstanding Principal Balance on such date of
all Receivables purchased from such Dealer by the Seller (or any of the
Predecessors in Interest), then such Dealer will nevertheless be an Eligible
Dealer if the Dealer Reserve Percentage with respect to such Dealer on such
date is greater than 15%; and (d) with respect to which the Aggregate
Outstanding Principal Balance of all outstanding Receivables purchased from
such Dealer by the Seller (or any of the Predecessors in Interest) which became
Defaulted Receivables less Net Liquidation Proceeds (including Dealer Reserves
applied to such Defaulted Receivables) with respect thereto does not exceed $0.


 


“Eligible Dealer Purchase Agreement” means, as
of any date, a Dealer Purchase Agreement (a) which, except in the case of
a Dealer Purchase Agreement with respect to the PIPP Program, has Dealer
Reserve Target Percentage no less than 15% and no greater than 35%; (b) which
contains a recourse obligation of the Dealer to repurchase a Receivable if the
total of all payments due in the first 30 days after the Receivable is assigned
by the related Dealer is not paid in full by the Obligor; (c) which,
except in the case of a Dealer Purchase Agreement with respect to the VLAP
Program, states that it is a sale, assignment, transfer and conveyance of the
related Receivables; and (d) in the case of a Dealer Purchase Agreement
with respect to the VLAP Program, states that it is a sale of the related
Receivables.


 


“Eligible Dealer Transaction Right” means, as
of any date, a Dealer Transaction Right relating to an Eligible Receivable on
such date:


 


“Eligible Origination Programs” means the
Standard Bulk Purchase Program, the AFP Program, the PIPP Program, the VLAP
Program, and the Major Account Purchase Program.


 


“Eligible PIPP Receivable” means, as of any
date, a Receivable (a) which was originated under the PIPP Program by a
Dealer which has transferred Receivables under at least ten (10) Contracts
to the Seller or a Predecessor in Interest; (b) which has an outstanding
Principal Balance not greater than 15% the Aggregate Outstanding Principal
Balance of all outstanding Receivables acquired from such Dealer; (c) with
respect to which the obligations of such Dealer under the related Dealer
Purchase Agreement are fully cross-collateralized by security interests in all
Receivables transferred to the Seller by such Dealer; (d) with respect to
which the first payment purchased by the Seller is not due more than two months
from the date of such purchase; and (e) with respect to which the
aggregate remaining number of principal payments 


 


12





















 


due under such Receivable exceeds the number
of months set forth in the table below opposite the number of payments
purchased by the Seller:


 


	
  Number
  of Payments Purchased

  	
   

  	
  Required Months Remaining on Contract

  
	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
  10 months

  
	
  9

  	
   

  	
   

  	
  18 months

  
	
  12

  	
   

  	
   

  	
  25 months

  
	
  15

  	
   

  	
   

  	
  28 months

  
	
  18

  	
   

  	
   

  	
  32 months

  



 


“Eligible Receivable” means, as of any date, a
Receivable as to which the following representations and warranties are true
and correct on such date.


 


Schedule of
Receivables.  The calculation of the Principal Balance
appearing in the Schedule of Receivables for the Receivable has been
performed in accordance with this Agreement and is accurate, and the
characteristics and all other information pertaining to the Receivable set
forth in such Schedule of Receivables are true and correct in all material
respects as of the date such Schedule of Receivables was delivered.


 


Security
Interests. 
The Receivable is secured by a valid and enforceable first priority
security interest in favor of the initial lender, the Dealer, the Seller or one
of the Predecessors in Interest in the related Financed Vehicle, and such
security interest has been duly perfected or may be duly perfected as described
in clause (b) below and is prior to all other Liens upon and security
interests in such Financed Vehicle which exist or may thereafter arise or be
created (except, as to priority, for any Permitted Lien arising after such
Closing Date).


 


Title
Documents. 
Except as provided below in this paragraph (b), if the related Financed
Vehicle was sold in a state in which (A) notation of a security interest
on the Title Document is required or permitted to perfect such security
interest, the Title Document for such Financed Vehicle shows, or if a new or
replacement Title Document is being applied for with respect to such Financed
Vehicle the Title Document will be received within 120 days of the related
Closing Date, and will show the initial lender, the Dealer, the Seller or one
of the Predecessors in Interest named as the original secured party under the
related Contract as the holder of a first priority security interest in such
Financed Vehicle, and (B) the filing of a financing statement under the
UCC is required to perfect a security interest in motor vehicles, such filings
or recordings have been duly made and show the initial lender, the Dealer, the
Seller or one of the Predecessors in Interest named as the original secured
party under the related Contract, and in either case, the Collateral Agent has
the same rights or similar rights by virtue of (i) the Seller’s first
priority security interest in the Receivable and a power of attorney or (ii) the
Seller’s right to amend such financing statement to name itself as secured
party of record, in either case as the secured party noted on the title
document or such financing statement has or would have (if such secured party
were still the lender) against all parties claiming an interest in such
Financed Vehicle.  With respect to each
Contract for which the Title Document has not yet been returned from the
Registrar of Titles, the Seller has received written evidence from the related
Dealer that such Title Document showing the initial lender, the Dealer, the
Seller or one of the Predecessors in Interest as first lienholder has been
applied for.  In each case where the
Seller is not named in the 


 


13





















 


certificate of
title, the Seller has a blanket or individual power of attorney from the named
lienholder authorizing the Seller to do all acts necessary to perfect in the
Seller’s name any liens or security interests in the Financed Vehicles.


 


Title to the
Contracts. 
Immediately prior to the related Closing Date, the Seller had good and
indefeasible title to and was the sole owner of, or holder of a security
interest in, each Contract relating to a Dealer Transaction Right to be transferred
to the Purchaser pursuant to Section 2.01 of the Sale and Servicing
Agreement free of Liens and rights to payments of any Person.  Upon the transfer of such Dealer Transaction
Right to the Purchaser pursuant to such Section 2.01, the Purchaser will
have a perfected security interest in the Seller’s right, title and interest in
such Contract free of Liens (except for Permitted Liens arising after such
Closing Date) and rights to payment of any Person.


 


Current in
Payment. 
The Contract is not a Delinquent Receivable or Defaulted Receivable as
of such date.  Except
with respect to Receivables transferred on the Initial Closing Date, no
Contract is more than 30 days past due as of the related Closing Date.


 


Approved State.  The related Contract was originated in an
Approved State.


 


Rescission,
Offset, Etc.  There is no right of rescission, offset,
defense or counterclaim to the obligation of the Obligor to pay the unpaid
principal or interest due under the related Contract; the operation of the
terms of the related Contract or the exercise of any right thereunder will not
render the Contract unenforceable in whole or in part or subject to any right
of rescission, offset, defense or counterclaim, and no such right of
rescission, offset, defense or counterclaim has been asserted.


 


Mechanics’
Liens. 
As of the Cut-Off Date, there are no liens or claims for work, labor,
material or storage affecting the related Financed Vehicle which is a Lien
prior to or equal with the security interest granted by the Contract.


