EXECUTION COPY
ASSIGNMENT
For value received, on this 4th day of December, 1998 in accordance
with the Purchase Agreement dated as of December 1, 1998, between the
undersigned (the "Seller") and CPS Receivables Corp. (the "Purchaser") (the "CPS
Purchase Agreement"), the undersigned does hereby sell, transfer, assign and
otherwise convey unto the Purchaser, without recourse (subject to the
obligations in the CPS Purchase Agreement and the Sale and Servicing Agreement),
all right, title and interest of the Seller in and to (i) the Initial CPS
Receivables listed in the Schedule of CPS Receivables and all monies received
thereunder after the Cutoff Date and all Net Liquidation Proceeds received with
respect to such Initial CPS Receivables; (ii) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Initial CPS 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
such 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 Initial CPS Receivables or the
Obligors thereunder; (iv) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the Initial CPS 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 or
his or her obligations with respect to a Financed Vehicle related to an Initial
CPS Receivable and any recourse to Dealers for any of the foregoing; (v) the
Receivable File related to each Initial CPS Receivable; (vi) the proceeds of any
and all of the foregoing and (vii) all present and future claims, demands,
causes and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of any 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 Initial CPS
Receivables, the related 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 CPS
Purchase Agreement and is to be governed by the CPS Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the CPS 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 the day and year first above written.
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
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EXECUTION COPY
PURCHASE AGREEMENT dated as of December 1, 1998, by and between
CONSUMER PORTFOLIO SERVICES, INC., a California corporation (the "Seller"),
having its principal executive office at 00000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000,
and CPS RECEIVABLES CORP., a California corporation (the "Purchaser"), having
its principal executive office at 00000 Xxxxxx, XX 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 CPS Receivables (as hereinafter defined), are to be sold
by the Seller to the Purchaser, which CPS Receivables together with the Samco
Receivables and the Linc Receivables will be transferred by the Purchaser,
pursuant to the Sale and Servicing Agreement (as hereinafter defined), to CPS
Auto Receivables Trust 1998-4, which Trust will issue notes under the Indenture
(as hereinafter defined) representing indebtedness of the Trust (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 Agreement shall have the meaning set forth in
the Sale and Servicing Agreement and if not defined therein, shall have the
meanings set forth in the Indenture. 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):
"Agreements" means, collectively, this Purchase Agreement, each
Subsequent Purchase Agreement and the Assignments.
"Assignment" means the Initial Assignments, and/or any Subsequent
Assignment.
"Base Prospectus" means the Prospectus dated November 9, 1998, with
respect to CPS Auto Receivables Trusts and any amendment or supplement thereto.
"Closing Date" means December 4, 1998.
"CPS" means Consumer Portfolio Services, Inc., a California corporation
and its successors and assigns.
"CPS Receivables" means the Initial CPS Receivables and the Subsequent
CPS Receivables.
"Indenture" means the Indenture of even date herewith between CPS Auto
Receivables Trust 1998-4, as issuer, and Norwest Bank Minnesota, National
Association, as trustee.
"Initial Assignment" means the Initial CPS Assignment, the Initial Linc
Assignment and/or the Initial Samco Assignment.
"Initial CPS Assignment" means the assignment dated December 4, 1998,
by the Seller to the Purchaser, relating to the purchase of the Initial CPS
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.
"Initial CPS Receivable" means each retail installment sale contract
for a Financed Vehicle that appears on the Initial Schedule of CPS Receivables
and all rights thereunder.
"Initial Linc Assignment" means the assignment substantially in the
form of Exhibit A to the Linc Purchase Agreement.
"Initial Linc Receivable" means each retail installment sale contract
for a Financed Vehicle that appears on the Initial Schedule of Linc Receivables
and all rights thereunder.
"Initial Receivable" means an Initial Samco Receivable, an Initial Linc
Receivable and/or an Initial CPS Receivable.
"Initial Receivables Purchase Price" means $256,332,177.00.
"Initial Samco Assignment" means the assignment substantially in the
form of Exhibit A to the Samco Purchase Agreement.
"Initial Samco Receivable" means each retail installment sale contract
for a Financed Vehicle that appears on the Initial Schedule of Samco Receivables
and all rights thereunder.
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"Initial Schedule of CPS Receivables" means the list of CPS Receivables
annexed hereto as of the Closing Date as Exhibit B.
"Initial Schedule of Linc Receivables" means the list of Initial Samco
Receivables annexed as of the Closing Date as Exhibit B to the Linc Purchase
Agreement.
"Initial Schedule of Samco Receivables" means the list of Initial Samco
Receivables annexed as of the Closing Date as Exhibit B to the Samco Purchase
Agreement.
"Initial Transferred CPS Property" shall have the meaning specified in
Section 2.1(a) hereof.
"Initial Transferred Property" shall have the meaning specified in
Section 2.1(a) hereof.
"Initial Transferred Linc Property" shall have the meaning specified in
the Linc Purchase Agreement.
"Initial Transferred Samco Property" shall have the meaning specified
in the Samco Purchase Agreement.
"Linc" means Linc Acceptance Company LLC, a Delaware limited liability
company, and its successors and assigns.
"Linc Purchase Agreement" means the Purchase Agreement of even date
herewith, between Linc Acceptance Company LLC, 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.
"Linc Receivable" shall have the meaning specified in the Linc 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 and the Base
Prospectus.
"Prospectus Supplement" means the Prospectus Supplement dated December
2, 1998, relating to the public offering of the Notes and any amendment or
supplement 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.
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"Purchaser" means CPS Receivables Corp., a California corporation, and
its successors and assigns.
"Receivables" means, collectively, the CPS Receivables, the Linc
Receivables and the Samco Receivables.
"Repurchase Event" shall have the meaning specified in Section 6.2
hereof.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
of even date herewith among CPS Auto Receivables Trust 1998-4, as issuer, CPS
Receivables Corp., as seller, Consumer Portfolio Services, Inc., as 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" means Samco Acceptance Corp., a Delaware corporation, and its
successors and assigns.
"Samco Purchase Agreement" means the Purchase Agreement of even date
herewith 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 Initial CPS Receivables
annexed hereto as Exhibit B, as supplemented by each Schedule of Subsequent CPS
Receivables.
"Schedule of Linc Receivables" means the list of Initial Linc
Receivables annexed as Exhibit B to the Linc Purchase Agreement, as supplemented
by each Schedule of Subsequent Linc Receivables.
"Schedule of Receivables" means, collectively, the Schedule of CPS
Receivables, the Schedule of Linc Receivables and the Schedule of Samco
Receivables.
