Exhibit 10.4
Receivables Purchase Agreement
EXECUTION COPY
PURCHASE AGREEMENT dated as of this March 1, 1997, by and between SAMCO
ACCEPTANCE CORP. (the "Seller"), having its principal executive office at 8150
North Central Expressway, suite 000, Xxxx-Xxx 00, Xxxxxx, Xxxxx, and CONSUMER
PORTFOLIO SERVICES, INC., a California corporation (the "Purchaser"), having its
principal executive office at 0 Xxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
WHEREAS, in the regular course of its business, the Seller purchases and
services through its auto loan programs certain motor vehicle retail installment
sale contracts secured by new and used automobiles, light trucks, vans or
minivans acquired from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined), are to be sold by
the Seller to the Purchaser.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth in
the Pooling and Servicing Agreement (as hereinafter defined). As used in this
Agreement, the following terms shall, unless the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms of the terms defined):
"Agreement" means this Purchase Agreement, as this agreement may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"Assignment" means the Assignment dated March 17, 1997, by the Seller to
the Purchaser, relating to the purchase of the 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.
"Closing Date" means March 17, 1997.
"Cutoff Date" means March 11, 1997.
"Obligor" 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.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement dated as of March 1, 1997, among CPS Receivables Corp., as seller,
Consumer Portfolio Services, Inc., as originator of the Receivables and
servicer, and Norwest Bank Minnesota, National Association, as trustee and
standby servicer, as such agreement may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Purchaser" means CPS Receivables Corp., a California corporation, and
its successors and assigns.
"Receivable" means each retail installment sale contract for a Financed
Vehicle originated by the Seller that appears on the Schedule of Receivables and
all rights thereunder.
"Receivables Purchase Price" means $7,336,846.59.
"Schedule of Receivables" means the list of Receivables annexed hereto
as Exhibit B.
"Seller" means Samco Acceptance Corp., a [Texas] corporation, in its
capacity as seller of the Receivables and the other Transferred Property
relating thereto, and its successors and assigns.
"Transferred Property" shall have the meaning specified in Section
2.1(a) hereof.
"UCC" means the Uniform Commercial Code, as in effect from time to time
in the relevant jurisdictions.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. Purchase and Sale of Receivables. On the Closing Date, subject to
the terms and conditions of this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller, without
recourse (subject to the obligations in this Agreement), all of the Seller's
right, title and interest in, to and under the Receivables and the other
Transferred Property relating thereto. The conveyance to the Purchaser of the
Receivables and other Transferred Property relating thereto is intended as a
sale free and clear of all liens and it is intended that the Transferred
Property and other
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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. 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 Receivables and
the other Transferred 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 the repayment of amounts owed to the
Purchaser from the Seller.
(a) Transfer of Receivables. On the Closing Date, the Seller shall sell,
transfer, assign, grant, set over and otherwise convey to the Purchaser, without
recourse (subject to the obligations herein), all right, title and interest of
the Seller in and to (i) the Receivables listed in the Schedule of Receivables
and, with respect to Rule of 78's Receivables, all monies due or to become due
thereon after the Cutoff Date (including Scheduled Payments due after the Cutoff
Date (including principal prepayments relating to such Scheduled Payments) but
received by the Seller on or before the Cutoff Date) and, with respect to Simple
Interest Receivables, all monies received thereunder after the Cutoff Date and
all Liquidation Proceeds and Recoveries received with respect to such
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller in the
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 or the Obligors
thereunder; (iv) refunds for the costs of extended service contracts with
respect to Financed Vehicles, 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 and any recourse to Dealers for any of the foregoing; (v)
the Receivable File related to each Receivable; and (vi) the proceeds of any and
all of the foregoing (collectively, the "Transferred Property").
(b) Receivables Purchase Price. In consideration for the Receivables and
other Transferred Property described in Section 2.1(a), the Purchaser shall, on
the Closing Date, pay to the Seller the Receivables Purchase Price.
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2.2. The Closing. The sale and purchase of the Receivables shall take
place at a closing (the "Closing") at the offices of Xxxxx, Xxxxx & Xxxxx, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000- 5820 on the Closing Date.
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 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 this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement has been duly authorized by the
Purchaser by all necessary corporate action.
(d) Binding Obligation. This Agreement shall constitute a legal, valid
and binding obligation of the Purchaser enforceable in accordance with its
terms.
(e) No Violation. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not conflict
with, result in a breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Purchaser, or any indenture, agreement,
mortgage, deed of trust, or other instrument to which the Purchaser is a party
or by which it is bound or to which any of its properties are subject; nor
result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any indenture, agreement,
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mortgage, deed of trust, or other instrument (other than the Pooling and
Servicing Agreement); nor violate any law, order, rule or regulation applicable
to the Purchaser of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties.
3.2. Representations and Warranties of the Seller. (a) The Seller hereby
represents and warrants to the Purchaser as of the Closing Date:
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of [Texas], with power and authority to own
its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted and had at all
relevant times, and shall have, power, authority and legal right to
acquire, 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 shall
require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property sold and assigned to the Purchaser and has duly authorized such
sale and assignment to the Purchaser by all necessary corporate action;
and the execution, delivery and performance of this Agreement has been
duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligation. This Agreement effects a
valid sale, transfer and assignment of the Receivables and the other
Transferred Property conveyed to the Purchaser pursuant to Section 2.1,
enforceable against creditors of and purchasers from the Seller; and
this Agreement shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms.
