Exhibit 10.2
ASSIGNMENT
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For value received, in accordance with the Purchase Agreement dated as of
May [ ], 1997 between the undersigned (the "SELLER") and CPS Receivables Corp.
(the "PURCHASER") (the "SAMCO PURCHASE AGREEMENT"), the undersigned does hereby
sell, transfer, assign and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Samco Purchase Agreement and the Pooling and
Servicing Agreement), all right, title and interest of the Seller in and to
(i) the Samco Receivables listed in the Samco Schedule of Receivables and, with
respect to Rule of 78's Receivables, all monies due or to become due thereon
after the Cutoff Date (including Scheduled Payments due after the Cutoff Date
(including principal prepayments relating to such Scheduled Payments) but
received by the Seller on or before the Cutoff Date) and, with respect to Simple
Interest Receivables, all monies received thereunder after the Cutoff Date and
all Liquidation Proceeds and Recoveries received with respect to such
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Samco Receivables and any other interest of the Seller
in such Financed Vehicles, including, without limitation, the certificates of
title or, with respect to Financed Vehicles in the State of Michigan, other
evidence of ownership with respect to Financed Vehicles; (iii) any proceeds from
claims on any physical damage, credit life and credit accident and health
insurance policies or certificates relating to the Financed Vehicles securing
the Samco Receivables; (iv) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the Samco Receivables, refunds of
unearned premiums with respect to credit life and credit accident and health
insurance policies or certificates covering an Obligor or Financed Vehicle
securing the Samco Receivables or his or her obligations with respect to such a
Financed Vehicle and any recourse to Dealers for any of the foregoing; (v) the
Receivable File related to each Samco Receivable; and (vi) the proceeds of any
and all of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by the Purchaser of any obligation of the
undersigned to the Obligors, insurers or any other Person in connection with the
Samco Receivables, the Receivable Files, any insurance policies or any agreement
or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Samco
Purchase Agreement and is to be governed by the Samco Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Samco Purchase Agreement.
THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of May [ ], 1997.
SAMCO ACCEPTANCE CORP.
By:
-----------------------------
Name:
Title:
MBP DRAFT 5/14/97
PURCHASE AGREEMENT dated as of this May [ ], 1997, by and between SAMCO
ACCEPTANCE CORP., a Texas corporation (the "SELLER"), having its principal
executive office at 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Lock-Box 39,
Dallas, Texas, and CPS RECEIVABLES CORP., a California corporation (the
"PURCHASER"), having its principal executive office at 2 Xxx, Xxxxxx, Xxxxxxxxxx
00000.
WHEREAS, in the regular course of its business, the Seller purchases and
services through its auto loan programs certain motor vehicle retail installment
sale contracts secured by new and used automobiles, light trucks, vans or
minivans acquired from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms pursuant
to which the Samco Receivables (as hereinafter defined), are to be sold by the
Seller to the Purchaser, which Samco Receivables together with the CPS
Receivables will be transferred by the Purchaser, pursuant to the Pooling and
Servicing Agreement (as hereinafter defined) to CPS Auto Grantor Trust 1997-2 to
be created thereunder, which Trust will issue certificates representing
beneficial ownership interests in the Receivables and the other property of the
Trust (the "CLASS A CERTIFICATES" and the "CLASS B CERTIFICATES", together, the
"CERTIFICATES").
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth in the
Pooling and Servicing Agreement. As used in this Agreement, the following terms
shall, unless the context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural forms of the terms
defined):
"AGREEMENT" means this Purchase Agreement, as this agreement may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"ASSIGNMENT" means the Assignment dated May [ ] 1997, by the Seller to the
Purchaser, relating to the purchase of the Samco Receivables and certain other
property related thereto by the Purchaser from the Seller pursuant to this
Agreement, which shall be in substantially the form attached hereto as
EXHIBIT A.
"BASE PROSPECTUS" means the Prospectus dated May [ ], 1997 with respect to
CPS Auto Grantor Trusts and any amendment or supplement thereto.
"CERTIFICATE PURCHASE AGREEMENT" means the Certificate Purchase Agreement, dated
May [ ], 1997 among one or more investors, CPS and the Purchaser relating to the
Class B Certificates.
"CPS" means Consumer Portfolio Services, Inc., a California corporation,
and its successors and assigns.
"CPS PURCHASE AGREEMENT" means the Purchase Agreement dated as of May [ ],
1997 between Consumer Portfolio Services, Inc., as seller, and CPS Receivables
Corp., as purchaser, as such agreement may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"CPS RECEIVABLE" shall have the meaning specified in the CPS Purchase
Agreement.
"CPS SCHEDULE OF RECEIVABLES" means the list of CPS Receivables annexed as
Exhibit B to the CPS Purchase Agreement.
