EXHIBIT 10.38
================================================================================
NOTE PURCHASE AGREEMENT
(VARIABLE FUNDING NOTE),
dated as of June 30, 2004,
among
PAGE FUNDING LLC
as Issuer,
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer,
UBS REAL ESTATE SECURITIES INC.,
as Note Purchaser
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................... 2
SECTION 1.01 Definitions...............................................2
ARTICLE II PURCHASE AND SALE OF THE NOTE.............................................2
SECTION 2.01 The Initial Note Purchase.................................2
SECTION 2.02 Advances................................................. 2
SECTION 2.03 Advance Procedures........................................2
SECTION 2.04 The Note .................................................3
SECTION 2.05 Commitment Term...........................................3
ARTICLE III INTEREST AND FEES........................................................3
SECTION 3.01 Interest..................................................3
SECTION 3.02 Fees......................................................3
SECTION 3.03 Increased Costs, etc......................................4
SECTION 3.04 Increased Capital Costs...................................4
SECTION 3.05 Taxes.....................................................5
ARTICLE IV OTHER PAYMENT TERMS.......................................................6
SECTION 4.01 Time and Method of Payment................................6
ARTICLE V REPRESENTATIONS AND WARRANTIES.............................................6
SECTION 5.01 The Issuer................................................6
SECTION 5.02 Servicer..................................................9
SECTION 5.03 Note Purchaser...........................................11
ARTICLE VI CONDITIONS...............................................................12
SECTION 6.01 Conditions to Purchase...................................12
SECTION 6.02 Conditions to Initial Advance............................12
SECTION 6.03 Conditions to Each Advance...............................13
ARTICLE VII COVENANTS...............................................................15
SECTION 7.01 Covenants................................................15
ARTICLE VIII MISCELLANEOUS PROVISIONS...............................................15
SECTION 8.01 Amendments...............................................15
SECTION 8.02 No Waiver; Remedies......................................16
SECTION 8.03 Binding on Successors and Assigns........................16
-i-
SECTION 8.04 Survival of Agreement....................................17
SECTION 8.05 Payment of Costs and Expenses; Indemnification...........17
SECTION 8.06 Characterization as Basic Document; Entire Agreement.....19
SECTION 8.07 Notices..................................................19
SECTION 8.08 Severability of Provisions...............................19
SECTION 8.09 Tax Characterization.....................................19
SECTION 8.10 Limited Recourse.........................................19
SECTION 8.11 Governing Law............................................20
SECTION 8.12 Jurisdiction.............................................20
SECTION 8.13 Waiver of Jury Trial.....................................20
SECTION 8.14 Counterparts.............................................20
SECTION 8.15 Issuer Obligation........................................20
-ii-
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT, dated as of June 30, 2004 (as amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms hereof, this "AGREEMENT"), is made among PAGE FUNDING LLC, a
Delaware limited liability company (the "ISSUER"), CONSUMER PORTFOLIO SERVICES,
INC., a California corporation ("CPS" or the "SERVICER"), and UBS REAL ESTATE
SECURITIES INC., a Delaware corporation, as Note Purchaser (in such capacity,
together with any successors in such capacity, the "NOTE PURCHASER").
BACKGROUND
1. Contemporaneously with the execution and delivery of this
Agreement, the Issuer, the Note Purchaser and Xxxxx Fargo Bank, National
Association, a national banking association, as trustee (together with its
successors in trust thereunder as provided in the Indenture referred to below,
the "TRUSTEE"), are entering into the Indenture, of even date herewith (as the
same may be amended, supplemented, restated or otherwise modified from time to
time in accordance with the terms thereof, the "INDENTURE"), pursuant to which
the Issuer will issue the Variable Funding Note (the "NOTE").
2. The security for the Note will include retail installment
sale contracts (the "RECEIVABLES") secured by the new and used automobiles,
vans, minivans and light trucks financed thereby. The Receivables will be
serviced by CPS. The Note will be secured by the Receivables, which will be
pledged by the Issuer to the Trustee from time to time pursuant to the
Indenture. Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in the Sale and Servicing Agreement (as
defined below) or the Indenture, as applicable.
3. The Issuer will acquire a pool of Receivables (the "INITIAL
RECEIVABLES") from CPS pursuant to a Sale and Servicing Agreement, dated as of
June 30, 2004 (such date, the "INITIAL CUTOFF DATE" and such agreement, the
"SALE AND SERVICING AGREEMENT"), among the Issuer, as purchaser, CPS, as seller
and servicer (in such capacities, the "SELLER" and the "SERVICER,"
respectively), and the Trustee. The Issuer will in turn pledge the Initial
Receivables to the Trustee pursuant to the Indenture. From time to time prior to
the Facility Termination Date pursuant to the Sale and Servicing Agreement, the
Seller will sell, and the Issuer will purchase, additional pools of Receivables
(the "ADDITIONAL RECEIVABLES" and, together with the Initial Receivables, the
"RECEIVABLES") secured by the new and used automobiles, vans, minivans and light
trucks financed thereby, which Additional Receivables will be described in the
schedules to one or more assignments by the Seller to the Issuer (each, an
"ASSIGNMENT") dated as of the cutoff date specified therein (such date, a
"CUTOFF DATE" and each date of transfer, a "FUNDING DATE"). The Issuer will in
turn pledge the Additional Receivables to the Trustee pursuant to the Indenture.
-1-
4. The Issuer wishes to issue the Note in favor of the Note
Purchaser and obtain the agreement of the Note Purchaser to make loans from time
to time (each, an "ADVANCE") for the purchase of Invested Amounts, all of which
Advances (including the Initial Advance) will constitute Advances, and all of
which Advances (including the Initial Advance) will be evidenced by the Note
purchased in connection herewith. Subject to the terms and conditions of this
Agreement, the Note Purchaser is willing to make Advances from time to time to
fund purchases of Invested Amounts in an aggregate outstanding amount up to the
Maximum Invested Amount until the commencement of the Amortization Period. CPS
has joined in this Agreement to confirm certain representations, warranties and
covenants made by it as Servicer for the benefit of the Note Purchaser.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Agreement and unless the
context requires a different meaning, capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in Annex A to the Sale and Servicing Agreement. In
addition, the following terms shall have the following meanings and the
definitions of such terms are applicable to the singular as well as the plural
form of such terms and to the masculine as well as the feminine and neuter
genders of such terms:
ARTICLE II
PURCHASE AND SALE OF THE NOTE
SECTION 2.01 THE INITIAL NOTE PURCHASE. On the terms and conditions set
forth in the Indenture, the Sale and Servicing Agreement and this Agreement, and
in reliance on the covenants, representations and agreements set forth herein
and therein, the Issuer shall issue and cause the Trustee to authenticate and
deliver to the Note Purchaser the Note on the Closing Date. Such Note shall be
dated the Closing Date, registered in the name of the Note Purchaser, and duly
authenticated in accordance with the provisions of the Indenture.
