Exhibit 10.13
EXECUTION COPY
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of December 1, 1997, between the undersigned (the "Seller") and Linc Acceptance
Company, LLC. (the "Purchaser") (the "Linc Purchase Agreement"), the undersigned
does hereby sell, transfer, assign and otherwise convey unto the Purchaser,
without recourse (subject to the obligations in the Linc Purchase Agreement and
the Sale and Servicing Agreement), all right, title and interest of the Seller
in and to (i) the Linc Receivables listed in the Schedule of Linc 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 Linc
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Linc 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 Linc Receivables; (iv) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the Linc 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 Linc 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 Linc 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
Linc 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 Linc
Purchase Agreement and is to be governed by the Linc Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Linc 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 December 11, 1997.
LINC ACCEPTANCE COMPANY, LLC
By:
Name:
Title:
EXECUTION COPY
PURCHASE AGREEMENT dated as of this December 1, 1997, by and between
LINC ACCEPTANCE COMPANY LLC, a Delaware limited liability company (the
"Seller"), having its principal executive office at Xxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, 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 Linc Receivables (as hereinafter defined), are to be sold
by the Seller to the Purchaser, which Linc Receivables together with the CPS
Receivables will be transferred by the Purchaser, pursuant to the Sale and
Servicing Agreement (as hereinafter defined), to CPS Auto Receivables Trust
1997-5 to be created thereunder, which Trust will issue notes under the
Indenture (as hereinafter defined) representing indebtedness of the Trust (the
"Class A Notes" or the "Notes") and certificates under the Trust Agreement (as
hereinafter defined) representing beneficial interests in the Trust (the
"Certificates" and, together with the Notes, the "Securities").
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 Purchase Agreement shall have the meaning set
forth in the Sale and Servicing Agreement and, if not defined therein, shall
have the meaning set forth in the Indenture. As used in this Purchase 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 and the Linc Assignment.
"Base Prospectus" means the Prospectus dated October 16, 1997, with
respect to CPS Auto Receivables Trusts and any amendment or supplement thereto.
"Closing Date" means December 11, 1997.
"CPS" means Consumer Portfolio Services, Inc., a California
corporation, and its successors and assigns.
"CPS Purchase Agreement" means the purchase agreement dated as of
December 1, 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 Transferred Property" shall have the meaning specified in the CPS
Purchase Agreement
"Indenture" means the Indenture dated as of December 1, 1997, between
CPS Auto Receivables Trust 1997-5, as issuer and Norwest Bank Minnesota,
National Association, as trustee.
"Linc" means Linc Acceptance Company, LLC, a Delaware limited liability
company, and its successors and assigns.
"Linc Assignment" means the assignment dated December 11, 1997, by the
Seller to the Purchaser, relating to the purchase of the Linc Receivables and
certain other property related thereto by the Purchaser from the Seller pursuant
to this Purchase Agreement which shall be substantially in the form of Exhibit A
to this Purchase Agreement.
"Linc Purchase 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.
"Linc Receivable" means each retail installment sale contract for a
Financed Vehicle that appears on the Schedule of Linc Receivables and all rights
thereunder.
"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.
"Private Placement Memorandum" means the Private Placement Memorandum,
dated December [8], 1997, relating to the private placement of the Certificates
and any amendment or supplement thereto.
"Prospectus Supplement" means the Prospectus Supplement dated December
8, 1997, relating to the public offering of the Class A Notes and any amendment
or supplement
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thereto.
"Purchase 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.
"Purchaser" means CPS Receivables Corp., a California corporation, and
its successors and assigns.
"Receivable" means, collectively, the CPS Receivables, the Linc
Receivables and the Samco Receivables.
"Receivables Purchase Price" means $6,508,028.88.
"Repurchase Event" shall have the meaning specified in Section 6.2
hereof.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of December 1, 1997, among CPS Auto Receivables Trust 1997-5, 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.
"Samco Purchase Agreement" means the purchase agreement dated as of
December 1, 1997, between Samco Acceptance Corp., 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.
"Samco Receivable" shall have the meaning specified in the Samco
Purchase Agreement.
"Schedule of CPS Receivables" means the list of CPS Receivables annexed
as Exhibit B to the CPS Purchase Agreement.
"Schedule of Linc Receivables" means the list of Linc Receivables
annexed hereto as Exhibit B.
"Schedule of Receivables" means the Schedule of Linc Receivables and/or
the CPS Schedule of Receivables.
"Seller" means Linc Acceptance Corp., a Delaware corporation, in its
capacity as seller of the Linc Receivables and the other Transferred Linc
Property relating thereto, and its successors and assigns.
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"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 Linc Property" shall have the meaning specified in Section
2.1(a) hereof.
"Transferred Property" shall have the meaning specified in Section
2.1(a) hereof.