"OBLIGOR(S)" means the purchaser or co-purchasers of a Financed Vehicle or
any other Person who owes or may be liable for payments under a Receivable.
"OFFERING DOCUMENTS" means the Prospectus Supplement, the Base Prospectus
and the Private Placement Memorandum.
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing Agreement
dated as of May [ ], 1997, among CPS Receivables Corp., as seller, Consumer
Portfolio Services, Inc., as originator of the Receivables and servicer, and
Norwest Bank Minnesota, National Association, as trustee and standby servicer,
as such agreement may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement Memorandum,
dated May [ ], 1997, relating to the private placement of the Class B
Certificates and any amendment or supplement thereto.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated May [ ],
1997, relating to the public offering of the Class A Certificates and any
amendment or supplement thereto.
"PURCHASER" means CPS Receivables Corp., a California corporation, and its
successors and assigns.
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"RECEIVABLE" shall have the meaning specified in the Pooling and Servicing
Agreement.
"RECEIVABLES PURCHASE PRICE" means $[ ].
"REPURCHASE EVENT" shall have the meaning specified in SECTION 6.2 hereof.
"SAMCO" means Samco Acceptance Corp., a Texas corporation, and its
successors and assigns.
"SAMCO RECEIVABLE" means each retail installment sale contract for a
Financed Vehicle that appears on the Samco Schedule of Receivables and all
rights thereunder.
"SAMCO SCHEDULE OF RECEIVABLES" means the list of Samco Receivables annexed
hereto as EXHIBIT B.
"SCHEDULE OF RECEIVABLES" means the Samco Schedule of Receivables and/or
the CPS Schedule of Receivables.
"SELLER" means Samco Acceptance Corp., a Texas corporation, in its capacity
as seller of the Samco Receivables and the other Transferred Samco Property
relating thereto, and its successors and assigns.
"SERVICER" means Consumer Portfolio Services, Inc., a California
corporation, in its capacity as Servicer of the Receivables, and its successors
and assigns.
"TRANSFERRED CPS PROPERTY" shall have the meaning specified in the CPS
Purchase Agreement.
"TRANSFERRED PROPERTY" shall have the meaning specified in SECTION 2.1(A)
hereof.
"TRANSFERRED SAMCO PROPERTY" shall have the meaning specified in
SECTION 2.1(A) hereof.
"TRUST" means the CPS Auto Grantor Trust 1997-2 created by the Pooling and
Servicing Agreement.
"UCC" means the Uniform Commercial Code, as in effect from time to time in
the relevant jurisdictions.
"UNDERWRITERS" means [ ] and Black Diamond Securities, LLC.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated May [ ],
1997, among the Underwriters, CPS and the Purchaser relating to the Class A
Certificates.
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. PURCHASE AND SALE OF RECEIVABLES. On the Closing Date, subject to the
terms and conditions of this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller, without
recourse (subject to the obligations in this Agreement and the Pooling and
Servicing Agreement), all of the Seller's right, title and interest in, to and
under the Samco Receivables and the other Transferred Samco Property relating
thereto. The conveyance to the Purchaser of the Samco Receivables and other
Transferred Samco Property relating thereto is intended as a sale free and clear
of all liens and it is intended that the Transferred Samco Property and other
property of the Purchaser shall not be part of the Seller's estate in the event
of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law.
(a) TRANSFER OF RECEIVABLES. On the Closing Date and simultaneously
with the transactions to be consummated pursuant to the Pooling and Servicing
Agreement, the Seller shall sell, transfer, assign, grant, set over and
otherwise convey to the Purchaser, without recourse (subject to the obligations
herein and in the Pooling and Servicing Agreement), all right, title and
interest of the Seller in and to (i) the Samco Receivables listed in the Samco
Schedule of Receivables and, with respect to Rule of 78's Receivables, all
monies due or to become due thereon after the Cutoff Date (including Scheduled
Payments due after the Cutoff Date (including principal prepayments relating to
such Scheduled Payments) but received by the Seller on or before the Cutoff
Date) and, with respect to Simple Interest Receivables, all monies received
thereunder after the Cutoff Date and all Liquidation Proceeds and Recoveries
received with respect to such Samco Receivables; (ii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Samco Receivables and
any other interest of the Seller in such Financed Vehicles, including, without
limitation, the certificates of title or, with respect to Financed Vehicles in
the State of Michigan, other evidence of ownership with respect to Financed
Vehicles; (iii) any proceeds from claims on any physical damage, credit life and
credit accident and health insurance policies or certificates relating to the
Financed Vehicles securing the Samco Receivables or the Obligors thereunder;
(iv) refunds for the costs of extended service contracts with respect to
Financed Vehicles securing the Samco Receivables, refunds of unearned premiums
with respect to credit life and credit accident and health insurance policies or
certificates covering an Obligor or Financed Vehicle securing the Samco
Receivables or his or her obligations with respect to such a Financed Vehicle
and any recourse to Dealers for any of the foregoing; (v) the Receivable File
related to each Samco Receivable; and (vi) the proceeds of any and all of the
foregoing (collectively, the "TRANSFERRED SAMCO PROPERTY" and together with the
Transferred CPS Property, the "TRANSFERRED PROPERTY").