SECTION 2.02 ADVANCES. Upon the Issuer's request, delivered in
accordance with the provisions of SECTION 2.03, and the satisfaction of all
conditions precedent thereto, subject to the terms and conditions of this
Agreement, the Indenture and the Sale and Servicing Agreement, the Note
Purchaser shall make Advances from time to time during the Term; provided that
no Advance shall be required or permitted to be made on any date if, after
giving effect to such Advance, (a) the Invested Amount would exceed the Maximum
Invested Amount or (b) a Borrowing Base Deficiency exists or would exist.
Subject to the terms of this Agreement and the Indenture, the aggregate
principal amount of the Advances outstanding may be increased or decreased from
time to time.
SECTION 2.03 ADVANCE PROCEDURES. Whenever the Issuer wishes the Note
Purchaser to make an Advance, the Issuer shall (or shall cause the Servicer to)
notify the Note Purchaser by written notice, with an electronic copy of such
notice sent to the Note Purchaser, substantially in the form of EXHIBIT B hereto
(each such request, an "ADVANCE REQUEST"), delivered to the Note Purchaser no
later than two Business Days prior to the proposed Funding Date. Each such
-2-
Advance Request shall be irrevocable and shall in each case refer to this
Agreement and specify the aggregate amount of the requested Advance to be made
on such date. The Note Purchaser shall promptly thereafter (but in no event
later than 11:00 a.m. New York City time on the proposed Funding Date) notify
the Issuer whether the Note Purchaser has determined to make the requested
Advance. On the Funding Date, subject to the other conditions set forth herein,
in the Indenture, and in the Sale and Servicing Agreement, the Note Purchaser
shall make available to the Issuer the amount of such Advance by wire transfer
in U.S. dollars of such amount in same day funds to an account designated by CPS
no later than 4:00 p.m. (New York time) on the date of such Advance.
SECTION 2.04 THE NOTE. On each date an Advance is funded under the Note
pursuant to the Indenture and on each date the amount of outstanding Advances
thereunder is reduced, a duly authorized officer, employee or agent of the Note
Purchaser shall make appropriate notations in its books and records of the
amount of such Advance and the amount of such reduction, as applicable. The
Issuer hereby authorizes each duly authorized officer, employee and agent of the
Note Purchaser to make such notations on the books and records as aforesaid and
every such notation made in accordance with the foregoing authority shall be
PRIMA FACIE evidence of the accuracy of the information so recorded and shall be
binding on the Issuer absent manifest error; provided, however, that in the
event of a discrepancy between the books and records of the Note Purchaser and
the records maintained by the Trustee pursuant to the Indenture, such
discrepancy shall be resolved by the Note Purchaser and the Trustee.
SECTION 2.05 COMMITMENT TERM. The "TERM" of the Commitment hereunder
shall be for a period commencing on the Closing Date and ending on the Facility
Termination Date, or such later date as the Note Purchaser and the Issuer may
agree to in writing, in their sole and absolute discretion.
ARTICLE III
INTEREST AND FEES
SECTION 3.01 INTEREST. Each Advance funded or maintained by the Note
Purchaser during any Interest Period shall bear interest at the Note Interest
Rate.
(a) Interest on Advances shall be due and payable on each
Settlement Date in accordance with the provisions of the Sale and Servicing
Agreement.
(b) All computations of interest at the Note Interest Rate
shall be made on the basis of a year of 360 days and the actual number of days
elapsed. Whenever any payment of interest or principal in respect of any Advance
shall be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of time shall be included in
the computation of the amount of interest owed.
SECTION 3.02 FEES.
-3-
(a) On June 30, 2004, the Issuer and the Servicer shall
jointly and severally pay or cause to be paid to the Note Purchaser a
structuring fee equal to the product of (x) 0.50% and (y) the Maximum Invested
Amount, along with the Note Purchaser's reasonable out-of-pocket expenses,
including its legal fees, in accordance with and subject to Section 8.05.
(b) On each Settlement Date on or prior to the Facility
Termination Date, the Issuer and the Servicer shall jointly and severally pay or
cause to be paid to the Note Purchaser a facility fee equal to (i) the product
of (x) a fraction, the numerator of which is the actual number of days elapsed
in the related Interest Period and the denominator of which is 360 and (y) 0.25%
and (ii) the difference between (a) the Maximum Invested Amount and (b) the
daily average outstanding Invested Amount (the "UNUSED FACILITY FEE") during the
related Interest Period.
SECTION 3.03 INCREASED COSTS, ETC. The Issuer agrees to reimburse the
Note Purchaser for an increase in the cost of, or any reduction in the amount of
any sum receivable by the Note Purchaser, including reductions in the rate of
return on the Note Purchaser's capital, in respect of making, continuing or
maintaining (or of its obligation to make, continue or maintain) any Advances
that arise in connection with any change in, or the introduction, adoption,
effectiveness, interpretation reinterpretation or phase-in, in each case, after
the date hereof, of any law or regulation, directive, guideline, decision or
request (whether or not having the force of law) of any court, central bank,
regulator or other Governmental Authority, except for such changes with respect
to increased capital costs and taxes which are governed by SECTIONS 3.04 and
3.05, respectively. Each such demand shall be provided to the Issuer in writing
and shall state, in reasonable detail, the reasons therefor and the additional
amount required fully to compensate the Note Purchaser for such increased cost
or reduced amount or return. Such additional amounts shall be payable by the
Issuer to the Note Purchaser within five (5) Business Days of its receipt of
such notice, and such notice shall, in the absence of manifest error, be
conclusive and binding on the Issuer.