 


Compliance With Laws.  The related Contract, and the sale of the
Financed Vehicle sold thereunder, complied, at the time it was made, in all
material respects with all applicable state and federal laws (and regulations
thereunder), including without limitation usury, equal credit opportunity, fair
credit reporting, truth-in-lending or other similar laws, the Federal Trade
Commission Act, and applicable state laws regulating retail installment sales
contracts and consumer loans in general and motor vehicle retail installment
contracts and consumer loans in particular; the transfer of Dealer’s interest
in such Contract to the Seller and Seller’s interest therein to the Borrower
did not violate any applicable state or federal law or cause such Contract or
Receivable to be unenforceable.  The
related Contract was not originated in or subject to the laws of any
jurisdiction under which the sale, transfer and assignment of such Contract and
Receivable and the documents in the Contract Files, the Seller’s security
interest in the Financial Vehicle, or the receipt of interest by the Seller, is
unlawful, void or voidable.


 


Valid and
Binding. 
The Receivable is the legal, valid and binding obligation of the Obligor
thereunder and is enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally; all parties to the related
Contract had full legal capacity to execute and deliver the Contract and all
other documents related thereto and to grant the security interest purported to
be granted thereby; the terms of the Receivable have not been waived, amended
or modified in any respect, except by instruments that are part of the Contract
Files; and no such waiver, amendment or modification has caused the Receivable
or the related Contract to fail to meet all of the representations, warranties
and conditions set forth with respect thereto.


 


Enforceability.  The related Contract contains customary and
enforceable provisions such as to render the rights and remedies of the holder
or assignee as owner of such Receivable adequate for the realization against
the collateral of the benefits of the security, subject, as to enforceability,
to bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors’ rights generally.


 


No Default.  There is (A) no default, breach,
violation or event permitting acceleration existing under the related Contract
(except payment delinquencies permitted by clause (e) of this
subsection) and (B) no event which, with notice,  the expiration of any grace or cure 


 


14





















 


period, would
constitute a default, breach, violation or event permitting acceleration under
the related Contract, and (C) neither the Seller nor the Servicer has
waived any such default, breach, violation or event permitting acceleration
except payment delinquencies permitted by clause (e) of this definition.


 


Insurance.  The related Contract requires that the
Obligor thereunder obtain and maintain in effect insurance on the related
Financed Vehicle until the indebtedness thereunder is paid.


 


Acquisition of
Contract. 
The Contract was either originated by the Seller in its ordinary course
of business or acquired by Seller (or a Predecessor in Interest) in its
ordinary course of business from a Dealer who was an Eligible Dealer on the
applicable Cut-Off Date pursuant to an Eligible Dealer Purchase Agreement or
from a third party-lender pursuant to an agreement containing rights of
recourse against the related lender similar to those in the Dealer Purchase
Agreements with which it ordinarily does business.  No adverse selection procedures have been
utilized in selecting such Receivable from all other similar contracts
originated or purchased by the Seller.


 


Scheduled
Payments. 
Scheduled payments under the related Contract are applied in accordance
with the Rule of 78’s method or the simple interest method and are due on
a frequency no greater than monthly in level payments through its Maturity Date
sufficient to fully amortize the principal balance of such Contract by its
Maturity Date, assuming timely payment by Obligors on Simple Interest
Contracts, except that the initial or final payment of the Contract may be
minimally different from the level payment.


 


One Original.  There is only one original of the related
Contract and such original, together with all other documents in the Contract
Files, is being delivered to the Custodian pursuant to Section 3.03.  Such Contract constitutes “tangible chattel
paper” as defined in the applicable UCC. 
None of the documents in the Contract Files that constitute or evidence
each Contract has any marks or notations indicating that the Receivable has
been pledged, assigned or otherwise conveyed to any Person other than the
Purchaser.


 


Identification.  The Servicer and the Seller have clearly
marked their electronic records to indicate that the Contract has been
transferred to and is owned by the Purchaser.


 


Principal
Balance.  At the
Cut-Off Date the initial Principal Balance of such Receivable was not greater
than the sum of the purchase price of the related vehicle, plus taxes, license
fees and warranty costs.


 


Location of
Contract Files.  The Contract Files are kept at one or more of
the locations listed in Schedule C to the Sale and Servicing
Agreement as such Schedule may be amended.


 


No Government
Entity Obligors. 
The related Obligor shall not be a local, state or federal governmental
entity.


 


No Extensions.  The number of, or timing of, scheduled
payments has not been changed on any Receivable on or before the related
Closing Date, except as reflected on the related Schedule of Receivables.


 


Repossession.  As of the applicable Cut-Off Date, the
related Financed Vehicle has not been repossessed.


 


No Consent; No
Bulk Transfer Law Violation.  The related Contract does not require the
related Obligor to consent to or receive notice of its transfer, sale or
assignment and the sale, transfer and assignment of such Receivable, together
with all Receivables being sold, transferred and assigned on the related
Closing Date, will not violate any applicable bulk transfer laws.


 


Contract
Characteristics.  As of the related date in which the loan was
transferred from Seller to Borrower, the related Contract had an outstanding
Principal Balance of not more than $30,000. 
As of the date of its origination, such Contract had a term of not more
than 87 months.  After giving effect to
the transfer of such Receivables, or the related Seller’s security interest
therein, the weighted average remaining term to maturity of the Contracts
related to all Transferred Receivables will not exceed 22 months.


 


Origination.  The Receivable has been originated pursuant
to one of the Eligible Origination Programs in accordance with the Credit and
Collection Policy as in effect on the date on which such Receivable was
originated (x) in the United States of America by a Dealer 


 


15





















 


who as of the
date such Receivable was originated was an Eligible Dealer for the consumer or
commercial sale of a Financed Vehicle in the ordinary course of such Dealer’s
business or (y) by the Seller, shall have been fully and properly executed by
the parties thereto, shall have been purchased by the Seller from such Eligible
Dealer under an existing Eligible Dealer Purchase Agreement with the Seller or
under an agreement containing rights of recourse against the related Dealer
similar to those in the form of Dealer Purchase Agreement under which it
ordinarily does business (unless such Receivable was originated by the Seller),
and shall have been validly assigned (which assignment may convey either an
ownership interest or a security interest) by such Eligible Dealer to the
Seller in accordance with its terms.


 


Dollars.  The Receivable is an obligation denominated
in United States Dollars.  The Obligor on
the related Contract has provided as its most recent billing address an address
located in the continental United States.


 


Forced Placed
Insurance.  The
related Contract is not subject to a forced placed insurance policy on the
related Financed Vehicle.


 


No
Bankruptcies. 
The Obligor has not been the subject of a bankruptcy proceeding
commenced after the execution of the related Contract except if such Obligor
has received a discharge or dismissal of such proceeding under the US
Bankruptcy Code.


 


Dealer Reserve.  As of the Cut-Off Date, the related Dealer
Reserve satisfied the Dealer Reserve Target Percentage.


 


Seasoning.  The Receivable was originated not less than
three months prior to the Cut-Off Date except if it was acquired by the Seller
(or one of the Predecessors in Interest) pursuant to the AFP Program.


 


PIPP
Eligibility; AFP Eligibility.  If the Receivable was originated under the
PIPP Program, the Receivable is an Eligible PIPP Receivable.  If the Receivable was originated under the
AFP Program, the Receivable is an Eligible AFP Receivable.


 


The Receivables in the Franklin Pool shall be deemed
to be Eligible Receivables on the Initial Closing Date.