"Schedule of Samco Receivables" means the list of Initial Samco
Receivables annexed as Exhibit B to the Samco Purchase Agreement, as
supplemented by each Schedule of Subsequent Samco Receivables.
"Schedule of Subsequent CPS Receivables" means the schedule of all
motor vehicle retail financing agreements sold and transferred to the Purchaser
pursuant to a Subsequent Purchase Agreement, which schedule shall be deemed to
supplement the Schedule of CPS Receivables and shall be attached to the related
Subsequent Assignment (and may be in the form of microfiche).
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"Schedule of Subsequent Linc Receivables" means the schedule of all
Linc Receivables sold and transferred to the Purchaser pursuant to a Subsequent
Linc Purchase Agreement, which schedule shall be deemed to supplement the
Schedule of Linc Receivables and shall be attached to the related Subsequent
Assignment delivered under the Linc Purchase Agreement (and may be in the form
of microfiche).
"Schedule of Subsequent Samco Receivables" means the schedule of all
Samco Receivables sold and transferred to the Purchaser pursuant to a Subsequent
Samco Purchase Agreement, which schedule shall be deemed to supplement the
Schedule of Samco Receivables and shall be attached to the related Subsequent
Assignment delivered under the Samco Purchase Agreement (and may be in the form
of microfiche).
"Seller" means Consumer Portfolio Services, Inc., a California
corporation, in its capacity as seller of the CPS Receivables and the other CPS
Transferred 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.
"Standard Program" means the CPS Standard Program.
"Subsequent Assignment" means a Subsequent CPS Assignment, a Subsequent
Linc Assignment or a Subsequent Samco Assignment, as applicable.
"Subsequent Closing Date" means any day on which Subsequent CPS
Receivables or Subsequent Samco Receivables are sold to the Purchaser pursuant
to a Subsequent Purchase Agreement.
"Subsequent CPS Assignment" means an assignment substantially in the
form of Exhibit A to the form of Subsequent Purchase Agreement attached as
Exhibit C hereto.
"Subsequent CPS Purchase Agreement" means a subsequent purchase
agreement which shall be in substantially the form of Exhibit C to this Purchase
Agreement by which the Seller will transfer Subsequent CPS Receivables.
"Subsequent CPS Receivable" means each Receivable transferred to the
Purchaser pursuant to a Subsequent CPS Assignment which shall be listed on the
Schedule of Subsequent CPS Receivables attached to the related Subsequent
Assignment.
"Subsequent Linc Assignment" shall have the meaning specified in the
Linc Purchase Agreement.
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"Subsequent Linc Purchase Agreement" means a subsequent purchase
agreement, which shall be in substantially the form of Exhibit C to the Linc
Purchase Agreement, by which the Seller will transfer Subsequent Linc
Receivables.
"Subsequent Linc Receivable" shall have the meaning specified in the
Linc Purchase Agreement.
"Subsequent Purchase Agreement" means the Subsequent CPS Purchase
Agreement, the Subsequent Linc Purchase Agreement and/or the Subsequent Samco
Purchase Agreement.
"Subsequent Receivables" means a Subsequent CPS Receivable, a
Subsequent Linc Receivable and/or a Subsequent Samco Receivable.
"Subsequent Receivables Purchase Price" shall, with respect to any
Subsequent Receivables, have the meaning specified in the related Subsequent
Purchase Agreement.
"Subsequent Samco Assignment" shall have the meaning specified in the
Samco Purchase Agreement.
"Subsequent Samco Purchase Agreement" means a subsequent purchase
agreement, which shall be in substantially the form of Exhibit C to the Samco
Purchase Agreement, by which the Seller will transfer Subsequent Samco
Receivables.
"Subsequent Samco Receivable" shall have the meaning specified in the
Samco Purchase Agreement.
"Subsequent Transferred CPS Property" shall have the meaning specified
in each Subsequent CPS Purchase Agreement.
"Subsequent Transferred Property" shall have the meaning specified in
Section 2.2(a).
"Subsequent Transferred Linc Property" shall have the meaning specified
in each Subsequent Linc Purchase Agreement.
"Subsequent Transferred Samco Property" shall have the meaning
specified in each Subsequent Samco Purchase Agreement.
"Transferred CPS Property" means the Initial Transferred CPS Property
and the Subsequent Transferred CPS Property.
"Transferred Linc Property" shall have the meaning specified in the
Linc Purchase Agreement.
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"Transferred Property" means the Transferred CPS Property, the
Transferred Linc Property and the Transferred Samco Property.
"Transferred Samco Property" shall have the meaning specified in the
Samco Purchase Agreement.
"Trust" means the CPS Auto Receivables Trust 1998-4 created by the
Trust Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement of
even date herewith between CPS Receivables Corp. and Bankers Trust (Delaware),
as Owner Trustee.
"UCC" means the Uniform Commercial Code, as in effect from time to time
in the relevant jurisdictions.
"Underwriter" means First Union Capital Markets, a division of Wheat
First Securities, Inc..
"Underwriting Agreement" means the Underwriting Agreement relating to
the Notes, dated as of December 2, 1998, among the Underwriter, CPS, Samco, Linc
and the Purchaser.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. Purchase and Sale of Initial 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 Initial CPS Receivables and the other Initial
Transferred CPS Property relating thereto. The conveyance to the Purchaser of
the CPS Receivables and other Transferred CPS Property relating thereto is
intended as a sale free and clear of all liens and it is intended that the
Transferred CPS 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 Initial 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 Initial CPS Receivables listed in the Initial Schedule of CPS Receivables
and all
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monies received thereunder after the Cutoff Date and all Net Liquidation
Proceeds received with respect to such Initial CPS Receivables; (ii) the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Initial CPS 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 such 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 Initial
CPS Receivables or the Obligors thereunder; (iv) refunds for the costs of
extended service contracts with respect to Financed Vehicles securing the
Initial CPS Receivables, refunds of unearned premiums with respect to credit
life and credit accident and health insurance policies or certificates covering
an Obligor under an Initial CPS Receivable or Financed Vehicle securing an
Initial CPS Receivable or his or her obligations with respect to a Financed
Vehicle and any recourse to Dealers for any of the foregoing; (v) the Receivable
File related to each Initial CPS Receivable; (vi) the proceeds of any and all of
the foregoing and (vii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Initial Transferred CPS
Property" and together with the Transferred Samco Property and the Transferred
Linc Property, the "Initial Transferred Property").