SECTION 3.04 INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation or
phase-in, in each case after the date hereof, of any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority
affects or would affect the amount of capital required or reasonably expected to
be maintained by the Note Purchaser or any Person controlling the Note Purchaser
and the Note Purchaser reasonably determines that the rate of return on its or
such controlling Person's capital as a consequence of its commitment or the
Advances made by the Note Purchaser is reduced to a level below that which the
Note Purchaser or such controlling Person would have achieved but for the
occurrence of any such circumstance, then, in any such case after notice from
time to time by the Note Purchaser to the Issuer, the Issuer shall pay to the
Note Purchaser an incremental commitment fee sufficient to compensate the Note
Purchaser or such controlling Person for such reduction in rate of return. A
statement of the Note Purchaser as to any such additional amount or amounts
(including calculations thereof in reasonable detail), in the absence of
manifest error, shall be conclusive and binding on the Issuer; and PROVIDED,
FURTHER, that the initial payment of such increased commitment fee shall include
a payment for accrued amounts due under this SECTION 3.04 prior to such initial
payment. In determining such additional amount, the Note Purchaser may use any
method of averaging and attribution that it shall reasonably deem applicable so
long as it applies such method to other similar transactions.
-4-
SECTION 3.05 TAXES. All payments by the Issuer of principal of, and
interest on, the Advances and all other amounts payable hereunder (including
fees) shall be made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding in the case of the Note Purchaser, taxes imposed on or
measured by its overall net income, overall receipts or overall assets and
franchise taxes imposed on it by the jurisdiction in which the Note Purchaser is
organized or is operating or any political subdivision thereof (such
non-excluded items being called "TAXES"). In the event that any withholding or
deduction from any payment to be made by the Issuer hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Issuer will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Note Purchaser or its agent an
official receipt or other documentation evidencing such payment to such
authority; and
(c) pay to the Note Purchaser or its agent such additional
amount or amounts as is necessary to ensure that the net amount actually
received by the Note Purchaser will equal the full amount the Note Purchaser
would have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Note
Purchaser with respect to any payment received by the Note Purchaser or its
agent, the Note Purchaser or such agent may pay such Taxes and the Issuer will
promptly upon receipt of prior written notice stating the amount of such Taxes
pay such additional amounts (including any penalties, interest or expenses) as
is necessary in order that the net amount received by such person after the
payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount the Note Purchaser would have received had not such Taxes been
asserted. The Note Purchaser shall make all reasonable efforts to avoid the
imposition of any Taxes which would give rise to an additional payment under
this SECTION 3.05.
If the Issuer fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to Note Purchaser or its agent
the required receipts or other required documentary evidence, the Issuer shall
indemnify the Note Purchaser and its agent, if any, for any incremental Taxes,
interest or penalties that may become payable by the Note Purchaser or its agent
as a result of any such failure. For purposes of this SECTION 3.05, a
distribution hereunder by the agent for the Note Purchaser shall be deemed a
payment by the Issuer.
-5-
Upon the request of the Issuer, the Note Purchaser, if it is
organized under the laws of a jurisdiction other than the United States, shall,
prior to the initial due date of any payments hereunder and to the extent
permissible under then current law, execute and deliver to the Issuer on or
about the first scheduled payment date in each calendar year thereafter, one or
more (as the Issuer may reasonably request) United States Internal Revenue
Service Forms W-8ECI or Forms W-8BEN or such other forms or documents (or
successor forms or documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to the Note Purchaser is exempt
from withholding or deduction of Taxes. The Issuer shall not, however, be
required to pay any increased amount under this SECTION 3.05 to the Note
Purchaser if the Note Purchaser fails to comply with the requirements set forth
in this paragraph.
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01 TIME AND METHOD OF PAYMENT. All amounts payable to the
Note Purchaser hereunder or with respect to the Note shall be made by wire
transfer of immediately available funds in Dollars not later than 5:00 p.m., New
York City time, on the date due. Any funds received after that time will be
deemed to have been received on the next Business Day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 THE ISSUER. The Issuer represents and warrants to the Note
Purchaser that each of its representations and warranties in the Indenture and
the other Basic Documents is true and correct, as of the date hereof as if made
on and as of the date hereof and as of and after giving effect to the making of
each Advance as if made on and as of the making of each Advance and as if set
forth in full herein, and further represents and warrants to such parties, as of
the date hereof and as of and after giving effect to the making of each Advance,
that:
(a) The Issuer has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the State of
Delaware, and the Issuer has full power and authority (corporate and other)
necessary to offer, sell and deliver the Note and to own or hold its properties
and to conduct its business as now conducted by it and to enter into and perform
its obligations under this Agreement and the other Basic Documents and, with
respect to the Issuer, to cause the Trustee to authorize and issue the Note from
time to time as contemplated by this Agreement and the Indenture;
(b) this Agreement and the Note have been duly authorized,
executed and delivered by the Issuer, and constitute the legal, valid and
binding agreements of the Issuer, enforceable against the Issuer in accordance
with their terms;
-6-
(c) neither the Issuer nor, to the best of the Issuer's
knowledge after due inquiry, anyone acting on the Issuer's behalf, has offered,
pledged, sold or otherwise disposed of the Note or any interest therein or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Note or any interest therein or otherwise approached or negotiated with
respect to the Note or any interest therein, with any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, which would constitute a public distribution
of the Note under the Securities Act, or which would render the disposition of
any Note in violation of Section 5 of the Securities Act or any state securities
laws, or require registration or qualification pursuant thereto or require
registration of the Issuer under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), nor will the Issuer act, nor has the Issuer
authorized or will it authorize any person to act, in such a manner with respect
to the Note. Until the earlier to occur of (i) the Facility Termination Date or
(ii) the date on which the Note Purchaser no longer holds the Note, the Issuer
will not sell, transfer, assign or pledge the Note to any Person other than the
Note Purchaser;
(d) the execution and delivery of this Agreement, the Issuer's
delivery of the Note and the acceptance by the Note Purchaser of the Note will
not involve any prohibited transaction within the meaning of the Employee
Retirement Security Act of 1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended;
(e) the Issuer is not required, and will not be required to
register as an "investment company" under the Investment Company Act, and the
Issuer is not controlled by an "investment company" as defined in the Investment
Company Act;
(f) the Issuer is not in violation of its limited liability
