Master Collection Account Trust Agreement (2015)Full Document 

Start of Preview

MASTER COLLECTION ACCOUNT TRUST AGREEMENT

among

CARFINANCE CAPITAL LLC,

as Servicer,

CFC FUNDING LLC,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

not in its individual capacity but solely as Master Collection Account Trustee,

VARIOUS CF FINANCE PARTIES SIGNATORIES HERETO,

and

VARIOUS ENFORCEMENT PARTIES SIGNATORIES HERETO

Dated as of February 8, 2012


ARTICLE I: CERTAIN DEFINITIONS

1

SECTION 1.1

Certain Definitions

1

SECTION 1.2

Interpretation and Construction

4

ARTICLE II: CASH MANAGEMENT ARRANGEMENTS

4

SECTION 2.1

Remittance of Lock-box Funds

4

SECTION 2.2

The Master Collection Account

5

SECTION 2.3

Remittance of Funds to the Master Collection Account

5

SECTION 2.4

Grant of Security Interest

6

SECTION 2.5

Designation of Enforcement Parties and CF Finance Parties

7

SECTION 2.6

[Reserved]

7

SECTION 2.7

Intercreditor Provisions

7

ARTICLE III: DUTIES OF CF CAPITAL

8

SECTION 3.1

Appointment and Acceptance

8

SECTION 3.2

CF Capital Not to Resign

8

ARTICLE IV: THE MASTER COLLECTION ACCOUNT TRUSTEE

9

SECTION 4.1

Appointment

9

SECTION 4.2

Representations

10

SECTION 4.3

Exculpatory Provisions

10

SECTION 4.4

Limitations on Duties of the Master Collection Account Trustee

11

SECTION 4.5

Resignation and Removal of Master Collection Account Trustee

13

SECTION 4.6

Qualification of Successors to Master Collection Account Trustee

14

SECTION 4.7

Merger of the Master Collection Account Trustee

14

SECTION 4.8

Compensation and Expenses

14

SECTION 4.9

Stamp, Other Similar Taxes and Filing Fees

15

SECTION 4.10

Indemnification

15

SECTION 4.11

Payments by Enforcement Parties

15

ARTICLE V: MISCELLANEOUS

15

SECTION 5.1

Amendments, Supplements and Waivers

15

SECTION 5.2

Notices

16

SECTION 5.3

Headings

16

SECTION 5.4

Severability

16

SECTION 5.5

Counterparts

16

SECTION 5.6

Conflicts with Other Documents; Reservation of Rights

17

SECTION 5.7

Binding Effect

17

SECTION 5.8

Governing Law

17

iii


SECTION 5.9

Effectiveness 17

SECTION 5.10

Termination of an Enforcement Party or a CF Finance Party 17

SECTION 5.11

Termination of this Agreement 18

SECTION 5.12

No Bankruptcy Petition 18

SECTION 5.13

Jurisdiction; Consent to Service of Process 18

SECTION 5.14

Confidentiality 19

EXHIBITS

Exhibit A Form of Enforcement Party Supplement

SCHEDULES

Schedule I Deposit Account Control Agreement

iv


MASTER COLLECTION ACCOUNT TRUST AGREEMENT

THIS MASTER COLLECTION ACCOUNT TRUST AGREEMENT, dated as of February 8, 2012 (as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof, this "Agreement"), among CARFINANCE CAPITAL LLC, a Delaware limited liability company ("CF Capital"), CFC FUNDING LLC, a Delaware limited liability company, WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association ("Wells Fargo"), not in its individual capacity but solely as Master Collection Account Trustee for the Enforcement Parties referred to below (in such capacity, the "Master Collection Account Trustee"), each party that from time to time executes an Enforcement Party Supplement substantially in the form of Exhibit A hereto as a CF Finance Party (any such party being herein called individually a "CF Finance Party" and collectively, the "CF Finance Parties"), and each party that from time to time executes an Enforcement Party Supplement substantially in the form of Exhibit A hereto as an Enforcement Party (any such party being herein called individually an "Enforcement Party" and collectively, the "Enforcement Parties").