(b) RECEIVABLES PURCHASE PRICE. In consideration for the Samco
Receivables and other Transferred Samco Property described in SECTION 2.1(A),
the Purchaser
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shall, on the Closing Date, pay to the Seller the Receivables Purchase Price by
federal wire transfer (same day) funds.
2.2. THE CLOSING. The sale and purchase of the Samco Receivables shall
take place at a closing (the "CLOSING") at the offices of Xxxxx, Xxxxx & Xxxxx,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 on the Closing Date, simultaneously
with the closings under: (a) the CPS Purchase Agreement pursuant to which CPS
will sell the CPS Receivables to CPS Receivables Corp., (b) the Pooling and
Servicing Agreement pursuant to which (i) the Purchaser will assign all of its
right, title and interest in and to the Receivables and the other Transferred
Property to the Trustee for the benefit of the Certificateholders and (ii) the
Trust will issue and deliver to the Purchaser in exchange for the Transferred
Property and related transferred property the Certificates (c) the Underwriting
Agreement pursuant to which the Purchaser shall sell the Class A Certificates to
the Underwriters and (d) the Certificate Purhcase Agreement pursuant to which
the Purchaser shall sell the Class B Certificates to one or more investors.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of California, with power and authority to own its properties
and to conduct its business as such properties shall be currently owned and such
business is presently conducted, and had at all relevant times, and shall have,
power, authority and legal right to acquire and own the Samco Receivables.
(b) DUE QUALIFICATION. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) POWER AND AUTHORITY. The Purchaser has the power and authority
to execute and deliver this Agreement and to carry out its terms and the
execution, delivery and performance of this Agreement has been duly authorized
by the Purchaser by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement shall constitute a legal,
valid and binding obligation of the Purchaser enforceable in accordance with its
terms.
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(e) NO VIOLATION. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not conflict
with, result in a breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Purchaser, or any indenture, agreement,
mortgage, deed of trust, or other instrument to which the Purchaser is a party
or by which it is bound or to which any of its properties are subject; nor
result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any indenture, agreement, mortgage, deed of trust, or
other instrument (other than the Pooling and Servicing Agreement); nor violate
any law, order, rule or regulation applicable to the Purchaser of any court or
of any Federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Purchaser's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser or its properties: (A) asserting the
invalidity of this Agreement or the Certificates; (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement; (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity or enforceability of, this Agreement or the
Certificates; or (D) relating to the Purchaser and which might adversely affect
the Federal or State income, excise, franchise or similar tax attributes of the
Certificates.
(g) NO CONSENTS. No consent, approval, authorization or order of or
declaration or filing with any governmental authority is required to be obtained
by the Purchaser for the issuance or sale of the Certificates or the
consummation of the other transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, except such as have been duly made or obtained.
3.2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) The Seller hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date:
(i) ORGANIZATION AND GOOD STANDING. The Seller has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Texas, with power and authority to own its
properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted and had at all
relevant times, and shall have, power, authority and legal right to
acquire, and own the Samco Receivables.
(ii) DUE QUALIFICATION. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the
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conduct of its business (including the origination of the Samco Receivables
as required by the Pooling and Servicing Agreement) shall require such
qualifications.
(iii) POWER AND AUTHORITY. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its terms;
the Seller has full power and authority to sell and assign the property
sold and assigned to the Purchaser and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly
authorized by the Seller by all necessary corporate action.
(iv) VALID SALE; BINDING OBLIGATION. This Agreement effects a
valid sale, transfer and assignment of the Samco Receivables and the other
Transferred Samco Property conveyed to the Purchaser pursuant to SECTION
2.1, enforceable against creditors of and purchasers from the Seller; and
this Agreement shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms.
(v) NO VIOLATION. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation, as amended, or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust, or other instrument to which
the Seller is a party or by which it is bound or to which any of its
properties are subject; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust, or other instrument (other
than this Agreement and the Pooling and Servicing Agreement); nor violate
any law, order, rule or regulation applicable to the Seller of any court or
of any Federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Seller's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement or the Certificates; (B)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement; (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or the Certificates; or (D) relating to
the Seller and which might adversely affect the Federal or State income,
excise, franchise or similar tax attributes of the Certificates.
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(vii) NO CONSENTS. No consent, approval, authorization or order
of or declaration or filing with any governmental authority is required for
the issuance or sale of the Certificates or the consummation of the other
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement, except such as have been duly made or obtained.