(b) Initial Receivables Purchase Price. In consideration for
the Initial CPS Receivables and other Initial Transferred Property described in
Section 2.1(a), the Purchaser shall, on the Closing Date, pay to the Seller the
Initial Receivables Purchase Price. An amount equal to $248,062,758.87 of the
Initial Receivables Purchase Price shall be paid to the Seller in cash. The
remaining $8,269,418.13 of the Initial Receivables Purchase Price shall be
deemed paid and returned to the Purchaser and be considered a contribution to
the Purchaser's capital. The portion of the Initial Receivables Purchase Price
to be paid in cash shall be by federal wire transfer (same day) funds.
2.2. Purchase and Sale of Subsequent Receivables. On the related
Subsequent Closing Date, subject to the terms and conditions of the related
Subsequent CPS 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, each Subsequent CPS Purchase
Agreement and the Sale and Servicing Agreement), all of the Seller's right,
title and interest in, to and under the Subsequent CPS Receivables and the other
Subsequent Transferred CPS Property relating thereto. The conveyance to the
Purchaser of the Subsequent CPS Receivables and other Subsequent Transferred CPS
Property relating thereto is intended as a sale free and clear of all liens and
it is intended that
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the Subsequent Transferred CPS 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 Subsequent Receivables. On the related
Subsequent Closing Date the Seller shall sell, transfer, assign, grant, set over
and otherwise convey to the Purchaser, without recourse (subject to the
obligations in this Purchase Agreement, each Subsequent CPS Purchase Agreement
and in the Sale and Servicing Agreement), all right, title and interest of the
Seller in and to (i) the Subsequent CPS Receivables listed in the related
Schedule of Subsequent CPS Receivables and all monies received thereunder after
the related Subsequent Cutoff Date and all Net Liquidation Proceeds received
with respect to such Subsequent CPS Receivables; (ii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Subsequent CPS
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 Subsequent CPS
Receivables or the Obligors thereunder; (iv) refunds for the costs of extended
service contracts with respect to Financed Vehicles securing the Subsequent CPS
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 Subsequent CPS 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 Subsequent CPS
Receivable; (vi) the proceeds of any and all of the foregoing and (vii) all
present and future claims, demands, causes and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Subsequent Transferred CPS Property" and together
with any Subsequent Transferred Samco Property or Subsequent Transferred Linc
Property, the "Subsequent Transferred Property").
(b) The Seller shall transfer to the Purchaser the Subsequent
CPS Receivables and the Subsequent Transferred CPS Property as described in
paragraph (a) above only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Closing Date:
(i) the Seller shall have provided the Trustee, the Owner
Trustee, the Note Insurer and the Rating Agencies with an Addition
Notice not later than three days prior to such Subsequent Closing Date
and shall have provided any information
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reasonably requested by any of the foregoing with respect to the
Subsequent CPS Receivables;
(ii) the Seller shall have delivered to the Owner Trustee and
the Trustee a duly executed Subsequent CPS Purchase Agreement,
substantially in the form of Exhibit C, which shall include a
supplement to the Schedule of CPS Receivables, listing the Subsequent
CPS Receivables to be transferred on the related Subsequent Closing
Date;
(iii) the Seller shall, to the extent required by Section 4.2
of the Sale and Servicing Agreement, have deposited in the Collection
Account all collections in respect of the Subsequent CPS Receivables;
(iv) as of each Subsequent Closing Date, (A) the Seller shall
not be insolvent and shall not become insolvent as a result of the
transfer of Subsequent CPS Receivables on such Subsequent Closing Date,
(B) the Seller shall not intend to incur or believe that it shall incur
debts that would be beyond its ability to pay as such debts mature, (C)
such transfer shall not have been made with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller shall not
constitute unreasonably small capital to carry out its business as then
conducted;
(v) the Funding Period shall not have terminated;
(vi) after giving effect to any transfer of Subsequent CPS
Receivables on a Subsequent Closing Date (and any Subsequent Samco
Receivables transferred to the Purchaser on such Subsequent Closing
Date), the Receivables shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial Cutoff Date
and the Subsequent Receivables on the related Subsequent Cutoff Dates):
(A) the weighted average APR of such Receivables will not be less than
0.25% below the weighted average APR of the Initial Receivables on the
Cutoff Date, (B) the weighted average remaining term of such
Receivables will be within a range of 12 to72 months, (C) not more than
90% of the aggregate principal balance of such Receivables will
represent financing of used Financed Vehicles, (D) no fewer than 50% of
the Subsequent Receivables will be originated under the "Alpha"
program, (E) no more than 5.25% of the Subsequent Receivables will be
originated under the "First Time Buyer" program, (F) no fewer than 20%
and no more than 30% of the Subsequent Receivables will be originated
under the "Standard" program, and (G) the Trust, the Trustee, the Owner
Trustee and the Note Insurer shall have received written confirmation
from a firm of certified independent public accountants as to the
satisfaction of the criteria in clauses (A) through (F) above;
(vii) each of the representations and warranties made by the
Seller pursuant to Section 3.2 with respect to the Subsequent
Receivables to be transferred on such Subsequent Closing Date shall be
true and correct as of the related Subsequent
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Closing Date, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Closing Date;
(viii) the Seller shall, at its own expense, on or prior to
the Subsequent Closing Date indicate in its computer files that the
Subsequent Receivables identified in the Subsequent Purchase Agreement
have been sold to the Purchaser pursuant to the related Subsequent
Purchase Agreement and subsequently to the Trust pursuant to the Sale
and Servicing Agreement;
(ix) the Seller shall have taken any action required to
maintain the first priority perfected ownership interest of the Trust
in the Owner Trust Estate and the first priority perfected security
interest of the Trustee in the Collateral;
(x) no selection procedures adverse to the interests of the
Noteholders or the Note Insurer shall have been utilized in selecting
the Subsequent CPS Receivables;
(xi) the addition of any such Subsequent CPS Receivables shall
not result in a material adverse tax consequence to the Trust or the
Noteholders;
(xii) the Seller shall have delivered (A) to the Rating
Agencies and the Note Insurer an Opinion of Counsel with respect to the
transfer of such Subsequent CPS Receivables substantially in the form
of the Opinion of Counsel delivered to the Rating Agencies and the Note
Insurer on the related Subsequent Closing Date and (B) to the Trustee
the Opinion of Counsel required by Section 13.2(i)(1) of the Sale and
Servicing Agreement;
(xiii) each Rating Agency shall have confirmed that the rating
on the Notes shall not be withdrawn or reduced as a result of the
transfer of such Subsequent CPS Receivables to the Trust;
(xiv) all conditions precedent specified in the Sale and
Servicing Agreement with respect to the transfer of such Subsequent CPS
Receivables to the Trust by the Purchaser shall have been satisfied;
and
(xv) the Seller shall have delivered to the Note Insurer and
the Trustee an Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph (b).