 


“Eligible Servicer” means (a) CAR
Servicing, (b) the Backup Servicer or (c) another Person which at the
time of its appointment as Servicer (i) is servicing a portfolio of motor
vehicle retail installment contracts and/or motor vehicle installment loans, (ii) is
legally qualified and has the capacity to service the Transferred Receivables, (iii) has
demonstrated the ability to service a portfolio of motor vehicle retail
installment contracts and/or motor vehicle installment loans similar to the
Transferred Receivables with reasonable skill and care, (iv) is qualified
and entitled to use, pursuant to a license or other written agreement, and
agrees to maintain the confidentiality of, the software which the Servicer uses
in connection with performing its duties and responsibilities under this
Agreement or otherwise has available software which is adequate to perform its
duties and responsibilities under this Agreement, (v) has capital in
excess of $75,000,000 and (vi) has been approved by the Required Lenders.


 


“ERISA” means the U.S. Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


“Event of Default” means any of the events
described in Section 14.2 of the Receivables Financing Agreement.


 


“Excess Funds” means, on any day, the amount on
deposit in the Collection Account minus Accrued Costs on such day


 


16





















 


“Facility” has the meaning set forth in Section 2.1
of the Receivables Financing Agreement.


 


“Facility Limit” means the aggregate of the
Commitments of all Committed Lenders..


 


“Facility Termination Date” means the earliest
of (a) the Scheduled Facility Termination Date, (b) the Stated
Facility Termination Date, (c) the effective date on which the Facility is
terminated pursuant to Section 14.3 of the Receivables Financing
Agreement and (d) the date on which a Facility Termination Event occurs.


 


“Facility Termination Event” means any of the
events described in Section 14.1 of the Receivables Financing
Agreement.


 


“Federal Funds Rate” means, for any period, a
fluctuating rate per annum equal for each day during such period 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 which is a Business Day, the average of
the quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.


 


“Fee Letter” has the meaning set forth in Section 3.4
of the Receivables Financing Agreement.


 


“Fees” means all fees and other amounts payable
by the Borrower to the Administrative Agent, on behalf of itself, the Lenders
and the Support Parties, pursuant to the Fee Letter.


 


“Financed Vehicle” means, as to any Contract,
the new or used automobile, light-duty truck, sports utility vehicle, van or
minivan, together with all accessories thereto, the financing of which gave
rise to such Contract.


 


“Fixed Period” means with respect to any
Advance:


 


(a)           the period commencing on the date of the
initial funding of such Advance and ending on the succeeding Distribution Date;
and


 


(b)           thereafter, each period commencing on the last day
of the immediately preceding Fixed Period for such Advance and ending on the
next succeeding Distribution Date.


 


“Franklin Pool” means that certain pool of
receivables purchased on May 4, 2004, from First Federal Bank, a federally
chartered stock savings bank located and operating in Pennsylvania, which
consists of motor vehicle retail installment contracts secured by new and used
automobiles, light-duty trucks, all-terrain vehicles, motorcycles and
recreational vehicles.


 


“Full Prepayment” means any of the
following:  (i) payment to the
Servicer of 100% of the outstanding principal balance of a Receivable,
exclusive of any Receivable referred to in 


 


17





















 


clause (ii), (iii) or (iv) of the definition
of the term “Defaulted Receivable,” together with all accrued and unpaid
interest thereon to the date of such payment, or (ii) payment by the
Seller or the Servicer, as the case may be, of the purchase price of a
Receivable in connection with the purchase of a Receivable pursuant to Section 3.02
or 4.07 of the Sale and Servicing Agreement.


 


“GAAP” means generally accepted accounting
principles in the United States, which are applicable to the circumstances as
of any date of determination.


 


“Guarantor” has the meaning set forth in the Preamble
of the Receivables Financing Agreement.


 


“Increased Costs” means collectively, any
increased cost, loss or liability owing to the Administrative Agent and/or any
other Affected Person under Article VI of the Receivables Financing
Agreement.


 


“Indebtedness” means, with respect to any
Person at any time, (a) indebtedness or liability of such Person for
borrowed money whether or not evidenced by bonds, debentures, notes or other
instruments, or for the deferred purchase price of property or services
(including trade obligations); (b) obligations of such Person as lessee
under leases which should have been or should be, in accordance with GAAP,
recorded as capital leases; (c) current liabilities of such Person in
respect of unfunded vested benefits under plans covered by Title IV of ERISA; (d) obligations
issued for or liabilities incurred on the account of such Person; (e) obligations
or liabilities of such Person arising under acceptance facilities; (f) obligations
of such Person under any guarantees, endorsements (other than for collection or
deposit in the ordinary course of business) and other contingent obligations to
purchase, to provide funds for payment, to supply funds to invest in any Person
or otherwise to assure a creditor against loss; (g) obligations of such
Person secured by any lien on property or assets of such Person, whether or not
the obligations have been assumed by such Person; or (h) obligations of
such Person under any interest rate or currency exchange agreement.


 


“Indemnified Amounts” has the meaning set forth
in Section 17.1 of the Receivables Financing Agreement.


 


“Indemnified Party” has the meaning set forth
in Section 17.1 of the Receivables Financing Agreement.


 


“Indemnity Amounts” means, collectively, all
indemnity obligations and other amounts owing to the Administrative Agent, any
Agent, any Lender and/or any other Indemnified Party under Section 13.7, Article XVII
or Section 18.4 of the Receivables Financing Agreement.


 


“Independent Accountants” has the meaning set
forth in Section 8.7 of the Receivables Financing Agreement.


 


“Initial Closing Date” means, April 1,
2005.


 


“Insolvency Event” means, with respect to any
Person, (i) the entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of such Person in an 


 


18





















 


involuntary case under the federal bankruptcy laws, as
now or hereafter in effect, or any other present or future, federal or State,
bankruptcy, insolvency or similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or other similar official for such
Person or for any substantial part of its property, or ordering the winding-up
or liquidation of such Person’s affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 90 consecutive days, (ii) the
commencement of an involuntary case under the federal bankruptcy laws, as now
or hereinafter in effect, or any other present or future federal or state
bankruptcy, insolvency or similar law and such case is not dismissed within 90
days, (iii) the commencement by such Person of a voluntary case under the
federal bankruptcy laws, as now or hereinafter in effect, or any other present
or future federal or state, bankruptcy, insolvency or similar law, or (iv) the
consent by such Person to the appointment of a conservator or receiver or liquidator
in any insolvency, readjustment or debt, marshalling of assets and liabilities
or similar proceedings of or relating to such Person 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 such Person, or such Person shall admit in writing its
inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations or the taking of corporate action by such Person in furtherance of
any the foregoing.


 


“Insurance Policy” means, with respect to a
Financed Vehicle, (i) any comprehensive, collision, fire, theft or other
insurance policy maintained by an Obligor that also lists the Dealer or the
Seller as loss payee with respect to the related Financed Vehicle or (ii) any
credit life, involuntary unemployment, or accident and health insurance
maintained by an Obligor in connection with any Contract.


 


“Insurance Proceeds” means proceeds paid
pursuant to any Insurance Policy and amounts (exclusive of rebated premiums)
paid by any insurer under any other insurance policy related to a Financed
Vehicle, a Contract or an Obligor.