(viii) FINANCIAL CONDITION. The Seller has a positive net worth
and is able to and does pay its liabilities as they mature. The Seller is
not in default under any obligation to pay money to any Person except for
matters being disputed in good faith which do not involve an obligation of
the Seller on a promissory note. The Seller will not use the proceeds from
the transactions contemplated by this Agreement to give any preference to
any creditor or class of creditors, and this transaction will not leave the
Seller with remaining assets which are unreasonably small compared to its
ongoing operations.
(ix) FRAUDULENT CONVEYANCE. The Seller is not selling the Samco
Receivables to the Purchaser with any intent to hinder, delay or defraud
any of its creditors; the Seller will not be rendered insolvent as a result
of the sale of the Samco Receivables to the Purchaser.
(b) The Seller makes the following representations and warranties as
to the Samco Receivables and the other Transferred Samco Property relating
thereto on which the Purchaser relies in accepting the Samco Receivables and the
other Transferred Samco Property relating thereto. Such representations and
warranties speak as of the execution and delivery of this Agreement, but shall
survive the sale, transfer, and assignment of the Samco Receivables and the
other Transferred Samco Property relating thereto to the Purchaser and the
subsequent assignment and transfer pursuant to the Pooling and Servicing
Agreement:
(i) LOCATION OF RECEIVABLE FILES; ONE ORIGINAL. A complete
Receivable File with respect to each Samco Receivable has been or prior to
the Closing Date will be delivered to the Trustee at the location listed in
Schedule B to the Pooling and Servicing Agreement. There is only one
original executed copy of each Samco Receivable.
(ii) SCHEDULE OF RECEIVABLES; SELECTION PROCEDURES. The
information with respect to the Samco Receivables set forth in the Samco
Schedule of Receivables is true and correct in all material respects as of
the close of business on the Cutoff Date, and no selection procedures
adverse to the Certificateholders have been utilized in selecting the Samco
Receivables.
(iii) SECURITY INTEREST IN FINANCED VEHICLE. Immediately prior to
the sale, assignment, and transfer thereof, each Samco Receivable shall be
secured by a validly perfected first security interest in the related
Financed Vehicle in favor of the Seller as secured party, and such security
interest is prior to all other liens upon and
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security interests in such Financed Vehicle which now exist or may
hereafter arise or be created (except, as to priority, for any tax liens or
mechanics' liens which may arise after the Closing Date).
(iv) SAMCO RECEIVABLES IN FORCE. No Samco Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Samco Receivable in whole or
in part.
(v) NO WAIVER. No provision of a Samco Receivable has been
waived.
(vi) NO AMENDMENTS. No Samco Receivable has been amended, except
as such Samco Receivable may have been amended to grant extensions which
shall not have numbered more than (a) one extension of one calendar month
in any calendar year or (b) three such extensions in the aggregate.
(vii) NO DEFAULT; REPOSSESSION. Except for payment delinquencies
continuing for a period of not more than thirty days as of the Cutoff Date,
no default, breach, violation or event permitting acceleration under the
terms of any Samco Receivable has occurred; and no continuing condition
that with notice or the lapse of time would constitute a default, breach,
violation, or event permitting acceleration under the terms of any Samco
Receivable has arisen; and the Seller shall not waive and has not waived
any of the foregoing; and no Financed Vehicle securing a Samco Receivable
shall have been repossessed as of the Cutoff Date.
(viii) TITLE. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the Samco
Receivables from the Seller to the Purchaser and that the beneficial
interest in and title to such Samco Receivables not be part of the debtor's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law. No Samco Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person other than
the Purchaser or any such pledge has been released on or prior to the
Closing Date. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each Samco
Receivable, and was the sole owner thereof, free and clear of all liens,
claims, encumbrances, security interests, and rights of others and,
immediately upon the transfer thereof, the Purchaser shall have good and
marketable title to each such Samco Receivable, and will be the sole owner
thereof, free and clear of all liens, encumbrances, security interests, and
rights of others, and the transfer has been perfected under the UCC.
(ix) LAWFUL ASSIGNMENT. No Samco Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Samco Receivable under this Agreement
shall be unlawful, void, or voidable. The Seller has not entered into any
agreement with any
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account debtor that prohibits, restricts or conditions the assignment of
any portion of the Samco Receivables.
(x) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Purchaser a first priority perfected ownership interest in the Samco
Receivables have been made.
(xi) CASUALTY. No Financed Vehicle related to a Samco Receivable
has suffered a Casualty.
(xii) OBLIGATION TO DEALERS OR OTHERS. The Purchaser and its
assignees will assume no obligation to Dealers or other originators or
holders of the Samco Receivables (including, but not limited to under
dealer reserves) as a result of the purchase of the Samco Receivables.