W I T N E S S E T H:

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:

ARTICLE I: CERTAIN DEFINITIONS

SECTION 1.1 Certain Definitions. As used in this Agreement, the following terms have the respective meanings set forth below or set forth in another section hereof or in any other agreement as indicated.

"Affiliate" means, with respect to a Person, any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" or "controlled" have meanings correlative to the foregoing.

"Agreement" has the meaning set forth in the preamble hereto.

"Bankruptcy Code" means the United States Bankruptcy Code (Title 11 of the United States Code).

"Business Day" means a day of the year other than a Saturday or Sunday on which banks are not required or authorized to close in New York, New York, Irvine, California, or the city in which the Corporate Trust Office is located.


"CF Capital" has the meaning set forth in the preamble hereto.

"CF Finance Party" has the meaning set forth in the preamble hereto.

"CFC Funding" means CFC Funding LLC, a Delaware limited liability company, and its successors.

"Collateral" means any Receivables, all collections and payments with respect thereto and related assets sold, assigned or otherwise transferred, including by way of a grant of a security interest therein, by a CF Finance Party to an Enforcement Party and/or the parties represented hereunder by such Enforcement Party.

"Collateral Account" has the meaning specified in Section 2.1.

"Corporate Trust Office" means the principal corporate trust office of the Master Collection Account Trustee, located at MAC N9311-161, Sixth Street and Marquette Ave., Minneapolis, MN 55479, Attention: Corporate Trust Services – Asset-Backed Administration, or at such other address as the Master Collection Account Trustee may designate from time to time by notice to the other parties hereto.

"Deposit Account Control Agreement" means that certain Deposit Account Control Agreement, dated as of February 8, 2012 among CF Capital, Wells Fargo, as secured party and Wells Fargo, as bank, attached hereto as Schedule I, as amended, restated, supplemented or otherwise modified from time to time, or any replacement entered into among CF Capital, the Master Collection Account Trustee, and a bank for the purpose of perfecting the Master Collection Account Trustee’s security interest in the Collection Accounts.

"Dollars" or "$" means the lawful currency of the United States.

"Enforcement Default" means, with respect to any Enforcement Party, any matured event of default or other comparable event or circumstance, however named, the occurrence of which would permit such Enforcement Party to take action to enforce its rights and remedies in respect of amounts owing under any applicable Financing Document.

"Enforcement Party" has the meaning set forth in the preamble hereto.

"Enforcement Party Supplement" means a supplement to this Agreement, substantially in the form of Exhibit A hereto.

"Financing Documents" means, with respect to an Enforcement Party, any and all agreements, instruments and contracts evidencing or related to any financing arrangement among one or more CF Finance Parties, such Enforcement Party, the financial institutions or other entities on whose behalf such Enforcement Party acts hereunder and any other parties thereto providing for the making of loans or advances to or at the direction of any such CF Finance Parties, the purchase of assets, or undivided interests therein, from any such CF Finance Parties, or any other arrangement providing, directly or indirectly, for the financing of Receivables and related assets of any such CF Finance Parties, in any such case, as such agreements, indentures, instruments and contracts may be amended, supplemented, restated, extended or otherwise modified from time to time in accordance with the terms thereof.

2


"General Account" means that certain Account No. [Redacted] in the name of, and maintained by CF Capital with Bank of America, or such other account and bank as shall be designated by CF Capital from time to time.

"Investment Company Act" means the Investment Company Act of 1940, as amended.

"Lock-Box" means a post-office box maintained by the Lock-Box Bank pursuant to the Deposit Account Control Agreement.

"Lock-Box Bank" means Wells Fargo Bank, National Association, as bank pursuant to the Deposit Account Control Agreement.