2.3. The Closing. The sale and purchase of the Initial CPS Receivables
shall take place at a closing (the "Closing") at the offices of Xxxxx, Brown &
Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-5820 on the Closing Date,
simultaneously with the closings under: (a) the Samco Purchase Agreement
pursuant to which Samco will sell the Initial Samco Receivables to the
Purchaser, (b) the Linc Purchase Agreement pursuant to which Linc will sell the
Linc Receivables to the Purchaser, (c) the Sale and Servicing Agreement
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pursuant to which the Purchaser will assign all of its right, title and interest
in and to the Initial Receivables and the other Initial 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, and (f) the
Underwriting Agreement pursuant to which the Purchaser shall sell the Notes to
the Underwriter.
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 and each Subsequent Closing Date (which representations and
warranties shall survive the Closing Date and each Subsequent 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
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 have 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
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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.
(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
the Closing Date and each Subsequent Closing Date (which representations and
warranties shall survive the Closing Date and each Subsequent 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 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, own and service the 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 and the servicing of the 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 the Agreements and to carry out their
terms; the Seller has full power and authority to sell and assign the
property sold and assigned to the Purchaser
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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 have been duly authorized by the Seller
by all necessary corporate action.
(iv) Valid Sale; Binding Obligation. This Purchase Agreement
effects a valid sale, transfer and assignment of the CPS Receivables
and the other Transferred CPS Property conveyed to the Purchaser
pursuant to Sections 2.1 and 2.2, 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
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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 the Agreements 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 CPS
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 CPS Receivables to the Purchaser.
(b) The Seller makes the following representations and
warranties as to the Receivables (including the Samco Receivables and the Linc
Receivables) and the other Transferred Property relating thereto on which the
Purchaser relies in accepting the Receivables and the other Transferred Property
relating thereto. Such representations and warranties speak as of the execution
and delivery of this Agreement and as of the Closing Date, in the case of the
Initial Receivables, and as of the related Subsequent Closing Date, in case of
the Subsequent Receivables, but shall survive the sale, transfer, and assignment
of the Receivables and the other Transferred Property relating thereto to the
Purchaser and the subsequent assignments and transfers pursuant to the Sale and
Servicing Agreement and the Indenture:
(i) Origination Date. Each Receivable has an origination date
on or after November 1, 1997.
(ii) Principal Balance/Number of Contracts. As of the Cutoff
Date, the total aggregate principal balance of the Initial Receivables
was $275,647,271.04. The Initial Receivables are evidenced by 21,655
Contracts.
(iii) Maturity of Receivables. Each Receivable has an original
term to maturity of not more than 72 months; the weighted average
original term to maturity of the Initial Receivables was 57.84 months
as of the Cutoff Date (in the case of the Initial Receivables) or the
Subsequent Cutoff Date (in the case of the related Subsequent
Receivables); the remaining term to maturity of each Initial Receivable
was 72 months or less as of the Cutoff Date; the weighted average
remaining term to maturity of the Initial Receivables was 55.87 months
as of the Cutoff Date.
(iv) Characteristics of Receivables. (a) Each Receivable (1)
has been originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, has been fully and properly executed by the parties
thereto and has been purchased by the Seller (or, with respect to the
Samco Receivables, Samco and, with respect to the Linc Receivables,
Linc) in connection with the sale of Financed Vehicles by the Dealers,
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(2) has created a valid, subsisting, and enforceable first priority
security interest in favor of the Seller (or, with respect to the Samco
Receivables, Samco and, with respect to the Linc Receivables, Linc) in
the Financed Vehicle, which security interest has been assigned by the
Seller (or, with respect to the Samco Receivables, Samco and, with
respect to the Linc Receivables, Linc) to the Purchaser, which in turn
has assigned such security interest to the Trust pursuant to the Sale
and Servicing Agreement which will in turn assign such security
interest to the Trustee, (3) contains customary and enforceable
provisions such that the rights and remedies of the holder or assignee
thereof shall be adequate for realization against the collateral of the
benefits of the security, (4) provides for level monthly payments that
fully amortize the Amount Financed over the original term (except for
the last payment, which may be different from the level payment) and
yield interest at the Annual Percentage Rate, (5) has an Annual
Percentage Rate of not less than 14.9%, (6) that is a Rule of 78's
Receivable provides for, in the event that such Receivable is prepaid,
a prepayment that fully pays the Principal Balance and includes a full
month's interest, in the month of prepayment, at the Annual Percentage
Rate, (7) is a Rule of 78's Receivable or a Simple Interest Receivable,
and (8) was originated by a Dealer and was sold by the Dealer without
any fraud or misrepresentation on the part of such Dealer.
(v) Approximately 88.63% of the aggregate Principal Balance of
the Initial Receivables, constituting 91.11% of the number of Initial
Receivables, as of the Cutoff Date, represents financing of used
automobiles, light trucks, vans or minivans; the remainder of the
Initial Receivables represent financing of new vehicles; approximately
7.82% of the aggregate Principal Balance of the Initial Receivables as
of the Cutoff Date were originated under the "Delta" program;
approximately 52.45% of the aggregate Principal Balance of the Initial
Receivables as of the Cutoff Date were originated under the "Alpha"
program; approximately 5.24% of the aggregate Principal Balance of the
Initial Receivables as of the Cutoff Date were originated under the
"First Time Buyer" program; approximately 28.33% of the aggregate
Principal Balance of the Initial Receivables as of the Cutoff Date were
originated under the "Standard" program; approximately 2.39% of the
aggregate Principal Balance of the Initial Receivables as of the Cutoff
Date were originated under the Linc program; and approximately 3.76% of
the aggregate Principal Balance of the Initial Receivables as of the
Cutoff Date were originated under the "Super Alpha" program;
approximately 2.39% of the aggregate Principal Balance of the Initial
Receivables as of the Cutoff Date are Linc Receivables; approximately
4.62% of the aggregate Principal Balance of the Initial Receivables as
of the Cutoff Date are Samco Receivables; no Initial Receivable shall
have a payment that is more than 30 days overdue as of the Cutoff Date;
15.76% of the aggregate Principal Balance of the Initial Receivables as
of the Cutoff Date are Rule of 78's Receivables and 84.24% of the
aggregate Principal Balance of the Initial Receivables as of the Cutoff
Date are Simple Interest Receivables; each Initial Receivable shall
have a final scheduled payment due no later than September 27, 2004;
and each Initial Receivable was originated on or before the Cutoff
Date.
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(vi) Scheduled Payments. Each Receivable had an original
principal balance of not less than $0 nor more than $30,000.01.