 


“Interest Rate Caps” shall mean the interest
rate caps provided pursuant to Cap Agreements by one or more Cap Providers in
favor of the Collateral Agent for the benefit of the Secured Parties pursuant
to Section 11.6 of the Receivables Financing Agreement which shall
entitle the Collateral Agent to receive monthly payments equal to the product
of (i) the positive difference, if any, between the 30-day LIBOR Rate in
effect for each applicable Fixed Period and a rate per annum of 9.0%, (ii) the
notional amount of such interest rate cap and (iii) the actual number of
days in the Interest Accrual Period divided by 360.


 


“Interim Distribution Date” means any Business
Day, other than a Distribution Date, on which Advances
are being paid or prepaid.


 


“Investor” means (i) all Lenders, (ii) all
other owners by assignment or participation of an Advance and, to the extent of
the undivided interests so assigned or participated, all Participants (in
accordance with Section 16.9), and (iii) each Agent and any
subsequent holder of a Note (in accordance with Section 16.5).


 


19





















 


“Lender” means any Noncommitted Lender or
Committed Lender, and “Lenders” means, collectively, all Noncommitted
Lenders and Committed Lenders.


 


“Lender Group” shall mean each group of Lenders
consisting of (i) a Noncommitted Lender and (ii) the Committed
Lenders with respect to such Noncommitted Lender.  The initial Lender Group shall be the
Nantucket Purchaser Group, which shall consist of Nantucket Funding Corp., LLC,
as the Noncommitted Lender, and DBNY, as the Committed Lender.  The Agent for the Nantucket Purchaser Group
shall be DBNY.


 


“Level One Trigger Event” means occurrence of
any one of the following:


 


(a)           the Delinquency Ratio exceeds ***;


 


(b)           the Aggregate Outstanding Principal
Balance of Eligible Receivables relating to Dealers with Dealer Reserve
Percentages less than 15% exceeds *** of the Aggregate Eligible Receivables
Balance;


 


(c)           the Charge-Off Ratio exceeds (i) during
any period other than a period that includes any Collection Period that
encompasses any month occurring during the period of December through March of
any year, *** or (ii) during a period that includes any Collection Period
that encompasses any month occurring during the period of December through
and including March of any year, ***; or


 


(d)           the Pool Discount/Reserve Percentage exceeds
***.


 


“Level Two Trigger Event” means occurrence of
any one of the following:


 


(a)           the Delinquency Ratio exceeds ***;


 


(b)           the Aggregate Outstanding Principal
Balance of Eligible Receivables relating to Dealers with Dealer Reserve
Percentages less than 15% exceeds *** of the Aggregate Eligible Receivables
Balance;


 


(c)           the Charge-Off Ratio exceeds (i) during
any period other than a period that includes any Collection Period that
encompasses any month occurring during the period of December through March of
any year, *** or (ii) during a period that includes any Collection Period
that encompasses any month occurring during the period of December through
and including March of any year, ***; or


 


(d)           the Pool Discount/Reserve Percentage exceeds
***.


 


“LIBOR Rate”
means, with respect to any Fixed Period, the rate per annum shown on Telerate Page 3750
as the composite offered rate for London interbank deposits for a period equal
to such Fixed Period, as shown under the heading “USD” as of 11:00 a.m.,
London time, two Business Days prior to the first day of such Fixed Period; provided
that in the event no such rate is shown, the LIBOR Rate shall be the rate per
annum based on the rates at which Dollar deposits for a period equal to such
Fixed Period are displayed on page ”LIBOR” of the Reuters 


 


20





















 


Monitor Money
Rates Service or such other page as may replace the LIBOR page on
that service for the purpose of displaying London interbank offered rates of
major banks as of 11:00 a.m., London time, two London Business Days prior
to the first day of such Fixed Period (it being understood that if at least two
such rates appear on such page, the rate will be the arithmetic mean of such
displayed rates); provided  further that in the event fewer than
two such rates are displayed, or if no such rate is relevant, the LIBOR Rate
shall be a rate per annum at which deposits in Dollars are offered by the
principal office of Deutsche Bank AG in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Fixed Period for delivery on such first day and
for a period equal to such Fixed Period.


 


“LIBOR Reserve
Percentage” means, with respect to any Fixed Period, a percentage
(expressed as a decimal) equal to the weighted average of the percentages in
effect during such Fixed Period, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor thereto) for determining the maximum
reserve requirements applicable to “Eurocurrency liabilities” pursuant to
Regulation D or any other applicable regulation of the Federal Reserve
Board (or any successor thereto) which prescribes reserve requirements
applicable to “Eurocurrency liabilities” as currently defined in
Regulation D.


 


“Lien” means any security interest, lien,
charge, pledge, preference, equity or encumbrance of any kind, including tax
liens, mechanics’ liens and any liens that attach by operation of law.


 


“Liquidation Expenses” means reasonable
out-of-pocket expenses (and, if CAR, CAR Servicing or an Affiliate of CAR is
the Servicer, not to exceed Liquidation Proceeds), other than any overhead
expenses, incurred by the Servicer in connection with the realization of the
amounts due under any Receivable (including the attempted liquidation of a
Receivable which is brought current and is no longer in default during such
attempted liquidation) and the sale of any property acquired in respect thereof
which are not recoverable under any Insurance Policy.


 


“Liquidation Proceeds” means amounts received
by the Servicer (before reimbursement for Liquidation Expenses) in connection
with the realization of the amounts due and to become due under any Delinquent
Receivable or Defaulted Receivable, including, without limitation, Dealer
Reserves and amounts paid by Dealers pursuant to the Dealer Purchaser
Agreements and applied with respect to any such Receivable, and/or the sale of
any property acquired in respect thereof but net of any amounts required to be
refunded to the Obligor of such Receivable.


 


“Liquidity Amount” means, on any determination
date, the sum of cash or cash equivalents owned by CARS Acquisition and its
wholly-owned direct or indirect subsidiaries on such determination date
(including Excess Funds) and available borrowing capacity on such determination
date under the Receivables Financing Agreement and the unsecured credit
facilities to which CAR is a party.


 


“Lockbox Account” has the meaning given such
term in Section 4.02(b) of the Sale and Servicing Agreement.


 


21





















 


“Lockbox Agreement” means each lockbox control
agreement by and among a Lockbox Bank, the Collateral Agent and the Borrower,
to be entered into in connection with respect to each Lockbox Account as set
forth in Section 4.02(b) of the Sale and Servicing Agreement
in form and substance acceptable to the Administrative Agent, as be amended,
supplemented or otherwise modified from time to time.


 


“Lockbox Bank” means each depository
institution named by the Servicer and acceptable to the Agent which maintains a
Lockbox Account.


 


“Major Account Purchase Program” means the
program of CAR (or a Predecessor in Interest) for purchasing Receivables which
has been designated as the “Major Account Purchase Program”, as more
particularly described in the Credit and Collection Policy.


 


“Market Discount” means, with respect to any Receivable, the discount from par at which the Seller or a
Predecessor in Interest purchased such Receivable from the related Dealer.


 


“Material Adverse Change” in respect of a
Person means a material adverse change in (i) the business, properties,
results of operations, or financial condition of such Person or (ii) the
ability of such Person to perform, or of the Collateral Agent or any Lender to
enforce, the material obligations of such Person under any Transaction Document
to which it is a party.


 


“Material Adverse Effect” in respect of a
Person means a material adverse effect upon (i) the business, properties,
results of operations, or financial condition of CCRT and its Subsidiaries
taken as a whole, or (ii) the ability of such Person to perform, or of the
Collateral Agent or any Lender to enforce, the material obligations of such
Person under any Transaction Document to which it is a party.