company agreement or in default under any agreement, indenture or instrument to
which it is a party, the effect of which violation or default would be
materially adverse to it, to the Receivables or to any of the transactions
contemplated hereby. Neither the issuance and sale of the Note, nor the
execution, delivery and performance by the Issuer of this Agreement or any Basic
Document to which it is a party, nor the consummation by the Issuer of any of
the transactions contemplated hereby or by any Basic Document, nor compliance by
the Issuer with the provisions hereof or thereof, does or will conflict with or
result in a breach or violation of any term or provision of the certificate of
formation (or other document of similar import) of the Issuer or conflict with,
result in a breach, violation or acceleration of, or constitute a default under,
the terms of any indenture or other agreement or instrument to which the Issuer
is a party or by which either of them is bound or to which any of the properties
of the Issuer is subject, the effect of which conflict, breach, violation,
acceleration or default would be materially adverse to it, the Receivables or
any of the transactions contemplated hereby or any statute, order or regulation
applicable to the Issuer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Issuer, the effect of which
conflict, breach, violation or default would be materially adverse to it, the
Receivables or any of the transactions contemplated hereby. The Issuer is not a
party to, bound by or in breach or violation of any indenture or other agreement
or instrument to which it is a party, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it that materially and
adversely affects, or could reasonably be expected to materially and adversely
affect, (i) the ability of the Issuer to perform its obligations under this
Agreement or any Basic Document or (ii) the business, operations, financial
condition, properties, assets or prospects of the Issuer;
-7-
(g) there are no actions or proceedings against, or
investigations of, the Issuer pending, or, to the knowledge of the Issuer after
due inquiry, threatened, before any court, arbitrator, administrative agency or
other tribunal (i) asserting the invalidity of this Agreement, any Basic
Document or the Note, (ii) seeking to prevent the issuance of the Note or the
consummation of any of the transactions contemplated by this Agreement or any
Basic Document, (iii) that, if determined adversely to the Issuer, could
reasonably, either individually or in the aggregate, be expected to materially
and adversely affect the Receivables or the business, operations, financial
condition, properties, assets or prospects of the Issuer or the validity or
enforceability of, or the performance by the Issuer of its obligations under,
this Agreement, any Basic Document or the Note or (iv) seeking to affect
adversely the federal income tax attributes of the Note;
(h) immediately prior to the pledge of the Initial Receivables
by the Issuer to the Trustee as contemplated by the Indenture, the Issuer (i)
had good title to, and was the sole owner of, each Initial Receivable and the
other property purported to be pledged by it pursuant to the Indenture free and
clear of any Lien and (ii) had not assigned to any person any of its right,
title or interest in such Initial Receivables or property.
(i) immediately prior to each pledge of Additional Receivables
by the Issuer to the Trustee as contemplated by the Indenture, the Issuer (i)
will have good title to, and will be the sole owner of, each Receivable and the
other property purported to be pledged by it pursuant to the Indenture free and
clear of any Lien and (ii) will not have assigned to any person any of its
right, title or interest in such Receivables or property.
(j) no Funding Termination Event, or event which, with the
giving of notice or the passage of time or both would constitute a Funding
Termination Event, has occurred and is continuing;
(k) assuming the Note Purchaser is not purchasing the Note
with a view toward further distribution and that the Note Purchaser has not
engaged in any general solicitation or general advertising within the meaning of
the Securities Act, the offer and sale of the Note in the manner contemplated by
this Agreement is a transaction exempt from the registration requirements of the
Securities Act, and the Indenture is not required to be qualified under the
Trust Indenture Act;
(l) the Issuer has furnished to the Note Purchaser true,
accurate and (except as otherwise consented by the Note Purchaser) complete
copies of all other Basic Documents to which it is a party as of the Closing
Date, all of which Basic Documents are in full force and effect as of the
Closing Date and no terms of any such agreements or documents have been amended,
modified or otherwise waived as of such date; and
(m) the Note purchased by the Note Purchaser hereunder will be
entitled to the benefit of the security provided in the Indenture.
-8-
SECTION 5.02 SERVICER. The Servicer represents and warrants to the Note
Purchaser, as of the date hereof and as of and after giving effect to the making
of each Advance, that:
(a) the Servicer has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
California, and the Servicer has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business as now
conducted by it and to enter into and perform its obligations under this
Agreement and the other Basic Documents;
(b) the Servicer is not in violation of its certificate of
incorporation or by-laws, respectively, or in default under any agreement,
indenture or instrument to which it is a party, the effect of which violation or
default would be materially adverse to it, to the Receivables or to any of the
transactions contemplated hereby. Neither the issuance and sale of the Note, nor
the execution, delivery and performance by the Servicer of this Agreement or any
Basic Document to which it is a party, nor the consummation by the Servicer of
any of the transactions contemplated hereby or by any Basic Document, nor
compliance by the Servicer with the provisions hereof or thereof, does or will
conflict with or result in a breach or violation of any term or provision of the
certificate of incorporation or by-laws (or other document of similar import) of
the Servicer or conflict with, result in a breach, violation or acceleration of,
or constitute a default under, the terms of any indenture or other agreement or
instrument to which the Servicer is a party or by which either of them is bound
or to which any of the properties of the Servicer is subject, the effect of
which conflict, breach, violation, acceleration or default would be materially
adverse to it, the Receivables or any of the transactions contemplated hereby or
any statute, order or regulation applicable to the Servicer of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Servicer, the effect of which conflict, breach, violation or default
would be materially adverse to it, the Receivables or any of the transactions
contemplated hereby. The Servicer is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument to which it is a
party, or subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it that materially and adversely affects, or could reasonably
be expected to materially and adversely affect, (i) the ability of the Servicer
to perform its obligations under this Agreement or any Basic Document or (ii)
the business, operations, financial condition, properties, assets or prospects
of the Servicer;
(c) there are no actions or proceedings against, or
investigations of, the Servicer pending, or, to the knowledge of the Servicer,
threatened, before any court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, any Basic Document or
the Note, (ii) seeking to prevent the issuance of the Note or the consummation
of any of the transactions contemplated by this Agreement or any Basic Document,
(iii) that, if determined adversely to the Servicer, could reasonably be
expected to materially and adversely affect the Receivables or the business,
operations, financial condition, properties, assets or prospects of the Servicer
or the validity or enforceability of, or the performance by the Servicer of its
obligations under, this Agreement, any Basic Document or the Note or (iv)