(xiii) FULL AMOUNT ADVANCED. The full amount of each Samco
Receivable has been advanced to each Obligor, and there are no requirements
for future advances thereunder. No Obligor with respect to a Samco
Receivable has any option under the Samco Receivable to borrow from any
Person additional funds secured by the related Financed Vehicle.
(c) The representations and warranties contained in this
Agreement shall not be construed as a warranty or guaranty by the Seller as
to the future payments by any Obligor. The sale of the Samco Receivables
pursuant to this Agreement shall be "without recourse" to the Seller except
for the representations, warranties and covenants made by the Seller in
this Agreement.
ARTICLE IV
CONDITIONS
4.1. CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation of the
Purchaser to purchase the Samco Receivables is subject to the satisfaction of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Seller hereunder shall be true and correct on the Closing Date
with the same effect as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b) COMPUTER FILES MARKED. The Seller shall, at its own expense, on
or prior to the Closing Date, indicate in its computer files that the Samco
Receivables have been sold to the Purchaser pursuant to this Agreement and shall
deliver to the Purchaser the
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Samco Schedule of Receivables certified by the Chairman, the President, the Vice
President or the Treasurer of the Seller to be true, correct and complete.
(c) RECEIVABLE FILES DELIVERED. The Seller shall, at its own
expense, deliver the Receivable Files to the Trustee at the offices specified in
Schedule B to the Pooling and Servicing Agreement on or prior to the Closing
Date.
(d) DOCUMENTS TO BE DELIVERED BY THE SELLER AT THE CLOSING.
(i) THE ASSIGNMENT. At the Closing, the Seller will execute and
deliver the Assignment. The Assignment shall be substantially in the form
of EXHIBIT A hereto.
(ii) EVIDENCE OF UCC-1 FILING. On or prior to the Closing Date,
the Seller shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by the Seller, as seller or debtor, and naming the Purchaser, as
purchaser or secured party, naming the Samco Receivables and the other
Transferred Samco Property conveyed hereafter as collateral, meeting the
requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of such
Samco Receivables to the Purchaser. The Seller shall deliver a
file-stamped copy, or other evidence satisfactory to the Purchaser of such
filing, to the Purchaser on or prior to the Closing Date.
(iii) OTHER DOCUMENTS. On or prior to the Closing Date, the
Seller shall deliver such other documents as the Purchaser may reasonably
request.
(e) OTHER TRANSACTIONS. The transactions contemplated by the Pooling
and Servicing Agreement the CPS Purchase Agreement, the Underwriting Agreement
and the Certificate Purchase Agreement shall be consummated on the Closing Date.
4.2. CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the Seller
to sell the Samco Receivables to the Purchaser is subject to the satisfaction of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Purchaser hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Seller shall have performed
all obligations to be performed by it hereunder on or prior to the Closing Date.
(b) RECEIVABLES PURCHASE PRICE. At the Closing Date, the Purchaser
will deliver to the Seller the Receivables Purchase Price as provided in SECTION
2.1(B). The Seller hereby directs the Purchaser to wire the Receivables
Purchase Price pursuant to wire instructions to be delivered to the Purchaser on
or prior to the Closing Date.
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ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows:
5.1. PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) FILINGS. The Seller shall cause all financing statements and
continuation statements and any other necessary documents covering the right,
title and interest of the Purchaser in and to the Samco Receivables and the
other Transferred Samco Property to be promptly filed, and at all times to be
kept recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Purchaser hereunder to the Samco Receivables and the other
Transferred Samco Property. The Seller shall cause to be delivered to the
Purchaser file stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recordation, registration or filing. The Purchaser shall cooperate fully with
the Seller in connection with the obligations set forth above and will execute
any and all documents reasonably required to fulfill the intent of this SECTION
5.1(A). In the event the Seller fails to perform its obligations under this
subsection, the Purchaser or the Trustee may do so at the expense of the Seller.
(b) NAME AND OTHER CHANGES. At least 60 days prior to the date the
Seller makes any change in its name, identity or corporate structure which would
make any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the applicable provisions of the
UCC or any title statute, the Seller shall give the Trustee, the Certificate
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and the Purchaser written notice of any such change and no later
than five days after the effective date thereof, shall file appropriate
amendments to all previously filed financing statements or continuation
statements. At least 60 days prior to the date of any relocation of its
principal executive office, the Seller shall give the Trustee, the Certificate
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and the Purchaser written notice thereof if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and the Seller shall within five days after the
effective date thereof, file any such amendment or new financing statement. The
Seller shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(c) MAINTENANCE OF COMPUTER SYSTEMS. The Seller shall maintain its
computer systems so that, from and after the time of sale to the Purchaser of
the Samco Receivables hereunder, the Seller's master computer records (including
any back-up archives) that refer to a Samco Receivable shall indicate clearly
the interest of the Purchaser in such Samco Receivable and that such Samco
Receivable is owned by the Purchaser. Indication of
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the Purchaser's ownership of a Samco Receivable shall be deleted from or
modified on the Seller's computer systems when, and only when, the Samco
Receivable shall have been paid in full or repurchased.