(vii) Characteristics of Obligors. As of the date of each
Obligor's application for the loan from which the related Receivable
arises, each Obligor on any Receivable (a) did not have any material
past due credit obligations or any personal or real property
repossessed or wages garnished within one year prior to the date of
such application, unless such amounts have been repaid or discharged
through bankruptcy, (b) was not the subject of any Federal, State or
other bankruptcy, insolvency or similar proceeding pending on the date
of application that is not discharged, (c) had not been the subject of
more than one Federal, State or other bankruptcy, insolvency or similar
proceeding, and (d) was domiciled in the United States.
(viii) Origination of Receivables. Based on the billing
address of the Obligors and the Principal Balances as of the Cutoff
Date, approximately 17.84% of the Initial Receivables were originated
in California.
(ix) Post-Office Box. On or prior to the next billing period
after the Cutoff Date (in the case of the Initial Receivables) or the
Subsequent Cutoff Date (in the case of the related Subsequent
Receivables), the Seller will notify each Obligor to make payments with
respect to its respective Receivables after the Cutoff Date (in the
case of the Initial Receivables) or the Subsequent Cutoff Date (in the
case of the related Subsequent Receivables) directly to the Post-Office
Box, and will provide each Obligor with a monthly statement in order to
enable such Obligors to make payments directly to the Post-Office Box.
(x) Location of Receivable Files; One Original. A complete
Receivable File with respect to each Receivable has been or prior to
the Closing Date or the related Subsequent Closing Date, as applicable,
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 Receivable.
(xi) Schedule of Receivables; Selection Procedures. The
information with respect to the Receivables set forth in the Schedule
of CPS Receivables, the Schedule of Linc Receivables and the Schedule
of Samco 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 Securityholders have been utilized in selecting the
Receivables.
(xii) Compliance with Law. Each Receivable, the sale of the
Financed Vehicle and the sale of any physical damage, credit life and
credit accident and health insurance and any extended service contracts
complied at the time the related Receivable was originated or made and
at the execution of this Agreement (or the applicable Subsequent
Transfer Agreement) complies in all material respects with all
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requirements of applicable Federal, State and local laws, and
regulations thereunder including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the
Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors'
Civil Relief Act of 1940, the Texas Consumer Credit Code, the
California Automobile Sales Finance Act, and state adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code, and
other consumer credit laws and equal credit opportunity and disclosure
laws.
(xiii) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms, except only as such enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally, and all parties to such contract had full legal
capacity to execute and deliver such contract and all other documents
related thereto and to grant the security interest purported to be
granted thereby.
(xiv) No Government Obligor. None of the Receivables are due
from the United States of America or any State or from any agency,
department, or instrumentality of the United States of America or any
State.
(xv) Security Interest in Financed Vehicle. Immediately prior
to the sale, assignment, and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of the Seller (or, with respect to the Samco
Receivables, Samco and, with respect to the Linc Receivables, Linc) 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 the Closing Date, in
the case of the Initial Receivables or, after the related Subsequent
Closing Date, in the case of the Subsequent Receivables).
(xvi) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the lien granted by the related Receivable in whole or in part.
(xvii) No Waiver. No provision of a Receivable has been
waived.
(xviii) No Amendments. No Receivable has been amended, except
as such 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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(xix) No Defenses. No right of rescission, setoff,
counterclaim or defense exists or has been asserted or threatened with
respect to any Receivable. The operation of the terms of any Receivable
or the exercise of any right thereunder will not render such Receivable
unenforceable in whole or in part or subject to any such right of
rescission, setoff, counterclaim, or defense.
(xx) No Liens. As of the Cutoff Date (with respect to the
Initial Receivables) or the Subsequent Cutoff Date (with respect to the
related Subsequent Receivables), (a), there are no liens or claims
existing or which have been filed for work, labor, storage or materials
relating to a Financed Vehicle that shall be liens prior to, or equal
or coordinate with, the security interest in the Financed Vehicle
granted by the Receivable and (b) there is no lien against the related
Financed Vehicle for delinquent taxes.
(xxi) No Default; Repossession. Except for payment
delinquencies continuing for a period of not more than thirty days as
of the Cutoff Date (with respect to the Initial Receivables) or the
Subsequent Cutoff Date (with respect to the related Subsequent
Receivables), no default, breach, violation or event permitting
acceleration under the terms of any 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 Receivable has arisen; and none of
the Seller, Samco or Linc shall waive and none of the three has waived
any of the foregoing; and no Financed Vehicle shall have been
repossessed as of the Cutoff Date (with respect to the Initial
Receivables) or the Subsequent Cutoff Date (with respect to the related
Subsequent Receivables).
(xxii) Insurance; Other. (A) Each Obligor has obtained
insurance covering the Financed Vehicle as of the execution of the
Receivable insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage and each Receivable requires the
Obligor to obtain and maintain such insurance naming the Seller (or,
with respect to the Samco Receivables, Samco and, with respect to the
Linc Receivables, Linc) and its successors and assigns as an additional
insured, (B) each Receivable that finances the cost of premiums for
credit life and credit accident or health insurance is covered by an
insurance policy and certificate of insurance naming the Seller (or,
with respect to the Samco Receivables, Samco and, with respect to the
Linc Receivables, Linc) as policyholder (creditor) under each such
insurance policy and certificate of insurance and (C) as to each
Receivable that finances the cost of an extended service contract, the
respective Financed Vehicle which secures the Receivable is covered by
an extended service contract.
(xxiii) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
CPS Receivables and other Transferred CPS Property from the Seller to
the Purchaser and that the beneficial
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interest in and title to such CPS Receivables and other Transferred CPS
Property 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 CPS Receivable or other Transferred CPS Property 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
CPS Receivable and other Transferred CPS Property, 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 CPS Receivable and other Transferred CPS Property, 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.
(xxiv) Lawful Assignment. No Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer, and assignment of such Receivable under this Agreement,
the Linc Purchase Agreement or the Samco Purchase Agreement shall be
unlawful, void, or voidable. None of the Seller, Samco nor Linc has
entered into any agreement with any account debtor that prohibits,
restricts or conditions the assignment of any portion of the
Receivables.
(xxv) 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
Receivables and the other Transferred CPS Property have been made,
taken or performed.
(xxvi) Chattel Paper. Each Receivable constitutes "chattel
paper" under the UCC.
(xxvii) Valid and Binding Obligation of Obligor. Each
Receivable is the legal, valid and binding obligation of the Obligor
thereunder and is enforceable in accordance with its terms, except only
as such enforcement may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally, and all
parties to such contract had full legal capacity to execute and deliver
such contract and all other documents related thereto and to grant the
security interest purported to be granted thereby; the terms of such
Receivable have not been waived or modified in any respect.