seeking to affect adversely the federal income tax attributes of the Note;
-9-
(d) each representation and warranty made by it in each Basic
Document to which it is a party (including any representations and warranties
made by it as Servicer) is true and correct as of the date originally made, as
of the date hereof as if made on and as of the date hereof and as of and after
giving effect to the making of each Advance as if made on and as of the making
of each Advance as if set forth in full herein;
(e) the audited consolidated balance sheet of the Servicer and
its consolidated subsidiaries as of December 31, 2003 and the related statements
of income, changes in stockholders equity and cash flow as of and for the fiscal
year ending on such date and the unaudited consolidated balance sheet of the
Servicer and its consolidated subsidiaries as of March 31, 2004, and the related
statements of income, changes in stockholders equity and cash flow as of and for
the quarter ending on such date (including in each case the schedules and notes
thereto) (collectively, the "FINANCIAL STATEMENTS"), have been prepared in
accordance with GAAP and present fairly the financial position of the Servicer
and its consolidated subsidiaries as of the dates thereof and the results of
their operations for the periods covered thereby subject, in the case of all
unaudited statements, to normal year-end adjustments and lack of footnotes and
other presentation items;
(f) neither the Servicer nor, to the best of the Servicer's
knowledge after due inquiry, anyone acting on the Servicer's behalf, has
offered, transferred, pledged, sold or otherwise disposed of the Note or any
interest therein, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Note or any interest therein or otherwise approached or
negotiated, with respect to the Note or any interest therein, with any person in
any manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, which would constitute a public
distribution of the Note under the Securities Act, or which would render the
disposition of any Note in violation of Section 5 of the Securities Act or any
state securities laws, or require registration or qualification pursuant thereto
or require registration of the Servicer under the Investment Company Act, nor
will the Servicer act, nor has the Servicer authorized or will it authorize any
person to act, in such a manner with respect to the Note. Until the earlier to
occur of (i) the Facility Termination Date or (ii) the date on which the Note
Purchaser no longer holds the Note, the Servicer will not sell, transfer, assign
or pledge the Note to any Person other than the Note Purchaser;
(g) the representations and warranties made by the Seller in
Section 3.1 of the Sale and Servicing Agreement are true and correct with
respect to each Additional Receivable; and
(h) the information set forth in the Borrowing Base
Certificate is true and correct in all material respects.
Additionally, the Servicer makes all representations set forth
in Section 9.1 of the Sale and Servicing Agreement to the Note Purchaser, as if
set forth in full herein; provided that all references in Section 9.1 thereof to
this Agreement shall be deemed to refer to this Note Purchase Agreement.
-10-
SECTION 5.03 NOTE PURCHASER. The Note Purchaser represents and warrants
to the Issuer and the Servicer, as of the date hereof (or as of a subsequent
date on which a successor or assign of the Note Purchaser shall become a party
hereto), that:
(a) it has had an opportunity to discuss the Issuer's and the
Servicer's business, management and financial affairs, and the terms and
conditions of the proposed purchase, with the Issuer and the Servicer and their
respective representatives;
(b) it is an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has
sufficient knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of investing in, and is able and
prepared to bear the economic risk of investing in, the Note;
(c) it is purchasing the Note for its own account, or for the
account of one or more "accredited investors" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet
the criteria described in SUBSECTION (b) and for which it is acting with
complete investment discretion, for investment purposes only and not with a view
to distribution, subject, nevertheless, to the understanding that the
disposition of its property shall at all times be and remain within its control;
(d) it understands that the Note has not been and will not be
registered or qualified under the Securities Act or any applicable state
securities laws or the securities laws of any other jurisdiction and is being
offered only in a transaction not involving any public offering within the
meaning of the Securities Act and may not be resold or otherwise transferred
unless so registered or qualified or unless an exemption from registration or
qualification is available, that the Issuer is not required to register the
Note, and that any transfer must comply with provisions of SECTION 2.3 of the
Indenture;
(e) it understands that the Note will bear the legend set out
in the form of Note attached as EXHIBIT A-1 to the Indenture and be subject to
the restrictions on transfer described in such legend;
(f) it will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Note;
(g) it understands that the Note may be offered, resold,
pledged or otherwise transferred with the Issuer's prior written consent only
(A) to the Issuer, (B) in a transaction meeting the requirements of Rule 144A
under the Securities Act, (C) outside the United States to a foreign person in a
transaction meeting the requirements of Regulation S under the Securities Act,
or (D) in a transaction complying with or exempt from the registration
requirements of the Securities Act and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction;
-11-
(h) if it desires to offer, sell or otherwise transfer, pledge
or hypothecate the Note as described in clause (B), (C) or (D) of the preceding
paragraph, the transferee of the Note will be required to deliver a certificate
and may under certain circumstances be required to deliver an opinion of
counsel, in each case, as described in the Indenture, reasonably satisfactory in
form and substance to the applicable seller, that an exemption from the
registration requirements of the Securities Act applies to such offer, sale,
transfer or hypothecation. The Note Purchaser understands that the registrar and
transfer agent for the Note will not be required to accept for registration of
transfer the Note acquired by it, except upon presentation of an executed letter
in the form required by the Indenture;
(i) it will obtain from any purchaser of the Note
substantially the same representations and warranties contained in the foregoing
paragraphs; and
(j) this Agreement has been duly and validly authorized,
executed and delivered by the Note Purchaser and constitutes a legal, valid,
binding obligation of the Note Purchaser, enforceable against the Note Purchaser
in accordance with its terms.
ARTICLE VI
CONDITIONS
SECTION 6.01 CONDITIONS TO PURCHASE. The Note Purchaser will have no
obligation to purchase the Note hereunder unless:
(a) each of the Basic Documents shall be in full force and
effect and all consents, waivers and approvals necessary for the consummation of
the transactions contemplated by the Basic Documents shall have been obtained
and shall be in full force and effect;
(b) at the time of such issuance, all conditions to the
issuance of the Note under the Indenture and under SECTION 2.1(b) of the Sale
and Servicing Agreement shall have been satisfied and all conditions to each
Advance, including the initial Advance, set forth under SECTIONS 6.02 and 6.03
hereof have been satisfied;
(c) the Note Purchaser shall have received a duly executed,
authorized and authenticated Note registered in its name and stating that the
principal amount thereof shall not exceed the Maximum Invested Amount;
(d) the Issuer shall have paid all fees required to be paid by
it on the Closing Date, including all fees required under Section 8.05(a)
hereof; and
(e) the Note purchased by the Note Purchaser hereunder shall
be entitled to the benefit of the security provided in the Indenture and shall
constitute the legal, valid and binding agreement of the Issuer, enforceable
against the Issuer in accordance with its terms.