"Majority Enforcement Parties" means, at any time, Enforcement Parties that hold or represent hereunder other parties that hold (including by way of pledge or assignment) more than 50% of the outstanding principal amount of and commitments to provide financing (whether constituting indebtedness, an interest in Receivables and related assets or other financing) extended to one or more CF Finance Parties under the related Financing Documents at such time.

"Master Collection Account" has the meaning set forth in Section 2.2.

"Master Collection Account Collateral" has the meaning set forth in Section 2.4.

"Master Collection Account Trustee" has the meaning set forth in the preamble hereto, and includes any successor to Wells Fargo, in its capacity as Master Collection Account Trustee in accordance with the terms hereof.

"Master Collection Account Trustee Fee" means $1,000 per month.

"Moody’s" means Moody’s Investors Services, Inc.

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

"Qualified Institution" means any depository institution or trust company (which may include the Master Collection Account Trustee) organized under the laws of the United States or any State (or any domestic branch of a foreign bank), (i) that meets or the parent of which meets, either (a) a long-term unsecured debt rating of "BBB+" or higher by Standard & Poor’s and "Baal" or higher by Moody’s, or (b) the Short-Term Rating Requirement and (ii) whose deposits are insured by the Federal Deposit Insurance Corporation.

"Receivable" means indebtedness owed by one or more obligors under a retail installment sale contract, note and security agreement or conditional sale contract executed by such obligors, arising out of or in connection with the sale, refinancing or loan made to such obligors for the purchase of a new or used automobile, light and/or medium-duty truck, minivan

3


or sport utility vehicle, together with all accessions thereto, which indebtedness is secured by such automobile, light and/or medium-duty truck, minivan or sport utility vehicle, whether constituting an account, chattel paper, instrument or general intangible, and includes the right of payment of any finance charges and other obligations of such obligors with respect thereto.

"Short-Term Rating Requirement" means, with respect to any Person, that such Person has a short-term unsecured debt rating of not less than "A-1" by Standard & Poor’s and not less than "P-1" by Moody’s.

"Standard & Poor’s" means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.

"UCC" means the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the Master Collection Account Trustee’s or any Enforcement Party’s security interest in any Master Collection Account Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term "UCC" means the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.

"United States" or "U.S." means the United States of America.

SECTION 1.2 Interpretation and Construction. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular and to the singular include the plural. The words "hereof’, "herein", "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding". Sections and other headings contained in this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation hereof in any respect. Section, subsection and exhibit references are to this Agreement unless otherwise specified. As used in this Agreement, the masculine, feminine or neuter gender shall each be deemed to include the others whenever the context so indicates.

ARTICLE II: CASH MANAGEMENT ARRANGEMENTS

SECTION 2.1 Remittance of Lock-box Funds. The Lock-Box Bank has established one or more Lock-Boxes for the purpose of receiving mail and processing payments pursuant to the Deposit Account Control Agreement. In addition, the Lock-Box Bank has established one or more deposit accounts (each a "Collateral Account" and collectively, the "Collateral Accounts"), each a zero balance account maintained by CF Capital with the Lock-Box Bank for the purpose of receiving wire transfer payments and proceeds of the Lock-Boxes. The Master Collection Account Trustee has "control" (within the meaning of §9-104 of the

4


UCC) of the Collateral Accounts pursuant to the Deposit Account Control Agreement. CF Capital hereby confirms that except as otherwise provided herein, it will not consent to any material modification of the character of, or consent to any material change in the remittance of funds deposited to, the Lock-Boxes or Collateral Accounts without the prior consent of the Master Collection Account Trustee.

SECTION 2.2 The Master Collection Account. The Master Collection Account Trustee shall establish and maintain for the benefit of the Enforcement Parties and CFC Funding, or cause to be established and maintained, an account (the "Master Collection Account"), in the name of the Master Collection Account Trustee, bearing a designation clearly indicating that the funds deposited therein are held for the respective benefit of each Enforcement Party and CFC Funding. The Master Collection Account shall be maintained as a segregated trust account with the corporate trust department of a Qualified Institution. If

End of Preview