(v) No Violation. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions
of, nor
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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; 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) Fraudulent Conveyance. The Seller is not selling the
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 Receivables to the Purchaser.
(b) The Seller makes the following representations and warranties as to
the 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 Closing
Date, and shall survive the sale, transfer, and assignment of the Receivables
and the other Transferred Property relating thereto to the Purchaser:
(i) Title. It is the intention of the Seller that the transfer
and assignment herein contemplated constitute a sale of the Receivables
from the Seller to the Purchaser and that the beneficial interest in and
title to such Receivables not be part of the debtor's estate in the
event of the filing of a bankruptcy petition by or against the Seller
under any bankruptcy law. No Receivable has been sold, transferred,
assigned, or pledged by the Seller to any Person other than the
Purchaser or, if so, 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
Receivable, and was the sole owner thereof, free and clear of all liens,
claims, encumbrances, security interests, and rights of others and,
immediately upon the transfer thereof, the Purchaser shall have good and
marketable title to each such Receivable, and will be the sole owner
thereof, free and clear of all liens, encumbrances, security interests,
and rights of others, and the transfer has been perfected under the UCC.
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(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 Receivables
pursuant to this Agreement shall be "without recourse" except for the
representations, warranties and covenants made by the Seller in this
Agreement.
ARTICLE IV
CONDITIONS
4.1. Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to purchase the 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, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense,
on or prior to the Closing Date, indicate in its computer files that the
Receivables have been sold to the Purchaser pursuant to this Agreement
and shall deliver to the Purchaser the Schedule of Receivables certified
by the Chairman, the President, the Vice President or the Treasurer of
the Seller to be true, correct and complete.
(c) Receivable Files Delivered. The Seller shall have delivered
the Receivable Files to the Purchaser or such other party as the
Purchaser has designated on or prior to the Closing Date.
(d) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller will
execute and deliver the Assignment. The Assignment shall be
substantially in the form of Exhibit A hereto.
(ii) Other Documents. On or prior to the Closing Date,
the Seller shall deliver such other documents as the Purchaser
may reasonably request.
4.2. Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the satisfaction
of the following conditions:
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(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct on the
Closing Date and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. At the Closing Date, the
Purchaser will deliver to the Seller the Receivables Purchase Price.
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 Pooling and Servicing Agreement, the Pooling and Servicing Agreement
shall govern:
5.1. Protection of Right, Title and Interest.
(a) Maintenance of Computer Systems. The Seller shall maintain its
computer systems so that, from and after the time of sale hereunder of the
Receivables to the Purchaser, the Seller's master computer records (including
any back-up archives) that refer to a Receivable shall indicate clearly the
interest of the Purchaser in such Receivable and that such Receivable is owned
by the Purchaser. Indication of the Purchaser's ownership of a Receivable shall
be deleted from or modified on the Seller's computer systems when, and only
when, the Receivable shall have been paid in full or repurchased.
(b) 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 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 Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Purchaser unless such
Receivable has been paid in full or repurchased.
5.2. 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.
5.3. Sale. The Seller agrees to treat this conveyance for all purposes
(including without limitation tax and financial
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accounting purposes) as a sale on all relevant books, records, tax returns,
financial statements and other applicable documents.
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. Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
6.3. Notices. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or telex and addressed or delivered to
it at its address (or in case of telex, at its telex number at such address)
shown in the opening portion of this Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex.
6.4. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.5. Governing Law. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
6.6. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
[Rest of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
SAMCO ACCEPTANCE CORP.
By:
Name:
Title:
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of March 1, 1997 between the undersigned (the "Seller") and Consumer Portfolio
Services, Inc. (the "Purchaser") (the "Purchase Agreement"), the undersigned
does hereby sell, transfer, assign and otherwise convey unto the Purchaser,
without recourse (subject to the obligations in the Purchase Agreement), all
right, title and interest of the Seller in and to (i) the Receivables listed in
the Schedule of Receivables attached hereto as Schedule 1 and, with respect to
Rule of 78's Receivables, all monies due or to become due thereon after the
Cutoff Date (including Scheduled Payments due after March 11, 1997 (the "Cutoff
Date") Cutoff Date (including principal prepayments relating to such Scheduled
Payments) but received by the Seller on or before the Cutoff Date) and, with
respect to Simple Interest Receivables, all monies received thereunder after the
Cutoff Date and all Liquidation Proceeds and Recoveries received with respect to
such Receivables; (ii) the security interests in the Financed Vehicles granted
by Obligors pursuant to the Receivables and any other interest of the Seller in
the 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; (iv) refunds for the
costs of extended service contracts with respect to Financed Vehicles, 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 Receivables and any
recourse to Dealers for any of the foregoing; (v) the Receivable File related to
each Receivable; and (vi) the proceeds of any and all of the foregoing. The
foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other Person in connection with the Receivables, the
Receivable Files, any insurance policies or any agreement or instrument relating
to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the 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 March 17, 1997.
SAMCO ACCEPTANCE CORP.
By:
Name:
Title:
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Schedule 1
Schedule of Receivables