SECTION 6.02 CONDITIONS TO INITIAL ADVANCE. The obligation of the Note
Purchaser to fund the initial Advance hereunder shall be subject to the receipt
by the Note Purchaser of the following items, each in form and substance
reasonably satisfactory to the Note Purchaser:
-12-
(a) a duly executed and delivered counterpart of each Basic
Document, each such document being in full force and effect;
(b) certified copies of charter documents and resolutions of
the Board of Directors of each of the Issuer and the Servicer authorizing or
ratifying the execution, delivery and performance, respectively, of all Basic
Documents to which it is a party;
(c) a certificate of the Secretary or an Assistant Secretary
of the Issuer and the Servicer, as applicable, certifying the names of its
officer or officers authorized to sign all transaction documents to which it is
a party;
(d) a certificate of a senior officer of the Servicer to the
effect that the representations and warranties of the Servicer in this Agreement
and the Sale and Servicing Agreement are true and correct as of the date of such
requested Advance, with the same effect as though made on the date of such
Advance;
(e) customary legal opinions (including opinions relating to
true sale, non-consolidation, UCC and enforceability matters);
(f) evidence of completion of UCC filings and search reports;
(g) rating letters from each Rating Agency confirming a rating
of at least BBB- (in the case of S&P) and Baa3 (in the case of Xxxxx'x) with
respect to the Note;
(h) payment of Note Purchaser's reasonable out-of-pocket fees
and expenses in accordance with Section 8.05(a) hereof; and
(i) such other documents and opinions as the Note Purchaser
may reasonably request.
SECTION 6.03 CONDITIONS TO EACH ADVANCE. The obligation of the Note
Purchaser to fund, any Advance on any day (including the Initial Advance) shall
be subject to the conditions precedent that on the date of the Advance, before
and after giving effect thereto and to the application of any proceeds
therefrom, the following statements shall be true:
(a) the Facility Termination Date shall not have occurred or
will not occur as a result of making such Advance and no breach of the Sale and
Servicing Agreement exists or will exist;
(b) no later than two (2) Business Days prior to the requested
Funding Date, the Note Purchaser shall have received a properly completed
Borrowing Base Certificate from the Servicer in the form of EXHIBIT A hereto;
-13-
(c) no later than one (1) Business Day prior to the requested
Funding Date, the Note Purchaser shall have received a properly completed and
executed Advance Request pursuant to SECTION 2.03 hereof;
(d) the Servicer shall have delivered to the Note Purchaser
the Servicer's Certificate for the immediately preceding Accrual Period pursuant
to Section 4.9 of the Sale and Servicing Agreement;
(e) such Advance is in an amount not less than $2,000,000;
(f) such Advance will not cause there to be more than two
Advances in a calendar week;
(g) after giving effect to such Advance, the Invested Amount
of the Note will not exceed the Maximum Invested Amount;
(h) the representations and warranties made by the Servicer
and the Issuer in the Basic Documents are true and correct as of the date of
such requested Advance, with the same effect as though made on the date of such
Advance;
(i) the Trustee shall (in accordance with the procedures
contemplated in SECTION 3.4 of the Sale and Servicing Agreement) have confirmed
receipt of the related Receivable File for each Eligible Receivable included in
the Borrowing Base calculation and shall have delivered to the Noteholder a copy
of a Trust Receipt with respect to the Receivable Files related to the Related
Receivables to be purchased on such Funding Date;
(j) the amount on deposit in the Reserve Account shall equal
or exceed the Required Reserve Account Amount, taking into account the
application of the proceeds of the proposed Advance on such date;
(k) after giving effect to such Advance, the Borrowing Base
Deficiency shall be equal to zero;
(l) the Net Spread for the Eligible Receivables shall not be
less than 9.0%;
(m) the Issuer and the Hedge Counterparty shall have entered
into a Hedge Agreement in connection with the payment of interest and fees under
the Note, in form and substance reasonably satisfactory to the Note Purchaser,
provided that the Rating Agency Condition shall have been satisfied with respect
to any Hedge Agreements other than interest rate cap agreements; and
(n) all limitations specified in SECTION 2.02 of this
Agreement and in SECTION 2.1(b) of the Sale and Servicing Agreement shall have
been satisfied with respect to the making of such Advance.
-14-
The giving of any notice pursuant to SECTION 2.03 shall
constitute a representation and warranty by the Issuer and the Servicer that all
conditions precedent to such Advance have been satisfied.
ARTICLE VII
COVENANTS
SECTION 7.01 COVENANTS. Each of the Issuer and the Servicer severally
covenants and agrees that, until the Note and all other obligations of the
Issuer under this Agreement have been paid in full and the Term has expired, it
will:
(a) duly and timely perform all of its respective covenants
and obligations under each Basic Document to which it is a party;
(b) not except as contemplated by the Indenture, amend,
modify, waive or give any approval, consent or permission under, any provision
of the Indenture or any other Basic Document to which it is a party unless any
such amendment, modification, waiver or other action is in writing and made in
accordance with the terms of the Indenture or such other Basic Document, as
applicable;
(c) at the same time any report, notice or other document is
provided or any communication is furnished to the Rating Agencies and/or the
Trustee, or caused to be provided or furnished, by the Issuer or the Servicer
under the Indenture or any other Basic Document, provide the Note Purchaser with
a copy of such report, notice or other document; PROVIDED, HOWEVER, that neither
the Servicer nor the Issuer shall have any obligation under this SECTION 7.01(c)
to deliver to the Note Purchaser copies of any vehicle identification number
listings;
(d) at any time and from time to time, following at least 3
Business Days prior notice from the Note Purchaser, and during regular business
hours, permit the Note Purchaser or its agents, representatives or permitted
assigns, access to the offices of, the Servicer and the Issuer, as applicable,
(i) to examine and make copies of and abstracts from all documentation relating
to the Collateral and the Trust Estate, and (ii) to visit the offices and
properties of, the Servicer and the Issuer for the purpose of examining such
materials described in CLAUSE (i) above, and to discuss matters relating to the
Collateral and the Trust Estate, or the administration and performance of the
Indenture, the Sale and Servicing Agreement and the other Basic Documents with
any of the officers or employees of, the Servicer and/or the Issuer, as
applicable, having knowledge of such matters.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01 AMENDMENTS. No amendment to or waiver of any provision of
this Agreement, nor consent to any departure by the Servicer, the Issuer or the
Note Purchaser therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Servicer, the Issuer and the Note Purchaser. The
Issuer will provide the Rating Agencies with prompt written notice of any
amendments to this Agreement.