(d) SALE OF OTHER RECEIVABLES. If at any time the Seller shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in any automobile or light-duty truck receivables (other than the Samco
Receivables) to any prospective purchaser, lender, or other transferee, the
Seller shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Samco
Receivable, shall indicate clearly that such Samco Receivable has been sold and
is owned by the Purchaser unless such Samco Receivable has been paid in full or
repurchased.
(e) ACCESS TO RECORDS. The Seller shall permit the Purchaser and its
agents at any time during normal business hours to inspect, audit, and make
copies of and abstracts from the Seller's records regarding any Samco
Receivable.
(f) LIST OF RECEIVABLES. Upon request, the Seller shall furnish to
the Purchaser, within five Business Days, a list of all Samco Receivables (by
contract number and name of Obligor) then owned by the Purchaser, together with
a reconciliation of such list to the Samco Schedule of Receivables.
5.2. OTHER LIENS OR INTERESTS. Except for the conveyances hereunder and
pursuant to the Pooling and Servicing Agreement, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any lien on any interest therein, and the Seller shall defend
the right, title, and interest of the Purchaser in, to and under the Samco
Receivables against all claims of third parties claiming through or under the
Seller; PROVIDED, HOWEVER, that the Seller's obligations under this SECTION 5.2
shall terminate upon the termination of the Trust pursuant to Section 11.1 of
the Pooling and Servicing Agreement.
5.3. CHIEF EXECUTIVE OFFICE. During the term of the Samco Receivables, the
Seller will maintain its chief executive office in one of the United States,
except Louisiana or Vermont.
5.4. COSTS AND EXPENSES. The Seller agrees to pay all reasonable costs and
disbursements in connection with the perfection, as against all third parties,
of the Purchaser's right, title and interest in and to the Samco Receivables.
5.5. DELIVERY OF RECEIVABLE FILES. On or prior to the Closing Date, the
Seller shall cause to be delivered to the Trustee at the location specified in
Schedule B to the Pooling and Servicing Agreement the Receivables Files relating
to the Samco Receivables. The Seller shall have until the last day of the
second Collection Period following receipt of notification that there has been a
failure to deliver a file with respect to a Samco Receivable
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or that a file is unrelated to the Receivables identified in Schedule A to the
Pooling and Servicing Agreement or that any of the documents referred to in
Section 2.7 of the Pooling and Servicing Agreement are not contained in a
Receivable File, to deliver such file or any of the aforementioned documents
required to be included in such Receivable File to the Trustee. Unless such
defect with respect to such Receivable File shall have been cured by the last
day of the second Collection Period following discovery thereof by the Trustee
and notice thereof to Samco, the Seller hereby agrees to repurchase any such
Receivable from the Trust as of such last day. In consideration of the purchase
of the Receivable, the Seller shall remit the Purchase Amount in the manner
specified in Section 4.5 of the Pooling and Servicing Agreement. The sole
remedy hereunder of the Trustee, the Trust or the Certificateholders with
respect to a breach of this SECTION 5.5, shall be to require the Seller to
repurchase the Receivable pursuant to this SECTION 5.5. Upon receipt of the
Purchase Amount, the Trustee shall release to the Seller or its designee the
related Receivable File and shall execute and deliver all instruments of
transfer or assignment, without recourse, as are prepared by the Seller and
delivered to the Trustee and are necessary to vest in the Seller or such
designee title to the Receivable.
5.6. INDEMNIFICATION. (a) The Seller shall indemnify the Purchaser for any
liability as a result of the failure of a Samco Receivable to be originated in
compliance with all requirements of law and for any breach of any of its
representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims,
and liabilities, arising out of or resulting from the use, ownership, or
operation by the Seller or any Affiliate thereof of a Financed Vehicle related
to a Samco Receivable.
(c) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all taxes, except for taxes on the net income
of the Purchaser, that may at any time be asserted against the Purchaser with
respect to the transactions contemplated herein, including, without limitation,
any sales, gross receipts, general corporation, tangible personal property,
privilege, or license taxes and costs and expenses in defending against the
same.
(d) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims
and liabilities to the extent that such cost, expense, loss, damage, claim or
liability arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance, or bad faith of the Seller in the performance
of its duties under this Agreement, or by reason of reckless disregard of the
Seller's obligations and duties under this Agreement.
Indemnification under this SECTION 5.6 shall include reasonable fees and
expenses of litigation and shall survive termination of the Trust. These
indemnity obligations shall be in addition to any obligation that the Seller may
otherwise have.