 


“Maturity Date” means, with respect to any
Contract, the date on which the last scheduled payment of such Contract shall
be due and payable (after giving effect to all Prepayments received prior to
the date of determination) as such date may be extended pursuant to Section 4.02
of the Sale and Servicing Agreement.


 


“Maximum Loan Amount” of a Noncommitted Lender
means the aggregate Commitment of the Committed Lenders with respect to such
Noncommitted Lender.


 


“Minimum Liquidity Amount Test” shall be met,
on any date, if the Liquidity Amount is then, and is reasonably expected to be
throughout the then following six-month period, at least $50,000.  If such requirement is not met, CAR shall
have provided to the Administrative Agent a quarterly financial forecast for
the following two-year period and a reasonably detailed calculation of the
Liquidity Amount and projected compliance with such test.


 


“Monthly Charge-Off Ratio” means, with respect
to any Collection Period, the percentage equivalent of a fraction (a) the
numerator of which is the product of (i) the Aggregate Outstanding Principal
Balance of all Transferred Receivables which became Defaulted Receivables
during such Collection Period less Net Liquidation Proceeds (including Dealer
Reserves applied to such Defaulted Receivables) during such Collection Period
and (ii) 12 and 


 


22





















 


(b) the denominator of
which is the Aggregate Outstanding Principal Balance of all Transferred
Receivables as of the last day of the preceding Collection Period.


 


“Monthly Delinquency Ratio” means, with respect
to any Collection Period, the percentage equivalent of a fraction (a) the
numerator of which is the Aggregate Outstanding Principal Balance of all
Transferred Receivables which are Delinquent Receivables as of the last day of
such Collection Period and (b) the denominator of which is the Aggregate
Outstanding Principal Balance of all Transferred Receivables as of the last day
of such Collection Period.


 


“Monthly P&I” means, with respect to any
Contract, the amount of each monthly installment of principal and interest
payable to the Obligee of such Contract in accordance with the terms thereof,
exclusive of any charges which represent late payment charges or extension
fees.


 


“Moody’s” means Moody’s Investors Service, Inc.,
or any successor thereto.


 


“Net Collections” means (i) the sum of all
amounts collected on or in respect of the Receivables and Dealer Transaction
Rights, including Monthly P&I (whether received in whole or in part,
whether related to a current, future or prior Due Date, whether paid
voluntarily by an Obligor or received in connection with the realization of the
amounts due and to become due under any Defaulted Receivable or upon the sale
of any property acquired in respect thereof), all partial Prepayments, all Full
Prepayments, Net Liquidation Proceeds, Net Insurance Proceeds, and the
Repurchase Amount for Repurchased Receivables but excluding any amounts
collected that the Servicer is entitled to retain.


 


“Net Insurance Proceeds” means, with respect to
any Receivable, Insurance Proceeds net of any such amount applied to the repair
of the related Financed Vehicle, released to the related Obligor in accordance
with the normal servicing procedures of the Servicer or representing expenses
incurred by the Servicer and recoverable hereunder.


 


“Net Liquidation Proceeds” means the amount
derived by subtracting from the Liquidation Proceeds of a Receivable the
related Liquidation Expenses.


 


“Net Outstanding Principal Balance” means, with
respect to a Receivable and any date, the product of (a) the outstanding
Principal Balance thereof and (b) 100% minus the sum of (i) the
Dealer Reserve Percentage on such date with respect to the Dealer which
originated such Receivable and (ii) the Dealer Discount Percentage on such
date with respect to such Dealer.


 


“Net Spread”
means, as of any date, the positive excess, if any, of (a) the sum of (i) the
weighted average APR of the Eligible Receivables on such date (after giving
effect to any reduction of the APR of any Eligible Receivable pursuant to the
provision of Section 4.01 of the Sale and Servicing Agreement) and (ii) the
weighted average Dealer Discount Percentage over (b) the sum of (i) 
the Total Expense Percentage plus (ii) the weighted (on the basis
of notional amounts) average strike prices for the Interest Rate Caps in effect
on such date.


 


“New Dealer” means, as of any date, a Dealer
from whom CAR or a Predecessor in Interest first purchased a Receivable within
the 12 months prior to such date.


 


23





















 


“Noncommitted Lender” means each Structured
Lender which shall become a party to the Receivables Financing Agreement.


 


“Noncommitted Percentage” means, for a
Noncommitted Lender, such Noncommitted Lender’s Maximum Loan Amount as a
percentage of the Facility Limit.


 


“Note” means the promissory grid note, in the
form of Exhibit B to the Receivables Financing Agreement, made
payable to the order of an Agent, on behalf of the related Investors.


 


“Note Agent” has the meaning set forth in Section 15.1
of the Receivables Financing Agreement.


 


“Note Register” has the meaning set forth in Section 16.5(a) of
the Receivables Financing Agreement.


 


“Note Registrar” has the meaning set forth in Section 16.5(a) of
the Receivables Financing Agreement.


 


“Obligations” means all obligations (monetary
or otherwise) of the Borrower to the Lenders, the Agents, the Custodian, the
Backup Servicer, the Administrative Agent, the Collateral Agent or any other
Affected Person or Indemnified Party arising under or in connection with this
Agreement, the Notes and each other Transaction Document.


 


“Obligee” means the Person to whom an Obligor
is indebted under a Contract.


 


“Obligor” on a Contract means the purchaser or
co-purchasers of the Financed Vehicle and any other Person who owes payments
under the Contract.


 


“Officers’ Certificate” means a certificate
signed by the Chairman, the President, a Vice President, the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of any Person delivering such certificate and delivered
to the Person to whom such certificate is required to be delivered.  In the case of an Officers’ Certificate of
the Servicer, the signing officer must be a Servicing Officer.  Unless otherwise specified, any reference
herein to an Officers’ Certificate shall be to an Officers’ Certificate of the
Borrower.


 


“Official Body” means any government or
political subdivision or any agency, authority, regulatory body, bureau,
central bank, commission, department or instrumentality of any such government
or political subdivision, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.


 


“Opinion of Counsel” means a written opinion of
independent counsel reasonably acceptable in form and substance and from
counsel acceptable to the Required Lenders.


 


“Other Conveyed Property” means the items
transferred to the Borrower pursuant to Section 2.01(b) of the
Sale and Servicing Agreement other than the Transferred Dealer 


 


24





















 


Transaction Rights. 
Dealer Recourse with respect to a Receivable shall be deemed to be a Other Conveyed Property with respect to such Receivable.


 


“Outstanding” means, with respect to a
Receivable and as of time of reference thereto, a Receivable that has not
reached its Maturity Date, has not been fully prepaid, has not become a
Defaulted Receivable and has not been repurchased pursuant to Section 3.02
or 4.07 of the Sale and Servicing Agreement.