"Transferred Samco Property" shall have the meaning specified in the
Samco Purchase Agreement.
"Trust" means the CPS Auto Receivables Trust 1997-5 created by the
Trust Agreement.
"Trust Agreement" means the Trust Agreement between CPS Receivables
Corp. and Bankers Trust (Delaware), as Owner Trustee dated as of December 2,
1997, as amended and restated as of December 11, 1997.
"UCC" means the Uniform Commercial Code, as in effect from time to time
in the relevant jurisdictions.
"Underwriters" means, collectively, PaineWebber Incorporated and Black
Diamond Securities, LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
December 8, 1997, among the Underwriters, CPS, Linc, Samco and the Purchaser
relating to the Class A Notes.
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 Purchase 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 Purchase Agreement and the Sale and
Servicing Agreement), all of the Seller's right, title and interest in, to and
under the Linc Receivables and the other Transferred Linc Property relating
thereto. The conveyance to the Purchaser of the Linc Receivables and other
Transferred Linc Property relating thereto is intended as a sale free and clear
of all liens and it is intended that the Transferred Linc Property and other
property of the
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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 Trust Agreement, the
Indenture and the Sale 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 Sale and Servicing Agreement), all
right, title and interest of the Seller in and to (i) the Linc Receivables
listed in the Schedule of Linc 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 Linc Receivables; (ii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the Linc
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 Linc Receivables or
the Obligors thereunder; (iv) refunds for the costs of extended service
contracts with respect to Financed Vehicles securing the Linc 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 Linc 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 Linc Receivable; and (vi) the proceeds
of any and all of the foregoing (collectively, the "Transferred Linc Property"
and together with the Transferred CPS Property and the Transferred Samco
Property, the "Transferred Property").
(b) Receivables Purchase Price. In consideration for the Linc
Receivables and other Transferred Linc Property described in Section 2.1(a), the
Purchaser 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 Linc 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 Samco Purchase
Agreement pursuant to which Samco will sell the Samco Receivables to CPS
Receivables Corp., (c) the Sale and Servicing Agreement pursuant to which the
Purchaser will assign all of its right, title and interest in and to the
Receivables and the other Transferred Property to the Trust for the benefit of
the Securityholders, (d) the Trust Agreement pursuant to which the Trust shall
be formed and the Certificates issued, (e) the Indenture pursuant to which the
Trust will issue the Notes, (f) the
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Underwriting Agreement pursuant to which the Trust shall sell the Class A Notes
to the Underwriters and (g) the Certificate Purchase Agreement pursuant to which
the Purchaser shall sell the 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
each Closing Date (which representations and warranties shall survive such
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 Linc 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 the Agreements and to carry out its
terms and the execution, delivery and performance of the Agreements has
been duly authorized by the Purchaser by all necessary corporate
action.
(d) Binding Obligation. The Agreements shall constitute a
legal, valid and binding obligation of the Purchaser enforceable in
accordance with its terms.
(e) No Violation. The execution, delivery and performance by
the Purchaser of the Agreements 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 Basic Documents); 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.
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(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 the Agreements or the
Securities; (B) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by the
Agreements; (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, the Agreements
or the Securities; or (D) relating to the Purchaser and which might
adversely affect the Federal or State income, excise, franchise or
similar tax attributes of the Securities.
(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
Securities or the consummation of the other transactions contemplated
by the Agreements, the Trust Agreement, the Indenture or the Sale 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
each 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 Delaware, 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 Linc 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 conduct of its business
(including the origination of the Linc Receivables as required by the
Sale 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 the Agreements
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 Linc Receivables and the
other Transferred Linc
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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 the Agreements 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 the Basic Documents); 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 the Agreements or the
Securities; (B) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by the
Agreements; (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, the Agreements
or the Securities; or (D) relating to the Seller and which might
adversely affect the Federal or State income, excise, franchise or
similar tax attributes of the Securities.
(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 Securities or the consummation
of the other transactions contemplated by the Agreements, the Trust
Agreement, the Indenture or the Sale 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.
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(ix) Fraudulent Conveyance. The Seller is not selling the Linc
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 Linc Receivables to the Purchaser.
(b) The Seller makes the following representations and warranties as to
the Linc Receivables and the other Transferred Linc Property relating thereto on
which the Purchaser relies in accepting the Linc Receivables and the other
Transferred Linc Property relating thereto. Such representations and warranties
speak with respect to each Linc Receivable as of the Closing Date and shall
survive the sale, transfer, and assignment of the Linc Receivables and the other
Transferred Linc Property relating thereto to the Purchaser and the subsequent
assignment and transfer pursuant to the Sale and Servicing Agreement:
(i) Location of Receivable Files; One Original. A complete
Receivable File with respect to each Linc Receivable has been or prior
to the Closing Date will be delivered to the Trustee at the location
listed in Schedule B to the Sale and Servicing Agreement. There is only
one original executed copy of each Linc Receivable.