(xxviii) Title Documents. (A) If the Receivable was originated
in a State in which notation of a security interest on the title
document of the related Financed Vehicle is required or permitted to
perfect such security interest, the title document for such Receivable
shows, or if a new or replacement title document is being applied for
with respect to such Financed Vehicle the title document (or, with
respect to Receivables originated in the State of Michigan, all other
evidence of
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ownership with respect to such Financed Vehicle) will be received
within 180 days and will show, the Seller (or, with respect to the
Samco Receivables, Samco or, with respect to the Linc Receivables,
Linc) named as the original secured party under the related Receivable
as the holder of a first priority security interest in such Financed
Vehicle, and (B) if the Receivable was originated in a State in which
the filing of a financing statement under the UCC is required to
perfect a security interest in motor vehicles, such filings or
recordings have been duly made and show the Seller (or, with respect to
the Samco Receivables, Samco or, with respect to the Linc Receivables,
Linc) named as the original secured party under the related Receivable,
and in either case, the Trustee has the same rights as such secured
party has or would have (if such secured party were still the owner of
the Receivable) against all parties claiming an interest in such
Financed Vehicle. With respect to each Receivable for which the title
document of the related Financed Vehicle has not yet been returned from
the Registrar of Titles, the Seller has received written evidence from
the related Dealer that such title document showing the Seller (or,
with respect to the Samco Receivables, Samco or, with respect to the
Linc Receivables, Linc) and received written evidence from the related
Dealer that such title document showing the Seller as first lienholder
has been applied for.
(xxix) Casualty. No Financed Vehicle related to a Receivable
has suffered a Casualty.
(xxx) Obligation to Dealers or Others. The Purchaser and its
assignees will assume no obligation to Dealers or other originators or
holders of the Receivables (including, but not limited to under dealer
reserves) as a result of the purchase of the Receivables.
(xxxi) Full Amount Advanced. The full amount of each
Receivable has been advanced to each Obligor, and there are no
requirements for future advances thereunder. No Obligor has any option
under a 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 CPS Receivables pursuant to this
Agreement shall be "without recourse" except for the representations, warranties
and covenants made by the Seller in this Agreement or the Sale and Servicing
Agreement.
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ARTICLE IV
CONDITIONS
4.1. Conditions to Obligation of the Purchaser. On the Closing Date and
on each Subsequent Closing Date, the obligation of the Purchaser to purchase the
related CPS 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
or the related Subsequent Closing Date, as applicable, 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 or the related
Subsequent Closing Date, as applicable.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Closing Date or the related Subsequent Closing Date, as applicable,
indicate in its computer files that the related CPS Receivables have been sold
to the Purchaser pursuant to this Purchase Agreement and shall deliver to the
Purchaser the Schedule of CPS Receivables certified by the Chairman, the
President, the Vice President or the Treasurer of the Seller to be true, correct
and complete as of, and after giving effect to all transfers of Receivables on,
the Closing Date or the related Subsequent Closing Date, as applicable.
(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 Closing Date
or the related Subsequent Closing Date, as applicable.
(d) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. On the Closing Date, the Seller will
execute and deliver the Initial CPS Assignment. The Initial CPS
Assignment shall be substantially in the form of Exhibit A hereto . On
each Subsequent Closing Date, the Seller will execute and deliver the
related Subsequent Assignment. Each Subsequent Assignment shall be
substantially in the form of Exhibit A to the form of Subsequent
Purchase Agreement attached as Exhibit C 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 CPS
Receivables and the other Transferred CPS 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 CPS Receivables to the
Purchaser. The Seller shall deliver a file-stamped copy, or other
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evidence satisfactory to the Purchaser of such filing, to the Purchaser
on or prior to such Closing Date.
(iii) Evidence of UCC-2 Filing. On or prior to the Closing
Date and each Subsequent Transfer Closing Date, the Seller shall cause
to be recorded and filed, at its own expense, appropriate UCC-2
termination statements (or UCC-3 termination statements, as applicable
in the relevant UCC jurisdiction) executed by General Electric Capital
Corporation ("GECC") or First Union National Bank ("First Union") in
each jurisdiction in which required by applicable law, meeting the
requirements of the laws of each such jurisdiction and in such manner
as is necessary to release the interest of GECC or First Union, as
applicable interest in the related Receivables, including without
limitation, the security interests in the Financed Vehicles securing
the Receivables and any proceeds of such security interests or the
Receivables. 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 or Subsequent Closing Date, as
applicable.
(iv) 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 Samco Purchase
Agreement, the Linc Purchase Agreement, and the Underwriting Agreement shall be
consummated on the Closing Date or Subsequent Closing Date, as applicable.
4.2. Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Initial Receivables or Subsequent Receivables, as applicable,
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 or Subsequent Closing Date, as applicable, 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 or Subsequent Closing Date, as
applicable.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser will
deliver to the Seller the Initial Receivables Purchase Price 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 Initial Closing Date. On each Subsequent Closing Date, the Purchaser will
deliver to the Seller the Subsequent Receivables Purchase Price for the
Subsequent CPS Receivables to be transferred to the Purchaser on such Subsequent
Closing Date.
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ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, however,
that to the extent that any provision of this ARTICLE V conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing Agreement
shall govern:
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 Receivables and the other
Transferred 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 Receivables and the other Transferred Property. The
Seller shall deliver 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 Note 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 Note 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) Accounts and Records. The Seller shall maintain accounts and
records as to each CPS Receivable accurately and in sufficient detail to permit
the reader thereof to
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know at any time the status of such CPS Receivable, including payments and
recoveries made and payments owing (and the nature of each).
(d) Maintenance of Computer Systems. The Seller shall maintain its
computer systems so that, from and after the time of sale hereunder of the CPS
Receivables to the Purchaser, the Seller's master computer records (including
any back-up archives) that refer to a CPS Receivable shall indicate clearly the
interest of the Purchaser in such CPS Receivable and that such CPS Receivable is
owned by the Purchaser. Indication of the Purchaser's ownership of a CPS
Receivable shall be deleted from or modified on the Seller's computer systems
when, and only when, the CPS Receivable shall have been paid in full or
repurchased.
(e) 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 CPS 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 CPS Receivable, shall indicate clearly
that such CPS Receivable has been sold and is owned by the Purchaser unless such
CPS Receivable has been paid in full or repurchased.
(f) 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 Receivable.
(g) List of Receivables. Upon request, the Seller shall furnish to the
Purchaser, within five Business Days, a list of all CPS Receivables (by contract
number and name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of CPS 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 Receivables
against all claims of third parties claiming through or under the Seller (or,
with respect to the Samco Receivables, Samco and, with respect to the Linc
Receivables, Linc).