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5.7. SALE. The Seller agrees to treat this conveyance for all purposes
(including without limitation tax and financial accounting purposes) as a sale
on all relevant books, records, tax returns, financial statements and other
applicable documents.
5.8. NON-PETITION. In the event of any breach of a representation and
warranty made by the Purchaser hereunder, the Seller covenants and agrees that
it will not take any action to pursue any remedy that it may have hereunder, in
law, in equity or otherwise, until a year and a day have passed since the date
on which all certificates issued by the Trust or a similar trust formed by the
Purchaser have been paid in full. The Purchaser and the Seller agree that
damages will not be an adequate remedy for such breach and that this covenant
may be specifically enforced by the Purchaser or by the Trustee on behalf of the
Trust.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. OBLIGATIONS OF SELLER. The obligations of the Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Samco Receivable.
6.2. REPURCHASE EVENTS. The Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trustee, the Certificate Insurer
and the Certificateholders, that (i) the occurrence of a breach of any of the
Seller's representations and warranties contained in SECTION 3.2(B) hereof
(without regard to any limitations regarding the Seller's knowledge) and (ii)
the failure of the Seller to timely comply with its obligations pursuant to
SECTION 5.5 hereof, shall constitute events obligating the Seller to repurchase
the affected Samco Receivables hereunder ("REPURCHASE EVENTS"), at the Purchase
Amount from the Trust. Unless the breach of any of the Seller's representations
and warranties shall have been cured by the last day of the second Collection
Period following the discovery thereof by or notice to the Purchaser and the
Seller of such breach, the Seller shall repurchase any Samco Receivable if such
Samco Receivable is materially and adversely affected by the breach as of the
last day of such second Collection Period (or, at the Seller's option, the last
day of the first Collection Period following the discovery) and, in the event
that the breach relates to a characteristic of the Samco Receivables in the
aggregate, and if the Trust is materially and adversely affected by such
breach, unless the breach shall have been cured by such second Collection
Period, the Seller shall purchase such aggregate Principal Balance of Samco
Receivables, such that following such purchase such representation shall be true
and correct with respect to the remainder of the Samco Receivables in the
aggregate. The provisions of this SECTION 6.2 are intended to grant the Trustee
a direct right against the Seller to demand performance hereunder, and in
connection therewith the Seller waives any requirement of prior demand against
the Purchaser and waives any defaults it would have against the Purchaser with
respect to such repurchase obligation. Any such purchase shall take place in the
manner specified in Section 4.5 of the Pooling and Servicing Agreement.
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The sole remedy hereunder of the Certificateholders, the Trust, the Certificate
Insurer, the Trustee or the Purchaser against the Seller with respect to any
Repurchase Event shall be to enforce the Seller's obligation to repurchase such
Samco Receivables pursuant to this Agreement; PROVIDED, HOWEVER, that the Seller
shall indemnify the Trustee, the Certificate Insurer, the Trust and the
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them, as a result of third party claims
arising out of the events or facts giving rise to such breach. Upon receipt of
the Purchase Amount, the Purchaser shall cause the Trustee to release the
related Receivables File to the Seller and to execute and deliver all
instruments of transfer or assignment, without recourse, as are necessary to
vest in the Seller title to the Samco Receivable. Notwithstanding the
foregoing, if it is determined that consummation of the transactions
contemplated by the Pooling and Servicing Agreement and the other transaction
documents referenced in such Agreement, servicing and operation of the Trust
pursuant to such Agreement and such other documents, or the ownership of a
Certificate by a Holder constitutes a violation of the prohibited transaction
rules of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended ("Code") for which
no statutory exception or administrative exemption applies, such violation shall
not be treated as a Repurchase Event.
6.3. SELLER'S ASSIGNMENT OF PURCHASED RECEIVABLES. With respect to all
Samco Receivables repurchased by the Seller pursuant to this Agreement, the
Purchaser shall assign, without recourse except as provided herein,
representation or warranty, to the Seller all the Purchaser's right, title and
interest in and to such Samco Receivables, and all security and documents
relating thereto.
6.4. CONVEYANCE AS SALE OF RECEIVABLES NOT FINANCING. The parties hereto
intend that the conveyance hereunder be a sale of the Samco Receivables and the
other Transferred Samco Property from the Seller to the Purchaser and not a
financing secured by such assets; and the beneficial interest in and title to
the Samco Receivables and the other Transferred Samco Property shall not be part
of the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. In the event that any conveyance
hereunder is for any reason not considered a sale, the parties intend that this
Agreement constitute a security agreement under the UCC (as defined in the UCC
as in effect in the State of Texas) and applicable law, and the Seller hereby
grants to the Purchaser a first priority perfected security interest in, to and
under the Samco Receivables and the other Transferred Samco Property being
delivered to the Purchaser on the Closing Date, and other property conveyed
hereunder and all proceeds of any of the foregoing for the purpose of securing
payment and performance of the Certificates and the repayment of amounts owed to
the Purchaser from the Seller.