-15-
SECTION 8.02 NO WAIVER; REMEDIES. Any waiver, consent or approval given
by any party hereto shall be effective only in the specific instance and for the
specific purpose for which given, and no waiver by a party of any breach or
default under this Agreement shall be deemed a waiver of any other breach or
default. No failure on the part of any party hereto to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder, or any abandonment or
discontinuation of steps to enforce the right, power or privilege, preclude any
other or further exercise thereof or the exercise of any other right. No notice
to or demand on any party hereto in any case shall entitle such party to any
other or further notice or demand in the same, similar or other circumstances.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.03 BINDING ON SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon, and inure to the
benefit of, the Issuer, the Servicer, the Note Purchaser and their respective
successors and assigns; PROVIDED, HOWEVER, that neither the Issuer nor the
Servicer may assign its rights or obligations hereunder or in connection
herewith or any interest herein (voluntarily, by operation of law or otherwise)
without the prior written consent of the Note Purchaser. Nothing expressed
herein is intended or shall be construed to give any Person other than the
Persons referred to in the preceding sentence any legal or equitable right,
remedy or claim under or in respect of this Agreement.
(b) The Note Purchaser may at any time grant a security
interest in and lien on all of its interests under this Agreement, the Note and
all Basic Documents to any Person who, at any time now or in the future,
provides program liquidity or credit enhancement, including without limitation,
a surety bond or financial guaranty insurance policy for the benefit of the Note
Purchaser. The Note Purchaser may assign its Commitment or all of its interest
under the Note, this Agreement and the Basic Documents to any Person with the
written consent of the Issuer. Notwithstanding the foregoing, it is understood
and agreed by the Issuer that the Note may be sold, transferred or pledged
without the consent of the Issuer in compliance with, and as provided for under,
SECTION 5.03(g). Notwithstanding any other provisions set forth in this
Agreement, the Note Purchaser may at any time create a security interest in all
of its rights under this Agreement, the Note and the Basic Documents in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
(c) If, on or after the date of this Agreement, the Note
Purchaser reasonably determines that the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Note Purchaser with any request or
directive issued on or after the date of this Agreement (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
made or would be likely to make it unlawful for the Note Purchaser to make or
-16-
maintain the Advances, hold the Note or otherwise to perform the transactions
contemplated to be performed by it pursuant to this Agreement and those
contemplated to be performed by it pursuant to the Basic Documents to which the
Note Purchaser is a party, then (i) the Note Purchaser shall so notify the
Issuer; (ii) the obligation of the Note Purchaser to make Advances from time to
time as contemplated hereunder shall be suspended; and (iii) the Note Purchaser
may assign its rights and obligations hereunder and under the Basic Documents,
the Note and its interests therein to any Person reasonably acceptable to the
Issuer and the Servicer; provided that a Funding Termination Event shall occur
if the Issuer or the Servicer fails to accept the proposed assignee chosen by
the Note Purchaser.
SECTION 8.04 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made herein and in the Note delivered pursuant
hereto shall survive the making and the repayment of the Advances and the
execution and delivery of this Agreement and the Note and shall continue in full
force and effect until all interest and principal on the Note and other amounts
owed hereunder have been paid in full and the commitment of the Note Purchaser
hereunder has been terminated. In addition, the obligations of the Issuer and
the Note Purchaser under SECTIONS 3.03, 3.04, 3.05, 8.05, 8.11, 8.12 and 8.13
shall survive the termination of this Agreement.
SECTION 8.05 PAYMENT OF COSTS AND EXPENSES; INDEMNIFICATION.
(a) PAYMENT OF COSTS AND EXPENSES.
(i) The Issuer agrees to pay on demand up to $50,000 of the
reasonable expenses of the Note Purchaser (including the reasonable
out-of-pocket and legal expenses of the Note Purchaser, if any) in
connection with:
(A) the negotiation, preparation, execution, delivery
and administration of this Agreement and of each other Basic
Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Basic Document as
may from time to time hereafter be proposed, whether or not
the transactions contemplated hereby or thereby are
consummated, and
(B) the consummation of the transactions contemplated
by this Agreement and the other Basic Documents.
(ii) The Issuer and the Servicer further jointly and severally
agree to (A) pay upon demand all reasonable costs and out-of-pocket
expenses incurred by the Note Purchaser as a consequence of, or in
connection with, the enforcement of this Agreement or any of the other
Basic Documents (including, without limitation, all costs and
out-of-pocket expenses incident to the performance of any due diligence
by RSM McGladrey and fees charged by the Rating Agencies for the rating
of the Note) and any stamp, documentary or other taxes which may be
-17-
payable by the Note Purchaser in connection with the execution or
delivery of this Agreement, any Advance hereunder, or the issuance of
the Note or any other Basic Documents; and (B) hold and save the Note
Purchaser harmless from all liability for any breach by the Issuer of
its obligations under this Agreement. The Issuer and Servicer also
further jointly and severally agree to reimburse the Note Purchaser
upon demand for all reasonable out-of-pocket and legal expenses
incurred by the Note Purchaser in connection with the negotiation of
any restructuring or "work-out," whether or not consummated, of the
Basic Documents.