5.3. Chief Executive Office. During the term of the 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 CPS
Receivables.
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5.5. Delivery of Receivable Files. On or prior to the Closing Date, the
Seller shall deliver the Receivable Files for the Initial Receivables to the
Trustee at the location specified in Schedule B to the Sale and Servicing
Agreement. On or prior to each Subsequent Closing Date, the Seller shall deliver
the Receivable Files for the related Subsequent Receivables to the Trustee at
the location specified in Schedule B to the Sale and Servicing Agreement. The
Seller shall have until the last day of the second Collection Period following
receipt from the Trustee of notification, pursuant to Section 3.4 of the Sale
and Servicing Agreement, that there has been a failure to deliver a file with
respect to a Receivable (including a Samco Receivable or 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, 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.
5.6. Indemnification. (a) Subject to the limitation of remedies set
forth in Section 6.2 hereof with respect to a breach of any representations and
warranties contained in Section 3.2(b) hereof, the Seller shall indemnify the
Purchaser for any liability as a result of the failure of a 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.
(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.
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(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 Agreement, or by reason of reckless disregard of the
Seller's obligations and duties under the Agreement.
(e) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against all costs, expenses, losses, damages, claims and liabilities
arising out of or incurred in connection with the acceptance or performance of
the Seller's trusts and duties as Servicer under the Sale and Servicing
Agreement, except to the extent that such cost, expense, loss, damage, claim or
liability shall be due to the willful misfeasance, bad faith, or negligence
(except for errors in judgment) of the Purchaser.
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 securities 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 breach of this covenant and that this
covenant may be specifically enforced by the Purchaser or by 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 Receivable.
6.2. Repurchase Events. The Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trustee, the Note 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
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affected Receivables (including any affected Samco Receivables or 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 Receivable if such 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 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 Receivables, such that following
such purchase such representation shall be true and correct with respect to the
remainder of the 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 4.7 of the
Sale and Servicing Agreement. For purposes of this Section 6.2, the Purchase
Amount of a Receivable which is not consistent with the warranty pursuant to
Section 3.2(b)(iv)(a)(5) or (iv)(a)(6) shall include such additional amount as
shall be necessary to provide the full amount of interest as contemplated
therein. The sole remedy hereunder of the Securityholders, the Trust, the Note
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
Receivables pursuant to this Agreement; provided, however, that the Seller shall
indemnify the Trustee, the Note Insurer, the Trust and the Noteholders 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
Receivable. Notwithstanding the foregoing, if it is determined that consummation
of the transactions contemplated by the Sale and Servicing Agreement, the
Indentures and the other transaction documents referenced in such Agreement,
servicing and operation of the Trust pursuant to Trust Agreement and such other
documents, or the ownership of a Security 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
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
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Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
6.4. Conveyance as Sale of Receivables Not Financing. The parties
hereto intend that the conveyances hereunder and under each Subsequent Purchase
Agreement be a sale of the CPS Receivables and the other Transferred CPS
Property from the Seller to the Purchaser and not a financing secured by such
assets; and the beneficial interest in and title to the CPS Receivables and the
other Transferred CPS 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
California) and applicable law, and the Seller hereby grants to the Purchaser a
first priority perfected security interest in, to and under the Initial CPS
Receivables and the other Initial Transferred CPS 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 Linc Purchase Agreement and
the Samco Purchase Agreement to the Trust, 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 Sections 6.2 and 6.4 hereof. The Seller hereby consents to such
sale and assignment.
6.6. Amendment. This Purchase 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 Note Insurer; provided, however, that any such
amendment that materially adversely affects the rights of the Noteholders under
the Sale and Servicing Agreement must be consented to by the holders of Notes
representing more than 50% of the outstanding principal amount of Notes.
6.7. Accountants' Letters. (a) KPMG Peat Marwick LLP will review the
characteristics of the Receivables and will compare those characteristics to the
information with respect to the Receivables contained in the Offering Documents;
(b) The Seller will cooperate with the Purchaser and KPMG Peat Marwick LLP in
making available all information and taking all steps reasonably necessary to
permit such accountants to complete the review set forth in Section 6.7(a) above
and to deliver the letters required of them under the Underwriting Agreement;
and (c) KPMG Peat Marwick LLP will deliver to the
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Purchaser a letter, dated the Closing Date, in the form previously agreed to by
the Seller and the Purchaser, with respect to the financial and statistical
information contained in the Offering Documents under the captions "CPS's
Automobile Contract Portfolio--Delinquency and Loss Experience" and "The
Receivables Pool", certain information relating to the Receivables on magnetic
tape obtained from the Seller and the Purchaser and with respect to such other
information as may be agreed in the form of letter.
6.8. 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.
6.9. 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 Purchase 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.
6.10. Costs and Expenses. The Seller will pay all expenses incident to
the performance of its obligations under this Purchase Agreement and the Seller
agrees to pay all reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in and to the
CPS Receivables and security interests in the Financed Vehicles and the
enforcement of any obligation of the Seller hereunder.
6.11. 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 the closing under Section 2.2
hereof.
6.12. 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 CPS Receivables, under the Sale and Servicing Agreement or as required
by law.
6.13. 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 Purchase Agreement. References in this
Purchase Agreement to Section names or numbers are to such Sections of this
Purchase Agreement.
6.14. Third Party Beneficiaries. The parties hereto hereby expressly
agree that each of the Trustee for the benefit of the Securityholders and the
Note Insurer shall be third party beneficiaries with respect to this Purchase
Agreement, provided, however, that no third party
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other than the Trustee for the benefit of the Securityholders and the Note
Insurer shall be deemed a third party beneficiary of this Purchase Agreement.
6.15. Governing Law. THIS PURCHASE 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.
6.16. Counterparts. This Purchase 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 Purchase
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: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
CONSUMER PORTFOLIO SERVICES, INC.
By
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
Exhibit A
ASSIGNMENT
For value received, on this [ ] day of [ ], 1998, in accordance with
the Purchase Agreement dated as of [ ], 1998, between the undersigned (the
"Seller") and CPS Receivables Corp. (the "Purchaser") (the "CPS Purchase
Agreement"), the undersigned does hereby sell, transfer, assign and otherwise
convey unto the Purchaser, without recourse (subject to the obligations in the
CPS Purchase Agreement and the Sale and Servicing Agreement), all right, title
and interest of the Seller in and to (i) the Initial CPS Receivables listed in
the Schedule of CPS Receivables, and all monies received thereunder after the
Cutoff Date and all Net Liquidation Proceeds received with respect to such
Initial CPS Receivables; (ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the CPS 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 such 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 Initial CPS Receivables or the Obligors thereunder; (iv)
refunds for the costs of extended service contracts with respect to Financed
Vehicles securing the Initial CPS 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 or his or her obligations
with respect to a Financed Vehicle related to an Initial CPS Receivable and any
recourse to Dealers for any of the foregoing; (v) the Receivable File related to
each Initial CPS Receivable; (vi) the proceeds of any and all of the foregoing
and (vii) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any 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
Initial CPS Receivables, the related 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 CPS
Purchase Agreement and is to be governed by the CPS Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the CPS Purchase Agreement.