(ii) Schedule of Receivables; Selection Procedures. The
information with respect to the Linc Receivables set forth in the
Schedule of Linc Receivables is true and correct in all material
respects as of the close of business on the related Cutoff Date, and no
selection procedures adverse to the Securityholders have been utilized
in selecting the Linc Receivables.
(iii) Security Interest in Financed Vehicle. Immediately prior
to the sale, assignment, and transfer thereof, each Linc 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 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 each Closing Date).
(iv) Linc Receivables in Force. No Linc Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Linc Receivable in whole
or in part.
(v) No Waiver. No provision of a Linc Receivable has been
waived.
(vi) No Amendments. No Linc Receivable has been amended,
except as such Linc 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.
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(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 Linc 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 Linc Receivable has arisen; and the
Seller shall not waive and has not waived any of the foregoing; and no
Financed Vehicle securing a Linc 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
Linc Receivables from the Seller to the Purchaser and that the
beneficial interest in and title to such Linc 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 Linc
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 related Closing Date. Immediately
prior to any transfer and assignment herein contemplated, the Seller
had good and marketable title to each Linc 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 Linc 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 Linc Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer, and assignment of such Linc Receivable under the
Agreements shall be unlawful, void, or voidable. The Seller has not
entered into any agreement with any account debtor that prohibits,
restricts or conditions the assignment of any portion of the Linc
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 Linc
Receivables and the other Transferred Linc Property have been made,
taken or performed.
(xi) Casualty. No Financed Vehicle related to a Linc
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 Linc Receivables (including, but not limited to under
dealer reserves) as a result of the purchase of the Linc Receivables.
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(xiii) Full Amount Advanced. The full amount of each Linc
Receivable has been advanced to each Obligor, and there are no
requirements for future advances thereunder. No Obligor with respect to
a Linc Receivable has any option under the Linc 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 Linc 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 Purchase
Agreement.
ARTICLE IV
CONDITIONS
4.1. Conditions to Obligation of the Purchaser. On the applicable
Closing Date, the obligation of the Purchaser to purchase the Linc 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
related 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 such 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 Linc Receivables have been sold to the Purchaser
pursuant to the Agreements and shall deliver to the Purchaser the
Schedule of Linc 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 related Receivable Files to the Trustee at the
offices specified in Schedule B to the Sale and Servicing Agreement on
or prior to the related Closing Date.
(d) Documents to be delivered by the Seller on each Closing
Date.
(i) The Assignment. On each Closing Date, the Seller
will execute and deliver the applicable Assignment. The
Assignment shall be substantially in the form of Exhibit A
hereto.
(ii) Evidence of UCC-1 Filing. On or prior to the
related Closing Date, the Seller shall record and file, at its
own expense, a UCC-1 financing
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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 Linc Receivables and the
other Transferred Linc 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 Linc 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 such
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
Trust Agreement, the Indenture, the Sale and Servicing Agreement, the
CPS Purchase Agreement, the Samco 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 Linc Receivables to the Purchaser is subject to the
satisfaction of the following conditions on each Closing Date:
(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. The Purchaser will deliver to
the Seller the purchase price for the related Linc Receivables (on the
Closing Date as provided in Section 2.1(b)). The Seller hereby directs
the Purchaser to wire such purchase price pursuant to wire instructions
to be delivered to the Purchaser on or prior to the Closing Date.
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 Linc Receivables and the other
Transferred Linc Property to be promptly filed, and at all times to be kept
recorded, registered and filed, all in
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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 Linc
Receivables and the other Transferred Linc 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 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 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 Linc Receivables hereunder, the Seller's master computer records (including
any back-up archives) that refer to a Linc Receivable shall indicate clearly the
interest of the Purchaser in such Linc Receivable and that such Linc Receivable
is owned by the Purchaser. Indication of the Purchaser's ownership of a Linc
Receivable shall be deleted from or modified on the Seller's computer systems
when, and only when, the Linc 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 Linc 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 Linc Receivable, shall indicate clearly
that such Linc Receivable has been sold and is owned by the Purchaser unless
such Linc Receivable has been paid in full or repurchased.
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(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 Linc Receivable.
(f) List of Receivables. Upon request, the Seller shall furnish to the
Purchaser, within five Business Days, a list of all Linc Receivables (by
contract number and name of Obligor) then owned by the Purchaser, together with
a reconciliation of such list to the Schedule of Linc Receivables.
5.2. Other Liens or Interests. Except for the conveyances hereunder and
pursuant to the Sale 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 Linc
Receivables against all claims of third parties claiming through or under the
Seller.