(b) INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by the Note Purchaser, the Issuer and the Servicer,
jointly and severally, hereby indemnify and hold the Note Purchaser and each of
its officers, directors, employees and agents (collectively, the "INDEMNIFIED
PARTIES") harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and reasonable expenses incurred
in connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought and including,
without limitation, any liability in connection with the offering and sale of
the Note), including reasonable attorneys' fees and disbursements (collectively,
the "INDEMNIFIED LIABILITIES"), incurred by the Indemnified Parties or any of
them (whether in prosecuting or defending against such actions, suits or claims)
as a result of, or arising out of, or relating to:
(i) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Advance
including, without limitation, any claim, suit or action related to
such transaction, which claim is based on a violation of Consumer Laws
or any applicable vicarious liability statutes, or the use or operation
of any Financed Vehicle by any Person; or
(ii) the entering into and performance of this Agreement and
any other Basic Document by any of the Indemnified Parties,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence, bad faith or willful misconduct and, with respect to the Servicer,
excluding any Indemnified Liabilities that would constitute recourse to the
Servicer for loss by reason of the bankruptcy, insolvency (or other credit
condition) of, or default by the related Obligor on any Receivable. If and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Issuer and the Servicer hereby jointly and severally agree to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The indemnity set forth
in this SECTION 8.05(b) shall in no event include indemnification for any Taxes
(which indemnification is provided in SECTION 3.05). The Issuer shall give
notice to the Rating Agencies of any claim for Indemnified Liabilities made
under this section. Upon the written request of the Note Purchaser pursuant to
this Section 8.05(b), the Issuer and the Servicer shall promptly reimburse the
Note Purchaser for the amount of any such Indemnified Liabilities incurred by
the Note Purchaser.
-18-
SECTION 8.06 CHARACTERIZATION AS BASIC DOCUMENT; ENTIRE AGREEMENT. This
Agreement shall be deemed to be a Basic Document for all purposes of the
Indenture and the other Basic Documents. This Agreement, together with the
Indenture, the Sale and Servicing Agreement, the documents delivered pursuant to
SECTION 6.01 and the other Basic Documents, including the exhibits and schedules
thereto, contains a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all previous oral statements and other
writings with respect thereto.
SECTION 8.07 NOTICES. All notices, amendments, waivers, consents and
other communications provided to any party hereto under this Agreement shall be
in writing and addressed, delivered or transmitted to such party at its address
or facsimile number set forth below its signature hereto or at such other
address or facsimile number as may be designated by such party in a notice to
the other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted and accompanied by a telephonic confirmation of
receipt.
SECTION 8.08 SEVERABILITY OF PROVISIONS. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of the prohibition or unenforceability without invalidating the
remaining provisions of this Agreement.
SECTION 8.09 TAX CHARACTERIZATION. Each party to this Agreement (a)
acknowledges that it is the intent of the parties to this Agreement that, for
accounting purposes and for all Federal, state and local income and franchise
tax purposes, the Note will be treated as evidence of indebtedness issued by the
Issuer, (b) agrees to treat the Note for all such purposes as indebtedness and
(c) agrees that the provisions of the Basic Documents shall be construed to
further these intentions.
SECTION 8.10 LIMITED RECOURSE. Notwithstanding any other provision
contained herein or in any of the other Basic Documents, the obligations of the
Issuer under this Agreement are limited recourse obligations of the Issuer,
payable solely from the Collateral and, following realization thereof, any
unsatisfied claims shall be automatically extinguished. No recourse shall be had
for the payment of any amount owing in respect of this Agreement, including the
payment of any fee hereunder or any other obligation or claim arising out of or
based upon this Agreement, against any certificateholder, member, employee,
officer, manager, director, affiliate or trustee of the Issuer; PROVIDED,
HOWEVER, nothing in this SECTION 8.10 shall relieve any of the foregoing Persons
from any liability which any such Person may otherwise have for its gross
negligence, bad faith or willful misconduct. In addition, each of the parties
hereto agree that all fees, expenses and other costs payable hereunder by the
Issuer shall be payable only to the extent set forth in SECTION 11.14 of the
Indenture and that all other amounts owed to them by the Issuer shall be payable
solely from amounts that become available for payment pursuant to the Indenture
and the Sale and Servicing Agreement.
-19-
SECTION 8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 8.12 JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY
OF THE PARTIES HEREUNDER WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY
STATE OR (TO THE EXTENT PERMITTED BY LAW) FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, ALL PARTIES HEREUNDER ACCEPT FOR THEMSELVES AND IN CONNECTION WITH
THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
SECTION 8.13 WAIVER OF JURY TRIAL. ALL PARTIES HEREUNDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS NOTE PURCHASE AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND
AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO
ENTER INTO THIS AGREEMENT.
SECTION 8.14 COUNTERPARTS. This Agreement may be executed in any number
of counterparts (which may include facsimile) and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which together shall constitute one and the same
instrument.
SECTION 8.15 ISSUER OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Seller, the
Servicer or the Trustee on the Note or under this Note Purchase Agreement or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Seller, the Servicer or the Trustee in its individual capacity
(other than in connection with their respective obligations under the Basic
Documents to which they are a party), (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Seller, the Servicer, the Trustee, any holder of a
beneficial interest in the Issuer, the Seller, the Servicer, or the Trustee or
-20-
of any successor or assign of the Seller, the Servicer, or the Trustee, except
as any such Person may have expressly agreed (it being understood that the
Trustee has no such obligations in its individual capacity) and except that any
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid capital contribution or failure to pay any
installment or call owing to such entity.
SECTION 8.16 WAIVER OF SET-OFF. The obligations of the Issuer and the
Servicer hereunder are absolute and unconditional and each of the Issuer and the
Servicer expressly waives any and all rights of set-off, abatement, diminution
or deduction that the Issuer or the Servicer may otherwise at any time have
under applicable law.
SECTION 8.17 SERVICER REFERENCES. All references to the Servicer herein
shall apply to CPS, in its capacity as the initial Servicer, and not to a
successor Servicer; provided that Section 7.01 shall apply to a successor
Servicer.
[Remainder of Page Intentionally Blank]
-21-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers and delivered as
of the day and year first above written.
PAGE FUNDING LLC
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: 00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Telephone:
Facsimile:
CONSUMER PORTFOLIO SERVICES, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: 00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-22-
UBS REAL ESTATE SECURITIES INC., AS NOTE
PURCHASER
By:___________________________________________
Name:_________________________________________
Title:________________________________________
By:__________________________________
Name:________________________________
Title:_______________________________
Address: 1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Tamer El-Rayess
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-23-