 


“Overconcentration Amount” means, as of any
date, the sum, without duplication, of the following (excluding, in each case,
the Franklin Pool):


 


(a)           the amount, if any, by which the Aggregate
Outstanding Principal Balance of all Transferred Receivables which are Eligible
Receivables which were originated by any Dealer exceeds *** of the Aggregate
Eligible Receivables Balance;


 


(b)           the amount, if any, by which the Aggregate
Outstanding Principal Balance of all Transferred Receivables which are Eligible
Receivables which were originated by any three Dealers exceeds *** of the
Aggregate Eligible Receivables Balance;


 


(c)           after the Initial Closing Date, the
amount, if any, by which the Aggregate Outstanding Principal Balance of all
Transferred Receivables which are Eligible Receivables which were originated by
any New Dealer exceeds *** of the Aggregate Eligible Receivables Balance;


 


(d)           the amount, if any, by which the Aggregate
Outstanding Principal Balance of all Transferred Receivables which are Eligible
Receivables which were originated by Obligors having an address in a particular
state exceeds the percentage of the Aggregate Eligible Receivables Balance set
forth opposite the name of such state below: 


 


	
  State

  	
   

  	
  Percentage

  
	
   

  	
   

  	
   

  
	
  Florida

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  
	
  Texas

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  
	
  Pennsylvania, Georgia, California or North
  Carolina

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  
	
  All other states

  	
   

  	
  ***

  



 


(e)           the amount, if any, by which the
Aggregate Outstanding Principal Balance of all Transferred Receivables which
are Eligible Receivables which have remaining terms to maturity of greater than
24 months exceeds *** of the Aggregate Eligible Receivables Balance;


 


(f)            the amount, if any, by which the
Aggregate Outstanding Principal Balance of all Transferred Receivables which
are Eligible Receivables which have remaining terms to maturity of greater than
36 months exceeds *** of the Aggregate Eligible Receivables Balance;


 


25





















 


(g)           the amount, if any, by which the
Aggregate Outstanding Principal Balance of all Transferred Receivables which
are Eligible Receivables which were originated under the AFP Program exceeds
*** of the Aggregate Eligible Receivables Balance; and


 


(h)           the amount, if any, by which the
Aggregate Outstanding Principal Balance of all Transferred Receivables which
are Eligible Receivables which were originated under the PIPP Program exceeds
*** of the Aggregate Eligible Receivables Balance.


 


“Participant” has the meaning set forth in Section 16.9
of the Receivables Financing Agreement.


 


“Permitted Investment” means, at any
time:


 


(a)           direct interest-bearing obligations of,
and interest-bearing obligations guaranteed as to timely payment of principal
and interest by, the United States or any agency or instrumentality of the
United States, the obligations of which are backed by the full faith and credit
of the United States;


 


(b)           demand or time deposits in, certificates
of deposit of, demand notes of, or bankers’ acceptances issued by any
depository institution or trust company organized under the laws of the United
States or any State thereof (including any federal or state branch or agency of
a foreign depository institution or trust company) and subject to supervision
and examination by federal and/or state banking authorities (including, if
applicable, the Administrative Agent or any agent thereof acting in its
commercial capacity); provided that the short-term unsecured debt
obligations of such depository institution or trust company at the time of such
investment, or contractual commitment providing for such investment, are rated
at least “A-1+” by Standard & Poor’s and “P-1” by Moody’s;


 


(c)           repurchase obligations pursuant to a
written agreement (i) with respect to any obligation described in clause (a) above,
where the Collateral Agent has taken actual or constructive delivery of such obligation
in accordance with Article IX of this Agreement, and (ii) entered
into with (x) DBNY or (y) the corporate trust department of a
depository institution or trust company organized under the laws of the United
States or any State thereof, the deposits of which are insured by the Federal
Deposit Insurance Corporation and the short-term unsecured debt obligations of
which are rated at least “A-1+” by Standard & Poor’s and “P-1” by
Moody’s (including, if applicable, the Collateral Agent or any agent thereof
acting in its commercial capacity);


 


(d)           securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the United
States or any State whose long-term unsecured debt obligations are assigned one
of the two highest long-term ratings by each Rating Agency at the time of such
investment or contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will not
be Permitted Investments to the extent that an investment therein will cause
the then outstanding principal amount of securities issued by such corporation
and held in the Collection Account and the Cap Funding Reserve Account to
exceed 10% of the value of Permitted Investments held in such accounts (with
Permitted Investments held in such accounts valued at par);


 


26





















 


(e)           commercial paper that (i) is payable in United
States dollars and (ii) is rated at least “A-1+” by Standard &
Poor’s and “P-1” by Moody’s;


 


(f)            units of money market funds (which may be
managed by the Collateral Agent or one of its Affiliates) rated in the highest
credit rating category by each Rating Agency; or


 


(g)           any other demand or time deposit,
obligation, security or investment (including, without limitation, a hedging
arrangement) as may be acceptable to the Required Lenders, as evidenced by a
writing to that effect.


 


Permitted Investments may be purchased by or through
the Administrative Agent, the Collateral Agent or any of their respective
Affiliates.  All Permitted Investments
shall be held in the name of the Collateral Agent.  No Permitted Investment shall have an “r”
highlighter affixed to its Standard & Poor’s rating.


 


“Permitted Lien” means (i) the Lien in
favor of the Collateral Agent for the benefit of the Secured Parties, (ii) the
restrictions on transferability imposed by the Transaction Documents, (iii) 
inchoate Liens for taxes not yet payable and mechanics’ or suppliers’ liens for
services or materials supplied the payment of which is not yet overdue and (iv) with
respect to any Financed Vehicle, (A) any Lien for unpaid taxes or unpaid
storage or repair charges, (B) mechanics’ Liens and (C) any Lien that
attaches by operation of law and which may arise after the applicable Closing
Date in accordance with the UCC.


 


“Person” means an individual, partnership,
corporation (including a business trust), joint stock company,
limited liability company, trust, unincorporated association, joint venture,
government or any agency or political subdivision thereof or any other entity.


 


“PIPP” or “PIPP Program” means the
program of CAR (or a Predecessor in Interest) for purchasing Receivables which
has been designated as the “Payment Interval Purchase Program” or “PIPP Program”,
as more particularly described in the Credit and Collection Policy.


 


“Pool Discount/Reserve Percentage” means, as of
any Distribution Date, the percentage equivalent of a fraction the numerator of
which is the sum of the aggregate Dealer Discount with respect to all
Transferred Receivables on such Distribution Date and the aggregate Dealer
Reserve with respect to all Transferred Receivables on such day and the
denominator of which is the Aggregate Outstanding Principal Balance of all
Transferred Receivables on such Distribution Date.


 


“Predecessors in Interest” mean Wells Fargo
Financial America, Inc., Wells Fargo Financial Kentucky, Inc., Wells
Fargo Financial, Inc., Wells Fargo Financial Nevada, Inc., Wells
Fargo Financial North Carolina, Inc., Wells Fargo Financial Texas, Inc.
and Wells Fargo Financial CAR LLC.


 


“Principal Balance” means, with respect to a
Receivable and any date, the outstanding principal balance under the terms
thereof.


 


27





















 


“Proceeds” or “proceeds” shall have the
meaning given to such term in the UCC.


 


“Promissory Note” means the note or notes, if
more than one, executed by the Borrower in favor of the Seller as part of the
purchase price paid by the Borrower for Contracts subject to this Agreement
substantially in the form of Exhibit C to the Sale and Servicing
Agreement.


 


“Purchase Date” means, with respect to a
Transferred Receivable or Transferred Dealer Transaction Right, the date on
which such Receivable or Transferred Dealer Transaction Right is sold or
contributed to the Borrower pursuant to the Sale and Servicing Agreement.