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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 the day and year first above written.
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
A-2
Exhibit B
Schedule of CPS Receivables
See Following Page
A-1
EXHIBIT C
FORM OF SUBSEQUENT PURCHASE AGREEMENT
THIS SUBSEQUENT PURCHASE AGREEMENT (this "Subsequent Purchase
Agreement") is made and entered into as of , by and between CONSUMER PORTFOLIO
SERVICES, INC., a California corporation (the "Seller"), and CPS RECEIVABLES
CORP., a California corporation (together with its successors and assigns, the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser, as purchaser, has agreed to purchase from the
Seller, as seller, and the Seller, pursuant to the Purchase Agreement (the "CPS
Purchase Agreement") dated as of [ ], 1998 between the Purchaser and the Seller,
is transferring to the Purchaser the Subsequent CPS Receivables listed on the
Schedule of Subsequent CPS Receivables annexed hereto as Exhibit A (the
"Subsequent CPS Receivables") and related Subsequent Transferred CPS Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, the Purchaser and the Seller, intending to
be legally bound, hereby agree as follows:
Definitions
SECTION 1. Capitalized terms used herein without definition shall have
the respective meanings assigned to such terms in the CPS Purchase Agreement.
SECTION 2. Conveyance of Subsequent CPS Receivables. For value
received, in accordance with the CPS Purchase Agreement, the Seller does hereby
sell, assign, transfer and otherwise convey unto the Purchaser, without recourse
(but without limitation of its obligations under the CPS Purchase Agreement),
all right, title and interest of the Seller in and to: (i) the Subsequent CPS
Receivables listed in the Schedule of Subsequent CPS Receivables annexed hereto
as Exhibit A and all monies received thereunder after [ ] (the "Subsequent
Cutoff Date") and all Net Liquidation Proceeds received with respect to such
Subsequent CPS Receivables; (ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Subsequent CPS 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
C-1
Vehicles securing the Subsequent CPS Receivables or the Obligors thereunder;
(iv) refunds for the costs of extended service contracts with respect to
Financed Vehicles securing the Subsequent CPS 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
Subsequent CPS 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 Subsequent CPS Receivable; (vi) the proceeds of
any and all of the foregoing and (vii) all present and future claims, demands,
causes and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of any of the foregoing
(collectively, the "Subsequent Transferred CPS Property" and together with any
Subsequent Transferred Samco Property and/or Subsequent Transferred Linc
Property, the "Subsequent Transferred Property").
SECTION 3. Consideration for Subsequent Transferred Property. In
consideration for the Subsequent CPS Receivables and other Subsequent
Transferred CPS Property, subject to the terms and conditions hereof, the
purchase price for the Subsequent CPS Receivables, in the amount of $[ ], shall
be paid by the Purchaser on the Subsequent Closing Date as follows: (i) $[ ] in
cash shall be paid to the Seller and (ii) $[ ] which shall be deemed paid and
returned to the Purchaser as a contribution to capital.
SECTION 4. Conveyance as Sale of Receivables Not Financing. The parties
hereto intend that the conveyance hereunder be a sale of the Subsequent CPS
Receivables and the related Transferred CPS Property from the Seller to the
Purchaser and not a financing secured by such assets; and the beneficial
interest in and title to the Subsequent CPS Receivables and the related
Transferred CPS 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
California) and applicable law, and the Seller hereby grants to the Purchaser a
first priority perfected security interest in, to and under the Subsequent CPS
Receivables and the related Transferred CPS Property being delivered to the
Purchaser on the Subsequent 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.
SECTION 5. Representations and Warranties of the Seller. This Agreement
is made pursuant to and upon the representations, warranties, covenants and
agreements on the part
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of the Seller contained in the CPS Purchase Agreement and is to be governed by
the CPS Purchase Agreement. All of such representations, warranties, covenants
and agreements are hereby incorporated herein and are in full force and effect
as though specifically set forth herein.
SECTION 6. Representations and Warranties of the Purchaser. This
Agreement is made pursuant to and upon the representations, warranties,
covenants and agreements on the part of the Purchaser contained in the CPS
Purchase Agreement and is to be governed by the CPS Purchase Agreement. All of
such representations, warranties, covenants and agreements are hereby
incorporated herein and are in full force and effect as though specifically set
forth herein.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed this __ day of _________, but effective as of the date and year
first written above.
CONSUMER PORTFOLIO SERVICES, INC.,
as Seller
By:
Name:
Title:
CPS RECEIVABLES CORP.,
as Purchaser
By:
Name:
Title:
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EXHIBIT A TO SUBSEQUENT PURCHASE AGREEMENT
FORM OF SUBSEQUENT ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of [ ], 1998, as heretofore amended, supplemented or otherwise modified (the
"CPS Purchase Agreement"), among the undersigned, as Seller, and CPS Receivables
Corp. (the "Purchaser"), the undersigned does hereby transfer, assign, grant,
set over and otherwise convey to the Purchaser, without recourse (subject to the
obligations in the CPS Purchase Agreement and the Sale and Servicing Agreement)
all right, title and interest of the Seller in and to: (i) the Subsequent CPS
Receivables listed in the Schedule of Subsequent CPS Receivables annexed hereto
as Exhibit A and all monies received thereunder after [ ] (the "Subsequent
Cutoff Date") and all Net Liquidation Proceeds received with respect to such
Subsequent CPS Receivables; (ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Subsequent CPS 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 Subsequent CPS Receivables or the Obligors thereunder; (iv) refunds
for the costs of extended service contracts with respect to Financed Vehicles
securing the Subsequent CPS 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 Subsequent CPS
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 Subsequent CPS Receivable; (vi) the proceeds of any and all of
the foregoing and (vii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Subsequent Transferred CPS
Property" and together with any Subsequent Transferred Samco Property and/or
Subsequent Transferred Linc Property, the "Subsequent Transferred Property").
The foregoing assignment, transfer and conveyance 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 Subsequent CPS Receivables, the Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
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This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of each of the undersigned contained in
the CPS Purchase Agreement and is to be governed by the CPS Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the CPS 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 principles of
conflicts of law.
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
duly executed as of [ ], 199__.
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
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