5.3. Chief Executive Office. During the term of the Linc 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 Linc
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 Sale and Servicing Agreement the Receivables Files relating to
the Linc 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 Linc Receivable or that a file is
unrelated to the Receivables identified in Schedule A to the Sale and Servicing
Agreement or that any of the documents referred to in Section 3.3 of the Sale
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 Linc,
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
Sale and Servicing Agreement. The sole remedy hereunder of the Trustee, the
Trust or the Securityholders 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.
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5.6. Indemnification. (a) The Seller shall indemnify the Purchaser for
any liability as a result of the failure of a Linc 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 Linc
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 the Agreements, or by reason of reckless disregard of the
Seller's obligations and duties under the Agreements.
Indemnification under this Section 5.6 shall include reasonable fees
and expenses of litigation and shall survive payment of the Notes and
Certificates. These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
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 Trust.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. Obligations of Seller. The obligations of the Seller under the
Agreements shall not be affected by reason of any invalidity, illegality or
irregularity of any Linc Receivable.
6.2. Repurchase Events. The Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trustee, the Insurer and the
Securityholders, 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
Linc 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 Linc Receivable if such Linc
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 Linc 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 Linc Receivables, such that
following such purchase such representation shall be true and correct with
respect to the remainder of the Linc 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 5.6 of the Sale and Servicing Agreement. The sole remedy
hereunder of the Securityholders, the Trust, the 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 Linc Receivables pursuant to
this Agreement; provided, however, that the Seller shall indemnify the Trustee,
the Insurer, the Trust and the Securityholders 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 Linc Receivable. Notwithstanding
the foregoing, if it is determined that consummation of the transactions
contemplated by the Sale 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
Security by a Holder
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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
Linc Receivables repurchased by the Seller pursuant to the Agreements, 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 Linc Receivables, and all security and documents
relating thereto.
6.4. Conveyance as Sale of Receivables Not Financing. The parties
hereto intend that the conveyance under this Agreement be a sale of the Linc
Receivables and the other Transferred Linc Property from the Seller to the
Purchaser and not a financing secured by such assets; and the beneficial
interest in and title to the Linc Receivables and the other Transferred Linc
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 Connecticut) and applicable
law, and the Seller hereby grants to the Purchaser a first priority perfected
security interest in, to and under the Linc Receivables and the other
Transferred Linc 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 Securities 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 Sale and Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Purchase Agreement, the Samco Purchase Agreement
and the CPS Purchase Agreement to the Trustee for the benefit of the
Securityholders, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under this Purchase Agreement,
including under Sections 6.2 and 6.4 hereof are intended to benefit such Trust
and the Securityholders. The Seller also acknowledges that the Trustee on behalf
of the Securityholders 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 Insurer; provided, however, that (i) any such amendment
that materially adversely affects the rights of the Class A Noteholders under
the Sale and Servicing Agreement must be consented to by the holders of Class A
Notes representing more than 50% of the outstanding principal amount of Class A
Notes, and (ii) any amendment that materially adversely affects
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the rights of the Certificateholders under the Sale and Servicing Agreement must
be consented to by the holders of Certificates representing more than 50% of the
Certificate Balance.
6.7. Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under the Agreements 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 Purchase 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 Purchase Agreement shall
remain in full force and effect and will survive each closing hereunder.
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 Linc Receivables, under the Sale and Servicing Agreement or as
required by law.
6.12. Headings and Cross-References. The various headings in this
Purchase Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Purchase Agreement.
References in this Purchase Agreement to Section names or numbers are to such
Sections of this Purchase Agreement.
6.13. Third Party Beneficiaries. The parties hereto hereby expressly
agree that each of the Trustee for the benefit of the Securityholders and the
Insurer shall be third party beneficiaries with respect to this Purchase
Agreement, provided, however, that no third party other than the Trustee for the
benefit of the Securityholders and the Insurer shall be deemed a third party
beneficiary of this Purchase Agreement.
6.14. Governing Law. THIS PURCHASE AGREEMENT AND THE ASSIGNMENTS 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.
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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:
LINC ACCEPTANCE COMPANY LLC
By:
Name:
Title:
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Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of December 1, 1997, between the undersigned (the "Seller") and CPS Receivables
Corp. (the "Purchaser") (the "Linc Purchase Agreement"), the undersigned does
hereby sell, transfer, assign and otherwise convey unto the Purchaser, without
recourse (subject to the obligations in the Linc Purchase Agreement and the Sale
and Servicing Agreement), all right, title and interest of the Seller in and to
(i) the Linc Receivables listed in the Schedule of Linc 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 Linc 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 Linc Receivables; (iv) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the Linc 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 Linc 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 Linc 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
Linc 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 Linc
Purchase Agreement and is to be governed by the Linc Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Linc 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 ________.
LINC ACCEPTANCE COMPANY LLC
By:
Name:
Title:
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Exhibit B
Schedule of Linc Receivables
See Following Page