6.5. TRUST. The Seller acknowledges that the Purchaser will, pursuant to
the Pooling and Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Agreement and the CPS Purchase Agreement to the
Trustee for the benefit of the
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Certificateholders, and that the representations and warranties contained in
this Agreement and the rights of the Purchaser under this Agreement, including
under SECTIONS 6.2 and 6.4 hereof are intended to benefit such Trust and the
Certificateholders. The Seller also acknowledges that the Trustee on behalf of
the Certificateholders as assignee of the Purchaser's rights hereunder may
directly enforce, without making any prior demand on the Purchaser, all the
rights of the Purchaser hereunder including the rights under SECTION 6.2 and 6.4
hereof. The Seller hereby consents to such sale and assignment.
6.6. AMENDMENT. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Seller and the Purchaser
with the consent of the Certificate Insurer; PROVIDED, HOWEVER, that (i) any
such amendment that materially adversely affects the rights of the Class A
Certificateholders under the Pooling and Servicing Agreement must be consented
to by the holders of Class A Certificates representing 51% or more of the
Class A Certificate Balance and (ii) any such amendment that materially
adversely affects the rights of the Class B Certificateholders under the Pooling
and Servicing Agreement must be consented to by the holders of Class B
Certificates representing 51% or more of the Class B Certificate Balance.
6.7. WAIVERS. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
6.8. NOTICES. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or telex and addressed or delivered to
it at its address (or in case of telex, at its telex number at such address)
shown in the opening portion of this Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex.
6.9. COSTS AND EXPENSES. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement.
6.10. REPRESENTATIONS OF THE SELLER AND THE PURCHASER. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to this Agreement shall remain in
full force and effect and will survive the closing under SECTION 2.2 hereof.
6.11. CONFIDENTIAL INFORMATION. The Purchaser agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Samco Receivables, under the Pooling and Servicing Agreement or as
required by law.
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6.12. HEADINGS AND CROSS-REFERENCES. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.13. THIRD PARTY BENEFICIARIES. The parties hereto hereby expressly
agree that each of the Trustee for the benefit of the Certificateholders and the
Certificate Insurer shall be third party beneficiaries with respect to this
Agreement, PROVIDED, HOWEVER, that no third party other than the Trustee for the
benefit of the Certificateholders and the Certificate Insurer shall be deemed a
third party beneficiary of this Agreement.
6.14. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
6.15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
[Rest of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CPS RECEIVABLES CORP.
By:
-----------------------------
Name:
Title:
SAMCO ACCEPTANCE CORP.
By:
-----------------------------
Name:
Title:
Exhibit A
ASSIGNMENT
----------
For value received, in accordance with the Purchase Agreement dated as of
May [ ], 1997 between the undersigned (the "SELLER") and CPS Receivables Corp.
(the "PURCHASER") (the "SAMCO PURCHASE AGREEMENT"), the undersigned does hereby
sell, transfer, assign and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Samco Purchase Agreement and the Pooling and
Servicing Agreement), all right, title and interest of the Seller in and to
(i) the Samco Receivables listed in the Samco Schedule of Receivables and, with
respect to Rule of 78's Receivables, all monies due or to become due thereon
after the Cutoff Date (including Scheduled Payments due after the Cutoff Date
(including principal prepayments relating to such Scheduled Payments) but
received by the Seller on or before the Cutoff Date) and, with respect to Simple
Interest Receivables, all monies received thereunder after the Cutoff Date and
all Liquidation Proceeds and Recoveries received with respect to such
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Samco Receivables and any other interest of the Seller
in such Financed Vehicles, including, without limitation, the certificates of
title or, with respect to Financed Vehicles in the State of Michigan, other
evidence of ownership with respect to Financed Vehicles; (iii) any proceeds from
claims on any physical damage, credit life and credit accident and health
insurance policies or certificates relating to the Financed Vehicles securing
the Samco Receivables; (iv) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the Samco Receivables, refunds of
unearned premiums with respect to credit life and credit accident and health
insurance policies or certificates covering an Obligor or Financed Vehicle
securing the Samco Receivables or his or her obligations with respect to such a
Financed Vehicle and any recourse to Dealers for any of the foregoing; (v) the
Receivable File related to each Samco Receivable; and (vi) the proceeds of any
and all of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by the Purchaser of any obligation of the
undersigned to the Obligors, insurers or any other Person in connection with the
Samco Receivables, the Receivable Files, any insurance policies or any agreement
or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Samco
Purchase Agreement and is to be governed by the Samco Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Samco Purchase Agreement.
THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of May [ ], 1997.
SAMCO ACCEPTANCE CORP.
By:
-----------------------------
Name:
Title:
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Exhibit B
SAMCO SCHEDULE OF RECEIVABLES
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