 


“Purchase Price” means, with respect to each
Receivable in which a Dealer Transaction Right is sold by the Seller to the
Purchaser pursuant to the Sale and Servicing Agreement, and measured on the
Cut-Off Date for such sale, an amount equal to the product of (a) the
outstanding Principal Balance of such Receivable, multiplied by (b) the
Discount Factor.


 


“Purchaser” means the Borrower in its capacity
as the “Purchaser” under the Sale and Servicing Agreement.


 


“Qualified Substitute Arrangement” shall have
the meaning specified in Section 11.6(d) of the Receivables
Financing Agreement.


 


“Rating Agencies” means Standard &
Poor’s and Moody’s.


 


“Receivable” means the right to payment arising
under a Contract for the sale of a motor vehicle and any interest in related
goods, insurance or services evidenced by or arising under such Contract.


 


“Record Date” means, with respect to any
Determination Date or Distribution Date, the last day of the immediately
preceding calendar month.


 


“Receivables Collateral” means the Transferred
Receivables and Transferred Dealer Transaction Rights together with the Other
Conveyed Property.


 


“Receivables Financing Agreement” means the
Receivables Financing Agreement dated as of April 1, 2005 (together with
all amendments and other modifications, if any, from time to time thereafter
made thereto), among the Purchaser, the Servicer, CompuCredit Corporation,
Deutsche Bank AG, New York Branch, the Backup Servicer, the Collateral Agent,
the Custodian and the Lenders and the Agents parties thereto.


 


“Registrar of Titles” means the agency,
department or office having the responsibility for maintaining records of
titles to motor vehicles and issuing documents evidencing such titles in the
jurisdiction in which a particular Financed Vehicle is registered.


 


“Related Security” means, for any Receivable,
all of the Seller’s right, title and interest in, to and under (i) the
Financed Vehicle related to the related Contract; (ii) any Insurance
Policies relating to such Financed Vehicle or to the related Obligor, (iii) all
Liens and property subject thereto, if any, purporting to secure payment of
such Contract, together with all financing 


 


28





















 


statements describing any collateral securing such
Contract, (iv) all guarantees, letters of credit, insurance and other
agreements supporting or securing payment of such Contract, (v) all
Ancillary Products related to such Contract, (vi) rights or claims against
the applicable Dealer and (vii) all proceeds of the foregoing.


 


“Replacement Interest Rate Cap” means one or
more Interest Rate Caps, which in combination with all other Interest Rate Caps
then in effect, after giving effect to any planned cancellations of any
presently outstanding Interest Rate Caps satisfy the Borrower’s covenant
contained in Section 11.6 of the Receivables Financing Agreement to
maintain Interest Rate Caps.


 


“Repurchase Amount” means, with respect to any
Dealer Transaction Right and any related Receivable, the amount, as of the date
of repurchase, equal to the greater of (x) (a) the Purchase Price paid
with respect to such Dealer Transaction Right minus (b) collections in
respect of principal received on or prior to the date of repurchase and (y) the
product of (a) the outstanding Principal Balance thereof and (b) 100%
minus the sum of (i) the Dealer Reserve Percentage on such date with
respect to the Dealer which originated such Receivable and (ii) the Dealer
Discount Percentage on such date with respect to such Dealer.


 


“Repurchased Dealer Transaction Right” means,
with respect to any Collection Period, any Transferred Dealer Transaction Right
relating to any Transferred Receivable which became a Repurchase Receivable
during such Collection Period.


 


“Repurchased Receivable” means, with respect to
any Collection Period, any Transferred Receivable as to which the Repurchase
Amount has been deposited in the Collection Account by or on behalf of the Borrower
or the Servicer, as applicable, on or before the related Determination Date and
any Transferred Receivable purchased by the Servicer, the Seller or CAR
pursuant to the Sale and Servicing Agreement as to which the Repurchase Amount
has been deposited in the Collection Account by or on behalf of the Servicer,
the Seller or CAR, as the case may be.


 


“Required Interest Rate Caps Notional Amount”
means, with respect to any date of determination, the outstanding principal
amount of the Advances on such date of determination.


 


“Required Lenders” means, at any time, (a) Noncommitted
Lenders holding Advances aggregating at least 66-2/3% of all Advances then
owing to Noncommitted Lenders, and (b) Committed Lenders having
Commitments or, if no Commitments are in effect, Advances, aggregating at least
66-2/3% of the Facility Limit or Advances owing to Committed Lenders (as the
case may be).


 


“Responsible Officer” means, with respect to
any Person that is not an individual, the President, any Vice-President or
Assistant Vice-President, the Chief Financial Officer, the Treasurer or the
Controller of such Person, or any other trust officer, officer or employee
having similar functions.


 


“Rule of 78’s Contract” means a Contract
as to which payments thereunder are applied on the basis of the Rule of 78’s.


 


29





















 


“Sale and Assignment” means a sale and
assignment delivered in connection with a sale of Receivables, substantially in
the form of Schedule B to the Sale and Servicing Agreement.


 


“Sale and Servicing Agreement” means the Sale
and Servicing Agreement, dated as of April 1, 2005(together with all
amendments and other modifications, if any, from time to time thereafter made
thereto), by and among the Borrower, the Seller, the Custodian and the
Servicer.


 


“Schedule of Receivables” means the list
or lists of Receivables attached as the Schedule of Receivables to each
Sale and Assignment executed in connection with this Agreement, which Schedule of
Receivables are incorporated by reference as Schedule A to Receivables
Financing Agreement.  Each such Schedule of
Receivables shall identify the Receivables which are being transferred to the
Purchaser and shall set forth such information with respect to each such
Receivable as the Purchaser or the Required Lenders may from time to time
require.


 


“Scheduled Facility Termination Date” means the
date that is 364 days from the Effective Date of this Agreement or such later
date to which the Scheduled Facility Termination Date may be extended, if
extended, pursuant to Section 2.7 of the Receivables Financing
Agreement.


 


“Secured Parties” means, collectively, each
Agent, each Lender, the Administrative Agent, the Collateral Agent, each other
Affected Person and their respective successors and assigns.


 


“Seller” has the meaning specified in the Preamble
of the Receivables Financing Agreement.


 


“Servicer” means CAR Servicing, in its capacity
as the Servicer of the Receivables under Section 4.01 of the Sale and
Servicing Agreement, and, in each case upon succession in accordance herewith,
each successor Servicer in the same capacity pursuant to Section 4.01 of
the Sale and Servicing Agreement and each successor Servicer pursuant to Section 8.02
of the Sale and Servicing Agreement.


 


“Servicer Default” means an event specified in Section 8.01
of the Sale and Servicing Agreement.


 


“Servicing Fee – Senior” means, with respect to
any Distribution Date, the fee payable to the Servicer on a senior basis for
services rendered during the related Collection Period, which shall be equal to
one-twelfth of the Servicing Fee Percentage — Senior multiplied by the average
Aggregate Net Outstanding Principal Balance of Transferred Receivables for each
day during the related Collection Period.


 


“Servicing Fee – Subordinate” means, with
respect to any Distribution Date, the fee payable to the Servicer on a
subordinate basis for services rendered during the related Collection Period,
which shall be equal to one-twelfth of the Servicing Fee Percentage –
Subordinate multiplied by the average aggregate outstanding balance of
Transferred Receivables for each day during the related Collection Period.


 


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“Servicing Fee Percentage - Senior” means ***,
or, following a Servicer Default, such higher rate as may be payable at such
time to a successor Servicer.


 


“Servicing Fee Percentage - Subordinate” means
***, or, following a Servicer Default, such higher rate as may be payable at
such time to a successor Servicer.


 


“Servicing Officer” means any officer of the
Servicer involved in, or responsible for, the administration and servicing of
the Receivables whose name appears on a list of servicing officers furnished to
the Purchaser, the Administrative Agent and the Collateral Agent by the
Servicer pursuant to Section 4.01 of the Sale and Servicing
Agreement.


 


“Settlement Date” means, with respect to any
Advance, (x) each Distribution Date or (y) the date on which the Borrower shall
prepay such Advance pursuant to Section 2.6 of the Receivables
Financing Agreement.


 


“Simple Interest Contract” means a Contract as
to which interest is calculated each day on the basis of the actual principal
balance of such Contract on such day.


 


“SL Affected Party” has the meaning set forth
in Section 3.3(c) of the Receivables Financing Agreement.


 


“Standard & Poor’s” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or
any successor thereto.


 


“Standard Bulk Purchase Program” means the
program of CAR (or a Predecessor in Interest) for purchasing Receivables which
has been designated as the “Standard Bulk Purchase Program”, as more
particularly described in the Credit and Collection Policy.


 


“Stated Facility Termination Date” means the
date that is eighteen months from the Effective Date of this Agreement.


 


“Structured Lender” shall mean any Person whose
principal business consists of issuing commercial paper, medium term notes or
other securities to fund its acquisition and maintenance of receivables,
accounts, instruments, chattel paper, general intangibles and other similar
assets or interests therein and which is required by any nationally recognized
statistical rating organization which is rating such securities to obtain from
its principal debtors an agreement such as that set forth in Section 18.11(a) of
the Receivables Financing Agreement in order to maintain such rating.


 


“Subsequent Closing Date” means each Closing
Date other than the Initial Closing Date.


 


“Subsidiary” means, with respect to any Person,
a corporation of which such Person and/or its other Subsidiaries own, directly
or indirectly, such number of outstanding shares as have more than 50% of the
ordinary voting power for the election of directors.


 


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“Support Facility” means any liquidity or
credit support agreement with a Noncommitted Lender which relates to this
Agreement (including any agreement to purchase an assignment of or
participation in Notes).


 


“Support Party” means any other bank, insurance
company or other financial institution extending or having a commitment to
extend funds to or for the account of a Noncommitted Lender (including by
agreement to purchase an assignment of or participation in Notes) under a
Support Facility.  Each Committed Lender
for a Noncommitted Lender shall be deemed to be a Support Party for such
Noncommitted Lender.


 


“Tangible Net Worth” means, with respect to any
Person, the net worth of such Person calculated in accordance with GAAP after
subtracting therefrom the aggregate amount of such Person’s intangible assets,
including, without limitation, goodwill, franchises, licenses, patents,
trademarks, tradenames, copyrights and service marks.


 


“Take-Out Securitization” means (i) a
financing transaction of any sort undertaken by CAR, any Affiliate of CAR, or
the Borrower secured, directly or indirectly, by any Receivable which was a
Transferred Receivable prior to such transaction or (ii) any auto loan or
other asset securitization, secured loans, whole loan sale or similar
transactions involving any Receivable which was a Transferred Receivable prior
to such transaction or any beneficial interest therein.


 


“Taxes” has the meaning set forth in Section 5.1(b) of
the Receivables Financing Agreement.


 


“Threatened” means, with respect to an action,
Proceeding or other matter, that any demand or statement has been made (in
writing or orally, if made to any of the officers or directors of a Person), or
that any other event has occurred or any other circumstances exist, that would
lead a reasonable person to conclude that such Proceeding or other matter is
likely to be asserted, commenced, taken or otherwise pursued in the future.


 


“Title Document” means, with respect to any
Financed Vehicle, the certificate of title for, or other evidence of ownership
of, such Financed Vehicle issued by the Registrar of Titles in the jurisdiction
in which such Financed Vehicle is registered.


 


“Total Expense Percentage” means, as of any
date, the sum of (a) the Servicing Fee Percentage — Senior plus the
Servicing Fee Percentage - Subordinate plus (b) the “Program Fee
Rate” (as defined in the Fee Letter) plus (c) the “Usage Fee Rate”
(as defined in the Fee Letter) plus (d) the rate at which fees due
to the Custodian under the Custodian Fee Letter accrue (if calculated on the
basis of the outstanding amount of Receivables) plus (e) the rate
at which fees and expenses due to the Backup Servicer under the Backup Servicer
Letter accrue (if calculated on the basis of the outstanding amount of
Receivables) plus (f) the rate, if any, at which fees due to the
Administrative Agent under the Administrative Agent Fee Letter accrue (if
calculated on the basis of the outstanding amount of Receivables) plus (g) the
rate at which fees due to the Collateral Agent under the Collateral Agent Fee
Letter accrue (if calculated on the basis of the outstanding amount of
Receivables).


 


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“Transaction Documents” means the Receivables
Financing Agreement, the Notes, the Fee Letter, the Sale and Servicing
Agreement, each Lockbox Agreement, each Interest Rate Cap and the other
documents to be executed and delivered in connection with this Agreement.


 


“Transferred Dealer Transaction Right” means
each Dealer Transaction Right related to a Transferred Receivable.


 


“Transferred Receivable” means each Receivable
which appears on any Schedule of Receivables at any time hereafter
submitted to the Borrower pursuant to the Sale and Servicing Agreement relating
to a Dealer Transaction Right purchased by the Borrower or a contribution to
the capital of the Borrower.  Once a
Receivable appears on any such Schedule of Receivables it shall remain a
Transferred Receivable; provided, however, that any Transferred
Receivable shall not be a “Transferred Receivable” after such
Transferred Receivable or the related Dealer Transaction Right is released from
the Lien granted to the Collateral Agent for the benefit of the Secured Parties
pursuant hereto.


 


“Transfer Request” has the meaning set forth in
Section 13.4 of the Receivables Financing Agreement.


 


“UCC” means the Uniform Commercial Code as from
time to time in effect in the applicable jurisdiction or jurisdictions.


 


“United States” means the United States of
America.


 


“Unmatured Facility Termination Event” means
any event that, if it continues uncured, will, with lapse of time or notice or
lapse of time and notice, constitute a Facility Termination Event.


 


“Unmatured Servicer Default” means any event
that, if it continues uncured, will, with lapse of time or notice or lapse of
time and notice, constitute a Servicer Default.


 


“Vice President” of any Person means any vice
president of such Person, whether or not designated by a number or words before
or after the title “Vice President,” who is a duly elected officer of such
Person.


 


“VLAP Program” means the program of CAR (or a
Predecessor in Interest) for purchasing Receivables which has been designated
as the “Victory Lane Approval Program” or “VLAP Program”, as more particularly
described in the Credit and Collection Policy.


 


“WFB” means Wells Fargo Bank, National
Association, a national banking association.


 


“written” or “in
writing” (and other variations thereof) means any form of written
communication or a communication by means of telex, telecopier device,
telegraph or cable.


 


“Yield” means, with respect to any period, the
daily interest accrued on Advances outstanding during such period as provided
for in Article III of the Receivables Financing Agreement.


 


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